EXHIBIT 10.15
EXECUTION COPY
STOCKHOLDERS
AGREEMENT
BY AND AMONG
CHICKEN ACQUISITION
CORP.
AND
THE STOCKHOLDERS LISTED
HEREIN
DATED AS OF NOVEMBER 18,
2005
STOCKHOLDERS
AGREEMENT
THIS STOCKHOLDERS AGREEMENT
(this “ Agreement ”) is entered into as
of the 18 th day of November, 2005, by and among
Chicken Acquisition Corp., a Delaware corporation (the “
Company ”), Trimaran Pollo Partners, L.L.C., a
Delaware limited liability company (“ Trimaran
”), the individuals set forth on Schedule A hereto (together
with the employees of the Company or its Subsidiaries (as defined
in Section 1.1) who become parties to this Agreement pursuant
to the terms and conditions of this Agreement, the “
Management Stockholders ”) and such other
Persons that become parties to this Agreement pursuant to the terms
and conditions of this Agreement (the “ Additional
Stockholders ”).
RECITAL
WHEREAS , the Company, EPL Holdings, Inc. (“
Holdings ”), EPL Intermediate, Inc., El Pollo
Loco, Inc., the equityholders of Holdings and American Securities
Capital Partners, L.P, are parties to a Stock Purchase Agreement
(the “ Purchase Agreement ”), dated
September 27, 2005, with respect to the acquisition by the
Company or a Subsidiary thereof of all of the issued and
outstanding shares of common stock of Holdings (the “
Transaction ”);
WHEREAS , pursuant to the Purchase Agreement and
Exchange Agreements (as defined in the Purchase Agreement) entered
into with each individual set forth on Schedule A hereto, the
Company is issuing at the Closing (as defined in the Purchase
Agreement) shares of common stock, par value $.01 per share
(“ Common Stock ”), and/or options to
acquire shares of Common Stock (“ Stock Options
”), respectively, of the Company in exchange for shares of
common stock of Holdings and/or options to acquire shares of common
stock of Holdings held by such individuals; and
WHEREAS , immediately after giving effect to the
Closing, all of the outstanding shares of Company Stock will be
owned by the Stockholders;
WHEREAS , the parties wish to enter into this Agreement
to grant certain rights to and to place certain restrictions on the
shares of Company Stock now or hereafter owned by each Stockholder;
and
NOW, THEREFORE
, in consideration of the mutual
covenants herein contained and other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Defined
Terms . As used herein, the following terms shall have the
meanings set forth below:
“ Action ” shall
mean any demand, action, claim, suit, litigation, arbitration,
prosecution, proceeding (including any civil, criminal,
administrative or appellate proceeding) or hearing commenced,
brought, conducted or heard by or before any court, grand jury or
other Governmental Authority or any arbitrator or mediator or
mediation or arbitration panel.
“ Additional
Stockholders ” shall have the meaning set forth in the
Preamble.
“ Affiliate ” or
“ affiliate ” shall mean, with respect to any
specified Person, any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this
definition, “ control ” when used with respect
to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or
otherwise; and the terms “ controlling ” and
“ controlled ” have meanings correlative to the
foregoing; provided that Affiliate shall be deemed not to include
any portfolio companies of the Trimaran Group or their
Affiliates.
“ Agreement ”
shall have the meaning set forth in the Preamble.
“ Board of Directors
” shall mean the Board of Directors of the
Company.
“ Bona Fide Offer
” shall mean any offer by a Third Party in writing, setting
forth a specific purchase price and other material terms and a
closing date of no more than ninety (90) days therefrom,
subject to satisfaction of the conditions set forth
therein.
“ Business Day ”
shall mean any calendar day which is not a Saturday, Sunday or
public holiday under the laws of the State of New York.
“ Call Right ”
shall have the meaning set forth in Section 6.4(b).
“ Carrying Value
” shall mean the price paid by the Stockholder for any share
of Company Stock, less the amount of dividends and other
distributions paid to such Stockholder in respect of any such
share; provided that, with respect to shares of Company
Stock that are Exchange Shares, Carrying Value shall mean the Deal
Price less any dividends paid and; provided further that,
with respect to shares of Company Stock that are Exchange Options,
Carrying Value shall mean the excess, if any, of the Deal Price
over the applicable exercise price of such Option.
“ Cause ” shall
mean any action that constitutes misconduct; dishonesty; the
failure to comply with specific directions of the Board of
Directors or senior management of the Company, as applicable, that
are consistent with the terms of any employment agreement with the
Company of such Management Stockholder, if applicable, or the
objectives of the Company (after having been given a reasonably
detailed written notice of, and a period of 20 days to cure, such
misconduct or failure); a deliberate and premeditated act against
the Company or its Affiliates; the commission of a felony;
substance abuse or alcohol abuse which renders the Management
Stockholder
unfit to perform his duties; any breach of the
covenants set forth in any employment agreement with the Company of
such Management Stockholder. Any voluntary termination of
employment with the Company by the Management Stockholder in
anticipation of an involuntary termination of the Management
Stockholder’s employment for Cause shall be deemed to be a
termination for Cause.
“ Claim ” shall
mean any demand, action, claim, suit, litigation, arbitration,
prosecution, proceeding (including any civil, criminal,
administrative or appellate proceeding) or hearing commenced,
brought, conducted or heard by or before any court, grand jury or
other Governmental Authority or any arbitrator or mediator or
mediation or arbitration panel.
“ Closing ” shall
have the meaning set forth in the recitals.
“ Code ” shall
mean the Internal Revenue Code of 1986, as amended from time to
time (or any corresponding provisions of succeeding
law).
“ Common Stock ”
shall have the meaning set forth in the recitals.
“ Company ” shall
have the meaning set forth in the Preamble.
“ Company Option Plan
” shall mean any stock option plan or employee benefit or
other incentive plan which may be adopted pursuant to which
participants may acquire options or similar securities to purchase
shares of Common Stock.
“ Company Securities
” shall have the meaning set forth in
Section 7.3(a)(i).
“ Company Stock ”
shall mean the Common Stock and any other capital stock of any
class or series of the Company and any shares of capital stock
issuable upon the conversion, exercise or exchange of securities of
the Company (including Options) convertible into, or exercisable or
exchangeable for, any such Common Stock or other capital stock of
the Company, including, without limitation, shares of Common Stock
issued or issuable pursuant to the Company Option Plan or any other
stock option plan or employee benefit or other incentive plan
presently in effect or which may be adopted by the Company after
the date hereof. For purposes of Sections III, IV, V and VI of this
Agreement, subject to the limitations set forth therein, Company
Stock shall also include Exchange Options and references to
“shares of Company Stock” contained therein shall be
deemed to include Exchange Options.
“ Company Stock Equivalent
Price ” shall mean, in the case of a LLC Drag, a price
per share of Company Stock derived from the price per Membership
Unit specified in the Drag-Along Notice taking into account
(i) the relative ownership of the Company by Trimaran and
(ii) the relative ownership of Trimaran by the Trimaran Funds,
in each case as determined by the Board of Directors in its good
faith judgment.
“ Confidential
Information ” shall have the meaning set forth in
Section 13.2.
“ Cost ” means
(i) when used in connection with a share of Company Stock
(other than Exchange Options), means the cost at which such shares
of Company Stock were purchased; provided that, with respect to
shares of Company Stock that are Exchange Shares, Cost shall mean
the Deal Price and (ii) when used in connection with the value
of an Exchange Option, the excess, if any, of the Deal Price over
the applicable exercise price of such Option.
“ Covered Person
” shall have the meaning set forth in
Section 12.1.
“ Credit Agreement
” shall mean the credit agreement among EPL Finance Corp., El
Pollo Loco, Inc. and EPL Intermediate, Inc., Merrill Lynch Capital
Corporation, as administrative agent, and certain other lenders
party thereto, entered into on the date of this
Agreement.
“ Deal Price ”
shall mean the Per Share Price as defined in the Purchase
Agreement, subject to the applicable adjustments as set forth in
the Purchase Agreement, as determined by the Board of Directors in
its good faith determination.
“ Disability ”
shall mean, when used with respect to any Management Stockholder or
the Chief Executive Officer of the Company, any physical or mental
disability or infirmity that prevents the performance of such
person’s duties for a period of (i) six
(6) consecutive months or (ii) an aggregate of nine
(9) months in any twenty-four (24) consecutive month
period.
“ Duly Endorsed ”
shall mean (i) duly endorsed in blank by the Person or Persons
in whose name a stock certificate or certificate representing a
debt security is registered or (ii) accompanied by a duly
executed stock or security assignment separate from the
certificate.
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“ Exchange Options
” shall mean an Option or Options received by a Stockholder
at the Closing in exchange for an option or options to purchase
shares of Holdings common stock pursuant to the Purchase Agreement
and the applicable Exchange Agreement.
“ Exchange Shares
” shall mean a share or shares of Common Stock received by a
Stockholder at the Closing in exchange for a shares or shares of
Holdings common stock pursuant to the Purchase Agreement and the
applicable Exchange Agreement.
“ Fair Market Value
” shall mean (i) when used in connection with the value
of a share of Company Stock (other than any Option), the price at
which such share of Company Stock would likely be sold in an
arm’s length transaction (specifically excluding any price
paid or proposed to be paid in any transactions between a
Stockholder and its Permitted Transferees) between a willing and
able buyer under no compulsion to buy and a willing and able seller
under no compulsion to sell, as
determined by the Board of Directors of the
Company in good faith and (ii) when used in connection with
the value of an Option, warrant, or similar right to purchase
shares of Common Stock, the positive difference, if any, between
fair market value (as determined pursuant to clause (i)) of the
number of shares of Common Stock for which such Option, warrant, or
similar right to purchase shares of Common Stock is exercisable and
the applicable exercise price of such Option, warrant, or similar
right to purchase shares of Common Stock.
“ Financing Default
” shall mean an event or circumstance which would constitute
(or with notice or lapse of time or both would constitute) an event
of default under any outstanding Indebtedness of the Company, or
any refunding, refinancing or extension of any of the foregoing, as
any agreements pertaining thereto may be amended from time to time,
and which event or circumstance has not been waived or cured in
accordance with such agreements.
“ GAAP ” shall
mean United States generally accepted accounting principles as in
effect on the date or for the period with respect to which such
principles are applied.
“ Good Reason ”
shall mean, with respect to any Management Stockholder,
(1) such Management Stockholder’s relocation by the
Company or any subsidiary outside Orange County, California;
(2) a reduction of such Management Stockholder’s title;
(3) a reduction of such Management Stockholder’s base
salary; or (4) the failure of the Company or any subsidiary to
provide or cause to be provided to such Management Stockholder
material employee benefits; provided that, in the case of such
Management Stockholder that is a party to an employment agreement
with the Company or any Subsidiary thereof, “Good
Reason”, with respect to such Management Stockholder, shall
have the meaning set forth in the applicable employment
agreement.
“ Governmental
Authority ” shall mean any federal, state, local or
foreign government, executive official thereof, governmental or
regulatory authority, agency or commission, including courts of
competent jurisdiction, domestic or foreign.
“ Indebtedness ”
shall mean, as applied to any Person (without duplication)
(a) all outstanding indebtedness of such Person for borrowed
money, whether current or funded, or secured or unsecured,
(b) all outstanding obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments or debt
securities, (c) all outstanding indebtedness of such Person
created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such
Person (even though the rights and remedies of the seller or lender
under such agreement in the event of default are limited to
repossession or sale of such property), (d) all outstanding
indebtedness of such Person secured by a purchase money mortgage or
other Lien to secure all or part of the purchase price of the
property subject to such Lien, (e) all outstanding obligations
under leases which shall have been or must be, in accordance with
GAAP, recorded as capital leases in respect of which such Person is
liable as lessee, (f) any outstanding liability or other
obligation of such Person in respect of letters of
credit, (g) all interest, fees, prepayment
premiums and other expenses owed with respect to the indebtedness
referred to above and (h) all indebtedness referred to above
which is directly or indirectly guaranteed by such Person or which
such Person has agreed (contingently or otherwise) to purchase or
otherwise acquire or in respect of which it has otherwise assured a
creditor against loss.
“ Involuntary Transfer
” shall have the meaning set forth in
Section 3.2.
“ Involuntary Transfer
Notice ” shall have the meaning set forth in
Section 3.2.
“ Involuntary
Transferee ” shall have the meaning set forth in
Section 3.2.
“ Lien ” shall
mean any lien, encumbrance, easement, encroachment, defect of
title, security interest, mortgage, pledge, preemptive right, right
of way, option to acquire, right of first refusal, restriction on
transfer or any adverse claim of any nature whatsoever (except, in
the case of the Company, for restrictions relating to applicable
securities laws).
“ Liquidation ”
means any voluntary or involuntary liquidation, dissolution, or
winding up of the affairs of the Company.
“ LLC ” means
Trimaran Pollo Partners, L.L.C.
“ LLC Agreement ”
means the Limited Liability Operating Agreement, dated
November 18 th , 2005, of the LLC, by and among the
LLC and the parties set forth on Schedule A thereto.
“ LLC Drag ”
shall have the meaning set forth in Section 5.1(a).
“ Management Agreement
” shall have the meaning set forth in
Section 2.2.
“ Management
Stockholders ” shall have the meaning set forth in the
Preamble.
“ Membership Unit
” shall have the meaning set forth in the LLC
Agreement.
“ NASD ” shall
have the meaning set forth in the definition of Registration
Expenses.
“ Offer ” shall
have the meaning set forth in Section 4.6(a).
“ Options ” shall
mean the options to purchase shares of stock or other equity
interests of the Company pursuant to the Company Option
Plan.
“ Participation
Commitment ” shall have the meaning set forth in
Section 8.1(c).
“ Participation Notice
” shall have the meaning set forth in
Section 8.1(b).
“ Participation Portion
” shall have the meaning set forth in
Section 8.1(b)(i).
“ Participation
Stockholder ” shall have the meaning set forth in
Section 8.1(b).
“ Participating Buyer
” shall have the meaning set forth in
Section 8.1(c).
“ Per Share Value
” means $86.43 representing the value of each share of Common
Stock as of the date of this Agreement.
“ Permitted Transferee
” of a Stockholder shall mean, any other Stockholder
and:
(i) any Affiliate of the Stockholder
or any general or limited partner or equity holder of any
Stockholder (collectively, the “ Stockholder
Affiliates ”);
(ii) with respect to any Stockholder
that itself is a Permitted Transferee of a current or past
Stockholder (an “ Original Stockholder ”), any
Original Stockholder; and
(iii) in the case of any Management
Stockholder, any trust, the beneficiaries of which, or corporation,
limited liability company or partnership, the shareholders, members
or general or limited partners of which, include only his or her
spouse, members of his or her immediate family or household or his
or her lineal descendants;
provided , that in no event shall a party described in
clauses (i), (ii) or (iii) be a Permitted Transferee if
such party is, in the good faith reasonable judgment of the Board
of Directors, an actual or potential competitor of, or otherwise
adverse to the interests of, the Company.
“ Person ” shall
mean an individual, a partnership (general or limited), a
corporation, a limited liability company, an association, a joint
stock company, Governmental Authority, a business or other trust, a
joint venture, any other business entity or an unincorporated
organization.
“ Piggyback Securities
” shall mean those Registrable Securities which are requested
to be sold by any Stockholder or such other Persons granted
piggyback registration rights as described in Section 7.2
hereof.
“ Preemptive Issuance
” shall have the meaning set forth in
Section 8.1(a).
“ Preemptive Transferee
” shall have the meaning set forth in
Section 8.1(b)(i).
“ Pro Rata Portion
” means, as determined by the Board of Directors in good
faith judgment:
(i) for purposes of Article IV, a
number of shares of Company Stock determined by multiplying
(a) (1) the number of shares of Company Stock (other than
any Options) held by the Tagging Stockholder plus (b) the
number of shares of Common Stock issuable upon the exercise of any
vested Options held by the Tagging Stockholder by (2) a
fraction, the numerator of which is the number of shares of Company
Stock proposed to be Transferred by the Transferring Stockholders
in connection with the Tag-Along Transfer and the denominator of
which is the aggregate number of shares of Company Stock held by
such Transferring Stockholders immediately prior to such Tag-Along
Transfer;
(ii) for purposes of Article V, a
number of shares of Company Stock determined by multiplying
(a) (1) the number of shares of Company Stock (other than
Options) plus (2) the number of shares of Common Stock
issuable upon the exercise of vested Options and Options that will
vest upon consummation of the Drag-Along Transfer held by the
relevant Drag-Along Holder by (b) a fraction, the numerator of
which is the number of shares of Company Stock proposed to be
Transferred by the Selling Stockholders to the Transferee and the
denominator of which is the aggregate number of shares of Company
Stock held by the Selling Stockholders (or in the case of a LLC
Drag, a fraction, the numerator of which is the number of
Membership Units proposed to be Transferred by the Selling Members
to the Transferee and the denominator of which is the aggregate
number of Membership Units held by the Selling Members).
“ Purchase Agreement
” shall have the meaning set forth in the
recitals.
“ Qualified Public
Offering ” shall mean a public offering and sale of the
common equity of the Company or any of its Subsidiaries (or any of
their successors) for cash registered under the Securities Act with
an aggregate public offering price of at least
$50,000,000.
“ Registrable
Securities ” shall mean all shares of Common Stock,
including, without limitation, Common Stock issuable upon the
conversion, exercise or exchange of such other securities, granted
registration rights as described in Article VII hereof, that by
their terms are converted into shares of Common Stock. As to any
particular Registrable Securities, such securities shall cease to
be Registrable Securities when (w) such securities shall have
been registered under the Securities Act, the registration
statement with respect to the sale of such securities shall have
become effective under the Securities Act and such securities shall
have been disposed of pursuant to such effective registration
statement, (x) such securities shall have been distributed
pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act, (y) such securities shall have been
otherwise transferred, if new
certificates or other evidences of ownership for
them not bearing a legend restricting further transfer and not
subject to any stop transfer order or other restrictions on
transfer shall have been delivered by the Company and subsequent
disposition of such securities shall not require registration or
qualification of such securities under the Securities Act or any
state securities laws then in force or (z) such securities
shall cease to be outstanding.
“ Registration ”
shall mean a bona-fide public offering and sale of shares of
Company Stock or other direct or indirect equity interests of a
Person pursuant to an effective registration statement under the
Securities Act and in compliance with all applicable state
securities laws.
“ Registration Expenses
” shall mean all fees and expenses of the Company incident to
the Company’s performance of or compliance with Article VII
hereof, including, without limitation, all SEC and stock exchange
or National Association of Securities Dealers, Inc. (“
NASD ”) registration, filing and listing fees and
expenses, fees and expenses of compliance with securities or blue
sky laws (including, without limitation, reasonable fees and
disbursements of counsel for the underwriters in connection with
blue sky qualifications of the Registrable Securities), rating
agency fees, all fees and expenses of the transfer agent and
registrar for the Registrable Securities, printing expenses,
messenger and delivery expenses, the reasonable fees and expenses
incurred in connection with the listing of the securities to be
registered on each securities exchange or national market system on
which Registrable Securities are to be listed or on which similar
securities issued by the Company are to be listed in connection
with such transaction, reasonable fees and disbursements of counsel
for the Company and all independent certified public accountants
for the Company (including the expenses of any annual audit,
special audit and “cold comfort” letters required in
connection therewith or incident thereto), securities laws
liability insurance (if the Company so desires or if the
underwriters so desire), the reasonable fees and disbursements of
underwriters customarily paid by issuers or sellers of securities,
all fees and expenses of any qualified independent underwriter or
any Person acting in a similar capacity under the rules of the
NASD, the reasonable fees and disbursements of one counsel retained
in connection with each such registration on behalf of the
Stockholders (which shall be counsel selected by the Requesting
Stockholder in the event of a Registration effected pursuant to
Section 7.1 hereof, or counsel elected by the holders of a
majority of the Registrable Securities being registered in the
event of any other Registration), the reasonable fees and expenses
of any special experts retained by the Company in connection with
such registration, and fees and expenses of other Persons retained
by the Company (but not including any underwriting discounts or
commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by the holders of such Registrable
Securities).
“ Representative
” shall mean, with respect to a particular Person, any
director, officer, general partner, limited partner, co-owner,
member, nominee, managing director or controlling Person of such
Person.
“ Requesting
Stockholder ” shall have the meaning as set forth in
Section 7.1(a).
“ Retirement ”
shall mean, with respect to a Management Stockholder or the Chief
Executive Officer of the Company, such person’s normal or
early retirement as an employee of the Company or any of its
Subsidiaries in accordance with the applicable tax-qualified
retirement plan of the Company or such Subsidiaries in which such
person participates.
“ Sarbanes-Oxley Act
” shall mean the Sarbanes-Oxley Act of 2002 and the rules and
regulations promulgated thereunder.
“ Securities ”
shall have the meaning set forth in Section 8.1(a).
“ Securities Act
” shall mean the Securities Act of 1933 and the rules and
regulations promulgated thereunder.
“ SEC ” shall
mean the United States Securities and Exchange
Commission.
“ Stockholders ”
shall mean, for so long as any such Persons hold Company Stock,
collectively (i) Trimaran, (ii) the Management
Stockholders, (iii) the Additional Stockholders, if any, and
(iv) Persons who or which have acquired shares of the
Company’s capital stock from, and are Permitted Transferees
of, any of the Persons referred to in clauses (i), (ii) and
(iii) or their Permitted Transferees (or any combination of
the foregoing).
“ Stockholder
Affiliates ” shall have the meaning set forth in the
definition of Permitted Transferee.
“ Subsidiary ”
shall mean, with respect to any specified Person, (a) a
corporation, fifty percent (50%) or more of the voting or
capital stock of which is, as of the time in question, directly or
indirectly owned by such Person and (b) any partnership, joint
venture, association, joint stock company, trust, unincorporated
organization or other entity in which such Person, directly or
indirectly, owns fifty percent (50%) or more of the equity
economic interest thereof or has the power to elect or direct the
election of more than fifty percent (50%) of the members of
the governing body of such entity.
“ Tag-Along Notice
” shall have the meaning set forth in
Section 4.1(b).
“ Tag-Along Offerees
” shall have the meaning set forth in
Section 4.1(a).
“ Tag-Along Securities
” shall have the meaning set forth in
Section 4.1(a).
“ Third Party ”
shall mean, with respect to any Stockholder, any Person other than
(i) such Stockholder’s Permitted Transferees and
(ii) the Company.
“ Third-Party Purchaser
” shall have the meaning as set forth in
Section 5.1.
“ Transaction ”
shall have the meaning set forth in the recitals.
“ Transfer ”
shall mean any direct or indirect sale, assignment, mortgage,
transfer, pledge, gift, hypothecation, short sale or other direct
or indirect disposition of or transfer of shares of Company Stock.
“ Transferred ” and “ Transferee
” each have a correlative meaning.
“ Transferor ”
shall have the meaning set forth in Section 4.1(a).
“ Trimaran ”
shall have the meaning set forth in the Preamble.
“ Trimaran Funds”
shall mean any of Trimaran Fund II, L.L.C., Trimaran Parallel Fund
II, L.P., Trimaran Capital, L.L.C., CIBC Employee Private Equity
Fund (Trimaran) Partners and CIBC Capital Corporation and any of
their respective Affiliates that are members of the LLC.
“ Trimaran Group
” shall mean Trimaran and its respective Permitted
Transferees who become party to this Agreement pursuant to
Section 3.1.
“ Violation ”
shall mean, with respect to any purchase of shares of Company
Stock, any event or circumstance pursuant to which the purchase of
such shares (together with any other purchases of shares of Company
Stock pursuant to this Agreement of which the Company has at such
time been given or has given notice) would (i) conflict with
or result in a violation of or breach (or any event which with
lapse of time or the occurrence of any act or event or otherwise
would constitute or result in any of the foregoing) any law,
statute, rule, regulation, order, writ, injunction, decree or
judgment promulgated or entered by any federal, state, local or
foreign court or governmental authority applicable to the Company
or its Subsidiaries or any of their properties or assets or
(ii) violate or conflict with or constitute a breach or
default, or an event creating rights of acceleration or termination
(in each case, whether upon lapse of time or the occurrence of any
act or event or otherwise), under any agreement to which the
Company or any of its Subsidiaries is a party or by which any of
their properties or assets may be bound.
“ Voluntary Termination
” shall mean the voluntary termination by a Management
Stockholder or the Chief Executive Officer of the Company of his or
her employment with each of the Company and any of its Subsidiaries
with which such person is employed by voluntary resignation or any
other means, other than a termination by such person for Good
Reason.
ARTICLE II
CERTAIN AGREEMENTS WITH
STOCKHOLDERS
2.1 Monitoring and Management
Agreement . The parties hereto acknowledge and agree that
at the Closing, the Company and Trimaran Fund Management, L.L.C.
will enter into a Monitoring and Management Agreement (the “
Management Agreement ”), the form of which is attached
as Exhibit A, which provides for, among other things, the payment
of monitoring fees and transaction fees by the Company, in exchange
for advisory services provided by the Trimaran Group.
2.2 Agreements with
Stockholders . Any transaction or agreement (other than the
Management Agreement and any other transactions or agreements
contemplated hereby) entered into between the Company, on the one
hand, and any of the Stockholders or their Affiliates, on the other
hand, after the date hereof shall be negotiated on an
arm’s-length basis as determined by the members of the Board
of Directors which are not Nominees of such transacting Stockholder
and shall be subject to the approval of Trimaran. This
Section 2.2 shall not apply to employment matters with respect
to Management Stockholders, which matters will be subject to
necessary approvals of the Board of Directors, or the applicable
committee thereof.
ARTICLE III
TRANSFERS AND
EXCHANGES
3.1 Restrictions on
Transfer .
(a) Subject to the rights and
restrictions set forth in Article IV, no shares of Company Stock
now or hereafter owned by any Stockholder or any interest therein,
may be Transferred, other than:
(i) any Transfer by any Stockholder
to a Third Party with the prior approval of the Board of
Directors;
(ii) Transfers to one or more of
such Stockholder’s Permitted Transferees;
(iii) in the case of any
Stockholder, any Transfer to a Third Party; provided that
the Stockholders (other than the Trimaran Group) shall not have the
ability to effect any Transfer, without the prior consent of the
majority of directors of the Company, pursuant to this clause
(iii) until after the five (5) year anniversary of the
Closing; and provided further that any such permitted
Transfer under this clause (iii) shall be subject to the
provisions of Article IV;
(iv) any Transfer by any Stockholder
to a Third Party of any of such Person’s shares of Company
Stock arising as a result of the exercise by such Stockholder of
“tag-along” rights pursuant to Article IV:
provided that during any period following any termination of
the Management Stockholder’s employment with the Company or
any of its Subsidiaries up until the expiration of the
Company’s call period set forth in Section 6.1, such
Management Stockholder and his Permitted Transferees shall not be
permitted to Transfer any shares of Company Stock pursuant to the
provisions of Article IV;
(v) pursuant to any sale of shares
of Company Stock in connection with the exercise by the Trimaran
Group of its rights under Article V;
(vi) upon the exercise by the
Company (or its designee) or any Management Stockholder (or his or
her personal representatives) of any “call” or
“put” rights, as applicable, provided for in Article
VI; and
(vii) any sale of shares of Company
Stock in connection with the exercise of such Person’s rights
under Article VII;
(b) Any Transfer of shares of
Company Stock made pursuant to this Section 3.1 to a Third
Party or a Permitted Transferee shall be effective only
if:
(i) such Third Party or Permitted
Transferee (to the extent not already party to this Agreement)
shall agree in writing, in accordance with Article IX hereof, to be
bound by the terms and conditions of this Agreement to the same
extent and in the same manner as the Stockholder transferring such
shares of Company Stock;
(ii) the Transfer to such Third
Party or Permitted Transferee is in compliance with all applicable
federal, state and foreign securities laws;
(iii) in the event of a Transfer to
a Third Party, if requested by the Board of Directors in its sole
judgment, the Company receives an opinion of counsel reasonably
acceptable to the Company, at the expense of the Stockholder
proposing the Transfer, reasonably satisfactory in form and
substance to the Board of Directors, to the effect that:
(A) such Transfer would not violate the Securities Act or any
state securities or “blue sky” laws applicable to the
Company or the shares of Company Stock to be Transferred,
(B) such Transfer shall not impose liability or reporting
obligations on the Company or any Stockholder in any jurisdiction,
whether domestic or foreign, or result in the Company or any
Stockholder becoming subject to the jurisdiction of any court or
Governmental Authority anywhere, other than the states, courts and
Governmental Authorities in which the Company is then subject to
such liability, reporting obligation or jurisdiction and
(C) such other customary matters as the Board of Directors may
reasonably request; and
(iv) in the event of a Transfer to a
Permitted Transferee, the Stockholder has obtained the prior
approval of the Board of Directors (which consent shall not be
withheld unless, in the reasonable opinion of the Board of
Directors, such Transfer of shares of Company Stock by such
Stockholder together with all other Transfers of shares of Company
Stock made by such Stockholder could result in or create a
significant risk (as defined below) that, prior to any
Registration, the Company may become subject to the informational
requirements of the Exchange Act). For the purposes of this
Section 3.1(b)(iv), a “significant risk” shall be
deemed to arise when the number of “holders of record”
(as
determined in accordance with the
Exchange Act) is greater than 80% of the number of “holders
of record” that would cause the application or continued
application of the informational requirements of the Exchange Act
under the then existing circumstances.
(c) Notwithstanding any other
provision of this Agreement, the parties hereby agree that any
Transfer or series of Transfers of any equity interests in Trimaran
shall not constitute a Transfer of Company Stock for purposes of
this Agreement.
(d) No Transfer of shares of Company
Stock in violation of this Agreement shall be made or recorded on
the books of the Company and any such Transfer shall be void and of
no effect.
(e) Notwithstanding anything to the
contrary, unexercised Exchange Options may not be Transferred to
any Person except as a result of the laws of descent solely in
order that Exchange Options may be exercised in accordance with the
terms of applicable option agreement; provided further that
Section 3.2 below shall apply in respect of any shares into
which such Exchange Options are exercised.
3.2 Involuntary
Transfers . In the case of any Transfer of title or
beneficial ownership of shares of Company Stock upon default,
foreclosure, forfeit, divorce, court order, or otherwise than by a
voluntary decision on the part of a Stockholder (an “
Involuntary Transfer ”), (i) the Company shall
have the right to purchase such shares of Company Stock pursuant to
this Section 3.2 and (ii) if the Company shall have
failed to exercise such right, each Stockholder (other than the
Stockholder whose shares of Company Stock are subject to such
Involuntary Transfer) shall have the right to purchase such shares
of Company Stock pursuant to this Section 3.2 which shares of
Company Stock shall be allocated to each such Stockholder on a pro
rata basis in accordance with its ownership of shares of Company
Stock on a fully-diluted basis (excluding any unexercised options
or warrants). Upon the Involuntary Transfer of any shares of
Company Stock, such holder of shares of Company Stock shall
promptly (but in no event later than two (2) days after such
Involuntary Transfer) furnish written notice (the “
Involuntary Transfer Notice ”) to the Company and each
of the Stockholders indicating that the Involuntary Transfer has
occurred, specifying the name of the Person to whom such shares
have been transferred (the “ Involuntary Transferee
”) and giving a detailed description of the circumstances
giving rise to, and stating the legal basis for, the Involuntary
Transfer. Upon the receipt of the Involuntary Transfer Notice, and
for thirty (30) days thereafter, the Company or each
Stockholder (other than the Stockholder whose shares of Company
Stock are subject to such Involuntary Transfer), as applicable,
shall have the right to purchase (subject to the priority set forth
in the first sentence of this Section 3.2), and the
Involuntary Transferee shall have the obligation to sell, all, but
not less than all, of the shares of Company Stock acquired by the
Involuntary Transferee for a purchase price equal to the lesser of
(i) the Fair Market Value of such shares of Company Stock on
the date of transfer to the Involuntary Transferee and
(ii) the amount of the Indebtedness or other liability that
would be extinguished as a result of the Involuntary Transfer plus
the excess, if any, of the Carrying Value of such shares
of
Company Stock over the amount of such
Indebtedness or other liability that gave rise to the Involuntary
Transfer. It is understood that this Section 3.2 shall not
apply to any Involuntary Transfer upon death or Disability;
provided , however, subject to Section 3.1(e) and
Article VI, in the case of any Transfer of title or beneficial
ownership of shares of Company Stock upon death, including as a
result of the laws of descent, the transferee shall become a party
to this Agreement (to the same extent as contemplated with respect
to the transferor Stockholder).
Notwithstanding the foregoing, the
Board of Directors may, for good cause shown by the holder of
shares of Company Stock who made the Involuntary Transfer,
determine that payment of a purchase price equal to the Fair Market
Value of such shares of Company Stock on the date of transfer to
the Involuntary Transferee would be appropriate under the
circumstances, and direct that payment be made in such
amount.
ARTICLE IV
TAG-ALONG RIGHTS; RIGHT OF FIRST
OFFER
4.1 Tag-Along Rights
Generally .
(a) Until the occurrence of a
Qualified Public Offering, subject to the restrictions on Transfer
set forth in Section 3.1 hereof and subject to
Section 4.3 hereof, in the case of a proposed Transfer of five
percent (5%) or more of the shares of Company Stock held by
Trimaran (the “ Transferring Stockholder ”) (a
“ Tag-Along Transfer ”), each other Stockholder
may exercise tag-along rights in accordance with the terms,
conditions and procedures set forth herein (any Stockholder
exercising such rights, a “ Tagging Stockholder
”).
(b) The Transferring Stockholder
shall promptly give notice (a “ Tag-Along Notice
”) to each Stockholder of any Tag-Along Transfer, setting
forth the number of shares of Company Stock proposed to be
Transferred, the name and address of the Transferee, the proposed
amount and form of consideration for shares of Company Stock, and
any other material terms and conditions of the Tag-Along Transfer.
Each Stockholder shall have a period of thirty (30) days from
the date of the Tag-Along Notice within which to elect to sell up
to its Pro Rata Portion of shares of Company Stock in connection
with such Tag-Along Transfer. Any Stockholder may exercise such
right by delivery of an irrevocable written notice to the
Transferring Stockholder specifying the number of shares of Company
Stock such Stockholder desires to include in the Tag-Along
Transfer, accompanied by (i) any certificates representing
such shares, duly endorsed, to be held in escrow pending the Tag
Along Transfer (or if the Tagging Stockholder wishes to Transfer
shares underlying Exchange Options, an exercise notice and the
exercise price) and (ii) a limited power of attorney
authorizing the Transferring Stockholder to sell or otherwise
dispose of the applicable number of such Stockholder’s shares
of Company Stock. If the Transferring Stockholder is unable to
cause the Transferee to purchase all the shares of Company Stock
proposed to be Transferred by the Transferring Stockholder and the
Tagging Stockholders, then the number of shares of Company Stock
each such Stockholder is permitted to sell in such Tag-Along
Transfer
shall be scaled back pro
rata based on the number of shares of Company Stock held by
such Stockholder relative to the number of shares of Company Stock
held by all Stockholders participating in such Tag-Along Transfer.
The Transferring Stockholder shall have a period of sixty
(60) days following the expiration of the thirty (30) day
period mentioned above to sell all the shares of Company Stock
agreed to be purchased by the Transferee, on the payment terms
specified in the Tag-Along Notice.
(c) Each Tagging Stockholder shall
agree (i) to make the same representations, warranties,
covenants, indemnities and agreements to the Transferee as made by
the Transferring Stockholders in connection with the Tag-Along
Transfer (other than any non-competition or similar agreements or
covenants that would bind the Tagging Stockholder or its
Affiliates), and (ii) to the same terms and conditions to the
transfer as the Transferring Stockholders agree. Notwithstanding
the foregoing, however, all such representations, warranties,
covenants, indemnities and agreements shall be made by each
Transferring Stockholder and each Tagging Stockholder severally and
not jointly, and any liability for breach of any such
representations and warranties related to the Company shall be
allocated among each Transferring Stockholder and each Tagging
Stockholder pro rata based on the relative number of
shares of Company Stock to be Transferred by each of them, and the
aggregate amount of liability for each such Transferring
Stockholder and Tagging Stockholder shall not exceed the U.S.
dollar value of the total consideration to be paid by the
Transferee to such Transferring Stockholder and Tagging
Stockholder, respectively.
(d) Notwithstanding anything to the
contrary, any Stockholder wishing to include any shares of Company
Stock that are acquirable pursuant to the exercise of any vested
Options (including Exchange Options, other vested Options and any
Options that would vest upon the consummation of the Transfer
giving rise to such tag along rights) in a Tag-Along Transfer must
include in the notice of acceptance pursuant to Section 4.1(b)
an irrevocable commitment to exercise such Options, subject only to
the closing of the Transfer of Company Stock by the Transferring
Stockholder; provided that Options which by their terms are
forfeited prior to the applicable closing must be exercised prior
to such forfeiture in order for the underlying shares of Company
Stock to be included in a Tag-Along Transfer.
(e) In the event that any Trimaran
Fund proposes to Transfer membership interests in Trimaran such
that any other member of Trimaran would have tag-along rights
pursuant to the LLC Agreement (a “LLC Tag-Along
Transfer”), Trimaran shall give each Stockholder a Tag-Along
Notice with respect to such proposed Transfer, and each Stockholder
shall be permitted to tag-along to such LLC Tag-Along Transfer, in
accordance with the applicable mechanics of Section 4.1(b);
provided that (A) a Stockholder’s “Pro Rata
Portion” of shares of Company Stock shall mean a number of
shares of Company Stock equal to the product of
(y) (1) the number of shares of Company Stock (other than
any Options) held by the tagging Stockholder plus (2) the
number of shares of Company Stock issuable upon the exercise of any
vested Options held by the tagging Stockholder and (z) a
fraction, the numerator of which is the number of shares of Company
Stock beneficially owned by the applicable Trimaran Fund(s) through
ownership of the membership interests in Trimaran proposed to be
Transferred in
connection with the applicable LLC
Tag-Along Transfer and the denominator of which is the aggregate
number of shares of Company Stock beneficially owned by the
applicable Trimaran Fund(s) immediately prior to such LLC Tag-Along
Transfer and (B) if the Trimaran Fund(s) is unable to cause
the Transferee to purchase all the membership interests and shares
of common stock proposed to be Transferred by the Trimaran Fund(s)
and the tagging members and stockholders, then the number of shares
of Company Stock each such Stockholder is permitted to sell in such
LLC Tag-Along Transfer hereunder shall be scaled back pro
rata based on the number of shares of Company Stock held by
such Stockholder relative to the number of shares of Company Stock
held directly or beneficially owned by all members and Stockholders
participating in such LLC Tag-Along Transfer. Notwithstanding
anything to the contrary, if in any LLC Tag-Along Transfer of
Trimaran, any Trimaran Funds become aware that the proposed
transferee in good faith is not willing to consummate such sale if
shares of Company Stock held by any Stockholder are included in
such sale (by virtue of the tag-along rights specified hereunder),
then the Trimaran Funds shall be permitted to proceed with such
sale (to the full extent of such LLC Tag-Along Transfer) without
including any such shares of Company Stock, and Stockholders shall
not have tag-along rights with respect to shares of Company Stock
in such proposed Transfer of membership interests. In the event
that any Stockholder participates in a LLC Tag-Along Transfer, the
provisions of Sections 4.1(c) and 4.1(d) shall appropriately apply
(it being understood that applicable references to “Tag-Along
Transfer” therein shall be to the applicable LLC Tag-Along
Transfer).
4.2 Exceptions to Tag-Along
Rights and Right of First Offer . The provisions of
Section 4.1 shall not be applicable to any Transfer of shares
of Company Stock (a) from Trimaran to any Permitted Transferee
thereof, (b) made in connection with the exercise by Trimaran
of its rights under Article V, so long as Trimaran exercises such
rights in full with respect to shares of Common Stock held by
Management Stockholders, (c) made pursuant to a public
offering of shares of Company Stock in connection with the exercise
of rights pursuant to Article VII, (d) made in connection with
an exchange or conversion of shares of Company Stock for shares of
stock or other equity securities of the Company so long as
Management Stockholders are given a commensurate right to exchange
or convert shares of Common Stock, or (e) by the Trimaran
Group to one or more Third Parties of a number of shares of Company
Stock having a value of up to $70 million (based on the Per Share
Value) during the one (1) year period following the Closing;
provided that in the event of a reclassification, stock
split, reverse stock split, stock dividend or stock distribution
the foregoing number of shares of Company Stock shall be
correspondingly adjusted to provide the Trimaran Group the same
economic effect contemplated by this provision prior to such
event.
4.3 Right of First
Offer . Following the five year restriction period set
forth in Section 3.1(a)(iii) or if the directors of the
Company consent to an earlier Transfer pursuant to
Section 3.1(a)(iii), upon the receipt by any Stockholder
(other than any member of the Trimaran Group)
(“Transferor”) from a Third Party of a Bona Fide Offer
to purchase or otherwise acquire (or if such Transferor has
otherwise agreed to Transfer to a Third Party (other than in
connection with a Qualified Public Offering)) all or a portion of
Transferor’s shares of Company Stock (other than a Transfer
pursuant to Section 4.2) which Transferor desires to accept,
Transferor shall cause the Third Party’s
offer to be reduced to writing and shall provide
a copy of such written notice of such Third Party’s offer
(the “ ROFO Notice ”) to the Company, and the
Company shall provide a copy thereof to Trimaran. The Company may,
within thirty (30) days following its receipt of a ROFO
Notice, elect to purchase from the Transferor all (but not less
than all) of the shares of Company Stock held by such Transferor
which are subject to such ROFO Notice (the “ Transferor
Shares ”) upon the same terms and conditions as the terms
and conditions contained in the Third Party’s offer (the
“ Offer ”). To the extent the Company declines
to elect to purchase such Transferor Shares, Trimaran shall have
ten (10) Business Days from the end of such thirty
(30) day period to elect to purchase collectively all (but not
less than all) of such Transferor Shares. In the event the Company
declines to purchase such Transferor Shares, the Company shall
promptly notify Trimaran and the Transferor in writing of its
decision.
(b) Following the five year
restriction period set forth in Section 3.1(a)(iii) or if the
directors of the Company consent to an earlier Transfer pursuant to
Section 3.1(a)(iii), if neither the Company nor Trimaran shall
have elected to purchase the Transferor Shares, the Transferor may
sell, within sixty days following the thirty (30) day period
referred to in Section 4.3(a), to such Third Party all (but
not less than all) of the Transferor Shares, for the purchase price
and on the other terms and conditions contained in the Offer
subject to the conditions of this Article IV. If the Company or
Trimaran shall elect to purchase the Transferor Shares, the closing
of the purchase and sale pursuant to such acceptance shall take
place at a time and date to be determined by the Transferor and the
Company or the Trimaran, as the case may be.
ARTICLE V
DRAG-ALONG RIGHTS AND RIGHT TO
COMPEL QUALIFIED PUBLIC OFFERING
5.1 Drag-Along Rights
.
(a) If (i) the Trimaran Group
(the “ Selling Stockholders ”) agree to
Transfer, in any single or series of related transactions, greater
than fifty percent (50%) of the aggregate number of the shares
of Company Stock held by the Selling Stockholders to a
non-affiliated third party or (ii) the Selling Members (as
defined in the LLC Agreement) exercise drag-along rights pursuant
to Section 8.04 of the LLC Agreement (an “ LLC
Drag ”, and (i) and (ii) collectively, “
Drag-Along Transfers ”), the Selling Stockholders may
exercise drag-along rights in accordance with the terms, conditions
and procedures set forth herein.
(b) Trimaran shall promptly give
notice (a “ Drag-Along Notice ”) to each other
Stockholder (the “ Drag-Along Stockholder ”) of
any election by the Selling Stockholders to exercise their
drag-along rights under this Section 5.1, setting forth the
name and address of the transferee, the total number of shares of
Company Stock proposed to be Transferred by the Selling
Stockholders (or Membership Units by the Selling Members in the
case of a LLC Drag), the proposed amount and form of consideration
for such shares of Company Stock (or Membership Units, in the case
of a
LLC Drag), and all other material
terms and conditions of the Drag-Along Transfer. Such notice shall
also specify the number of shares of Company Stock such Drag-Along
Stockholder shall be required to transfer, up to such Drag-Along
Stockholder’s Pro Rata Portion of shares of Company Stock.
Any transfer of Company Stock by a Drag-Along Stockholder pursuant
to the terms hereof shall be at the price per share of Company
Stock specified in the Drag-Along Notice (or in the case of a LLC
Drag, at the Company Stock Equivalent Price). Within ten
(10) days of the Drag-Along Notice, each Stockholder (other
than members of the Trimaran Group) shall deliver to Trimaran
(i) any certificates representing the shares subject to the
Drag-Along Transfer, duly endorsed, to be held in escrow pending
the Drag-Along Transfer and (ii) a limited power of attorney
authorizing the Selling Stockholder to sell or otherwise dispose of
the applicable number of such Stockholder’s shares of Company
Stock.
(c) Each Drag-Along Stockholder must
agree (i) to make the same representations, warranties,
covenants, indemnities and agreements as made by the Selling
Stockholders (or Selling Members, in the LLC Drag) in connection
with the Drag-Along Transfer (other than any non-competition or
similar agreements or covenants that would bind the Drag-Along
Stockholder or its Affiliates), and (ii) to the same terms and
conditions to the transfer as the Selling Stockholders agree.
Notwithstanding the foregoing, however, all such representations,
warranties, covenants, indemnities and agreements shall be made by
each Selling Stockholder (or Selling Member, in the case of a LLC
Drag) and Drag-Along Stockholder severally and not jointly and any
liability for breach of any such representations and warranties
related to the Company shall be allocated among each Selling
Stockholder (or Selling Member, in the case of a LLC Drag) and
Drag-Along Stockholder pro rata based on the relative number
of shares of Company Stock Transferred by each of them (which in
the case of a LLC Drag, shall be determined by the Board of
Directors taking into account the relative capitalizations of the
Company and Trimaran), and the aggregate amount of liability for
each such Selling Stockholder (or Selling Member in the case of a
LLC Drag) and Drag-Along Stockholder shall not exceed the U.S.
dollar value of the total consideration to be paid by the
Transferee to such Selling Stockholder (or Selling Member, in the
case of a LLC Drag) and Drag-Along Stockholder,
respectively.
(d) In the event that any transfer
pursuant to this Section 5.1 is structured as a merger,
consolidation, or similar business combination, each Drag-Along
Stockholder must further agree to (i) vote in favor of the
transaction, (ii) take such other action as may be required to
effect such transaction, and (iii) take all action to waive
any dissenters, appraisal or other similar rights with respect
thereto. In the event that any transaction that is subject to a LLC
Drag is structured as a merger, consolidation, or similar business
combination, each Selling Stockholder agrees to Transfer its Pro
Rata Portion of shares of Company Stock in connection with such
transaction.
(e) Solely for purposes of
Section 5.1(d) and in order to secure the performance of each
Stockholder’s obligations under Section 5.1(d), each
Stockholder hereby irrevocably appoints Trimaran as its the
attorney-in-fact and proxy of such Stockholder (with full power of
substitution) to vote, provide a written consent or take any other
action with respect to its shares of Company Stock as described in
this
paragraph if, and only in the event
that, such Stockholder fails to vote or provide a written consent
with respect to its shares of Company Stock in accordance with the
terms of Section 5.1(d)(i) or fails to take any other action
in accordance with the terms of Section 5.1(d)(ii) or
Section 5.1(d)(iii) (each such Stockholder, a “
Breaching Drag-Along Stockholder ”) within three
(3) days of a request for such vote, written consent or
action. Upon such failure, Trimaran shall have and is hereby
irrevocably granted a proxy to vote or provide a written consent
with respect to each such Breaching Drag-Along Stockholder’s
shares of Company Stock for the purposes of taking the actions
required by Section 5.1(d). Each Stockholder intends this
proxy to be, and it shall be, irrevocable and coupled with an
interest, and each Stockholder shall take such further action and
execute such other instruments as may be necessary to effectuate
the intent of this proxy and hereby revoke any proxy previously
granted by it with respect to the matters set forth in
Section 5.1(d) with respect to the shares of Company Stock
owned by such Stockholder.
(f) If any Drag-Along Stockholder
fails to transfer to the Drag-Along Buyer the shares of Company
Stock to be sold pursuant to this Section 5.1, the Selling
Stockholders may, at their option, in addition to all other
remedies they may have, deposit the purchase price (including any
promissory note constituting all or any portion thereof) for such
shares of Company Stock with any national bank or trust company
having combined capital, surplus and undivided profits in excess of
$500 million (the “ Escrow Agent ”), and
thereupon all of such Drag-Along Stockholder’s rights in and
to such shares of Company Stock shall terminate. Thereafter, upon
delivery to the Company by such Drag-Along Stockholder of
appropriate documentation evidencing the transfer of such shares of
Company Stock to the drag-along Transferee, the Selling
Stockholders shall instruct the Escrow Agent to deliver the
purchase price (without any interest from the date of the closing
to the date of such delivery, any such interest to accrue to the
Company) to such Drag-Along Stockholder.
(g) Notwithstanding anything to the
contrary, each Stockholder holding vested Options to acquire Common
Stock (including any Exchange Options, other vested Options and
Options that would vest upon the consummation of the Drag-Along
Transfer) agrees to provide to Trimaran, upon delivery of the
Drag-Along Notice, an irrevocable commitment to exercise vested
Options exercisable into a number of shares of Common Stock equal
to (x) such Stockholder’s Pro Rata Portion of shares of
Company Stock, less (y) the number of shares of Common Stock
held by such Stockholder (which are to be included in the
applicable Drag-Along Transfer); provided that if any vested
Options or Options that would vest upon consummation of the
Drag-Along Transfer, which a Stockholder is otherwise obligated to
exercise pursuant to the foregoing, are not “in the
money,” such Stockholder shall not be obligated to exercise
such Options for cash; provided however, that any such
“out of the money” options required to be included in
such Drag-Along Transfer pursuant to the forgoing shall be
cancelled without any consideration paid therefor and be deemed
included in such Drag-Along Transfer; provided , further,
however that a Stockholder shall be obligated to include and
exercise all “in the money” Options held
