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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
STOCKHOLDERS AGREEMENT
Dated August 18, 1998
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TABLE OF CONTENTS
Page
ARTICLE I
LIMITATIONS ON TRANSFER OF SHARES............................................2
Section 1.1. Transfers Generally........................................2
Section 1.2. Transfers Following Death or Disability....................3
Section 1.3. Transfers with the Consent of Board of Directors...........3
Section 1.4. Compliance with Law and Regulations........................4
Section 1.5. Legend on Certificates; Entry of Stop Transfer Orders......4
Section 1.6. Certificates to be Held by Company.........................4
Section 1.7. Transfers in Violation of Agreement Void...................5
ARTICLE II
VOTING AGREEMENT.............................................................5
Section 2.1. Preliminary Vote of Management Stockholders................5
Section 2.2. Voting by Management Stockholders..........................6
Section 2.3. Termination of Voting Provisions...........................6
ARTICLE III
RIGHT TO PURCHASE SHARES.....................................................7
Section 3.1. Right of the Company to Purchase Shares in Case of Harmful
Activity...................................................7
Section 3.2. Notice of Harmful Activity.................................8
ARTICLE IV
REPRESENTATIONS AND WARRANTIES...............................................8
Section 4.1. Representations and Warranties of the Management
Stockholders...............................................8
Section 4.2. Representations and Warranties of the Company..............9
ARTICLE V
DEFINITIONS..................................................................9
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ARTICLE VI
MISCELLANEOUS...............................................................15
Section 6.1. Notices...................................................15
Section 6.2. Term of the Agreement.....................................16
Section 6.3. Amendments; Waivers.......................................16
Section 6.4. Adjustment Upon Changes in Capitalization.................16
Section 6.6. Severability..............................................17
Section 6.7. Representatives, Successors and Assigns...................17
Section 6.8. Governing Law.............................................17
Section 6.9. Specific Performance......................................17
Section 6.10. Arbitration...............................................18
Section 6.11. Submission to Jurisdiction; Waiver of Immunity............18
Section 6.12. Further Assurances........................................19
Section 6.13. Execution in Counterparts.................................19
Section 6.14. Entire Agreement..........................................19
Schedule I
Schedule II
Schedule III
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STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is dated as of August
18, 1998, by and among (i) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc., a Delaware corporation (the
"Company"), (ii) the Principals (as defined below) listed on Schedule I hereto
and (iii) the Family Affiliates (as defined below) listed on Schedule II hereto.
Capitalized terms used herein have their respective meanings set forth in
Article V of this Agreement.
W I T N E S S E T H :
WHEREAS, the parties hereto have entered into a Plan of Merger and
Exchange Agreement, dated as of August 18, 1998 (the "Exchange Agreement"),
pursuant to which (i) the Principals and their Family Affiliates, as sole
members of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLC, a Delaware limited liability company ("NB
LLC"), will contribute their respective interests in NB LLC to the Company in
exchange for shares of common stock, par value $.01 (the "Common Stock"), of the
Company (the "Exchange") and (ii) ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Sub Inc., a wholly-owned
direct subsidiary of the Company, will merge into ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management
Incorporated, a New York corporation ("NBMI"), with the Principals, as the sole
shareholders of NBMI, will receive shares of the Common Stock (the "Merger");
WHEREAS, as a result of the Exchange and Merger, the Principals and
their Family Affiliates (collectively, the "Management Stockholders") will Own
all of the issued and outstanding Common Stock;
WHEREAS, the Company and the Management Stockholders desire to enter
into certain agreements with respect to the Transfer and voting of their Common
Stock and various other matters in order to continue harmonious relationships
among the themselves with respect to the conduct of the business and affairs of
the Company;
WHEREAS, most of the Principals have devoted a substantial portion of
their professional careers with the Company Group and its predecessors, and the
parties hereto desire to encourage the Principals to continue their long-term
professional association with the Company for the good of all parties; and
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WHEREAS, it is a condition precedent to the closing under the Exchange
Agreement that the parties hereto enter into this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and provisions herein contained and for good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
LIMITATIONS ON TRANSFER OF SHARES
Section 1.1. Transfers Generally. Each Management Stockholder agrees
that, in addition to any restrictions imposed by law, no Management Stockholder
shall Transfer any Management Shares Owned by such Management Stockholder,
except that:
(a) Prior to January 1, 2001, each New Principal may Transfer a number
of Management Shares not to exceed the number of Management Shares set forth
opposite his or her name on Schedule III;
(b) Subject to Section 1.1(c), on and after January 1, 2001, each
Principal, together with his or her Family Affiliates, may in the aggregate
Transfer in any calendar year a number of Management Shares not to exceed
10% of the aggregate Number of Initial Shares Owned by such Principal and
Family Affiliates, provided that:
(i) Prior to the third anniversary of the Employment
Termination Date of such Principal, neither such Principal nor any of
his or her Family Affiliates may Transfer Management Shares if, as a
result of such Transfer, such Principal and Family Affiliates would in
the aggregate Own less than that number of Management Shares that is
equal to 20% of the aggregate Number of Initial Shares Owned by such
Principal and Family Affiliates; and
(ii) Commencing on such Principal's Employment Termination
Date and continuing until the third anniversary thereof, such Principal
and his or her Family Affiliates may not Transfer any Management Shares
other than Management Shares eligible to be Transferred but not
Transferred on or prior to such Employment Termination Date; and
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(iii) Any Management Shares in respect of which the Company
has exercised its right of purchase pursuant to Article III hereof may
only be Transferred in accordance with Article III.
Any number of Management Shares eligible to be Transferred in any
calendar year under this Section 1.1(b) but not so Transferred may be
Transferred in any future calendar year without any restriction imposed by
this Section 1.1(b).
(c) Notwithstanding Section 1.1(b), if the Employment Termination Date
of any Principal occurs prior to January 1, 2002,
(i) Such Principal and his or her Family Affiliates may not
Transfer any Management Shares prior to January 1, 2006; and
(ii) Subject to Section 3.1, on and after January 1, 2006,
such Principal, together with his or her Family Affiliates, may in the
aggregate Transfer in any calendar year up to that number of Management
Shares that is equal to 20% of the aggregate number of Management
Shares Owned by such Principal and his or her Family Affiliates on the
Employment Termination Date of such Principal, provided that any number
of Management Shares that was eligible to be Transferred under this
clause (ii) but not so Transferred may be Transferred in any future
calendar year without regard to the 20% annual limit imposed on
Transfers by this clause (ii);
provided, further, that this Section 1.1(c) shall not apply if such
Principal's employment with the Company Group was terminated by the Company
Group without Cause.
Section 1.2. Transfers Following Death or Disability. Notwithstanding
any other provisions of this Agreement, upon the death or Disability of any
Principal, such Principal (or his or her estate) and his or her Family
Affiliates may Transfer Management Shares free of any provisions of this
Agreement.
Section 1.3. Transfers with the Consent of Board of Directors.
Notwithstanding any other provisions of this Agreement, a Management Stockholder
may Transfer any number of Management Shares at any time with the prior written
consent of the Board of Directors, which consent may be withheld or delayed, or
granted on such terms and conditions as it may determine, in its sole
discretion.
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Section 1.4. Compliance with Law and Regulations. Each Management
Stockholder agrees that any Transfer of Management Shares by such Management
Stockholder shall be in compliance with any applicable constitution, rule or
regulation of, or any applicable policy of, the NASD, any of the exchanges or
associations or other institutions with which the Company Group has membership
or other privileges (including, without limitation, the NYSE), federal and state
securities laws, and any applicable law, rule or regulation of the Commission or
any other governmental agency having jurisdiction.
Section 1.5. Legend on Certificates; Entry of Stop Transfer Orders. (a)
Each Management Stockholder agrees that each outstanding certificate
representing any Management Shares that are subject to this Agreement shall bear
an endorsement noted conspicuously on each such certificate reading
substantially as follows:
"The securities represented by this certificate were issued without
registration under the Securities Act of 1933. No transfer of such
securities may be made without an opinion of counsel, satisfactory to the
Company, that such transfer may properly be made without registration under
the Securities Act of 1933 or that such securities have been so registered
under a registration statement which is in effect at the date of such
transfer.
The securities represented by this certificate are subject to the
provisions of an agreement dated as of August __, 1998 among the Company and
certain persons listed on Schedules I and II to such agreement, a copy of
which is on file at the principal executive office of the Company, and such
securities may be sold, assigned, pledged or otherwise transferred only in
accordance with such agreement."
(b) Each Management Stockholder agrees to the entry of stop transfer
orders against the transfer of legended certificates representing shares of
Common Stock except in compliance with this Agreement.
Section 1.6. Certificates to be Held by Company. (a) Each Management
Stockholder agrees that the certificates representing such Management
Stockholder's Management Shares shall be issued in the name of a nominee holder
to be designated by the Company and shall be held in custody by the Company at
its principal office. The Company shall, upon the request of any such Management
Stockholder or the estate of any Management Stockholder, as the case may be, in
writing addressed to the Secretary of the Company or any officer designated by
the Secretary (which request shall include a
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representation by such Management Stockholder or estate thereof that such
Management Stockholder is then permitted to Transfer a specified number of
Management Shares under the provisions of this Agreement), promptly release from
custody the certificates representing such specified number of Management
Stockholder's Management Shares which are then intended and permitted to be
Transferred under the provisions of this Agreement.
(b) Subject to the Management Stockholders having provided appropriate
written direction to the Company, whenever the nominee holder shall receive any
cash dividend or other cash distribution upon any Management Shares deposited
pursuant to Section 1.6(a), the Company shall cause the nominee holder to
distribute promptly such cash dividend or other distribution (by sale or any
other manner that it may determine, net of its charges and expenses in effecting
such conversion), by checks drawn on a bank in the United States, to the
Management Stockholders in proportion to the number of Management Shares Owned
by each of them respectively; provided that the Company shall cause the nominee
holder to make appropriate adjustments in the amounts so distributed in respect
of any amounts required to be withheld by the nominee holder from any
distribution on account of taxes. The nominee holder shall distribute only such
amount as can be distributed without distributing to any Management Stockholder
a fraction of one cent, and any balance not so distributable shall be held by
the nominee holder (without liability for interest thereon) and shall be added
to and become part of the next sum received by the nominee holder for
distribution to the Management Stockholders.
Section 1.7. Transfers in Violation of Agreement Void. Any attempted
Transfer of Management Shares not made in accordance with the provisions of this
Agreement shall be void, and the Company shall not register, or cause or permit
the registry, of Common Stock Transferred in violation of this Agreement.
ARTICLE II
VOTING AGREEMENT
Section 2.1. Preliminary Vote of Management Stockholders. Before any
vote of the stockholders of the Company at a meeting called with respect to any
corporate action or before action is taken by stockholders of the Company by
written consent, a vote (the "Preliminary Vote") shall be taken of Management
Stockholders Owning Management Shares and of Additional Stockholders Owning
Additional Shares, in accordance with procedures established from time to time
by the Board of Directors,
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upon all such matters upon which such stockholder vote or other action is
proposed to be taken, in which each Management Stockholder and Additional
Shareholder shall be permitted to vote the Management Shares and Additional
Shares then Owned by such stockholder in such manner as each such stockholder
may determine in his, her or its sole discretion.
Section 2.2. Voting by Management Stockholders. (a) At any meeting of
the stockholders of the Company called to vote with respect to any corporate
action or where action by stockholders of the Company is taken by written
consent, each Management Stockholder agrees to vote or act by written consent
with respect to all the Management Shares then Owned by such stockholder on all
such matters in which action is proposed to be taken in accordance with the vote
of the majority of the shares present (in person or by proxy) and voting in the
Preliminary Vote.
(b) For purposes of effecting any vote pursuant to this Section 2.2,
each Management Stockholder does hereby irrevocably make, constitute and appoint
the Secretary of the Company, or any officer(s) designated in writing by the
Secretary, with full power of substitution, as his, her or its true
attorney-in-fact and agent, for and in his, her or its name, place and stead, to
act as his proxy to the maximum extent and for the maximum term permitted by law
to (i) vote such Management Stockholder's Management Shares at any meeting of
stockholders of the Company or to take any corporate action where action by
stockholders of the Company is taken by written consent with respect to such
Management Shares, in each case in accordance with Section 2.2(a) and (ii) vote
such Management Stockholder's Management Shares in such proxy holder's
discretion upon any other business which properly comes before such meetings or
for which action is to be taken pursuant to such written consents, giving and
granting to said attorney full power and authority to do and perform each and
every act and thing whether necessary or desirable to be done in and about the
premises, as fully as he, she or it might or could do if personally present,
with full power of substitution, appointment and revocation. The foregoing
power of attorney and proxy are coupled with an interest and shall not be
revocable or revoked by such Management Stockholder and shall be binding upon
such stockholder and his, her or its successors and assigns.
Section 2.3. Termination of Voting Provisions. Notwithstanding any
other provisions of this Agreement, (i) the right of any Principal and his or
her Family Affiliate to participate in the Preliminary Vote, (ii) the obligation
of any Principal and his or her Family Affiliate to vote in accordance with
Section 2.2 and (iii) the irrevocable power of attorney and proxy provided by
such Management Stockholders pursuant to Section 2.2(b) shall, in each case,
terminate at the close of business on the Employment Termination Date of such
Principal.
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ARTICLE III
RIGHT TO PURCHASE SHARES
Section 3.1. Right of the Company to Purchase Shares in Case of Harmful
Activity. (a) If, on or prior to the third anniversary of the Employment
Termination Date of any Principal, the Board of Directors determines in its good
faith judgment that such Principal has engaged in Harmful Activity, the Company
shall have the right to purchase, at any time or from time to time, from such
Principal (or, to the extent a Principal does not Own sufficient shares of
Common Stock to satisfy his or her obligations under this Section 3.1, to
purchase from his or her Family Affiliates pro rata in accordance with the
number of Management Shares Owned by such Family Affiliates on the Notice Date),
the number of Management Shares Owned by such Principal and his or her Family
Affiliates that could not have been Transferred by such Management Stockholders
in accordance with Section 1.1 prior to the Notice Date. The purchase price of
each Management Share (the "Purchase Price") purchased by the Company pursuant
to this Section 3.1 shall equal $1.75 per share.
(b) The Company may exercise its right to purchase Management Shares
under this Section 3.1 in accordance with the following procedures:
(i) The Company shall give notice to the Management Stockholder that
Owns the Management Shares subject to such right of purchase not later than
the close of business on the third anniversary of the Employment Termination
Date of such Principal (the "Notice Date"), advising such Management
Stockholder of the Company's election to exercise such right, stating the
number of Management Shares to be so purchased, the Purchase Price, closing
arrangements and a closing date at which payment of the consideration for
such Management Shares will be made, which date shall be not less than five
days nor more than 90 days after the Notice Date.
(ii) On the closing date, the Company and such Management Stockholder
shall cause the nominee holding the Management Shares being so purchased to
deliver the certificates representing such Management Shares, properly
endorsed for transfer by such Management Stockholder or his, her or its
attorney-in-fact, to the Company at its principal place of business and the
Company shall deliver to such Management Stockholder the consideration
therefor (it being understood and confirmed that NB LLC has been appointed
attorney-in-fact for such Management Stockholder pursuant to the Exchange
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Agreement to take all such actions, to make such endorsements and to
execute such documents as may be required to consummate the sale under this
Section 3.1 of Management Shares to the Company).
(c) If a Principal and his or her Family Affiliates are unable to
satisfy their obligations under this Section 3.1 to deliver Management Shares to
the Company for any reason, such Principal shall be liable to the Company, as
liquidated damages and not as a penalty, for an amount equal to the product of
(i) the number of Management Shares that should have been sold to the Company
under this Section 3.1 but were not sold and (ii) the excess, if any, of the
Market Value of such shares as of the Notice Date over the Purchase Price.
Section 3.2. Notice of Harmful Activity. Prior to the third anniversary
of such Principal's Employment Termination Date, each Principal who ceases to be
an employee of the Company and who engages (or intends to engage) in Harmful
Activity agrees (a) to notify the Company in writing in reasonable detail at
least 30 days prior to engaging in such Harmful Activity, (b) to respond to such
questions and furnish such additional information as the Company may request
with respect to such Harmful Activity and (c) to update such written notice or
inquiries promptly in the event of any circumstances that would cause any
notices or responses to be inaccurate or incomplete.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of the Management
Stockholders. Each Management Stockholder severally represents and warrants to
the Company and to each other Management Stockholder that (a) in the case of a
Management Shareholder who is not a natural person, such Management Stockholder
is duly authorized to execute, deliver and perform this Agreement; (b) this
Agreement has been duly executed by such Management Shareholder or his, her or
its attorney-in-fact on behalf of such Management Stockholder and is a valid and
binding agreement of such Management Shareholder, enforceable against such
Management Shareholder in accordance with its terms; (c) the execution, delivery
and performance by such Management Shareholder of this Agreement does not
violate or conflict with or result in a breach of or constitute (or with notice
or lapse of time or both constitute) a default under any agreement to which such
Management Shareholder is a party; and (d) such Management Stockholder has good
and marketable title to the shares of Common Stock
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acquired pursuant to the Exchange free and clear of any pledge, lien, security
interest, charge, claim, equity or encumbrance of any kind, other than pursuant
to this Agreement.
Section 4.2. Representations and Warranties of the Company. The Company
represents and warrants to the Management Stockholders that (a) the Company is
duly authorized to execute, deliver and perform this Agreement; (b) this
Agreement has been duly authorized, executed and delivered by the Company and is
a valid and binding agreement of the Company, enforceable against the Company in
accordance with its terms; and (c) the execution, delivery and performance by
the Company of this Agreement does not violate or conflict with or result in a
breach by the Company of or constitute (or with notice or lapse of time or both
constitute) a default by the Company under its Certificate of Incorporation or
By-Laws, any existing applicable law, rule, regulation, judgment, order, or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company or its property including the
requirements of the NYSE, or any agreement or instrument to which the Company is
a party or by which the Company or its property may be bound.
ARTICLE V
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
"Additional Shares" means shares of Common Stock Owned by an Additional
Stockholder that, pursuant to an agreement with the Company, are to be voted
in accordance with Article II of this Agreement.
"Additional Stockholder" means any Person that Owns Common Stock who
has agreed, pursuant to an agreement with the Company, to vote shares of
such Common Stock in accordance with Article II of this Agreement.
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"AMEX" has the meaning set forth in Section 6.10(b).
"Board of Directors" means the Board of Directors of the Company or, to
the extent expressly authorized by the Board of Directors to exercise the
powers of the Board of Directors under this Agreement, (i) any committee of
such Board
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of Directors or (ii) any board of directors or committee of any
Subsidiary of the Company.
"Business Day" means a day on which the principal national securities
exchange on which shares of Common Stock are listed or admitted to trading
is open for the transaction of business or, if the shares of Common Stock
are not listed or admitted to trading on any national securities exchange, a
Monday, Tuesday, Wednesday, Thursday or Friday on which banking institutions
in the Borough of Manhattan, City and State of New York are not authorized
or obligated by law or executive order to close.
"Cause" means, with respect to any Principal:
(a) gross negligence or willful misconduct in the performance
of his or her duties as an employee of the Company Group or willful and
repeated failure to perform his or her duties after written notice
specifying such failure and a reasonable time having been afforded to
correct such failure;
(b) conviction of, or entering a plea of nolo contendere to, a
felony (other than for a traffic violation) or a misdemeanor involving
fraud, embezzlement, forgery or perjury;
(c) dishonesty that has resulted in damage to the property,
business or reputation of the Company and its Subsidiaries,
misappropriation of, or intentional damage to, the property, business
or reputation of the Company and its Subsidiaries, perpetration of
fraud on the Company Group that has resulted in damage to the property
or business of the Company Group; or
(d) a finding by the Commission or a court of competent
jurisdiction that he or she has committed an act that would cause such
Management Stockholder, the Company or any of its affiliates to be
disqualified in any manner under section 9 of the Investment Company
Act, if the Commission were not to grant an exemptive order under
section 9(c) thereof, or that would constitute grounds for the
Commission to deny, revoke or suspend registration of the Company or
any of its affiliates as an investment advisor, broker-dealer or
transfer agent, as applicable, with the Commission.
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"Closing Price" means, on any day, the last sales price, regular way,
per share of Common Stock on such day, or, in case no such sale takes place
on such day, the average of the closing bid and asked prices, regular way,
as reported in the principal consolidated transaction reporting system
covering securities listed or admitted to trading on the NYSE or, if shares
of Common Stock are not listed or admitted to trading on the NYSE, as
reported in the principal consolidated transaction reporting system covering
securities listed on the principal national securities exchange on which the
shares of Common Stock are listed or admitted to trading or, if the shares
of Common Stock are not listed or admitted to trading on any national
securities exchange, the average of the high bid and low asked prices in the
over-the-counter market, as reported by the National Quotation Bureau, Inc.,
or a similar reporting service designated by the Board of Directors.
"Commission" means the Securities and Exchange Commission.
"Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Company" has the meaning set forth in the preamble to this Agreement
and any successors thereof, whether by operation of law or otherwise.
"Company Group" means the Company and its Subsidiaries.
"Confidential Information" means information developed by or for the
Company Group that has a significant business purpose related to the
business of the Company Group and that is not generally available in the
investment management industry or the public generally, but only for so long
as such information continues to have a significant business purpose for the
Company Group.
"Disability" means disability as that term is defined under the
Company's long-term disability plan in effect at the date of such
determination, or any other plan or definition designated by the Board of
Directors for the purpose of this provision.
"Effective Time" shall have the meaning given therefor in the Exchange
Agreement.
"Employment Termination Date" means, with respect to any Principal, the
date of termination of such Principal's employment with the Company Group
for
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any reason, (whether or not terminated by action of the Company Group),
as determined by the Board of Directors in its sole and absolute discretion.
"Exchange" has the meaning set forth in the recitals to this Agreement.
"Exchange Agreement" has the meaning set forth in the recitals to this
Agreement.
"Family Affiliates" means, as the context requires, (a) the Persons
listed on Schedule II hereto or (b) with respect to any Principal, (i) the
Persons listed on Schedule II hereto to whom such Principal transferred a
limited liability company interest prior to the Exchange and (ii) any Person
to whom such Principal Transfers Management Shares with the written consent
of the Board of Directors in accordance with Section 1.3 and who agrees in
writing to be subject to the terms and provisions of this Agreement as a
Family Affiliate.
"Harmful Activity" by a Principal means such Principal, directly or
indirectly, either individually or as owner, partner, agent, employee,
consultant or otherwise:
(a) engages in any business or activity in which the Company
Group was, at any time during the one year period prior to such
Principal's Employment Termination Date, engaged or that the Company
Group, to the knowledge of such Principal, intends to commence,
provided that the foregoing shall not be construed to prevent a
Principal from owning, as an investment, less than 5% of a class of
equity securities issued by any entity (or its Subsidiaries) engaged in
such business or activity so long as such securities are publicly
traded and registered under section 12 of the Securities Exchange Act
of 1934, as amended, or such entity is registered as an investment
company under the Investment Company Act, provided, further, that the
foregoing shall not be deemed to be Harmful Activity if engaged in by
any Principal (i) whose employment by the Company Group is terminated
by the Company Group other than for Cause or (ii) whose Employment
Termination Date occurs after December 31, 2005;
(b) solicits or accepts business from (i) any Person who was a
client of the Company Group during the one year period prior to such
Principal's Employment Termination Date or (ii) any prospective client
of the Company Group who, within the one year period prior to such
Employment Termination Date, had been directly solicited by such
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Principal or where, directly or indirectly, in whole or in part, such
Principal supervised or participated in the Company Group's
solicitation activities related to such prospective client;
(c) solicits or accepts business from or through, or engages
in any sales or marketing activities with, any financial intermediary
(including, without limitation, any broker-dealer, bank, insurance
company, financial planner or other financial institution), or any
person employed by or associated with a financial intermediary, with
whom such Principal had business contact during the one year period
prior to such Principal's Employment Termination Date;
(d) (i) employs any current or former employee or consultant
of the Company Group (other than clerical, secretarial and other
similar support personnel) or (ii) recruits, solicits or induces (or in
any way assists another in recruiting, soliciting or inducing) any such
Person to terminate his or her employment or consultantship with the
Company Group, unless, in the case of (i) or (ii), such person shall
have ceased to be employed by or a consultant to the Company Group for
a period of at least one year prior to the time of such employment,
recruitment, solicitation or inducement;
(e) markets, promotes or otherwise trades on or (other than
solely in connection with seeking new employment) claims (or in any
way, other than in connection with the business of the Company Group,
assists any Person in marketing, promoting or otherwise trading on or
claiming) as such Principal's (or such other Person's), the investment
performance record (including without limitation performance ratings or
rankings provided by any rating or ranking service) of any mutual fund,
client account or group of mutual funds or client accounts with which
such Principal was associated while employed with the Company Group; or
(f) discloses to any person, firm or corporation any
Confidential Information that is known to the Principal as a result of
his or her employment or professional association with the Company
Group or uses the same in any way other than in connection with the
business of the Company Group.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, and the rules and regulations promulgated thereunder.
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"Management Shares" means, with respect to any Management Stockholder,
the shares of Common Stock received by such Management Shareholders as a
result of the Exchange or, in the case of any Management Stockholder that
becomes a party to this Agreement by an amendment to Schedule I or II
hereof, the shares of Common Stock designated on such Schedule as such
Management Stockholder's Management Shares.
"Management Stockholders" has the meaning set forth in the recitals to
this Agreement.
"Market Value" means the average of the daily Closing Prices for the
ten consecutive Business Days ending on the Business Day immediately prior
to the date of determination.
"Merger" has the meaning set forth in the recitals to this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"New Principal" means a Principal listed on Schedule III.
"NB LLC" has the meaning set forth in the recitals to this Agreement.
"NBMI" has the meaning set forth in the recitals to this Agreement.
"Notice Date" has the meaning set forth in Section 3.1(b)(i).
"Number of Initial Shares" means, with respect to any Management
Stockholder, the number of shares set forth opposite such Management
Stockholder's name on Schedule I or Schedule II, as the case may be.
"NYSE" means the New York Stock Exchange, Inc.
"Option Period" has the meaning set forth in Section 3.1(a).
"Own" means to own of record or beneficially, whether directly, through
a nominee designated by the Company pursuant to Section 1.6 or through any
other Person.
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"Person" means any natural person or any firm, partnership,
limited liability partnership, association, corporation, limited
liability company, trust, business trust, governmental authority or
other entity.
"Preliminary Vote" has the meaning set forth in Section 2.1.
"Principals" means the natural persons listed on Schedule I
hereto.
"Purchase Price" has the meaning set forth in Section 3.1(a).
"Subsidiary" means a corporation, limited liability company or
other entity of which the Company, directly or indirectly, has the
power, whether through the ownership of voting securities, equity
interests, contract or otherwise, (i) to elect at least a majority of
the members of such entity's board of directors or other governing body
or (ii) in the absence of a governing body, to control the business
affairs of such entity.
"Transfer" means, with respect to any Management Shares,
directly or indirectly, (i) to sell, assign, transfer, pledge, convey,
distribute, mortgage, encumber, hypothecate or otherwise dispose,
whether by gift, for consideration or for no consideration and (ii) to
grant any right to vote, whether by proxy, voting agreement, voting
trust or otherwise.
ARTICLE VI
MISCELLANEOUS
Section 6.1. Notices. (a) All notices, requests, demands,
waivers and other communications to be given by any party hereunder shall be in
writing and shall be (i) mailed by first-class, registered or certified mail,
postage prepaid, (ii) sent by hand delivery or reputable overnight delivery
service or (iii) transmitted by telecopy (provided that a copy is also sent by
reputable overnight delivery service) addressed, in the case of any Principal,
to him or her at the address set forth on Schedule I, in the case of any Family
Affiliate, to it at the address set forth on Schedule II or, in the case of the
Company, to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Secretary, or, in each case, to such other address as may be
specified in writing to the other parties hereto.
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(b) All such notices, requests, demands, waivers and other
communications shall be deemed to have been given and received (i) if by
personal delivery or telecopy, on the day of such delivery, (ii) if by
first-class, registered or certified mail, on the fifth Business Day after the
mailing thereof or (iii) if by reputable overnight delivery service, on the day
delivered.
Section 6.2. Term of the Agreement. (a) This Agreement shall
become effective upon the occurrence of the Effective Time and shall terminate
on the earlier to occur of (i) the first date on which there are no Management
Stockholders who remain bound by its terms and (ii) the date on which the
Company and all Management Stockholders who are then bound by its terms agree to
terminate this Agreement.
(b) Unless this Agreement is theretofore terminated pursuant
to Section 6.2(a) hereof, a Management Stockholder shall be bound by its terms
until all Management Shares Owned by such Management Stockholder are free of the
provisions of Articles I, II and III hereof.
Section 6.3. Amendments; Waivers. (a) This Agreement may be
amended or modified, and any provision in this Agreement may be waived, if such
amendment, modification or waiver is approved by the Board of Directors,
provided that any amendment that would materially adversely affect any
Management Stockholder (other than an amendment that, in the good faith judgment
of the Board of Directors, is intended to cure any ambiguity or correct or
supplement any provisions of this Agreement that may be incomplete or
inconsistent with any other provision contained herein) must be approved by the
Management Stockholders that Own a majority of the Management Shares subject to
this Agreement as of the date of such amendment or modification, provided,
further, that, without the consent of any Person, the Board of Directors may
permit any Person who executes and delivers a counterpart of this Agreement to
become a party to this Agreement by amending Schedule I or II hereto, as the
case may be.
(b) The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
rights at a later time to enforce the same. No waiver by any party of the breach
of any term contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such breach or the breach of any other term of this
Agreement.
Section 6.4. Adjustment Upon Changes in Capitalization. In the
event of any change in the outstanding shares of the Company by reason of stock
dividends, split-ups,
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recapitalizations, combinations, exchanges of shares and the like, the term
"shares of Common Stock" shall refer to and include the securities received or
resulting therefrom and the terms and provisions of this Agreement, including
without limitation the terms "Management Shares" and "Purchase Price," shall be
appropriately adjusted so that each Management Stockholder will thereafter
continue to have and be subject to, to the greatest extent practicable, the same
rights and obligations he, she or it had been subject to prior to such change.
Section 6.5. Disinterested Board Members to Make
Determinations. In the event that any Management Stockholder breaches its
obligations under this Agreement, then the Board of Directors shall have the
exclusive right to make (on behalf of the Company) any and all determinations
that may be necessary or appropriate under this Agreement, including without
limitation, determinations relating to the exercise and enforcement of remedies
hereunder. If a Management Stockholder who is also a member of the Board of
Directors breaches his or her obligations under this Agreement, such Management
Stockholder must refrain from exercising his or her vote at meetings of the
Board and general meetings of the Company to give effect to this Section 6.5.
Section 6.6. Severability. If the final determination of a
court of competent jurisdiction declares, after the expiration of the time
within which judicial review (if permitted) of such determination may be
perfected, that any term or provision hereof is invalid or unenforceable, (a)
the remaining terms and provisions hereof shall be unimpaired and (b) the
invalid or unenforceable term or provision shall be deemed replaced by a term or
provision that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision.
Section 6.7. Representatives, Successors and Assigns. Each
Principal shall cause his or her Family Affiliate to comply with the terms and
provisions of this Agreement. This Agreement shall be binding upon and inure to
the benefit of the respective parties hereto and their respective legatees,
legal representatives, successors and assigns; provided that Management
Stockholders may not assign, delegate or otherwise transfer any of their rights
or obligations under this Agreement except with the written consent of the Board
of Directors.
Section 6.8. Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE (WITHOUT REGARD TO THE CONFLICT OF
LAWS PRINCIPLES OR RULES THEREOF).
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Section 6.9. Specific Performance. Each of the parties hereto
acknowledges that it will be impossible to measure in money the damage to the
Company or the Management Stockholders if any party hereto fails to comply with
the provisions of Article I, II or III and each party hereto agrees that in the
event of any such failure, neither the Company nor any Management Stockholder
will have an adequate remedy at law. Therefore, the Company and each Management
Stockholder, in addition to all of the other remedies which may be available,
shall have the right to equitable relief, including, without limitation, the
right to enforce specifically the provisions of Article I, II and III by
obtaining injunctive relief against any violation thereof, or otherwise. All
claims for specific performance of one or more provisions of this Agreement
shall be resolved exclusively by litigation before a court of competent
jurisdiction located in the State of New York.
Section 6.10. Arbitration. Except for claims for specific
performance brought in accordance with Section 6.9, all disputes, differences,
and controversies arising out of or in any way related to this Agreement shall
be submitted:
(a) to the NYSE to be heard and decided under the terms of
this Agreement and the then applicable rules of the NYSE or, if those
rules as interpreted by the NYSE do not permit the disputes,
differences and controversies to be submitted to the NYSE for
arbitration; then
(b) to the American Stock Exchange (the "AMEX") in New York,
New York, to be heard and decided under the terms of this Agreement and
the then applicable rules of the AMEX or, if those rules as interpreted
by the AMEX do not permit the disputes, differences and controversies
to be submitted to the AMEX for arbitration; then
(c) to the NASD in New York, New York, to be heard and decided
under the terms of this Agreement and the then applicable rules of the
NASD or, if the disputes, differences and controversies are not
eligible for submission to the NASD for arbitration under those rules
as interpreted by the NASD; then
(d) to the American Arbitration Association in New York, New
York;
to be heard and decided under the terms of this Agreement and in accordance with
the then applicable rules of the hearing body by a panel of three arbitrators
(unless the rules of the hearing body shall require a different number of
arbitrators) chosen in accordance with the then applicable rules of the hearing
body. The decision of the arbitrators shall
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be final and binding upon the parties, and an order may be entered upon the
award of the arbitrators in any court of competent jurisdiction.
Section 6.11. Submission to Jurisdiction; Waiver of Immunity.
Each Management Stockholder, for itself and its successors and assigns, hereby
irrevocably waives (a) any objection, and agrees not to assert, as a defense in
any arbitration or legal or equitable action, suit or proceeding against such
Management Stockholder arising out of or relating to this Agreement or any
transaction contemplated hereby or the subject matter of any of the foregoing,
that (i) it is not subject thereto or that such action, suit or proceeding may
not be brought or is not maintainable before such arbitral body or in said
courts, (ii) the venue thereof may not be appropriate and (iii) the internal
laws of the State of New York do not govern the validity, interpretation or
effect of this Agreement, (b) any immunity from jurisdiction to which it might
otherwise be entitled in any such arbitration, action, suit or proceeding which
may be instituted before any state or federal court in the State of New York in
accordance with Section 6.9 or before any arbitral body in accordance with
Section 6.10 and (c) any immunity from the maintaining of an action against it
to enforce any judgment for money obtained in any such arbitration, action, suit
or proceeding and, to the extent permitted by applicable law, any immunity from
execution.
Section 6.12. Further Assurances. Each Management Stockholder
agrees to execute such additional documents and take such further action as may
be requested by the Company to effect the provisions of this Agreement.
Section 6.13. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 6.14. Entire Agreement. This Agreement, including the
Schedules hereto, contains the entire understanding of the parties with respect
to the subject matter hereof, and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first above written.
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Executive Officer
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The foregoing Stockholders Agreement is hereby agreed to by the undersigned as
of August 18, 1998.
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇ III
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/C. ▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. Risen
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/▇▇▇▇ ▇. ▇▇▇▇▇
/s/R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/▇▇▇▇ ▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇.
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Associates, Inc.,
its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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BERLIN ASSOCIATES, L.P.
By: Berlin Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
CANTOR ASSOCIATES, L.P.
By: Cantor Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
EGENER ASSOCIATES, L.P.
By: Egener Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President
FRANCFORT 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware, as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Trustee
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Trustee
GANEK ASSOCIATES, L.P.
By: Ganek Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
GIULIANO ASSOCIATES, L.P.
By: Giuliano Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
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▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
KAMEN ASSOCIATES, L.P.
By: Kamen Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
President
LAINOFF ASSOCIATES, L.P.
By: Lainoff Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
President
LASSER ASSOCIATES, L.P.
By: Lasser Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇▇▇ III ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇ III Associates, Inc.,
its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇ III
President
McKERROW ASSOCIATES, L.P.
By: McKerrow Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
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NEUBERGER ASSOCIATES, L.P.
By: Neuberger Associates, Inc., its general partner
By: /s/▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware, as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Trustee
POTTER ASSOCIATES, L.P.
By: Potter Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇▇ ▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ ▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
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▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware, as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Trustee
/s/R. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ 1998 TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Trustee
▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇ ▇▇▇▇▇▇▇
President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
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▇▇▇▇▇▇ 1998 GST TRUST
By: Neuberger&Berman Trust Company of Delaware, as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Trustee
/s/▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
Trustee
WEINER 1998 GRANTOR RETAINED ANNUITY TRUST
By: Neuberger&Berman Trust Company of Delaware,
as Trustee
By: /s/▇▇▇▇ ▇. ▇▇▇▇
Vice President
/s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Trustee
/s/Bintoar Palar
Trustee
▇▇▇▇▇▇▇▇ ASSOCIATES, L.P.
By: ▇▇▇▇▇▇▇▇ Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President
ZICKLIN ASSOCIATES, L.P.
By: Zicklin Associates, Inc., its general partner
By: /s/▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
President
27
31
SCHEDULE I
TO
STOCKHOLDERS AGREEMENT
Name and Address* of Principal Number of Initial Shares
------------------------------ ------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 223,044
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 4,413,182
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 939,682
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 897,685
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 926,645
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 223,044
▇▇▇▇▇▇▇▇▇ ▇'▇▇▇▇ 336,442
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 2,227,935
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 945,432
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 908,176
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 641,769
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 658,210
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 2,551,336
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ 1,281,483
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 790,170
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 588,233
▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,362,312
▇▇▇▇ ▇. ▇▇▇▇▇▇ 911,302
▇▇▇▇▇▇▇ ▇▇▇▇ 207,646
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 582,467
--------
* Unless otherwise indicated, the address of each Principal is c/o
Neuberger ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
32
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,172,087
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,231,153
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ 174,380
▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,755,442
▇▇▇▇▇▇ ▇▇▇▇▇▇ 226,932
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 649,118
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,492,963
▇▇▇▇▇▇▇▇ ▇▇▇▇ III 1,810,951
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 1,436,738
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 573,094
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 1,137,967
▇▇▇▇ ▇. ▇▇▇▇▇▇ 2,359,215
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 2,028
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 634,468
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 533,277
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 590,888
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 686,782
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 421,109
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,953,838
C. ▇▇▇▇ ▇▇▇▇▇▇▇▇ 472,171
▇▇▇▇▇ ▇. Risen 715,023
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 270,558
J. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ 411,772
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ 3,047,587
▇▇▇▇▇▇▇▇ Silver 644,327
▇▇▇▇ ▇. ▇▇▇▇▇▇ 4,136,509
R. ▇▇▇▇▇▇ ▇▇▇▇▇▇ 711,003
▇▇▇▇▇▇ ▇▇▇▇▇▇ 391,309
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 1,110,888
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 309,691
▇▇▇▇ ▇▇▇▇▇ 934,919
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 859,923
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 263,464
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 178,969
▇▇▇▇▇ ▇▇▇▇▇▇▇ 326,455
▇▇▇▇▇ ▇▇▇▇▇▇▇ 291,260
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 161,670
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇ 523,696
▇▇▇▇▇▇ ▇. ▇▇▇▇ 2,757,296
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 618,717
2
33
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2,810,965
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2,179,204
3
34
SCHEDULE II
TO
STOCKHOLDERS AGREEMENT
Name and Address* of Family Affiliate Number of Initial Shares
------------------------------------- ------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Associates, L.P. 639,037
▇▇▇▇▇ Associates, L.P. 457,657
Berlin Associates, L.P. 948,279
▇▇▇▇▇▇ Associates, L.P. 228,260
Cantor Associates, L.P. 2,665,360
▇▇▇▇▇▇▇ Associates, L.P. 639,037
Egener Associates, L.P. 762,166
Francfort 1998 Grantor Retained Annuity Trust 276,286
Ganek Associates, L.P. 263,853
Giuliano Associates, L.P. 147,578
▇▇▇▇▇▇▇▇▇ Associates, L.P. 131,767
Kamen Associates, L.P. 120,271
▇▇▇▇▇▇ Associates, L.P. 819,111
▇▇▇▇▇▇▇▇▇▇▇▇ Associates, L.P. 354,462
Lainoff Associates, L.P. 442,967
Lasser Associates, L.P. 414,837
▇▇▇▇▇▇▇▇ ▇▇▇▇ III Associates, L.P. 1,273,247
McKerrow Associates, L.P. 106,926
▇▇▇▇▇▇▇▇▇ Associates, L.P. 1,060,442
Neuberger Associates, L.P. 176,940
▇▇▇▇▇▇ Associates, L.P. 343,402
▇▇▇▇▇▇▇ Associates, L.P. 1,354,688
▇▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust 650,350
Potter Associates, L.P. 153,612
▇▇▇▇▇▇▇▇ ▇▇ Associates, L.P. 5,261,559
---------
* Unless otherwise indicated, the address of each Family Affiliate is c/o
Neuberger & ▇▇▇▇▇▇ Trust Company of Delaware, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
35
▇▇▇▇▇▇▇▇ ▇▇ Associates, L.P. 5,261,558
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust 157,934
▇▇▇▇▇▇▇ Associates, L.P. 129,467
▇▇▇▇▇▇▇ Associates, L.P. 27,697
▇▇▇▇▇▇▇ 1998 Trust 658,695
▇▇▇▇▇▇▇ Associates, L.P. 248,679
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1998 Grantor Retained Annuity Trust 370,424
▇▇▇▇▇▇ 1998 GST Trust 37,042
Weiner 1998 Grantor Retained Annuity Trust 95,230
▇▇▇▇▇▇▇▇ Associates, L.P. 1,987,025
Zicklin Associates, L.P. 1,748,054
2
36
SCHEDULE III
TO
STOCKHOLDERS AGREEMENT
Number of Shares Eligible
New Principals To be Sold At Any Time
-------------- ----------------------
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇