Exhibit 4.6
STOCKHOLDERS AGREEMENT (this "AGREEMENT") dated
as of July 22, 2002, among BPC HOLDING
CORPORATION, a Delaware corporation (the
"CORPORATION"), and those stockholders of the
Corporation listed on Schedule A attached hereto
who execute and deliver this Agreement as of the
date hereof (the "STOCKHOLDERS").
Reference is made to (a) the Agreement and Plan of Merger,
dated as of May 25, 2002 (the "MERGER AGREEMENT"), among XX Xxxxx
Acquisition Corp., GS Capital Partners 2000, L.P. ("GSCP"), GS Capital
Partners 2000 Offshore, L.P., GS Capital Partners 2000 GmbH & Co.
Beteiligungs KG, GS Capital Partners 2000 Employee Fund, L.P., Stone
Street Fund 2000, L.P. and Bridge Street Special Opportunities Fund 200,
L.P. (together with Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P.,
each, a "GOLDMAN ENTITY" and collectively, the "GOLDMAN ENTITIES"), the
Corporation, Xxxxx Plastics Corporation, a Delaware corporation ("XXXXX")
and the Sellers named therein, (b) the Registration Rights Agreement,
dated July 22, 2002 (the "REGISTRATION RIGHTS AGREEMENT"), by and among
the Corporation, the Goldman Entities and X.X. Xxxxxx Partners Global
Investors, L.P., X.X. Xxxxxx Partners Global Investors (Cayman), L.P.,
X.X. Xxxxxx Partners Global Investors (Cayman) II, L.P. and X.X. Xxxxxx
Partners Global Investors A, L.P. (collectively, the "JPMP ENTITIES"),
(c) Stockholders Agreement, dated as of June 18, 1996 (the "OLD
MANAGEMENT STOCKHOLDERS AGREEMENT"), among the Corporation and those
stockholders named therein, and (d) the Stockholders Agreement, dated as
of June 18, 1996 (the "OLD INSTITUTIONAL STOCKHOLDERS AGREEMENT" and
collectively with the Old Management Stockholders Agreement, the "OLD
STOCKHOLDERS AGREEMENTS"), among the Corporation and those stockholders
named therein. Pursuant to the Merger Agreement and certain other
documents referred to therein, XX Xxxxx Acquisition Corp. will merge with
and into the Corporation which will survive the merger (the "MERGER").
Upon the closing of the Merger, each of the Stockholders will own that
number and type of shares of capital stock of the Corporation set forth
opposite such Stockholder's name on Schedule A attached hereto. Each
such Stockholder deems it to be in the best interests of the Corporation
and the Stockholders that the Old Stockholders Agreements, effective as
of the closing of the Merger, be automatically terminated without any
action by the parties thereto or any further liability of the
Corporation, Xxxxx or any of the Goldman Entities. Accordingly, the
Corporation and the Stockholders hereby set forth their agreement with
respect to the shares of common stock owned by the Stockholders.
NOW, THEREFORE, in consideration of the premises and of the
mutual consents and obligations hereinafter set forth, the parties hereto
hereby agree as follows:
SECTION I. DEFINITIONS.
(a) DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
"ACTUAL OWNERSHIP PERCENTAGE" of any Selected Stockholder on
the date of a Section 11(a) Notice shall mean a fraction (expressed as a
percentage) (x) the numerator of which is the number of shares of Stock
owned by such Selected Stockholder on such date and (y) the denominator
of which is all outstanding shares of Stock on such date.
"ADDITIONAL PIGGYBACK RIGHTS" means piggyback rights granted by
the Corporation after the date hereof that are not inconsistent with the
rights granted in, or otherwise conflict with the terms of, this
Agreement.
"ADDITIONAL SECTION 11 SHARES" shall have the meaning set forth
in Section 11(c).
"AFFILIATE" shall mean, as to any Person, any other Person or
entity who shall directly, or indirectly through one or more
intermediaries, control, or be controlled by, or be under common control
with, such Person.
"ALL OR NOTHING SALE" shall have the meaning set forth in
Section 4(a).
"XXXXX" shall have the meaning set forth in the Preamble.
"BUSINESS DAY" shall mean a day that is not a Saturday, Sunday
or day on which banking institutions in the city to which the notice or
communication is to be sent are not required to be open.
"CAUSE" shall mean:
(i) in the case of an Employee Stockholder whose employment
with the Corporation is subject to the terms of an employment agreement
between such Employee Stockholder and the Corporation, which employment
agreement includes a definition of "Cause," the meaning set forth in such
employment agreement during the period that such employment agreement
remains in effect; and
(ii) in all other cases, the Employee Stockholder's
(a) intentional failure or refusal to perform reasonably assigned duties,
(b) dishonesty, willful misconduct or gross negligence in the performance
of the Employee Stockholder's duties, (c) involvement in a transaction in
connection with the performance of the Employee Stockholder's duties to
the Corporation which transaction is adverse to the interests of the
Corporation and which is engaged in for personal profit, (d) willful
violation of any law, rule or regulation in connection with the
performance of the Employee Stockholder's duties (other than traffic
violations or similar offenses), (e) indictment for, conviction of or
plea of no contest to any felony or other crime involving moral turpitude
or (f) action or inaction materially adversely affecting the reputation
of the Corporation.
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"COMMON STOCK" shall mean the common stock, par value $0.01 per
share, of the Corporation and any stock into which such Stock may
hereafter be changed or for which such Common Stock may be exchanged and
shall also include any Common Stock of the Corporation of any class
hereafter authorized.
"COMMON STOCK EQUIVALENT" shall mean any security exercisable
or convertible into Stock.
"CORPORATION VALUE" shall mean with respect to any public
offering of Common Stock, the amount obtained by multiplying the total
number of shares of Common Stock outstanding immediately prior to such
public offering by the gross offering price per share of Common Stock
sold in such offering.
"DELAYED NOTICE" shall have the meaning set forth in Section
11(e).
"DEEMED OPTION SHARES" of any Person on the date of a Section
11(a) Notice shall equal a fraction, (x) the numerator of which is the
difference between (i) the Fair Value Per Share at such time of the Stock
subject to the then vested and exercisable Options of such Person, minus
(ii) the exercise price of those Options, and (y) the denominator of
which is the price per share at which the Corporation has offered to sell
its Stock or Common Stock Equivalents pursuant to such Section 11(a)
Notice; provided, that the numerator shall not include any amount
attributable to any Option with a per share exercise price that exceeds
the Fair Value Per Share on such date.
"DEEMED OWNERSHIP PERCENTAGE" of any Selected Stockholder on
the date of a Section 11(a) Notice shall mean a fraction (expressed as a
percentage), (x) the numerator of which is the sum of (i) the number of
shares of Stock owned by such Selected Stockholder on such date plus (ii)
such Selected Stockholder's Deemed Option Shares calculated as of such
date, and (y) the denominator of which is the sum of (i) all outstanding
shares of Stock on such date plus (ii) all Deemed Option Shares
calculated as of such date.
"EMPLOYEE STOCKHOLDER" shall mean each of the Stockholders
executing this Agreement (other than the Goldman Entities) and shall
include any employee of the Corporation or its subsidiaries or Affiliates
who acquires Stock and agrees in writing with the parties hereto to be
bound by and to comply with the provisions of this Agreement applicable
to a Stockholder.
"EXCLUDED SHARES" means (a) any shares of Stock (or options
which may be exercised for or converted into Stock) issued pursuant to
any employee benefits plan, including any employee stock options granted
under any of the Corporation's Option Plans or otherwise, (b) shares of
Stock acquired upon exercise or conversion of any Excluded Shares or any
security with respect to which the provisions of Section 11 apply,
(c) shares of the Corporation's capital stock or Common Stock Equivalents
issued in connection with a bona fide business acquisition of another
entity in a transaction approved by the board of directors of the
Corporation, (D) SHARES OF THE CORPORATION'S CAPITAL STOCK OR COMMON
STOCK EQUIVALENTS ISSUED TO FINANCIAL INSTITUTIONS OR LESSORS IN
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CONNECTION WITH CREDIT OR EQUIPMENT FINANCING ARRANGEMENTS APPROVED BY
THE board of directors of the Corporation (e) shares of Common Stock
issued in connection with a public offering of Common Stock, (f) any
shares of the Corporation's capital stock issued as a stock dividend or
upon any stock split or other subdivision or combination of shares of the
Corporation's capital stock, (G) SHARES OF THE CORPORATION'S CAPITAL
STOCK OR COMMON STOCK EQUIVALENTS ISSUED IN CONNECTION WITH STRATEGIC
PARTNERSHIPS AND ALLIANCES APPROVED BY THE board of directors of the
Corporation and (h) any shares of Common Stock issued pursuant to the
exercise of preemptive rights granted by the Corporation to any
stockholder.
"FAIR VALUE PER SHARE" shall mean the fair value of each share
of Common Stock of the Corporation held by the Employee Stockholders, as
determined by the board of directors of the Corporation in good faith.
"GOLDMAN ENTITY" and "GOLDMAN ENTITIES" shall have the meanings
set forth in the Preamble.
"GOLDMAN STOCKHOLDER" means any Goldman Entity that owns any
shares of Stock in the Corporation.
"GROUP" shall mean with respect to any Employee Stockholder (A)
such Stockholder, (B) the spouse, parents, siblings, lineal descendants
and adopted children of such Stockholder and (C) a trust for the benefit
of any of the foregoing.
"INVESTOR DEMAND REGISTRATION RIGHTS" shall mean the demand
registration rights granted to (i) the Goldman Entities and the JPMP
Entities pursuant to the Registration Rights Agreement and (ii) such
other Persons as may be granted demand registration rights by the
Corporation.
"INVESTOR PIGGYBACK RIGHTS" shall mean piggyback registration
rights granted to the Investors.
"INVESTORS" shall mean the Goldman Entities and the JPMP
Entities and such other Persons as may be granted demand registration
rights by the Corporation.
"IPO" shall mean an initial public offering of the shares of
the Common Stock in a firm commitment underwriting effected by the
Corporation pursuant to a registration statement under the Securities
Act.
"JPMP STOCKHOLDER" shall mean any JPMP Entity that owns any
shares of Stock in the Corporation.
"MERGER AGREEMENT" shall have the meaning set forth in the
Preamble.
"OLD INSTITUTIONAL STOCKHOLDERS AGREEMENT" shall have the
meaning set forth in the Preamble.
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"OLD MANAGEMENT STOCKHOLDERS AGREEMENT" shall have the meaning
set forth in the Preamble.
"OLD STOCKHOLDERS AGREEMENTS" shall have the meaning set forth
in the Preamble.
"OPTIONS" shall mean options to purchase shares of Common Stock
granted pursuant to the Option Agreements.
"OPTION AGREEMENT" shall mean any stock option agreement
between the Corporation and an Employee Stockholder entered into pursuant
to an Option Plan.
"OPTION PLANS" shall mean any plans providing for the grant to
employees of options on securities of the Corporation, including the
Amended and Restated BPC Holding Corporation 1996 Stock Option Plan (the
"1996 STOCK OPTION PLAN") and the Corporation's 2002 Stock Option Plan,
as they may be amended from time to time.
"PERSON" shall mean any natural person, corporation,
partnership, limited liability company, firm, association, trust,
government, governmental agency or other entity, whether acting in an
individual, fiduciary or other capacity.
"QUALIFIED IPO" means any underwritten public offering of
Common Stock (pursuant to an effective registration statement filed under
the Securities Act), (a) resulting in at least $100,000,000 of gross
proceeds to the Corporation and (b) reflecting a Corporation Value of
$500,000,000 or more.
"REFUSED STOCK" shall have the meaning set forth in Section
4(b).
"REGISTRABLE SECURITIES" means shares of Common Stock and any
shares of Common Stock which were acquired by an Employee Stockholder
upon consummation of the Merger or upon exercise of the Options granted
under the 1996 Stock Option Plan and any other securities issued or
issuable with respect to such Stock by way of a share dividend or share
split or in connection with a combination of shares, recapitalization,
merger, consolidation or reorganization; PROVIDED, that any Registrable
Security will cease to be a Registrable Security when (a) a registration
statement covering such Registrable Security has been declared effective
by the SEC and such Registrable Security has been disposed of pursuant to
such effective registration statement, or (b) it is sold under
circumstances in which all of the applicable conditions of Rule 144 (or
any similar provisions then in force) under the Securities Act are met or
it is eligible for sale under such Rule 144 without respect to any volume
limitations.
"REGISTRATION EXPENSES" shall mean all expenses incurred by
the Corporation in complying with Section 8 of this Agreement, including,
without limitation, all registration and filing fees, printing expenses,
fees and disbursements of counsel and independent public accountants for
the Corporation, fees and expenses (including counsel fees) incurred in
connection with complying with state securities or "blue sky" laws, fees
of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, and the reasonable fees and
disbursements of one counsel for the sellers of Registrable Securities,
but excluding any underwriting discounts and selling commissions.
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"REPURCHASE NOTICE" shall have the meaning set forth in Section
7(b).
"SALE PERIOD" shall have the meaning set forth in Section 4(c).
"SEC" shall mean the Securities and Exchange Commission or any
successor governmental agency.
"SECTION 4 OFFER" shall have the meaning set forth in Section
4(a).
"SECTION 4 OFFER NOTICE" shall have the meaning set forth in
Section 4(a).
"SECTION 4(A) ACCEPTANCE PERIOD" shall have the meaning set
forth in Section 4(a).
"SECTION 4(B) ACCEPTANCE PERIOD" shall have the meaning set
forth in Section 4(b).
"SECTION 5 OFFER" shall have the meaning set forth in Section
5(a).
"SECTION 5 OFFEROR" shall have the meaning set forth in Section
5(a).
"SECTION 6 OFFER" shall have the meaning set forth in Section
6.
"SECTION 6 OFFEROR" shall have the meaning set forth in Section
6.
"SECTION 11(A) NOTICE" shall have the meaning set forth in
Section 11(a).
"SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any successor federal statute, and the rules and regulations
of the SEC thereunder, all as the same shall be in effect at the time.
"SECURITIES EXCHANGE ACT" shall mean the Securities Exchange
Act of 1934, as amended, or any successor federal statute, and the rules
and regulations of the SEC thereunder, all as the same shall be in effect
at the time.
"SELECTED STOCKHOLDERS" shall mean the 35 Employee Stockholders
listed on Schedule B hereto for so long as they are employed by the
Corporation.
"SELL, SALE OR SOLD" as to any Stock, shall mean (i) to sell,
or in any other way directly or indirectly to transfer, assign,
distribute, pledge, encumber or otherwise dispose of, either voluntarily
or involuntarily, such Stock and (ii) to agree to do any of the
foregoing.
"SELLING GROUP" shall mean the Group of any Stockholder
proposing to Sell its Stock or which has delivered a Section 4 Offer
Notice.
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"STOCK" shall mean (i) the outstanding shares of common stock
of the Corporation, (ii) any additional shares of common stock of the
Corporation that may be issued in the future and (iii) any shares of
capital stock of the Corporation into which such shares may be converted
or for which they may be exchanged.
"STOCKHOLDERS" shall mean those Persons identified on the
signature pages hereto as the Stockholders and shall include any other
Person who agrees in writing with the parties hereto to be bound by and
to comply with all the provisions of this Agreement applicable to a
Stockholder. Any employee of the Corporation who acquires any shares of
the capital stock of the Corporation (by exercise of an Option or
otherwise) shall execute, be bound by and comply with all the provisions
of this Agreement applicable to an Employee Stockholder.
"SUBJECT STOCK " shall have the meaning set forth in Section
4(a).
"TERMINATED EMPLOYEE STOCKHOLDER" shall have the meaning set
forth in Section 7(a).
"TERMINATION DATE" shall mean the effective date of any
termination of employment.
Any capitalized term used in any Section of this Agreement that
is not defined in this Section 1 shall have the meaning ascribed to it in
such other Section.
(b) RULES OF CONSTRUCTION. For all purposes of this Agreement unless
otherwise expressly provided:
(1) "own," "ownership," "held" and "holding" refer to ownership or
holding as record holder or record owner; and
(2) the headings and captions of this Agreement are for
convenience of reference only and shall not define, limit or
otherwise affect any of the terms hereof.
SECTION 2. OPTIONS. The parties agree that the Sale of Options, and other
terms and conditions with respect to the Options, shall be governed by the
Option Agreements and the Option Plans. Upon exercise of Options for shares
of Stock of the Corporation, such shares of Stock shall be governed by this
Agreement and the Option Agreements.
SECTION 3. LIMITATIONS ON SALES OF STOCK BY EMPLOYEE STOCKHOLDERS.
Prior to a Qualified IPO, no Employee Stockholder or his estate shall Sell
any shares of Stock, except:
(i) with the prior written consent of GSCP;
(ii) by Sale to another member of the Group to which such Employee Stockholder
belongs who or which shall (i) agree in writing in advance of such Sale
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to be bound by and to comply with the provisions of this Agreement,
including, without limitation, the restrictions regarding the purchase
and Sale of Stock contained in this Agreement and (ii) be deemed to be
such Employee Stockholder for all purposes of this Agreement, as if such
member were such Employee Stockholder with respect thereto; or
(iii) by Sale in accordance with the terms and provisions of this Agreement.
(b) Each Employee Stockholder, for so long as such Employee Stockholder is an
"officer" (as such term is defined in Rule 16a-1(f) of the Securities
Exchange Act) or a director of the Corporation or holds Registrable
Securities, hereby further agrees that, with respect to any registration
statement that the Corporation may file (other than a registration
statement on Form S-8 or any successor or similar form), if requested by
the managing underwriters, if any, in writing, it will not effect any
Sale of any Common Stock other than a transfer pursuant to Section 3(a)
or 5 and other than Common Stock, if any, included in such registration
statement, during the time period requested in such written request.
(c) Any Sale or attempted Sale of shares of Stock in violation of any
provisions of this Agreement shall be void, and the Corporation shall not
record such Sale on its books or treat any purported transferee of such
shares of Stock as the owner of such shares of Stock for any purpose.
SECTION 4. PROCEDURES ON SALE OF STOCK TO THIRD PARTIES BY EMPLOYEE
STOCKHOLDERS. Prior to a Qualified IPO, an Employee Stockholder may sell up
to ten percent (10%) of the shares of Stock held by such Employee Stockholder
on the date hereof (including shares of Stock hereafter acquired by such
Employee Stockholder pursuant to the exercise of Options which were
granted pursuant to the 1996 Stock Option Plan), provided such Employee
Stockholder shall first comply with the following procedures:
(a) The Selling Group of such Employee Stockholder shall first deliver to the
Corporation a written notice (a "SECTION 4 OFFER NOTICE"), which shall
(i) state the Selling Group's intention to Sell Stock to one or more
Persons, the amount and type of Stock intended to be Sold (the "SUBJECT
STOCK"), the proposed purchase price therefor and a summary of the other
material terms of the proposed Sale and (ii) offer the Corporation (and
the Goldman Entities, in accordance with the terms hereof) the option to
acquire all or a portion of such Subject Stock upon the terms and subject
to the conditions of the proposed Sale as set forth in the Section 4
Offer Notice (the "SECTION 4 OFFER"), provided that such Section 4 Offer
may provide that it must be accepted by the Corporation and the Goldman
Entities on an all or nothing basis (an "ALL OR NOTHING SALE"). The
Section 4 Offer shall remain open and irrevocable for the periods set
forth below (and, to the extent the Section 4 Offer is accepted during
such periods, until the consummation of the Sale contemplated by the
Section 4 Offer). The Corporation shall have the right and option, for a
period of 30 days after delivery of the Section 4 Offer Notice (the
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"SECTION 4(A) ACCEPTANCE PERIOD"), to accept all or any part of the
Subject Stock at the purchase price, in cash, and on the terms stated in
the Section 4 Offer Notice; provided, however, that, if the Section 4
Offer contemplated an All or Nothing Sale, the Corporation and the
Goldman Entities may accept, during the Section 4(a) Acceptance Period
and the Section 4(b) Acceptance Period, all, but not less than all of the
Subject Stock, at the purchase price and on the terms stated in the
Section 4 Offer Notice. The Corporation shall have the right to assign
its rights to purchase the Subject Stock pursuant to a Section 4 Offer to
any other Person. If a Section 4 Offer is accepted, notwithstanding any
assignment pursuant to the preceding sentence, the Corporation shall be
irrevocably obligated to consummate (or to have its assignees consummate)
the purchase as set forth in Section 4(d) below. Such acceptance shall
be made by delivering a written notice to the Selling Group within the
Section 4(a) Acceptance Period.
(b) If the Corporation shall fail to accept, or shall reject in writing, all
of the Subject Stock offered for Sale pursuant to the Section 4 Offer,
then, upon the earlier of the expiration of the Section 4(a) Acceptance
Period or the receipt of a written notice of rejection by the
Corporation, the Goldman Entities shall have the right and option, for a
period of 10 Business Days thereafter (the "SECTION 4(B) ACCEPTANCE
PERIOD"), to accept all or any part of the Subject Stock so offered and
not accepted by the Corporation (the "REFUSED STOCK") at the purchase
price, in cash, and on the terms stated in the Section 4 Offer Notice.
Such acceptance shall be made by delivering a written notice to the
Corporation and the Selling Group within the Section 4(b) Acceptance
Period specifying the number of shares each Goldman Entity will purchase.
(c) If effective acceptance shall not be received pursuant to Sections 4(a)
and 4(b) above with respect to all of the Subject Stock offered for Sale
pursuant to the Section 4 Offer Notice, then the Selling Group may Sell
all or any portion of the Stock so offered for Sale and not so accepted,
at a price not less than the price, and on terms not more favorable to
the purchaser thereof than the terms, stated in the Section 4 Offer
Notice at any time within 90 days after the expiration of the Section
4(b) Acceptance Period (the "SALE PERIOD"). To the extent the Selling
Group Sells all or a portion of the Stock so offered for Sale during the
Sale Period, the Selling Group shall promptly notify the Corporation, and
the Corporation shall promptly notify the Goldman Entities, as to (i) the
number of shares of Stock, if any, that the Selling Group then owns,
(ii) the number of shares of Stock that the Selling Group has Sold,
(iii) the terms of such Sale and (iv) the identity of the purchaser(s) of
any shares of Stock Sold. In the event that all of the Stock is not Sold
by the Selling Group during the Sale Period, the right of the Selling
Group to Sell such Stock shall expire and the obligations of this Section
4 shall be reinstated.
(d) All Sales of Subject Stock to the Corporation or to one or more of the
Goldman Entities subject to any one Section 4 Offer Notice shall be
consummated at the offices of the Corporation on the later of (i) a
mutually satisfactory business day within 15 days after the expiration of
the Section 4(b) Acceptance Period or (ii) the fifth business day
following the expiration or termination of all waiting periods under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended,
applicable to such sales, or at such other time and/or place as the
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parties to such sales may agree. The delivery of certificates or other
instruments evidencing such Subject Stock duly endorsed for transfer
shall be made on such date against payment of the purchase price for such
Subject Stock.
(e) Anything contained herein to the contrary notwithstanding, if any Person
purchasing Stock from an Employee Stockholder pursuant to this Section 4
is not a Stockholder, then (i) as a condition precedent to any such Sale,
such Person shall agree in writing in advance of such Sale to be bound by
and to comply with the provisions of this Agreement, including, without
limitation, the restrictions regarding the purchase and Sale of Stock
contained in this Agreement and (ii) such Person shall be deemed to be
such Employee Stockholder for all purposes of this Agreement.
SECTION 5. OBLIGATION TO SELL STOCK OR CONSENT TO MERGER, CONSOLIDATION
OR SALE OF ASSETS. (a) If (i) the Goldman Entities or the Corporation receives
a bona fide written offer from a third party that is not an Affiliate of any
Goldman Entity to purchase a majority of the then-outstanding shares of
Common Stock, (ii) the Corporation or Xxxxx receives a bona fide written
offer from a third party that is not an Affiliate of any Goldman Entity
to consolidate or merge with any Person that is not an Affiliate of any
Goldman Entity (in a consolidation or merger in which stockholders of the
Corporation receive cash or securities of any other Person upon such
consolidation or merger) or (iii) the Corporation or Xxxxx receives a
bona fide offer from a third party that is not an Affiliate of any
Goldman Entity (the third party referred to in clause (i), clause (ii) or
this clause (iii) being referred to herein as the "SECTION 5 OFFEROR") to
purchase all or substantially all of the assets of the Corporation and
its subsidiaries, in each case for a specified price payable in cash or
otherwise and on specified terms and conditions (the "SECTION 5 OFFER"),
and if the Goldman Entities or the Corporation, as the case may be,
intend to accept such Section 5 Offer, then the Goldman Entities or the
Corporation, as the case may be, shall promptly notify the Corporation
and the other Stockholders, or the Stockholders, respectively, of such
Section 5 Offer.
(b) If the Goldman Entities advise the Corporation and the other
Stockholders of its intention to accept, vote (or consent in writing, as
the case may be) in favor of or otherwise support the Section 5 Offer,
then the Goldman Entities may accept the Section 5 Offer and the other
Stockholders shall be obligated, if and to the extent requested by the
Goldman Entities or the Corporation, to Sell their Stock to the Section
5 Offeror on the terms and conditions set forth in the Section 5 Offer
(in the case of clause (i) of Section 5(a)) and/or to vote (or consent
in writing, as the case may be) in favor of the Section 5 Offer (in the
case of clause (ii) or (iii) of Section 5(a)), and shall in all other
respects support the transaction contemplated by the Section 5 Offer and
shall be obligated to cooperate in the consummation of the transaction
contemplated thereby. In addition, the other Stockholders shall not
exercise any rights of appraisal or dissenters rights that such
Stockholder may have (whether under applicable law or otherwise) or
could potentially have or acquire in connection with any transaction set
forth in Section 5(a) hereto or any proposal that is necessary or
desirable to consummate any such transaction.
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SECTION 6. RIGHT OF CO-SALE. If, prior to a Qualified IPO, the Goldman
Entities receive a bona fide offer from a third party other than any Goldman
Entity or its Affiliates (the "SECTION 6 OFFEROR") to purchase from the
Goldman Entities that number of shares which, in any one transaction or
in several transactions during any six-month period, constitutes in the
aggregate more than 33-1/3% of the total number of shares of Common Stock
(by voting power) issued and outstanding at such time, for a specified
price payable in cash or otherwise and on specified terms and conditions
(the "SECTION 6 OFFER") and the Goldman Entities wish to accept such
offer, then the Goldman Entities shall promptly forward a copy of the
Section 6 Offer to the Employee Stockholders. The Goldman Entities shall
not Sell any such Common Stock to the Section 6 Offeror unless the same
terms of the Section 6 Offer are extended to each Employee Stockholder on
a pro rata basis (being the ratio which the number of shares of Stock
owned by such Employee Stockholder at such time bears to the total number
of shares of Stock issued and outstanding).
SECTION 7. RIGHT TO REPURCHASE STOCK. (a) In the event of a termination of
the employer-employee relationship between the Corporation and/or any of its
Affiliates and any Employee Stockholder for any reason whatsoever (a
"TERMINATED EMPLOYEE STOCKHOLDER"), the Corporation or its designee shall
have the right (but not the obligation) to repurchase from such
Terminated Employee Stockholder all or part of any Stock owned by him,
including any Stock that was acquired upon the exercise of any stock
options granted pursuant to the Corporation's Option Plans (and any
shares of Stock issued in respect thereof or in exchange therefor) and
that was held by the Terminated Employee Stockholder for at least six
months after exercise.
(b) The repurchase right of the Corporation or its designee under this
Section 7 may be exercised by written notice (a "REPURCHASE NOTICE")
specifying the number of shares of Stock to be repurchased given to the
Terminated Employee Stockholder within 90 days of the Termination Date
(or, if the Corporation shall not have assigned its rights under this
Section 7 and shall be legally prevented or prevented pursuant to the
last clause of Section 7(a) from making such repurchase during such 90-
day period, then such Repurchase Notice may be delivered by the
Corporation within 90 days after the date on which it shall be legally
permitted or not so prevented to make such repurchase; provided, however,
that such right to repurchase shall expire upon the second anniversary of
the Termination Date). Upon the delivery of a Repurchase Notice to the
Terminated Employee Stockholder, the Terminated Employee Stockholder
shall be obligated to Sell to the Corporation or its designee the Stock
specified in such Repurchase Notice. The price per share of Stock to be
paid under this Section 7 shall be the Fair Value Per Share as of the
Termination Date; provided, however, that in the case of a termination
for Cause, (i) the price per share of all Stock acquired upon exercise of
any stock option granted on or after the date of the Merger pursuant to
an Option Plan shall be equal to the lower of (x) the Terminated Employee
Stockholder's original cost therefor and (y) the Fair Value Per Share
therefor and (ii) the price per share of all Stock acquired upon the
exercise of any Stock Option granted prior to the date of the Merger
pursuant to an Option Plan shall be equal to the lower of (x) the Per
Share Amount (as defined in the Merger Agreement), and (y) the Fair Value
Per Share therefor.
-11-
(c) Repurchases of Stock under the terms of this Section 7 shall be made at
the offices of the Corporation or its designee on a mutually satisfactory
business day within 15 days after delivery of the Repurchase Notice.
Delivery of certificates or other instruments evidencing such Stock duly
endorsed for transfer and free and clear of all liens, claims and other
encumbrances (other than those encumbrances hereunder) shall be made on
such date against payment of the purchase price therefor.
SECTION 8. REGISTRATION RIGHTS. (a) If the Corporation at any time proposes
to register any Stock for its own account (a "CORPORATION REGISTRATION") or
for the account of any Goldman Stockholder, any JPMP Stockholder or any
other stockholder (a "DEMAND REGISTRATION") under the Securities Act by
registration on Form X-0, X-0 or S-3 or any successor or similar form(s)
(except registrations on any such Form or similar form(s) solely for
registration of securities in connection with an employee benefit plan or
dividend reinvestment plan or a merger or consolidation or incidental to
an issuance of securities under Rule 144A under the Securities Act), it
will each such time give prompt written notice to the Employee
Stockholders of its intention to do so and of the Employee Stockholders'
rights under this Section 8. Upon the written request of an Employee
Stockholder (which request shall specify the maximum number of
Registrable Securities intended to be disposed of by such Employee
Stockholder), made as promptly as practicable and in any event within
15 Business Days after the receipt of any such notice (5 Business Days if
the Corporation states in such written notice or gives telephonic notice
to such Employee Stockholder, with written confirmation to follow
promptly thereafter, stating that (i) such registration will be on Form
S-3 and (ii) such shorter period of time is required because of a planned
filing date), the Corporation, subject to Section 8(c), shall use its
reasonable efforts to effect the registration under the Securities Act of
all Registrable Securities which the Corporation has been so requested to
register by the Employee Stockholders; PROVIDED, HOWEVER, that if, at any
time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement
filed in connection with such registration, the Corporation shall
determine for any reason not to register or to delay registration of such
securities, the Corporation shall give written notice of such
determination and its reasons thereof to the Employee Stockholders
requesting registration under this Section 8 (which such Employee
Stockholders will hold in strict confidence) and (i) in the case of a
determination not to register, shall be relieved of its obligation to
register any Registrable Securities in connection with such registration
(but not from any obligation of the Corporation to pay the Registration
Expenses in connection therewith), and (ii) in the case of a
determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for the same period as the delay
in registering such other securities. The Corporation will pay all
Registration Expenses in connection with any registration of Registrable
Securities requested pursuant to this Section 8.
(b) Each Employee Stockholder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any registration statement
pursuant to this Section 8 at any time prior to the execution of an
underwriting agreement with respect thereto by giving written notice to
the Corporation of its request to withdraw.
-12-
(c) In the case of a Corporation Registration, if the managing underwriter
of any underwritten offering shall inform the Corporation by letter of its
belief that the number of Registrable Securities requested to be included
in such registration, when added to the number of other securities to be
offered in such registration, would materially adversely affect such
offering, then the Corporation shall include in such registration, to the
extent of the total number of securities which the Corporation is so
advised can be sold in (or during the time of) such offering without so
materially adversely affecting such offering (the "SECTION 8(C) SALE
NUMBER"), securities in the following priority:
(i) FIRST, all Common Stock or securities convertible into, or
exchangeable or exercisable for, Common Stock that the Corporation
proposes to register for its own account (the "CORPORATION SECURITIES");
(ii) SECOND, to the extent that the number of Corporation
Securities to be included is less than the Section 8(c) Sale Number,
(A) all shares of Common Stock securities requested to be included by any
of the Investors pursuant to the Investor Piggyback Rights, (B) the
Registrable Securities requested to be included by the Employee
Stockholders and (C) to the extent agreed by the Corporation with any
other party, any securities to be included pursuant to the exercise of
the Additional Piggyback Rights; the securities requested to be included
pursuant to this Section 8(c)(ii)(A) through (C) shall be included on a
pro rata basis based on the number of shares of Common Stock or
Registrable Securities (in the case of the Employee Stockholders) subject
to registration rights owned by each holder requesting inclusion in
relation to the number of shares of Common Stock or Registrable
Securities (in the case of the Employee Stockholders) then owned by all
holders requesting inclusion, except that in the case of the Employee
Stockholders, the number of Registrable Securities owned by such Employee
Stockholders shall not include shares underlying any unvested options
that do not have exercise prices lower than the then Fair Value Per
Share; and
(iii) THIRD, to the extent that the number of Corporation
Securities and other securities to be included pursuant to clause (ii) of
Section 8(c) is less than the Section 8(c) Sale Number, any other
securities that the holders thereof propose to register pursuant to the
exercise of Additional Piggyback Rights that are not included in (c)(ii)
above.
(d) In the case of a Demand Registration, if the managing underwriter of
any underwritten offering shall inform the Corporation by letter of its
belief that the number of shares of Common Stock and Registrable
Securities requested to be included in such registration would materially
adversely affect such offering, then the Corporation shall include in
such registration, to the extent of the total number of securities which
the Corporation is so advised can be sold in (or during the time of) such
offering without so materially adversely affecting such offering (the
"SECTION 8(D) SALE NUMBER"), securities in the following priority:
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(i) FIRST, all the shares of Common Stock requested to be
included by the Investors in such registration pursuant to the exercise
of the Investor Demand Registration Rights;
(ii) SECOND, to the extent that the number of securities to be
included by all holders pursuant to clause (i) of this Section 8(d) is
less than the Section 8(d) Sale Number, securities that the Corporation
proposes to register;
(iii) THIRD, to the extent that the number of securities to be
included in the registration pursuant to Sections 8(d)(i) and (ii) is
less than the Section 8(d) Sale Number, (A) all shares of Common Stock
securities requested to be included by any of the Investors not
exercising their Investor Demand Registration Rights pursuant to the
Investor Piggyback Rights, (B) the Registrable Securities requested to be
included by the Employee Stockholders and (C) to the extent agreed by the
Corporation with any other party, any securities to be included pursuant
to the exercise of the Additional Piggyback Rights; the securities
requested to be included pursuant to this Section 8(d)(iii)(A) through
(C) shall be included on a pro rata basis based on the number of shares
of Common Stock or Registrable Securities (in the case of the Employee
Stockholders) subject to registration rights owned by each holder
requesting inclusion in relation to the number of shares of Common Stock
or Registrable Securities (in the case of the Employee Stockholders) then
owned by all holders requesting inclusion, except that in the case of the
Employee Stockholders, the number of Registrable Securities owned by such
Employee Stockholders shall not include any shares underlying options
that do not have exercise prices lower than the then Fair Value Per
Share; and
(iv) FOURTH, to the extent that the number of securities to be
included pursuant to Sections 8(d)(i), (ii) and (iii) is less than the
Section 8(d) Sale Number, any other securities that the holders thereof
propose to register pursuant to the exercise of Additional Piggyback
Rights that are not included in (d)(iii) above.
(e) Any participation by the Employee Stockholders in a registration by the
Corporation shall be in accordance with the plan of distribution of the
Corporation or, in the case of a Demand Registration, the Investors for
whose account Stock is being registered pursuant to the exercise of
demand registration rights, as the case may be.
(f) In connection with any proposed registered offering of securities of the
Corporation in which any Employee Stockholder has the right to include
Registrable Securities pursuant to this Section 8, such Employee
Stockholder agrees (i) to supply any information reasonably requested by
the Corporation in connection with the preparation of a registration
statement and/or any other documents relating to such registered
offering, and (ii) to execute and deliver any agreements and instruments
reasonably requested by the Corporation to effectuate such registered
offering, including, without limitation, an underwriting agreement, a
custody agreement, and indemnification agreement and a "hold back"
agreement pursuant to which such Employee Stockholder will agree not to
sell or purchase any securities of the Corporation (whether or not such
securities are otherwise governed by this Agreement) for the same period
of time following the registered offering as is agreed to by the other
-14-
holders having the right to include securities in the registered
offering. If the Corporation requests that the Employee Stockholders
take any of the actions referred to in clause (i) or (ii) of the previous
sentence, the Employee Stockholders shall take such action promptly but
in any event within five Business Days following the date of such
request.
(g) With respect to Common Stock of the Corporation issuable upon exercise of
Options granted after the date of this Agreement and not pursuant to the
1996 Stock Option Plan (the "NON-REGISTRABLE SHARES"), the Employee
Stockholders shall not have the registration rights set forth in this
Section 8. The Corporation agrees to register such Non-Registrable
Securities and the shares of Common Stock issuable upon the exercise of
Options granted under the 1996 Stock Option Plan on Form S-8 or similar
forms reasonably promptly following the closing of the Merger, to the
extent the Corporation is otherwise eligible to use such forms, solely
for registration of securities in connection with an employee benefit or
stock incentive plan.
(h) The Corporation will, if requested, prior to filing any registration
statement pursuant to this Section 8 or any amendment or supplement
thereto, furnish to the Employee Stockholders, and thereafter furnish to
the Employee Stockholders, such number of copies of such registration
statement, amendment and supplement thereto (in each case including all
exhibits thereto and documents incorporated by reference therein) and the
prospectus included in such registration statement (including each
preliminary prospectus) as the Employee Stockholders may reasonably
request in order to facilitate the sale of the Registrable Securities by
the Employee Stockholders.
SECTION 9. INDEMNIFICATION AND CONTRIBUTION. (a)The Corporation agrees to
indemnify and hold harmless each Employee Stockholder and its representatives
from and against any and all losses, claims, damages, liabilities, costs and
expenses (including attorneys' fees) caused by, arising out of, resulting
from or related to any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus
relating to the Registrable Securities (as amended or supplemented if the
Corporation shall have furnished any amendments or supplements thereto)
or any preliminary prospectus, or 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, PROVIDED, HOWEVER, that
such indemnitee shall not apply to such losses, claims, damages or
liabilities caused by, or arising out of, any such untrue statement, or
alleged untrue statement or any such omission or alleged omission, if
such statement or omission was made in reliance upon and in conformity
with information furnished in writing to the Corporation by or on behalf
of such Employee Stockholder expressly for use therein. Such indemnity
shall remain in full force and effect regardless of any investigation
made by or on behalf of any Employee Stockholder or representative of
such Employee Stockholder and shall survive the transfer of securities by
such Employee Stockholder.
(b) Each Employee Stockholder agrees to indemnify and hold harmless the
Corporation, its officers and directors and each Person (if any) that
controls the Corporation within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Corporation to each Employee
-15-
Stockholder, but only with respect to information furnished in writing by
or on behalf of such Employee Stockholder expressly for use in any
registration statement or prospectus relating to the Registrable
Securities, or any amendment or supplement thereto, or any preliminary
prospectus.
(c) In case any proceeding (including any governmental investigation) shall
be instituted involving any Person in respect of which indemnity may be
sought pursuant to Section 9(a) or Section 9(b), such Person (the
"INDEMNIFIED PARTY") shall promptly notify the Person against whom such
indemnity may be sought (the "INDEMNIFYING PARTY") in writing (PROVIDED,
that the failure of the Indemnified Party to give notice as provided
herein shall not relieve the Indemnifying Party of its obligations under
this Section 9 except to the extent the Indemnifying Party is actually
prejudiced by such failure to give notice), and the Indemnifying Party
shall be entitled to participate in such proceeding and, unless in the
reasonable opinion of outside counsel to the Indemnified Party a conflict
of interest between the Indemnified Party and Indemnifying Parties may
exist in respect of such claim, to assume the defense thereof jointly
with any other Indemnifying Party similarly notified, to the extent that
it chooses, with counsel reasonably satisfactory to such Indemnified
Party, and after notice from the Indemnifying Party to such Indemnified
Party that it so chooses, the Indemnifying Party shall not be liable to
such Indemnified Party for any legal or other expenses subsequently
incurred by such Indemnified Party in connection with the defense thereof
other than reasonable costs of investigation; provided, however, that
(i) if the Indemnifying Party fails to take reasonable steps necessary to
defend diligently the action or proceeding within 20 days after receiving
notice from such Indemnified Party that the Indemnified Party believes it
has failed to do so; or (ii) if such Indemnified Party who is a defendant
in any action or proceeding which is also brought against the
Indemnifying Party reasonably shall have concluded that there may be one
or more legal defenses available to such Indemnified Party which are not
available to the Indemnifying Party; or (iii) if representation of both
parties by the same counsel is otherwise inappropriate under applicable
standards of professional conduct, then, in any such case, the
Indemnified Party shall have the right to assume or continue its own
defense as set forth above (but with no more than one firm of counsel for
all Indemnified Parties in each jurisdiction, except to the extent any
Indemnified Party or Parties reasonably shall have concluded that there
may be legal defenses available to such party or parties which are not
available to the other Indemnified Parties or to the extent
representation of all Indemnified Parties by the same counsel is
otherwise inappropriate under applicable standards of professional
conduct) and the Indemnifying Party shall be liable for any expenses
therefor. No Indemnifying Party shall, without the written consent of
the Indemnified Party, effect the settlement or compromise of, or consent
to the entry of any judgment with respect to, any pending or threatened
action or claim in respect of which indemnification or contribution may
be sought hereunder (whether or not the Indemnified Party is an actual or
potential party to such action or claim) unless such settlement,
compromise or judgment (A) includes an unconditional release of the
Indemnified Party from all liability arising out of such action or claim
and (B) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of any Indemnified
Party.
-16-
(d) If the indemnification provided for in this Section 9 is unavailable to
an Indemnified Party in respect of any losses, claims, damages or
liabilities in respect of which indemnity is to be provided hereunder,
then each Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall to the fullest extent permitted by law contribute to the
amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages or liabilities in such proportion as is
appropriate to reflect the relative fault of such party in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Corporation (on the one hand)
and an Employee Stockholder (on the other hand) shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by such party and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Corporation and each Employee Stockholder agree that it would not be
just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation or by any other method of allocation
that does not take account of the equitable considerations referred to in
the immediately preceding paragraph. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages or
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any legal
or other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Employee Stockholder
shall be liable for indemnification or contribution pursuant to this
Section 9 for any amount in excess of the amount by which the net
proceeds of the offering received by such Employee Stockholder exceeds
the amount of any damages which such Employee Stockholder has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
SECTION 10. RULE 144. The Corporation covenants that from and after an IPO
and so long as the Common Stock is registered pursuant to Section 12(g) of
the Securities Exchange Act, it will file any reports required to be filed by
it under the Securities Act and the Securities Exchange Act and that it
will take such further action as the Employee Stockholders may reasonably
request to the extent required from time to time to enable the Employee
Stockholders to sell Registrable Securities without registration under
the Securities Act within the limitation of the exemptions provided by
Rule 144 under the Securities Act, as such Rule may be amended from time
to time, or any similar rule or regulation hereafter adopted by the SEC.
Upon the written request of any Employee Stockholder, the Corporation
will deliver to such Employee Stockholder a written statement as to
whether it has complied with such requirements.
SECTION 11. PREEMPTIVE RIGHTS. (a) Subject to Section 11(e), prior to a
Qualified IPO and in the event that the Corporation proposes to sell shares
-17-
of its Stock or Common Stock Equivalents, other than the Excluded Shares,
the Corporation shall provide the Selected Stockholders with written notice
(a "SECTION 11(A) NOTICE") thereof at least 20 Business Days prior to the
closing thereof and offer the Selected Stockholders the opportunity to
purchase on the same terms and for the same consideration as other
purchasers of such Stock or Common Stock Equivalents at the closing of
such transaction a number of shares of such Stock or Common Stock
Equivalents as will enable such Selected Stockholder to maintain its
Deemed Ownership Percentage immediately following such transaction (such
shares, the "APPLICABLE SHARES");
(b) The Selected Stockholders shall have a period of 15 Business Days after
delivery of a Section 11(a) Notice to elect to purchase the Applicable
Shares related to such Section 11(a) Notice, such election to be made by
delivery of written notice to the Corporation;
(c) A Selected Stockholder electing to purchase Applicable Shares may also
elect, by delivering written notice, together with its notice of election
to purchase such Applicable Shares pursuant to Section 11(b), to purchase
additional shares (the "ADDITIONAL SECTION 11 SHARES") of Stock or Common
Stock Equivalents of the same type as the Applicable Shares and on the
same terms and conditions and at the closing of the Applicable Shares in
an amount equal to the lesser of (x) the number of shares of Stock or
Common Stock Equivalents as would enable, immediately following the
transaction to which a Section 11(a) Notice relates, such Selected
Stockholder to maintain its Actual Ownership Percentage (without regard
to any Applicable Shares which such Selected Stockholder has elected to
purchase pursuant to Section 11(b)) as of the date of such Section 11(a)
Notice and (y) the number of Applicable Shares relating to such Section
11(a) Notice which such Selected Stockholder has elected to purchase
pursuant to Section 11(b). The Corporation shall lend to any Selected
Stockholder purchasing Additional Section 11 Shares, on a secured non-
recourse basis, pursuant to a Secured Promissory Note and Security
Agreement substantially in the form attached hereto as Exhibit A, the
funds necessary to purchase such Additional Section 11 Shares;
(d) The Selected Stockholders shall enter into such agreements concerning
the sale and purchase of Applicable Shares and Additional Section 11 Shares
to which a Section 11(a) Notice relates as are entered into by the other
purchasers of the Stock or Common Stock Equivalents to which such Section
11(a) Notice relates. The Closing of all the purchases of all the
Applicable Shares and Additional Section 11 Shares shall take place
simultaneous with the closing of the purchase by such other purchasers;
(e) Notwithstanding the foregoing, the Corporation shall not be required to
provide the advance notice described in clause (a) above and the 15-day
period described in clause (b) above, and instead may effect a
transaction otherwise subject to this Section 11 without complying with
such provisions, provided that the Corporation sets aside for the Delay
Period (as defined below) the number of shares of such Stock or Common
Stock Equivalents as would be purchasable by the Selected Stockholders
under this Section 11 if a Section 11(a) Notice has been given with
respect to such transaction in accordance with Section 11(b). Prior to
or after (but no later than 15 Business Days after) the closing of such
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transaction, the Corporation shall notify (a "DELAYED NOTICE") the
Selected Stockholders that they may exercise preemptive rights under this
Section 11 for Applicable Shares and Additional Section 11 Shares in
amounts calculated in accordance with Sections 11(a) and 11(c) for a 15-
day period after the giving of such notice (the "DELAY PERIOD"). If such
rights are exercised all other provisions of this Section 11 shall apply
to such Selected Stockholder's purchase of such Stock or Common Stock
Equivalents, provided that the closing of such Applicable Shares and
Additional Section 11 Shares shall take place, on such date as is set by
the Corporation within 25 Business Days after the Delayed Notice;
(f) In the event that the Corporation proposes to sell, after the date
hereof, shares of Stock to any Goldman Entity, the price to be paid by
the Goldman Entity per share will be an amount equal to its fair market
value, as determined by the board of directors of the Corporation in good
faith after consultation with the Chief Executive Officer of the
Corporation.
SECTION 12. LIMITATIONS. Anything contained herein to the contrary
notwithstanding, the Corporation's obligations hereunder shall in all
respects be subject to the terms and provisions of any lending or financing
agreements to which the Corporation is a party.
XXXXXX 00. LEGEND ON STOCK CERTIFICATES. Each certificate representing shares
of Stock owned by the Employee Stockholders shall bear the following legend
until such time as the shares represented thereby are no longer subject
to the provisions hereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED. THE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND MAY NOT BE OFFERED, SOLD, PLEDGED,
EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED OF
EXCEPT IN COMPLIANCE WITH SUCH ACT."
"IN ADDITION, THE SALE, TRANSFER, ASSIGNMENT,
DISTRIBUTION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF
A STOCKHOLDERS AGREEMENT DATED AS OF JULY 22, 2002,
AMONG BPC HOLDING CORPORATION AND CERTAIN HOLDERS OF
OUTSTANDING CAPITAL STOCK OF SUCH CORPORATION.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST
BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF BPC HOLDING
CORPORATION."
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SECTION 14. DURATION OF AGREEMENT. The rights and obligations of the
Stockholders and the Corporation under Sections 3(a), 4 and 6 shall terminate
upon a Qualified IPO. Except as otherwise provided or specified in this
Agreement, the rights and obligations of each Stockholder under this
Agreement shall terminate, as to such Stockholder, upon the Sale in
accordance with this Agreement or disposition pursuant to an effective
registration statement under the Securities Act and in compliance with
all applicable state securities and "blue sky" laws of all Stock owned by
such Stockholder and as to all Stockholders upon a Sale of all or
substantially all of the assets or stock of the Corporation or a merger
of the Corporation in which the Stockholders of the Corporation receive
cash or securities of any other Person upon such merger.
SECTION 15. SEVERABILITY; GOVERNING LAW. If any provision of this
Agreement shall be determined to be illegal and unenforceable by any court
of law, the remaining provisions shall be severable and enforceable in
accordance with their terms. This Agreement shall be governed by, and
construed in accordance with, the laws of (a) the State of New York applicable
to contracts made and to be performed therein and (b) the State of Delaware
applicable to corporations organized under the laws of such State.
SECTION 16. STOCK DIVIDENDS, ETC. The provisions of this Agreement shall
apply to any and all shares of capital stock of the Corporation or any
successor or assignee of the Corporation (whether by merger, consolidation,
sale of assets or otherwise) which may be issued in respect of, in exchange
for, or in substitution for the shares of Stock, by reason of any stock
dividend, split, reverse split, combination, recapitalization,
reclassification, merger, consolidation, or otherwise in such a manner as
to reflect the intent and meaning of the provisions hereof.
SECTION 17. BENEFITS OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the Corporation and its successors and assigns
and each Stockholder and its permitted assigns, legal representatives,
heirs and beneficiaries.
SECTION 18. NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and shall be deemed
to have been given if (a) personally delivered or sent by telecopier,
(b) sent by nationally recognized overnight courier or (c) sent by registered
or certified mail, postage prepaid, return receipt requested, addressed as
follows:
(i) If to the Corporation:
BPC Holding Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attention: [Xxxxxx Xxxxxx]
Telecopier: [_____________]
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with copies to:
GS Capital Partners 2000, L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00{xx} Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxxxx Xxxxxxxxx
Xxx Xxxxx
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attn: Xxxx X. Xxxxxxxxx
(ii) If to the Stockholders to their respective addresses set
forth on Schedule A or to such other address as the party to whom notice
is to be given may have furnished to such other party in writing in
accordance herewith. Any such communication shall be deemed to have been
received (a) when delivered, if personally delivered or sent by
telecopier, (b) the next business day after delivery, if sent by
nationally recognized, overnight courier and (c) on the third Business
Day following the date on which the piece of mail containing such
communication is posted, if sent by first-class mail.
SECTION 19. OLD STOCKHOLDERS AGREEMENT. The Old Management Stockholders
Agreement is hereby terminated and of no further force or effect.
SECTION 20. MODIFICATION. This Agreement may be amended, modified or
supplemented only by a written instrument duly executed by the Corporation,
the Goldman Entities and the holder of the majority shares of Stock owned by
the Employee Stockholders.
SECTION 21. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements and understandings of the parties in
connection therewith.
SECTION 22. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts taken together shall constitute but
one agreement.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders Agreement on the date first above written.
BPC HOLDING CORPORATION
By:_____________________________
Name:
Title:
GS CAPITAL PARTNERS 2000, L.P.
By GS Advisors 2000, L.L.C., its
general partner
By:_____________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C., its
general partner
By:_____________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By Xxxxxxx Sachs Management GPGmbH, its
general partner
By:_____________________________
Name: Xxxxxxx Xxxxxx
Title: Attorney-in-fact
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND,
L.P.
By: GS Employee Funds 2000, L.L.C., its
general partner
By:_____________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
STONE STREET FUND 2000, L.P.
By Stone Street 2000, L.L.C., its general
partner
By:_____________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
BRIDGE STREET SPECIAL OPPORTUNITY FUND
2000, L.P.
By: Bridge Street Special Opportunities
2000, L.P., its general partner
By:_____________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
XXXXXXX XXXXX DIRECT INVESTMENT FUND 2000,
L.P.
By: GS Employee Funds 2000 GP, L.L.C., its
general partner
By:_____________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
MANAGEMENT STOCKHOLDERS:
________________________________
Xxxxxx X. Xxxxx
________________________________
Xxxx Xxxx
________________________________
Xxxxxxx X. Xxxxxx
________________________________
Xxxxx Xxxxx Xxxxxx
________________________________
Xxxxxxxx X. Black
________________________________
Xxx X. Boots
________________________________
Xxxxx X. Xxx
________________________________
Xxxxx X. Xxxxxx
________________________________
Xxxxxxx Xxxxxxxx
________________________________
Xxxxxxxx X. Xxxxxxx
________________________________
Xxxxxxx X. Xxxxxx
________________________________
Xxxxx X. Xxxxxx
________________________________
Xxxxxx X. Xxxxxx
________________________________
Xxxxx X. Xxxxxxxxxx
________________________________
Xxxxxxx X. Xxx
________________________________
Xxxx Xxxxx
________________________________
Xxxxx X. Xxxx
________________________________
Xxxxxx X. Xxxxx
________________________________
G. Xxxx Xxxxxxx
________________________________
Xxxxxx Xxxxxxxxxxx
SCHEDULE A
STOCKHOLDERS ADDRESS NUMBER OF SHARES TYPE OF SHARES
Xxxxxx X. Xxxxx 3,079 Common Stock
Xxxx Xxxx 47 Common Stock
Xxxxxxx X. Xxxxxx 8,168 Common Stock
Xxxxx Xxxxx Xxxxxx 22,208 Common Stock
Xxxxxxxx X. Black 1,872 Common Stock
Xxx X. Boots 37,785 Common Stock
Xxxxx X. Xxx 5,706 Common Stock
Xxxxx X. Xxxxxx 3,048 Common Stock
Xxxxxxx Xxxxxxxx 15,404 Common Stock
Xxxxxxxx X. Xxxxxxx 8,988 Common Stock
Xxxxxxx X. Xxxxxx 4,357 Common Stock
Xxxxx X. Xxxxxx 12,429 Common Stock
Xxxxxx X. Xxxxxx 10,236 Common Stock
Xxxxx X. Xxxxxxxxxx 21,957 Common Stock
Xxxxxxx X. Xxx 2,104 Common Stock
Xxxx Xxxxx 4,647 Common Stock
Xxxxx X. Xxxx 14,016 Common Stock
Xxxxxx X. Xxxxx 16 Common Stock
G. Xxxx Xxxxxxx 2,001 Common Stock
Xxxxxx Xxxxxxxxxxx 4,631 Common Stock
SCHEDULE B
SELECTED STOCKHOLDERS
Xxxxxx X. Xxxxx
Xxxx Xxxx
Xxxxxxx X. Xxxxxx
Xxxxx Xxxxx Xxxxxx
Xxxxxxxx X. Black
Xxx X. Boots
Xxxxx X. Xxx
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxx
Xxxx Xxxxx
Xxxxx X. Xxxx
Xxxxxx X. Xxxxx
G. Xxxx Xxxxxxx
Xxxxxx Xxxxxxxxxxx
EXHIBIT A
FORM OF PROMISSORY NOTE
