Exhibit 4.3
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT (this "Agreement"), dated as of August 29, 2003,
is among (a) CHIEF MANUFACTURING HOLDING CORP., a Delaware corporation (the
"Company"), (b) XXXXXXXX, XXXXXXXXX & XXXX CAPITAL PARTNERS, L.P., a Delaware
limited partnership ("FFL"), (c) FFL EXECUTIVE PARTNERS, L.P., a Delaware
limited partnership ("FFL-EP" and, collectively with FFL, the "FFL Investors"),
(d) the Persons on Schedule 1 hereto under the heading "Other Investors" (the
"Other Investors"), (e) the Persons listed on Schedule 1 hereto under the
heading "Management Investors" (the "Management Investors"), (f) any officer,
employee or director of the Company or any of its Subsidiaries who becomes a
party to this Agreement by executing an Instrument of Accession ("Instrument of
Accession") in the form attached hereto as Schedule 2 hereto (collectively with
the Management Investors, the "Managers"), and (g) any other Person who becomes
a party to this Agreement by executing an Instrument of Accession.
WHEREAS, the parties hereto wish to set forth their relative rights with
regard to the transfer and issuance of the Company's securities, election of the
Company's Board of Directors and certain other matters concerning the Company's
capital stock;
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
Section 1. DEFINITIONS. For all purposes of this Agreement, the following
terms shall have the meanings set forth below:
Affiliate. Affiliate shall mean, with respect to any Stockholder, any
Person directly or indirectly controlling, controlled by or under direct or
indirect common control with such Stockholder and shall include (a) any Person
who is a director or beneficial holder of at least 30% of the then outstanding
capital stock (or partnership interests or membership interests or other shares
of beneficial interest) of such Stockholder and Family Members of any such
Person, (b) any Person of which such Stockholder or an Affiliate (as defined in
clause (a) above) of such Stockholder directly or indirectly, either
beneficially owns at least 30% of the then outstanding capital stock (or
partnership interests or membership interests or other shares of beneficial
interest) or constitutes at least a 30% equity participant, (c) any Person of
which an Affiliate (as defined in clause (a) above) of such Stockholder is a
partner, director, officer or executive employee and (d) in case of a specified
Person who is an individual, Family Members of such Person. For purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlling," "controlled by" and "under direct or indirect common control
with"), as applied to any Person, means the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
that Person, whether through the ownership of voting securities, by contract or
otherwise.
Approved Sale. See Section 3.1.
Charter. Charter shall mean the Company's Certificate of Incorporation and
all amendments thereto.
Class A Common Stock. See definition of Common Stock.
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Class B Common Stock. See definition of Common Stock.
Class C Common Stock. See definition of Common Stock.
Common Equity Rights. Common Equity Rights shall mean any options, warrants
or other rights issued by the Company to acquire Common Stock.
Common Stock. Common Stock shall mean (a) the Company's Class A Voting
Common Stock, $.001 par value per share (the "Class A Common Stock""), (b) the
Company's Class B Non-Voting Common Stock, $.001 par value per share (the "Class
B Common Stock"), (c) the Company's Class C Voting Common Stock (the "Class C
Common Stock"), and (d) any shares of any other class of capital stock of the
Company hereafter issued which are (i) not preferred as to dividends or assets
over any class of stock of the Company, (ii) not subject to redemption pursuant
to the terms thereof, or (iii) issued to the holders of shares of Common Stock
upon any reclassification thereof.
Company. See Preamble.
Company Equity Securities. Company Equity Securities shall mean Preferred
Stock, Common Stock and any securities convertible into or containing options or
rights to acquire shares of Preferred Stock or Common Stock.
Disposition Event. Disposition Event means (a) (i) the sale of all or
substantially all of the assets of the Company or its Subsidiaries in a single
transaction or series of related transactions whether by liquidation,
dissolution, merger, consolidation or sale or (ii) the sale or other transfer of
at least 51% of the outstanding shares of Common Stock in a single transaction
or a series of related transactions, in either case to any Person who is not an
Affiliate of the Company, or of a stockholder thereof, immediately prior to such
transaction or transactions, or (b) the effective time of any merger, share
exchange, consolidation, or other business combination of the Company if
immediately after such transaction Persons who hold a majority of the
outstanding voting securities entitled to vote generally in the election of
directors of the surviving entity (or the entity owning 100% of such surviving
entity) are not Persons who, immediately prior to such transaction, held the
securities of the Company entitled to vote generally in the election of
directors.
Eligible Securities. Eligible Securities shall mean, at any time, (a) in
connection with a proposed transfer of Common Stock under Section 2.2, (i) all
shares of Common Stock then outstanding (other than shares of Common Stock which
at such time are specified as "Unvested Shares" under any applicable agreements
referred to in the definition of "Management Purchase Agreements" in this
Section 1 pursuant to which such shares of Common Stock were issued) and (ii)
all shares of Common Stock that are then issuable upon the exercise of the
Investor Warrants (at a time when such Investor Warrants are then exercisable),
and (b) in connection with a proposed transfer of Preferred Stock under Section
2.2, all shares of Preferred Stock then outstanding.
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Family Limited Liability Company. Family Limited Liability Company shall
mean, with respect to any individual, any limited liability company created for
the benefit of one or more of such individual's Related Persons and controlled
by such individual.
Family Limited Partnership. Family Limited Partnership shall mean, with
respect to any individual, any limited partnership created for the benefit of
one or more of such individual's Related Persons and controlled by such
individual.
Family Members. Family Members shall mean, with respect to any individual,
any Related Person, Family Trust, Family Limited Liability Company or Family
Limited Partnership of such individual.
Family Trust. Family Trust shall mean, with respect to any individual, any
trust created for the benefit of such individual or one or more of such
individual's Related Persons.
FFL. See Preamble.
FFL-EP. See Preamble.
FFL Investors. See Preamble.
FFL Securities. FFL Securities shall mean (a) the shares of Series A
Preferred Stock and Class C Common Stock issued to the FFL Investors pursuant to
the Subscription Agreements, (b) the Investors Warrants issued to the FFL
Investors pursuant to the Subscription Agreements, (c) the shares of Common
Stock issuable upon exercise of such Investor Warrants, (d) all other Company
Equity Securities purchased by, issued to or otherwise acquired by any FFL
Investor from time to time, (e) all shares of the Company's capital stock issued
or issuable upon conversion or exercise of such securities and (f) all shares of
the Company's capital stock issued with respect to such shares by way of stock
dividend or stock split or in connection with any merger, consolidation,
recapitalization or other reorganization affecting the Company's capital stock.
FFL Securities will continue to be FFL Securities in the hands of any holder and
each transferee thereof will succeed to the rights and obligations of a holder
of FFL Securities hereunder, provided that shares of FFL Securities will cease
to be FFL Securities when transferred (i) to the Company, (ii) to a Manager or
(iii) pursuant to a Public Sale.
FFL Stockholder. FFL Stockholder shall mean any FFL Investor for so long as
such Person holds FFL Securities and any other Person to whom FFL Securities are
transferred for so long as such Person holds any FFL Securities.
Fulham Investors. Fulham Investors shall mean Xxxx X. Fulham III, Xxxxxxx
X. Fulham and Xxxxx X. Xxxxxx.
Green Mountain Investor. Green Mountain Investor shall mean Green Mountain
Partners II, L.P.
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Initial Public Offering. Initial Public Offering shall mean the Company's
underwritten public offering pursuant to an effective registration statement
under the Securities Act covering the offer and sale of shares of Common Stock.
Instrument of Accession. See Preamble.
Invested Capital Amount. Invested Capital Amount shall mean, for any
Stockholder at the relevant time of determination, the aggregate dollar amount
of the consideration paid to the Company in respect of all Securities then held
by such Stockholder upon the issuance thereof by the Company, whether paid by
such Stockholder or by a previous holder of such Securities. For purposes of any
determination of the Invested Capital Amount for the Securities of any
Stockholder that were issued to such Stockholder pursuant to the Stock Purchase
Agreement, the Invested Capital Amount in respect of such Securities shall be
the dollar amount of the rollover securities delivered by such Stockholder to
the Company in exchange for such Securities pursuant to the Stock Purchase
Agreement. The Invested Capital Amount of any Stockholder at any time shall be
determined by the Board of Directors of the Company in good faith and on a
reasonable basis.
Investor Warrants. Investor Warrants shall mean, collectively, each of the
warrants to purchase Common Stock issued by the Company pursuant to the
Subscription Agreements and the Stock Purchase Agreement.
Major Holder. Major Holder shall mean each holder or holders of Securities
at the relevant time of determination that has an Invested Capital Amount of at
least $500,000.
Majority Class C Holders. Majority Class C Holders shall mean the holder or
holders at the relevant time of determination of fifty-one percent (51%) or more
of the number of then issued and outstanding shares of Class C Common Stock
(determined on a fully-diluted basis).
Majority FFL Holders. Majority FFL Holders shall mean the holder or holders
at the relevant time of determination of fifty-one percent (51%) or more of the
number of then issued and outstanding shares of Common Stock included in the FFL
Securities (determined on a fully-diluted basis).
Majority Fulham Holders. Majority Fulham Holders shall mean the holder or
holders at the relevant time of determination of fifty-one percent (51%) or more
of the number of then issued and outstanding shares of Common Stock held by the
Fulham Investors and their Affiliates (determined on a fully-diluted basis).
Majority Green Mountain Holders. Majority Green Mountain Holders shall mean
the holder or holders at the relevant time of determination of fifty-one percent
(51%) or more of the number of then issued and outstanding shares of Common
Stock held by the Green Mountain Investor and its Affiliates (determined on a
fully-diluted basis).
Management Investors. See Preamble.
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Management Purchase Agreements. Management Purchase Agreements shall mean
any agreements entered into from time to time between the Company and any
Management Stockholder entitling or requiring the Company to repurchase any
Securities from such Management Stockholder for any reason, each as amended and
in effect from time to time.
Management Securities. Management Securities shall mean (a) the Series A
Preferred Stock and Common Stock issued to the Management Investors pursuant to
the Stock Purchase Agreement, (b) the Investor Warrants issued to the Management
Investors pursuant to the Stock Purchase Agreement, (c) the shares of Common
Stock issuable upon exercise of such Investor Warrants, (d) the shares of Class
B Common Stock issued to the Managers pursuant to the Stock Purchase Agreement,
(e) the shares of Preferred Stock and Common Stock held by or issued to the
Managers from time to time in accordance with the Management Purchase Agreements
and upon exercise of Stock Options issued to the Managers pursuant to the Stock
Option Agreements from time to time in compliance with the terms hereof, (f) all
other Company Equity Securities purchased by, issued to or otherwise acquired by
any of the Managers from time to time, (g) all shares of the Company's capital
stock issued or issuable upon conversion or exercise of such securities, and (h)
all shares of the Company's capital stock issued with respect to such shares by
way of stock dividend or stock split or in connection with any merger,
consolidation, recapitalization or other reorganization affecting the Company's
capital stock. Management Securities will continue to be Management Securities
in the hands of any holder and each transferee thereof will succeed to the
rights and obligations of a holder of Management Securities hereunder, provided
that shares of Management Securities will cease to be Management Securities when
transferred (i) to the Company, (ii) to an FFL Stockholder, (iii) to an Other
Stockholder or (iv) pursuant to a Public Sale.
Management Stockholders. Management Stockholders shall mean each of the
Managers for so long as such Person holds Management Securities and any other
Person to whom Management Securities are transferred for so long as such Person
holds any Management Securities.
Managers. See Preamble.
Offer Notice. See Section 2.2.
Other Securities. Other Securities shall mean (a) all Company Equity
Securities purchased by, issued to or otherwise acquired by any of the Other
Investors or any Person who is not FFL Stockholder or a Manager, (b) all shares
of the Company's capital stock issued or issuable upon conversion or exercise of
such securities, and (c) all shares of the Company's capital stock issued with
respect to such shares by way of stock dividend or stock split or in connection
with any merger, consolidation, recapitalization or other reorganization
affecting the Company's capital stock. Other Securities will continue to be
Other Securities in the hands of any holder and each transferee thereof will
succeed to the rights and obligations of a holder of Other Securities hereunder,
provided that shares of Other Securities will cease to be Other Securities when
transferred (i) to the Company, (ii) to a Manager, (iii) to an FFL Stockholder
or (iv) pursuant to a Public Sale.
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Other Stockholder. Other Stockholder shall mean any Person who holds Other
Securities and any other Person to whom Other Securities are issued or
transferred for so long as such Person holds any Other Securities.
Participating Stockholders. See Section 2.2.
Person. Person shall mean an individual, partnership, limited liability
company, corporation, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
Personal Representative. Personal Representative shall mean the successor
or legal representative (including, without limitation, a guardian, executor,
administrator or conservator) of a dead or incompetent Stockholder.
Preferred Stock. Preferred Stock shall mean (a) the Company's Series A
Participating Preferred Stock, $0,001 par value per share (the "Series A
Preferred Stock"), and (b) any capital stock of the Company which is (i)
preferred as to dividends or assets over any other class of stock of the
Company, (ii) subject to redemption pursuant to the terms thereof or (iii)
issued to the holders of Preferred Stock upon any reclassification thereof.
Public Sale. Public Sale shall mean any sale of Common Stock to the public
pursuant to a public offering registered under the Securities Act or to the
public through a broker or market-maker pursuant to the provisions of Rule 144
(or any successor rule) adopted under the Securities Act.
Related Persons. Related Persons shall mean, with respect to any
individual, such individual's parents, spouse, siblings, children and
grandchildren.
Securities. Securities shall mean the FFL Securities, the Management
Securities and the Other Securities.
Securities Act. Securities Act shall mean the Securities Act of 1933, as
amended.
Series A Preferred Stock. See definition of Preferred Stock.
Stock Purchase Agreement. Stock Purchase Agreement shall mean the Stock
Purchase and Exchange Agreement, dated as of August 29, 2003, among the Company,
Chief Manufacturing Acquisition Corp., Chief Manufacturing, Inc. ("CMI"), the
stockholders of CMI and the Seller Representative named therein, as amended and
in effect from time to time.
Stockholders. Stockholders shall mean, collectively, the FFL Stockholders,
the Management Stockholders and the Other Stockholders.
Stock Options. Stock Options shall mean any options to purchase capital
stock of the Company pursuant to a Stock Option Agreement.
Stock Option Agreements. Stock Option Agreements shall mean any agreement
between the Company and any of the Managers entered into from time to time in
compliance with the
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terms hereof, pursuant to which any such Manager is awarded an option to
purchase equity in the Company, in each case as amended and in effect from time
to time.
Subscription Agreements. Subscription Agreements shall mean, collectively,
(a) the Subscription Agreement, dated as of August 29, 2003, between the Company
and FFL, and (b) the Subscription Agreement, dated as of August 29, 2003,
between the Company and FFL-EP.
Subsidiary. Subsidiary shall mean any corporation, association, trust, or
other business entity, of which the designated parent shall at any time own or
control directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes) of the outstanding shares of capital stock (or
other shares of beneficial interest) which are (a) entitled ordinarily, in the
absence of contingencies, to vote for the election of a majority of such
business entity's directors (or Persons exercising similar functions), even
though the right so to vote has been suspended by the happening of such a
contingency, or (b) entitled at the time to vote for the election of a majority
of such business entity's directors (or Person exercising similar functions),
whether or not the right so to vote exists by reason of the happening of a
contingency.
Transfer. See Section 2.1.
Transferring Stockholder. See Section 2.2.
Voting Securities. Voting Securities shall mean the shares of Class A
Common Stock, Class C Common Stock and the Series A Preferred Stock.
Section 2. RESTRICTIONS ON TRANSFER OF SECURITIES.
2.1. Transfer. No Stockholder may sell, assign, pledge or otherwise
transfer (a "Transfer") any interest in any Securities, either voluntarily or
involuntarily, by operation of law or otherwise, except:
(a) in the case of any FFL Stockholder, (i) to its Affiliates, (ii) as
a distribution to its members or partners, in the case of an FFL Stockholder
organized as a limited liability company, limited partnership or general
partnership, (iii) to any Person or Persons, provided that the aggregate number
of Securities permitted to be transferred under this clause (iii) for all such
transfers by such FFL Stockholder shall not exceed 25% of the shares of Series A
Preferred Stock, 25% of the shares of Class C Common Stock and 25% of the
warrants to purchase Common Stock (based upon the number of shares of Common
Stock for which such such warrants are exerciseable) held by such FFL
Stockholder on the date hereof, (iv) to any successor purchasing substantially
all of its assets, or (v) to any other Person so long as such FFL Stockholder
has complied with Section 2.2; or
(b) in the case of any Management Stockholder, (i) to such Management
Stockholder's Family Members, provided that (x) such Management Stockholder or
his Personal Representative retains exclusive voting control over the
transferred Securities and (y) such transferee agrees to be bound by repurchase
rights in favor of the Company identical to those contained in any applicable
Management Purchase Agreement, (ii) to such Management
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Stockholder's Personal Representative or (iii) to any other Person pursuant to
such Management Stockholder's co-sale rights under Section 2.2; or
(c) in the case of any Other Stockholder who is an individual, (i) to
such Other Stockholder's Family Members, provided that such Other Stockholder or
his Personal Representative retains exclusive voting control over the
transferred Securities, (ii) to such Other Stockholder's Personal Representative
or (iii) to any other Person pursuant to such Other Stockholder's co-sale rights
under Section 2.2; or
(d) in the case of any Other Stockholder that is not an individual,
(i) as a distribution to its members or partners, in the case of an Other
Stockholder organized as a limited liability company, limited partnership or
general partnership, (ii) to any successor purchasing substantially all of its
assets, or (iii) to any other Person pursuant to such Other Stockholder's
co-sale rights under Section 2.2; or
(e) in the case of any Stockholder, pursuant to a Public Sale or an
Approved Sale or to the Company;
provided that (x) the restrictions contained in this Section 2 will continue to
be applicable to the Securities after any Transfer pursuant to clauses (a), (b),
(c) or (d) above, and (y) the transferee of such Securities in any such Transfer
pursuant to clauses (a), (b), (c) or (d) above shall either be a party hereto or
shall have executed and delivered to the Company an Instrument of Accession.
2.2. Participation Rights. No FFL Stockholder may make a Transfer of
Securities pursuant to clause (a)(v) of Section 2.1 unless such FFL Stockholder
complies with the provisions of this Section 2.2. At least twenty (20) days
prior to any such Transfer, the transferring FFL Stockholder (the "Transferring
Stockholder") shall deliver a written notice (the "Offer Notice") to the Company
and to each of the other Stockholders. The Offer Notice will disclose in
reasonable detail the proposed number of Securities to be transferred, the class
or classes and, if applicable, series of such Securities, the proposed price,
terms and conditions of the Transfer and the identity of the transferee. Each of
the other Stockholders may elect to participate in the contemplated sale by
delivering written notice to the Transferring Stockholder within 15 days after
receipt of the Offer Notice. If any of such other Stockholders elects to
participate in such sale (the "Participating Stockholders"), each of the
Transferring Stockholder and the Participating Stockholders will be entitled to
sell in the contemplated sale a number of Eligible Securities of such class and,
if applicable, series equal to the product of (i) the fraction, the numerator of
which is the number of Eligible Securities of such class and, if applicable,
series (on a fully-diluted basis) held by such Person, and the denominator of
which is the aggregate number of Eligible Securities of such class and, if
applicable, series (on a fully-diluted basis) owned by the Transferring
Stockholder and the Participating Stockholders, multiplied by (ii) the number of
Eligible Securities of such class and, if applicable, series (on a fully-diluted
basis) to be sold in the contemplated sale.
For example, if the notice from the Transferring Stockholder contemplated a
sale of 100 shares of Class C Common Stock by the Transferring Stockholder
and the Transferring Stockholder at such time owns 300 shares of Class C
Common Stock
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constituting Eligible Securities (on a fully-diluted basis), and if one
Participating Stockholder elects to participate in such sale and such
Participating Stockholder owns 100 shares of Class A Common Stock and 100
shares of Class B Common Stock constituting Eligible Securities (on a
fully-diluted basis), such Transferring Stockholder would be entitled to
sell 60 shares of Common Stock (300/500 x 100 shares) and such
Participating Stockholder would be entitled to sell 40 shares of Common
Stock (200/500 x 100 shares).
As a condition to any Transfer by the Transferring Stockholder, the
Transferring Stockholder must obtain the agreement of the prospective
transferee(s) to the participation of all Participating Stockholders in any
contemplated sale and will not transfer any of its Securities to the prospective
transferee(s) if the prospective transferee(s) declines to allow the
participation of the Participating Stockholders on the terms specified herein.
2.3. Transfers of Securities in Breach of this Agreement. In the event
of any Transfer of Securities in breach of this Agreement, commencing
immediately upon the date of such attempted Transfer (a) such Transfer shall be
void and of no effect, (b) no dividend of any kind or any distribution pursuant
to any liquidation, redemption or otherwise shall be paid by the Company to the
purported transferee in respect of such Securities (all such rights to payment
by the transferring Stockholder and/or the purported transferee being deemed
waived), (c) the voting rights of such Securities, if any, shall terminate, and
(d) neither the transferring Stockholder nor the purported transferee shall be
entitled to exercise any rights with respect to such Securities until such
Transfer in breach of this Agreement has been rescinded.
2.4. Classes and Series of Securities. Notwithstanding anything herein
to the contrary, for purposes of this Section 2 and Section 5 hereof, all
classes of Common Stock shall be treated as a single class, and each series of
Preferred Stock shall be treated as a separate series.
Section 3. SALE OF THE COMPANY.
3.1. Approved Sale. In the event that a Disposition Event is approved
by the Company's Board of Directors and consented to by the Majority FFL Holders
(an "Approved Sale"), each Stockholder hereby waives, to the extent permitted by
applicable law, all rights to object to or dissent from such Approved Sale and
hereby agrees to consent to and raise no objection against such Approved Sale.
3.2. Obligations of Stockholders. The Company and the Stockholders
hereby agree to cooperate fully in any Approved Sale and not to take any action
prejudicial to or inconsistent with such Approved Sale. Without limiting the
generality of the foregoing, each Stockholder hereby agrees to (i) vote such
Stockholder's Securities to approve the terms of any such Approved Sale and such
matters ancillary thereto as may be necessary in the judgment of the Board of
Directors of the Company to effect such Approved Sale, (ii) waive any appraisal
rights that such Stockholder would have with respect to such Approved Sale,
(iii) in an Approved Sale structured as a sale of stock, sell all of such
Stockholder's Securities on the terms and conditions approved by the Board of
Directors of the Company and (iv) upon request, deliver
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such Stockholder's Securities (together with executed instruments of transfer)
in escrow (pending receipt of the purchase price therefor) to counsel for the
Company in such sale.
3.3. Received Consideration. The obligations of the Stockholders with
respect to any Approved Sale are subject to the satisfaction of the conditions
that (i) upon the consummation of such Approved Sale, all of the sellers of
Common Stock and Series A Preferred Stock, respectively, will receive the same
form and amount of consideration per share of Common Stock or Series A Preferred
Stock, as applicable, or if any such sellers are given an option as to the form
and amount of consideration to be received per share of Common Stock or Series A
Preferred Stock, all holders of Common Stock and Series A Preferred Stock, as
applicable, will be given the same option, (ii) the holders of Common Equity
Rights shall not be required to exercise or convert such Common Equity Rights
prior to or in connection with such Approved Sale, (iii) upon consummation of
such Approved Sale, the sellers of Common Equity Rights that have not been
exercised or converted prior to or in connection with such Approved Sale will
receive the same form and amount of consideration per share of Common Stock as
such seller would have received had such seller exercised or converted such
Common Equity Rights immediately prior to the consummation of such Approved
Sale, provided that the amount of consideration per share of Common Stock shall
be reduced by the exercise or conversion price per share that would have been
payable upon conversion or exercise thereof, (iv) any indemnification
obligations of the sellers shall be several, not joint, and shall (other than
with respect to representations and warranties with respect to enforceability of
any seller's obligations and title to Securities) be pro rata based on the value
of the proceeds received by the sellers in connection with such Approved Sale,
(v) any escrow securing indemnity obligations of the sellers shall be funded by
the Sellers pro rata based on the value of the proceeds received by the sellers
in connection with such Approved Sale and (vi) the aggregate liability of each
seller with respect to indemnification obligations in connection with such
Approved Sale shall be limited to the proceeds received by such seller in
connection with such Approved Sale. It shall be a condition to any Approved Sale
structured as a stock sale that (a) if any consideration will be received in
respect of Common Stock, then the purchaser with respect to such transaction
contemporaneously will purchase all of the outstanding shares of Series A
Preferred Stock and that each holder thereof will receive in respect of such
shares an amount of consideration per share that will have a fair market value
equal to the sum of (A) the liquidation value (as determined by the Charter) per
share of Series A Preferred Stock immediately prior to the consummation of such
Approved Sale plus (B) an amount equal to the product of (x) the number of
shares of Common Stock issuable upon conversion of a share of Series A Preferred
Stock immediately prior to the consummation of such Approved Sale multiplied by
(y) the consideration per share of Common Stock received by the holders of
Common Stock in such Approved Sale, and (b) if the aggregate consideration to be
received in respect of all outstanding shares of Series A Preferred Stock in
connection with such Approved Sale will have a fair market value that is less
than the aggregate liquidation values (as determined by the Charter) of all of
the outstanding shares of Series A Preferred Stock immediately prior to the
consummation of such Approved Sale, then the holders of Series A Preferred Stock
will receive a proportionate amount per share (based upon the respective
liquidation values (as determined by the Charter) of the outstanding shares of
Series A Preferred Stock immediately prior to the consummation of such Approved
Sale).
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3.4. Proxy. Each Stockholder hereby appoints the Majority FFL
Stockholders as such Stockholder's true and lawful proxy and attorney in
connection with any Approved Sale, with full power of substitution, to vote all
Voting Securities owned by such Stockholder or over which such Stockholder has
voting control to effectuate the agreements set forth in this Section 3 in the
event of any breach by such Stockholder of its obligations under this Section 3.
The proxies and powers granted by each Stockholder pursuant to this Section 3.4
are coupled with an interest and are given to secure the performance of such
Stockholder's duties under this Section 3. Such proxies are irrevocable for so
long as this Section 3 remains in effect and will survive the death,
incompetence or disability of any Stockholder who is an individual and the
merger, liquidation or dissolution of any Stockholder that is a corporation,
limited liability company, partnership or other entity.
Section 4. BOARD OF DIRECTORS.
4.1. Boards of Directors; Voting Agreements. (a) In any and all
elections of directors of the Company (whether at a meeting or by written
consent in lieu of a meeting), each Stockholder shall vote, or cause to be
voted, or cause such Stockholder's designees as directors to vote, all Voting
Securities owned by such Stockholder or over which such Stockholder has voting
control so as to fix the number of directors of the Company at five (5), and to
nominate and elect such five (5) directors of the Company as follows:
(i) two (2) individuals designated by the Majority Class C Holders,
who shall initially be Xxxxxxx X. Xxxxxxxxx and Xxxxx Xxxxxxx, shall
constitute the Class C Directors pursuant to Part B, Section 2(d) of
Article Fourth of the Charter and shall each be entitled to that number of
votes determined pursuant to Part B, Section 2(d) of Article Fourth of the
Charter;
(ii) one (1) individual designated by the Majority Green Mountain
Holders so long as the Green Mountain Investor and its Affiliates own, in
the aggregate, five percent (5%) or more of the then outstanding shares of
Common Stock (on a fully-diluted basis), who shall initially be Xxx
Xxxxxxx, shall constitute a Class A Director pursuant to Part B, Section
2(d) of Article Fourth of the Charter and shall each be entitled to one (1)
vote;
(iii) one (1) individual designated by the Majority Fulham Holders so
long as the Fulham Investors and their Affiliates own, in the aggregate,
five percent (5%) or more of the then outstanding shares of Common Stock
(on a fully-diluted basis), who shall initially be Xxx Fulham, shall
constitute a Class A Director pursuant to Part B, Section 2(d) of Article
Fourth of the Charter and shall each be entitled to one (1) vote; and
(iv) Xxxx Xxxxxxxx, so long as he continues to be employed by the
Company as Chief Executive Officer, and thereafter, his successor as Chief
Executive Officer of the Company, shall constitute a Class A Director
pursuant to Part B, Section 2(d) of Article Fourth of the Charter and shall
be entitled to one (1) vote.
(b) If any vacancy shall occur in the Board of Directors of the
Company as a result of death, disability, resignation or any other termination
of a director, the replacement for such vacating director shall be designated by
the Person or Persons who originally designated
-12-
such vacating director. The Person or Persons entitled to designate a director
or a replacement for a director pursuant to this Section 4.1 shall also be
entitled to designate the removal of such director, with or without cause. Each
Stockholder hereby agrees to vote or cause to be voted or cause such
Stockholder's designees as directors to vote all Voting Securities owned by such
Stockholder or over which such Stockholder has voting control so as to comply
with this Section 4.1(b).
4.2. PROXY. EACH STOCKHOLDER HEREBY GRANTS TO THE MAJORITY FFL HOLDERS
AN IRREVOCABLE PROXY, COUPLED WITH AN INTEREST, TO VOTE ALL OF THE VOTING
SECURITIES OWNED BY SUCH STOCKHOLDER OR OVER WHICH SUCH STOCKHOLDER HAS VOTING
CONTROL TO THE EXTENT NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION 4 IN
THE EVENT OF ANY BREACH BY SUCH STOCKHOLDER OF HIS, HER OR ITS OBLIGATIONS UNDER
THE VOTING AGREEMENT CONTAINED HEREIN.
4.3. Action by Stockholders. Each Stockholder further agrees that such
Stockholder will not vote any Voting Securities owned by such Stockholder or
over which such Stockholder has voting control, or take any action by written
consent, or take any other action as a stockholder of the Company, to circumvent
the voting arrangements required by this Section 4. Without limiting the
generality of the foregoing, each Stockholder agrees not to vote any Voting
Securities owned by such Stockholder or over which such Stockholder has voting
control, or take any other action as a stockholder of the Company, to approve
any corporate action or transaction by the Company not previously approved by
the Board of Directors of the Company elected in accordance with this Section 4
and the By-Laws of the Company.
4.4. Expense Reimbursement. The Company hereby agrees to pay all
reasonable expenses incurred by the directors designated pursuant to this
Section 4 in connection with their attendance at meetings of the Board of
Directors of the Company and its Subsidiaries (including all travel and lodging
expenses related thereto).
Section 5. LIMITED FIRST REFUSAL RIGHTS.
5.1. Pre-Emptive Rights. Except for the issuance of Company Equity
Securities (i) pursuant to a Public Sale, (ii) as consideration for the
acquisition of all or any substantial portion of the assets or all or any
portion of the capital stock of any Person, (iii) upon conversion of Preferred
Stock or Common Stock of another class, (iv) upon conversion or exercise of any
Common Equity Rights, (v) pursuant to any Stock Option or any other management
stock option plan or any other issuance of shares of Preferred Stock or Common
Stock to any employee, director, officer or consultant of the Company or any of
its Subsidiaries, (vi) as partial consideration for any debt financing extended
to the Company or any of its Subsidiaries or (vii) with respect to which the
Major Holders have waived their rights to purchase any securities, if the
Company authorizes the issuance and sale of any Company Equity Securities (other
than as a dividend on the outstanding Common Stock or Preferred Stock), the
Company will first offer to sell to each Major Holder a pro rata portion of such
securities equal to the percentage determined by dividing (i) the Invested
Capital Amount of such Major Holder, by (ii) the sum of the Invested Capital
Amounts for all Major Holders. Each such Major Holder
-13-
will be entitled to purchase all or part of such stock or securities at the same
price and on the same terms as such stock or securities are to be offered to any
other Persons. In the event of a sale of capital stock of the Company in units
consisting of shares of Common Stock and shares of Preferred Stock, each
Stockholder exercising any rights under this Section 5.1 shall be required to
purchase units of shares of Preferred Stock and Common Stock in the same ratio
as is proposed to be sold in such offering.
5.2. Stockholders' Exercise of Right. Each Stockholder entitled to
purchase securities under this Section 5 must exercise such Stockholder's
purchase rights hereunder within 20 days after receipt of written notice from
the Company describing in reasonable detail the stock or securities being
offered, the purchase price thereof, the payment terms, and such Stockholder's
percentage allotment.
5.3. Company's Exercise of Right. Upon the expiration of the offering
period described above, the Company will be free to sell such stock or
securities which the Stockholders entitled to purchase such stock or securities
have not elected to purchase during the 180 days following such expiration on
terms and conditions no more favorable to the purchasers thereof, in the
aggregate, than those offered to such Stockholders. Any stock or securities
offered or sold by the Company after such 180-day period must be re-offered to
the Stockholders entitled to purchase such stock or securities pursuant to the
terms of this Section 5.
Section 6. ADDITIONAL LEGEND. So long as any Securities are subject to the
provisions hereof, all certificates or instruments representing Securities will
have imprinted on them the following legend:
The shares represented by this certificate are subject to the terms of a
certain Stockholder Agreement, dated as of August 29, 2003, among the
issuer of this certificate and certain stockholders. The Stockholder
Agreement contains certain restrictive provisions relating to the voting
and transfer of shares of the stock represented hereby. A copy of the
Stockholder Agreement is on file at the Company's principal offices. Upon
written request to the Company's Secretary, a copy of the Stockholder
Agreement will be provided without charge to the holder of this
certificate.
Section 7. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
Section 8. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and thereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
-14-
Section 9. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to
the benefit of and be enforceable by the Company and the Stockholders and their
respective successors and permitted assigns.
Section 10. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
Section 11. REMEDIES. The Stockholders will be entitled to enforce their
rights under this Agreement specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages is not an adequate remedy for
any breach of the provisions of this Agreement and that any Stockholder shall
have the remedy of specific performance and/or injunctive relief in order to
enforce or prevent any violation of the provisions of this Agreement. In the
event of any dispute involving the terms of this Agreement, the prevailing party
shall be entitled to collect reasonable fees and expenses incurred by the
prevailing party in connection with such dispute from the other parties to such
dispute.
Section 12. NOTICES. Any notice provided for in this Agreement will be in
writing and will be deemed properly delivered if either personally delivered or
sent by telecopier, overnight courier or mailed certified or registered mail,
return receipt requested, postage prepaid to the recipient (a) if to any
Stockholder, at the address listed for such Stockholder in the stock records of
the Company, and (b) if to the Company, 00000 Xxxxxxx 00 Xxxxx, Xxxxx 000,
Xxxxxx, XX 00000, Attention: Xxxx Xxxxxxxx, with copies to Xxxxxxxx Xxxxxxxxx &
Xxxx, LLC, Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
telecopier number (000) 000-0000, Attention: Xxxxxxx X. Xxxxxxxxx, and to
Xxxxxxx XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, telecopier
number (000) 000-0000, Attention: Xxxxxx X. Xxxx, Esq. Any such notice shall be
effective (i) if delivered personally or by telecopier, when received, (ii) if
sent by overnight courier, when receipted for, and (iii) if mailed, 3 days after
being mailed as described above. The Company agrees to make available to each
Stockholder upon request an address list of all Stockholders to ensure correct
delivery of all notices hereunder.
Section 13. AMENDMENT AND WAIVER. No modification, amendment or waiver of
any provision of this Agreement will be effective against the Company or the
Stockholders unless such modification, amendment or waiver is approved in
writing by the Majority Class C Holders and the holders of at least fifty-one
percent (51%) of the total number of then outstanding shares of Common Stock
constituting Securities then held by all Stockholders; provided, however, that
no amendment, modification or waiver of any provision of this Agreement that
adversely affects the rights of one particular Party (as hereinafter defined) to
this Agreement in a manner different from the rights of the other Parties shall
be effective against such adversely affected Party unless approved in writing by
the holders of at least a majority of the outstanding shares of Common Stock
constituting Securities then held by all members of such Party. As used in this
Section 13, the term "Party" means any one of the following entities or groups:
(a) the Company, (b) the FFL Stockholders, (c) the Management Stockholders and
(d) the Other Stockholders. The failure of any party to enforce any of the
provisions of this Agreement will in no way be construed as a
-15-
waiver of such provisions and will not affect the right of such party thereafter
to enforce each and every provision of this Agreement in accordance with its
terms.
Section 14. EMPLOYMENT. Nothing contained in this Agreement is intended to
create for any Stockholder who is an officer, employee or director of the
Company or any of its Subsidiaries a right to continued employment with the
Company or any of its Subsidiaries or employment in the same position or on the
same terms as those currently in effect.
Section 15. TERMINATION. This Agreement will terminate upon the earliest to
occur of (a) the completion of any voluntary or involuntary liquidation or
dissolution of the Company, (b) the completion of an Initial Public Offering or
(c) the completion of a Disposition Event.
Section 16. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF
THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
Section 17. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 18. CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.
Section 19. CALCULATION OF FULLY-DILUTED EQUITY. All references herein to
calculations of the Company's equity or any type, class or series thereof "on a
fully diluted basis" or as "fully diluted" or similar terms shall mean such
equity or type, class or series thereof at any date as diluted by the issuance
of all shares of such equity or type, class or series thereof then issuable upon
the exercise or conversion of all then outstanding and exercisable warrants,
options or convertible securities pursuant to which the Company is then
obligated to issue such equity or type, class or series thereof, but
specifically excluding all shares issuable under warrants, options or
convertible securities which are not then exercisable or convertible. Anything
to the contrary notwithstanding, any calculation of "fully-diluted" Common Stock
or Class C Common Stock under this Agreement shall, at any time of
determination, include the number of shares of Class C Common Stock into which
the outstanding shares of Series A Preferred Stock are then convertible whether
or not such shares are required to be converted by the Corporation at such time.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have executed this Stockholder
Agreement on the day and year first above written.
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
Stockholder Agreement
XXXXXXXX, XXXXXXXXX & XXXX CAPITAL
PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Managing Member
Stockholder Agreement
FFL EXECUTIVE PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its General Partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Senior Managing Member
Stockholder Agreement
GREEN MOUNTAIN PARTNERS II, L.P.
By: Green Mountain Investors II, LLC,
its General Partner
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: XXXXX X. XXXXXX
Title: VICE PRESIDENT
Stockholder Agreement
/s/ Xxx X. Xxxxxxx
----------------------------------------
Xxx X. Xxxxxxx
Stockholder Agreement
/s/ Xxxx X. Fulham III
----------------------------------------
Xxxx X. Fulham III
Stockholder Agreement
/s/ Xxxxxxx X. Fulham
----------------------------------------
Xxxxxxx X. Fulham
Stockholder Agreement
/s/ Xxxx Xxxxxxxx
----------------------------------------
Xxxx Xxxxxxxx
Stockholder Agreement
/s/ Xxxxx X. Xxxxxx
----------------------------------------
Xxxxx X. Xxxxxx
Stockholder Agreement
/s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Stockholder Agreement
SCHEDULE 1
TO STOCKHOLDER
AGREEMENT
Other Investors
Green Mountain Partners II, L.P.
Xxxx X. Fulham, III
Xxxxxxx X. Fulham
Xxxxx X. Xxxxxx
Management Investors
Xxxx Xxxxxxxx
Xxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
SCHEDULE 2
TO STOCKHOLDER
AGREEMENT
Instrument of Accession
The undersigned,___________________________________, in order to become the
owner or holder of _______________ shares of [[Class A Voting] [Class B
Non-Voting] [Class C Voting] Common Stock, $.001 par value per share] [Series A
Preferred Stock, $.001 par value per share], of Chief Manufacturing Holding
Corp., a Delaware corporation, hereby agrees to become [an Other] [a FFL] [a
Management] Stockholder party to that certain Stockholder Agreement, dated as of
August 29, 2003 (the "Stockholder Agreement"), a copy of which is attached
hereto. This Instrument of Accession shall become a part of such Stockholder
Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Date:
----------------------------------
Accepted: ____________________________
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date:
-------------------------------
AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
AMENDMENT NO. 1 TO STOCKHOLDER AGREEMENT AND REGISTRATION RIGHTS
AGREEMENT, dated as of November 4, 2003 (this "Amendment"), by and among
Chief Manufacturing Holding Corp., a Delaware corporation (the "Company"),
Xxxxxxxx, Xxxxxxxxx & Xxxx Capital Partners, L.P., a Delaware limited
partnership ("FFL"), and FFL Executive Partners, L.P., a Delaware limited
partnership ("FFL-EP"; FFL and FFL-EP are collectively referred to herein
as the "FFL Entities").
WHEREAS, the Company, the FFL Entities and the other stockholders of the
Company have entered into a Stockholder Agreement, dated as of August 29, 2003
(the "Stockholder Agreement"), and a Registration Rights Agreement, dated as of
August 29, 2003 (the "Registration Rights Agreement")
WHEREAS, the FFL Entities have entered into agreements of purchase and
sale, each dated as of the date hereof (the "Purchase Agreements"), with each of
GM Capital Partners I, L.P., a Delaware limited partnership ("GM Capital") and
JPMorgan Chase Bank, as Trustee for First Plaza Group Trust, a trust organized
under the laws of New York (the "GM Trust"; GM Capital and the GM Trust are
collectively referred to herein as the "GM Entities"), pursuant to which the FFL
Entities will sell to the GM Entities, and the GM Entities will purchase from
the FFL Entities, the securities of the Company described therein (the
"Transferred Securities"); and
WHEREAS, it is a condition precedent to the effectiveness of the Purchase
Agreements that the Stockholder Agreement and the Registration Rights Agreement
be amended as herein provided;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. GM ENTITIES AND TRANSFERRED SECURITIES. Anything in the Stockholder
Agreement to the contrary notwithstanding, each of the GM Entities shall
constitute and be deemed an "Other Stockholder" under and for purposes of the
Stockholder Agreement, and the Transferred Securities shall constitute and be
deemed "Other Securities" under and for purposes of the Stockholder Agreement.
Anything in the Registration Rights Agreement to the contrary notwithstanding,
each of the GM Entities shall constitute and be deemed an "Other Stockholder"
under and for purposes of the Registration Rights
-2-
Agreement, and the Transferred Securities shall constitute and be deemed "Other
Registrable Securities" under and for purposes of the Registration Rights
Agreement.
2. AMENDMENTS TO STOCKHOLDER AGREEMENT. Each of the following amendments to
the Stockholder Agreement shall be effective as of the date hereof:
(A) DEFINITIONS. Section 1 of the Stockholder Agreement shall be
amended by adding the following new defined term in the appropriate
alphabetical sequence in such Section:
"ERISA. ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended."
(B) TRANSFER. Section 2.1 of the Stockholder Agreement shall be
amended by amending and restating clause (d) of such Section to read as
follows:
"(d) in the case of any Other Stockholder that is not an individual,
(i) as a distribution to its members or partners, in the case of an Other
Stockholder organized as a limited liability company, limited partnership
or general partnership, (ii) to any successor purchasing substantially all
of its assets, (iii) to any other Person pursuant to such Other
Stockholder's co-sale rights under Section 2.2, or (iv) to any successor
trust or trustee, in the case of an Other Stockholder organized as a trust;
or"
(C) SALE OF THE COMPANY; PROXY. Section 3.4 of the Stockholder
Agreement shall be amended by amending and restating the first sentence of
such Section to read as follows:
"Except where doing so would create a fiduciary relationship or would
otherwise not be permitted under ERISA, each Stockholder hereby appoints
the Majority FFL Stockholders as such Stockholder's true and lawful proxy
and attorney in connection with any Approved Sale, with full power of
substitution, to vote all Voting Securities owned by such Stockholder or
over which such Stockholder has voting control to effectuate the agreements
set forth in this Section 3 in the event of any breach by such Stockholder
of its obligations under this Section 3."
(D) BOARD OF DIRECTORS; PROXY. Section 4.2 of the Stockholder
Agreement shall be amended by amending and restating such Section to read
as follows:
"4.2 PROXY. EXCEPT WHERE DOING SO WOULD CREATE A FIDUCIARY
RELATIONSHIP OR WOULD OTHERWISE NOT BE PERMITTED UNDER ERISA, EACH
STOCKHOLDER HEREBY GRANTS TO THE MAJORITY FFL HOLDERS AN IRREVOCABLE
-3-
PROXY, COUPLED WITH AN INTEREST, TO VOTE ALL OF THE VOTING SECURITIES OWNED
BY SUCH STOCKHOLDER OR OVER WHICH SUCH STOCKHOLDER HAS VOTING CONTROL TO
THE EXTENT NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION 4 IN THE
EVENT OF ANY BREACH BY SUCH STOCKHOLDER OF HIS, HER OR ITS OBLIGATIONS
UNDER THE VOTING AGREEMENT CONTAINED HEREIN."
(E) SUCCESSORS AND ASSIGNS. Section 9 of the Stockholder Agreement
shall be amended by amending and restating such Section to read as follows:
"SECTION 9 SUCCESSORS AND ASSIGNS. This Agreement will bind and inure
to the benefit of and be enforceable by the Company and the Stockholders
and their respective successors and permitted assigns, including, in the
case of a trust, successor trusts or trustees."
3. AMENDMENT TO REGISTRATION RIGHTS AGREEMENT. Section 12 of the
Registration Rights Agreement shall be amended, effective as of the date hereof,
by amending and restating clause (g) of such Section to read as follows:
"(g) Successors and Assigns. This Agreement and the rights of any
Holder hereunder may be assigned to, and shall inure to the benefit of, any
Person, including any successor trust or trustees, to whom such Holder
transfers Registrable Securities, provided that such transfer is made in
compliance with the provisions of the Stockholder Agreement and the
transferee agrees to be bound by all of the terms and conditions of this
Agreement by executing and delivering to the Company an Instrument of
Accession."
4. COUNTERPARTS. This Amendment may be executed in any number of
counterparts (including by facsimile), each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
5. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
6. EFFECTIVENESS OF AMENDMENT. This Amendment shall become effective as of
the date hereof upon execution of counterparts of this Amendment by the parties
hereto.
7. RATIFICATION. Except as otherwise expressly provided by this Amendment,
the Stockholder Agreement and the Registration Rights Agreement and all
documents, instruments and agreements related thereto are hereby ratified and
confirmed in all respects and shall continue in full force and effect.
-4-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Stockholder Agreement and Registration Rights Agreement to be executed by their
duly authorized officers as of the date first set forth above.
COMPANY:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: PRESIDENT
FFL ENTITIES:
XXXXXXXX, XXXXXXXXX & XXXX CAPITAL
PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title:
---------------------------------
FFL EXECUTIVE PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title:
---------------------------------
AMENDMENT NO. 2 TO STOCKHOLDER AGREEMENT
AMENDMENT NO. 2 TO STOCKHOLDER AGREEMENT, dated as of September
24, 2004 (this "Amendment"), by and among Chief Manufacturing Holding
Corp., a Delaware corporation (the "Company"), and the stockholders of the
Company listed on the signature pages hereto (the "Stockholders").
WHEREAS, the Company and the Stockholders have entered into a
Stockholder Agreement, dated as of August 29, 2003 (as amended, supplemented or
otherwise modified to the date hereof, the "Stockholder Agreement"); and
WHEREAS, the Stockholders desire to amend the Stockholder
Agreement in certain respects as set forth herein; and
NOW, THEREFORE, in consideration of the foregoing premises, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
1. DEFINITIONS. Each capitalized term used in this Amendment and not
otherwise defined herein shall have the same meaning herein as in the
Stockholder Agreement.
2. AMENDMENTS TO STOCKHOLDER AGREEMENT. Each of the following
amendments to the Stockholder Agreement shall be effective as of the Effective
Date (as defined in Section 5 below):
(a) Section 1 of the Stockholder Agreement is hereby amended by
deleting in its entirety the definition "Major Holder" set forth in such
Section.
(b) Section 5 of the Stockholder Agreement is hereby amended and
restated to read in its entirety as follows:
"5.1 Pre-Emptive Rights. Except for the issuance of Company
Equity Securities (i) pursuant to a Public Sale, (ii) as consideration
for the acquisition of all or any substantial portion of the assets or
all or any portion of the capital stock of any Person, (iii) upon
conversion of Preferred Stock or Common Stock of another class, (iv)
upon conversion or exercise of any Common Equity Rights, (v) pursuant
to any Stock Option or any other management stock option plan or any
other issuance of shares of Preferred Stock or Common Stock to any
employee, director, officer or consultant of the Company or any of its
Subsidiaries or (vi) as partial consideration for any debt financing
extended to the Company or any of its Subsidiaries, if the Company
authorizes the issuance and sale of any Company Equity Securities
(other than as a dividend on the outstanding Common Stock or Preferred
Stock), the Company will first offer to sell to each Stockholder a pro
rata portion of such securities equal to the percentage determined by
dividing (a) the number of shares of Common Stock then held by such
Stockholder (determined on a fully-diluted basis), by (b) the
aggregate number of shares of Common Stock then outstanding
(determined on a fully-diluted basis). Each Stockholder will be
-2-
entitled to purchase all or part of such stock or securities at the
same price and on the same terms as such stock or securities are to be
offered to any other Persons. In the event of a sale of capital stock
of the Company in units consisting of shares of Common Stock and
shares of Preferred Stock, each Stockholder exercising any rights
under this Section 5.1 shall be required to purchase units of shares
of Preferred Stock and Common Stock in the same ratio as is proposed
to be sold in such offering.
5.2 Stockholders' Exercise of Right. Each Stockholder entitled to
purchase securities under this Section 5 must exercise such
Stockholder's purchase rights hereunder within 20 days after receipt
of written notice from the Company describing in reasonable detail the
stock or securities being offered, the purchase price thereof, the
payment terms, and such Stockholder's percentage allotment. If all of
the securities offered to the Stockholders are not fully subscribed
for by the Stockholders, the securities which are not so subscribed
for will be reoffered to the Stockholders purchasing their full
allotment upon the terms set forth in this Section 5, except that such
Stockholders must exercise their purchase rights within five (5) days
after receipt of such reoffer.
5.3 Company's Exercise of Right. Upon the expiration of the
offering period described above, the Company will be free to sell such
stock or securities which the Stockholders have not elected to
purchase during the 180 days following such expiration on terms and
conditions no more favorable to the purchasers thereof, in the
aggregate, than those offered to the Stockholders. Any stock or
securities offered or sold by the Company after such 180-day period
must be re-offered to the Stockholders pursuant to the terms of this
Section 5.
5.4. Classes of Securities. Notwithstanding anything herein to
the contrary, for purposes of this Section 5, all classes of Common
Stock shall be treated as a single class."
3. COUNTERPARTS. This Amendment may be executed in any number of
counterparts (including by facsimile), each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
4. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
5. EFFECTIVENESS OF AMENDMENT. This Amendment shall become effective
as of the date hereof (the "Effective Date") upon execution of counterparts of
this Amendment by Stockholders constituting the Majority Class C Holders and the
holders of at least fifty-one percent (51%) of the total number of outstanding
shares of Common Stock constituting Securities held by all Stockholders.
Notwithstanding the foregoing, if the "Closing" does not occur under (and as
defined in) the Stock Purchase Agreement, dated as of the date hereof, among
Chief Manufacturing, Inc., a Massachusetts corporation and a wholly-owned
subsidiary of the Company, Decade Industries, Inc. (d/b/a Sanus Systems), a
Minnesota corporation ("Sanus"), the stockholders of Sanus and the "Seller
Representative" named therein, within two (2) days after the Effective Date,
this Amendment shall immediately become null and void and
-3-
shall be of no further force or effect, without a need for any consent or
further action on the part of the Company, any of the Stockholders or any other
person or entity.
6. RATIFICATION. Except as otherwise expressly provided by this
Amendment, the Stockholder Agreement and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
No. 2 to Stockholder Agreement to be executed as of the date first set forth
above.
COMPANY:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ XXXXX XXXXXXX
------------------------------------
Name: XXXXX XXXXXXX
Title: Vice President
STOCKHOLDERS:
XXXXXXXX XXXXXXXXX & XXXX CAPITAL
PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its general partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: VICE CHAIRMAN
FFL EXECUTIVE PARTNERS, L.P.
By: Xxxxxxxx Xxxxxxxxx & Xxxx XX, LLC,
its general partner
By: /s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: XXXXXXX XXXXXXXXX
Title: VICE CHAIRMAN
signature page to Amendment No. 2 to Stockholder Agreement
/s/ Xxxx X. Fulham, III
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XXXX X. FULHAM, III
/s/ Xxxxxxx X. Fulham
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XXXXXXX X. FULHAM
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XXXXX X. XXXXXX
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XXXX XXXXXXXX
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XXX X. XXXXXXX
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XXXXXX X. XXXXXX
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XXXXX XXXX
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XXXXX XXXXXX
signature page to Amendment No. 2 to Stockholder Agreement
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XXXX X. FULHAM, III
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XXXXXXX X. FULHAM
/s/ Xxxxx X. Xxxxxx
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XXXXX X. XXXXXX
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XXXX XXXXXXXX
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XXX X. XXXXXXX
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XXXXXX X. XXXXXX
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XXXXX XXXX
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XXXXX XXXXXX
signature page to Amendment No. 2 to Stockholder Agreement
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XXXX X. FULHAM, III
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XXXXXXX X. FULHAM
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XXXXX X. XXXXXX
/s/ Xxxx Xxxxxxxx
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XXXX XXXXXXXX
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XXX X. XXXXXXX
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XXXXXX X. XXXXXX
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XXXXX XXXX
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XXXXX XXXXXX
signature page to Amendment No. 2 to Stockholder Agreement
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XXXX X. FULHAM, III
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XXXXXXX X. FULHAM
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XXXXX X. XXXXXX
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XXXX XXXXXXXX
/s/ Xxx X. Xxxxxxx
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XXX X. XXXXXXX
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XXXXXX X. XXXXXX
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XXXXX XXXX
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XXXXX XXXXXX
signature page to Amendment No. 2 to Stockholder Agreement
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XXXX X. FULHAM, III
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XXXXXXX X. FULHAM
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XXXXX X. XXXXXX
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XXXX XXXXXXXX
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XXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxx
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XXXXXX X. XXXXXX
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XXXXX XXXX
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XXXXX XXXXXX
signature page to Amendment No. 2 to Stockholder Agreement
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XXXX X. FULHAM, III
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XXXXXXX X. FULHAM
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XXXXX X. XXXXXX
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XXX X. XXXXXXX
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XXXXXX X. XXXXXX
/s/ Xxxxx Xxxx
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XXXXX XXXX
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XXXXX XXXXXX
signature page to Amendment No. 2 to Stockholder Agreement
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XXXX X. FULHAM, III
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XXXXXXX X. FULHAM
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/s/ Xxxxx Xxxxxx
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XXXXX XXXXXX
signature page to Amendment No. 2 to Stockholder Agreement
GM CAPITAL PARTNERS I, L.P.
By: GM Partners I, LLC, its General
Partner with respect to its series GM
Capital Partners I
By: General Motors Investment Management
Corporation, its Managing Member
By: /s/ R. Xxxxxxx Xxxxxxxxxx
------------------------------------
Name: R. Xxxxxxx Xxxxxxxxxx
Title: Managing Director
JPMORGAN CHASE BANK, AS TRUSTEE FOR
FIRST PLAZA GROUP TRUST, SOLELY WITH
RESPECT TO POOLS PMI 111 AND PMI 112
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXX & COMPANY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPM CONSULTING INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
signature page to Amendment No. 2 to Stockholder Agreement
GM CAPITAL PARTNERS I, L.P.
By: GM Partners I, LLC, its General
Partner with respect to its series GM
Capital Partners I
By: General Motors Investment Management
Corporation, its Managing Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPMORGAN CHASE BANK, AS TRUSTEE FOR
FIRST PLAZA GROUP TRUST, SOLELY WITH
RESPECT TO POOLS PMI 111 AND PMI 112
By: /s/ XXXX XXXXXX
------------------------------------
Name: XXXX XXXXXX
Title: ASSISTANT VICE PRESIDENT
XXXX & COMPANY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPM CONSULTING INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
signature page to Amendment No. 2 to Stockholder Agreement
GM CAPITAL PARTNERS I, L.P.
By: GM Partners I, LLC, its General
Partner with respect to its series GM
Capital Partners I
By: General Motors Investment Management
Corporation, its Managing Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPMORGAN CHASE BANK, AS TRUSTEE FOR
FIRST PLAZA GROUP TRUST, SOLELY WITH
RESPECT TO POOLS PMI 111 AND PMI 112
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXX & COMPANY, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Assistant Treasurer
JPM CONSULTING INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
signature page to Amendment No. 2 to Stockholder Agreement
GM CAPITAL PARTNERS I, L.P.
By: GM Partners I, LLC, its General
Partner with respect to its series
GM Capital Partners I
By: General Motors Investment Management
Corporation, its Managing Member
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPMORGAN CHASE BANK, AS TRUSTEE FOR
FIRST PLAZA GROUP TRUST, SOLELY WITH
RESPECT TO POOLS PMI 111 AND PMI 112
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
XXXX & COMPANY, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
JPM CONSULTING INC.
By: /s/ XXXXX X. XXXXXX
------------------------------------
Name: XXXXX X. XXXXXX
Title: OWNER
FULHAM INVESTORS, L.P.
By: Fulham Investors, GP LLC, as general
partner
By: /s/ Xxxxxxx X. Fulham
------------------------------------
Name: Xxxxxxx X. Fulham
Title: Managing Member of Fulham
Investors, GP LLC
signature page to Amendment No. 2 to Stockholder Agreement
Page 1 of 14
Instrument of Accession to Stockholder Agreement
The undersigned, Fulham Investors, LP, in order to become the owner or
holder of 1,119,792 shares of Class B Non-Voting Common Stock, $.001 par value
per share, of Chief Manufacturing Holding Corp., a Delaware corporation,' hereby
agrees to become an Other Stockholder party to that certain Stockholder
Agreement, dated as of August 29, 2003 (as amended and in effect from time to
time, the "Stockholder Agreement"), a copy of which is attached hereto. This
Instrument of Accession shall become a part of such Stockholder Agreement
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
FULHAM INVESTORS, L.P.
By: Fulham Investors, GP LLC, as general
partner
By: /s/ Xxxxxxx X. Fulham
------------------------------------
Name: Xxxxxxx X. Fulham
Title: Managing Member of Fulham
Investors, GP LLC
Address: 000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxx, XX X0000
Date: September 24, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
------------------------------------
Date: September 24, 2004
signature page to Fulham Fund Instrument of Accession to Stockholder Agreement
Page 2 of 14
Instrument of Accession to Stockholder Agreement
The undersigned, Fulham Investors, LP, in order to become the owner or
holder of 1,119,792 shares of Class B Non-Voting Common Stock, $.001 par value
per share, of Chief Manufacturing Holding Corp., a Delaware corporation,' hereby
agrees to become an Other Stockholder party to that certain Stockholder
Agreement, dated as of August 29, 2003 (as amended and in effect from time to
time, the "Stockholder Agreement"), a copy of which is attached hereto. This
Instrument of Accession shall become a part of such Stockholder Agreement
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
FULHAM INVESTORS, L.P.
By: Fulham Investors, GP LLC, as general
partner
By:
------------------------------------
Name: Xxxxxxx X. Fulham
Title: Managing Member of Fulham
Investors, GP LLC
Address:
-------------------------------
-------------------------------
Date: September __, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
------------------------------------
Date: September 24, 2004
signature page to Fulham Fund Instrument of Accession to Stockholder Agreement
Page 3 of 14
Instrument of Accession to Stockholder Agreement
The undersigned, Xxx Xxxxxxxx, in order to become the owner or holder of
529,326 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the
"Stockholder Agreement"), a copy of which is attached hereto. This Instrument of
Accession shall become a part of such Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature: /s/ Xxx Xxxxxxxx
-----------------------------
Address: 0000 Xxxxx Xxx
Xxxxx XX 00000
Date: September 24, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date: September ___,2004
signature page to Xxxxxxxx Instrument of Accession to Stockholder Agreement
Page 4 of 14
Instrument of Accession to Stockholder Agreement
The undersigned, Xxx Xxxxxxxx, in order to become the owner or holder of
529,326 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the
"Stockholder Agreement"), a copy of which is attached hereto. This Instrument of
Accession shall become a part of such Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
Date: September __, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
---------------------------------
Date: September 24, 2004
signature page to Xxxxxxxx Instrument of Accession to Stockholder Agreement
Instrument of Accession to Stockholder Agreement
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
150,000 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the
"Stockholder Agreement"), a copy of which is attached hereto. This Instrument of
Accession shall become a part of such Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature: /s/ Xxxxx Xxxxxx
-----------------------------
Address: ILLEGIBLE
Date: March 31, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
------------------------------------
Date: March 31, 2004
Instrument of Accession to Stockholder Agreement
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
150,000 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the
"Stockholder Agreement"), a copy of which is attached hereto. This Instrument of
Accession shall become a part of such Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
Date: March 31, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
------------------------------------
Date: March 31, 2004
Instrument of Accession, to Stockholder Agreement
The undersigned, Xxxxx Xxxx, in order to become the owner or holder of
150,000 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the
"Stockholder Agreement"), a copy of which is attached hereto. attached hereto.
This Instrument of Accession shall become a part of such Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature: /s/ Xxxxx Xxxx
-----------------------------
Address: ILLEGIBLE
Date: 3-17-05
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date:
-------------------------------
Instrument of Accession, to Stockholder Agreement
The undersigned, Xxxxx Xxxx, in order to become me owner or holder of
150,000 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the"
attached hereto. This Instrument of Accession shall become a part of such
Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
Date:
-------------------------------
Accepted;
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
---------------------------------
Date: 3/22/04
Page 11 of 14
Instrument of Accession to Stockholder Agreement
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
429,326 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the
"Stockholder Agreement"), a copy of which is attached hereto. This Instrument of
Accession shall become a part of such Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature: /s/ Xxxxx Xxxxxx
-----------------------------
Address: ILLEGIBLE
Date: September 24, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By:
---------------------------------
Date: September ___, 2004
signature page to Xxxxxx Instrument of Accession to Stockholder Agreement
Page 12 of 14
Instrument of Accession to Stockholder Agreement
The undersigned, Xxxxx Xxxxxx, in order to become the owner or holder of
429,326 shares of Class B Non-Voting Common Stock, $.001 par value per share, of
Chief Manufacturing Holding Corp., a Delaware corporation, hereby agrees to
become a Management Stockholder party to that certain Stockholder Agreement,
dated as of August 29, 2003 (as amended and in effect from time to time, the
"Stockholder Agreement"), a copy of which is attached hereto. This Instrument of
Accession shall become a part of such Stockholder Agreement.
Executed as of the date set forth below under the laws of The Commonwealth
of Massachusetts.
Signature:
-----------------------------
Address:
-------------------------------
-------------------------------
Date: September __, 2004
Accepted:
CHIEF MANUFACTURING HOLDING CORP.
By: /s/ ILLEGIBLE
---------------------------------
Date: September 24, 2004
signature page to Xxxxxx Instrument of Accession to Stockholder Agreement
