EXHIBIT 4.1
▇▇▇▇▇ EQUIPMENT COMPANY
STOCKHOLDERS AGREEMENT
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THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of August 7,
1998, by and among ▇▇▇▇▇ Equipment Company, a Delaware corporation (the
"Company"), Madison Dearborn Capital Partners II, L.P., a Delaware limited
partnership (the "Investor"), Code, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.C., a Delaware
limited liability company, as trustee on behalf of certain parties pursuant to
that certain Trust Agreement dated as of August 7, 1998 ("CHS") and each of the
Persons listed on Schedule I and Schedule II attached hereto (collectively, the
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"Executives"). The Investor, CHS and the Executives are collectively referred to
as the "Stockholders" and individually as a "Stockholder." Certain capitalized
terms used herein are defined in Section 10 hereof.
WHEREAS, the Investor shall purchase shares of the Company's Common
Stock and Preferred Stock pursuant to a Recapitalization Agreement by and among
the Investor, certain of the Executives, the Company and certain others, dated
as of July 28, 1998 (the "Recapitalization Agreement"). Pursuant to the
Recapitalization Agreement, the Company will undergo a recapitalization which
will result in, among other things, the Investor holding the Company's Common
Stock and Preferred Stock, CHS holding the Warrant and the Executives party
thereto holding the Company's Common Stock and Preferred Stock. The execution
and delivery of this Agreement is a condition to the consummation of the
transactions contemplated by the Recapitalization Agreement.
WHEREAS, (i) the Company, Code, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ Limited Partnership
("CHSLP"), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., and ▇▇ ▇▇▇▇▇▇ are parties to
a Management Stockholders Agreement dated as of February 26, 1993, as amended by
Amendment No. 1 to Management Stockholders Agreement dated as of August 31,
1993, and (ii) the Company, CHSLP and ▇▇▇▇▇▇ ▇▇▇▇▇ are parties to a Second
Management Stockholders Agreement dated as of May 20, 1993, as amended by
Amendment No. 1 to Second Management Stockholders Agreement dated as of August
31, 1993 and as further amended by Amendment No. 2 to Second Management
Stockholders Agreement dated as of April 28, 1994 (the stockholders agreements
referred to in clauses (i) and (ii) are collectively the "Executive Stockholders
Agreements").
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement for the purposes, among others, of (i) defining the manner and terms
by which the Stockholder Shares may be transferred, (ii) providing piggyback
registration rights and (iii) terminating all prior stockholder agreements or
arrangements relating to the Company to which any Stockholder is a party.
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, the parties to this Agreement hereby agree as
follows:
1. Representations and Warranties. Each Stockholder represents and
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warrants that (i) such Stockholder is the record and beneficial owner of the
number of Stockholder Shares set forth under its name on its signature page to
this Agreement (in the case of CHS, that it is the record owner of the Warrant),
free and clear of any liens, claims or encumbrances, (ii) this Agreement has
been duly authorized, executed and delivered by such Stockholder and constitutes
the valid and binding obligation of such Stockholder, enforceable in accordance
with its terms, and (iii) such Stockholder has not granted and is not a party to
any proxy, voting trust or other agreement which is inconsistent with, conflicts
with or violates any provision of this Agreement. During the term of this
Agreement, no holder of Stockholder Shares shall grant any proxy or become party
to any voting trust or other agreement which is inconsistent with, conflicts
with or violates any provision of this Agreement.
2. Restrictions on Transfer of Stockholder Shares by Executive
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Stockholders.
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(a) Retention of Stockholder Shares. The Executive Stockholders shall
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not sell, transfer, assign, pledge or otherwise dispose of ("Transfer") any
interest in any Stockholder Shares, except for:
(i) Transfers pursuant to a Qualified Public Offering;
(ii Transfers pursuant to Sections 2(b) [Repurchase Rights], 4
[Drag-Along Rights] and 5 [Tag-Along Rights] hereof;
(iii) Transfers pursuant to Section 6 [Piggyback Registration
Rights];
(iv) Transfers made with the prior written consent of the Board;
(v) Transfers to Permitted Transferees pursuant to Section
2(c) below; and
(vi) Transfers pursuant to Section 3 [First Offer Right for
Stockholder Shares].
Such Transfers described in clauses (i) through (v) above are referred to herein
as "Exempt Transfers."
(b) Repurchase Right.
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(i) In the event Executive Stockholder ceases to be employed
for any reason by the Company and its Subsidiaries (the "Termination"), the
Stockholder Shares (whether held by Executive Stockholder or one or more of
Executive Stockholder's transferees) shall be subject to repurchase by the
Company and the Investor pursuant to the terms and conditions set forth in this
Section 2(b) (the "Repurchase Option").
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(ii) If the Executive Stockholder's employment is terminated by
the Company without Cause or if the Executive Stockholder voluntarily leaves the
Company for any reason (including, but not limited to, disability or
resignation), the purchase price for each Stockholder Share pursuant to the
Repurchase Option shall be the Fair Market Value for such share.
(iii) If the Executive Stockholder's employment is terminated by
the Company with Cause, then the purchase price for each Stockholder Share
pursuant to the Repurchase Option shall be the lower of (a) the Fair Market
Value for such share and (b) the Original Cost for such share.
(iv) The Board may elect to purchase all or any portion of the
Stockholder Shares by delivering written notice (the "Repurchase Notice") to the
holder or holders of the Stockholder Shares within 90 days after the
Termination. The Repurchase Notice shall set forth the number of Stockholder
Shares to be acquired from each holder of Stockholder Shares, the aggregate
consideration to be paid for such shares and the time and place for the closing
of the transaction. The number of shares to be repurchased by the Company shall
first be satisfied to the extent possible from the shares of Stockholder Shares
held by Executive Stockholder at the time of delivery of the Repurchase Notice.
If the number of shares of Stockholder Shares then held by Executive Stockholder
is less than the total number of shares of Stockholder Shares the Company has
elected to purchase, the Company shall purchase the remaining shares elected to
be purchased from the permitted transferee(s) of such Stockholder Shares under
this Agreement, pro rata according to the number of shares of Stockholder Shares
held by such transferee(s) at the time of delivery of such Repurchase Notice
(determined as close as practicable to the nearest whole shares).
(v) If for any reason the Company does not elect to purchase
all of the Stockholder Shares pursuant to the Repurchase Option, the Investor
shall be entitled to exercise the Repurchase Option for the shares of
Stockholder Shares the Company has not elected to purchase (the "Available
Shares"). As soon as practicable after the Company has determined that there
will be Available Shares, but in any event within 90 days after the date of
Termination, the Company shall give written notice (the "Option Notice") to the
Investor setting forth the number of Available Shares and the purchase price for
the Available Shares. The Investor may elect to purchase all of the Available
Shares by giving written notice to the Company within 30 days after the Option
Notice has been given by the Company. As soon as practicable, and in any event
within ten days after the expiration of the 30-day period set forth above, the
Company shall notify each holder of Stockholder Shares as to the number of
shares being purchased from such holder by the Investor (the "Supplemental
Repurchase Notice"). At the time the Company delivers the Supplemental
Repurchase Notice to the holder(s) of Stockholder Shares, the Company shall also
deliver written notice to the Investor setting forth the number of shares the
Investor is entitled to purchase, the aggregate purchase price and the time and
place of the closing of the transaction. Notwithstanding anything to the
contrary herein, the Repurchase Option shall only apply if the Company and/or
the Investor have elected to purchase all of the Stockholder Shares of the
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Executive Stockholder whose employment has been terminated.
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(vi) The closing of the purchase of the Stockholder Shares pursuant
to the Repurchase Option (the "Repurchase Closing") shall take place on the date
designated by the Company in the Repurchase Notice or Supplemental Repurchase
Notice, which date shall not be more than 15 days nor less than five days after
the delivery of the later of either such notice to be delivered. The Company
and/or the Investor shall pay for the Stockholder Shares to be purchased
pursuant to the Repurchase Option by delivery of a check or wire transfer of
funds. In addition, the Company may pay the purchase price for such shares by
offsetting amounts outstanding under any debts owed by Executive Stockholder to
the Company. The purchasers of Stockholder Shares hereunder shall be entitled to
receive customary representations and warranties from the sellers regarding such
sale of shares (including representations and warranties regarding good title to
such shares, free and clear of any liens or encumbrances) and to require all
sellers' signatures be guaranteed by a national bank or reputable securities
broker.
(vii) Notwithstanding anything to the contrary contained in this
Agreement, all repurchases of Stockholder Shares by the Company shall be subject
to applicable restrictions contained in the Delaware General Corporation Law and
in the Company's and its Subsidiaries debt and equity financing agreements. If
any such restrictions in the Delaware General Corporation Law prohibit the
repurchase of Stockholder Shares hereunder which the Company is otherwise
entitled or required to make, the time periods provided in this Section 2(b)
shall be suspended, and the Company may make such repurchases as soon as it is
permitted to do so under such restrictions.
(viii) If within 90 days after a Repurchase Closing in connection with
a repurchase by the Company and/or the Investor of Stockholder Shares from an
Executive Stockholder pursuant to Section 2(b)(ii), the Company executes an
agreement for a Sale of the Company, the Company shall promptly notify such
Executive Stockholder and the Investor of such sale (which notice shall describe
the price and other principal terms and conditions of the proposed Sale of the
Company). Such Executive Stockholder shall have the right to give notice to the
Company and the Investor within 15 days of receipt of the Company's notice of
such sale (or such lesser number of days as shall expire three (3) business days
prior to the closing of the proposed Sale of the Company), of an irrevocable
election to rescind (effective upon and only upon the closing of such Sale of
the Company) the repurchase by the Company and/or the Investor, as applicable,
of all of such Executive's Stockholder Shares pursuant to Section 2(b)(ii) and
to instead participate in such Sale of the Company. In such event, the Executive
Stockholder, if requested by the Company and/or the Investor, as applicable,
shall deposit in an escrow to be established by the parties, the proceeds
received by the Executive Stockholder in connection with the sale of his or her
Stockholder Shares to the Company and/or the Investor, as applicable, pursuant
to Section 2(b)(ii), which escrow shall provide that such proceeds (together
with any interest thereon) shall be forthwith paid to the Company and/or the
Investor, as applicable, in the event such Sale of the Company is consummated,
and that such proceeds (together with any interest thereon) shall be paid to the
Executive Stockholder in the event such Sale of the Company is not consummated.
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(c) Certain Permitted Transfers. The restrictions contained in this
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Section 2 will not apply with respect to Transfers of Stockholder Shares (i)
pursuant to applicable laws of descent and distribution or (ii) among such
Executive Stockholder's family group (transferees pursuant to clauses (i) and
(ii), are herein collectively "Permitted Transferees"); provided that such
restrictions will continue to be applicable to the Stockholder Shares after any
such Transfer and the Permitted Transferees of such Stockholder Shares shall
have agreed in writing to be bound by the provisions of this Agreement (with the
Permitted Transferees being treated as "Stockholders" for all purposes of this
Agreement). An Executive Stockholder's "family group" means such Executive
Stockholder's spouse and descendants (whether natural or adopted) and any trust
solely for the benefit of such Executive Stockholder and/or such Executive
Stockholder's spouse and/or descendants.
(d) Termination of Restrictions. The restrictions on the Transfer of
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Stockholder Shares set forth in this Section 2 shall continue with respect to
each Stockholder Share until the earlier of (i) the date on which such
Stockholder Share has been transferred in a Public Sale, (ii) the consummation
of a Qualified Public Offering, (iii) the consummation of a Sale of the Company,
or (iv) the seventh anniversary of the date hereof.
3. First Offer Right for Stockholder Shares.
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(a) At least 30 days prior to making any Transfer (or, in the case of
an Executive Stockholder, prior to making any non-Exempt Transfer) of any
Stockholder Shares (other than a Public Sale), the transferring holder (the
"Transferring Stockholder") shall deliver a written notice (an "Offer Notice")
to the Company and the Investor. The Offer Notice shall disclose in reasonable
detail the proposed number of Stockholder Shares to be transferred, the proposed
terms and conditions of the Transfer and the identity of the prospective
transferee(s) (if known).
(b) First, the Company may elect to purchase any or all of the
Stockholder Shares specified in the Offer Notice at the price and on the terms
specified therein by delivering written notice of such election to the
Transferring Stockholder and the Investor as soon as practical but in any event
within 20 days after the delivery of the Offer Notice. If the Company has not
elected to purchase all of the Stockholder Shares within such 20-day period, the
Investor may elect to purchase the Stockholder Shares specified in the Offer
Notice not elected to be purchased by the Company (the "First Offer Available
Shares") at the price and on the terms specified in such notice by delivering
written notice of such election to the Transferring Stockholder as soon as
practical but in any event within 30 days after delivery of the Offer Notice.
(c) If the Company and/or the Investor have elected to purchase the
Stockholder Shares from the Transferring Stockholder, the transfer of such
shares shall be consummated as soon as practical (but in any case, within 15
days) after the delivery of the election notice(s) to the Transferring
Stockholder.
(d) To the extent that the Company and the Investor have not elected
to purchase all of the Stockholder Shares being offered, the Transferring
Stockholder may, within the 60-day
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period immediately following the date on which the Offer Notice has been given
to the Company and the Investor and subject to the provisions of subparagraph
(e) below, transfer such Stockholder Shares to one or more third parties at a
price no less than 95% of the price per share specified in the Offer Notice and
on other terms no more favorable to the transferees thereof than offered to the
Company and the Investor in the Offer Notice.
(e) Any Stockholder Shares not transferred within such 60-day period
shall be reoffered to the Company and the Investor under this Section 3 prior to
any subsequent Transfer (and, in the case of an Executive Stockholder, prior to
any subsequent non-Exempt Transfer). The purchase price specified in any Offer
Notice shall be payable solely in cash at the closing of the transaction or in
installments over time.
(f) With respect to each Stockholder Share, the provisions of this
Section 3 shall terminate immediately prior to the earlier of (i) the closing of
any Qualified Public Offering, (ii) upon consummation of a Sale of the Company,
(iii) the seventh anniversary of the date hereof or (iv) the date on which such
Stockholder Share has been transferred in a Public Sale.
(g) Notwithstanding anything herein to the contrary, this Section 3
shall not apply to any Transfers by (i) CHS of Stockholder Shares received by it
upon exercise of the Warrant, to the original beneficiaries of the Trust and
such beneficiaries' successors (the "Beneficiaries") or (ii) an entity among
such entity's respective Affiliates; provided that such restrictions will
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continue to be applicable to the Stockholder Shares after any such Transfer and
such permitted transferees of such Stockholder Shares shall have agreed in
writing to be bound by the provisions of this Agreement (with such permitted
transferees being treated as "Stockholders" for all purposes of this Agreement).
4. Drag-Along Rights.
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(a) If the Board and the Investor approves of a Sale of the Company
(the "Approved Sale"), each holder of Stockholder Shares will consent to and
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raise no objections against the Approved Sale of the Company or the process
pursuant to which the Approved Sale was arranged and waive any dissenter's
rights, appraisal rights and other similar rights; provided that such waivers
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will be effective only if all of the holders of Common Stock receive the same
form and amount of consideration per share of Common Stock, or if any holders of
Common Stock are given an option as to the form and amount of consideration to
be received, all holders be given the same option. Such holder will take all
necessary and desirable actions as directed by the Board and the holders of a
majority of the Common Stock then outstanding in connection with the
consummation of any Approved Sale of the Company, including the execution and
delivery of all documents and instruments as the Company may reasonably request
to effect the Approved Sale and voting all shares of capital stock held by them
in favor of the Approved Sale; provided, however, that no holder shall be
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required to incur indemnification obligations in excess of the net proceeds
received by such holder in such Approved Sale.
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(b) In connection with an Approved Sale, the Investor may require
each holder of Stockholder Shares to sell, or cause to be sold, the same
proportionate number of Stockholder Shares owned by each such holder as are
proposed to be sold or transferred by Investor for the same consideration per
share and otherwise on the same terms and conditions obtained by Investor in the
Approved Sale. On the closing date of the sale of such Stockholder Shares under
this Section 4, the consideration then due such holder of Stockholder Shares
shall be paid to such holder against delivery of a certificate or certificates,
as the case may be, representing the Stockholder Shares sold by such holder duly
endorsed for transfer.
(c) Each holder of Stockholder Shares will bear such holder's pro
rata share (based upon the number of shares sold) of the reasonable costs of any
sale of Stockholder Shares pursuant to an Approved Sale to the extent such costs
are incurred for the benefit of all selling Stockholders and are not otherwise
paid by the Company or the acquiring party. Costs incurred by any holder of
Stockholder Shares on such holder's own behalf will not be considered costs of
the transaction hereunder.
(d) The provisions of this Section 4 shall terminate immediately
prior to the closing of any Qualified Public Offering or, if earlier, upon
consummation of a Sale of the Company.
5. Tag-Along Rights.
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(a) At least 30 days prior to any Transfer of Stockholder Shares
which would result in a Sale of the Company, the Stockholders making such
Transfer (the "Selling Stockholders") shall deliver a written notice (the "Sale
Notice") to the Company and the other Stockholders (the "Other Stockholders"),
specifying in reasonable detail the identity of the prospective transferee(s),
the number (by class) of shares to be transferred and the terms and conditions
of the Transfer (including the proposed price at which such shares are to be
transferred). The Other Stockholders may elect to participate in the
contemplated Transfer at the same price per share and on the same terms by
delivering written notice of such election to the Selling Stockholders within 15
days after delivery of the Sale Notice. If any Other Stockholders have elected
to participate in such Transfer, each Person who is a Selling Stockholder or
Other Stockholder participating in such sale shall be entitled to sell in the
contemplated Transfer, at the same price and on the same terms, a number of
Stockholder Shares (based on each class of stock) equal to the product of (i)
the quotient determined by dividing the percentage of such class of Stockholder
Shares owned by such Person by the aggregate percentage of such class of
Stockholder Shares owned by the Selling Stockholders and the Other Stockholders
participating in such sale and (ii) the number of such class of Stockholder
Shares to be sold in the contemplated Transfer.
For example (by way of illustration only), if the Sale Notice contemplated
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a sale of 100 shares of Common Stock by the Selling Stockholder, and if the
Selling Stockholder at such time owns 60% of all Common Stock and if one
Other Stockholder elects to participate and owns 20% of all Common Stock,
the Selling Stockholder would be entitled to sell 75 shares of Common Stock
(60% / 80% x 100
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shares) and the Other Stockholder would be entitled to sell 25 shares of
Common Stock (20% / 80% x 100 shares).
(b) Each Selling Stockholder shall use reasonable best efforts to
obtain the agreement of the prospective transferee(s) to the participation of
the Other Stockholders in any contemplated Transfer, and no Selling Stockholder
shall transfer any of its Stockholder Shares to any prospective transferee if
such prospective transferee(s) declines to allow the participation of the Other
Stockholders. Each Stockholder transferring Stockholder Shares pursuant to this
Section 5 shall pay its pro rata share (based on the number of Stockholder
Shares to be sold) of the expenses incurred by the Stockholders in connection
with such transfer and shall be obligated to join on a pro rata basis (based on
the number of Stockholder Shares to be sold) in any indemnification or other
obligations that the Selling Stockholders agree to provide in connection with
such transfer (other than any such obligations that relate specifically to a
particular Stockholder such as indemnification with respect to representations
and warranties given by a Stockholder regarding such Stockholder's title to and
ownership of Stockholder Shares; provided that no holder shall be obligated in
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connection with such Transfer to agree to indemnify or hold harmless the
transferees with respect to an amount in excess of the net cash proceeds paid to
such holder in connection with such Transfer).
(c) The provisions of this Section 5 shall terminate immediately
prior to the closing of any Qualified Public Offering or, if earlier, upon
consummation of a Sale of the Company.
6. Piggyback Registration Rights.
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(a) Whenever the Company proposes to register any of its Common Stock
or securities convertible into or exchangeable for Common Stock under the
Securities Act (other than a registration statement on Form S-8 or Form S-4 or
successor forms thereto) and the registration form to be used may be used for
the registration of the Stockholder Shares of any Stockholder (such Stockholder
Shares, other than Preferred Stock, the "Registrable Securities"), the Company
will give prompt written notice to all holders of Registrable Securities of its
intention to effect such a registration and, subject to the provisions of this
Section 6, shall include in such registration all Registrable Securities with
respect to which the Company has received written requests for inclusion within
30 days after the receipt of the Company's notice (a "Piggyback Registration").
(b) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company and the managing underwriter advises the
Company that in its opinion the number of shares requested to be included in
such registration exceeds the number of shares which can be sold in such
offering, the Company will include in such registration (i) first, the
securities the Company proposes to sell, (ii) second, any securities requested
to be included in such registration by stockholders exercising their contractual
piggyback registration rights granted by the Company in connection with
financing arrangements, (iii) third, the Registrable Securities requested to be
included in such registration, pro rata among the holders of Stockholder Shares
based on the percentage of the outstanding Registrable Securities held by each
such holder, and (iv) fourth, the
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other securities requested to be included in such registration by stockholders
exercising contractual piggyback registration rights (if any).
(c) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders of the Company's securities and the managing
underwriter advises the Company that in its opinion the number of shares
requested to be included in such registration exceeds the number which can be
sold in such offering, the Company will include in such registration (i) first,
the securities requested to be included therein by the holders initiating the
registration, (ii) second, any securities requested to be included in such
registration by stockholders exercising their contractual piggyback registration
rights granted by the Company in connection with financing arrangements, (iii)
third, the Registrable Securities requested to be included in such registration,
pro rata among the holders of such Registrable Securities based on the aggregate
percentage of outstanding Registrable Securities held by each such holder and
(iv) fourth, the other securities requested to be included in such registration
by stockholders exercising contractual piggyback registration rights (if any).
(d) The Company shall bear the costs of (i) Piggyback Registrations
pursuant to this Section 6 and (ii) each proposed registration which is
initiated as a Piggyback Registration, in each case excluding any underwriting
discounts or commissions, transfer taxes on the sale of Registrable Securities
or the fees and expenses of any counsel retained by the selling Stockholders.
The Company shall, and as a condition to the inclusion of Registrable Securities
of any holder in any registration, such holder shall, execute an underwriting
agreement or similar agreement in a form reasonably acceptable to the Company
and the underwriter(s), if any, for such offering containing customary
indemnification and holdback provisions and provisions obligating the selling
Stockholders to supply customary information for inclusion in the registration
statement. Notwithstanding the foregoing, (i) no holder of Registrable
Securities shall be required to incur indemnification obligations in excess of
the net proceeds received by such holder pursuant to such registration or that
relate to information not supplied by such holder for inclusion in the
registration statement, and (ii) the Company shall indemnify each holder of
Registrable Securities with respect to liabilities arising from such
registration statement other than as a result of information supplied in writing
by such holder of Registrable Securities for inclusion therein.
(e) Each Stockholder agrees not to effect any public sale or
distribution (including sales pursuant to Rule 144) 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 any underwritten Piggyback Registration in which
Registrable Securities are included (except as part of such underwritten
registration) if so requested by the underwriters managing the registered public
offering.
(f) The Company agrees not to effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any
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underwritten Piggyback Registration (except as part of such underwritten
registration), unless the underwriters managing the registered public offering
otherwise agree.
(g) The right of any holder of Registrable Securities to request a
Piggyback Registration shall terminate, after the holders of Registrable
Securities have had the opportunity to participate with respect to at least a
majority of their Registrable Securities; provided however that if during a
current Piggyback Registration the rights to any future Piggyback Registration
would terminate because of this subparagraph (g), then the Company shall
promptly notify all holders of Registrable Securities who have not previously
participated in any Piggyback Registration that such termination will be
triggered; provided further that, subject to the provisions of this Section 6,
the Company shall include in such current Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion within 15 days after the receipt of the Company's notice.
7. Legend. Each certificate evidencing Stockholder Shares and each
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certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such shares remain Stockholder Shares after such transfer) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
The securities represented by this certificate are subject
to a Stockholders Agreement dated as of August 7, 1998,
among the issuer of such securities (the "Company") and
certain of the Company's stockholders, as amended and
modified from time to time. A copy of such Stockholders
Agreement shall be furnished without charge by the Company
to the holder hereof upon written request.
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Securities Act"), or any state securities laws and may not
be transferred, sold or otherwise disposed of except
pursuant to an effective registration under the Securities
Act or pursuant to an opinion of counsel, satisfactory to
the Company, to the effect that an exemption from such
registration is available.
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding as of the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with the definition of "Stockholder Shares" as
defined in Section 10 hereof.
8. Transfer. Prior to transferring any Stockholder Shares (other
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than a Public Sale or a Sale of the Company) to any Person (including transfers
by CHS to the Beneficiaries), the transferring Stockholder shall cause the
prospective transferee to be bound by this Agreement and
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to execute and deliver to the Company and the holders of Stockholder Shares a
counterpart of this Agreement.
9. Other Covenants.
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(a) Confidentiality. Executive Stockholder acknowledges that the
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information, observations and data obtained by him while employed by the Company
and its Subsidiaries (including those obtained while employed by the Company
prior to the date of this Agreement) concerning the business or affairs of the
Company, any of its Subsidiaries and their customers and vendors ("Confidential
Information") are the property of the Company or such Subsidiary. Therefore,
Executive Stockholder agrees that he shall not disclose to any unauthorized
person or use for his own purposes any Confidential Information without the
prior written consent of the Board, unless and to the extent that the Executive
Stockholder can demonstrate that the aforementioned matters have become
generally known to and available for use by the public other than as a result of
Executive Stockholder's acts or omissions. Executive Stockholder shall deliver
to the Company at the termination of his employment period, or at any other time
the Company may request, all memoranda, notes, plans, records, reports, computer
tapes, printouts and software and other documents and data (and copies thereof)
relating to the Confidential Information, Work Product (as defined below) or the
business of the Company or any Subsidiary which he may then possess or have
under his control. The provisions of this subparagraph (a) shall continue in
full force and effect after the termination of Executive Stockholder's
employment for any reason whatsoever, whether voluntary or involuntary.
(b) Inventions and Patents. Executive Stockholder acknowledges that
----------------------
all inventions, innovations, improvements, developments, methods, designs,
analyses, drawings, reports and all similar or related information (whether or
not patentable) which relate to the Company's or any of its Subsidiaries' actual
or anticipated business, research and development or existing or future products
or services and which are conceived, developed or made by Executive Stockholder
while employed by the Company and its Subsidiaries ("Work Product") belong to
the Company or such Subsidiary. Executive Stockholder shall promptly disclose
such Work Product to the Board and perform all actions reasonably requested by
the Board (whether during or after the employment period) to establish and
confirm such ownership (including, without limitation, assignments, consents,
powers of attorney and other instruments). In accordance with Section 2872 of
the Illinois Employee Patent Act, Ill. Rev. Stat. Chap. 140, (S) 301 et seq.
-- ---
(1983), Executive Stockholder is hereby advised that this subparagraph (b)
regarding the Company's ownership of intellectual property does not apply to any
invention for which no equipment, supplies, facilities or trade secret
information of the Company was used and which was developed entirely on
Executive Stockholder's own time, unless (i) the invention relates to the
business of the Company or to the Company's actual or demonstrably anticipated
research or development or (ii) the invention results from any work performed by
Executive Stockholder for the Company.
(c) Non-Competition.
---------------
-11-
(i) In consideration for the continued employment of each
Executive Stockholder listed on Schedule I attached hereto (individually, a
----------
"Schedule I Stockholder") as an employee-at-will after the date hereof and
in order to preserve and protect the interests of the Company in the
Confidential Information and Work Product, each Schedule I Stockholder
agrees that it shall not, for a period starting on the date hereof and
ending on the second anniversary of the date of Termination (the
"Noncompete Period" for such Schedule I Stockholder), directly or
indirectly own any interest in, manage, control, participate in, consult
with, render services for, or in any manner engage in any business
competing with the businesses of the Company or its Subsidiaries, within
any geographical area in which the Company or its Subsidiaries, during the
term of Schedule I Stockholder's employment and at the time of such
Schedule I Stockholder's termination of employment, as the case may be,
engages or has current plans to engage.
(ii) In consideration for the continued employment of each
Executive Stockholder listed on Schedule II attached hereto (individually,
-----------
a "Schedule II Stockholder") as an employee-at-will after the date hereof
and in order to preserve and protect the interests of the Company in the
Confidential Information and Work Product, each Schedule II Stockholder
agrees that it shall not, for a period starting on the date hereof and
ending (i) in the case of a Subject Termination, on the second anniversary
of such Subject Termination, or (ii) in the case of any termination other
than a Subject Termination, on the date of such termination (in each such
case, the "Noncompete Period" for such Schedule II Stockholder), directly
or indirectly own any interest in, manage, control, participate in, consult
with, render services for, or in any manner engage in any business
competing with the businesses of the Company or its Subsidiaries, within
any geographical area in which the Company or its Subsidiaries, during the
term of such Schedule II Stockholder's employment or, in the case of a
Subject Termination, at the time of such termination, engages or has
current plans to engage.
(d) Enforcement. If, at the time of enforcement of this Section 9 of
-----------
this Agreement, a court holds that the restrictions stated herein are
unreasonable under circumstances then existing, the parties hereto agree that
the maximum period, scope or geographical area reasonable under such
circumstances shall be substituted for the stated period, scope or area. The
Executive Stockholders agree that money damages would not be an adequate remedy
for any breach of this Section 9. Therefore, in the event a breach or threatened
breach of this Section 9, the Company or its successors or assigns may, in
addition to other rights and remedies existing in their favor, apply to any
court of competent jurisdiction for specific performance and/or injunctive or
other relief in order to enforce, or prevent any violations of, the provisions
hereof (without posting a bond or other security). In addition, in the event of
an alleged breach or violation by any Executive Stockholder of this Section 9,
the Noncompete Period shall be tolled with respect to such Executive Stockholder
until such breach or violation has been duly cured. Each Executive Stockholder
agrees that the restrictions contained in this Section 9 are reasonable.
10. Definitions.
-----------
-12-
"Affected Stockholder" has the meaning set forth in Section 11.
--------------------
"Affiliate" means, with respect to any Person, any other Person
---------
controlling, controlled by or under common control with such Person.
"Approved Sale" has the meaning set forth in Section 4.
-------------
"Available Shares" has the meaning set forth in Section 2(b).
----------------
"Beneficiaries" has the meaning set forth in Section 3(g).
-------------
"Board" has the meaning set forth in the preamble.
-----
"Cause" shall mean with respect to any Executive Stockholder: (a) the
-----
repeated failure on the part of such Executive Stockholder to perform such
duties as are reasonably requested by the President (or, in the case of the
President, the Board of Directors) of the Company; (b) gross negligence or
willful misconduct on the part of such Executive Stockholder in the conduct of
his or her duties with and/or failure to comply in any material respect with
policies of, the Company or any Subsidiary; (c) a reasonable and good faith
determination by the Board that such Executive Stockholder shall have committed
any act of fraud or embezzlement against the Company, its Subsidiaries and/or
their respective affiliates or any conviction or admission of a felony or
offense involving dishonesty or moral turpitude; (d) willful, knowing or
reckless unauthorized dissemination of Confidential Information; or (e) a
material breach of any provision of this Agreement; provided, however, that with
respect to clauses (a), (b) and (e) above, if such failure or breach is capable
of cure, such failure or breach, as the case may be, shall not be deemed to
constitute "Cause" unless such failure or breach remains uncured after the
expiration of fifteen (15) days following delivery of written notice to such
Executive Stockholder by the Board.
"CHS" has the meaning set forth in the preamble.
---
"CHSLP" has the meaning set forth in the preamble.
-----
"Common Stock" means the Company's Common Stock, par value $.01 per
------------
share.
"Company" has the meaning set forth in the preamble.
-------
"Confidential Information" has the meaning set forth in Section 9.
------------------------
"Executives" has the meaning set forth in the preamble.
----------
"Executive Stockholders" means the Executives and any other employee
----------------------
of the Company or its Subsidiaries who may from time to time become a party to
this Agreement.
-13-
"Executive Stockholders Agreements" has the meaning set forth in the
---------------------------------
preamble.
"Fair Market Value" means the fair market value as determined by the
-----------------
Board in its good faith discretion; provided, however, that the Fair Market
Value of a share of Preferred Stock shall be the Liquidation Value (as defined
in the Company's Restated Certificate of Incorporation) of such share, plus all
accrued and unpaid dividends thereon.
"First Offer Available Shares" has the meaning set forth in Section 3.
----------------------------
"Independent Third Party" means any Person who, immediately prior to
-----------------------
the contemplated transaction, does not own in excess of 15% of the Company's
Common Stock on a fully-diluted basis voting capital stock (a "15% Owner"), who
is not controlling, controlled by or under common control with any such 15%
Owner and who is not the spouse or descendent (by birth or adoption) of any such
15% Owner or a trust for the benefit of such 15% Owner and/or such other
Persons.
"Investor" has the meaning set forth in the preamble.
--------
"Noncompete Period" has the meaning set forth in Section 9.
-----------------
"Offer Notice" has the meaning set forth in Section 3.
------------
"Option Notice" has the meaning set forth in Section 2(c).
-------------
"Original Cost" means the consideration paid to the Company for a
-------------
share of Common Stock (as adjusted for stock splits, stock combinations or other
similar events); provided that for purposes hereof, the "Original Cost" of the
Common Stock (i) issued pursuant to the Recapitalization Agreement, (ii)
retained by the Executives in connection with the Recapitalization Agreement,
and (iii) issued to any Executive pursuant to the Management Stock Agreement
executed by any such Executive as of the date hereof, in each case shall mean
$16.10 per share (as adjusted for stock splits, stock combinations or other
similar events); provided further that the Original Cost of a share of Preferred
Stock shall be the Liquidation Value (as defined in the Company's Restated
Certificate of Incorporation) of such share, plus all accrued and unpaid
dividends thereon.
"Other Stockholders" has the meaning set forth in Section 5.
------------------
"Permitted Transferee" has the meaning set forth in Section 2(c)
--------------------
hereof.
"Person" means an individual, a partnership, a corporation, a limited
------
liability company, 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.
-14-
"Piggyback Registration" has the meaning set forth in Section 6.
----------------------
"Preferred Stock" means the Company's 8% Cumulative Redeemable
---------------
Preferred Stock, par value $.01 per share.
"Public Sale" means any sale of Stockholder Shares to the public
-----------
pursuant to an offering registered under the Securities Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the Securities Act.
"Qualified Public Offering" means the sale in an underwritten public
-------------------------
offering registered under the Securities Act of 1933, as amended, of shares of
the Company's Common Stock: (i) at an offering price of at least $32.20 and (ii)
having an aggregate offering value of at least $25 million.
"Recapitalization Agreement" has the meaning set forth in the
--------------------------
preamble.
"Registrable Securities" has the meaning set forth in Section 6.
----------------------
"Repurchase Closing" has the meaning set forth in Section 2(b).
------------------
"Repurchase Option" has the meaning set forth in Section 2(b).
-----------------
"Repurchase Notice" has the meaning set forth in Section 2(b).
-----------------
"Sale Notice" has the meaning set forth in Section 5.
-----------
"Sale of the Company" means the sale of the Company to an Independent
-------------------
Third Party or group of Independent Third Parties pursuant to which such party
or parties acquire (i) capital stock of the Company possessing the voting power
under normal circumstances to elect a majority of the Company's board of
directors (whether by merger, consolidation or 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.
"Schedule I Stockholder" has the meaning set forth in Section 9(c).
----------------------
"Schedule II Stockholder" has the meaning set forth in Section 9(c).
-----------------------
"Securities Act" means the Securities Act of 1933, as amended from
--------------
time to time.
"Selling Stockholders" has the meaning set forth in Section 5.
--------------------
"Stockholder Shares" means (i) any Common Stock purchased or otherwise
------------------
acquired by any Stockholder, (ii) any Common Stock issued directly or indirectly
upon exercise of the
-15-
Warrant, (iii) any Preferred Stock purchased or otherwise acquired by any
Stockholder and (iv) any equity securities issued or issuable with respect to
the securities referred to in clauses (i), (ii) and (iii) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. For purposes of
this Agreement, any Person who holds a Warrant shall be deemed to be the holder
of the Stockholder Shares issuable directly or indirectly upon exercise of such
Warrant, regardless of any restriction or limitation on the exercise thereof. As
to any particular shares constituting Stockholder Shares, such shares shall
cease to be Stockholder Shares when they have been (x) effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them or (y) sold to the public through a broker, dealer or
market maker pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act.
"Stockholders" has the meaning set forth in the preamble.
------------
"Subject Termination" means (a) any voluntary resignation or
-------------------
termination of employment by such Schedule II Stockholder, (b) any termination
of such Schedule II Stockholder's employment due to disability or retirement,
and (c) any termination by the Company of such Schedule II Stockholder's
employment for Cause.
"Subsidiary" means, with respect to any Person, any corporation,
----------
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the limited liability company, partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control the managing director or general partner
of such limited liability company, partnership, association or other business
entity.
"Supplemental Repurchase Notice" has the meaning set forth in Section
------------------------------
2(b).
"Termination" has the meaning set forth in Section 2(b).
-----------
"Transfer" has the meaning set forth in Section 2(a).
--------
"Transferring Stockholder" has the meaning set forth in Section 3.
------------------------
-16-
"Warrant" means the Contingent Stock Purchase Warrant issued to CHS on
-------
the date hereof, in connection with the transactions contemplated by the
Recapitalization Agreement which are exercisable into shares of Common Stock.
"Work Product" has the meaning set forth in Section 9.
------------
11. Amendment and Waiver. Except as otherwise provided herein, no
--------------------
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company or the holders of at
least a majority of the Stockholder Shares, respectively; provided, that, no
-------- ----
modification, amendment or waiver of any provision of this Agreement which
affects any Stockholder (the "Affected Stockholder") in a manner more adverse
than such modification, amendment or waiver affects the other holders of
Stockholder Shares shall be effective against such Affected Stockholder unless
such modification, amendment or waiver is also approved in writing by such
Affected Stockholder. The failure of any party to enforce any of the provisions
of this Agreement shall in no way be construed as a waiver of such provisions
and shall not affect the right of such party thereafter to enforce each and
every provision of this Agreement in accordance with its terms.
12. 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
the validity, legality or enforceability of any other provision of this
Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in 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.
13. Termination of Prior Agreements; Entire Agreement. The Company
-------------------------------------------------
and each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ agree that the Executive Stockholders Agreements
are hereby terminated and shall have no further force or effect. This Agreement
embodies the complete agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties, written
or oral, which may have related to the subject matter hereof in any way.
14. 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 Stockholder Shares and the respective successors and permitted
assigns of each of them, so long as they hold Stockholder Shares.
-17-
15. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
16. Remedies. The Company, the Investor, CHS and the Executives
--------
shall be entitled to enforce their rights under this Agreement specifically, to
recover damages by reason of any breach of any provision of this Agreement and
to exercise all other rights existing in their favor. The parties hereto agree
and acknowledge that money damages would not be an adequate remedy for any
breach of the provisions of this Agreement and that the Company, the Investor,
CHS and any Executive may in its sole discretion apply to any court of law or
equity of competent jurisdiction for specific performance and/or injunctive
relief (without posting a bond or other security) in order to enforce or prevent
any violation of the provisions of this Agreement.
17. Notices. Any notice provided for in this Agreement shall be in
-------
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the signature pages hereto and to any
subsequent holder of Stockholder Shares subject to this Agreement at such
address as indicated by the Company's records, or at such address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party. Notices shall be deemed to have been given
hereunder when delivered personally, three days after deposit in the U.S. mail
and one day after deposit with a reputable overnight courier service. The
Company's address is:
▇▇▇▇▇ Equipment Company
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
18. Governing Law. The corporate law of the State of Delaware shall
-------------
govern all issues and questions concerning the relative rights of the Company
and its stockholders. All other issues and questions concerning the
construction, validity, interpretation and enforceability of this Agreement and
the exhibits and schedules hereto shall be governed by, and construed in
accordance with, the laws of the State of Illinois, without giving effect to any
choice of law or conflict of law rules or provisions (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.
19. Business Days. If any time period for giving notice or taking
-------------
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the state in which the Company's chief-executive office is located, the time
period shall automatically be extended to the business day immediately following
such Saturday, Sunday or legal holiday.
20. Descriptive Headings. The descriptive headings of this Agreement
--------------------
are inserted for convenience only and do not constitute a part of this
Agreement.
-18-
* * * *
-19-
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement on the day and year first above written.
▇▇▇▇▇ EQUIPMENT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: President and CEO
MADISON DEARBORN CAPITAL
PARTNERS II, L.P.
By: Madison Dearborn Partners II, L.P.
Its: General Partner
By: Madison Dearborn Partners, Inc.
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Its: Vice President
Address
-------
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Number of Stockholder Shares
----------------------------
Shares of Common Stock: 559,006.21
Shares of Preferred Stock: 25,250.00
[ADDITIONAL SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
CODE, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.C., AS
TRUSTEE UNDER THE TRUST AGREEMENT
DATED AS OF AUGUST 7, 1998
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Partner
Address
-------
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Number of Stockholder Shares
----------------------------
Shares of Common Stock:
Shares of Preferred Stock:
[ADDITIONAL SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
Executive's Signature
Name and Address of Executive
-----------------------------
Number of Stockholder Shares
----------------------------
Shares of Common Stock:
Shares of Preferred Stock:
SCHEDULE I
----------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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SCHEDULE II
-----------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇