EXHIBIT 4.1
SHAREHOLDERS AGREEMENT
AMONG
MOBILE STORAGE GROUP, INC.,
WINDWARD CAPITAL PARTNERS II, L.P.,
WINDWARD CAPITAL ▇▇ ▇▇, LLC,
WINDWARD/MSG CO-INVEST, LLC
AND
THE OTHER SHAREHOLDERS LISTED HEREIN
DATED AS OF APRIL 4, 2000
TABLE OF CONTENTS
Page
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SHAREHOLDERS AGREEMENT...............................................................................1
BACKGROUND...........................................................................................1
ARTICLE I DEFINITIONS................................................................................3
1.1 Specific Definitions...............................................................3
1.2 Other Terms........................................................................13
ARTICLE II CORPORATE GOVERNANCE......................................................................13
2.1 Voting Rights in Charter; Voting Matters Related to Charter Documents..............13
2.2 Designation of Directors...........................................................14
2.3 Replacement of Nominees............................................................15
2.4 Calling Special Meetings for the Removal of Nominees...............................15
2.5 Calling Special Meetings for the Enforcement of Corporate Governance Provisions....16
2.6 Removal for Cause..................................................................16
2.7 Grant of Proxies...................................................................16
ARTICLE III RESTRICTIONS ON TRANSFER; RIGHTS OF FIRST REFUSAL........................................17
3.1 Restrictions on Transfer...........................................................17
ARTICLE IV TAG-ALONG RIGHTS..........................................................................17
4.1 Tag-Along Rights Generally.........................................................17
4.2 Allocation of Shares of Tag-Along Stock............................................19
4.3 Transfer Mechanics.................................................................19
4.4 Transfers to Third Parties after Shareholders Decline Tag-Along Rights.............20
4.5 Exceptions to Tag-Along Rights.....................................................20
ARTICLE V RIGHTS TO COMPEL SALE OR IPO EVENT.........................................................21
5.1 Rights to Compel Sale Generally....................................................21
5.2 Compelled Sale Pursuant to a Sale of Company Stock.................................21
5.3 Compelled Sale Other Than Pursuant to a Sale of Company Stock......................23
5.4 Cooperation in Connection with Compelled Sale......................................23
5.5 Notice of Consummation of Compelled Sale...........................................24
5.6 Rights to Compel IPO Event.........................................................24
ARTICLE VI PREEMPTIVE RIGHTS.........................................................................25
6.1 Preemptive Rights..................................................................25
ARTICLE VII PUT AND CALL RIGHTS......................................................................26
7.1 Put and Call Rights................................................................26
7.2 Obligation to Sell Several.........................................................30
7.3 Deferral of Purchases..............................................................30
7.4 Payment for Stock..................................................................31
7.5 Miscellaneous......................................................................32
7.6 Proxy and Escrow of Company Stock..................................................32
ARTICLE VIII COMPANY COVENANTS.......................................................................33
8.1 Financial Reports..................................................................33
8.2 Access to Information..............................................................33
8.3 FIRPTA Activities..................................................................33
ARTICLE IX REGISTRATION RIGHTS.......................................................................33
9.1 Demand Registration Rights.........................................................33
9.2 Piggyback Registration Rights......................................................36
9.3 Priority in Piggyback Registrations................................................37
9.4 Expenses...........................................................................39
9.5 Restrictions on Public Sale by Shareholders and Company............................40
9.6 Indemnification by the Company.....................................................41
9.7 Indemnification by the Shareholders and Underwriters...............................42
9.8 Notices of Claims, Etc.............................................................42
9.9 Other Indemnification..............................................................43
9.10 Registration Procedure.............................................................43
9.11 Rule 144...........................................................................46
ARTICLE X ADDITIONAL SHAREHOLDERS....................................................................47
10.1 Transferees of Shareholders or the Company.........................................47
10.2 New Shareholders...................................................................47
10.3 Supplemental Agreements............................................................48
ARTICLE XI STOCK LEGENDS.............................................................................48
11.1 Stock Certificate Legend...........................................................48
ARTICLE XII APPOINTMENT OF AGENTS....................................................................49
12.1 Appointment of Agent for Windward Group Matters....................................49
12.2 Appointment of Agent for the Majority Roll-Over Shareholders and Other
Shareholders.....................................................................52
ARTICLE XIII TERM OF AGREEMENT.......................................................................52
13.1 Term...............................................................................52
ARTICLE XIV MISCELLANEOUS............................................................................52
14.1 Confidentiality....................................................................52
14.2 Specific Performance...............................................................52
14.3 Consent to Jurisdiction Etc........................................................52
14.4 Attorneys' Fees....................................................................52
14.5 Headings; No Third Party Beneficiaries.............................................52
14.6 Entire Agreement...................................................................52
14.7 Notices............................................................................52
14.8 Applicable Law.....................................................................52
14.9 Severability.......................................................................52
14.10 Successors; Assigns; Transferees; Amendments.......................................52
14.11 Defaults; No Circumvention of Agreement............................................52
14.12 Further Assurances.................................................................52
14.13 Counterparts.......................................................................52
14.14 Recapitalization etc...............................................................52
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT dated as of April 4, 2000 (the "Agreement"), by
and among Mobile Storage Group, Inc., a California corporation (the "Company"),
Windward Capital Partners II, L.P., a Delaware limited partnership ("Windward"),
Windward Capital ▇▇ ▇▇, LLC, a Delaware limited liability company ("WCL"),
Windward/MSG Co-Invest, LLC, a Delaware limited liability company ("WCI"), the
persons listed in the Schedule of Majority Roll-Over Shareholders attached
hereto (such persons and each of their respective Permitted Transferees (as
defined herein) are referred to herein, collectively, as the "Majority Roll-Over
Shareholders"), the persons listed in the Schedule of Other Shareholders
attached hereto (such persons and each of their respective Permitted Transferees
are referred to herein, collectively, as the "Other Shareholders") and such
other persons or entities who or which become parties to this Agreement pursuant
to the terms and conditions of this Agreement. Windward, WCL and WCI, together
with their respective Permitted Transferees, shall be referred to collectively
in this Agreement as the "Windward Group."
BACKGROUND
WHEREAS, pursuant to the terms and conditions of the Amended and
Restated Agreement and Plan of Merger, dated as of April 3, 2000 (the "Merger
Agreement"), by and among the Company, Windward, WCL, WCI, Windward
Acquisition/MS, LLC, a Delaware limited liability company ("Acquisition Sub"),
and certain shareholders of the Company set forth on the signature pages
thereto, among other things, at the Initial Closing, (a) the Windward Group
shall purchase approximately 106,000 shares of Common Stock of the Company from
certain shareholders of the Company and the Windward Group shall purchase
approximately 18,000 shares of Common Stock of the Company (the "Newly Issued
Shares") from the Company in the Share Purchase, and, at the Subsequent Closing,
(b) the units of limited liability ownership interests of Acquisition Sub held
by the Windward Group will be converted into the right to receive from the
Company approximately 7,000 shares (subject to adjustment pursuant to the terms
of the Merger Agreement) of Common Stock of the Company (the "Company Common
Stock") ((a) and (b) representing in the aggregate approximately 89% of the
Company's total outstanding Common Stock (without giving effect to the exercise
or conversion of any outstanding options, the Preferred Stock (as defined in the
Merger Agreement) or other similar securities for or into shares of Company
Common Stock)), (c) (i) the Excluded Common Shares (as defined in the Merger
Agreement) outstanding immediately prior to the Effective Time (as defined in
the Merger Agreement) will be converted into the right to retain an
aggregate of 14,733 shares of Common Stock of the Surviving Corporation (as
defined in the Merger Agreement), (ii) each share of Series B 10% Convertible
Preferred Stock of the Company (the "Series B Preferred Stock") outstanding
immediately prior to the Effective Time, will be converted into the right to
receive from the Company one share of Series B 10% Convertible Preferred Stock
of the Surviving Corporation and (iii) each share of Series C 8.5% Convertible
Cumulative Preferred Stock of the Company (the "Series C Preferred Stock")
outstanding immediately prior to the Effective Time, will be converted into the
right to receive from the Company one share of Series C 8.5% Convertible
Cumulative Preferred Stock of the Surviving Corporation.
WHEREAS, pursuant to the terms and conditions of the Merger Agreement,
at the Subsequent Closing, the Company will enter into the Subordinated Debt
Facility Agreement pursuant to which the Company will issue to WCI, and WCI will
acquire from the Company, certain additional shares of Company Common Stock
(such shares, as more fully described in the Subordinated Debt Facility
Agreement, the "Mezzanine Shares");
WHEREAS, pursuant to the terms and conditions of the Merger Agreement,
Acquisition Sub will merge (the "Merger") with, and into the Company with the
Company being the surviving business entity;
WHEREAS, after the Subsequent Closing, the Company has agreed to grant
options to purchase additional shares of Company Common Stock to certain
employees and directors of the Company and its subsidiaries, such options to be
subject to the terms (including performance criteria) set forth in the plan
governing such options and, upon exercise, such employees and directors will, to
the extent they are not otherwise parties hereto, become parties to this
Agreement pursuant to Article X hereof;
WHEREAS, after the Subsequent Closing, the Company may offer and sell
additional shares of Common Stock to certain other persons and to employees of
the Company and such other persons and employees will, to the extent they are
not otherwise parties hereto, become parties to this Agreement pursuant to
Article X hereof;
WHEREAS, after the Subsequent Closing, the Company may acquire the
shares or assets of other companies and offer or exchange additional shares of
Common Stock in connection with any such acquisition, and the persons receiving
such shares of Common Stock will, to the extent they are not otherwise parties
hereto, become parties to this Agreement pursuant to Article X hereof;
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WHEREAS, pursuant to and subject to the terms and conditions of Article
XII hereof, each of the members of the Windward Group have designated and
appointed Windward as its attorney-in-fact, agent and representative to act on
its behalf and on behalf of its Permitted Transferees in connection with this
Agreement (in such capacity, Windward, and any successor thereof appointed
pursuant to such Article XII, shall hereinafter be referred to as the "Windward
Agent"); and
WHEREAS, the Shareholders believe it to be in their best interests and
in the best interests of the Company that they enter into this Agreement
providing for certain rights and restrictions with respect to the shares of
Common Stock owned by them or their Permitted Transferees.
NOW, THEREFORE, in consideration of the mutual covenants and obligations
set forth in this Agreement, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 SPECIFIC DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
ascribed to them below (such terms to be equally applicable to both singular and
plural forms of the terms defined or referred to):
(a) The term "Affiliate" or "affiliate" shall mean, with respect to any
specified person, (x) any director or officer of, or any person that
beneficially owns at least 5% of the capital stock or other equity interests of,
such specified person, or (y) any other person directly or indirectly
controlling, controlled by, or under common control with, such specified person,
at any time during the period for which the determination of affiliation is
being made; provided that in the case of a person who is an individual, such
terms shall also include members of such specified person's immediate family (as
defined in Instruction 2 of Item 404(a) of Regulation S-K under the Securities
Act).
(b) The term "Bankruptcy Law" shall mean ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code,
or any similar federal or state law for the relief of debtors.
(c) The term "Board" shall mean the Board of Directors of the Company.
(d) The term "Bona Fide Offer" shall mean any offer by a Third Party in
writing, setting forth a specific purchase price and a closing date of no more
than
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thirty days therefrom, which is fully financed and not subject to any material
conditions.
(e) The term "Book Value" shall mean, (x) as to each share of Common
Stock (other than Common Stock subject to an Option), the sum of (i) the price
per share of Common Stock effectively paid by the Windward Group as a result of
the Merger pursuant to the Merger Agreement and (ii) the increase (or minus the
decrease) in the book value per share of Common Stock (as determined in
accordance with GAAP, calculated on a Fully-Diluted Basis) for the period
commencing on the first day of the first fiscal quarter of the Company following
the date hereof through and until the last day of the fiscal quarter of the
Company immediately preceding the date on which book value shall be determined,
and (y) as to each share of Company Stock subject to an Option, the positive
difference between the Book Value as calculated pursuant to clause (x) of this
definition and the applicable exercise price per share of Company Stock of such
Option.
(f) The term "Business Day" shall mean any calendar day which is not a
Saturday, Sunday or public holiday under the laws of the State of New York.
(g) The term "Cause", used in connection with the termination of
employment of any Shareholder or any holder of an Option who is or was an
employee of the Company or a subsidiary of the Company (each, an "Employee
Shareholder") by the Company or any subsidiary of the Company, shall mean a
termination due to a finding by the Board in good faith that such Employee
Stockholder has (a) been engaged in an act or acts of dishonesty that resulted
directly or indirectly in more than an aggregate of $5,000 in gain or personal
enrichment to employee at the expense of the Company; (b) failed to
substantially perform such employee's duties (as reasonably imposed by the
Company) (other than failure resulting from such employee's Disability),
persisting for a reasonable period following the delivery to such employee of
written notice specifying the details of any alleged failure to perform; (c)
violated or failed to comply in any material respect with the Company's
published rules, regulations or policies, as currently in effect or as may be
adopted from time to time; (d) breached the applicable employment agreement, if
any, in any material respect; (e) been convicted of any felony offense or a
misdemeanor offense involving fraud, theft or dishonesty at any time; or (f)
been incarcerated for more than 10 days.
(h) The term "Change of Control" shall mean the occurrence of any of the
following events:
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(i) the sale, lease, transfer or other disposition of all or
substantially all of the assets of the Company or its subsidiaries
(taken as a whole) to any person or related group of persons; and
(ii) the merger or consolidation of the Company with or into
another corporation, or the merger of another corporation into the
Company, with the effect that persons other than the Shareholders (and
their Permitted Transferees or any "group" (as defined in the rules
promulgated under Section 13(d) of the Exchange Act) of which any
Shareholder or any Permitted Transferee is a member) hold more than 50%
of the total voting power on a Fully Diluted Basis entitled to vote in
the election of directors, managers or trustees of the surviving
corporation of such merger or the corporation resulting from such
consolidation.
(i) The term "Common Stock" shall mean the capital stock named as
"Common Stock" in the second paragraph of this Agreement, and any and all shares
of capital stock or other securities of the Company or any successor or assign
of the Company (whether by merger, consolidation, sale of assets or otherwise),
which may be issued in respect of, in exchange for, or in substitution for any
shares of Common Stock, by reason of any stock dividend, split, reverse split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise.
(j) The term "Company" shall mean the person named as the "Company" in
the first paragraph of this Agreement, and any successor or assign thereof.
(k) The term "Company Stock" shall mean the Common Stock and any other
capital stock of any class or series of the Company, and any securities of the
Company convertible into, or exercisable or exchangeable for, any such Common
Stock or other capital stock of the Company (including, without limitation, (i)
shares of Common Stock issued (or issuable) pursuant to the Merger Agreement,
(ii) shares of Common Stock issued pursuant to the Company Stock Option Plan or
any other stock option plan or employee benefit or other incentive plan
presently in effect or which may be adopted by the Company after the date
hereof, (iii) shares of Common Stock issued (or issuable) upon exercise of any
warrants or upon exercise of preemptive rights granted by the Company, (iv) the
Mezzanine Shares and any warrants or options to purchase Common Stock (the
"Options"), and (v) shares of Common Stock and Preferred Stock issued and
outstanding prior to the date hereof). The term "Company Stock" shall include,
except as otherwise provided herein, any and all shares of capital stock or
other securities of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise),
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which may be issued in respect of, in exchange for, or in substitution for any
shares of Company Stock, by reason of any stock dividend, split, reverse split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise.
(l) The term "Company Stock Option Plan" shall mean that certain stock
option plan to be adopted by the Company promptly after the date hereof pursuant
to the Merger Agreement.
(m) The term "control," when used with respect to any person, shall mean
the power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
(n) The term "Credit Agreements" shall mean the credit agreements
relating to the Financing Transactions (as defined in the Merger Agreement), as
each may be amended, restated, supplemented, modified, restructured, extended,
renewed, refinanced, replaced or otherwise modified from time to time, in whole
or in part.
(o) The term "Disability" shall mean the inability of the Employee
Shareholder to substantially render to the Company the services required by the
Company in accordance with his or her job for more than 60 days out of any
consecutive 120 day period because of mental or physical illness or incapacity,
as determined in good faith by the Board. The date of such Disability shall be
on the last day of such 60 day period.
(p) The term "Duly Endorsed" shall mean (i) duly endorsed in blank by
the person or persons in whose name a stock certificate or certificate
representing a debt security is registered or (ii) accompanied by a duly
executed stock or security assignment separate from the certificate, in each
case with the signature(s) thereon guaranteed by a commercial bank or trust
company or a member of a national securities exchange or of the National
Association of Securities Dealers, Inc.
(q) The term "EBITDA" shall mean, as of any date of determination, with
respect to the applicable Reference Period, an amount equal to (i) consolidated
net income (or loss) for such Reference Period, plus (ii) consolidated interest
expense for such Reference Period, plus (iii) the amount of taxes, based on or
measured by income, deducted in the determination of consolidated net income (or
loss) for such Reference Period, plus (iv) the amount of depreciation and
amortization expense deducted in the determination of consolidated net income
(or loss) for such Reference Period, minus (v) non-recurring gains for such
Reference Period (including without limitation any such gains on the sale or
disposal of assets other than in the ordinary course of business), plus (vi)
non-recurring losses for such Reference Period
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(including without limitation any such losses on the sale or disposal of assets
other than in the ordinary course of business), in each case determined with
respect to the Company and its subsidiaries on a consolidated basis and in
accordance with GAAP.
(r) The term "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
(s) The term "Fair Market Value," used in connection with the value of a
share of Company Stock, shall mean the quotient of (x) the excess of (1) the
product of (A) 6.5 multiplied by (B) the amount of Pro Forma EBITDA, as shown on
the Company's unaudited (or audited, with respect to any four fiscal quarters
for which audited statements are otherwise available) consolidated financial
statements for the four fiscal quarters of the Company ending immediately prior
to the particular date of termination of employment in question, over (2) the
sum (A) of the Company's Indebtedness plus (B) the aggregate liquidation
preference of any outstanding shares of Preferred Stock and any accumulated
dividends in connection therewith, divided by (y) the total number of shares of
Company Stock (calculated on a Fully Diluted Basis). The term Fair Market Value,
used in connection with the value of a share of Company Stock subject to an
Option, shall mean the positive difference between Fair Market Value as
calculated pursuant to the foregoing definition and the applicable exercise
price per share of Company Stock of such Option.
(t) The term "Financing Default" shall mean an event or circumstance
which would constitute (or with notice or lapse of time or both would
constitute) an event of default under the Subordinated Note Agreement, the
Credit Agreements, or the agreements governing any other Indebtedness incurred
by the Company, or any refunding, refinancing or extension of any of the
foregoing (including, without limitation, any debt offering pursuant to Rule
144A promulgated under the Securities Act), as such agreements may be amended
from time to time, and which event or circumstance has not been waived or cured.
(u) The term "Fully-Diluted Basis" shall mean, with respect to any
calculation of the outstanding number of shares of Company Stock or the
outstanding amount of common equity of the Company (as the case may be), an
amount equal to the total outstanding number of shares of Company Stock and all
other shares of common stock of the Company, calculated without duplication and
assuming the conversion of all outstanding shares of convertible capital stock
and securities of the Company and the exercise of all warrants, options and
other rights (including, without limitation, employee stock options pursuant to
the Company Stock Option Plan (except that, with respect to such options, if any
such options are finally determined to be less than 100% vested, only those
shares of Company Stock which may be
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exercised following such final determination shall be included in such
calculation)) to purchase shares of Company Stock or other common stock of the
Company.
(v) The term "GAAP" shall mean U.S. generally accepted accounting
principles, as in effect on the date any calculation thereunder is made, applied
on a basis consistent with prior periods.
(w) The term "IPO Event" shall mean an initial public offering of
capital stock by the Company involving the Registration and sale of an aggregate
of $25 million or more of common equity of the Company, whether involving a
primary offering or a combined primary and secondary offering, and pursuant to
which the Company becomes listed on a national securities exchange or on the
Nasdaq Stock Market or Nasdaq National Market.
(x) The term "Permitted Transferee" of a Shareholder shall mean the
Company and:
(i) in the case of any member of the Windward Group, (A)
corporations, partnerships or other entities which are Affiliates of any member
(or any general or limited partner or equity holder of any member) of the
Windward Group (collectively, the "Windward Affiliates"), (B) any general
partner, limited partner, controlling shareholder, director, officer, managing
director or other employee of Windward or any Windward Affiliate (collectively,
the "Windward Associates"), (C) the lineal descendants, heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any Windward
Associate, (D) any trust, the beneficiaries of which, or corporation or
partnership, the stockholders or general or limited partners of which, include
only a Windward Associate, his or her spouse, members of his or her immediate
family or his or her lineal descendants, to which any such member of the
Windward Group, a Windward Affiliate or a Windward Associate has transferred
shares of Company Stock, and (E) any Person to whom either Windward Capital, WCL
or WCI sells no more than $5 million worth of securities; and
(ii) in the case of a Majority Roll-Over Shareholder, (A) the lineal
descendants, heirs, executors, administrators, testamentary trustees, legatees
or beneficiaries of any Majority Roll-Over Shareholder and (B) any trust, the
beneficiaries of which, or a corporation, partnership, limited liability company
or comparable entity, the stockholders or general or limited partners or
applicable equity holders of which, include only a Majority Roll-Over
Shareholder, his or her spouse, members of his or her immediate family or his or
her lineal descendants, to which a Majority Roll-Over Shareholder has
transferred shares of Company Stock; and, with
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respect to Wildwood International, Inc., a Bahamian International Business
Corporation ("Wildwood"), and Zero-Sum Investments S.A., a Bahamian
International Business Corporation ("Zero-Sum"), E. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ shall
also be a Permitted Transferee with respect to up to fifty percent (50%) of the
shares of Common Stock owned by Wildwood and Zero-Sum on the date of this
Agreement;
provided, that in each case: (1) each such transferor has obtained the prior
written consent of the Company (which consent shall not be withheld unless, in
the opinion of the Company, such transfer together with all other transfers of
Company Stock made after the Initial Closing could result in or create a
significant risk (as defined below) that the Company may become subject to, or
after any Registration will continue to be subject to, the informational
requirements of the Exchange Act) and (2) each such transferee (other than the
Company) has agreed in writing, in accordance with Article X hereof, to be bound
by the terms and conditions of this Agreement to the same extent and in the same
manner as the Shareholder transferring such shares of Company Stock; provided,
further, that the transfer to any such person is in compliance with all
applicable federal, state and foreign securities laws. For the purposes of this
Section 1.1(x), a "significant risk" shall be deemed to arise when the number of
"holders of record" (as determined in accordance with the Exchange Act) is
greater than 80% of the number of "holders of record" that would cause the
application or continued application of the informational requirements of the
Exchange Act under the then existing circumstances.
(y) The term "person" shall mean an individual, partnership,
corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, or other entity of whatever
nature.
(z) The term "Piggyback Securities" shall mean those Registrable
Securities which are requested to be sold by any Shareholder pursuant to Section
9.2 hereof.
(aa) The term "Pro Forma EBITDA" shall mean, as of any date of
determination, EBITDA, as adjusted to reflect the EBITDA as if any acquisitions
completed by the Company during the applicable Reference Period had been
completed on the first day of such Reference Period, as further adjusted for
changes in billing, selling, general and administrative expense reductions and
duplicative costs as of the date of closing of such acquisition(s), in each case
in a manner consistent with past practice.
(bb) The term "Reference Period" shall mean, as of any date of
determination, the four consecutive fiscal quarters of the Company ending
immediately prior to such date of determination.
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(cc) The term "Registrable Securities" shall mean shares of Common Stock
(including, without limitation, shares of Common Stock issued pursuant to the
Merger Agreement, shares of Common Stock issued pursuant to the Company Stock
Option Plan or any other stock option plan or employee benefit or other
incentive plan presently existing or which may be adopted by the Company after
the date hereof, shares of Common Stock issued upon exercise of any warrants or
options or upon exercise of preemptive rights granted by the Company, and shares
of Common Stock issued and outstanding prior to the date hereof) and any other
equity securities of the Company or any successor corporation issued in exchange
for or in respect of such shares of Common Stock. As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (i) such securities shall have been registered under the Securities Act,
the registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall have
been disposed of pursuant to such effective registration statement, (ii) such
securities shall have been distributed pursuant to Rule 144 (or any similar
provision then in force) under the Securities Act, (iii) such securities shall
have been otherwise transferred, if new certificates or other evidences of
ownership for them not bearing a legend restricting further transfer and not
subject to any stop transfer order or other restrictions on transfer shall have
been delivered by the Company and subsequent disposition of such securities
shall not require registration or qualification of such securities under the
Securities Act or any state securities laws then in force or (iv) such
securities shall cease to be outstanding.
(dd) The term "Registration" shall mean a bona fide public offering of
the Company's securities pursuant to an effective registration statement under
the Securities Act and in compliance with all applicable state securities laws.
(ee) The term "Registration Expenses" shall mean all expenses of the
Company incident to the Company's performance of or compliance with Article IX
hereof, including, without limitation, all SEC and stock exchange or National
Association of Securities Dealers, Inc. ("NASD") registration, filing and
listing fees and expenses, fees and expenses of compliance with securities or
blue sky laws (including, without limitation, reasonable fees and disbursements
of counsel for the underwriters in connection with blue sky qualifications of
the Registrable Securities), rating agency fees, all fees and expenses of the
transfer agent and registrar for the Common Stock, printing expenses, messenger
and delivery expenses, the reasonable fees and expenses incurred in connection
with the listing of the securities to be registered on each securities exchange
or national market system on which Registrable Securities are to be listed or on
which similar securities issued by the Company are to be listed in connection
with such transaction, reasonable fees and disbursements of counsel for the
Company and all independent certified public accountants for the
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Company (including the expenses of any annual audit, special audit and "cold
comfort" letters required in connection therewith or incident thereto),
securities laws liability insurance (if the Company so desires or if the
underwriters so desire), the reasonable fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, all fees and expenses of
any qualified independent underwriter or any person acting in a similar capacity
under the rules of the NASD, the reasonable fees and disbursements of one
counsel retained in connection with each such registration by the Shareholders
who hold a majority of the Registrable Securities being registered, the
reasonable fees and expenses of any special experts retained by the Company in
connection with such registration, and fees and expenses of other persons
retained by the Company (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of Registrable
Securities by the holders of such Registrable Securities).
(ff) The term "Representative" shall mean, with respect to a particular
person, any director, officer, general partner, limited partner, co-owner,
member, nominee, managing director or controlling person of such person.
(gg) The term "Requisite Members" shall have the meaning set forth in
Section 12.1(c).
(hh) The term "Retirement" shall mean, with respect to an Employee
Shareholder, the Employee Shareholder's retirement as an employee of the Company
or any subsidiary of the Company in accordance with the policies of the Company
or such subsidiary.
(ii) The term "Roll-Over Shares" shall mean the shares of Common Stock
owned by any of the Majority Roll-Over Shareholders on the date of this
Agreement.
(jj) The term "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and. regulations promulgated thereunder.
(kk) The term "SEC" shall mean the United States Securities and Exchange
Commission.
(ll) The term "Shareholders" shall mean (i) each of the members of the
Windward Group, (ii) the Majority Roll-Over Shareholders, (iii) the Other
Shareholders, (iv) persons who or which have acquired shares of the Company's
capital stock from, and are Permitted Transferees of, any of them, and any
combination of them, and (v) such other persons who or which become parties to
this Agreement pursuant to the terms and conditions of this Agreement.
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(mm) The term "Subordinated Notes" shall mean the 12% Subordinated Notes
in the aggregate principal amount of $25 million to be issued by the Company to
The Northwestern Mutual Life Insurance Company ("Northwestern") and Capital
D'Amerique CDPQ ("Capital D'Amerique") pursuant to the Subordinated Note
Agreement, to be entered into between the Company, Northwestern and Capital
D'Amerique (the "Subordinated Note Agreement") as the same may be amended from
time to time.
(nn) The term "subsidiary" shall mean, with respect to any person, a
corporation or other entity (including a partnership or a limited liability
company), of which a majority of the capital stock or other voting interests
having voting power under ordinary circumstances to elect a majority of the
board of directors or otherwise control such corporation or other entity is
owned by (i) such person, (ii) such person and one or more of its subsidiaries
or (iii) one or more subsidiaries of such person.
(oo) The term "Third Party" shall mean, with respect to any Shareholder,
any person other than (i) such Shareholder's Permitted Transferees and (ii) the
Company.
(pp) The term "Transfer" shall mean any direct or indirect sale,
assignment, mortgage, transfer, pledge, gift, hypothecation or other disposition
of or transfer of capital stock (other than any bona fide pledge or
hypothecation of capital stock to a financial institution(s) in connection with
any loan from such financial institution(s)).
(qq) The term "Violation" shall mean, with respect to any purchase of
shares of Company Stock, any event or circumstance pursuant to which the
purchase of such shares (together with any other purchases of Company Stock
pursuant to this Agreement of which the Company has at such time been given or
has given notice) would (A) conflict with or result in a violation of or breach
(or any event which with lapse of time or the occurrence of any act or event or
otherwise would constitute or result in any of the foregoing) of any law,
statute, rule, regulation, order, writ, injunction, decree or judgment
promulgated or entered by any federal, state, local or foreign court or
governmental authority applicable to the Company or its subsidiaries or any of
their properties or assets or (B) violate or conflict with or constitute a
breach or default, or an event creating rights of acceleration or termination
(in each case, whether upon lapse of time or the occurrence of any act or event
or otherwise), under any agreement to which the Company or any of its
subsidiaries is a party or by which any of their properties or assets may be
bound.
(rr) The term "Voluntary Termination" shall mean the voluntary
termination by an Employee Shareholder of his or her employment with the Company
or any Company subsidiary by voluntary resignation or any other means, other
than (i) in
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connection with the Retirement, Disability or death of such Employee Shareholder
or (ii) simultaneous with or following termination for Cause or at a time when
there is in existence or outstanding any matter, event or circumstance which if
known to the Company at the time of such voluntary termination by the Employee
Shareholder of his or her employment would have allowed and is likely to have
caused the Company or any Company subsidiary to have terminated the Employee
Shareholder's employment for Cause (regardless of whether the Company knew, or
should have known, of such matter, event or circumstance).
A Voluntary Termination shall be for "Good Reason" if it follows, within
a reasonable period of time thereafter, (x) a material breach of the Company's
obligations under the applicable employment agreement, if any, with such
Employee Shareholder, or (y) the Board, by vote in accordance with Article II
hereof, but excluding those directors who are officers or employees, or former
officers or employees, of the Company or its subsidiaries, determines in its
sole discretion that a Voluntary Termination by the Employee Shareholder is for
Good Reason under the circumstances then prevailing.
1.2 OTHER TERMS
Other terms may be defined elsewhere in the text of this Agreement
(including the section entitled "Background") and, unless otherwise indicated,
shall have such meaning throughout this Agreement. Capitalized terms not
otherwise defined herein shall have the meanings ascribed to them in the Merger
Agreement.
ARTICLE II
CORPORATE GOVERNANCE
2.1 VOTING RIGHTS IN CHARTER; VOTING MATTERS RELATED TO CHARTER DOCUMENTS
(a) The parties hereto acknowledge that the Company's Articles of
Incorporation (as amended as contemplated hereby, the "Articles") and bylaws
("Bylaws") shall be amended and restated on the date hereof to provide that the
number of directors shall be increased to a total of seven (7). Any committee of
the Board established by the Board in accordance with its Articles and Bylaws
shall include at least one Windward Nominee. Northwestern and Capital D'Amerique
shall each have the right to have a representative observe meetings of the
Board. The parties hereto agree that no such representative shall have any
fiduciary or other duties to the Company or any of its stockholders.
Additionally, such representatives may obtain upon request copies of materials
prepared for the Board of Directors meetings and such other information as may
be reasonably requested.
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(b) From and after the Initial Closing, each Shareholder shall vote its
shares of Company Stock (to the extent entitled to vote), at each regular or
special meeting of shareholders of the Company or in any written consent
executed in lieu of such a meeting of shareholders, and shall take all actions
reasonably necessary, to ensure that the Articles or Company's Bylaws (x) are
consistent with the provisions of Section 2.1(a) above and (y) do not, at any
time, conflict with the provisions of this Agreement. From and after the Initial
Closing, each Shareholder shall use its reasonable best efforts to cause its
respective Nominees (as defined below), if any, to act in a manner consistent
with the provisions of this Agreement (including, without limitation, the
provisions of Section 2.1(a) above).
(c) Any act or action to be taken or permitted to be taken by the
Company pursuant to the terms of, or any amendment, modification, or waiver of,
(i) this Agreement, (ii) the Merger Agreement (following the Initial Closing
thereunder), (iii) any ancillary agreement to the Merger Agreement, (iv) any
employee stock, bonus or other incentive plan or arrangement, or (v) any other
agreement or arrangement contemplated hereby or thereby, shall require approval
or action by the Board in accordance with the provisions of this Article II.
2.2 DESIGNATION OF DIRECTORS
From and after the Initial Closing, each of the Shareholders shall vote
its shares of Company Stock (to the extent entitled to vote), at each regular or
special meeting of the shareholders of the Company called for the purpose of
filling positions on the Board, or in any written consent executed in lieu of
such a meeting of shareholders, and shall take all actions reasonably necessary,
to ensure the election to the Board of the following individuals: (i) five (5)
individuals (the "Windward Nominees") selected by the Windward Agent who may be
affiliated with Windward, two of whom shall initially be ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇▇; and (ii) so long as the Majority Roll-Over Shareholders and
their Permitted Transferees continue to hold 5% of the outstanding shares of
Common Stock, two (2) individuals (the "Majority Roll-Over Shareholders
Nominees") selected by the Majority Roll-Over Shareholders, who shall initially
be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇. To effectuate the provisions of
this Section 2.2, the Secretary of the Company, or if there be no Secretary such
other officer of the Company as the Board may appoint to fulfill the duties of
Secretary (the "Secretary"), shall not record, and the Company shall not give
effect to, any vote or consent contrary to, or inconsistent with, the terms of
this Section 2.2. The Windward Nominees and the Majority Roll-Over Shareholders
Nominees are sometimes collectively referred to herein as the "Nominees" and
individually as a "Nominee."
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2.3 REPLACEMENT OF NOMINEES
If, prior to his election to the Board pursuant to Section 2.2 hereof,
any Nominee shall be unable or unwilling to serve as a director of the Company,
the Shareholder or Shareholders who nominated any such Nominee shall be entitled
to nominate a replacement who shall then be a Nominee for purposes of this
Article II. If, following election to the Board pursuant to Section 2.2 hereof,
any Nominee shall resign, die or be removed or be unable to serve for any reason
prior to the expiration of his term as a director of the Company, the
Shareholder or Shareholders who nominated such Nominee shall within 30 days of
such event, notify the Board in writing of a replacement Nominee, and all
Shareholders shall vote their shares of Company Stock (to the extent entitled to
vote), at any regular or special meeting called for the purpose of filling
positions on the Board, or in any written consent executed in lieu of such a
meeting of shareholders, and shall take all actions necessary, to ensure the
election to the Board of such replacement Nominee to fill the unexpired term of
the Nominee whom such new Nominee is replacing; provided that no person may be
selected by a Shareholder or group of Shareholders as a Nominee if such person
previously served as a director of the Company and was previously removed for
Cause in accordance with Section 2.6 hereof. If a Shareholder or Shareholders
shall fail to so notify the Board, the Board may, in the event that there is an
insufficient number of directors to constitute a quorum or otherwise conduct any
business before the Board, nominate any other person to fill the vacancy.
2.4 CALLING SPECIAL MEETINGS FOR THE REMOVAL OF NOMINEES
Each Shareholder hereby agrees to use such Shareholder's best efforts to
call, or cause the appropriate officers and directors of the Company to call, a
special meeting of shareholders of the Company and to vote all of the shares of
Company Stock (to the extent entitled to vote) owned or held of record by such
Shareholder for, or to take all actions by written consent in lieu of any such
meeting necessary to cause, the removal (with or without Cause) of any director
if the persons designating such director pursuant to Section 2.2 hereof request,
in a writing signed by the holders of a majority of the Company Stock owned by
such Shareholders, his removal for any reason (with or without Cause (as set
forth in Section 2.6), notwithstanding the provisions of Section 2.6). Except
for any action taken in accordance with the previous sentence of this Section
2.4 or with respect to the removal of a director for Cause, each Shareholder
further agrees to take no action, whether by voting of shares of Common Stock or
otherwise, with respect to the removal of any director that was not designated
by such Shareholder pursuant to Section 2.2 hereof.
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2.5 CALLING SPECIAL MEETINGS FOR THE ENFORCEMENT OF CORPORATE GOVERNANCE
PROVISIONS
In order to effectuate the provisions of this Article II, each
Shareholder hereby agrees that when any action or vote is required to be taken
by such Shareholder pursuant to this Agreement, such Shareholder shall use its
best efforts to call, or cause the appropriate officers and directors of the
Company to call, a special or annual meeting of shareholders of the Company, as
the case may be, or execute or cause to be executed a consent in writing in lieu
of any such meetings to effectuate such shareholder action.
2.6 REMOVAL FOR CAUSE
Each Shareholder hereby agrees that, subject to the requirements of
applicable law and the Articles, no director shall be removed without Cause
(except as provided in Section 2.4 hereof). For the purposes of Section 2.4 and
this Section 2.6, "Cause" shall mean the commission of an act of fraud or
embezzlement against the Company or any of its subsidiaries or any conviction or
guilty plea for a felony (or a plea of nolo contendere thereto).
2.7 GRANT OF PROXIES
In order to effectuate the provisions of this Article II and in addition
to and not in lieu of Sections 2.1 through 2.6 hereof, (i) the Windward Agent
hereby grants to ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, or if ▇▇. ▇▇▇▇▇▇▇▇▇ shall cease to be a
managing director, officer, director, affiliate or associate (as such terms are
defined in the rules and regulations under the Exchange Act) of the Windward
Agent or of any member of the Windward Agent or any of its affiliates or
associates, to his successor, who shall be a managing director, officer,
director, affiliate or associate of the Windward Agent or of any member of the
Windward Agent or any of its affiliates or associates and shall be selected by
the Windward Agent, and (ii) the Majority Roll-Over Shareholders hereby grant to
▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or such other person who is selected by the Majority
Roll-Over Shareholders, a proxy to vote at any annual or special meeting of
shareholders, or to take action by written consent in lieu, of such meeting with
respect to, all of the shares of Company Stock owned or held of record by such
Shareholder solely for (x) the election of directors designated in accordance
with Section 2.2 hereof, (y) the removal of directors in accordance with
Sections 2.4 and 2.5 hereof, and (z) the election of a director to fill any
vacancy on the Board in accordance with Section 2.3 hereof. The proxies granted
pursuant to this Section 2.7 shall terminate on the ten-year anniversary of the
date hereof, unless terminated prior to such date.
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ARTICLE III
RESTRICTIONS ON TRANSFER
3.1 RESTRICTIONS ON TRANSFER
(a) No Company Stock now or hereafter owned by any Shareholder or any
interest therein may be Transferred except (i) for the sale by any member of the
Windward Group to a Third Party of any (subject to any percentage reduction
arising as a result of the exercise of any "tag-along" rights pursuant to
Article IV hereof) of its equity interests in the Company, (ii) for any sale of
shares by the Majority Roll-Over Shareholders upon the exercise of their "tag
along" rights pursuant to Article IV hereof, (iii) for any sale of shares in
connection with the exercise by the Windward Group of its rights under Sections
5.1 through 5.6 hereof, (iv) upon the exercise by the Company (or its designee)
of any "call" rights or any Employee Shareholder of its "put" rights provided
for in Article VII hereof, (v) Transfers to a Permitted Transferee, or (vi)
pursuant to any Registration contemplated in connection with the provisions of
Article IX (provided that, prior to an IPO Event, no Majority Roll-Over
Shareholder and its Permitted Transferees shall be permitted to Transfer any
shares of Company Stock pursuant to the provisions of Article IX hereof).
(b) Any Transfer of Company Stock made pursuant to this Section 3.1 to a
Permitted Transferee shall be effective only if such Permitted Transferee shall
agree in writing to be bound by the terms and conditions of this Agreement
pursuant to the provisions of Article X hereof. No Transfer of Company Stock in
violation of this Agreement shall be made or recorded on the books of the
Company and any such Transfer shall be void and of no effect.
(c) None of the provisions of this Section 3.1 shall apply to the
Transfers of Company Stock in connection with the consummation of the Share
Purchase and the Merger in accordance with the provisions of Articles 1 and 2 of
the Merger Agreement.
ARTICLE IV
TAG-ALONG RIGHTS
4.1 TAG-ALONG RIGHTS GENERALLY
(a) Subject to the restrictions on Transfer set forth in Section 3.1
hereof, if any of the Windward Group, individually or collectively, in any one
transaction or any series of similar transactions, Transfers at least
sixty-seven percent (67%) of the Windward Group's shares of Company Stock to any
Third Party, the Windward Group Shareholder(s) desiring to so transfer their
Company Stock (collectively, the
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"Transferor") shall first offer to each of the other Shareholders (the
"Tag-Along Offerees") to include, at the option of each Tag-Along Offeree, in
the sale or other disposition to the Third Party, such number of shares of
Company Stock (collectively, the "Tag-Along Stock") as shall be determined in
accordance with this Article IV.
(b) Upon the receipt by any Transferor or Transferors of a Bona Fide
Offer or Offers to purchase or otherwise acquire shares of its or their Company
Stock from a Third Party (other than a Transfer which pursuant to Section 4.5
hereof would not be subject to the provisions of Sections 4.1 through 4.4
hereof) which such Transferor or Transferors desire to accept, such Transferors
shall cause the Third Party's offer to be reduced to writing and shall provide a
copy of such written notice of such Third Party's offer (the "Tag-Along Notice")
to the Company, and the Company shall provide a copy of the Tag-Along Notice to
each of the Tag-Along Offerees in the manner set forth in Section 14.7 hereof.
The Tag-Along Notice must contain an offer to purchase or otherwise acquire
shares of Tag-Along Stock from the Tag-Along Offerees according to the terms and
conditions of this Article IV and upon substantially the same terms and
conditions as the terms and conditions contained in the Third Party's offer and
shall be accompanied by a true and correct copy of the Third Party's offer;
provided that the offer by a Third Party with respect to Tag-Along Stock set
forth in any such combined Tag-Along Notice may be conditioned on the offer(s)
with respect to the purchase in accordance with Article IV of the Transfer Stock
set forth therein not being accepted.
(c) At any time within 20 Business Days after its receipt of the
Tag-Along Notice, each of the Tag-Along Offerees may irrevocably accept the
Third Party offer included in the Tag-Along Notice for up to such number of
shares of Tag-Along Stock as is determined in accordance with the provisions of
this Article IV by furnishing written notice of such acceptance to the
Transferor and such Third Party; such written notice of acceptance must be
accompanied by the certificate or certificates representing the shares of
Tag-Along Stock (which shall be free and clear of liens), Duly Endorsed, to be
sold or otherwise disposed of pursuant to such offer by such Tag-Along Offeree,
together with a limited power-of-attorney authorizing the Transferor to sell or
otherwise dispose of such shares of stock pursuant to the terms and conditions
of such Third Party's offer and the terms and conditions of this Article IV. If
the sale of securities contemplated by the Tag-Along Notice is not consummated
in a reasonably prompt fashion, the certificates referenced in this paragraph
shall be returned as soon as reasonably practicable.
(d) Notwithstanding anything to the contrary contained in this Article
IV, there shall be no liability on the part of the Transferor to any Shareholder
in the event that the sale of Company Stock to the Third Party contemplated
pursuant to this
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Article IV is not consummated for any reason whatsoever. Whether a sale of
Company Stock to the Third Party contemplated pursuant to this Article IV is
effected is in the sole and absolute discretion of the Transferor.
4.2 ALLOCATION OF SHARES OF TAG-ALONG STOCK
Each Tag-Along Offeree shall have the right to sell pursuant to the
Third Party's offer a number of shares of Tag-Along Stock up to the product of
(x) the total number of shares to be acquired by the Third Party as set forth in
the Tag-Along Notice (or such higher number of shares as such Third Party may
agree to), times (y) a fraction, (1) the numerator of which shall be the number
of shares of Common Stock held or deemed to be held by such Tag-Along Offeree as
of the date of the Tag-Along Notice (for the purpose of such calculation, a
Tag-Along Offeree shall be deemed to hold the number of shares of Common Stock
which would be issuable, as of the date of the Tag-Along Notice, to such
Tag-Along Offeree upon conversion, exercise or exchange of all securities then
held by such Tag-Along Offeree that are then convertible, exercisable or
exchangeable (but excluding any unvested options) into or for (whether directly
or indirectly) shares of Common Stock) and (2) the denominator of which shall be
the aggregate number of shares of Common Stock (calculated as aforesaid) held or
deemed to be held on such date by all Shareholders; provided, that all
allocations referred to herein shall be determined in good faith by the Company
in accordance with the provisions of this Section 4.2 and any-share amounts so
determined shall be rounded to avoid fractional shares.
4.3 TRANSFER MECHANICS
The purchase from the Tag-Along Offerees pursuant to this Article IV
shall be on the same terms and conditions, including any representations,
warranties, covenants and indemnities and the per share price (which, in the
event of cash consideration, shall be paid by bank, cashier's or certified check
or by wire transfer of immediately available funds, unless otherwise specified
in the Tag-Along Notice provided to the Tag-Along Offerees by the Company) and
the date of sale or other disposition, as are received by the Transferor and
stated in the Tag-Along Notice provided to the Tag-Along Offerees by the
Company. As promptly as practicable (but in no event later than 5 days) after
the consummation of the sale or other disposition of Company Stock of the
Transferor and Tag-Along Stock of the Tag-Along Offerees to the Third Party
pursuant to the Third Party's offer, the Transferor shall notify the Tag-Along
Offerees thereof, shall remit to each Tag-Along Offeree who accepted the Third
Party's offer in accordance with the provisions of this Article IV the total
sales price of the shares of Tag-Along Stock of such Tag-Along Offeree sold or
otherwise disposed of pursuant thereto (together with any excess shares of
Tag-Along Stock of
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such Tag-Along Offeree which are not sold or otherwise disposed of pursuant
thereto), and shall furnish such other evidence of the completion and time of
completion of such sale or other disposition and the terms and conditions
thereof as may be reasonably requested by the Tag-Along Offerees.
4.4 TRANSFERS TO THIRD PARTIES AFTER SHAREHOLDERS DECLINE TAG-ALONG RIGHTS
If within 20 Business Days after the receipt of the Tag-Along Notice,
any Tag-Along Offeree has not accepted the offer contained in the Tag-Along
Notice, such Tag-Along Offeree will be deemed to have waived any and all rights
with respect to the sale or other disposition of Tag-Along Stock described in
the Tag-Along Notice and the Transferor shall have 60 days in which to sell or
otherwise dispose of the shares of Company Stock described in the Third Party's
offer, on terms and conditions not more favorable to the Transferor than were
set forth in the Tag-Along Notice. If, at the end of 60 days following the
receipt of the Tag-Along Notice, the Transferor has not completed the sale or
other disposition of Company Stock of the Transferor and Tag-Along Stock of any
Tag-Along Offeree in accordance with the terms and conditions of the Third
Party's offer, the Transferor shall return to such Tag-Along Offeree all
certificates representing shares of Tag-Along Stock which such Tag-Along Offeree
delivered for sale or other disposition pursuant to this Article IV, and all the
restrictions on Transfer contained in this Agreement with respect to Company
Stock owned by the Transferor shall again be in effect.
4.5 EXCEPTIONS TO TAG-ALONG RIGHTS
The provisions of this Article IV shall not be applicable to any
Transfer of Company Stock (a) from any Shareholder to any Permitted Transferee,
or from any Permitted Transferee of such Shareholder to such Shareholder,
provided that in any Transfer to a Permitted Transferee such Permitted
Transferee (other than the Company) must agree in writing to be bound by the
terms and conditions of this Agreement pursuant to the provisions of Article X
hereof, (b) made pursuant to a public offering of Company Stock in connection
with the exercise by any Shareholder of its rights pursuant to Article IX hereof
or in connection with the exercise by the Windward Group of its rights pursuant
to Section 5.6 hereof, (c) made in connection with the exercise by the Windward
Group of a Compelled Sale Right or (d) between the Company (or its designee), on
the one hand, and any Employee Shareholder or employee of the Company and its
subsidiaries, on the other, pursuant to Articles VII or X hereof.
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4.6 EXCEPTION FOR MERGER AGREEMENT TRANSACTIONS
None of the provisions of this Article IV shall apply to the Transfers
of Company Stock in connection with the consummation of the Share Purchase and
the Merger in accordance with the provisions of Articles 1 and 2 of the Merger
Agreement.
ARTICLE V
RIGHTS TO COMPEL SALE OR IPO EVENT
5.1 RIGHTS TO COMPEL SALE GENERALLY
The Windward Group shall have the right (the "Compelled Sale Right") to
cause the sale of all or substantially all of the Company to a Third Party (the
"Third Party Purchaser"), whether pursuant to a sale of Company Stock, merger,
consolidation, stock swap, business combination, sale of assets or similar
transaction (any such sale, the "Compelled Sale"); provided, that the Windward
Group gets treated no more favorably as to the terms and conditions of the
Compelled Sale than the other Shareholders (other than with respect to any
transaction fee arrangements entered into by the Company and Windward (or any of
its Affiliates) in connection with a Compelled Sale, provided, that such fees
are consistent with market practice for transactions of a similar type and
size). If the Windward Group proposes to exercise its Compelled Sale Right, the
Windward Agent shall send written notice of the exercise of its Compelled Sale
Right to each of the remaining Shareholders, setting forth the consideration to
be paid by the Third Party Purchaser and the other terms and conditions of such
transaction (such notice, the "Compelled Sale Notice").
5.2 COMPELLED SALE PURSUANT TO A SALE OF COMPANY STOCK
(a) In the event that the Windward Group determines to exercise its
Compelled Sale Right pursuant to a sale of Company Stock to the Third Party
Purchaser, then the Windward Agent may, at its option, require the remaining
Shareholders and their respective Permitted Transferees to sell all Company
Stock (along with all rights to acquire Company Stock and similar interests)
held by them to the Third Party Purchaser for the same consideration per share
(appropriately adjusted in the case of securities such as options and warrants)
and otherwise on the same terms and conditions upon which the Windward Group
sells its shares of Company Stock (along with all rights to acquire Company
Stock and similar interests). Within 20 days following the date on which the
Windward Agent delivers the Compelled Sale Notice, each of the remaining
Shareholders shall deliver to a representative of the Windward Agent designated
in the Compelled Sale Notice, certificates representing all shares of Company
Stock (along with all rights to acquire Company Stock and
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similar interests) held by such Shareholder, Duly Endorsed, together with all
other documents required to be executed in connection with such transaction;
provided, that in the event that the Windward Group does not anticipate
consummating such Compelled Sale within 30 days after the date of delivery of
the Compelled Sale Notice, the Windward Group shall subsequently notify the
remaining Shareholders of the anticipated date of consummation of such Compelled
Sale and such remaining Shareholders shall thereupon deliver to such designated
representative of the Windward Agent, within 5 days prior to such anticipated
date of consummation, such certificates and documents.
(b) In the event that a remaining Shareholder and its Permitted
Transferees should fail to deliver such certificates and documents to the
Windward Agent, then (i) the Company shall cause the books and records of the
Company to show that such shares are bound by the provisions of this Article V
and that such shares may be transferred only to the Third Party Purchaser and
(ii) such remaining Shareholder and each of its Permitted Transferees (A) shall
not be entitled to the consideration it is to receive under this Section 5.2
until it cures such failure (provided that after curing such failure it shall be
so entitled to such consideration without interest), (B) shall for all purposes
be deemed no longer to be a shareholder of the Company and have no voting rights
with respect to such shares of Company Stock, (C) shall not be entitled to any
dividends or other distributions with respect to the shares of Company Stock
held by it, (D) shall have no other rights or privileges granted to shareholders
under this or any other agreement and (E) in the event of liquidation of the
Company, shall have rights subordinate to the rights of any equity holder with
respect to any consideration it would have received if it had complied with this
Section 5.2, if any, until it cures such failure (provided that after curing
such failure it shall be so entitled to such consideration without interest). If
any party so fails to deliver such certificates and documents as so required it
shall execute, acknowledge and deliver all such further agreements and take all
such further actions as may be reasonably necessary or desirable to give effect
to the provisions of this Section 5.2.
(c) If, within one year after the Windward Agent gives such notice, the
Windward Group has not completed the sale of all the shares of Company Stock
(along with all rights to acquire Company Stock and similar interests) of the
Shareholders in accordance herewith, the Windward Agent shall return to each of
the remaining Shareholders all certificates representing shares of Company Stock
that such Shareholder delivered for sale pursuant hereto and that were not
purchased pursuant to this Article V.
(d) Shareholders who deliver to the Windward Agent certificates
representing shares of Company Stock in accordance with this Section 5.2 or
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otherwise pursuant to a Compelled Sale shall retain full voting control (to the
extent such shares are entitled to vote) and any other rights and incidents of
ownership associated with such Shareholder's ownership of such shares until the
applicable Compelled Sale has been completed or such shares have been returned
in accordance with the provisions of this Article V and such shares will be held
by the Windward Agent for the benefit of such Shareholder until such time.
5.3 COMPELLED SALE OTHER THAN PURSUANT TO A SALE OF COMPANY STOCK
In the event that the Windward Group determines to exercise its
Compelled Sale Right pursuant to a merger, consolidation, stock swap, business
combination, sale of assets or similar transaction, then the Windward Agent may,
at its option, require the remaining Shareholders and their respective Permitted
Transferees to vote in favor of such transaction. In particular, in the event of
any such proposed transaction, upon any request by the Windward Agent, each of
the Shareholders shall use its respective best efforts (i) to call, or cause the
appropriate officers and directors of the Company to call, a special meeting of
shareholders of the Company to consider approval of such proposed transaction,
and (ii) vote in favor of such proposed transaction all of the shares of Company
Stock owned or held of record by such Shareholder (to the extent entitled to
vote), at each regular or special meeting of the shareholders of the Company
called for the purpose of voting on such matter, or in any written consent
executed in lieu of such a meeting of shareholders, and shall take all actions
reasonably necessary, to ensure that all necessary shareholder approvals for
such transaction are obtained.
5.4 COOPERATION IN CONNECTION WITH COMPELLED SALE
Each Shareholder shall cooperate with the Windward Agent and the other
members of the Windward Group in the event that the Windward Group determines to
exercise its Compelled Sale Right pursuant to this Article V and shall take all
necessary and appropriate actions in connection with any such Compelled Sale as
may be reasonably requested by the Windward Agent (including, without
limitation, entering into such agreements and instruments in connection with any
such Compelled Sale as may be requested by the Windward Agent (subject to the
provisions of the next sentence)). Without limitation to the foregoing
provisions, each Shareholder hereby covenants and agrees that, at the reasonable
request of the Windward Agent, it will promptly enter into any agreements and
instruments (which may include such representations, warranties, covenants and
indemnities as may be negotiated by the Windward Agent) with a Third Party
Purchaser relating to any Compelled Sale that is negotiated by the Windward
Agent. The liability of any Shareholder selling in such sale shall be limited to
the proceeds thereof received by such Shareholder and no
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Shareholder shall be liable for the intentional fraud (including but not limited
to fraudulent concealment) or the intentional fraudulent conduct of any other
Shareholder.
5.5 NOTICE OF CONSUMMATION OF COMPELLED SALE
Promptly after the consummation of any sale transaction contemplated
pursuant to Section 5.1 hereof, the Windward Agent shall give notice thereof to
the remaining Shareholders, shall remit to each of the remaining Shareholders
the total transaction proceeds to which such Shareholders are entitled pursuant
thereto, and shall furnish such other evidence of the completion and time of
completion of such sale or other disposition and the terms and conditions
thereof as may be reasonably requested by such Shareholders.
5.6 RIGHTS TO COMPEL IPO EVENT
(a) The Windward Agent may, on behalf of the Windward Group, at any
time, in its sole discretion, cause the Company to effect an IPO Event (which
may include, at the Windward Agent's option, the secondary sale of shares of
Company Stock then held by the Windward Group).
(b) In the event that the Windward Agent, on behalf of the Windward
Group, elects to exercise its rights pursuant to Section 5.6(a) above, the
Windward Agent shall have the right to designate all of the material terms of
such IPO Event (e.g., the underwriters, if any, to be retained by the Company in
connection therewith, the securities exchanges or national market systems, if
any, where the Company's equity would be listed for trading, the price, timing
and other terms of the proposed public offering, etc.). In addition, in the
event that the Windward Agent elects to exercise the rights of the Windward
Group contemplated pursuant to Section 5.6(a) above, then the Windward Agent
may, at its option, require the remaining Shareholders and their respective
Permitted Transferees to vote in favor of any amendment(s) to the Articles and
Bylaws which are reasonably requested by any underwriter retained in connection
with such IPO Event. In particular, in the event of any such proposed IPO Event,
upon any request by the Windward Agent, each of the Shareholders shall use its
respective best efforts (i) to call, or cause the appropriate officers and
directors of the Company to call, a special meeting of shareholders of the
Company to consider approval of such proposed amendment(s), and (ii) vote in
favor of such proposed amendment(s) all of the shares of Company Stock owned or
held of record by such Shareholder (to the extent entitled to vote), at each
regular or special meeting of the shareholders of the Company called for the
purpose of voting on such matter, or in any written consent executed in lieu of
such a meeting of shareholders,
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and shall take all actions reasonably necessary, to ensure that all necessary
shareholder approvals for such amendment(s) and such IPO Event are obtained.
5.7 EXCEPTION FOR MERGER AGREEMENT TRANSACTIONS
None of the provisions of this Article V shall apply to the Transfers of
Company Stock in connection with the consummation of the Share Purchase and the
Merger in accordance with the provisions of Articles 1 and 2 of the Merger
Agreement.
ARTICLE VI
PREEMPTIVE RIGHTS
6.1 PREEMPTIVE RIGHTS.
(a) The Company hereby grants to each Shareholder who is a member of the
Windward Group or a Majority Roll-Over Shareholder (and their respective
Permitted Transferees) (each, a "Preempting Shareholder") a right of first
refusal to purchase, with respect to the issuance by the Company of new or
additional equity or equity-linked securities for cash, that portion of such new
or additional equity or equity-linked securities as may be necessary in order to
permit such Shareholder to maintain their relative ownership of the aggregate
amount of the Company's total common equity (calculated on a Fully-Diluted
Basis). Such right of first refusal would be offered to each Preempting
Shareholder (such offer, the "Preemptive Rights Offer") pursuant to a written
notice from the Company offering each Preempting Shareholder such securities on
the same terms and conditions as offered to the other offeree(s) (such written
notice, the "Preemptive Rights Notice"). Each Preempting Shareholder shall have
20 days from the date of the Company's delivery of the Preemptive Rights Notice
to notify the Company in writing of its binding acceptance of such Preemptive
Rights Offer with respect to all or any portion of equity securities which are
offered to such Preempting Shareholder pursuant to such Preemptive Rights Offer.
(b) If a Preempting Shareholder accepts the Preemptive Rights Offer in
accordance with the provisions of the preceding sentence, the Company and any
such accepting party shall have 30 days in which to consummate such binding
agreement. If a Preempting Shareholder accepts the Preemptive Rights Offer, such
shareholder agrees to purchase the same mix, type and class of equity or
equity-linked securities, at the same price, as the Company is offering to
others. In the event that a Preempting Shareholder does not accept the
Preemptive Rights Offer within such 20-day period in accordance with the
provisions of the preceding sentence or fails to consummate any such purchase
within such 30-day period, the Company would have the right, subject
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to the provisions of Section 12.1(f) but not the obligation to issue such
securities on terms and conditions in the aggregate no more favorable to the
other offeree(s) than those set forth in the Preemptive Rights Notice, pursuant
to a definitive agreement to be entered into no later than 120 days after such
date.
(c) Notwithstanding anything to the contrary contained herein, no rights
of first refusal pursuant to Section 6.1(a) above would apply in the event of
(i) the issuance or exercise of any employee or director options or the exercise
or conversion of any options, warrants or convertible securities in existence as
of the date of the Initial Closing or issued pursuant to or in connection with
the Company's 2000 Stock Option Plan, which is to be adopted, or the issuance
upon the conversion or exercise of convertible securities or warrants the
issuance of which was subject to this Article VI, (ii) the issuance of equity
securities, either directly or indirectly, in connection with the acquisition,
strategic business combination or investment by the Company in any party which
is not prior to such transaction an Affiliate of either the Company or any of
the Shareholders (whether by merger, consolidation, stock swap, sale of assets
or securities, or otherwise), except for the issuance of equity securities for
cash issued in connection with the financing for any such transaction, (iii) the
issuance of securities (including any convertible securities or options and the
conversion or exercise thereof) to any third party which is or will
simultaneously become at such time a creditor of the Company, in connection with
the refinancing or restructuring of the indebtedness owed to such third party,
(iv) an issuance of securities by the Company in connection with an IPO Event or
any other Registration, (v) an issuance of securities by the Company in
connection with any Compelled Sale Right, (vi) the distribution by the Company
of its securities to all of its shareholders on a pro rata basis or (vii) any
issuance of securities by the Company pursuant to the Merger Agreement.
6.2 EXCEPTION FOR MERGER AGREEMENT TRANSACTIONS
None of the provisions of this Article VI shall apply to the issuance of
Company Stock to any Shareholder who is a member of the Windward Group in
connection with the consummation of the Share Purchase and the Merger in
accordance with the provisions of Articles 1 and 2 of the Merger Agreement.
ARTICLE VII
PUT AND CALL RIGHTS
7.1 PUT AND CALL RIGHTS
(a) Termination Without Cause.
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(i) If, prior to an IPO Event, an Employee Shareholder's
employment with the Company and its subsidiaries is terminated (x) by the
Company and its subsidiaries for any reason other than Cause or other than in
connection with the Retirement, Disability or death of such Employee
Shareholder, or (y) by reason of Voluntary Termination for Good Reason, then the
Company (or its designee) shall have the right, for 90 days following the date
of termination of such employment and subject in each case to the provisions of
Section 7.3 hereof, upon the approval of the Board, to purchase from such
Employee Shareholder and his or her Permitted Transferees, and such Employee
Shareholder and his or her Permitted Transferees shall be required to sell on
one occasion to the Company (or its designee), all Company Stock then held by
such person(s) at a price equal to (A) 90% of the Fair Market Value in the case
of any Employee Shareholder other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and (B) 90% of the Fair Market Value in the event of a termination before the
second anniversary of the date hereof and 100% of the Fair Market Value in the
event of a termination on or after the second anniversary of the date hereof in
the case of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; provided, however, that in
the event of such "call", if prior to 90 days after the consummation of such
call, the Company shall have entered into a definitive agreement with respect to
a Change of Control, then the Company shall pay to such Employee Shareholder
upon consummation of the Change of Control, (x) the positive difference, if any,
between (i) the price per share of Company Stock paid to Shareholders in
connection with the Change of Control and (ii) the purchase price per share of
Company Stock paid to the Employee Shareholder in such call event, multiplied by
(y) the number of shares of Company Stock sold in such call event.
(ii) If, prior to an IPO Event, an Employee Shareholder's
employment with the Company and its subsidiaries is terminated (x) by the
Company and its subsidiaries for any reason other than Cause or other than in
connection with the Retirement, Disability or death of such Employee
Shareholder, or (y) by reason of Voluntary Termination for Good Reason, then,
subject in each case to the provisions of Section 7.3 hereof, such Employee
Shareholder and all of his or her Permitted Transferees shall have the right,
for 90 days following the date of termination of such employment, to sell to the
Company (or its designee), and the Company (or its designee) shall be required
to purchase on one occasion from such Employee Shareholder and his or her
Permitted Transferees, all shares of Company Stock held by all such person(s) at
a price equal to (A) 90% of the Fair Market Value in the case of any Employee
Shareholder other than ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and (B) 90% of
the Fair Market Value in the event of a
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termination before the second anniversary of the date hereof and 100% of the
Fair Market Value in the event of a termination on or after the second
anniversary of the date hereof in the case of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇.
(b) Termination Upon Disability, Death or Retirement.
(i) If, prior to an IPO Event, an Employee Shareholder's
employment with the Company and its subsidiaries is terminated due to the
Retirement, Disability or death of the Employee Shareholder, then the Company
(or its designee) shall have the right, for 90 days following the date of
termination of such employment and subject in each case to the provisions of
Section 7.3 hereof, to purchase from such Employee Shareholder (or the personal
representatives of such deceased Employee Shareholder, as the case may be) and
his or her Permitted Transferees, and such Employee Shareholder (or the personal
representatives of such deceased Employee Shareholder, as the case may be) and
his or her Permitted Transferees shall be required to sell on one occasion to
the Company (or its designee), all Company Stock then held by such person(s) at
a price equal to 100% of the Fair Market Value; provided, however, that in the
event of such "call", if prior to 90 days after the consummation of such call,
the Company shall have entered into a definitive agreement with respect to a
Change of Control, then the Company shall pay to such Employee Shareholder upon
consummation of such Change of Control the positive difference, if any, between
(i) the price per share of Company Stock paid to Shareholders in connection with
the Change of Control and (ii) the purchase price per share of Company Stock
paid to the Employee Shareholder in such call event, multiplied by (y) the
number of shares of Company Stock sold in such call event.
(ii) If, prior to an IPO Event, an Employee Shareholder's
employment with the Company and its subsidiaries is terminated due to the
Retirement, Disability or death of the Employee Shareholder, then, subject in
each case to the provisions of Section 7.3 hereof, such Employee Shareholder (or
the personal representatives of such deceased Employment Shareholder, as the
case may be) and all of his or her Permitted Transferees shall have the right,
for 90 days following the date of termination of such employment, to sell to the
Company (or its designee), and the Company (or its designee) shall be required
to purchase on one occasion from such Employee Shareholder and his or her
Permitted Transferees, all shares of Company Stock held by all such person(s) at
a price equal to 100% of the Fair Market Value.
(c) Voluntary Termination. If, prior to an IPO Event, any Employee
Shareholder's employment with the Company and its subsidiaries is terminated by
reason of Voluntary Termination (other than Voluntary Termination for Good
Reason), then the Company (or its designee) shall have the right, for 90 days
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following the date of termination of such employment and subject in each case to
the provisions of Section 7.3 hereof, to purchase from such Employee Shareholder
and his or her Permitted Transferees, and such Employee Shareholder and his or
her Permitted Transferees shall be required to sell on one occasion to the
Company (or its designee), all Company Stock then held by such person(s) at a
price equal to 75% of the Fair Market Value. For purposes of this Section 7.1(c)
and Section 7.1(d), the termination of the employment of an Employee Shareholder
who is a party to an employment or consulting contract or agreement with the
Company or its subsidiaries by reason of Voluntary Termination (other than
Voluntary Termination for Good Reason) shall be deemed to be a termination for
Cause and such Shareholder shall be subject to the provisions of Section 7.1(d).
(d) Termination for Cause. If, prior to an IPO Event, (x) an
Employee Shareholder's employment with the Company and its subsidiaries is
terminated for Cause (or is deemed terminated for Cause pursuant to Section
7.1(c)) or (y) an Employee Shareholder voluntarily terminates his or her
employment simultaneous with or following termination for Cause or an event
which if known to the Company at the time of such voluntary termination by the
Employee Shareholder of his or her employment would allow the Company and its
subsidiaries to terminate the Employee Shareholder's employment for Cause, then
the Company (or its designee) shall have the right, for 90 days following the
date of termination of such employment and subject in each case to the
provisions of Section 7.3 hereof, to purchase from such Employee Shareholder and
his or her Permitted Transferees, and such Employee Shareholder and his or her
Permitted Transferees shall be required to sell on one occasion to the Company
(or its designee), all shares of Company Stock then held by such person(s) at a
price equal to the lower of original cost, Book Value or 75% of the Fair Market
Value.
(e) Purchase of Roll-Over Shares. Notwithstanding anything to the
contrary herein, in the event that an Employee Shareholder or his or her
Permitted Transferees sell any Roll-Over Shares to the Company (or its designee)
under any of Sections 7.1(a), (b), (c) or (d) above, the Company (or its
designee) shall purchase any such Roll-Over Shares at a price equal to the Fair
Market Value for such Roll-Over Shares.
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(f) Notice of Exercise; Closing.
(i) If the Company (or its designee) desires to exercise its
option to purchase shares of Company Stock pursuant to its rights under this
Section 7.1, the Company (or its designee) shall, not later than the expiration
date of the 90-day call period referred to in clauses (a)(i), (b)(i), (c) and
(d) above (as it may be extended pursuant to the provisions of Section 7.3
hereof), send written notice of its intention to purchase all of the shares of
Company Stock held by such Employee Shareholder and his or her Permitted
Transferees pursuant to this Section 7.1. Subject in each case to the provisions
of Section 7.3 hereof, the closing of the purchase shall take place at the
principal office of the Company on the tenth day following the giving of such
notice or as soon thereafter as practicable but in no event later than twenty
days after the giving of such notice. The purchase price shall be paid in
accordance with Section 7.4 hereof.
(ii) Each Employee Shareholder (and the Permitted Transferees
thereof) which desires to sell all of its shares of Company Stock pursuant to
its rights under this Section 7.1 shall, not later than the expiration date of
the 90-day put period referred to in clauses (a)(ii) and (b)(ii) above, send a
written, irrevocable notice of its intention to sell all of its shares of
Company Stock pursuant to this Section 7.1. Subject in each case to the
provisions of Section 7.3 hereof, the closing of the purchase shall take place
at the principal office of the Company on the tenth day following the giving of
such notice. The purchase price shall be paid in accordance with Section 7.4
hereof.
7.2 OBLIGATION TO SELL SEVERAL
In the event that any Employee Shareholder has transferred any shares of
Company Stock to any Permitted Transferees, the failure of any one member of
such group to perform its obligations hereunder shall not excuse or affect the
obligations of any other member thereof, and the closing of the purchases from
such other members by the Company (or its designee) shall not excuse, or
constitute a waiver of the Company's rights against, the defaulting member(s).
7.3 DEFERRAL OF PURCHASES
(a) Events of Deferral. The Company (and its designee) shall not be
obligated to purchase any shares of Company Stock, at any time pursuant to this
Article VII, regardless of whether it has in the case of Section 7.1 hereof
delivered a notice of its election to purchase any such shares, (x) to the
extent that the purchase of such shares would give rise to or result in a
Violation or (y) if immediately prior to the
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time of purchase there exists, or if immediately after giving effect to such
purchase there would exist, a Financing Default.
(b) Extension of Put and Call Periods. The period during which the
Company (or its designee) shall have the right or obligation to purchase shares
of Company Stock pursuant to the exercise of any "put" rights pursuant to
Section 7.1 (a "Put Right") or pursuant to the exercise of any right to purchase
shares of Company Stock pursuant Section 7.1 hereof (a "Call Right"), shall be
extended in the event the Board in good faith determines that any Violation or
Financing Default exists or would result as a result of any purchase of Company
Stock pursuant to this Article VII until 90 days (in the event of the exercise
of any Put Rights), or 120 days (in the event of the exercise of any Call
Rights), as the case may be, after the Board determines that such is no longer
the case; provided that, in order to exercise such rights, (i) the Employee
Shareholder (or the personal representatives of such deceased Employee
Shareholder, as the case may be) exercising any Put Rights must have given
notice of its intention to exercise its Put Rights within 90 days from the date
the Employee Shareholder's termination of employment, and (ii) the Company (or
its designee) must have given notice of its intention to exercise its Call
Rights within 120 days from the date of the Employee Shareholder's termination
of employment.
7.4 PAYMENT FOR STOCK
The purchase price of shares of Company Stock to be purchased by the
Company (or its designee) pursuant to this Article VII will be paid by (a) at
the Company's option, the cancellation of indebtedness owing from the Employee
Shareholder to the Company or any of its subsidiaries, if any, and (b) then by
the Company's delivery of a bank cashier's check or certified check for the
remainder of the purchase price, if any, against delivery of the certificates or
other instruments representing the Company Stock so purchased, Duly Endorsed;
provided that, in the event (x) that the Company does not have sufficient cash
flow to finance the payment of such purchase price referred to in clause (b)
above, as determined in good faith the Board, or (y) that the Company is not
permitted, pursuant to the provisions of either the Credit Agreements or the
Subordinated Notes, or any refinancing, refunding or amendment thereof (after
seeking in good faith to obtain from the lenders thereunder a consent reasonably
acceptable to the Company with respect to effecting a cash repurchase), to pay
cash in payment of such purchase price referred to in clause (b) above, but is
permitted, pursuant thereto and pursuant to all other credit obligations of the
Company to issue an Employee Repurchase Note, then, in any of such events, the
Company (or its designee) may, at its option, pay for such purchase price with
the delivery of a junior, subordinated promissory note bearing interest at an
eight percent (8%) annual rate of interest, due on the fifth anniversary of the
date of issuance
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thereof (or such later date as may be required by any financing agreement to
which the Company is a party) and substantially in the form attached hereto as
Exhibit A for the remainder of the purchase price, if any (such promissory note,
the "Employee Repurchase Note"). In the event that the Company (or its designee)
intends to deliver an Employee Repurchase Note upon the exercise of any Put
Right or any Call Right, the Company (or its designee) shall notify the intended
recipient thereof prior to the delivery thereof. The Company (or its designee)
shall have the rights set forth in subsections (a) and (b) of the first sentence
of this Section 7.4 whether or not any Permitted Transferee(s) of the Employee
Shareholder owing amounts to the Company or its subsidiaries, if applicable, is
itself an obligor of the Company or its subsidiaries.
7.5 MISCELLANEOUS
Notwithstanding anything to the contrary set forth in this Agreement,
(a) the Company shall be permitted to reach any agreement with any Employee
Shareholder (or his estate, as the case may be) concerning the purchase of such
Employee Shareholder's shares of Company Stock, and (b) the Company, in its sole
discretion, shall have the right, but not the obligation, to assign any of its
rights, and delegate any of its obligations, to purchase any shares of Common
Stock of any Employee Shareholder (or his estate, as the case may be) pursuant
to Article VII hereof to any employee stock ownership plan or similar
compensation or benefit plan that the Company may have, or to any subsidiary or
employee of the Company (or any combination of the foregoing).
7.6 PROXY AND ESCROW OF COMPANY STOCK
(a) In the event that the Company (or its designee) does not exercise
its rights under Section 7.1 to purchase all shares of Company Stock held by an
Employee Shareholder, the Company may, at its option, require such Employee
Shareholder to execute and deliver to the Secretary irrevocable proxies (which
proxies shall be deemed to be coupled with an interest and which shall terminate
upon an IPO Event) in such form and as the Company may from time to time
prescribe, in favor of such person as the Board may from time to time prescribe,
entitling such person to vote such shares, if at all on matters in direct
proportion to the affirmative and negative votes and abstentions of all other
voting securities then outstanding.
(b) Each Employee Shareholder agrees that he or she will, upon
termination of such Employee Shareholder's employment for any reason, or prior
to termination at the request of the Company, deliver to the Secretary, to be
held by the Secretary for the benefit of such Employee Shareholder the
certificates representing all shares of Company Stock of such Employee
Shareholder.
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ARTICLE VIII
COMPANY COVENANTS
8.1 FINANCIAL REPORTS
The Company shall prepare and distribute to each of the Shareholders (a)
audited annual financial reports of the Company and its consolidated
subsidiaries (including consolidated balance sheets and consolidated statements
of income and cash flow and the accompanying notes thereto) and (b) unaudited
quarterly financial reports of the Company and its consolidated subsidiaries for
each of the first three fiscal quarters of each fiscal year (including
consolidated balance sheets and consolidated statements of income and cash flow
and the accompanying notes thereto), in each case as soon as reasonably
practicable after the end of the applicable financial period (but in no event
later than 90 days after the end of any fiscal year of the Company in the case
of annual reports and not later than 45 days after the end of any of the
applicable quarters for quarterly information).
8.2 ACCESS TO INFORMATION
Subject to the provisions of Section 14.1 hereof, the Company shall
provide to the Shareholder Representative (as defined in the Merger Agreement)
access to the books and records of the Company and its subsidiaries during the
regular business hours of the Company and such subsidiaries, following the
Company's receipt of a written notice from the Shareholder Representative
requesting such access.
8.3 FIRPTA ACTIVITIES
The Company agrees that it will not, without first obtaining the prior
written consent of the Windward Agent, take any actions that would result in the
Company becoming a United States real property holding company within the
meaning of section 897(c)(2) of the Code (or any successor statutory or
regulatory provision of similar effect).
ARTICLE IX
REGISTRATION RIGHTS
9.1 DEMAND REGISTRATION RIGHTS
(a) Upon written notice from a Shareholder entitled to request
Registration pursuant to Section 9.1(c) below (the "Requesting Shareholder"),
the Company shall use its best efforts to effect at the earliest possible date
and maintain the registration under the Securities Act of offers and sales of
Common Stock by the Requesting
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Shareholder (and, except as otherwise provided herein, no offers and sales of
any other securities by any other person shall be registered with such Common
Stock of the Requesting Shareholder without the Requesting Shareholder's prior
consent), its Permitted Transferees and any underwriter with respect to such
stock, in accordance with the intended method or methods of disposition
specified by the Requesting Shareholder (including, but not limited to, an
offering on a delayed or continuous basis pursuant to Rule 415 (or any successor
rule) promulgated under the Securities Act); provided, that if, after a
Registration request pursuant to this Section 9.1 has been made, the outside
legal counsel of the Company has determined in good faith that the filing of a
Registration request would require the disclosure of material information which
the Company has a bona fide business purpose for preserving as confidential, the
Company shall not be obligated to effect a Registration pursuant to this Section
9.1 until the earlier of (A) the date upon which such material information is
disclosed to the public or ceases to be material, or (B) 45 days after such
outside legal counsel of the Company first makes such good faith determination;
provided, further, that no Requesting Shareholder may request any such
Registration pursuant to this Section 9.1 (x) until at least six (6) months
after the closing of the last Registration and sale of Company securities and
(y) unless the Registrable Securities sought to be registered has a Fair Market
Value of at least $10 million; provided, however, that the Requesting
Shareholder shall not have the right to utilize the services of an underwriter
unless the Fair Market Value of the Company Stock to be offered exceeds $25
million. The Requesting Shareholder(s) requesting a Registration under this
Section 9.1 may, at any time prior to the effective date of the registration
statement relating to such Registration, revoke such request by providing
written notice thereof to the Company.
(b) In connection with any Registration requested pursuant to this
Section 9.1, (i) the Requesting Shareholder shall have the right, subject to the
penultimate sentence of Section 9.1(a), to designate the managing underwriter(s)
and (ii) the Company shall take such other actions, including, without
limitation, listing such shares for trading on any securities exchange or
national market system and registering or qualifying such shares under state
securities laws, as may be reasonably requested by the Requesting Shareholder.
If the Requesting Shareholder consents to the inclusion of offers and sales of
any other securities in a Registration of Common Stock by the Requesting
Shareholder pursuant to this Section 9.1 and the underwriter(s) retained in
connection with such Registration advise the Company in writing that such
offering would be materially and adversely affected by the inclusion of such
securities, the Requesting Shareholder may in its sole discretion exclude all or
some of such securities from such offering; provided, however, that if the
Requesting Shareholder is the Windward Group, the Requesting Shareholder shall
exclude such
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shares on a pro rata basis among the entities comprising the Windward Group
whose shares were included in such requested Registration.
(c) After the occurrence of an IPO Event:
(i) the Windward Agent, on behalf of the Windward Group, will have
the right to request Registration of Company Stock of the Windward Group as a
Requesting Shareholder pursuant to this Section 9.1 an aggregate of four (4)
times; provided that if the Windward Group had elected, pursuant to Section 5.6
hereof, to cause the Company to effect the IPO Event, such election will not be
a request for Registration of Company Common Stock for purposes of this Section
9.1(c); and
(ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, on behalf of the Majority Roll-Over
Shareholders upon the request of holders of a majority of the shares of Common
Stock held by Majority Roll-Over Shareholders at such time, will have the right
to request Registration of Company Stock of the Majority Roll-Over Shareholders
pursuant to this Section 9.1 an aggregate of two (2) times; provided, that,
prior to such time, the Windward Group shall have effected two Registrations
pursuant to Section 9.1(c)(i); provided, further, that in the event ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, on behalf of the Majority Roll-Over Shareholders, requests Registration
pursuant to this Section 9.1(c)(ii), the Company shall notify the Windward Agent
in writing of such request and the Windward Agent may elect, in its sole
discretion (the "Windward Election"), within 15 days of receipt of such written
notice, to request Registration pursuant to Section 9.1(c)(i) in which case the
Majority Roll-Over Shareholders shall be entitled to contribute up to 50% of the
Registrable Securities included in such Registration; however, the Windward
Agent shall only be allowed to make one Windward Election and after such
election may no longer make a Windward Election unless the requested
Registration pursuant to the Windward Election is not deemed effective (as set
forth below), in which case such election shall not be deemed to be the Windward
Election; provided, further, that any Registration requested by any Requesting
Shareholder pursuant to this Section 9.1 shall not be deemed to have been
effected (and, therefore, not requested for purposes of this Section 9.1(c)),
(i) unless it has become effective, provided that a registration which does not
become effective after the Company has filed a registration statement with
respect thereto solely by reason of the refusal to proceed by the Requesting
Shareholder (other than a refusal to proceed based upon the advice of counsel
relating to a matter with respect to the Company) shall be deemed to have been
effected by the Company at the request of such Requesting Shareholder unless the
Requesting Shareholder shall have elected to pay all Registration Expenses in
connection with such registration, (ii) if after it has become effective such
Registration is interfered with by any stop order, injunction or other order or
requirement of the SEC or other governmental agency or court for any
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reason other than a misrepresentation or an omission by the Requesting
Shareholder and, as a result thereof, the Common Stock requested to be
registered cannot be completely distributed in accordance with the plan of
distribution set forth in the related registration statement or (iii) if the
closing pursuant to the purchase agreement or underwriting agreement entered
into in connection with such Registration does not occur. Any Registration
effected pursuant to Section 9.2 shall not be deemed to have been requested by a
Requesting Shareholder for purposes of this Section 9.1(c).
9.2 PIGGYBACK REGISTRATION RIGHTS
If at any time following the completion of an IPO Event the Company
proposes to effect another Registration, whether or not for sale for its own
account and (subject to the provisions of Section 9.1 above) whether or not
pursuant to the exercise of any of the demand registration rights referred to in
Section 9.1 hereof, in a manner which would permit Registration of Registrable
Securities for sale to the public under the Securities Act, it will each such
time, subject to the provisions of Sections 9.1 and 9.2(c) hereof, give prompt
written notice to all Shareholders of record of Registrable Securities of its
intention to do so and of such Shareholders' rights under this Article IX, at
least 25 days prior to the anticipated filing date of the registration statement
relating to such Registration. Such notice shall offer all such Shareholders the
opportunity to include in such registration statement such number of Registrable
Securities as each such Shareholder may request. Upon the written request of any
such Shareholder made within 10 days after the receipt of the Company's notice
(which request shall specify the number of Registrable Securities intended to be
disposed of by such Shareholder and the intended method of disposition thereof),
the Company will use its best efforts to effect the Registration under the
Securities Act and the qualification under any applicable state securities or
Blue Sky laws of all Registrable Securities which the Company has been so
requested to register by the Shareholders thereof, to the extent required to
permit the disposition (in accordance with such intended methods thereof) of the
Registrable Securities so requested to be registered; provided that:
(a) if such Registration involves an underwritten public offering,
all Shareholders requesting that their Registrable Securities be included in the
Company's Registration must, upon request by the underwriter(s), sell their
Registrable Securities to such underwriter(s) selected by the Company (or the
Requesting Shareholders in accordance with Section 9.1, as the case may be) on
the same terms and conditions as apply to the Company or any selling
securityholder (or on equivalent terms and conditions, in the event that such
requesting Shareholders hold different securities from those being sold by the
Company or such selling securityholder), including, without limitation,
executing and delivering such underwriting agreements or other
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related agreements to which the Company or any such selling securityholder has
agreed to execute and deliver;
(b) if, at any time after giving written notice of its intention to
register any securities pursuant to this Section 9.2 and prior to the effective
date of the registration statement filed in connection with such Registration,
the Company shall determine for any reason not to register such securities, the
Company shall give written notice to all Shareholders of Registrable Securities
and, thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such Registration (without prejudice, however, to
the rights, if any, of the Shareholders immediately to request that such
registration be effected as a Registration under Section 9.1);
(c) if a Registration pursuant to this Section 9.2 involves an
underwritten public offering, any Shareholder of Registrable Securities
requesting to be included in such Registration may elect, in writing at least 10
days prior to the effective date of the registration statement filed in
connection with such Registration, not to register such securities in connection
with such Registration;
(d) the Company shall not be required to effect any Registration of
Common Stock under this Section 9.2 incidental to the registration of any of its
securities in connection with mergers, acquisitions, exchange offers,
subscription offers, dividend reinvestment plans or stock option or other
executive or employee benefit or compensation plans (including, without
limitation, any registration of securities on a Form S-4 or S-8 registration
statement or any successor or similar forms); and
(e) no Registration of Common Stock effected under this Section 9.2
shall relieve the Company of its obligation to effect a Registration of shares
of Common Stock pursuant to Section 9.1.
9.3 PRIORITY IN PIGGYBACK REGISTRATIONS
(a) If at any time following an IPO Event the Company proposes to effect
another Registration in connection with an underwritten offering (other than any
Registration pursuant to the exercise of any of the demand registration rights
referred to in Section 9.1 hereof or any demand registration rights which
specify a priority for "piggyback" registration rights which is the same as set
forth in Section 9.3(b) below (such latter form of demand registration rights,
the "Permitted Demand Registration Rights")), including any Registration for the
Company's account, and the managing underwriter(s) advise the Company in writing
that, in its or their judgment, the number of shares of equity securities of the
Company (including all shares of Registrable
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Securities) which the Company, the Shareholders and any other persons intend to
include in such Registration exceeds the largest number of securities which can
be sold without having an adverse effect on such offering, including the price
at which such securities can be sold, the Company shall include in such
Registration: (i) first, all securities the Company proposes to sell for its own
account (the "Company Securities"), (ii) second, to the extent that the number
or dollar amount of the Company Securities to be offered by the Company is less
than the number of shares of securities which the Company has been advised can
be sold in such offering without having the adverse effect referred to above,
the number of Piggyback Securities requested to be sold by any Shareholder who
is a member of the Windward Group (pro rata among the entities that comprise the
Windward Group based on the number of shares of Company Common Stock held by
each such entity), (iii) third, to the extent that the number or dollar amount
of the Company Securities and Piggyback Securities held by the Windward Group is
less than the number of shares of securities which the Company has been advised
can be sold in such offering without having the adverse effect referred to
above, the equity securities requested to be sold by any Shareholder who is a
Majority Roll-Over Shareholder (provided that if the number of the Company
Securities and Piggyback Securities exceeds the number of shares of securities
which the Company has been advised can be sold in such offering without having
the adverse effect referred to above, the number of such Piggyback Securities
owned by the Majority Roll-Over Shareholders to be included in such offering
shall be allocated pro rata among all Majority Roll-Over Shareholders owning
such Piggyback Securities on the basis of the relative number or amount of
Piggyback Securities each such holder has requested to be included in such
Registration), and (iv) fourth, to the extent that the number of Company
Securities and Piggyback Securities held by Shareholders is less than the number
of shares of securities which the Company has been advised can be sold in such
offering without having the adverse effect referred to above, the equity
securities requested to be sold for the account of any other persons (allocated
among the persons holding such other securities in such proportions as such
persons and the Company may agree).
(b) If at any time following an IPO Event the Company proposes to effect
another Registration in connection with an underwritten offering pursuant to the
exercise of any of the demand registration rights referred to in Section 9.1
hereof or any Permitted Demand Registration Rights, and the managing
underwriter(s) advise the Company in writing that, in its or their judgment, the
number of shares of equity securities of the Company (including all shares of
Registrable Securities) which the Company, the Shareholders and any other
persons intend to include in such Registration exceeds the largest number of
securities which can be sold without having an adverse effect on such offering,
including the price at which such securities
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can be sold, the Company shall include in such Registration: (i) first, all
securities which are held by the Shareholders or other persons who are
exercising the demand registration rights referred to in Section 9.1 hereof or
any Permitted Demand Registration Rights (the "Demand Securities"), (ii) second,
to the extent that the number or dollar amount of the Demand Securities to be
offered by the Company is less than the number of shares of Demand Securities
which the sellers thereof have been advised can be sold in such offering without
having the adverse effect referred to above, the number of Piggyback Securities
requested to be sold by any Shareholder who is a member of the Windward Group,
(iii) third, to the extent that the number of Demand Securities and Piggyback
Securities held by the Windward Group is less than the number of shares of
securities which the Company has been advised can be sold in such offering
without having the adverse effect referred to above, the number of Piggyback
Securities requested to be sold by any Shareholder who is a Majority Roll-Over
Shareholder (provided that if the number of the Demand Securities and Piggyback
Securities exceeds the number of shares of securities which the Company has been
advised can be sold in such offering without having the adverse effect referred
to above, the number of such Piggyback Securities owned by the Majority
Roll-Over Shareholders to be included in such offering shall be allocated pro
rata among all Majority Roll-Over Shareholders of such Piggyback Securities on
the basis of the relative number or amount of Piggyback Securities each such
holder has requested to be included in such Registration), and (iv) fourth, to
the extent that the number of Demand Securities and Piggyback Securities held by
Shareholders is less than the number of shares of securities which the Company
has been advised can be sold in such offering without having the adverse effect
referred to above, the equity securities requested to be sold for the account of
the Company and any other persons (allocated among the Company and the persons
holding such other securities in such proportions as such persons and the
Company may agree).
9.4 EXPENSES
The Company will pay all Registration Expenses in connection with each
Registration of Registrable Securities requested pursuant to this Article IX
(including any Registration deemed not to be "effected" under Section 9.1(c) or
not consummated as contemplated by Section 9.2(b)) and any other actions that
may be taken in connection with any such Registration as contemplated by this
Article IX; provided, that the Company will not be obligated to pay any
underwriting discounts or commissions or transfer taxes, if any, relating to the
sale or disposition of shares sold by persons other than the Company pursuant to
any such Registration.
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9.5 RESTRICTIONS ON PUBLIC SALE BY SHAREHOLDERS AND COMPANY
(a) In connection with any offering of securities of the Company,
including, without limitation, any offering contemplated by this Article IX,
each Shareholder agrees that, whether or not such Shareholder's Registrable
Securities are included in such Registration, it will consent and agree to
comply with any "hold back" restriction, relating to Common Stock, that may be
reasonably requested by the underwriter(s) or placement or other selling
agent(s) of such offering. Without limitation to the foregoing, each Shareholder
shall, upon request by such underwriter(s) or agent(s), agree not to effect any
public sale or distribution, including any sale pursuant to Rule 144 under the
Securities Act, of any Registrable Securities, and not to effect any such public
sale or distribution of any other equity security of the Company or of any
security convertible into or exchangeable or exercisable for any equity security
of the Company (in each case, other than as part of such underwritten public
offering) during the 30 days prior to, and during the 180 day period beginning
on, the effective date of such registration statement (except as part of such
Registration).
(b) If any Registration of Registrable Securities pursuant to Article IX
shall be in connection with an underwritten public offering, the Company agrees,
if requested by the underwriter(s) or placement or other selling agent(s), (i)
not to effect any public sale or distribution of any of its equity securities or
of any security convertible into or exchangeable or exercisable for any equity
security of the Company (other than any such sale or distribution of such
securities in connection with any merger or consolidation by the Company or a
subsidiary of the Company or in connection with the purchase of all or
substantially all the assets of any other person or in connection with an
employee stock option or other benefit plan) during the 30 days prior to, and
during the 180 day period beginning on, the effective date of such registration
statement (except as part of such Registration) and (ii) that any agreement
entered into after the date of this Agreement pursuant to which the Company
issues or agrees to issue any privately placed equity securities shall contain a
provision under which holders of such securities agree not to effect any public
sale or distribution of any such securities during the period referred to in the
foregoing clause (i) or during any of the periods referred to in Section 9.5(a)
above, including any sale pursuant to Rule 144 under the Securities Act (except
as part of such Registration, if permitted).
(c) In connection with any offering of securities of the Company
contemplated by this Article IX, the Company shall take such other actions in
connection therewith as may be necessary or appropriate, including, without
limitation, entering into customary underwriting arrangements and agreeing to
indemnify any Requesting Shareholder or any other Shareholder selling Common
Stock in such offering.
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9.6 INDEMNIFICATION BY THE COMPANY
In the event of any Registration of any securities of the Company under
the Securities Act pursuant to Article IX, the Company will, and it hereby does,
indemnify and hold harmless, to the full extent permitted by law, each of the
Shareholders holding any Registrable Securities covered by such registration
statement, its Representatives each other person who participates as an
underwriter in the offering or sale of such securities and each other person, if
any, who controls, is controlled by or is under common control with such
Shareholder or any such underwriter within the meaning of the Securities Act,
against any and all losses, claims, damages or liabilities, joint or several,
and expenses (including any amounts paid in any settlement effected with the
Company's consent, which consent shall not be unreasonably withheld) to which
such Shareholder, any such Representative or any such underwriter or controlling
person may become subject under the Securities Act, state securities or blue sky
laws, common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) or expenses arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto,
(ii) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or (iii) any violation by the Company of any federal, state or common law rule
or regulation applicable to the Company and relating to action required of or
inaction by the Company in connection with any such Registration, and the
Company will reimburse such Shareholder and each such Representative or
underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending such
loss, claim, liability, action or proceeding; provided that the Company shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expenses arises out of
or is based upon any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement or amendment or supplement
thereto or in any such preliminary, final or summary prospectus in reliance upon
and in conformity with written information furnished to the Company through an
instrument duly executed by such Shareholder or any such Representative or
underwriter specifically stating that it is for use in the preparation thereof.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Shareholder or any such
Representative or underwriter and shall survive the transfer of such securities
by such Shareholder.
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9.7 INDEMNIFICATION BY THE SHAREHOLDERS AND UNDERWRITERS
The Company may require, as a condition to including any Registrable
Securities in any registration statement filed in accordance with Article IX,
that the Company shall have received an undertaking reasonably satisfactory to
it from the Shareholders of such Registrable Securities and any underwriter, to
indemnify and hold harmless (in the same manner and to the same extent as set
forth in Section 9.6) the Company and its Representatives and all other
prospective sellers and their respective Representatives, and their respective
controlling persons with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any amendment or supplement
thereto, if such statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company or its representatives through an instrument duly executed by or
on behalf of such Shareholder or underwriter, as the case may be, specifically
stating that it is for use in the preparation of such registration statement,
preliminary, final or summary prospectus or amendment or supplement thereto, or
a document incorporated by reference into any of the foregoing. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Company or any of the Shareholders, underwriters or any of
their respective Representatives or controlling persons and shall survive the
transfer of such securities by such Shareholder; provided that no such
Shareholder shall be liable under this Section 9.7 for any amounts exceeding the
product of the purchase price per Registrable Security and the number of
Registrable Securities being sold pursuant to such registration statement or
prospectus by such Shareholder (net of any underwriters' or placement agents'
fees, discounts or commissions related thereto and net, in the case of the
members of the Windward Group, of the purchase price paid by such member
pursuant to the Merger Agreement).
9.8 NOTICES OF CLAIMS, ETC.
Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Article IX, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, promptly give written notice to the latter of the
commencement of such action; provided, however, that the failure of any
indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
Article IX, except to the extent that the indemnifying party is actually
materially prejudiced by such failure to give notice. In case any such action is
brought against an indemnified party, unless in such indemnified party's
reasonable
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judgment a conflict of interest between such indemnified and indemnifying
parties may exist in respect of such claim, the indemnifying party will be
entitled to participate in and, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, to the extent that it may
wish, with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified party for
any legal or other expenses subsequently incurred by the latter in connection
with the defense thereof, unless in such indemnified party's reasonable judgment
a conflict of interest between such indemnified and indemnifying parties arises
in respect of such claim after the assumption of the defense thereof, and the
indemnifying party will not be subject to any liability for any settlement made
without its consent (which consent shall not be unreasonably withheld). No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation. An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not be
obligated to pay the fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of interest may exist
between such indemnified party and any other of such indemnified parties with
respect to such claim, in which event the indemnifying party shall be obligated
to pay the fees and expenses of such additional counsel or counsels.
9.9 OTHER INDEMNIFICATION
Indemnification similar to that specified in the preceding Sections of
this Article IX (with appropriate modifications) shall be given by the Company
and each Shareholder of Registrable Securities with respect to any required
Registration or other qualification of securities under any federal or state law
or any regulation of a governmental authority other than arising under the
Securities Act.
9.10 REGISTRATION PROCEDURE
(a) If and whenever the Company is required to effect or cause the
Registration of any Registrable Securities pursuant to this Article IX, the
Company will, as expeditiously as possible:
(1) Prepare in cooperation with the sellers (and, in the event of an
underwritten public offering, with the underwriter(s)), and file with the SEC,
in a manner consistent with the provisions of this Article IX, a registration
statement with respect to such Registrable Securities on any form for which the
Company then
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qualifies or which counsel for the Company shall deem appropriate as the case
may be, and which form shall be available for the sale of the Registrable
Securities in accordance with the intended methods of distribution thereof, and
use its best efforts to cause such registration statement to become and remain
effective; provided that before filing with the SEC a registration statement or
prospectus or any amendments or supplements thereto, the Company will (i)
furnish to one counsel selected by the Requesting Shareholder(s), in the event
of a Registration effected pursuant to Section 9.1 hereof, or selected by the
holders of a majority of the Registrable Securities covered by such registration
statement, in the event of any other Registration, copies of all such documents
proposed to be filed, which documents will be subject to the timely review of
such counsel, and (ii) notify each holder of Registrable Securities covered by
such registration statement of any stop order issued or threatened by the SEC
and take all reasonable actions required to prevent the entry of such stop order
or to remove it if entered.
(2) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a period of
not less than 120 days or such shorter period which will terminate when all
Registrable Securities covered by such registration statement have been sold
(but not before the expiration of the 90-day period referred to in Section 4(3)
of the Securities Act and Rule 174 thereunder, if applicable) and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such registration statement during such period in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement.
(3) Furnish to each holder of Registrable Securities covered by the
registration statement and to each underwriter, if any, of such Registrable
Securities, such number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits thereto), and the
prospectus included in such registration statement (including each preliminary
prospectus), and such other documents, as such person may reasonably request, in
order to facilitate the public sale or other disposition of the Registrable
Securities owned by such holder.
(4) Use its best efforts to register or qualify such Registrable
Securities covered by such registration statement under such other securities or
blue sky laws of such jurisdictions as any holder, and underwriter, if any, of
Registrable Securities covered by such registration statement shall reasonably
request, and do any and all other acts and things which may be reasonably
necessary or advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Securities owned by such seller; provided,
that the Company shall not for any such
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purpose, be required to (A) qualify to do business as a foreign corporation in
any jurisdiction where, but for the requirements of this Section 9.10, it is not
then so qualified, (B) subject itself to taxation in any such jurisdiction, or
(C) take any action which would subject it to consent to general or unlimited
service or process not then so subject.
(5) Use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company to enable the seller or sellers thereof
to consummate the disposition of such Registrable Securities.
(6) Immediately notify each seller of Registrable Securities covered
by such registration statement, at any time when a prospectus relating thereto
is required to be delivered under the Securities Act, of the happening of any
event which comes to the Company's attention if as a result of such event the
prospectus included in such registration statement, as then in effect, includes
any untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading and at the request of
any such seller, deliver a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus shall not include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading.
(7) Otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC and make available to its security holders, in
each case as soon as practicable, an earnings statement covering a period of at
least 12 months, beginning with the first month after the effective date of the
registration statement (as the term "effective date" is defined in Rule 158(c)
under the Securities Act), which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act including, at the option of the Company,
Rule 158 thereunder.
(8) Use its best efforts to cause all such Registrable Securities to
be listed on such national securities exchange or the National Association of
Securities Dealers National Market System as may be reasonably requested by the
Requesting Shareholder, and if any similar securities issued by the Company are
then listed on any securities exchanges or national market systems, to also list
all such Registrable Securities on such securities exchanges or national market
systems, and enter into such customary agreements including a listing
application and indemnification
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agreement in customary form, provided that the applicable listing requirements
are satisfied, and to provide a transfer agent and registrar for such
Registrable Securities covered by such registration statement no later than the
effective date of such registration statement.
(9) Use its best efforts to obtain a "cold comfort" letter from the
independent public accountants for the Company in customary form and covering
matters of the type customarily covered by such letters as may be reasonably
requested by the Requesting Shareholder(s), in the event of a Registration
effected pursuant to Section 9.1 hereof, or by the holders of a majority of the
Registrable Securities covered by such registration statement, in the event of
any other Registration.
(10) Execute and deliver all instruments and documents (including in
an underwritten offering an underwriting agreement in customary form) and take
such other actions and obtain such certificates and opinions as sellers of a
majority of the Registrable Securities being sold reasonably request in order to
effect an underwritten public offering of such Registrable Securities. The
Company may require each holder of Registrable Securities as to which any
Registration is being effected to furnish to the Company such information
regarding such holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request in writing in connection with
effecting such offering.
(b) Each holder of Registrable Securities will, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 9.10(a)(6), forthwith discontinue disposition of the Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 9.10(a)(6), and, if so directed by
the Company, such holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies, then in such holder's possession,
of the prospectus covering such Registrable Securities at the time of receipt of
such notice.
9.11 RULE 144
If the Company shall have filed a registration statement pursuant to the
requirements of Section 12 of the Exchange Act or a registration statement
pursuant to the requirements of the Securities Act, the Company covenants that
it will file the reports required to be filed by it under the Securities Act and
the Exchange Act and the rules and regulations adopted by the SEC thereunder
(or, if the Company is not required to file such reports, it will, upon the
request of any holder of Registrable Securities, make publicly available other
information), and it will take such further
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action as any holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell shares of
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (i) Rule 144 under the Securities Act,
as such Rule may be amended from time to time, or (ii) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
ARTICLE X
ADDITIONAL SHAREHOLDERS
10.1 TRANSFEREES OF SHAREHOLDERS OR THE COMPANY
No Transfers of shares of Company Stock may be made (and shall not be
effective) to a Permitted Transferee or to any Third Party, unless in each case
prior to such Transfer any such transferee agrees in writing to be bound (to the
same extent as contemplated with respect to the Shareholder (or the Permitted
Transferee(s) thereof) transferring such shares of Company Stock) by the terms
and conditions of this Agreement pursuant to a supplementary agreement
reasonably satisfactory in form and substance to the Company. The Company shall,
as a condition to any original issuance of Company Stock to a person who or
which is not at such time a Shareholder, require that such person agree in
writing to be bound by the terms and conditions of this Agreement pursuant to a
supplementary agreement reasonably satisfactory in form and substance to the
Company. Upon entering into such supplementary agreement, such transferee or
purchaser of Company Stock shall be deemed to be a Shareholder for all purposes
of this Agreement. The provisions of this Section 10.1 shall not apply to any
Transfer (a) made pursuant to a public offering of Company Stock, including in
connection with the exercise by any Shareholder of its rights pursuant to
Article IX hereof (including, without limitation, Section 9.11) or in connection
with the exercise by the Windward Agent of its rights pursuant to Section 5.6
hereof, or (b) made in connection with the exercise by the Windward Group of a
Compelled Sale Right.
10.2 NEW SHAREHOLDERS
Each member of management or other employee of the Company or any of its
subsidiaries who becomes a holder of Company Stock after the date hereof shall
be deemed, upon the execution of a supplementary agreement described below, to
have the same rights and obligations as a Shareholder for purposes of this
Agreement. The Company shall not issue Company Stock to any member of management
or other
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employee of the Company or any of its subsidiaries unless the person to whom the
Company Stock is to be issued or transferred agrees in writing to be bound by
the terms and conditions of this Agreement pursuant to a supplementary agreement
reasonably satisfactory in form and substance to the Company; upon entering into
such agreement, such member of management or other employee of the Company or
any of its subsidiaries shall be deemed to be an Employee Shareholder for all
purposes of this Agreement. The parties hereto acknowledge and agree that the
Company Stock Option Plan (or the agreements entered into in connection
therewith) shall provide that option holders thereunder will be required to
become parties to this Agreement upon any exercise of options granted
thereunder, as a condition to the exercise of such options.
10.3 SUPPLEMENTAL AGREEMENTS
Each supplementary agreement referred to in Sections 10.1 and 10.2 above
shall become effective upon its execution by the Company and the new holder of
Company Stock, and it shall not require the signatures or the consent of the
other Shareholders (or their respective Permitted Transferees). The
supplementary agreement between the Company and any new holder of Company Stock
may modify some of the terms and conditions of this Agreement as they affect the
rights and obligations of the new holder of Company Stock, provided that the
modified terms and conditions shall be no less favorable to the other
Shareholders (or their respective Permitted Transferees) than the terms and
conditions set forth in this Agreement.
ARTICLE XI
STOCK LEGENDS
11.1 STOCK CERTIFICATE LEGEND
A copy of this Agreement shall be filed with the Secretary of the
Company and kept with the records of the Company. Each of the Shareholders
agrees that the following two legends shall be placed on the certificates
representing any shares of Company Stock owned by them:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER CONDITIONS, AS
SPECIFIED IN A SHAREHOLDERS AGREEMENT DATED AS OF APRIL 4,
2000 (COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF MOBILE
STORAGE GROUP, INC. (TOGETHER WITH ITS SUCCESSORS, THE
"COMPANY") AND WHICH WILL BE MAILED TO A SHAREHOLDER
-48-
WITHOUT CHARGE WITHIN FIVE DAYS AFTER RECEIPT BY THE COMPANY
OF A WRITTEN REQUEST THEREFOR FROM SUCH SHAREHOLDER). THE
HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE,
AGREES TO BE BOUND BY ALL OF THE PROVISIONS OF SUCH
SHAREHOLDERS AGREEMENT.
NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY BE MADE EXCEPT PURSUANT TO THE PROVISIONS OF SUCH
SHAREHOLDERS AGREEMENT AND, EXCEPT AS OTHERWISE PROVIDED IN
SUCH AGREEMENT, (A) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933 AND THE RULES AND
REGULATIONS IN EFFECT THEREUNDER AND ALL APPLICABLE STATE
SECURITIES OR "BLUE SKY" LAWS (SUCH FEDERAL AND STATE LAWS,
THE "SECURITIES LAWS") OR (B) IF THE COMPANY HAS BEEN
FURNISHED WITH AN OPINION OF COUNSEL FOR THE SHAREHOLDER,
WHICH OPINION AND COUNSEL SHALL BE REASONABLY SATISFACTORY TO
THE COMPANY, TO THE EFFECT THAT SUCH TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
LAWS.
All Shareholders shall be bound by the requirements of such legends to
the extent that such legends are applicable. Upon a Registration of any shares
of Company Stock, the certificate representing such shares shall be replaced, at
the expense of the Company, with certificates bearing only the first of the two
legends referred to above.
ARTICLE XII
APPOINTMENT OF AGENTS
12.1 APPOINTMENT OF AGENT FOR WINDWARD GROUP MATTERS
(a) Each member of the Windward Group hereby irrevocably (subject to the
provisions of Section 12.1(d) below) designates and appoints Windward as its
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attorney-in-fact, agent and representative, to act on its behalf and on behalf
of its Permitted Transferees, (i) in connection with exercising any of its
rights hereunder, performing any of its duties or obligations hereunder or
enforcing any claims or rights on its behalf under this Agreement, (ii) to
investigate, contest, litigate, demand, ▇▇▇ for, collect, recover and receive
all claims, debts, monies and other amounts whatsoever which may hereafter
become due to the members of the Windward Group in connection with this
Agreement (including, without limitation, instituting any action, suit or legal
proceeding to enforce any of its rights hereunder) and to make, execute and
deliver receipts, releases, settlements, adjustments and other discharges
therefor, (iii) to defend, settle, adjust, submit to arbitration or compromise
all actions, suits, accounts, reckonings, claims and demands that may be brought
against the members of the Windward Group in connection with this Agreement
(including, without limitation, defending, or settling any claims brought by the
Company, the Majority Roll-Over Shareholders, any Other Shareholders or any of
the other parties hereto in connection with this Agreement), (iv) to amend,
supplement or grant any waiver under, this Agreement or any other agreement or
document contemplated hereby, (v) to vote at any annual or special meeting of
shareholders, or to take action by written consent in lieu of such meeting with
respect to, all of the shares of Company Stock owned or held of record by such
Shareholder, but only for (1) the election of directors designated in accordance
with Section 2.2 hereof, (2) the removal of directors in accordance with
Sections 2.4 and 2.5 hereof, and (3) the election of a director to fill any
vacancy on the Board in accordance with Section 2.3 hereof, (vi) in executing,
acknowledging, verifying and/or delivering any and all agreements, certificates
and instruments in connection with taking any of the actions referred to in
clauses (i), (ii), (iii), (iv) and (v) above, and (vii) in doing, executing and
performing any other act, deed, matter or thing, of any kind or nature
whatsoever, that is necessary, appropriate or advisable to enforcing any claims
or rights under this Agreement or performing any of its duties or obligations
hereunder or otherwise representing its interests hereunder; all of the
foregoing actions may be taken in such manner as Windward determines in its sole
discretion to be appropriate, advisable or necessary, provided however that the
foregoing designation and appointment shall not apply in the event of willful
misconduct or gross negligence on the part of the Windward).
(b) The designation and appointment of Windward referred to in the
previous paragraph (a) shall be deemed to be irrevocable (subject to the
provisions of paragraph (d) below, provided however that the foregoing
designation and appointment shall not apply in the event of willful misconduct
or gross negligence on the part of Windward) and coupled with an interest and
shall survive the death, dissolution, bankruptcy, incompetency or legal
disability of any member of the
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Windward Group. Without limitation to the foregoing and notwithstanding anything
to the contrary contained in this Agreement, if any payments or other amounts
are received by Windward on behalf of the members of the Windward Group from the
Company, the Majority Roll-Over Shareholders, any Other Shareholders or any of
the other parties hereto in connection with this Agreement, Windward shall,
after deducting any expense reimbursement amounts with which it may be entitled,
distribute such amounts to the various members of the Windward Group in such
manner as Windward deems reasonably appropriate in light of each member's
relevant interests and the particular circumstances.
(c) Each of the parties to this Agreement acknowledges and agrees that,
notwithstanding anything in this Agreement to the contrary, the provisions of
this Section 12.1 may be amended, modified or supplemented by the members of the
Windward Group holding a majority of dollar amount of the Company Stock held by
all the members of the Windward Group (such majority, the "Requisite Members")
provided that (i) such amendment, modification or supplement is in writing and
copies thereof are provided to the other parties to this Agreement within a
reasonable period following the date of such amendment, modification or
supplement and (ii) such amendment, modification or supplement does not
adversely affect any of the rights, duties or obligations of any party to this
Agreement (other than the members of the Windward Group). Other than Windward
(or any successor thereof appointed pursuant to Section 12.1(d) hereof and other
than any actions taken at the request or with the consent of Windward or such
successor, each of the members of the Windward Group agrees that it will not
take any action, nor institute any actions or proceedings, against the Company,
the Majority Roll-Over Shareholders, the Other Shareholders or any of the other
parties hereto (other than another member of the Windward Group) in connection
with this Agreement or with respect to any matters referred to in this
Agreement, except with the prior written consent of the Requisite Members.
(d) Windward (or any successor thereof appointed pursuant to this
Section 12.1(d)) may resign from the performance of all its functions and duties
as agent on behalf of the Windward Group under this Agreement at any time by
giving at least 30 Business Days' prior written notice to the other parties to
this Agreement. Such resignation shall take effect upon the acceptance by a
successor agent of its appointment pursuant to this Section 12.1(d). Upon any
such notice of resignation by Windward (or any such successor thereof), the
Requisite Members shall appoint a successor agent. If a successor agent shall
not have been so appointed within said 30 Business Day period, Windward (or any
duly appointed successor thereof) shall then appoint a successor who shall serve
as agent on behalf of the Windward Group under this Agreement until such time,
if any, as the Requisite members appoint a successor
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agent as provided in this Section 12.1(d). Windward (or any successor thereof
appointed pursuant to this Section 12.1(d)) may be removed by the Requisite
Members and replaced with another person, at any time and for any reason, upon
ten (10) days prior written notice given by the Requisite Members to the agent
then in effect and all other parties to this Agreement. Upon the appointment of
a successor agent hereunder, references in this Agreement to Windward, acting in
its role as agent for the Windward Group, shall, for all purposes of this
Agreement, thereafter mean such successor agent.
(e) In the event that any member of the Windward Group does not opt to
purchase its allocable share of Company Stock pursuant to the exercise of any
preemptive rights pursuant to Article VI hereof or the right of first refusal in
Article III, or sell its allocable shares pursuant to the "tag-along" rights in
Article IV, Windward (or any successor thereof appointed pursuant to Section
12.1(d) above) may reallocate such shares among the remaining members of the
Windward Group on a pro rata basis and, in the event that any of the remaining
members of the Windward Group does not opt to so purchase its pro rata amount of
shares of Company Stock, in such manner as it deems reasonably appropriate in
light of each member's relevant interests and the particular circumstances.
12.2 APPOINTMENT OF AGENT FOR THE MAJORITY ROLL-OVER SHAREHOLDERS AND OTHER
SHAREHOLDERS
Each Majority Roll-Over Shareholder hereby irrevocably designates and
appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as its attorney-in-fact, agent and representative, to
act on its behalf and on behalf of its Permitted Transferees in connection with
exercising any of its rights, performing any of its duties or obligations or
enforcing any claims or rights on its behalf, arising pursuant to Article IX of
this Agreement.
12.3 CERTAIN WINDWARD GROUP MATTERS
Notwithstanding anything in this Agreement to the contrary, each member
of the Windward Group agrees (as among themselves) not to discriminate among
themselves with respect to their respective transactions involving Company Stock
such that the benefit of such transactions can be shared by the members of the
Windward Group on a pro rata basis in accordance with their respective
percentage ownership of Company Stock at the time of such transactions.
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ARTICLE XIII
TERM OF AGREEMENT
13.1 TERM
This Agreement shall terminate, and be of no further force or effect,
automatically without any further action on the part of any parties hereto, upon
the earlier of (a) the ten (10) year anniversary of the date hereof, (b) an IPO
Event, (c) a sale of all or substantially all of the assets or equity interests
in the Company to a Third Party (whether by merger, consolidation, sale of
assets or securities or otherwise), (d) approval by the Windward Agent, WCI and
by those Majority Roll-Over Shareholders who hold at least a majority of the
total amount of the then-outstanding Company Stock held by Majority Roll-Over
Shareholders at such time, or (e) the Windward Group (together with its
Permitted Transferees) ceases to own at least five percent (5%) of the total
outstanding number of shares of Company Stock (calculated on a Fully-Diluted
Basis), unless such reduction is the result of any Transfers to Permitted
Transferees in accordance with this Agreement; provided that, in the event of an
IPO Event, the provisions of Articles VIII, IX, X, XI, XII, XIII and XIV (other
than Section 14.1) of this Agreement shall continue in full force and effect
until the earliest to occur of the events set forth in clauses (a), (c), (d) or
(e).
ARTICLE XIV
MISCELLANEOUS
14.1 CONFIDENTIALITY
Except with the prior written consent of the Company (which consent may
not be unreasonably withheld) and except as otherwise required by law or the
listing requirements of any securities exchange on which the securities of such
Shareholder are then traded, each Shareholder shall, and shall cause each of its
Representatives to (a) hold in strict confidence all confidential, proprietary
or other non-public information or trade secrets relating to the Company or its
subsidiaries or their respective assets or operations (the "Confidential
Information"), and (b) not release or disclose in any manner whatsoever to any
other person any such Confidential Information; provided that (i) the foregoing
provisions shall not apply to any disclosure, to the extent reasonably required,
to (A) those of such Shareholder's auditors, attorneys and other representatives
who agree to be bound by the provisions of this Section 8.1, (B) any other
persons in connection with any actions to be taken pursuant to Article V of this
Agreement, (C) any federal or state regulatory authority having jurisdiction
over such Shareholder, (D) the National Association of Insurance Commissioners
or any similar organization, or any nationally recognized rating agency
-53-
that requires access to information about such Shareholder's investment
portfolio, (ii) the foregoing provisions shall not apply where such Shareholder
or any of its Representatives is compelled to disclose such Confidential
Information, by judicial or administrative process or, in the reasonable opinion
of its counsel, by other requirements of law (provided that prior written notice
of such disclosure is given to the Company and any such disclosure is limited to
only that portion of the Confidential Information which such person is compelled
to disclose), (iii) the term "Confidential Information" shall not include
information (A) which is or becomes generally available to the public other than
as a result of disclosure of such information by such Shareholder or any of its
Representatives, (B) becomes available to the recipient of such information on a
non-confidential basis from a source which is not, to the recipient's knowledge,
bound by a confidentiality or other similar agreement, or by any other legal,
contractual or fiduciary obligation which prohibits disclosure of such
information to the other parties hereto, or (C) which can be demonstrated to
have been developed independently by the representatives of such recipient which
representatives have not had any access to any information which would otherwise
be deemed to be "Confidential Information" pursuant to the provisions of this
Section 8.1, and (iv) each of the Shareholders acknowledges and agrees that any
information they may receive from the Company in its reports to shareholders is
confidential, proprietary and non-public in nature.
14.2 SPECIFIC PERFORMANCE
Each of the Shareholders acknowledges and agrees that in the event of
any breach of this Agreement, the non-breaching party or parties would be
irreparably harmed, no adequate remedy at law would exist and damages would be
difficult to determine. It is accordingly agreed that in the event of a breach
of any provision of this Agreement, the aggrieved party shall be entitled to
specific performance of this Agreement and to enjoin any continuing breach of
this Agreement (without the necessity of proving actual damages and without
posting bond or other security), in addition to any other remedy to which such
aggrieved party may be entitled at law or in equity, and (y) the Shareholders
will waive the defense in any action for specific performance or other equitable
relief that a remedy at law would be adequate.
14.3 CONSENT TO JURISDICTION ETC.
Each of the parties hereto irrevocably and unconditionally (a) agrees
that all suits, actions or other legal proceedings arising out of this Agreement
or any of the transactions contemplated hereby (a "Suit") may be brought and
adjudicated in the United States District Court in the State of New York, or, if
such courts will not accept jurisdiction, in any court of competent civil
jurisdiction sitting in the State of
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New York, (b) submits to the non-exclusive jurisdiction of any such court for
the purpose of any such Suit and (c) waives and agrees not to assert by way of
motion, as a defense or otherwise in any such Suit, any claims that it is not
subject to the jurisdiction of the above courts, that such Suit is brought in an
inconvenient forum or that the venue of such Suit is improper. Each of the
parties hereto also irrevocably and unconditionally consents to the service of
any process, summons, pleadings, notices or other papers in a manner permitted
by the notice provisions of Section 14.7 hereof and agrees that any such form of
service shall be effective in connection with any such Suit; provided that
nothing contained herein shall affect the right of any party to serve process,
pleadings, notices or other papers in any other manner permitted by applicable
Law. Each of the parties hereto also agrees that any final and unappealable
judgment against a party hereto in any Suit shall be conclusive and binding on
such party and that such judgment may be enforced in any other jurisdiction,
either within or outside of the United States, by suit on the judgment, a
certified or exemplified copy of which shall be conclusive evidence of the fact
and amount of such judgment.
14.4 ATTORNEYS' FEES
In any legal action or proceeding (including, without limitation, any
arbitration proceeding) brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, or because of an
alleged dispute, breach or default in connection with any of the provisions of
this Agreement, the successful or prevailing party or parties shall be entitled
to recover reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other available remedy or relief to which such
party or parties may be entitled.
14.5 HEADINGS; NO THIRD PARTY BENEFICIARIES
The headings and captions contained herein are for convenience of
reference only and shall not control or affect the meaning or construction of
any of the provisions hereof. Except as otherwise expressly provided herein, the
covenants, agreements and other provisions contained in this Agreement are for
the sole benefit of the parties hereto and their permitted successors and
assigns, and they shall not be construed as conferring, and are not intended to
confer, any rights, remedies or other benefits hereunder on any other persons.
Neither this Agreement nor any purchase or sale of Company Stock shall create,
or be construed or deemed to create, any right to employment in favor of any
Shareholder or any other person by the Company or any subsidiary of the Company.
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14.6 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement and understanding of the
parties hereto in respect of the subject matter contained herein, and there are
no restrictions, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings among the parties hereto with respect to the
subject matter hereof.
14.7 NOTICES
All notices and other communications given or made pursuant hereto shall
be in writing and shall be deemed duly given or made as of the date delivered or
transmitted, and shall be effective upon receipt, if delivered personally,
mailed by registered or certified mail (postage prepaid, return receipt
requested), or by Federal Express or other similar courier service to the
parties (i) at the following addresses or sent by electronic transmission to the
facsimile number specified below (or at such other address or facsimile number
for a party as shall be specified by like changes of addresses) (ii) in the case
of a Permitted Transferee, to the address set forth in the written agreement
executed pursuant to Article X hereof, or (iii) in the case of any member of
management or other employee of the Company or any of its subsidiaries who
becomes a holder of Company Stock or options to acquire Company Stock after the
date hereof, to the address set forth in the written agreement executed pursuant
to Article X hereof:
If to the Company, to it at:
Mobile Storage Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
Skadden, Arps, Meagher, Slate & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Windward or any member of the Windward Group, to:
Windward Capital Partners II, L.P.
1177 Avenue of the ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to a Majority Roll-Over Shareholder or an Other Shareholder, to:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
14.8 APPLICABLE LAW
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
AND THE PARTIES SUBJECT HERETO SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, WITHOUT GIVING
EFFECT TO THE CHOICE OF LAW PRINCIPLES THEREOF.
14.9 SEVERABILITY
The invalidity or unenforceability of any provision of this Agreement in
any jurisdiction shall not affect the validity, legality or enforceability of
the remainder of
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this Agreement in such jurisdiction or the validity, legality or enforceability
of this Agreement, including any such provision, in any other jurisdiction, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to he fullest extent permitted by law.
14.10. SUCCESSORS; ASSIGNS; TRANSFEREES; AMENDMENTS
(a) The provisions of this Agreement shall be binding upon and accrue to
the benefit of the parties hereto and their respective heirs, successors and
permitted assigns. Notwithstanding the foregoing, this Agreement may not be
amended, modified or supplemented, no waivers of, consents to or departures from
the provisions hereof may be given, and neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company or any Shareholder without the prior written consent
of (i) each of the Company and the Windward Agent (and their respective
Permitted Transferees) and (ii) the Majority Roll-Over Shareholders owning a
majority of the shares of Common Stock which are owned by all the Majority
Roll-Over Shareholders; provided, that this Agreement may be amended, modified
or supplemented by the Company, and waivers of, consents to or departures from
the provisions hereof may be given by the Company, in order to cure any
ambiguity, defect or inconsistency in this Agreement, so long as (x) such action
does not adversely affect the rights of any Shareholder in any material respect
and (y) the Company promptly notifies each Shareholder in accordance with the
provisions of Section 14.7 hereof of such action.
(b) The rights and remedies of the Shareholders and the Company under
this Agreement shall be cumulative and not exclusive of any rights or remedies
which either would otherwise have hereunder or at law or in equity or by
statute, and no failure or delay by either party in exercising any right or
remedy shall impair any such right or remedy or operate as a waiver of such
right or remedy, nor shall any single or partial exercise of any power or right
preclude such party's other or further exercise or the exercise of any other
power or right.
14.11 DEFAULTS; NO CIRCUMVENTION OF AGREEMENT
A default by any party to this Agreement in such party's compliance
with any of the conditions or covenants hereof or performance of any of the
obligations of such party hereunder shall not constitute a default by any other
party. No Shareholder or any of its Permitted Transferees may do indirectly,
through the sale of capital stock of its or their subsidiaries or otherwise,
that which is not permitted by this Agreement (including, without limitation,
the provisions of Articles III, IV and V hereof).
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14.12 FURTHER ASSURANCES
Each party hereto or person subject hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto or person subject hereto may reasonably
request in order to carry out the intent and accomplish the purposes of this
Agreement and the consummation of the transactions contemplated hereby.
14.13 COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall constitute one and the
same Agreement.
14.14 RECAPITALIZATION ETC.
Except as otherwise provided in this Agreement, the provisions of this
Agreement shall apply to any and all shares of capital stock or other securities
of the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets, or otherwise) which may be issued in respect of,
in exchange for, or in substitution of, any shares of Company Stock by reason of
any reorganization, any recapitalization, reclassification, merger,
consolidation, partial or complete liquidation, sale of assets, spin-off, stock
dividend, split, distribution to shareholders or combination of the shares of
Company Stock or any other change in the Company's capital structure, in order
to preserve fairly and equitably as far as practicable, the original rights and
obligations of the parties hereto under this Agreement.
IN WITNESS WHEREOF, this Agreement has been duly executed by each of the
parties hereto as of the date first written above.
MOBILE STORAGE GROUP, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
WINDWARD CAPITAL PARTNERS II, L.P.
By Windward Capital ▇▇ ▇▇, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
WINDWARD CAPITAL ▇▇ ▇▇, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
WINDWARD/MSG CO-INVEST, LLC
By Windward Capital ▇▇ ▇▇, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: 5200 ▇▇▇▇▇▇ Dr.
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▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇. #▇
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address:
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/s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address:
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ALCONE HOLDINGS, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Director
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Address: P.O. Box N. 4901
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Nassau, Bahamas
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BASS INTERNATIONAL, LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Director
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Address: P.O. Box N. 4901
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Nassau, Bahamas
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CAMRY INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Director
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Address: P.O. Box N. 4901
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Nassau, Bahamas
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WILDWOOD INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Director
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Address: P.O. Box N. 4901
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Nassau, Bahamas
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ZERO-SUM INVESTMENTS S.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
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Title: Director
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Address: P.O. Box N. 4901
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Nassau, Bahamas
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Signature Page for Shareholders Agreement
Date:
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(Signature of Majority Roll-Over or
Other Shareholder)
Name:
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Address:
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SPOUSAL WAIVER
________________________ [Name of spouse] hereby waives and releases any
and all equitable or legal claims and rights, actual, inchoate or contingent
which [he or she] may acquire with respect to the disposition, voting or control
of the shares of Company Stock subject to this Agreement, except for rights in
respect of the proceeds of any disposition of such Company Stock.
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(Signature of spouse)
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EXHIBIT A
FORM OF SUBORDINATED PROMISSORY NOTE
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EXHIBIT A TO SHAREHOLDERS AGREEMENT
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933; AS
AMENDED (THE "SECURITIES ACT"). NO SALE, HYPOTHECATION, TRANSFER OR OTHER
DISPOSITION OF THIS NOTE (OTHER THAN TO THE ISSUER THEREOF) MAY BE MADE UNLESS
(A) EITHER PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND (B) IN ACCORDANCE WITH THE PROVISIONS OF THIS NOTE.
JUNIOR SUBORDINATED PROMISSORY NOTE
FOR VALUE RECEIVED, the undersigned, MOBILE STORAGE GROUP, INC., a
California corporation [ALTERNATIVELY, INSERT NAME OF DESIGNEE OF COMPANY] (the
"Obligor"), hereby promises to pay to [INSERT NAME OF EMPLOYEE SHAREHOLDER OR
PERMITTED TRANSFEREE (AS THE CASE MAY BE)] (such person, or any Authorized
Transferee (as defined in Section 3 hereof) of such person, the "Holder") the
principal amount of [INSERT PRINCIPAL AMOUNT OF NOTE] ($____________), plus
interest accrued but unpaid thereon, on [INSERT DATE WHICH IS [FIFTH]
ANNIVERSARY OF THE DATE OF ISSUANCE OF THIS NOTE] (or such later date as may be
required pursuant to the terms of any financing agreement of the Company (as
defined below)). Interest on the unpaid principal amount hereof shall accrue at
an eight percent (8%) annual rate of interest, from the date hereof until
maturity, computed on the basis of a 365-day year for the actual number of days
elapsed and shall be payable semi-annually on the first day of June and December
in each year commencing with the June or December next following the issuance of
this Note (each such semiannual date, an interest Payment Date.); provided, that
in the event that, on any Interest Payment Date, the Company is permitted to
defer any repurchases of Common Stock pursuant to Section 7.3 of the
Shareholders Agreement (as defined below), the Company shall be permitted to
defer such payment of interest until the next Interest Payment Date on which it
is no longer permitted to defer any repurchases of Common Stock pursuant to
Section 7.3 of the Shareholders Agreement (at which time all interest accrued to
such date shall become due and payable).
1. SHAREHOLDERS AGREEMENT
This Note has been issued pursuant to the provisions of Article VII of
the Shareholders Agreement dated as of April ___, 2000 (the "Shareholders
Agreement"), by and among Mobile Storage Group, Inc., a California corporation
(the "Company"), Windward Capital Partners II, L.P., a Delaware limited
partnership, Windward Capital ▇▇ ▇▇, LLC, a Delaware limited liability company,
Windward Co-Invest, LLC, a Delaware limited liability company, and the
shareholders of the Company listed in the Schedule of
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Majority Roll-Over Shareholders and the Schedule of Other Shareholders attached
hereto, and such other persons or entities who or which become parties to the
Shareholders Agreement pursuant to the terms and conditions of the Shareholders
Agreement. All capitalized terms used herein and not otherwise defined herein
shall have the same meanings as set forth in the Shareholders Agreement.
2. PAYMENT OF AMOUNTS
Payments of principal and interest shall be made in lawful money of the
United States of America at the principal office of the Obligor upon
presentation of this Note for notation of such payment hereon.
3. NON-TRANSFERABILITY OF NOTE
This Note is not negotiable and may be transferred by the Holder only to
one or more of its Affiliates who agree to be bound by the transfer restrictions
hereunder (any such transferee to whom this Note is transferred in compliance
with the provisions of this Note, an "Authorized Transferee"); With respect to
any such authorized transfer, this Note is transferable only by surrender and
cancellation of this Note at the principal office of the Obligor at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or at such other
location as shall at such time be the principal office of the Obligor, by the
Holder in person or by an attorney-in-fact duly authorized in writing. Upon any
such authorized transfer a new note, in the name of such Authorized
Transferee(s), in substantially the form of this Note and for the aggregate
Signature Page for Shareholders Agreement
4. REGISTERED HOLDER
The Obligor, and any agents of the Obligor, may deem and treat the
Holder as the registered holder hereof, and as the absolute owner of this Note,
for the purpose of receiving payment of or on account of the principal of and
interest on this Note and neither the Obligor nor any such agent shall be
affected by any notice to the contrary. The Obligor, and any agent of the
Obligor, may without liability refuse to recognize any assignee or other holder
of this Note, other than any Authorized Transferee, as owner of this Note for
any and all purposes whatsoever.
5. OPTIONAL PREPAYMENT
The amounts owed under this Note are repayable (at the discretion of the
Obligor) at any time and from time to time, in whole or in part, upon notice to
the Holder given by certified mail, return receipt requested, not less than 10
Business Days prior to the date fixed for prepayment, at a prepayment price
equal to the principal amount of this Note to be prepaid, together with the
interest accrued but unpaid hereon, to the date fixed for prepayment. Any
prepayment of less than the entire principal amount of this Note (plus
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all accrued but unpaid interest thereon) shall be applied first towards the
payment of unpaid interest hereon and then to the unpaid principal hereof.
6. MANDATORY PREPAYMENT
The Obligor covenants and agrees that, within 10 Business Days following
the consummation of (a) a Compelled Sale or (b) a sale of all or substantially
all of the assets of or equity interests in the Company to a Third Party, it
shall give written notice thereof to the Holder. Subject to Section 9 hereof,
within 10 Business Days following the date of delivery of such notice the
Obligor will prepay this Note in full, at a prepayment price equal to the
outstanding principal amount of this Note, together with the interest accrued
but unpaid hereon, to the date fixed for prepayment.
7. OFFSET
The indebtedness evidenced hereunder may be reduced or offset by the
obligor in-respect of any and all indebtedness owed to the Obligor by the
Holder.
8. EVENTS OF DEFAULT
(a) Subject to the provisions of Section 9 hereof and to the proviso set
forth in the preamble hereto, an "Event of Default" occurs if: (i) the obligor
defaults in the payment of any interest on the Note when the same becomes due
and payable, and such default continues for 10 days; (ii) the Obligor defaults
in the payment of the principal of the Note when the same becomes due and
payable at the stated maturity, upon mandatory redemption, acceleration or
otherwise; or (iii) the obligor or any of its subsidiaries pursuant to or within
the meaning of any Bankruptcy Law (as defined in the Subordinated Note
Agreement): (A) commences a voluntary case; (B) consents to the entry of an
order for relief against it in an involuntary case; (C) consents to the
appointment of a custodian of it or for any substantial part of its property;
(D) makes a general assignment for the benefit of its creditors; or (E) a court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that: (1) is for relief against the Obligor in an involuntary case; (2) appoints
a custodian of the Obligor or for any substantial part of its property; or (3)
orders the winding up or liquidation of the Obligor or any of its subsidiaries,
and the order or decree remains unseated and in effect for 60 days.
(b) Subject to the provisions of Section 9 hereof, if an Event of
Default pursuant to clause (a)(iii) occurs and is continuing, then the amounts
amount owed under the Note shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Holder. Subject
to the provisions of Section 9 hereof, upon an Event of Default pursuant to
clauses (a)(i) or (a)(ii) above, the Holder, at its option, may declare the
entire principal amount of this Note to be, and such Note shall forthwith mature
and become, due and payable, but only after such Holder notifies the
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Obligor of the default and the Obligor does not cure the default within 30 days
after receipt of such notice; such notice by the Holder must specify the default
and demand that it be remedied.
9. SUBORDINATION
The principal amount of and the interest on this Note shall be fully
subordinated and junior to the prior payment in full in cash of all Senior Debt
(as hereinafter defined) of the Obligor, whether outstanding at the date of this
Note or created or incurred by the Obligor after the date of this Note on the
terms and conditions set forth below:
(a) Upon maturity of any Senior Debt by lapse of time, acceleration or
otherwise, then all such mature Senior Debt shall first be paid in full before
any payment on account of principal or interest is made on this Note.
(b) In the event of any insolvency, bankruptcy, liquidation,
reorganization or other similar proceedings, or any receivership proceedings in
connection therewith, relative to the Obligor or its creditors or its property,
and in the event of any proceedings for partial or total liquidation,
dissolution or other winding up of the Obligor, whether or not involving
insolvency or bankruptcy proceedings, then all Senior Debt shall first be paid
in full before any payment on account of principal or interest is made upon this
Note. In any of the proceedings referred to in the first sentence of this
subparagraph (b) ("Insolvency Proceedings"), unless and until all Senior Debt
shall have been paid in full, if any payment shall have been made, or any
payment or distribution of any kind or character, whether in cash, property,
stock or obligations, which may be payable or deliverable in respect of the
principal amount of or interest on this Note shall be made, then such amounts
shall be paid or delivered directly to the holders of Senior Debt (or to a
banking institution selected by the court or person making the payment or
delivery or designated by any holder of Senior Debt) for application in payment
thereof, and the holders of Senior Debt shall be entitled to enforce all claims
of the Holder with respect to the principal and interest payable hereunder and
to take generally any action in connection with such Insolvency Proceedings
which the Holder hereof might otherwise take in respect of such Holder's claims
hereunder.
(c) During the continuance of any default in the payment of any Senior
Debt or any other default (whether or not matured) under any instrument or
agreement evidencing Senior Debt, (i) the obligor shall not make, and the Holder
shall not accept, any payment of principal of or interest on, or purchase or
acquire for value, this Note, and (ii) the Holder shall not commence any
Insolvency Proceedings or take any other legal or other action of any kind to
enforce any of its rights to payment hereunder.
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(d) Any payment of principal or interest on this Note made to or
received by the Holder other than in compliance with this Section 9 shall be
held in trust for the benefit of and paid over to the holders of Senior Debt.
(e) Until the Senior Debt shall have been indefeasibly paid in full, in
the event that, and during the continuance of any Event of Default described in
Section 8(a) hereof, all or any portion of the unpaid principal amount of this
Note shall have been declared due and payable pursuant to the provisions of
Section 8 hereof, such declarations shall not be effective until the earlier of
(i) the date on which an Event of Default under Section 8(a)(iii) has occurred,
or (ii) the date on which the maturity of any Senior Debt is accelerated.
(f) Subject to the indefeasible payment in full of all Senior Debt, the
Holder shall be subrogated to the rights of the holders of Senior Debt to
receive payments or distributions of assets of the Obligor payable or
distributable to the holders of Senior Debt, until this Note and interest hereon
shall be paid in full and, as between the Obligor, its creditors other than the
holders of Senior Debt, and the Holder, no payments or distributions otherwise
payable or deliverable in respect to this Note but, by virtue of the provisions
hereof, paid or delivered to the holders of Senior Debt shall be deemed to be a
payment by the obligor on account of Senior Debt and no payments or
distributions paid to the Holder, by virtue of subrogation herein provided for,
shall be deemed to be a payment by the Obligor on account of this Note.
(g) The provisions of this Section 9 are for the purpose of defining the
relative rights of the holders of Senior Debt on the one hand and the Holder on
the other hand, and as between the Obligor and the Holder, nothing herein shall
impair the obligation of the Obligor, which is unconditional and absolute, to
pay to the Holder the principal hereof and any interest thereon in accordance
with its terms (provided, however, that this provision is not intended to limit
the restrictions on payments on this Note set forth in Section 9(c) hereof).
(h) As used herein, the term "Senior Debt" shall mean all Debt (as
defined in the Subordinated Note Agreement) of Mobile Storage Group, Inc., a
California corporation, and subsidiaries for principal, interest, fees and other
amounts (i) with respect to or relating to the Subordinated Note Agreement, (ii)
all Senior Debt (as defined in the Subordinated Note Agreement) and Guarantor
Senior Debt (as defined in the Subordinated Note Agreement), (iii) all Debt with
respect to or relating to any refinancing, refunding, renewal, extension,
amendment or modification of any Debt referred to in clauses (i) and (ii) above.
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10. NO RECOURSE AGAINST AFFILIATES.
No recourse for the payment of principal of or interest on this Note, or
for any claim based hereon or otherwise in respect hereof, or in relation to the
creation of any indebtedness represented hereby, shall be had against any
incorporator, shareholder, officer of the Obligor or any of its Affiliates or of
any successor thereof, either directly or through the Obligor or any of its
Affiliates or any successor thereof, whether by virtue of any statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived or released.
11. APPLICABLE LAW
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES THEREOF.
12. HEADINGS: NO THIRD PARTY BENEFICIARIES
The headings and captions contained herein are for convenience of
reference only and shall not control or affect the meaning or construction of
any of the provisions hereof. Except as otherwise expressly provided herein
(including, without limitation, the subordination provisions of Section 9
hereof), the provisions contained in this Note are for the sole benefit of the
Holder, and they shall not be construed as conferring, and are not intended to
confer, any rights, remedies or other benefits hereunder on any other persons or
entities.
13. SUCCESSORS AND ASSIGNS
All covenants and agreements of the Obligor under this Note shall be
binding on the Obligor and its successors and assigns.
14. SEVERABILITY
The invalidity or unenforceability of any provision of this Note in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Note in such jurisdiction or the validity, legality or
enforceability of this Note, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
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IN WITNESS WHEREOF, the Obligor has caused this Note to be duly executed
effective as of this ___ day of ___, ____.
[INSERT NAME OF OBLIGOR]
By:
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Name:
Title:
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SCHEDULE OF MAJORITY ROLL-OVER SHAREHOLDERS
Wildwood International, Inc.
Zero-Sum Investments S.A.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
SCHEDULE OF OTHER SHAREHOLDERS
Alcone Holdings, Ltd.
Bass International, Ltd.
Camry Investments, Inc.
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