Exhibit 10.1
EXECUTION COPY
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of June 13,
2003, by and among (i) VI ACQUISITION CORP., a Delaware corporation (the
"Company"), (ii) WIND POINT PARTNERS IV, L.P., WIND POINT PARTNERS V, L.P. and
WIND POINT IV EXECUTIVE ADVISOR PARTNERS, L.P., each of which is a Delaware
limited partnership, and WIND POINT ASSOCIATES IV, LLC, a Delaware limited
liability company (collectively, "WPP"), (iii) MID OAKS INVESTMENTS LLC, a
Delaware limited liability company ("Mid Oaks"), (iv) ▇.▇. ▇▇▇▇▇▇▇ PRIVATE
EQUITY PARTNERS QP II, L.P. and ▇.▇. ▇▇▇▇▇▇▇ PRIVATE EQUITY PARTNERS II, L.P.,
each of which is a Delaware limited partnership (collectively, "AGE"), (v) ▇▇▇▇▇
▇▇▇▇▇▇ ("▇▇▇▇▇▇"), (vi) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ("van Benthuysen," and together
with WPP, Mid Oaks, AGE, ▇▇▇▇▇▇, and any additional purchaser deemed an Investor
pursuant to Section 14 hereof, the "Investors"), (vii) the executives and other
employees identified on the signature pages to this Agreement (each
individually, an "Executive" and collectively the "Executives"), and (viii) each
of the entities set forth on Exhibit A attached hereto (the "Initial
Warrantholders"), and each of their permitted assigns who executes a counterpart
to become a party to this Agreement (collectively, together with the Initial
Warrantholders, the "Warrant Security Holders.") The Investors, the Executives
and the Warrant Security Holders are collectively referred to herein, along with
other stockholders who become parties to this Agreement pursuant to the
provisions of Section 14, as the "Stockholders" and each, individually, as a
"Stockholder." Capitalized terms used but not otherwise defined herein are
defined in Section 12 hereof.
In connection with the execution of this Agreement, the Investors and the
Executives purchased shares of the Company's Common Stock, par value $0.0001 per
share (the "Common Stock"), and shares of the Company's Series A Preferred
Stock, par value $0.0001 per share (the "Preferred Stock"), pursuant to that
certain Stock Purchase Agreement among the Investors, the Executives and the
Company dated as of the date hereof (as amended or supplemented from time to
time, the "Stock Purchase Agreement") or otherwise have acquired Common Stock or
options to purchase Preferred Stock. In connection with the execution of an
Investment Agreement among the Company, VICORP Restaurants Inc., a Colorado
corporation and wholly-owned subsidiary of the Company ("VICORP"), and the
initial Warrant Security Holders dated as of the date hereof (the "Investment
Agreement") and this Agreement, the initial Warrant Security Holders received
warrants to purchase shares of Common Stock, subject to adjustment as provided
therein (the "Common Warrants") and warrants to purchase a number of shares of
Preferred Stock of the Company equal in the aggregate to 6% of all amounts
accreted and distributed upon the outstanding Preferred Stock in excess of the
initial aggregate liquidation value thereof (the "Preferred Warrants" and,
together with the Common Warrants, the "Warrants").
The execution and delivery of this Agreement is a condition to the
Investors' purchase of Common Stock and Preferred Stock pursuant to the Stock
Purchase Agreement and the issuance of the Warrants pursuant to the Investment
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound, the parties to this
Agreement hereby agree as follows:
1. Governing Bodies.
(a) Voting Agreement. Each Stockholder (other than the Warrant Security
Holders) agrees that so long as WPP or any of its Affiliates owns at least
twenty percent (20%) of the outstanding Common Stock, such Stockholder shall
vote all of such Stockholder's shares of Common Stock and any other voting
Securities of the Company over which such Stockholder has voting control and
shall take all other actions reasonably necessary or desirable within such
Stockholder's control (whether in such Stockholder's capacity as a stockholder,
director, member of a board committee or officer of the Company or otherwise,
and including, without limitation, attendance at meetings in person or by proxy
for purposes of obtaining a quorum and execution of written consents in lieu of
meetings), and the Company shall take all necessary and desirable actions within
its control (including, without limitation, calling special board and
stockholder meetings), so that:
(i) the authorized number of members on the Governing Bodies of Company
and VICORP shall comprise at least five (5) but no more than seven (7) members;
and
(ii) the following Persons shall be elected to the Governing Bodies of
Company and VICORP:
(A) at least two (2) members designated by WPP (the "WPP
Members");
(B) one (1) member designated by Mid Oaks (during such times as
Mid Oaks holds at least 85,655 shares (as adjusted for stock splits, stock
dividends, recapitalizations and the like) of the Common Stock and subject
to WPP's reasonable approval (the "Mid Oaks Member"); provided, however,
that during such times as Mid Oaks holds less than 85,655 shares (as
adjusted for stock splits, stock dividends, recapitalizations and the
like) of the Common Stock, there shall be no Mid Oaks Member and, in order
to fill the vacancy created by the absence of the Mid Oaks Member, there
shall be an additional WPP Member designated by WPP, and provided further
that for purposes of this section Mid Oaks shall be deemed to own any
shares that are transferred by Mid Oaks to its Affiliates or employees
pursuant to Section 5(f)(ii);
(C) up to three (3) members designated by WPP (the "Outside
Members"); provided that no Outside Member shall be (x) a member of the
Company's management or an employee or officer of the Company or its
subsidiaries, or (y) a member of WPP's management or management of any of
its affiliates, it being understood that nothing in this clause (y) shall
disqualify any person from being an "Outside Member" solely by reason of
(A) such person holding an ownership interest in any WPP executive advisor
entity and/or (B) such person serving as a director or non-executive
chairman of any WPP or Company affiliate; and
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(D) one (1) member designated by WPP who shall be an executive
officer of the Company;
it being understood that so long as WPP owns at least twenty percent (20%) of
the outstanding Common Stock, WPP shall at all times have the right, exercisable
in its sole discretion, to select at least a majority of any Governing Body;
(iii) the removal from any Governing Body (with or without cause) of any
WPP Member or the Mid Oaks Member, if applicable, shall be only upon the written
request to the Board of the Stockholder or Stockholders entitled to designate
such director pursuant to Section 1(a)(ii) above;
(iv) in the event that any representative designated hereunder for any
reason ceases to serve as a member of any Governing Body during his or her term
of office, the resulting vacancy on the Governing Body shall be filled by a
representative designated by the Person or Persons entitled to designate such
director pursuant to Section 1(a)(ii) above; and
(v) if any party fails (but is otherwise entitled) to designate a
representative to any Governing Body pursuant to the terms of this Section 1,
the election of a Person to such Governing Body shall be accomplished in
accordance with the Organizational Documents and applicable law; provided that
the parties shall take all necessary actions to remove such individual if the
party or parties which failed (and are otherwise entitled) to designate such a
representative so directs.
(b) Other Subsidiaries. The Governing Bodies of VICORP's subsidiaries
shall be comprised as determined by the Governing Body of VICORP.
(c) Required Meetings; Expenses; Insurance. There shall be at least four
(4) meetings of the Governing Body of Company during every fiscal year, at least
one (1) of which shall be held in each ninety (90) day period during the
Company's fiscal year. The Company or VICORP, as the case may be, shall pay all
out-of-pocket expenses incurred by each member of such Person's Governing Body
in connection with attending regular and special meetings of that Governing
Body. The Company and VICORP, as applicable, shall maintain customary directors
and officers' insurance covering members of such Person's Governing Body in
amounts commensurate with similarly-situated companies.
(d) Observer Rights.
(i) The following persons shall have observer rights with respect to
meetings of the Governing Bodies of the Company and its subsidiaries, and any
committees of such Governing Bodies (the person or persons so designated to
serve as an observer, the "Observer"), and the Company, VICORP or the relevant
subsidiary, as the case may be, will reimburse such Observer for all reasonable
out-of-pocket costs incurred by such Person in connection with traveling to and
from and attending such meetings:
(A) So long as any Warrants, Warrant Stock or Notes remain
outstanding, the Company will, and will cause its subsidiaries to, (i)
permit the Warrant Security Holders (other than Gleacher Mezzanine Fund P,
L.P.) to have a total of three (3) Observers, who
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shall be designated from time to time by the holders of the Warrants or
Warrant Stock (other than Gleacher Mezzanine Fund P, L.P.).
(B) So long as AGE holds at least 34,262 shares (as adjusted for
stock splits, stock dividends, recapitalizations and the like) of Common
Stock, the Company will, and will cause its subsidiaries to, (i) permit
AGE to have one (1) Observer, who shall initially be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
(C) If WPP and its Affiliates cease to hold at least twenty (20%)
of the issued and outstanding Common Stock and there are no longer any WPP
Members, but WPP (or any of its Affiliates) still continue to hold Common
Stock, then WPP shall have the right to designate one (1) Observer.
(ii) The Observer shall be sent notice of the time and place of any such
meetings in the same manner and at the same time as notice is sent to members of
the applicable Governing Body and any committees thereof and shall be sent
copies of all notices, reports, minutes, consents and other documents at the
time and in the manner as they are provided to the other members of the relevant
Governing Body and/or committee thereof.
(iii) Notwithstanding the foregoing, any Observer may be temporarily
excluded from meetings of any Governing Body or committee thereof and materials
provided to the Observer in connection with such meetings may be redacted if:
(A) the reason for such exclusion or such redaction is solely to preserve an
attorney-client privilege available to the Company or any subsidiary, as
applicable, that would be lost absent such exclusion or redaction; and (b) such
exclusion or such redaction (as the case may be) is necessary to preserve such
attorney-client privilege and otherwise is required in the good faith
determination of the applicable Governing Body, and such Governing Body delivers
to the excluded Observer an opinion of independent counsel to the effect that
such exclusion or redaction is necessary to preserve such privilege and a
certificate of an executive officer of the Company or the relevant subsidiary,
as the case may be, that such exclusion or redaction, as the case may be, is
material to such entity.
(e) Quorum. At all meetings of any Governing Body, members entitled to
cast a majority of the votes of the entire Governing Body shall constitute a
quorum for the transaction of business and the act of members entitled to cast a
majority of the votes present at any meeting at which there is a quorum shall be
the act of the Governing Body, except as may be otherwise specifically provided
by Delaware law or by the Organizational Documents of the Company.
Notwithstanding the foregoing, for so long as WPP holds twenty percent (20%) or
more of the outstanding Common Stock, a quorum shall not be present for the
transaction of business of any Governing Body unless all of the WPP Members
shall be present at a meeting of such Governing Body. If a quorum shall not be
present at any meeting of the Governing Body, then the members of the Governing
Body present thereat may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum shall be present.
2. Irrevocable Proxy; Conflicting Agreements.
(a) Grant of Proxy. In order to secure each Executive's and each
Additional Executive's obligation to vote his or her Common Stock and other
voting securities of the
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Company in accordance with the provisions of Section 1 and Section 7 hereof, and
for other good and valuable consideration, each Executive and each Additional
Executive hereby appoints Wind Point Partners V, L.P., as his or her true and
lawful proxies and attorneys-in-fact, with full power of substitution, to vote
all of his or her Common Stock and other voting securities of the Company on all
matters that may be submitted to a vote of the holders of Common Stock. Wind
Point Partners V, L.P. may exercise the irrevocable proxies granted to it
hereunder at any time any Executive or any Additional Executive fails to comply
with the provisions of this Agreement. The proxies and powers granted by each
Executive and each Additional Executive pursuant to this Section 2 are coupled
with an interest and are given to secure the performance of each Executive's and
each Additional Executive's obligations to the Investors under this Agreement.
Such proxies and powers will be irrevocable for the term of this Agreement and
will survive the death, incompetency and disability of each Executive and each
Additional Executive and the respective holders of their Securities.
(b) No Conflict. Each Stockholder represents that he, she or it has not
granted and is not a party to any proxy, voting trust or other agreement which
is inconsistent with or conflicts with the provisions of this Agreement, and no
Holder of Securities shall grant any proxy or become party to any voting trust
or other agreement which is inconsistent with or conflicts with the provisions
of this Agreement; provided that this Section 2(b) applies to the Warrant
Security Holders only with respect to Section 7.
3. Legend. Each certificate evidencing Securities and each certificate
issued in exchange for or upon the transfer of any Securities (if such shares
remain Securities as defined herein after such transfer) shall (in addition to
any other legends required by the terms of such Securities or the agreements
under which such Securities were issued) be stamped or otherwise imprinted with
a legend in substantially the following form:
"The securities represented by this certificate were originally
issued on ___________, 2003 and have not been registered under the
Securities Act of 1933, as amended. The transfer of the securities
represented by this certificate is subject to the conditions
specified in the Stockholders Agreement dated as of ______________,
2003, among the issuer (the "Company") and certain investors, and
the Company reserves the right to refuse the transfer of such
securities until such conditions have been fulfilled with respect to
such transfer. A copy of such conditions shall be furnished by the
Company to the holder hereof upon written request and without
charge."
The Company shall imprint such legend on certificates evidencing Securities
outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any securities that cease to be
Securities.
4. Disposition of Securities. No Holder may transfer, sell, convey,
exchange, pledge, hypothecate or otherwise dispose of (collectively, "Transfer")
any Securities, except in compliance with Sections 5, 6, 7, 8 and 13 hereof,
pursuant to Sections 1 or 2 of the Registration Rights Agreement or pursuant to
Rule 144 promulgated pursuant to the Securities Act. Any attempted Transfer
other than in accordance with this Agreement shall be null and void. In
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addition to the foregoing, no Executive or Additional Executive may Transfer any
Executive Shares until they become vested pursuant to such Executive's or
Additional Executive's Senior Management Agreement. The provisions of this
Section 4 are subject, as to each Executive or Additional Executive, to the
Company's Repurchase Option (as that term is defined in such Executive's or
Additional Executive's Management Agreement).
5. Right of First Refusal. Prior to making any Transfer (other than
pursuant to Section 5(f) or pursuant to Sections 6, 7 or 8 hereof), any
Stockholder proposing such Transfer (a "Disposing Stockholder"), the Disposing
Stockholder agrees not to consummate any such Transfer until the parties to the
Transfer have been finally determined pursuant to this Section 5 (the
"Authorization Date").
(a) Sale Notice by Disposing Stockholder. The Disposing Stockholder will
deliver a written notice (the "Sale Notice") to the Company, and each of the
other Holders who are not the Disposing Stockholder (collectively, the "Other
Stockholders") disclosing in reasonable detail the identity of the prospective
transferees, the Securities proposed to be Transferred (the "Offered
Securities") and the terms and conditions of the proposed Transfer.
(b) Company Election. The Company may elect to purchase all or a portion
of the Offered Securities upon the same terms and conditions as those set forth
in the Sale Notice by delivering a written notice of such election to the
Disposing Stockholder and Other Stockholders within fifteen (15) days after the
receipt of the Sale Notice by the Company. If the Company elects to purchase
less than all of the Offered Securities, it will so notify the Other
Stockholders (the "Availability Notice," and the Offered Securities that the
Company did not subscribe for (the "Available Securities").
(c) Purchase by Other Stockholders. Each Other Stockholder may elect to
purchase all or a portion of its pro-rata portion (calculated with reference to
Diluted Common Stock or Diluted Preferred Stock, as applicable) of the Available
Securities upon the same terms and conditions as those set forth in the Sale
Notice by delivering a written notice of such election to the Disposing
Stockholder and the Company within fifteen (15) days after the receipt of the
Availability Notice from the Company. In the event that any Other Stockholder
elects to purchase less than its pro-rata portion of the Available Securities
(the nonsubscribed portion, the "Nonsubscribed Available Securities" and the
Other Stockholder so electing, the "Undersubscribing Stockholder"), the Company
will notify (the "Undersubscription Notice") the Other Stockholders who have
elected to fully exercise their rights hereunder (the "Subscribing
Stockholders").
(d) Purchase by Subscribing Stockholders. Any Subscribing Stockholder
may elect to purchase all of such Subscribing Stockholder's pro-rata portion of
the Nonsubscribed Available Securities (allocated pro-rata based upon such
Subscribing Stockholder's respective ownership of Diluted Common Stock or
Diluted Preferred Stock, as applicable, compared to the aggregate ownership of
Diluted Common Stock or Diluted Preferred Stock, as applicable, of all
Subscribing Stockholders) upon the same terms and conditions as those set forth
in the Sale Notice by delivering a written notice of such election to the
Disposing Stockholder and the Company within fifteen (15) days after the receipt
of Undersubscription Notice.
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(e) Time for Completion. If the Other Stockholders and/or the Company
have not elected to purchase all of the Offered Securities within forty-five
(45) days after the delivery of the Sale Notice, or have so elected to purchase
the Offered Securities but have not consummated the purchase of the Offered
Securities within sixty (60) days of the delivery of the Sale Notice, the
Disposing Stockholder may Transfer the Offered Securities not purchased by the
Other Stockholders and/or the Company at a price and on terms no more favorable
to the transferees thereof than those specified in the Sale Notice, during the
thirty (30) day period immediately following the Authorization Date; provided,
however, that the transferee shall not be a Competitor of the Company. Any
Securities not transferred within such thirty (30) day period will again be
subject to the provisions of this Section 3 upon subsequent Transfer.
(f) Exception for Certain Transfers. Notwithstanding the foregoing or
anything herein to the contrary, provided that the Transferees agree to be bound
by the provisions of this Agreement to the same extent as their Transferors, the
provisions of this Section 5 shall not apply to the following Transfers:
(i) Transfers by WPP of Preferred Stock and/or Common Stock purchased by
WPP under the Stock Purchase Agreement on the Closing Date to (A) any of WPP's
Affiliates (other than transfers to another portfolio company) or (B) prior to
the first anniversary of the Closing Date, in such amounts as, following the
completion of each such Transfer, result in WPP still holding at least 49,143.50
shares of Preferred Stock and 856,500 shares of Common Stock.
(ii) Transfers (A) by Mid Oaks of Preferred Stock and/or Common Stock
purchased by Mid Oaks under the Stock Purchase Agreement on the Closing Date to
up to five employees of Mid Oaks, in an aggregate amount not to exceed five
percent (5%) of Mid Oaks' Preferred Stock and Common Stock, provided that any
Transfers to Persons who are not residents of Illinois and Accredited Investors
shall be subject to WPP's prior approval and provided further that in connection
with any such Transfer Mid Oaks will provide evidence reasonably satisfactory to
WPP that each such Person has granted to Mid Oaks an irrevocable proxy
equivalent to that granted to WPP by the Executives in Section 2(a), and (B) by
any such employees back to Mid Oaks.
(iii) Transfers by any Warrant Security Holders of Warrants or Warrant
Stock to (A) any Affiliate, or (B) any Person in connection with a transfer of
the Notes; provided, however, that the Warrant Security Holders will not
Transfer the Warrants or Warrant Stock to any Person who (x) is a Competitor or
(y) is not an institutional investor, business development company or equity
fund investor.
(g) Company Repurchase Option. The provisions of this Section 5 are
subject, as to each Executive or Additional Executive, to the Company's
Repurchase Option.
6. Tag-Along.
(a) Notice of Sale. Subject to Section 6(d), if at any time prior to an
Initial Public Offering a Major Stockholder (a "Disposing Significant
Stockholder") shall wish to Transfer any of the shares of Common Stock and/or
Preferred Stock owned by such Disposing Significant Stockholder pursuant to an
offer to or from a third party (the "Buyer"), then such Disposing
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Significant Stockholder shall notify each of the non-disposing Investors and
each of the Warrant Security Holders in writing (a "Tag-Along Sale Notice"), of
such offer and its terms and conditions.
(b) Right to Participate in Sale. Upon receipt of a Tag-Along Sale
Notice, the non-disposing Investors and each of the Warrant Security Holders
shall have the right to sell to the Buyer (the "Tag-Along Sale"), on the same
terms and conditions applicable to the Disposing Significant Stockholder, in
lieu of the sale to the Buyer by the Disposing Significant Stockholder, that
number of shares of Common Stock and/or Preferred Stock, as applicable, equal to
the product attained by multiplying (a) the number of shares of Diluted Common
Stock and/or Preferred Stock, as applicable, to be sold to the Buyer times (b)
the quotient derived by dividing (i) the number of shares of Diluted Common
Stock and/or Preferred Stock, as applicable, held (or deemed to be held) by such
non-disposing Investors by (ii) the total number of shares of Diluted Common
Stock and Preferred Stock, as applicable, held (or deemed to be held) by such
selling non-disposing Investors, such Warrant Security Holders and such
Disposing Significant Stockholder. The non-disposing Investors' and Warrant
Security Holders' rights to sell pursuant to this Section 6 can be exercised by
delivery of a written notice to the Disposing Significant Stockholder within
thirty (30) days following the delivery of the Tag-Along Sale Notice to the
non-disposing Investors and the Warrant Security Holders of the proposed sale to
the Buyer by such Disposing Significant Stockholder. In participating hereunder,
the Warrant Security Holders shall be treated as if they owned the underlying
Preferred Stock without exercise of the Preferred Warrants and shall be entitled
to sell their Preferred Warrants in lieu of exercising such Warrants and selling
the underlying Preferred Stock.
(c) Failure to Provide Notice of Participation. In the event that any of
the non-disposing Investors or Warrant Security Holders do not deliver to such
Disposing Significant Stockholder a notice within such thirty (30) day period,
such Disposing Significant Stockholder may proceed with such sale to such Buyer
at the same price and on substantially the same terms and conditions set forth
in such Tag-Along Sale Notice.
(d) Certain Exceptions. Notwithstanding the foregoing or anything herein
to the contrary:
(i) The provisions of this Section 6 shall not apply to any Transfers by
WPP of Preferred Stock and/or Common Stock purchased by WPP under the Stock
Purchase Agreement on the Closing Date (A) to any of WPP's Affiliates (other
than to any portfolio company), or (B) prior to the first anniversary of the
Closing Date, in such amounts as, following the completion of each such
Transfer, result in WPP still holding at least 49,143.50 shares of Preferred
Stock and 856,500 shares of Common Stock.
(ii) The provisions of this Section 6 shall not apply to any Transfers
(A) by Mid Oaks of Preferred Stock and/or Common Stock purchased by Mid Oaks
under the Stock Purchase Agreement on the Closing Date to up to five employees
of Mid Oaks, in an aggregate amount not to exceed five percent (5%) of Mid Oaks'
Preferred Stock and Common Stock, and (B) by any such employees back to Mid
Oaks.
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(iii) In the case of a Transfer by Mid Oaks, no other Investor shall be
entitled to participate in such Transfer pursuant to this Section 6, although
Mid Oaks will provide them with the notice specified in Section 6(a).
(iv) In the case of a Transfer by AGE, no other Investor shall be
entitled to participate in such Transfer pursuant to this Section 6, although
AGE will provide them with the notice specified in Section 6(a).
(e) Limitations on Warrant Security Holder Representations.
Notwithstanding anything herein to the contrary, no Warrant Security Holder
shall be required (A) to make representations and warranties in connection with
a Tag-Along Sale, except representations and warranties with respect to such
Warrant Security Holder's authority, and title and ownership of the Warrants or
Warrant Stock owned by it, (B) except as provided in (C) below, to indemnify the
buyer or any other person in connection with a Tag-Along Sale other than for a
breach of a representation or warranty made by the Warrant Security Holder
pursuant to clause (A) above or (C) to make a payment in connection with any
indemnification obligation to the buyer (other than an indemnification
obligation for a breach of a representation made by the Warrant Security Holder
pursuant to clause (A), above) or a purchase price adjustment for an amount that
exceeds the lesser of (1) such Warrant Security Holder's pro rata share of such
indemnification obligation or purchase price adjustment obligation, based on
such Warrant Security Holder's pro rata share of the aggregate net proceeds
received by all of the participating Holders in connection with the Tag-Along
Sale, or (2) the amount of the net proceeds received by such Warrant Security
Holder in the Tag-Along Sale.
(f) Additional Limitations. The provisions of this Section 6 shall cease
to apply following completion of an Qualified Public Offering, and are further
subject, as to each Executive or Additional Executive, to the Company's
Repurchase Option.
7. Sale of the Company.
(a) Approval of Sale. Subject to the other applicable terms of this
Agreement, including, without limitation, Section 7(b) hereof, if the Company's
Governing Body by a vote that includes all of the WPP Directors approves a Sale
of the Company to an Independent Third Party (an "Approved Sale"), each Holder
shall vote for, consent to and raise no objections against such Approved Sale.
If the Approved Sale is structured as a (i) merger or consolidation, each Holder
shall waive any dissenters' rights, appraisal rights or similar rights in
connection with such merger or consolidation or (ii) sale of stock, each Holder
shall agree to sell all of its, his or her Securities and rights to acquire
Securities on the terms and conditions approved by the Board. Each Holder shall
take, at the expense of the Company, all necessary actions in connection with
the consummation of the Approved Sale as reasonably requested by the Company.
(b) Conditions to Approval. The obligations of the Holders to
participate in the Approved Sale of the Company are subject to the satisfaction
of the following conditions:
(i) upon the consummation of the Approved Sale, each Holder shall
receive the same form and amount of consideration (in proportion to the
respective amounts of each class of
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Security that such Holder owns or has the right to acquire, but with identical
rights and preferences, without giving effect to any minority or majority
ownership interests or voting interests) as each other Holder of such class of
Security or if any Holders are given an option as to the form and amount of
consideration to be received, each such Holder shall be given the same option
(in proportion to the respective amounts of each class of Security that such
Holder owns or has the right to acquire, but with identical rights and
preferences, without giving effect to any minority or majority ownership
interests or voting interests); and
(ii) each Warrant Security Holder shall have the option, in lieu of
participating in the Approved Sale as provided in Section 7(b)(i), to elect to
sell to the buyer(s) in such Approved Sale all (but not less than all) of the
Warrants or Warrant Shares then held by such Warrant Security Holder, with the
purchase price for such sale to be equal to the price being paid under Section
7(b)(i) but the consideration to be delivered being cash or cash equivalents
(subject to indemnity or holdback obligations as provided in Section 7(e))
regardless of the form of consideration received by the other Holders in the
Approved Sale. Any such election by a Warrant Security Holder must be made
within three (3) business days following notice to the Warrant Security Holder
that the Company's Governing Body has approved the Sale of the Company.
(c) Purchaser Representative. If the Company or the Holders enter into
any negotiation or transaction for which Rule 506 (or any similar rule then in
effect) promulgated by the Commission may be available with respect to such
negotiation or transaction (including a merger, consolidation or other
reorganization), then those Holders that do not qualify at the time as
Accredited Investors shall, at the request of the Company, appoint a "purchaser
representative" (as such term is defined in Rule 501) reasonably acceptable to
the Company. If any Holder appoints a purchaser representative designated by the
Company, the Company shall pay the fees of such purchaser representative.
However, if any Holder declines to appoint the purchaser representative
designated by the Company, such Holder shall appoint another purchaser
representative (reasonably acceptable to the Company), and such Holder shall be
responsible for the fees of the purchaser representative so appointed.
(d) Costs. All Holders will bear their pro-rata share (based upon their
pro rata share of the aggregate net proceeds of the sale of all such Securities)
of any reasonable costs related to the sale of Securities pursuant to an
Approved Sale to the extent such costs are not otherwise paid by the Company or
the acquiring party and to the extent such costs are incurred on behalf of all
Holders. Costs incurred by the Holders on their own behalf shall not be
considered costs of the Approved Sale.
(e) Limitations on Holder Obligations. Notwithstanding anything herein
to the contrary, no Holder shall be required (A) to make representations and
warranties in connection with an Approved Sale, except representations and
warranties with respect to such Holder's authority, and title and ownership of
the Securities owned by it, (B) except as provided in (C) below, to indemnify
the buyer or any other person in connection with an Approved Sale other than for
a breach of a representation or warranty made by the Holder pursuant to clause
(A) above or (C) to make a payment in connection with any indemnification
obligation to the buyer (other than an indemnification obligation for a breach
of a representation made by the Holder pursuant to clause (A), above) or a
purchase price adjustment for an amount that exceeds the
10
lesser of (1) such Holder's pro rata share of such indemnification obligation or
purchase price adjustment obligation, based on such Holder's pro rata share of
the aggregate net proceeds received by all of the Holders in connection with the
Approved Sale, or (2) the amount of the net proceeds received by such Holder in
the Approved Sale.
(f) Termination of Provisions. The provisions of this Section 7 shall
cease to apply following completion of an Initial Public Offering.
8. Permitted Transfers. Any Stockholder may transfer Securities (other
than Securities held by an Executive or Additional Executive that have not
become vested pursuant to his or her Senior Management Agreement) without
complying with Sections 4, 5, and 6 hereof to Permitted Transferees who consent
in writing delivered to the Company to be bound by the terms of this Agreement.
With respect to any Executive or Additional Executive, a "Permitted Transferee"
means the spouse or lineal descendants of such Executive or Additional
Executive, any trust for the benefit of such Executive or Additional Executive,
or the benefit of the spouse or lineal descendants of such Executive or
Additional Executive, any corporation, partnership or limited liability company
in which such Executive or Additional Executive, the spouse and the lineal
descendants of such Executive or Additional Executive are the direct and
beneficial owners of all of the equity interests (provided such Executive or
Additional Executive, spouse and lineal descendants agree in writing to remain
the direct and beneficial owners of all such equity interests), and the personal
representative of such Executive's or Additional Executive's estate or upon such
Executive's or Additional Executive's incompetency for purposes of the
protection and management of the assets of such Executive or Additional
Executive. With respect to a Holder other than an Executive or Additional
Executive, a "Permitted Transferee" means any Affiliate of such Holder, other
than in the case of a Transfer by an Investor to another portfolio company.
9. Preemptive Rights. Subject to the limitations set forth in
Subsection 9(d) below, each time the Company or any of its Subsidiaries proposes
to issue any equity securities, or other securities of any kind that are or may
become convertible into any equity securities (collectively, "New Issue
Securities") to any Person, the Company shall, or shall cause its Subsidiary to,
first offer the New Issue Securities to the Holders in accordance with the
following provisions:
(a) The Company shall give a notice to each Holder hereunder (the "First
Notice") stating (i) its intention to issue the New Issue Securities; (ii) the
number and description of such shares or the amount of the New Issue Securities
to be issued; (iii) the purchase price (calculated as of the proposed issuance
date) and the other terms upon which the Company is offering the New Issue
Securities; and (iv) the names of the Persons to whom the Company seeks to issue
such New Issue Securities.
(b) Transmittal of the First Notice to the Holders by the Company shall
constitute an offer by the Company to sell each Holder his, her or its
proportionate number (based upon his, her or its percentage ownership of the
total number of shares of Diluted Common Stock or Diluted Preferred Stock), or
any lesser number specified by the Holder, of the New Issue Securities for the
price and upon the terms set forth in the First Notice. For a period of twenty
(20) days after the submission of the First Notice to the Holders, each Holder
shall have the option, exercisable by written notice to the Company, to accept
the Company's offer as to all or
11
any part of such Holder's proportionate number or any lesser number of the New
Issue Securities. If two or more types of New Issue Securities are to be issued
or New Issue Securities are to be issued together with other types of
securities, including, without limitation, debt securities, in a single
transaction or related transactions, the rights to purchase New Issue Securities
granted to the Holders under this Section 9 must be exercised to purchase all
types of New Issue Securities and such other securities in the same proportion
as such New Issue Securities and other securities are to be issued by the
Company. If the Holders (as a group) agree to purchase less than the total
number of New Issue Securities proposed to be issued and sold, any Holder may
condition its agreement to purchase the New Issue Securities upon the sale of
the balance to unaffiliated third parties.
(c) In the event that any Holder does not exercise his, her or its
option with respect to all of the New Issue Securities in accordance with
Subsection 9(b), the Company, upon notice from such Holder of such Holder's
decision not to accept the Company's offer as to all of his, her or its pro rata
portion of the New Issue Securities (or upon expiration of the twenty-day option
period referred to in Subsection 9(b) if such Holder fails to give notice as
aforesaid), shall offer to sell the New Issue Securities which have not been
subscribed for to those Holders who have elected to exercise their rights
hereunder (allocated pro rata based upon such Holders' respective ownership of
Diluted Common Stock or Diluted Preferred Stock compared to the aggregate
ownership of Diluted Common Stock or Diluted Preferred Stock of all such Holders
electing to purchase if it is over-subscribed). Thereafter, if all of the New
Issue Securities proposed to be issued and sold have not been subscribed for
within thirty (30) days, the Company shall have one hundred twenty (120) days
thereafter to sell any or all of the remaining New Issue Securities (i.e., those
not to be sold to any Holder) to the Person or Persons set forth in the First
Notice, upon terms and conditions no less favorable to the Company, and no more
favorable to such Person or Persons, than those set forth in the First Notice.
In the event the Company has not sold such New Issue Securities within said one
hundred twenty (120) day period, the Company will not thereafter issue or sell
and New Issue Securities without first offering such New Issue Securities to the
Holders in the manner provided above.
(d) The preemptive rights contained in this Section 9 shall not apply
to: (i) the issuance by the Company of up to an aggregate of (A) 71,000 shares
of Preferred Stock (as adjusted for stock splits, stock dividends,
recapitalizations and the like) and (B) 1,462,800 shares of Common Stock (as
adjusted for stock splits, stock dividends, recapitalizations and the like),
which shares are issued on the Closing Date or may be issued subsequently
pursuant to Preferred Stock purchase options issued to certain Executives on the
Closing Date for an aggregate of 1,571.102 shares of Preferred Stock and (C)
37,200 shares of Common Stock reserved for future issuance; (ii) the issuance
and sale by the Company, from time to time pursuant to plans, programs or
agreements approved by the Governing Body of the Company, of shares of Common
Stock, or options, rights, or warrants to acquire shares of Common Stock, or of
securities convertible or exchangeable for shares of Common Stock, to employees,
officers, or members of the Governing Body of the Company (other than members
who are Affiliates of WPP), as compensation for their services to the Company or
any of its wholly-owned subsidiaries ("Incentive Common Stock"), provided that
Incentive Common Stock shall not be transferred to WPP; (iii) the issuance of
shares of Common Stock of the Company to the Warrant Security Holders in
connection with the exercise of the Warrants; (iv) securities offered in a
Qualified Public Offering; and/or (v) securities approved for issuance by the
Company's
12
Governing Body in connection with the acquisition of another business entity
(which is an Independent Third Party) by the Company by merger, purchase of all
or substantially all of such other business entity's assets, or by other
reorganization whereby the Company ends up owning, directly or indirectly,
greater than 50% of the voting power of such business entity.
10. Representations and Warranties. Each of the Holders (other than the
Warrant Security Holders, it being acknowledged that the Warrant Security
Holders are making certain similar representations to the Company pursuant to
the Investment Agreement), hereby represents and warrants to the following with
respect to himself, herself or itself, as the case may be:
(a) Authorization. All corporate, partnership, member or other action on
the part of the Holder, its directors, holders, members or partners necessary
for the authorization, execution, delivery and performance by such Holder (if a
corporation, partnership, limited liability company or other entity) of this
Agreement has been taken. This Agreement is a legal, valid and binding
obligation of such Holder, enforceable against such Holder strictly in
accordance with its terms, except as such enforceability may be limited by (a)
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditor's rights generally and (b) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
(b) No Violation. The execution and delivery of this Agreement will not
(with or without notice or passage of time or both) (a) conflict with or result
in a breach of any provision of the certificate of incorporation, by-laws,
partnership agreement, operating agreement or other organizational documents of
a Holder (if a corporation, partnership, limited liability company or other
entity), (b) result in a default, give rise to any right of termination,
cancellation or acceleration, or require any consent or approval, under any of
the terms, conditions or provisions of any note, bond, mortgage, indenture,
loan, factoring arrangement, license, agreement, lease or other instrument or
obligation to which such Holder is a party or by which it or any of its assets
may be bound, other than, any default which would not have a material adverse
effect on the business, operations, financial condition, assets or properties of
such Holder or (c) violate any law, judgment, order, writ, injunction, decree,
statute, rule or regulation of any court, administrative agency, bureau, board,
commission, office, authority, department or other governmental entity
applicable to such Holder or any of its assets, other than, any violation which
would not have a material adverse effect on the business, operations, financial
condition, assets or properties of such Holder.
(c) Differential Rights. Although each Holder of Securities may hold one
or more of the same classes or series of the Company's securities, WPP has
requested and received certain additional rights and benefits pursuant to this
Agreement, and each of the other Stockholders have consented to such rights and
benefits as an inducement for WPP to purchase Securities.
11. Term. This Agreement will terminate upon the consummation of a
Qualified Public Offering.
13
12. Definitions.
"Accredited Investor" has the meaning set forth in Rule 501
promulgated under the Securities Act, as amended from time to time.
"Additional Executive" means any member of the Company's senior
management who becomes a "Stockholder" in accordance with Section 14 of this
Agreement.
"Affiliate" of a Holder means any general or limited partner of a
Holder or any other Person, entity or investment fund controlling, controlled by
or under common control with the Holder.
"Allied Capital" means Allied Capital Corporation, a Maryland
corporation.
"Closing Date" means June 13, 2003.
"Commission" means the Securities and Exchange Commission.
"Competitor" means any Person which is engaged in the business of
operating and managing dining restaurants and enterprises, and food commissary
operations; provided that (a) the provision of investment advisory services by a
Person to an ERISA plan which is owned or controlled by a Person which would
otherwise be a Competitor shall not in any event cause the Person providing such
services to be deemed to be a Competitor, and (b) in no event shall any bank,
trust company, savings and loan association or other financial institution,
investment fund, any pension plan, any investment company, any insurance
company, any broker or dealer, or any other financial institution or entity,
regardless of legal form, be deemed a Competitor, nothwithstanding the fact that
a portfolio company of any such institution may be a Competitor.
"Diluted Common Stock" means, when used in any calculation herein,
the number of shares of Common Stock that would be outstanding assuming that all
shares of Common Stock issuable under the Warrants were in fact issued and
outstanding.
"Diluted Preferred Stock" means, when used in any calculation
herein, the number of shares of Preferred Stock that would be outstanding
assuming that all shares of Preferred Stock issuable under the Warrants were in
fact issued and outstanding.
"Executive Shares" shall have the meaning given such term in the
Senior Management Agreements.
"Governing Body" means (i) in the case of a corporation, that
corporation's Board of Directors, (ii) in the case of a limited liability
company, that company's Board of Managers or Board of Members, if any.
"Holder" means any holder (or deemed holder) of Securities who is a
party to this Agreement or is a successor or assign or subsequent holder
contemplated by Section 14 of this Agreement.
14
"Independent Third Party" means any Person who, immediately prior to
the contemplated transaction, (i) does not own, directly or indirectly, in
excess of 10% of the Company's Common Stock or Preferred Stock on a
fully-diluted basis (a "10% Owner"), (ii) is not controlling, controlled by or
under common control with any such 10% Owner, (iii) is not the spouse or
descendant (by birth or adoption) of any such 10% Owner or a trust for the
benefit of such 10% Owner and/or such Persons, and (iv) with respect to WPP and
its Affiliates, is neither an investment of any such 10% Owner nor a subsidiary
of any investment of any such 10% Owner.
"Initial Public Offering" means the initial Public Offering by the
Company.
"Major Stockholders" means each of WPP, AGE and Mid Oaks (and any
Affiliate Transferees of such Persons), for so long as such Person, together
with its Affiliates, beneficially owns, in the aggregate, twenty percent (20%)
of the Common Stock and Preferred Stock originally held by such Person on the
date hereof.
"Notes" means those certain 16% Senior Subordinated Notes due
November 2009, in the original aggregate principal amount of $45,000,000
purchased by the Warrant Security Holders pursuant to the Investment Agreement.
"Organizational Documents" means, (i) in the case of a corporation,
that corporation's charter and by-laws, (ii) in the case of a limited liability
company, that company's articles or certificate of organization and operating
agreement, if any, and (iii) in the case of a partnership, the partnership
agreement.
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Qualified Institutional Buyer" shall have the meaning given such
term under Rule 144A of the Securities Act.
"Qualified Public Offering" means any Public Offering by the Company
in which the Company receives no less than $35,000,000 of net proceeds from
sales to Persons other than Affiliates of the Company pursuant to a public
distribution in which the Common Stock of the Company shall be listed or traded
on a national or regional exchange or on the Nasdaq National Market System.
"Sale of the Company" means any transaction or series of
transactions pursuant to which any Independent Third Party in the aggregate
acquire(s) (i) capital stock of the Company possessing the voting power to elect
a majority of the Board (whether by merger, consolidation, reorganization,
combination, sale or transfer of the Company's capital stock) or (ii) all or
substantially all of the Company's assets determined on a consolidated basis.
"Securities" means Common Stock, Preferred Stock, and any shares of
capital stock or other securities directly or indirectly exercisable for, or
convertible into, such securities; provided, however, that Securities shall not
include any securities which have been sold to the public (i) pursuant to a
registration statement declared effective by the Commission or (ii) pursuant to
Rule 144 promulgated by the Commission under the Securities Act.
15
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"VICORP" means VICORP Restaurants Inc., a Colorado corporation and
wholly-owned subsidiary of the Company as of the date hereof.
"Warrant Security Holders" means all holders of (a) Warrants and/or (b)
any Warrant Stock.
"Warrant Stock" means any Securities received upon exercise of the
Warrants.
13. Transfer; Transfers in Violation of Agreement. Prior to transferring
any Securities to any Person, the transferring Stockholder shall cause the
prospective transferee to execute and deliver to the Company and the other
Stockholders a counterpart of this Agreement. Any transfer or attempted transfer
of any Securities in violation of any provision of this Agreement shall be void,
and the Company shall not record such transfer on its books or treat any
purported transferee of such Securities as the owner of such shares for any
purpose.
14. Additional Investors and Stockholders. In connection with the
issuance of any additional equity securities of the Company to any Person or the
transfer of any equity securities of the Company to any Person, the Company may
permit such Person to become a party to this Agreement and succeed to all of the
rights and obligations of an "Investor" and/or a "Stockholder" under this
Agreement by obtaining an executed counterpart signature page to this Agreement,
and, upon such execution, such Person shall for all purposes be an "Investor"
and/or a "Stockholder" party to this Agreement.
15. Holdback Agreement. Each Holder of outstanding Securities shall not
effect any public sale or distribution (including sales pursuant to Rule 144 of
the Securities Act) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during the
seven days prior to and the 180-day period beginning on the effective date of a
Qualified Public Offering, unless the underwriters managing such Qualified
Public Offering otherwise agree. This provision shall survive the termination of
this Agreement.
16. Amendment and Waiver. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended or waived at any time only by
the written agreement of (i) the Company; (ii) WPP, so long as WPP owns at least
twenty percent (20%) of the outstanding Common Stock; (iii) Holders holding not
less than a majority of the Common Stock issued and outstanding at the time,
calculated on a fully-diluted basis and including, without limitation, Common
Stock issuable upon the exercise of the Warrants; (iv) the Warrant Holders
holding at least 62% of the Warrants or Warrant Stock, if such amendment or
waiver would materially and adversely affect the rights of the Warrant Security
Holders; or (v) Holders holding not less than a majority of the Preferred Stock
issued and outstanding at the time. Notwithstanding the foregoing, no provision
of this Agreement may be amended or waived if such amendment or waiver of any
provision would have the effect of (x) imposing additional obligations
(including the changing of existing obligations) on any of the Stockholders, or
(y) adversely affecting any of the rights of any of the Stockholders, or (z)
treating preferentially (including the changing of any existing right or
preference) in any way any of the Investors or any other Stockholder over
another Stockholder except by written agreement of such affected
16
Stockholder. Any waiver, permit, consent or approval of any kind or character on
the part of any such Holder of any provisions or conditions of this Agreement
must be made in writing and shall be effective only to the extent specifically
set forth in such writing.
17. Severability. Whenever possible, each provision of this Agreement
shall 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 shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
18. 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 supersede and
preempt 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.
19. Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Securities and the respective successors and assigns of each of them,
so long as they hold Securities.
20. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
21. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (a) when delivered personally to
the recipient, (b) one (1) business day following deposit with a reputable
express courier service for next day delivery (charges prepaid), (c) three (3)
business days after it is mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid, or (d) one business (1) day
after receipt is electronically confirmed, if sent by fax (provided that a hard
copy shall be promptly sent by first class mail, postage prepaid). Such notices,
demands and other communications shall be sent to the Purchasers and to the
Company at the address indicated below or to such other address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party.
If to the Company
VI Acquisition Corp.
c/o Wind Point Partners
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
17
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
If to WPP, to:
Wind Point Partners IV, L.P.
Wind Point Partners V, L.P.
Wind Point IV Executive Advisor Partners, L.P.
Wind Point Associates IV, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Ltd.
▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to Mid Oaks, to:
Mid Oaks Investments LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
with a copy to:
Altheimer & ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
18
If to AGE, to:
▇.▇. ▇▇▇▇▇▇▇ Capital, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
If to ▇▇▇▇▇▇, van Benthuysen or an Executive, to his or her address
set forth on the Company's records.
If to the Warrant Security Holders, to the addresses set forth on
Exhibit A hereto.
22. Governing Law. The corporate law of Delaware shall govern all issues
concerning the relative rights of the Company and its stockholders, including,
without limitation, those rights set forth in Sections 1 and 2 of this
Agreement. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the internal laws of the State of Illinois, without giving
effect to any choice of law or other conflict of law provision or rule (whether
of the State of Illinois or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of Illinois.
23. Waiver of Jury Trial. Each of the parties hereto hereby irrevocably
waives any and all right to trial by jury of any claim or cause of action in any
legal proceeding arising out of or related to this Agreement or the transactions
or events contemplated hereby or any course of conduct, course of dealing,
statements (whether verbal or written) or actions of any party hereto. The
parties hereto each agree that any and all such claims and causes of action
shall be tried by a court trial without a jury. Each of the parties hereto
further waives any right to seek to consolidate any such legal proceeding in
which a jury trial has been waived with any other legal proceeding in which a
jury trial cannot or has not been waived.
24. Descriptive Heading. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
25. Preferred Stock Option Holders. To the extent a Holder owns solely
options to purchase Preferred Stock and no other Securities, the provisions of
Section 7 of this Agreement (and the defined terms used therein) shall be the
only provisions hereof that apply to such Holder until such time as such Holder
exercises such option or otherwise owns Securities, in which event the other
provisions of this Agreement shall apply to such Holder.
* * * * *
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
THE COMPANY:
VI ACQUISITION CORP.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Its: Executive Vice President
THE INVESTORS:
WIND POINT IV EXECUTIVE ADVISOR PARTNERS, L.P.
By: Wind Point Investors IV, L.P.
Its: General Partner
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Managing Member
WIND POINT ASSOCIATES IV, LLC
By: Wind Point Investors IV, L.P.
Its: Manager
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Managing Member
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stockholders Agreement
S-1
WIND POINT PARTNERS IV, L.P.
By: Wind Point Investors IV, L.P.
Its: General Partner
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Member
WIND POINT PARTNERS V, L.P.
By: Wind Point Investors V, L.P.
Its: General Partner
By: Wind Point Advisors LLC
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Managing Member
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Its: Managing Member
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stockholders Agreement
S-2
MID OAKS INVESTMENTS LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Chairman and CEO
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stockholders Agreement
S-3
▇.▇.▇▇▇▇▇▇▇ PRIVATE EQUITY PARTNERS QP II, L.P.
By: ▇.▇. ▇▇▇▇▇▇▇ Capital, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
▇.▇. ▇▇▇▇▇▇▇ PRIVATE EQUITY PARTNERS II, L.P.
By: ▇.▇. ▇▇▇▇▇▇▇ Capital, Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stockholders Agreement
S-4
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
VI Acquisition Corp.
Stockholders Agreement
S-5
EXECUTIVES:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
VI Acquisition Corp.
Stockholders Agreement
S-6
WARRANT SECURITY HOLDERS:
ALLIED CAPITAL CORPORATION,
a Maryland corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Its: Principal
GLEACHER MEZZANINE FUND I, L.P.
BY: Gleacher Mezzanine LLC, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇
Its: Managing Director
GLEACHER MEZZANINE FUND P, L.P.
BY: Gleacher Mezzanine LLC, its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇
Its: Managing Director
SUNTRUST EQUITY FUNDING, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Its: Manager
VI Acquisition Corp.
Stockholders Agreement
S-7
EXHIBIT A
ADDRESSES FOR NOTICES TO WARRANT SECURITY HOLDERS
ALLIED CAPITAL CORPORATION
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇ ▇▇▇▇, Managing Director
GLEACHER MEZZANINE FUND I, L.P.
GLEACHER MEZZANINE FUND P, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇, Managing Director
SUNTRUST EQUITY FUNDING, LLC
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Director
With, as to any Warrant Security Holder, a copy to:
▇▇▇▇▇ & ▇▇▇ ▇▇▇▇▇ PLLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
VI Acquisition Corp.
Stockholders Agreement
S-8