EXHIBIT D
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (the "Agreement") is entered into this 21st day
of May, 1999, among the Persons identified as "Stockholders" on the signature
pages of this Agreement and any other person who hereafter becomes a holder of
Participating Common Stock (as defined in Section 12) and who becomes a party to
this Agreement (hereinafter sometimes each referred to as a "Stockholder" and
collectively as "Stockholders").
Preliminary Statements
1. The authorized capital stock of ▇▇▇▇▇▇▇▇ Industries, Inc., a Delaware
corporation (the "Company"), consists of 1,480,000 shares of Class A
Common Stock, par value $0.01 per share, and 1,020,000 shares of Class
B Common Stock, par value $0.01 per share. There are 978,956 shares of
Class A Common Stock outstanding on the date of this Agreement, which
are held by various stockholders. All of the shares of Class B Common
Stock are outstanding and are held by ▇▇▇▇▇ Creditors Trust (the
"Trust").
2. Pursuant to a certain Stock Purchase Agreement dated May 18, 1999 (the
"Purchase Agreement"), the Trust agreed to sell to ▇▇▇▇▇▇▇▇
Enterprises, Inc. ("REI") or its Qualified Designees 997,475 shares of
Class B Common Stock of the Company.
3. The Stockholders are the Qualified Designees under the Purchase
Agreement, and each has agreed to purchase that number of shares of
Participating Common Stock set forth on Schedule 1 hereto.
4. Pursuant to the Certificate of Incorporation of the Company, upon the
sale of the Class B Common Stock pursuant to the Purchase Agreement,
each share of the Class B Common Stock will convert into Class A
Common Stock without further action of the holders.
5. The Stockholders hereby agree to certain terms and conditions relevant
to the transfer of the Participating Common Stock as set forth in this
Agreement.
Terms and Conditions
In consideration of the mutual covenants and agreements contained in this
Agreement, and intending to be legally bound, the parties agree as set forth
herein. Capitalized terms have the meanings set forth in Section 12 or as
otherwise defined in this Agreement or the Purchase Agreement.
Section 1. [Reserved].
Section 2. Restrictions on Transfer.
(a) None of the Stockholders shall, directly or indirectly, offer,
sell, transfer or dispose of any Participating Common Stock without
offering the Remaining Stockholders the right of first refusal in the
manner provided in Section 3, except (i) to another Stockholder, provided
the Participating Common Stock so disposed of continues to be subject to
this Agreement, (ii) for gifts or bequests to any person or distributions
from a trust to the beneficiaries thereof, provided that (A) the transferor
shall have obtained and delivered to the Company the recipient's agreement
in a written instrument to be bound by the provisions of this Agreement
applicable to the Stockholders and (B) the recipient shall be deemed to be
a Stockholder for all purposes of this Agreement, (iii) for sales or
exchanges pursuant to mergers, tender offers or similar transactions which
the Board of Directors of the Company either approves or does not oppose,
and (iv) for sales or other dispositions approved in advance by a majority
of the Board of Directors of the Company.
(b) Notwithstanding any other provision contained in this Agreement,
on or prior to the third anniversary of the date of this Agreement, no
Stockholder shall (i) acquire any additional shares of Common Stock of the
Company (other than by way of stock dividends, stock splits or other
distributions made to all stockholders of the Company pro rata) or (ii)
offer, sell, transfer or dispose of any Participating Common Stock if such
offer, sale, transfer or disposition would trigger the net operating loss
limitations of Internal Revenue Code Section 382 with respect to the
Company.
(c) No sale or transfer (as defined in Section 12 of this Agreement)
of any of the Participating Common Stock shall be valid (and the
Stockholders shall cause the Company not to take any action to implement,
acknowledge or record any transfer of Participating Common Stock) unless
the Stockholder holding the Participating Common Stock has complied with
the terms and conditions of this Agreement prior to the sale or transfer.
Section 3. Conditions to Transfer by the Stockholders.
(a) Except as provided in Section 2(a), prior to the transfer of
Participating Common Stock by a Stockholder, the transferring Stockholder
shall first notify the Remaining Stockholders in writing at least 30 days
in advance of the intended transfer. The notice shall contain all of the
terms of the proposed transfer, including, without limitation and to the
extent available, the name and address of the prospective transferee, the
purchase price and other terms and conditions of payment (or the minimum
purchase price or basis for determining the minimum purchase price and
minimum acceptable other terms and conditions), the date on or about which
the transfer is to be made, the number of shares of Participating Common
Stock to be transferred (the "Offered Shares"), and the percentage of the
Stockholder's total holdings of the Participating Common Stock that those
shares represent (the "Stockholder's Notice").
(b) Except as provided in Section 3(g), within 15 days after receipt
of the Stockholder's Notice each Remaining Stockholder shall be entitled to
purchase from the transferring Stockholder a number of the Offered Shares
which number shall not exceed such Remaining Stockholder's pro rata share
of the Offered Shares and may notify the transferring Stockholder and the
other Remaining Stockholders (an "Initial Purchase Notice") that the
Remaining Stockholder will purchase on the same terms set forth in the
Stockholder's Notice up to his pro rata share of the Offered Shares. For
purposes of this Section, "pro rata share" of the Offered Shares shall be
determined by the ratio (expressed as a percentage) that the number of
shares of Participating Common Stock held by the Remaining Stockholder
bears to the total number of shares of Participating Common Stock held by
all of the Remaining Stockholders.
(c) If any of the Remaining Stockholders fails to deliver an Initial
Purchase Notice as provided above or delivers an Initial Purchase Notice
but does not elect to purchase his full pro rata share, any other Remaining
Stockholder may, within ten days after expiration of the Initial Purchase
Period, notify the transferring Stockholder and the other Remaining
Stockholders (a "Secondary Purchase Notice") that such other Remaining
Stockholder will purchase all or any portion of the Offered Shares that
were not the subject of an Initial Purchase Notice on the same terms set
forth in the Stockholder's Notice.
(d) If more than one Remaining Stockholder delivers a Secondary
Purchase Notice to the transferring Stockholder and the other Remaining
Stockholders, each Remaining Stockholder desiring to purchase the Offered
Shares shall be entitled to purchase a number of such shares equal to the
product of (i) the total number of Offered Shares (as set forth in the
Stockholder's Notice), multiplied by (ii) the ratio (expressed as a
percentage) that the number of shares of Participating Common Stock held by
the Remaining Stockholder bear to the total number of shares of
Participating Common Stock held by all of the Remaining Stockholders who
have elected to purchase Offered Shares pursuant to a Secondary Purchase
Notice. Each Initial Purchase Notice and the Secondary Purchase Notice
pursuant to this Section 3 when taken together with the Stockholder's
Notice shall constitute a legal, valid, binding and enforceable contract
between the transferring Stockholder and the Remaining Stockholder(s) on
the terms and conditions set forth therein.
(e) Except as provided in Section 3(g), after compliance with the
terms of this Section 3 and subject to the terms of Section 4, the
transferring Stockholder may transfer such Stockholder's Participating
Common Stock, but only on the same terms and conditions as those contained
in the Stockholder's Notice. If the sale to the third party is not
consummated at the time and on substantially the same terms as set forth in
the Stockholder's Notice, or if the terms of the sale are materially
altered, then the Offered Shares shall once again be subject to the right
of first refusal set forth in this Section 3.
(f) Except as provided in Section 3(g), all Participating Common Stock
transferred to any Person pursuant to Section 3(e) shall remain subject to
the restrictions set forth in Section 2(b) of this Agreement, and each
transferee shall have agreed in writing to be bound by the restrictions set
forth in Section 2(b) as though such transferee were a Stockholder
hereunder.
(g) Notwithstanding the above, the terms of Sections 3(b) through 3(f)
shall not apply in the event of sales of Participating Common Stock in a
registered public offering effected pursuant to the terms of the
Registration Rights Agreement.
Section 4. Co-Sale Rights.
(a) Upon delivery of a Stockholder's Notice proposing to effect a sale
or transfer of shares of Participating Common Stock to a person other than
a Stockholder, each Remaining Stockholder (including any Remaining
Stockholder who fails to exercise the right of first refusal pursuant to
Section 3) shall have the option to participate in such sale in the manner
hereinafter set forth.
(b) To exercise the option, a Remaining Stockholder shall give a
written notice of election to the transferring Stockholder within five days
after the expiration of the period within which the right of first refusal
described in Section 3 is to be exercised. All Remaining Stockholders who
timely give such notice (the "Co-Selling Stockholders"), shall have the
right to sell their Participating Common Stock to the proposed purchaser
upon the same terms and conditions specified in the Stockholder's Notice
pro rata with the transferring Stockholder according to the ratio of the
number of shares of Participating Common Stock owned by such Co-Selling
Stockholder to the total number of shares of Participating Common Stock
owned by all Stockholders whose shares are to be sold. The number of shares
of Participating Common Stock to be sold by the transferring Stockholder
shall be reduced by the number of such shares the Co-Selling Stockholders
elect to so sell. Each Co-Selling Stockholder shall bear his pro rata share
of the expenses incident to such sale.
(c) No Co-Selling Stockholder shall be required to make any
representation or warranty in connection with the sale or transfer of
Participating Common Stock pursuant to this Section 4 other than as to the
Co-Selling Stockholder's ownership and authority to sell the Participating
Common Stock proposed to be sold by him free of liens, claims and
encumbrances, but each Co-Selling Stockholder shall be required to bear his
proportionate share of any liability for indemnity obligations up to but in
no event in excess of the net proceeds received by the Co-Selling
Stockholder for the Participating Common Stock sold by him pursuant to this
Section 4.
(d) Failure by the Remaining Stockholders to exercise the option
within the five- day period shall be deemed a declination of any right to
participate in such sale, provided that such sale is completed within 120
days of the expiration of such five-day period at a price and on terms and
conditions substantially similar to those set forth in the Stockholder's
Notice. If the sale to the third party is not consummated within such
period or if the terms of sale are materially altered, then the Remaining
Stockholders must be given another opportunity to participate pursuant to
the provisions of this Section 4.
(e) Notwithstanding the foregoing, the co-sale rights of the
Stockholders shall not apply in the event of an offer, sale or transfer of
Participating Common Stock held by the personal representative or estate of
any Stockholder to the extent that the Participating Common Stock is being
offered, sold or transferred to a third party in order to obtain funds to
pay federal or state taxes on behalf of the estate; provided that the
personal representative or estate shall have obtained the recipient's
agreement in a written instrument to be bound by the provisions of the
Agreement and the recipient shall be deemed to be a Stockholder for all
purposes of this Agreement.
(f) Notwithstanding the above, the terms of this Section 4 shall not
apply to sales of Participating Common Stock in a registered public
offering effected pursuant to the Registration Rights Agreement if co-sale
of the Co-Selling Stockholders' Participating Common Stock is not permitted
by the Registration Rights Agreement or by the Company.
Section 5. Term. This Agreement shall be effective as of the date first
written above and will terminate on the date on which the Stockholders or their
permitted assigns cease to hold the Participating Common Stock.
Section 6. Parties Bound by Agreement. All of the terms and provisions of
this Agreement shall be binding upon and shall inure to the benefit of the
parties and their respective personal representatives, heirs, successors and
assigns, including, without limitation, all subsequent holders of securities who
become bound by the terms of this Agreement.
Section 7. Endorsement on Stock Certificates. A copy of this Agreement
shall be delivered to the Company to be kept on file at its registered office,
and all certificates representing Participating Common Stock will be endorsed
conspicuously as follows:
The shares of Common Stock represented by this certificate are subject
to, and transferable only in accordance with, a Stockholders
Agreement, dated as of May 21, 1999, a copy of which agreement is on
file with the Secretary of the Company at its registered office.
Section 8. [Reserved].
Section 9. Enforcement. The parties agree that there will be irreparable
damage if this Agreement is not specifically enforced or if a breach or
anticipated breach is not enjoined. If any Person who is required by this
Agreement to perform an act refuses to perform that act, one or more of the
parties to this Agreement may institute and maintain proceedings to compel the
specific performance of this Agreement by the Person in default. In addition, if
any Person breaches this Agreement or if a breach is reasonably anticipated, one
or more parties to this Agreement may institute and maintain proceedings to
enjoin any breach or anticipated breach, or to compel specific performance of
this Agreement, and may obtain an injunction against a breach or reasonably
anticipated breach.
Section 10. Applicable Law and Choice of Forum. The parties affirm that
this Agreement has been entered into in the State of Indiana and will be
governed by and construed in accordance with the laws of the State of Indiana,
notwithstanding any state's choice of law rules to the contrary. Further, the
parties expressly agree that any and all actions concerning any dispute arising
under this Agreement will be filed and maintained only in a state or federal
court sitting in the State of Indiana, and each party consents and submits to
the jurisdiction of that state or federal court.
Section 11. Notices. All notices hereunder will be in writing and will be
deemed to have been duly given if delivered in person, if mailed by first class
certified or registered mail, postage prepaid, or if sent by expedited courier
service, shipping billed to shipper, not later than the day upon which notice is
required or desired to be given pursuant to this Agreement, addressed as
follows:
(a) If to a Stockholder, to the address last shown on the records of
the Company.
(b) If to the legal representative, heirs, or legatees of the
Stockholder, to the address, if any, provided to the Company with the
tender of the Participating Common Stock for transfer as specified in
Section 3.
By giving notice in writing to the Secretary, a Stockholder may change the
address to which notice to him, her or it should thereafter be sent.
Section 12. Definitions. In this Agreement, the following words have the
meanings specified below:
(a) The term "Participating Common Stock" shall mean and include all
shares of the Company's Common Stock (regardless of class) owned by any
Stockholder from time to time, including without limitation any such shares
so owned on the date of this Agreement, any such shares acquired from the
Trust pursuant to the Purchase Agreement and any such shares acquired after
the date of this Agreement. All Company shares acquired by a Stockholder
after the date of this Agreement shall be deemed to be Participating Common
Stock upon acquisition unless such shares are acquired in the open market
in a transaction that is otherwise permitted by this Agreement.
(b) The term "Person" includes, but is not limited to, an individual
or fiduciary, a trust, an estate, a partnership, an association, a company,
and any similar entity.
(c) The term "Remaining Stockholders" with respect to any
Stockholder's Notice delivered in accordance with Section 3 means the
Stockholder or Stockholders who have not delivered such Stockholder's
Notice proposing to sell or transfer shares of Participating Common Stock
pursuant to the terms of this Agreement.
(d) The term "Secretary" means the Secretary of the Company.
(e) Except as set forth in the next sentence, the terms "sale,"
"sell," "transfer" and the like shall include any assignment, transfer or
other disposition, with or without consideration, to any Person for any
purpose. The terms "sale," "sell," "transfer" and the like shall not
include a transfer of Participating Common Stock to (i) the spouse or any
parent, child, grandchild or sibling of the transferring Stockholder or
(ii) a trust established for the benefit of one of the Persons specified in
subparagraph (i); provided, however, the transfer shall be exempt from the
provisions of this Agreement only if all transferees (and in the case of a
minor the Person(s) holding the shares for the benefit of the minor and who
can make a binding obligation with respect to the Participating Common
Stock transferred to the minor) agree in writing prior to the transfer to
be bound by the terms and conditions of this Agreement as an additional
"Stockholder."
(f) The term "Registration Rights Agreement" means that certain
Registration Rights Agreement dated July 31, 1996 between the Company and
▇▇▇▇▇ Creditors Trust.
Section 13. Severability. The invalidity or unenforceability of any
particular provision of this Agreement will not affect the other provisions of
this Agreement, and this Agreement will be construed in all respects as if the
invalid or unenforceable provisions were omitted.
Section 14. Modification. No change or modification of this Agreement will
be valid unless it is in writing and duly executed by all the parties, or their
successors and assigns; provided, that a permitted subsequent holder of
securities may become bound by the terms of this Agreement pursuant to a written
instrument signed by such holder without the signature of the other parties
hereto.
Section 15. No Waiver. The failure of any party to insist upon the
performance of any provision of this Agreement or to pursue any right under this
Agreement will not be deemed a waiver of that or any other provision or the
relinquishment of any right.
Section 16. Gender. Reference to or the use of terms herein relating to
gender, whether male, female or neutral, will not be construed so as to limit
the applicability of the terms or conditions of this Agreement to such gender or
genders.
Section 17. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be considered an original. Only one counterpart
of this Agreement executed by the party against which it would be enforced need
be provided to evidence this Agreement. One counterpart will be delivered to
each Stockholder and one to the Company.
Section 18. Costs. Each Stockholder agrees to pay his pro rata share of the
fees and expenses of Ice ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ and Flackman, ▇▇▇▇▇▇▇ & Potter
associated with purchase by the Stockholders from the Trust of Participating
Common Stock pursuant to the Purchase Agreement.
Section 19. No Third Party Beneficiaries. The provisions of this Agreement
are not intended to, and shall not, benefit any Person other than the parties to
this Agreement, and the provisions hereof are not intended to, and shall not
create any third party beneficiary right in any Person.
[Signatures follow next page.]
The parties have signed this Agreement on the date first above written.
"STOCKHOLDERS"
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Managing Director
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MASSMUTUAL HIGH YIELD
PARTNERS II LLC
by HYP Management, Inc., as Managing
Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
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MASSMUTUAL CORPORATE VALUE
PARTNERS LIMITED
by Massachusetts Mutual Life Insurance
Company, its Investment Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Printed: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: Managing Director
----------------------------------
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Ward S. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ MANAGEMENT, IV, L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
-------------------------------------
Printed: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
--------------------------------
Title: General Partner
----------------------------------
BJR MANAGEMENT IV, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Printed: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: General Partner
----------------------------------
ECM MANAGEMENT, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Printed: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: General Partner
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, TRUSTEE FOR THE
▇▇▇▇▇ ▇▇▇▇▇▇▇ MONEY PURCHASE PLAN
FOR BENEFIT OF ▇▇▇▇▇ ▇▇▇▇▇▇▇
ACT. #OZJ-R47960-80
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. TRUSTEE FOR THE
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. MPP FBO
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. TCM-RO9603
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. TRUSTEE FOR
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. PS PLAN
DATED 12/28/89
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee
SCHEDULE 1
STOCKHOLDER NUMBER OF SHARES PURCHASED
----------- --------------------------
Massachusetts Mutual Life Insurance Company 314,205
MassMutual High Yield Partners II LLC 314,204
MassMutual Corporate Value Partners Limited 119,697
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ 14,599
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 10,869
▇▇▇▇▇▇ Management IV, L.P. 46,737
BJR Management, L.P. 23,368
ECM Management, L.P. 23,368
▇▇▇▇▇ ▇▇▇▇▇▇▇, trustee for the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Money
Purchase Plan for benefit of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Act.
#OZJ-R47960-80 43,476
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. Trustee for the ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇. MPP FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. TCM-RO9603 43,476
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Trustee for ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
▇▇. PS Plan dated 12/28/89 43,476
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TOTAL 997,475
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