Exhibit
10.32


 


SECOND AMENDED AND RESTATED


 


 


STOCKHOLDERS’ AGREEMENT


 


 


BY AND AMONG


 


 


Roller Bearing Holding Company, Inc.,


 


Dr. Michael J. Hartnett and


 


Hartnett Family Investments, L.P.


 


AND


 


Whitney RBHC Investor, LLC and


 


Whitney V, L.P.


 


 


Dated as
of February 6, 2003


 

















 


TABLE OF
CONTENTS


 


	
  1.

  	
  DEFINITIONS

  
	
   

  	
  1.1

  	
  “Affiliate”

  
	
   

  	
  1.2

  	
  “Applicable Subordinated
  Debt”

  
	
   

  	
  1.3

  	
  “Board”

  
	
   

  	
  1.4

  	
  “Class C Preferred Stock”

  
	
   

  	
  1.5

  	
  “Class D Preferred Stock

  
	
   

  	
  1.6

  	
  “Common Stock”

  
	
   

  	
  1.7

  	
  “Control”

  
	
   

  	
  1.8

  	
  “Derivative Securities”

  
	
   

  	
  1.9

  	
  “Exercise Price”

  
	
   

  	
  1.10

  	
  “Hartnett Employment
  Agreement”

  
	
   

  	
  1.11

  	
  “Immediate Family”

  
	
   

  	
  1.12

  	
  “Indemnification Shares”

  
	
   

  	
  1.13

  	
  “Initial Public Offering”

  
	
   

  	
  1.14

  	
  “Management Services
  Agreement”

  
	
   

  	
  1.15

  	
  “Minimum Hartnett Ownership”

  
	
   

  	
  1.16

  	
  “Minimum Whitney
  Common Ownership”

  
	
   

  	
  1.17

  	
  “Minimum Whitney Ownership”

  
	
   

  	
  1.18

  	
  “Minimum Whitney
  Preferred Ownership”

  
	
   

  	
  1.19

  	
  “New Stock Purchase
  Agreement”

  
	
   

  	
  1.20

  	
  “Old Stock Purchase
  Agreement”

  
	
   

  	
  1.21

  	
  “Outstanding Common Shares”

  
	
   

  	
  1.22

  	
  “Permitted Transfer”

  
	
   

  	
  1.23

  	
  “Permitted Transferee”

  
	
   

  	
  1.24

  	
  “Person”

  
	
   

  	
  1.25

  	
  “Preferred Stock”

  
	
   

  	
  1.26

  	
  “Public Sale”

  
	
   

  	
  1.27

  	
  “RBCA”

  
	
   

  	
  1.28

  	
  “Sale of Business
  Transaction”

  
	
   

  	
  1.29

  	
  “Securities”

  
	
   

  	
  1.30

  	
  “Stock Purchase Agreement”

  
	
   

  	
  1.31

  	
  “Voting Power”

  
	
   

  	
  1.32

  	
  “Whitney IRR”

  
	
   

  	
  1.33

  	
  “Whitney Management”

  
	
   

  	
  1.34

  	
  “Whitney Notice Parties”

  
	
   

  	
  1.35

  	
  “Whitney Parties”

  
	
   

  	
  1.36

  	
  Additional Defined Terms

  
	
   

  	
   

  	
   

  
	
  2.

  	
  TRANSFER
  RESTRICTIONS

  
	
   

  	
  2.1

  	
  Legends

  
	
   

  	
  2.2

  	
  Restrictions on Transfer

  
	
   

  	
  2.3

  	
  Right of First Offer

  
	
   

  	
  2.4

  	
  Tag-Along Rights

  
	
   

  	
  2.5

  	
  Right to Compel Sale

  



 

















 


	
   

  	
  2.6

  	
  Securities of Transferees

  
	
   

  	
  2.7

  	
  Competitors

  
	
   

  	
  2.8

  	
  Transfers Not in
  Compliance Void

  
	
   

  	
  2.9

  	
  Termination

  
	
   

  	
   

  	
   

  
	
  3.

  	
  RIGHT OF
  FIRST OFFER; PARTICIPATION RIGHT

  
	
   

  	
  3.1

  	
  Right
  of First Offer and Participation Right as to New Securities

  
	
   

  	
  3.2

  	
  Exceptions
  to Right of First Offer and Participation Right

  
	
   

  	
  3.3

  	
  Right
  of First Offer on Subordinated Debt Issuances

  
	
   

  	
  3.4

  	
  Termination on
  Initial Public Offering

  
	
   

  	
   

  	
   

  
	
  4.

  	
  REGISTRATION
  RIGHTS

  
	
   

  	
  4.1

  	
  Piggyback Registration

  
	
   

  	
  4.2

  	
  Demand Registration

  
	
   

  	
  4.3

  	
  Covenants With
  Respect to Registration

  
	
   

  	
  4.4

  	
  Definition of Common Stock

  
	
   

  	
  4.5

  	
  Designation of
  Underwriters

  
	
   

  	
   

  	
   

  
	
  5.

  	
  SPECIAL WHITNEY PRIVILEGES

  
	
   

  	
  5.1

  	
  Whitney Board Designee

  
	
   

  	
  5.2

  	
  Whitney’s Written Consent

  
	
   

  	
  5.3

  	
  Whitney’s Right to
  Information

  
	
   

  	
   

  	
   

  
	
  6.

  	
  Affirmative
  Covenants

  
	
   

  	
  6.1

  	
  Preservation of
  Corporate Existence

  
	
   

  	
  6.2

  	
  Payment of Obligations

  
	
   

  	
  6.3

  	
  Compliance with Laws

  
	
   

  	
  6.4

  	
  Insurance

  
	
   

  	
  6.5

  	
  Books and Records

  
	
   

  	
  6.6

  	
  Recourse

  
	
   

  	
   

  	
   

  
	
  7.

  	
  TERMINATION; AMENDMENT;
  WAIVER

  
	
   

  	
  7.1

  	
  Termination; Amendment

  
	
   

  	
  7.2

  	
  Waiver

  
	
   

  	
   

  	
   

  
	
  8.

  	
  MISCELLANEOUS

  
	
   

  	
  8.1

  	
  Notices

  
	
   

  	
  8.2

  	
  Entire Agreement

  
	
   

  	
  8.3

  	
  Captions

  
	
   

  	
  8.4

  	
  No Third Party Beneficiary

  
	
   

  	
  8.5

  	
  Remedies Cumulative

  
	
   

  	
  8.6

  	
  Governing
  Law; Submission to Jurisdiction

  
	
   

  	
  8.7

  	
  Assignment

  
	
   

  	
  8.8

  	
  No Inconsistent Agreements

  
	
   

  	
  8.9

  	
  Counterparts

  



 


ii

















 


SECOND
AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT


 


This Second Amended and
Restated Stockholder’s Agreement, dated as of this 6th day of
February, 2003, by and among Roller Bearing Holding Company, Inc., a Delaware
corporation (“Holdings”), Whitney RBHC Investor,
LLC, a Delaware limited liability company (“Whitney
Investor”) and Whitney V, L.P., a Delaware limited partnership
(“Whitney V” and, collectively with
Whitney Investor, “Whitney”), Dr. Michael J. Hartnett
and Hartnett Family Investments, L.P., a Delaware limited partnership (together
with Dr. Michael J. Hartnett, “Hartnett” and
together with Whitney, collectively the “Initial
Parties” and individually an “Initial
Party”) and the Persons who by operation of Section 2.6
become a party hereto.


 


WHEREAS, Whitney is the
owner of (i) 2,368,265 shares (the “Whitney
Common Shares”) of Class A Voting Common Stock of Holdings,
par value $0.01 per share (“Class A Common Stock”),
(ii) 230,000 shares (the “Whitney
Class B Preferred Shares”) of Class B Exchangeable Convertible
Participating Preferred Stock of Holdings, par value $0.01 per share (“Class B Preferred Stock”); and
(iii) 809.49 shares (the “Whitney Class A Preferred Shares”) of
Class A Preferred Stock of Holdings, par value $0.01 per share (“Class A
Preferred Stock”); and


 


WHEREAS, Hartnett is the
owner of (a) (i) 100 shares (the “Hartnett
Common Shares”) of Class B Supervoting Common Stock of
Holdings, par value $0.01 per share (“Class B
Common Stock”), (ii) 198.92 shares of Class A Preferred
Stock (the “Hartnett
Class A Preferred Shares” and (iii) 10,000 shares of Class B
Preferred Stock (the “Hartnett
Class B Preferred Shares,” collectively with the Hartnett
Common Shares and the Hartnett Class A Preferred Shares the “Hartnett Shares” and the Hartnett
Shares collectively with the Whitney Shares, the “Shares”);
and (b) (i) a warrant to purchase 424,146 shares of Class B Common
Stock at $1.00 per share, (ii) a warrant to purchase 125,000 shares of
Class B Common Stock at $5.14 per share, (iii) an option to purchase 9,250
shares of Class A Common Stock at $5.14 per share, and (iv) an option to
purchase 166,667 shares of Class A Common Stock at $1.00 per share
(collectively, the “Warrants”); and


 


WHEREAS, the Initial Parties entered into a
Stockholders’ Agreement (the “First Stockholders’ Agreement”), dated
December 18, 2000, setting forth their agreements regarding certain matters
relating to their ownership of the Shares and the Warrants; and


 


WHEREAS, the Initial Parties entered into an Amended
and Restated Stockholders’ Agreement (the “Existing Stockholders’ Agreement”),
dated as of July 29, 2002, which amended and restated the First Stockholders’
Agreement in its entirety; and


 


WHEREAS, the Initial Parties wish to amend and restate the Existing
Stockholders Agreement in the manner set forth herein.


 


NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:


 

















 


1.          DEFINITIONS


 


As used herein, the following terms shall have the meanings indicated:


 


1.1                                 “Affiliate” shall mean a Person Controlled by, in Control of,
or under common Control with, another Person.


 


1.2                                 “Applicable Subordinated Debt” shall mean
indebtedness of Holdings or any of its subsidiaries that (i) is in an amount of
not less than $50 million, (ii) is unsecured, and (iii) is subordinated to all
secured debt of Holdings and/or such subsidiary.


 


1.3                                 “Board” shall mean the Board of Directors of Holdings.


 


1.4                                 “Class C Preferred Stock” shall mean the Class C
Redeemable Preferred Stock of Holdings, par value $0.01 per share.


 


1.5                                 “Class D Preferred Stock shall mean the Class D
Preferred Stock of Holdings, par value $0.01 per share.


 


1.6                                 “Common Stock” shall mean (i) the Class A Common Stock,
(ii) the Class B Common Stock and (iii) any other class or series of common
stock of the Company authorized after the date hereof.


 


1.7                                 “Control” (including the correlative terms “Controlled by”, “in Control of”
and “under common Control with”), with
respect to any Person, shall mean possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.


 


1.8                                 “Derivative Securities” shall mean options,
warrants (including the Warrants) and other rights to subscribe for, and
securities convertible into or exchangeable or exercisable for, shares of
Common Stock, including, but not limited to, the Class B Preferred Stock.


 


1.9                                 “Exercise Price” shall mean, as applicable, the exercise
price of options, warrants (including the Warrants) or rights to subscribe for
shares of Common Stock and the consideration payable upon the conversion or
exchange of securities convertible into or exchangeable for shares of Common
Stock.


 


1.10                           “Hartnett Employment Agreement” shall mean
the Amended and Restated Employment Agreement, dated December 18, 2000, by
and between RBCA and Hartnett.


 


1.11                           “Immediate Family,” with respect to an individual,
shall mean his brothers, sisters, spouse, children (including adopted
children), parents, parents-in-law, grandchildren, great grandchildren and
other lineal descendants and spouses of any of the foregoing.


 


1.12                           “Indemnification Shares” shall mean any shares of
Class A Preferred Stock issued by Holdings
pursuant to Article 9 of the Old Stock Purchase Agreement, Article 8 of the New
Stock Purchase Agreement” or Article 8 of the Third Stock Purchase Agreement.


 


2

















 


1.13                           “Initial Public Offering” shall mean the first
underwritten public offering of equity securities of Holdings pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the “Act”), for which Holdings receives not less than $50
million in net proceeds and following which there is a public market for the
securities so offered.


 


1.14                           “Management Services Agreement” shall mean
that certain Amended and Restated Management Services Agreement, dated as of
July 29, 2002, by and between Whitney & Co., a Delaware Corporation, and
RBCA.


 


1.15                           “Minimum Hartnett Ownership” when stated as a
percentage, shall mean the indicated percentage of all Outstanding Hartnett
Common Shares owned by the Hartnett Parties as of the date hereof and always as
adjusted to reflect any stock split, stock dividend, reclassification,
recapitalization or other transaction having a similar effect.


 


1.16                           “Minimum Whitney Common Ownership” when
stated as a percentage, shall mean the indicated percentage of all Whitney
Common Shares owned by the Whitney Parties as of the date hereof (and for the
avoidance of doubt, excluding Common Stock that may be obtained upon conversion
of the Class B Preferred Stock) and always as adjusted to reflect any stock
split, stock dividend, reclassification, recapitalization or other transaction
having a similar effect.  For the
purposes hereof and of Section 1.18 below, if the Whitney Parties dispose of
any shares of Class A Common Stock, the first shares of Class A Common Stock
actually disposed of shall be deemed to be Common Stock obtained upon
conversion of the Class B Preferred Stock (and not the Whitney Common Shares or
otherwise).


 


1.17                           “Minimum Whitney Ownership” when stated as a
percentage, shall mean the indicated percentage of all Outstanding Whitney
Common Shares owned by the Whitney Parties as of the date hereof, other than
shares of Class A Preferred stock purchased pursuant to the Third Stock
Purchase Agreement, and always as adjusted to reflect any stock split, stock
dividend, reclassification, recapitalization or other transaction having a
similar effect.


 


1.18                           “Minimum Whitney Preferred Ownership”
when stated as a percentage, shall mean the indicated percentage of each of (i)
the Shares of Class A Common Stock into which the Class B Preferred Stock have
been converted, and (ii) the Whitney Class B Preferred Shares, which for the
purposes hereof shall be deemed to be all (A) Class B Preferred Stock and (B)
Class C Preferred Stock and Class D Preferred Stock, in each case owned by the
Whitney Parties, each as of the date hereof and always as adjusted to reflect
any stock split, stock dividend, reclassification, recapitalization or other
transaction having a similar effect. 
Further, for the purposes hereof, the Whitney Parties shall be deemed
not to have transferred any shares of such Preferred Stock, which shall have
been redeemed by Holdings.


 


1.19                           “New Stock Purchase Agreement” shall mean
that certain Stock Purchase Agreement by and between Holdings and Whitney V,
dated as of July 25, 2002.


 


1.20                           “Old Stock Purchase Agreement” shall mean
that certain Stock Purchase Agreement dated as of November 20, 2000, among the
Corporation, Michael J. Hartnett, Hartnett Family Investments, L.P. and Whitney
Acquisition II, Inc.


 


3

















 


1.21                           “Outstanding Common Shares” including subsets
of such terms such as “Outstanding
Whitney Common Shares” or “Outstanding
Hartnett Common Shares,” shall mean all Common Stock that may be issued by
Holdings or its successors upon conversion, exchange or exercise of any shares
of Common Stock, Warrants or other Derivative Securities, including the Class B
Preferred Stock.


 


1.22                           “Permitted Transfer” shall mean a Transfer to a
Permitted Transferee.


 


1.23                           “Permitted Transferee” shall mean, with respect to
any Person, (a) if such Person is an individual, (i) a member of the Immediate
Family of such Person, (ii) a trust or other similar legal entity for the
primary benefit of such Person and/or one or more members of his Immediate
Family, or (iii) a partnership, limited partnership, limited liability company,
corporation or other entity in which such Person alone or together with members
of his Immediate Family possess 100% of the outstanding voting securities, (b)
a Person to whom Securities are Transferred in compliance with Rule 144 under
the Act, so long as Holdings is furnished with evidence reasonably satisfactory
to it that such Transfer complied with such rule, (c) if such Person is not a
natural person, (i) any Affiliate of such Person or (ii) any of such Person’s
Affiliates, stockholders, general partners, limited partners, members,
directors, officers, or employees or their respective Affiliates to whom
Securities are Transferred, (d) Transferees pursuant to an effective
registration statement under the Act and (e) with respect to Whitney only, a
financial institution or institutions who are pledged the Whitney Securities as
Collateral Security on the date hereof.


 


1.24                           “Person” shall mean any natural person, corporation,
organization, partnership, association, joint-stock company, limited liability
company, joint venture, trust or government, or any agency or political
subdivision of any government.


 


1.25                           “Preferred Stock” shall mean all outstanding Class A
Preferred Stock, Class B Preferred Stock, Class C Preferred Stock and Class D
Preferred Stock.


 


1.26                           “Public Sale” shall mean any sale of Securities to the
public pursuant to an offering registered under the Act or to the public
effected through a broker, dealer or market pursuant to the provisions of Rule
144 (other than 144(k)) (if such rule is available) under the Securities Act
(or any similar rule or rules in effect).


 


1.27                           “RBCA” shall mean Roller Bearing Company of America, Inc., a Delaware
corporation and a wholly-owned subsidiary of Holdings.


 


1.28                           “Sale of Business Transaction” shall mean a
transaction involving a sale of all or substantially all of the capital stock
of Holdings, a sale of all or substantially all of the assets of Holdings and
its subsidiaries or a merger, consolidation, recapitalization or other
transaction having a substantially similar result.


 


1.29                           “Securities” including subsets of such terms such as “Whitney Securities” or “Hartnett
Securities,” shall mean the Shares and the Warrants, as well as (a) any
shares of capital stock or Derivative Securities that may be issued by Holdings
or its successors and owned by any of the Parties, and (b) any shares of
capital stock that may be issued by Holdings or its successors to any of the
Parties upon conversion, exchange or exercise of any shares of Common


 


4

















 


Stock, Warrants, Preferred Stock or other Derivative Securities, in
each case whether currently owned or hereinafter acquired.


 


1.30                           “Third Stock Purchase Agreement” shall mean
that certain Preferred Stock Purchase Agreement by and among Holdings, RBCA,
Hartnett and Whitney V, dated as of the date hereof.


 


1.31                           “Voting Power” shall mean the right to vote for directors
and other matters that are the subject of a vote of the stockholders of
Holdings.


 


1.32                           “Whitney IRR” shall mean as of any date of determination,
the annualized internal rate of return realized by the Whitney Parties as a
result of their investment in Class A Common Stock and Class B Preferred Stock
pursuant to the Old Stock Purchase Agreement and the New Stock Purchase
Agreement through such date of determination (it being understood that any
proceeds received by the Whitney Parties in respect of the shares of Class C
Preferred Stock, Class D Preferred Stock 
and/or Class A Common Stock issued in respect of the Class B Preferred
Stock shall be included in the calculation of the Whitney IRR).  For the avoidance of doubt, (i) all “Closing
Fees” paid to Whitney & Co. on the date of the Existing Stockholders’
Agreement pursuant to Section 3(b) of the Management Services Agreement, and
(ii) $300,000 per year of the annual “Advisory Fees” payable to Whitney &
Co. from and after the date of the Existing Stockholders’ Agreement pursuant to
Section 3(a) of the Management Services Agreement (so long as the amount of
such annual “Advisory Fees” equals or exceeds $450,000 per year) shall be
included in the calculation of the Whitney IRR, and all other fees or expenses
paid to Whitney & Co. pursuant to the Management Services Agreement shall
be excluded from such calculation.


 


1.33                           “Whitney Management” means Whitney & Co., a
Delaware Corporation.


 


1.34                           “Whitney Notice Parties” means (a) for so long
as the Whitney Securities are held by Whitney and its Permitted Transferees,
Whitney Management, and (b) if any Whitney Securities are owned by Persons
other than Whitney and its Permitted Transferees, (i) Whitney Management
on behalf of Whitney and its Permitted Transferees, and (ii) each of the
other holders of Whitney Securities.


 


1.35                           “Whitney Parties” shall mean Whitney Investor, Whitney
V, Whitney Management and their respective Affiliates and Permitted
Transferees.


 


1.36                           Additional Defined Terms  


 


The following terms are defined elsewhere in this Agreement in the
Sections and on the pages indicated:


 


	
  Defined Term

  	
   

  	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Act

  	
   

  	
  1.13

  	
   

  	
  3

  
	
  Affiliate

  	
   

  	
  1.1

  	
   

  	
  2

  
	
  Applicable Subordinated
  Debt

  	
   

  	
  1.2

  	
   

  	
  2

  
	
  Board

  	
   

  	
  1.3

  	
   

  	
  2

  



 


5

















 


	
  Defined
  Term

  	
   

  	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Board Meetings

  	
   

  	
  5.1(g)

  	
   

  	
  32

  
	
  Call Option

  	
   

  	
  2.2

  	
   

  	
  9

  
	
  Call Option Transfer

  	
   

  	
  2.2

  	
   

  	
  9

  
	
  Class A Common Stock

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Class B Common Stock

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Class A Preferred Stock

  	
   

  	
  Recitations

  	
   

  	
  2

  
	
  Class B Preferred Stock

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Commission

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Common Stock

  	
   

  	
  1.6

  	
   

  	
  2

  
	
  Company

  	
   

  	
  2.1

  	
   

  	
  8

  
	
  Compelled Sale

  	
   

  	
  2.5(a)

  	
   

  	
  13

  
	
  Compelled Sale Notice

  	
   

  	
  2.5(a)

  	
   

  	
  13

  
	
  Compelled Sale Purchaser

  	
   

  	
  2.5(a)

  	
   

  	
  13

  
	
  Compelled Sale Transferor

  	
   

  	
  2.5(a)

  	
   

  	
  13

  
	
  Competitor

  	
   

  	
  2.7(a)

  	
   

  	
  17

  
	
  Control

  	
   

  	
  1.7

  	
   

  	
  2

  
	
  Controlled by

  	
   

  	
  1.7

  	
   

  	
  2

  
	
  Counter-Offer Terms

  	
   

  	
  3.1(a)(ii)

  	
   

  	
  18

  
	
  Demanding Holders

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Demand Notice

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Demand Registration Period

  	
   

  	
  4.3(a)

  	
   

  	
  23

  
	
  Demand Registration Statement

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Demand Securities

  	
   

  	
  4.2(a)

  	
   

  	
  22

  
	
  Derivative Securities

  	
   

  	
  1.8

  	
   

  	
  2

  
	
  Designees

  	
   

  	
  5.1(d)

  	
   

  	
  31

  
	
  Exchange Act

  	
   

  	
  4.3(d)

  	
   

  	
  27

  
	
  Exercise Price

  	
   

  	
  1.9

  	
   

  	
  2

  
	
  Existing Stockholders’ Agreement

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  First Offer Election

  	
   

  	
  2.3(b)

  	
   

  	
  9

  
	
  First Offer
  Notice

  	
   

  	
  2.3(a)

  	
   

  	
  9

  
	
  First Offer Terms

  	
   

  	
  2.3(b)

  	
   

  	
  9

  
	
  GAAP

  	
   

  	
  6.2(a)

  	
   

  	
  35

  
	
  Hartnett

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Hartnett Acceptance Notice

  	
   

  	
  2.3(c)

  	
   

  	
  9

  
	
  Hartnett Class B Preferred Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Hartnett Common Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Hartnett Designees

  	
   

  	
  5.1(d)

  	
   

  	
  31

  
	
  Hartnett Employment
  Agreement

  	
   

  	
  1.10

  	
   

  	
  2

  
	
  Hartnett Parties

  	
   

  	
  2.3

  	
   

  	
  9

  
	
  Hartnett Preemptive Parties

  	
   

  	
  3.1(b)(ii)

  	
   

  	
  19

  
	
  Hartnett Securities

  	
   

  	
  1.29

  	
   

  	
  4

  
	
  Hartnett Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Holdings

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Holdings Response

  	
   

  	
  3.1(a)(ii)

  	
   

  	
  18

  
	
  Immediate Family

  	
   

  	
  1.11

  	
   

  	
  2

  



 


6

















 


	
  Defined Term

  	
   

  	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  in Control of

  	
   

  	
   

  	
   

  	
  2

  
	
  Indemnification Shares

  	
   

  	
  1.12

  	
   

  	
  2

  
	
  Indemnified Parties

  	
   

  	
  4.3(d)

  	
   

  	
  27

  
	
  Indemnifying Party

  	
   

  	
  4.3(f)

  	
   

  	
  28

  
	
  Independent Director

  	
   

  	
  5.1(c)(iii)

  	
   

  	
  31

  
	
  Initial Parties

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Initial Party

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Initial Public Offering

  	
   

  	
  1.13

  	
   

  	
  3

  
	
  Initiating Notice

  	
   

  	
  2.5(a)

  	
   

  	
  13

  
	
  Investment Bank

  	
   

  	
  2.5(b)

  	
   

  	
  13

  
	
  Joinder Agreement

  	
   

  	
  2.6(d)

  	
   

  	
  16

  
	
  Killian

  	
   

  	
  5.1(b)(iii)

  	
   

  	
  31

  
	
  Management Services
  Agreement

  	
   

  	
  1.14

  	
   

  	
  3

  
	
  Minimum Hartnett
  Ownership

  	
   

  	
  1.15

  	
   

  	
  3

  
	
  Minimum Whitney Common
  Ownership

  	
   

  	
  1.16

  	
   

  	
  3

  
	
  Minimum Whitney
  Ownership

  	
   

  	
  1.17

  	
   

  	
  3

  
	
  Minimum Whitney
  Preferred Ownership

  	
   

  	
  1.18

  	
   

  	
  3

  
	
  New Issue Notice

  	
   

  	
  3.1(a)

  	
   

  	
  18

  
	
  New Issue Terms

  	
   

  	
  3.1(a)(i)

  	
   

  	
  18

  
	
  New Securities

  	
   

  	
  3.1

  	
   

  	
  17

  
	
  New Stock Purchase
  Agreement

  	
   

  	
  1.19

  	
   

  	
  3

  
	
  Old Stock Purchase
  Agreement

  	
   

  	
  1.20

  	
   

  	
  3

  
	
  Other Parties

  	
   

  	
  2.5(a)

  	
   

  	
  13

  
	
  Outstanding Common
  Shares

  	
   

  	
  1.21

  	
   

  	
  4

  
	
  Outstanding Hartnett
  Common Shares

  	
   

  	
  1.21

  	
   

  	
  4

  
	
  Outstanding Whitney
  Common Shares

  	
   

  	
  1.21

  	
   

  	
  4

  
	
  Participation Right

  	
   

  	
  Recitations

  	
   

  	
  19

  
	
  Permitted Transfer

  	
   

  	
  1.22

  	
   

  	
  4

  
	
  Permitted Transferee

  	
   

  	
  1.23

  	
   

  	
  4

  
	
  Person

  	
   

  	
  1.24

  	
   

  	
  4

  
	
  Piggyback Shares

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Preemptive Issuance

  	
   

  	
  3.1(b)

  	
   

  	
  19

  
	
  Preemptive Parties

  	
   

  	
  3.1(b)

  	
   

  	
  19

  
	
  Public Sale

  	
   

  	
  1.26

  	
   

  	
  4

  
	
  RBCA

  	
   

  	
  1.27

  	
   

  	
  4

  
	
  Registered Securities

  	
   

  	
  4.3(c)(ii)(D)

  	
   

  	
  24

  
	
  Registering Parties

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Registration Statement

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Required Holders

  	
   

  	
  2.3(b)

  	
   

  	
  9

  
	
  Right of First Offer

  	
   

  	
  3.1(a)(ii)

  	
   

  	
  18

  
	
  Sale of Business
  Transaction

  	
   

  	
  1.28

  	
   

  	
  4

  
	
  Securities

  	
   

  	
  Recitations

  	
   

  	
  4

  
	
  Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Tag-Along Notice

  	
   

  	
  2.4(c)

  	
   

  	
  11

  
	
  Tag-Along Notice
  Deadline

  	
   

  	
  2.4(c)

  	
   

  	
  11

  



 


7

















 


	
  Defined Term

  	
   

  	
  Section

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tag-Along Offer Notice

  	
   

  	
  2.4(c)

  	
   

  	
  11

  
	
  Tag-Along Party

  	
   

  	
  2.4(a)

  	
   

  	
  10

  
	
  Tag-Along Right

  	
   

  	
  2.4(a)

  	
   

  	
  10

  
	
  Tag-Along Transferee

  	
   

  	
  2.4(a)

  	
   

  	
  10

  
	
  Tag-Along Transferee Terms

  	
   

  	
  2.4(c)

  	
   

  	
  11

  
	
  Tag-Along Transferor

  	
   

  	
  2.4(a)

  	
   

  	
  10

  
	
  Third Party Securities

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Third Stock Purchase Agreement

  	
   

  	
  1.30

  	
   

  	
  5

  
	
  Third Whitney Designee

  	
   

  	
  5.1(a)

  	
   

  	
  31

  
	
  Transfer

  	
   

  	
  2.2

  	
   

  	
  9

  
	
  under common Control with

  	
   

  	
  1.7

  	
   

  	
  2

  
	
  Underwriter’s Cutback

  	
   

  	
  4.1

  	
   

  	
  21

  
	
  Voting Power

  	
   

  	
  1.31

  	
   

  	
  5

  
	
  Warrants

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Whitney

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Whitney Class B Preferred Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Whitney Common Shares

  	
   

  	
  Recitations

  	
   

  	
  1

  
	
  Whitney Counter-Offer

  	
   

  	
  3.1(a)(ii)

  	
   

  	
  18

  
	
  Whitney Designees

  	
   

  	
  5.1(d)

  	
   

  	
  31

  
	
  Whitney Investor

  	
   

  	
  Introduction

  	
   

  	
  1

  
	
  Whitney IRR

  	
   

  	
  1.32

  	
   

  	
  5

  
	
  Whitney Management

  	
   

  	
  1.33

  	
   

  	
  5

  
	
  Whitney Notice Parties

  	
   

  	
  1.34

  	
   

  	
  5

  
	
  Whitney Parties

  	
   

  	
  1.35

  	
   

  	
  5

  
	
  Whitney Securities

  	
   

  	
  1.29

  	
   

  	
  4

  
	
  Whitney V

  	
   

  	
  Recitations

  	
   

  	
  1

  



 


2.          TRANSFER
RESTRICTIONS


 


2.1         Legends.


 


None of the Securities, including the shares of Common Stock underlying
the Warrants and Class B Preferred Stock, have been registered under the
Act.  Certificates representing the
Shares, the Warrants, and upon exercise of the Warrants, the shares of Common
Stock issuable in connection therewith, in each case, issued on or after the
date hereof, shall bear the following legend:


 


The
securities represented by this certificate have not been registered under the
Securities Act of 1933, as amended (“Act”), and may not be offered or sold
except pursuant to (i) an effective registration statement under the Act
or (ii) an exemption from registration under such Act.


 


The securities represented by this certificate are
subject to the restrictions contained in a Second Amended and Restated
Stockholders’ Agreement, dated as of February 6, 2003, by and


 


8

















 


among the issuer of such securities (the “Company”) and certain of the Company’s stockholders
as such agreement may be amended 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 legend set forth
above shall be removed from the certificates evidencing any Securities upon
Transfer pursuant to a Public Sale.


 


2.2         Restrictions on Transfer.


 


No Party shall, directly or indirectly, voluntarily or
involuntarily, sell, assign, gift, transfer, pledge, mortgage, hypothecate or
otherwise dispose of (each such event, a “Transfer”) any
Securities other than (a) Transfers to Permitted Transferees, (b)
transfers of Class A Preferred Stock to Holdings upon the exercise by Holdings
of the call option (the “Call Option”) provided in Section
9.01(a) of the Third Stock Purchase Agreement (“Call
Option Transfers”), and (c) Transfers in
compliance with the provisions of this Article 2.


 


2.3         Right of First Offer.


 


So long as the Minimum Whitney Common Ownership is at
least twenty percent (20%), neither Hartnett nor any of his Permitted
Transferees (the “Hartnett Parties”) may Transfer
any Securities except in compliance with this Section 2.3.


 


(a)  If any
Hartnett Party desires to Transfer Securities, he shall give notice thereof to
the Whitney Notice Parties (a “First Offer Notice”).  The First Offer Notice shall include the
number and type of Securities that are to be the subject of the Transfer and,
to the extent then known, the proposed process applicable to the Transfer and
the intended timing of such Transfer.


 


(b)  The
holders of a majority of the Whitney Common Shares (the “Required Holders”) shall have the
right, but not the obligation, exercisable at any time within thirty (30) days
after delivery of the First Offer Notice, to deliver in writing to the Hartnett
Party an offer to purchase all, but not less than all, of such Securities (the
“First Offer Election”) setting
forth the material terms and conditions on which it proposes to purchase such
Securities (the “First Offer Terms”).


 


(c)  The
Hartnett Party shall have a period of ten (10) days after the delivery of the
First Offer Election in which to accept or reject the offer by the Required
Holders on the First Offer Terms. 
Notice of such acceptance shall be referred to as the “Hartnett Acceptance Notice.”


 


(d)  Upon the
acceptance of any such offer pursuant to (b) above, the Required Holders shall
designate a date to purchase the Securities to be acquired, which date shall be
not less than five (5) days following the date on which the Required Holders
notify the Hartnett Party thereof and not more than thirty (30) days following
delivery of the Hartnett Acceptance Notice, at which time the Required Holders
shall deliver payment in the appropriate amount to the Hartnett Party against
(i) delivery of certificates or other instruments representing the


 


9

















 


Securities to be purchased, appropriately endorsed by the Hartnett
Party and (ii) completion of all documentation necessary to satisfy all of
the First Offer Terms.


 


(e)  If the
Required Holders do not make a First Offer Election or if the Hartnett Party
has not accepted the offer embodied in the First Offer Notice within the ten
(10) day period set forth in subparagraph (b) above, the Hartnett Party shall
have the unlimited right at his option, at any time within the one hundred
eighty (180) days following the date of the First Offer Notice to sell all of
the Securities that were the subject of the First Offer Notice free of any
obligation to sell any of such Securities to the Required Holders; provided,
however, that, if the Required Holders shall have made a First Offer Election
but the Hartnett Party did not accept such offer as aforesaid, the per share
price in such sale shall not be less than the per share price contained in the
First Offer Terms.  Any subsequent or
other proposed Transfer shall be subject to the rights of first offer set forth
herein.


 


(f) 
Notwithstanding any provision of this Section 2.3 to the contrary, if
the exercise by any holder of Whitney Securities of its Right of First Offer
would cause the Voting Power (on a fully-diluted basis, including in respect of
all Derivative Securities) which all of the holders of the Whitney Securities
own, directly or indirectly, to exceed forty-nine and nine-tenths percent
(49.9%) of the Voting Power of the Common Stock (on a fully-diluted basis,
including in respect of all Derivative Securities), then such holders of
Whitney Securities agrees that that portion of the Securities so exceeding such
forty-nine and nine-tenths percent (49.9%) threshold shall be replaced with a
different class of Securities without any voting rights whatsoever (but in all
other respects identical to the Securities offered pursuant to this Section 2.3).  Each of the Parties covenants and agrees
that it shall take all measures required to carry out the foregoing, including
approval of any required amendment to the Certificate of Incorporation of
Holdings.


 


(g) 
Notwithstanding anything contained herein to the contrary, this Section
2.3 shall not apply to: (i) any Transfer or series of related Transfers of
Securities by the Hartnett Parties that, in the aggregate, together with all
other Transfers subject to the exception set forth in this subsection (g)(i),
constitute Minimum Hartnett Ownership of less than ten percent (10%), (ii)
Transfers to Permitted Transferees, (iii) Call Option Transfers, and (iv)
Transfers with respect to which the Hartnett Transferors have exercised a right
to compel sale pursuant to Section 2.5.


 


2.4         Tag-Along Rights.


 


(a)  If
Hartnett or any of his Permitted Transferees (the “Tag-Along
Transferor”) wishes to transfer Securities owned by such
Person (in a transaction in which, if subject to the provisions of Section 2.3,
such Person shall not have accepted the offer, if any, by the holders of the
Whitney Securities to purchase such Securities) to any Person other than a
Permitted Transferee (a “Tag-Along Transferee”),
each Party other than the Tag-Along Transferor and his Permitted Transferees
(each such Party, a “Tag-Along Party”) shall have the
right (the “Tag-Along Right”) to require, as a
condition to such Transfer by the Tag-Along Transferor of such Securities, that
the Tag-Along Transferee purchase from such Tag-Along Party, at the same price
and on the same terms and conditions as involved in the Transfer by the
Tag-Along Transferor, up to that number of Outstanding Common Shares owned by
such Tag-Along Party equaling the


 


10

















 


number derived by multiplying (i) the total number of Outstanding
Common Shares owned by such Tag-Along Party by (ii) a fraction (A) the
numerator of which is the actual number of Outstanding Common Shares to be
Transferred to the Tag-Along Transferee by the Tag-Along Transferor as set
forth in the Tag-Along Offer Notice and (B) the denominator of which is the
aggregate number of Outstanding Common Shares owned by Hartnett and his
Permitted Transferees immediately prior to such Transfer.  Notwithstanding the foregoing, in the event
the Tag-Along Transferee is unwilling to purchase the sum of the aggregate
number of Securities that the Tag-Along Transferor and the Tag-Along Parties
(and each of them) desire to Transfer to the Tag-Along Transferee pursuant hereto,
the Tag-Along Transferor and each Tag-Along Party who desires to Transfer
Securities to the Tag-Along Transferee shall be entitled to Transfer only that
number of Outstanding Common Shares equal to the number of Outstanding Common
Shares which such Party desires to Transfer to such Tag-Along Transferee, as
set forth in its Tag-Along Notice or, in the case of the Tag-Along Transferor,
in the Tag-Along Offer Notice, multiplied by a fraction, the numerator of which
is the total number of Outstanding Common Shares which the Tag-Along Transferee
is willing to acquire and the denominator of which is the total number of
Outstanding Common Shares which the Tag-Along Transferor and all of the
Tag-Along Parties wish to Transfer to such Tag-Along Transferee (all as set
forth, as applicable, in the Tag-Along Offer Notice and the Tag-Along Notices).


 


(b)  Unless the
Tag-Along Transferee shall agree to the contrary, prior to any Transfer to the
Tag-Along Transferee, the Tag-Along Transferor and the Tag-Along Parties shall
exercise, convert or exchange such number of their Derivative Securities as may
be necessary so that only shares of Common Stock are Transferred.


 


(c)  If a
Tag-Along Transferor proposes to Transfer any Securities in a transaction
subject to this Section 2.4, it shall notify the Whitney Notice Parties in
writing of such proposed Transfer (a “Tag-Along
Offer Notice”).  Such
Tag-Along Offer Notice shall set forth: (i) the name of the Tag-Along
Transferee, (ii) the number and nature of the Securities proposed to be
Transferred, (iii) the proposed amount and form of consideration and all other
material terms and conditions of such offer, including the date of the proposed
Transfer and all applicable representations, indemnities and other contract
provisions required by the Tag-Along Transferee (the “Tag-Along Transferee Terms”),
(iv) the total number and nature of Securities owned by the Tag-Along
Transferor and Hartnett and his Permitted Transferees and (v) that the
Tag-Along Transferee has been informed of the Tag-Along Right provided for in
this Section 2.4 and has agreed to purchase Securities subject hereto in the
manner set forth in Subsections 2.4(a) and (b).  The Tag-Along Right may be exercised by any Tag-Along Party by
delivery of a written notice to the Tag-Along Transferor (the “Tag-Along Notice”) within ten (10)
days following delivery of the Tag-Along Offer Notice (the “Tag-Along Notice Deadline”)
setting forth the number of Securities the Tag-Along Party wishes to sell to
the Tag-Along Transferee.  The failure
by any Tag-Along Party to provide the Tag-Along Notice on or before the
Tag-Along Notice Deadline shall be deemed to be an election by such Tag-Along
Party not to exercise the Tag-Along Right with respect to the transaction
described in the Tag-Along Offer Notice.


 


(d)  Upon
delivery of a Tag-Along Notice, each participating Tag-Along Party shall be
obligated to sell to the Tag-Along Transferee the number of Securities set
forth in its Tag-Along Notice (but not to exceed the number determined in
accordance with subparagraph (a) of this Section 2.4) subject to the Tag-Along
Transfer Terms (including the same


 


11

















 


representations, indemnities and the like made by the Tag-Along
Transferor).  Notwithstanding the
foregoing, no participating Tag-Along Party shall be required to provide
indemnification to the Tag-Along Transferee (i) other than on a several
(and not joint and several) basis and (ii) in excess of the proceeds
actually received by such participating Tag-Along Party.  The Tag-Along Transferor and each of the
Tag-Along Parties shall bear their own costs and expenses related to the
Tag-Along Transfer.


 


(e)  The
Tag-Along Parties electing to participate in the sale of Securities to the
Tag-Along Transferee (and each of them) shall execute and deliver to Holdings
within fifteen (15) business days after delivery to such Tag-Along Parties for
such execution, all documents required to be executed by each such Tag-Along
Party in order to consummate the sale, subject to the limitations on liability
contained in Section 2.4(d) above.


 


(f)  In the
event that the Tag-Along Transfer Terms are at any time changed in any material
respect (including any decrease in the applicable purchase price) prior to the consummation
of the Tag-Along Transfer, the Tag-Along Transferor shall notify each of the
Tag-Along Parties, and each of the Tag-Along Parties shall have the right,
exercisable at any time within five (5) days following delivery thereof, to
withdraw its participation in the Tag-Along-Transfer by so notifying the
Tag-Along Transferor and Holdings.


 


(g)  To the
extent that the Tag-Along Parties (or any of them) elect not to participate in
the Transfer described in the Tag-Along Offer Notice, the Tag-Along Transferor
shall have the right at any time within ninety (90) days following the
Tag-Along Notice Deadline to Transfer all or substantially all of the
Securities proposed to be Transferred, as set forth in the Tag-Along Transfer
Notice (and that are not being sold by participating Tag-Along Parties) to the
Tag-Along Transferee; provided that the terms of the Transfer, taken as a
whole, are substantially similar to those set forth in the Tag-Along Notice.


 


(h)  At the
closing of the Transfer of Securities to a Tag-Along Transferee (of which the
Tag-Along Transferor shall give each participating Tag-Along Party at least
five (5) days’ prior written notice), the Tag-Along Transferee shall remit to
Holdings the consideration for the total sales price of Securities of such
Parties sold pursuant hereto, against delivery by such Parties of such evidence
of ownership of such Parties’ Securities as may be requested by the Tag-Along
Transferee, and the compliance by such Parties with any other conditions to
closing generally applicable to the Tag-Along Transferor and all participating
Tag-Along Parties.  Holdings shall, as
soon as practicable but in no event later than the business day next following
the closing, remit to the Tag-Along Transferor and each participating Tag-Along
Party its portion of such consideration.


 


(i)  If any
proposed Transfer contemplated by Sections 2.4(e) and (g) above is terminated
or is otherwise not consummated for any reason (in the case of Transfers
contemplated by Section 2.4(g) within the ninety (90) day period in which such
Transfer may be made), the Tag-Along Transferor shall, without prejudice to its
rights hereunder to deliver a subsequent Tag-Along Notice, provide written
notice of such termination to the other Parties and shall promptly return to
all Tag-Along Parties who elected to participate in such Transfer all
documentation which such Tag-Along Parties had previously delivered to Holdings
in connection with such Transfer.


 


12

















 


(j)  Notwithstanding
anything contained herein to the contrary, this Section 2.4 shall not apply to:
(i) Transfers to Permitted Transferees, (ii) Call Option Transfers and (iii)
Transfers with respect to which the Hartnett Transferors have exercised a right
to compel sale pursuant to Section 2.5.


 


2.5         Right to Compel Sale.


 


(a)  Subject to
subsection (h) below, and so long as the Minimum Hartnett Ownership equals or
exceeds ninety percent (90%) or the Minimum Whitney Ownership equals or exceeds
twenty-five percent (25%), as the case may be, if either (i) Hartnett
and/or his Permitted Transferees or (ii) Whitney and/or its Permitted
Transferees (a “Compelled Sale Transferor”)
wish to cause a Sale of Business Transaction with any Person other than to a
Permitted Transferee of such Persons (“Compelled
Sale Purchaser”), then each of the other Parties (the “Other Parties”) shall be
obligated, upon the written request of the Compelled Sale Transferor, to join
and fully cooperate in such Sale of Business Transaction (a “Compelled Sale”), all as more
fully set forth in this Section 2.5. 
The Compelled Sale Transferor shall evidence its intent to initiate a
Compelled Sale by delivering notice of such effect to the Other Parties (an “Initiating Notice”).


 


(b)  From and
after the delivery of an Initiating Notice, the party delivering such
Initiating Notice under this Section 2.5 may retain, or cause Holdings to
retain, the services of a nationally recognized investment bank (the “Investment Bank”) to conduct such
Compelled Sale and a nationally recognized law firm to advise on such sale, in
each case at the expense of the Company. 
Such Investment Bank will establish procedures reasonably acceptable to
the Compelled Sale Transferor and Holdings to effect an orderly sale of Holdings
with the objective of achieving the highest practicable value for the
stockholders of Holdings within a reasonable period of time.  Each Party and Holdings will cooperate with
the Investment Bank in accordance with such procedures, and agrees to use its
reasonable best efforts to reach agreement on the optimum structure and the
terms and conditions for the Compelled Sale (including whether such sale will
be by merger or sale of assets or capital stock or otherwise).


 


(c)  The
Compelled Sale Transferor shall notify the Other Parties in writing of a
Compelled Sale (a “Compelled Sale Notice”),
as soon as practicable after the definitive terms of such transaction are
known.  Such Compelled Sale Notice shall
set forth all of the material terms and conditions of the Compelled Sale,
including, without limitation, the proposed amount and nature of consideration
and all other material terms and conditions, including the proposed closing
date of the Compelled Sale and all applicable representations, indemnities and
other contract provisions.  The Other
Parties (and each of them) shall execute and deliver to Holdings within (10)
business days after delivery to such Other Parties for such execution, all
documents, other than the Compelled Sale Shares, required to be executed by
each such Other Party in order to consummate such Compelled Sale, all subject
to the following:


 


(i)                                     Unless
otherwise agreed upon by the Other Parties, if the Sale of Business Transaction
is structured as a sale of capital stock, the terms and conditions applicable
to the sale of the capital stock of Holdings owned by the Other Parties shall
be substantially the same to those applicable to the sale of the capital stock
by the Compelled Sale Transferor,


 


13

















 


including, without limitation, the amount and nature of consideration
and subject to the same representations, indemnities and the like required of
the Compelled Sale Transferor.


 


(ii)                                  Upon
a Sale of Business Transaction, each party that owns Preferred Stock will
receive consideration in an amount per share of Preferred Stock equal to the
Liquidation Amount of such share as set forth in Holdings Certificate of
Incorporation.  For the avoidance of
doubt, if the total consideration payable in respect of any such Sale of
Business Transaction is not sufficient to pay the aggregate Liquidation Amount
of each share of Preferred Stock then outstanding to the holders thereof, then
such holders will share all of such consideration in accordance with Section
B(3) of Article Fourth of the Holdings Certificate of Incorporation and the
holders of Common Stock will not be entitled to receive any consideration in
respect of such Sale of the Business.


 


(iii)                               Notwithstanding the
foregoing, no Other Party shall be required to provide for indemnification to
the Compelled Sale Purchaser (A) other than on a several (and not joint
and several) basis and (B) in excess of the proceeds actually received by
such Other Party.  The Compelled Sale
Transferor and each of the Other Parties shall bear their own costs and
expenses related to the Compelled Sale.


 


(iv)                              Unless
the Compelled Sale Purchaser shall agree to the contrary, prior to any Transfer
to the Compelled Sale Purchaser, the Other Parties shall exercise, convert or
exchange such number of their Derivative Securities as may be necessary so that
only shares of Common Stock are Transferred.


 


(d)  The Other
Parties shall (i) vote for, consent to and raise no objections against any
Compelled Sale pursuant to this Section 2.5, and (ii) enter into such
definitive agreements as are consistent with subsection (c) above.  If the Compelled Sale is structured as a
sale of issued capital stock, (A) each Other Party shall agree to sell all of
such Other Party’s capital stock of Holdings on the terms and conditions of the
Compelled Sale and (B) at the closing of such Compelled Sale each Other Party
will transfer to the Compelled Sale Purchaser all shares of capital stock owned
by it, with full title guarantee free and clear of all liens and encumbrances,
together with duly executed written instruments of transfer with respect
thereto, in form and substance reasonably satisfactory to the Compelled
Transferor.  If the Compelled Sale is
structured as a sale of assets, the Other Parties agree to cause Holdings to
execute and deliver or cause to be executed and delivered all documents,
certificates, agreements and other writings and to take, or cause to be taken,
all such actions as may be necessary or desirable to vest in the Compelled Sale
Purchaser good and marketable title to such assets.  If the sale of Holdings is structured as a merger or
consolidation, each Other Party shall waive any dissenters’ rights, appraisal
rights or similar rights in conjunction with such merger or consolidation.


 


(e)  The
Compelled Sale Transferor shall have the right at any time within one hundred
twenty (120) days following the execution of all required documents pursuant to
Subsection (d) above to consummate the Compelled Sale on the terms set forth in
such documents.  The closing of the
Compelled Sale shall take place not less than five (5) business days’ prior
notice, setting forth the date and location of such closing.


 


14

















 


(f)  At the
closing of the Compelled Sale, if the Compelled Sale is structured as a sale of
issued capital stock or as a merger or consolidation, the Compelled Sale
Purchaser shall cause all amounts payable to the Other Parties to be delivered
directly to them (including, as to the cash portion of the consideration, to
accounts designated by each of the Other Parties).


 


(g)  If any
Compelled Sale Offer is withdrawn or terminated for any reason prior to
consummation (including by the failure of the Compelled Sale Transferor to
consummate the Compelled Sale within the one hundred twenty (120) day period
set forth in Section 2.5(e)), Holdings shall, without prejudice to any of the
Compelled Sale Transferor’s rights hereunder to deliver a subsequent Compelled
Sale Notice, return to each of the Other Parties all documentation which he had
previously received from such Other Parties in connection with such Compelled
Sale Offer.


 


(h) 
Notwithstanding anything contained herein to the contrary, (i) Hartnett
and his Permitted Transferees shall have no rights under this Section 2.5 in
respect of Whitney Securities and the holders of Whitney Securities shall have
no obligations under this Section 2.5, with respect to any proposed Compelled
Sale by Hartnett and/or his Permitted Transferees that is to be consummated on
or before thirty (30) months following the date hereof, unless the Whitney IRR
measured as of, and after giving effect to, the closing of the Compelled Sale
is equal to or greater than 25%; provided, however, that the
limitation set forth in this subparagraph (i) shall not apply from and after
such time that Whitney transfers any Whitney Securities to a Person other than
a Permitted Transferee, (ii) (A) Whitney and its Permitted Transferees shall
have no rights under this Section 2.5 in respect of Hartnett Securities and the
holders of Hartnett Securities shall have no obligations under this Section
2.5, as to any Compelled Sale that is initiated by Whitney and its Permitted
Transferees pursuant to an Initiating Notice that is delivered before January
1, 2007, and (B) Whitney and its Permitted Transferees shall have no rights
under this Section 2.5 in respect of Hartnett Securities and the holders of
Hartnett Securities shall have no obligations under this Section 2.5, unless
Whitney and/or its Permitted Transferees shall have (x) first provided
Hartnett with notice (a “Negotiation Notice”) of its intent to
cause a Compelled Sale and (y) for a period of thirty (30) days following
delivery of the Negotiation Notice, negotiated exclusively with Hartnett
regarding the purchase of the Whitney Securities by Hartnett or his designee
(for a purchase price reflective of the value of such securities in connection
with a Compelled Sale), and (iii) neither Hartnett and his Permitted
Transferees or Whitney and its Permitted Transferees shall have any rights to
initiate a Compelled Sale process hereunder for a period of one hundred twenty
(120) days following such time that the other shall have delivered an
Initiating Notice; provided, that (x) such period shall be extended for
so long as may be reasonably requested by the Investment Bank retained at the
request of the Compelled Sale Transferor in order to pursue the Sale of
Business Transaction, and (y) in order to give effect to the rights of Whitney
and its Permitted Transferees to initiate a Compelled Sale process on January
1, 2007, Hartnett and his Permitted Transferees may not initiate a Compelled
Sale process between September 1, 2006 and December 31, 2006.


 


2.6         Securities of Transferees.


 


(a)  Securities
are transferable only (i) in a Public Sale or (ii) subject to the provisions of
Section 2.6(b) below, by any other legally available means of Transfer;
provided,


 


15

















 


that any Transfer must also comply with, or otherwise be permitted by,
the terms of this Article 2 and the other provisions of this Agreement.


 


(b)  In
connection with the Transfer of any Securities other than a Transfer described
in clause (i) of Section 2.6(a) above, any Call Option Transfer or any Transfer
between a Party and any of its Permitted Transferees, the holder thereof shall
deliver written notice to Holdings describing in reasonable detail the Transfer
or proposed Transfer, together with, if reasonably requested by Holdings, an
opinion of counsel reasonably acceptable to Holdings to the effect that such
Transfer of Shares may be effected without registration of such Securities
under the Act.  In addition, if the
holder of the Securities delivers to Holdings an opinion of counsel that no
subsequent Transfer of such Securities shall require registration under the
Act, Holdings shall upon such contemplated Transfer deliver new certificates
for such Securities which do not bear the relevant legend set forth in Section
2.1 above.  If Holdings is not required
to deliver new certificates for such Securities not bearing such legend, the
holder thereof shall not Transfer the same until the prospective transferee has
confirmed to Holdings in writing its agreement to be bound by the conditions
contained herein, as provided in Section 2.6(d).


 


(c)  Upon the
request of a holder of Securities, Holdings shall supply to such Person or its
prospective transferees all the information within its possession regarding
Holdings, required to be delivered in connection with a Transfer pursuant to
Rule 144A of the Commission (or any similar rule or rules then in effect).


 


(d) 
Notwithstanding anything contained in this Article 2 to the contrary,
all Transfers (other than Call Option Transfers) by the Parties shall be
conditioned upon the relevant Transferee (including any Permitted Transferee)
first entering into and delivering to the other Parties a joinder agreement (a
“Joinder Agreement”), in the form
attached hereto as Exhibit B, pursuant to which such Transferee, and the
Securities acquired, shall become subject to the terms and conditions of this
Agreement, including (f) below.  In case
of a Transfer of Indemnification Shares, the Transfer by the Parties shall also
be conditioned upon the relevant Transferee (including any Permitted
Transferee) first entering into and delivering to the Other Parties a Joinder
Agreement in the form attached hereto as Exhibit C, pursuant to which such
Transferee, and the Securities acquired, shall become subject to the terms and
conditions of the Old Stock Purchase Agreement, the New Stock Purchase
Agreement or the Third Stock Purchase Agreement, as applicable.


 


(e)  Upon any
Transfer and the execution of a Joinder Agreement, each Transferee, and the
Securities acquired by it, shall be subject to all of the limitations and
obligations set forth herein and shall obtain the benefits and rights of a
Party hereunder with respect to the Securities so acquired; provided that the
Securities purchased by any Tag-Along Transferee in accordance with the
procedures set forth in Section 2.4 shall not be subject to tag-along
obligations under Section 2.4 upon any further Transfers otherwise subject
thereto.


 


(f)  In the
event that the Whitney Parties transfer any of their Securities hereunder to a
Permitted Transferee, thereafter: (i) any notices to be given to such
Permitted Transferees shall be deemed given if delivered to Whitney II, (ii) a
notice from any such Permitted Transferee shall be deemed delivered only if
delivered by Whitney II, and (iii) all of the Parties


 


16

















 


hereto shall be permitted to rely upon any notice given by Whitney II
as containing the intentions of the Whitney Parties’ Permitted Transferees.


 


(g)  In the
event that any Initial Party (other than Whitney) Transfers any of its
Securities hereunder, thereafter: (i) any notices to be given to such
Transferees shall be deemed given if delivered to their Initial Party
Transferor, (ii) a notice from any such Transferee shall be deemed
delivered only if delivered by its Initial Party Transferor, and (iii) all
of the Parties hereto shall be permitted to rely upon any notice given by an
Initial Party (other than Whitney) as containing the intentions of its
Transferees.  If an Initial Party (other
than Whitney) wishes, it may designate, by written notice to Holdings and all
other Parties, a successor Person to give and accept notices on behalf of all
Transferees of such Person, as set forth herein.


 


2.7         Competitors.


 


(a) 
Notwithstanding anything contained in this Article 2 to the contrary,
neither Whitney nor any holder of Whitney Securities may Transfer any
Securities to any Person who competes, directly or indirectly through one of
its Affiliates, with Holdings or its subsidiaries in any business which
Holdings or any such subsidiary is engaged or at the time of such Transfer
intends to engage (a “Competitor”).


 


(b)  Whitney
(to the extent it is the record holder of Whitney Securities) shall not, and
shall cause its Affiliates not to, acquire any debt or equity securities in any
Competitor (excepting less than 5% stock holdings for investment purposes in
securities of publicly held and traded companies that Whitney or such holder of
the Whitney Securities does not have the power to appoint a director) without
providing Hartnett and Holdings with written notice thereof.  Holdings’ recourse against Whitney and, as
applicable, Whitney V, in case of breach of this subsection (b) shall be
limited to demanding notification of such acquisition by Whitney, the holders
of the Whitney Securities or their Affiliates in a Competitor.


 


2.8         Transfers Not in Compliance Void.


 


Any purported Transfer of Securities owned by a Party that is not in
compliance with this Agreement shall be null and void and of no force and
effect whatsoever.  Accordingly, such
Transfer shall not be reflected on the books of Holdings and Holdings will not
recognize any such proposed transferee as the holder of any such Securities.


 


2.9         Termination.


 


The restrictions on Transfer of Securities and the other rights,
restrictions and obligations contained in Sections 2.3, 2.4, 2.5 and 2.7 shall
terminate and be of no further force and effect following an Initial Public
Offering.


 


3.               RIGHT OF FIRST OFFER; PARTICIPATION RIGHT


 


3.1         Right of First Offer and Participation
Right as to New Securities.


 


Holdings shall not issue any shares of Common Stock or
Derivative Securities (“New Securities”)
except as set forth in Section 3.1.


 


17

















 


(a)  So long as
the Minimum Whitney Common Ownership is at least twenty percent (20%), if
Holdings desires to issue New Securities, it shall give first notice thereof to
the Whitney Notice Parties (a “New Issue Notice”).


 


(i)                                     Any
such New Issue Notice shall contain a description of the material terms and
conditions on which Holdings will offer the New Securities including (A) the
number and type of New Securities to be issued, (B) the proposed process
applicable to the issuance, (C) the desired purchase price to be obtained in,
and all other terms applicable to, such issue and (D) the intended timing of
such issuance (together, the “New Issue Terms”).  The New Issue Notice shall constitute an
offer by Holdings to sell the Securities that are the subject of the New Issue
Notice to the holders of the Whitney Securities on the New Issue Terms.


 


(ii)                                  The
Required Holders shall have the right (the “Right of
First Offer”), exercisable at any time within thirty (30)
days after delivery of the New Issue Notice, to either (A) accept the offer
made thereby by furnishing written notice thereof to Holdings and agreeing to
purchase all and not less than all of the Securities so offered in, and at the
New Issue Terms specified in, the New Issue Notice or (B) make a counter-offer
to Holdings to acquire such New Securities on different terms (the “Whitney Counter-Offer”).  Any such Whitney Counter-Offer shall contain
a description of the material terms and conditions on which the Required
Holders offer to buy all and not less than all of the New Securities from
Holdings (the “Counter-Offer Terms”).  The Whitney Counter-Offer shall constitute
an offer by the holders of the Whitney Securities to purchase the Securities
that are the subject of the New Issue Notice at the Counter-Offer Terms.
Holdings shall have the right, exercisable at any time within thirty (30) days
after delivery of the Whitney Counter-Offer, to accept the Whitney
Counter-Offer made thereby by furnishing written notice thereof to the Required
Holders (the “Holdings Response”) and agreeing
to sell all and not less than all of the Securities so offered in the New Issue
Notice and at the Counter-Offer Terms specified in the Whitney
Counter-Offer.  Any Party who fails to
deliver a notice called for by the subsection to exercise a right within the
time periods provided for herein shall be deemed not be have exercised such
right.


 


(iii)                               Upon the acceptance of
any such offer or Counter-Offer pursuant to (ii) above, Holdings shall
designate a date on which it shall issue the Securities to be sold, which date
shall be not less than five (5) days nor more than thirty (30) days following
the date on which it accepts such offer or Counter-Offer.  At such closing, the Required Holders shall
deliver payment in the appropriate amount to Holdings against (A) delivery
of certificates or other instruments representing the Securities so purchased
and (B) completion of all documentation necessary to satisfy all of the
terms of the purchase of the New Securities. 
The closing for the purchase of Securities pursuant hereto shall occur
within thirty (30) days after acceptance by, as the case may be, Holdings or
the Required Holders, unless otherwise agreed to as between Holdings and the
Required Holders.


 


(iv)                              If
the Required Holders do not elect to purchase all of the Securities that were
the subject of the New Issue Notice, Holdings shall have the unlimited right at
its option, at any time within the one hundred and eighty (180) day period
following the end of the notice period set forth in (ii) above (but subject to
the terms of Section 3.1(b)) to sell all of the Securities that were the
subject of the New Issue Notice (A) if no Whitney Counter-Offer is made, on
such terms as it deems appropriate, or (B) if a Whitney Counter-Offer is made,
for a


 


18

















 


per share price no less than was set forth in the Whitney
Counter-Offer; Any subsequent or other proposed Transfer shall be subject to
the right of first offer set forth in this Section 3.1(a).


 


(b)  If the
Required Holders do not purchase the New Securities that are the subject of the
New Issue Notice by operation of the provisions of Section 3.1(a) and Holdings
proceeds to issue such New Securities (a “Preemptive
Issuance”), Whitney, Hartnett and their respective Permitted
Transferees (the “Preemptive Parties”) shall each
have the right (the “Participation Right”)
to purchase New Securities of the same class and series issued in such
Preemptive Issuance at the price per New Security paid in connection therewith
and otherwise upon the same terms and conditions as the New Securities being
issued in the Preemptive Issuance.


 


(i)                                     In
the case of a Preemptive Issuance, Holdings shall provide each Preemptive Party
with written notice identifying the New Securities, the Persons to whom the New
Securities are being issued and describing the terms and amount of the
Preemptive Issuance.  A Preemptive Party
may exercise its Participation Right by written notice to Holdings within ten
(10) days following delivery of the notice described in the preceding
sentence.  The failure by any Preemptive
Party to provide such notice before the expiration of the ten (10) day period
shall be deemed to be an election by such Preemptive Party not to exercise its
Participation Right with respect to the Issuance.  Each Preemptive Party electing to exercise its Participation
Right under this Section 3.1(b)(i) shall execute such documents as may be
reasonably requested by Holdings to evidence the purchase of such New
Securities; provided that the terms and conditions applicable to the
sale of such New Securities shall be the same as required of the purchaser of
such New Securities (including, without limitation, the amount and nature of
consideration and representations, indemnities and the like).  The closing of the issuance of such New
Securities issued to Preemptive Parties under this Section 3.1(b) (including
the payment therefor by the Preemptive Parties) shall occur at the same time as
the closing of the issuance of such New Securities to the third-party
purchasers thereof.


 


(ii)                                  The
number of New Securities each Preemptive Party may purchase under this Article
3 with respect to each Preemptive Issuance shall be such number so that after
exercise of the Participation Right such Preemptive Party’s Outstanding Common
Shares will represent the same percentage of the total Outstanding Common
Shares following the Preemptive Issuance as such Preemptive Party’s Outstanding
Common Shares represented of the total Outstanding Common Shares prior
thereto.  Notwithstanding the foregoing,
(i) the Required Holders may assign their Participation Right to other holders
of Whitney Securities and (ii) Hartnett and his Permitted Transferees (the
“Hartnett Preemptive Parties”)
shall have the right to assign their Participation Right to other Hartnett
Preemptive Parties.


 


3.2         Exceptions to Right of First Offer and
Participation Right.


 


(a)  The Right
of First Offer and Participation Right provided for in this Article 3 shall not
apply to any New Securities being issued in connection with, and the term
“Preemptive Issuance” shall not include an issuance in respect of, (i) the
exercise, conversion or exchange of Derivative Securities outstanding on the
date hereof, (ii) a restructuring, including a cancellation or modification of
the terms of any, of the debt of Holdings or any of its subsidiaries in which
lenders or owners of debt securities of Holdings or its subsidiaries receive
equity interests in


 


19

















 


consideration of or in connection with such restructuring or otherwise,
(iii) any management equity plans heretofore or hereafter approved by the Board
to purchase Common Stock (provided, that such Common Stock together with
all shares of Common Stock issued or issuable pursuant to this clause (iii) as
to grants made after the date hereof do not exceed 396,241.50 shares (subject
to adjustment to reflect any stock split, stock divided, reclassification,
recapitalization or other transaction having a similar effect), (iv) other
preemptive rights or anti-dilution provisions in favor of any other stockholder
or warrant holder of Holdings, (v) the issuance of New Securities (or the
subsequent exercise, conversion or exchange any Derivative Securities) as a
component of the issuance of debt by Holdings or its subsidiaries where such
New Securities (assuming the immediate exchange, conversion or exchange of
Derivative Securities) would represent less than ten percent (10%) of the
Outstanding Common Shares on such date, (vi) any issuance of New
Securities to a seller in connection with an acquisition of stock or assets of
another entity by Holdings or any of its subsidiaries, or (vii) an initial
public offering of Common Stock of Holdings.


 


(b) 
Notwithstanding any provision of this Article 3 to the contrary, if the
exercise by any holder of Whitney Securities of their Right of First Offer
would cause the Common Stock (on a fully-diluted basis, assuming conversion of
all Derivative Securities) which all of the holders of Whitney Securities own,
directly or indirectly, to exceed forty-nine and nine-tenths percent (49.9%) of
the Voting Power of the Common Stock (on a fully-diluted basis, assuming
conversion of all Derivative Securities), then such holders of Whitney
Securities agrees that that portion of the New Securities so exceeding such
forty-nine and nine-tenths percent (49.9%) threshold shall be replaced with a
different class of Securities without any voting rights whatsoever (but in all
other respects identical to the New Securities); provided that this
Subsection 3.2(b) shall not apply to issuances of New Securities which
themselves constitute issuances of more than fifty percent (50%) of the Voting
Power of the Common Stock (on a fully-diluted basis, assuming conversion of all
Derivative Securities, after giving effect to such issuance).  Each of the Parties covenants and agrees
that it shall take all measures required to carry out the foregoing, including
approval of any required amendment to the Certificate of Incorporation of
Holdings.


 


3.3         Right of First Offer on Subordinated
Debt Issuances.


 


So long as the Minimum Whitney Ownership is at least 25%, prior to the
issuance by Holdings or any of its subsidiaries of Applicable Subordinated
Debt, Holdings shall provide notice to Whitney of such intended issuance (a “Debt
Notice” which Debt Notice shall include, to the extent known,
the amount and terms of such Applicable Subordinated Debt), and neither
Holdings nor any such subsidiary shall issue such Applicable Subordinated Debt
without providing Whitney with the right for a period of thirty (30) days
following delivery of the Debt Notice to make an offer to purchase such
Applicable Subordinated Debt.  It is
specifically agreed that neither Holdings nor any such subsidiary shall be
obligated to accept such offer; and following such thirty (30) day period
Holdings or such subsidiary may issue such Applicable Subordinated Debt to such
party or parties and on such terms (irrespective of the terms offered by
Whitney), as it deems appropriate without regard to any rights under this
Section 3.3.


 


20

















 


3.4         Termination on Initial Public
Offering.


 


The Rights of First Offer and the Participation Right provided for in
this Article 3 shall terminate and be of no further force and effect following
an Initial Public Offering.


 


4.          REGISTRATION RIGHTS.


 


4.1         Piggyback Registration.


 


If, at any time Holdings proposes to file a
registration statement or statements under the Act (together with any registration
statement filed pursuant to a demand made under Section 4.2, “Registration Statement”) for the
public sale of Common Stock for cash (other than in connection with a merger or
pursuant to Form S-4, Form S-8 or comparable registration statement); it will
give written notice by registered mail, at least thirty (30) days prior to the
filing of each such registration statement, to each Party of its intention to
do so.  If any Party (all such Parties
collectively with any Parties who have made a demand pursuant to Section 4.2 if
the context so requires, the “Registering Parties”)
notifies Holdings within ten (10) business days after delivery of any such
notice of its desire to include any such Common Stock (including Common Stock
underlying Derivative Securities) (all such shares, “Piggyback
Shares”) in such proposed Registration Statement, Holdings
shall afford such Registering Party the opportunity to have any Piggyback
Shares owned by such Party registered under such Registration Statement;
provided, however, that in the case of an underwritten offering, if the
managing underwriter notifies any Registering Party that the inclusion in the
registration statement of any portion of its Piggyback Shares would have an
adverse effect on such underwritten offering, then the managing underwriter may
limit the number of Piggyback Shares to be included in such registration
statement only to the extent necessary to avoid such adverse effect (an “Underwriter’s Cutback”).  Such limit will apply pro rata among the Registering
Parties based upon the number of Piggyback Shares such Parties have requested
to be so included (provided that if the Registration Statement is being filed
pursuant to Section 4.2 below, then, as among the holders of Demand Securities
(as defined below) and the Securities held by other Parties, any Underwriter’s
Cutback shall first be applied to such other Parties’ Securities); and in the
event securities of Holdings held by any person or entity other than Holdings
or the Parties (“Third Party Securities”)
are to be included in such underwritten offering, and the managing underwriter
shall have determined to effectuate an Underwriter’s Cutback, then such
limitation shall first be applied to the Third Party Securities, and then to
the Piggyback Shares.


 


Notwithstanding the provisions of this Section 4.1,
except in the case of a Demand Registration Statement, Holdings shall have the
right at any time after it shall have given written notice pursuant to this
Section 4.1 (irrespective of whether a written request for inclusion of any
such securities shall have been made) to elect not to file any such proposed
registration statements or to withdraw the same after the filing but prior to
the effective date thereof.


 


4.2         Demand Registration.


 


(a)           (i)                                     Commencing
on the earlier of (A) six (6) months following the effective date of an Initial
Public Offering and (B) the third anniversary of the date hereof, and expiring
five (5) years thereafter and provided that such Securities shall not at that
time be eligible for


 


21

















 


sale pursuant to Rule
144(k) under the Act, the holders of Whitney Securities shall have the
collective right, on two (2) occasions (which right is in addition to the
registration rights under Section 4.1 hereof), exercisable by written notice to
Holdings (the “Demand Notice”) given by the
holders of a majority (the “Demanding Holders”)
of the Whitney Securities then outstanding that have not been sold pursuant to
a Registration Statement or pursuant to Rule 144(k) of the Commission without
regard to limiting or qualifying of Securities to be sold and have had all
transfer restrictions contained thereon removed (the “Demand
Securities”), to have Holdings prepare and file with the
Securities and Exchange Commission (the “Commission”)
a registration statement (“Demand
Registration Statement”) and such other documents, including
a prospectus, as may be necessary in the opinion of counsel for Holdings, and
shall keep such registration statement effective and the disclosure in such
documents current, in order to comply with the provisions of the Act, so as to
permit a public offering and sale of the Demand Securities by the holders
thereof for nine (9) consecutive months.


 


(ii)                                  A
registration requested pursuant to this Section 4.2 shall not be deemed to have
been effected (and thereby the right to make a demand not used) (A) unless
a Registration Statement with respect thereto has become effective, provided
that a registration which does not become effective after Holdings has filed a
Registration Statement with respect thereto solely by reason of the refusal to
proceed of the holders (other than a refusal to proceed based upon the advice
of counsel relating to a matter with respect to Holdings) shall be deemed to
have been effected by Holdings at the request of such holders unless the
holders of Demand Securities shall have elected to pay all expenses referred to
in Section 4.3(b) in connection with such registration, (B) if, after it has
become effective, such registration becomes subject to any stop order,
injunction or other order or requirement of the Commission or other
governmental agency or court for any reason and such order, injunction or
requirement is not promptly withdrawn or lifted, (C) the conditions to closing
specified in the purchase agreement or underwriting agreement entered into in
connection with such registration are not satisfied, other than by reason of
some act or omission by such holders, or (D) if less than eighty-five percent
(85%) of the Demand Securities were sold pursuant to such registration.


 


(b)  The
holders of Whitney Securities shall have the right, exercisable at any time and
from time to time by written notice to Holdings of the holders of twenty-five
percent (25%) of the Whitney Securities, to have Holdings prepare and file with
the Commission, if available, a registration on Form S-2, Form S-3, or any
similar form if not available, for the sale of Securities held by such Parties.


 


(c)  A
registration requested pursuant to this Section 4.2 may, if determined by
Holdings to have the potential to have a material adverse effect on, or
otherwise interfere with, any transaction or other business matter with which
Holdings is then involved or contemplates, at Holding’s option be deferred for
no more than one hundred and eighty (180) days from the date of delivery of the
Demand Notice.


 


(d)  Holdings
shall have the right, at its option, following receipt of the Demand Notice
requiring the filing of a Registration Statement that would result in the first
public offering of equity securities of Holdings under the Act, in lieu of
filing a Registration Statement referred to in such demand, to undertake the
filing of a Registration Statement under the Act with the Commission for the sale
by Holdings of securities of Holdings, in which case the Parties


 


22

















 


shall be permitted to exercise their rights under Section 4.1
above.  Should Holdings exercise its
rights under this Section 4.2(d), the rights of the Demanding Holders to make a
demand under Section 4.2(a) above on two (2) occasions shall not be deemed to
have been exercised, and such parties shall retain such right subject to the
limitations contained herein.


 


(e)  In
Holdings’ discretion, it may include a sale of shares or shares owned by others
or an issuance of shares by Holdings in a registration pursuant to this Section
4.2.  In the event of an Underwriter’s
Cutback in connection with a registration pursuant to this Section 4.2, such
Underwriter’s Cutback shall first be applied in respect of such shares owned by
others, then in respect of the shares to be included by Holdings, pursuant to
this Section 4.2(e) and lastly in respect of the Demand Securities.


 


4.3         Covenants With Respect to
Registration.


 


In connection with any registration under Section 4.1 or 4.2 hereof, as
applicable, Holdings covenants and agrees as follows:


 


(a)  Holdings
shall prepare and use commercially reasonable efforts to, not later than sixty
(60) days after (or if the sixtieth (60th) day is not a business
day, the first business day thereafter) of delivery of any demand therefor, to
cause such Demand Registration Statement to become effective under the Act
within one hundred fifty days (150) days (or if the one hundred fiftieth (150th)
day is not a business day, the first business day thereafter) after demand
therefor and shall keep the Demand Registration Statement effective for not
less than nine months after the date on which notice of the effectiveness thereof
is received (such period being called the “Demand
Registration Period”), and shall furnish holders of Demand
Securities such number of prospectuses as shall reasonably be requested.


 


(b)  Holdings
shall pay all costs (including fees and expenses of one counsel to the
Registering Parties, selected in accordance with Section 4.5 below, if
applicable, but excluding any underwriting or selling commissions or discounts
or other charges of any broker-dealer acting on behalf of any holder of Demand
Securities), fees and expenses in connection with all registration statements
filed pursuant to Sections 4.1 and 4.2 hereof and offers and sales pursuant
thereto including, without limitation, Holdings’ legal and accounting fees,
printing expenses, blue sky fees and expenses, registration fees, filing fees
and listing fees.


 


(c)  In
connection with any registration contemplated by Section 4.1 or 4.2 hereof, the
following provisions shall apply:


(i)                                     Holdings
shall (A) furnish to the Registering Parties, prior to the filing of a
Registration Statement with the Commission, a copy of the Registration
Statement and each amendment thereto (including any incorporated documents) and
each supplement, if any, to the prospectus included therein and any document
that is filed after the filing of the Registration Statement and that is
incorporated or would be deemed incorporated by reference therein, and
(B) include the names of the Registering Parties who propose to sell
securities pursuant to the Registration Statement as selling security holders.


 


(ii)                                  Holdings
shall promptly give written notice to each Registering Party:


 


23

















 


(A) when the Registration
Statement or any amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment thereto has become
effective;


 


(B) of any request by the
Commission or other governmental authority for amendments or supplements to the
Registration Statement or the prospectus included therein or for additional
information;


 


(C) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose;


 


(D)  of the receipt by Holdings or
its legal counsel of any notification with respect to the suspension of the
qualification of the Piggyback Shares or Demand Securities (as applicable, the
“Registered Securities”) for sale
in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and


 


(E)    of the happening of any event
that requires Holdings to make changes in the Registration Statement or the
prospectus in order that the Registration Statement or the prospectus does not
contain an untrue statement of a material fact nor omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading or of the commencement of any Suspension Period.


 


(iii)                               Holdings shall make
every reasonable effort to prevent the issuance of and obtain the withdrawal at
the earliest possible time of any order suspending the effectiveness of the
Registration Statement or of the qualification (or exemption therefrom) of any
of the Piggyback Shares or Demand Securities for sale in any jurisdiction.


 


(iv)                              Holdings
shall furnish to each Registering Party, without charge, at least one copy of
the Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Registering Party so requests
in writing, all exhibits thereto (including those, if any, incorporated by
reference).


 


(v)                                 Holdings
shall deliver to each Registering Party, without charge, as many copies of the
prospectus (including each preliminary prospectus) included in the Registration
Statement and any amendment or supplement thereto as such person may reasonably
request.  Holdings consents, subject to
the provisions of this Agreement, to the use of the prospectus or any amendment
or supplement thereto included in the Registration Statement by each of the Registering
Parties in connection with the offering and sale of the Registered Securities
covered by such prospectus or any such amendment or supplement.


 


(vi)                              Prior
to any public offering of the Registered Securities, pursuant to any
Registration Statement, Holdings shall register or qualify or cooperate with
the Registering Parties and their respective counsel in connection with the
registration or qualification of the Registered Securities covered thereby for
offer and sale under the securities or “blue sky” laws of such states of the
United States as any Registering Party reasonably requests in writing and do
any and all other acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the Registered Securities covered by such
Registration


 


24

















 


Statement; provided, however, that Holdings shall not be required to
(A) qualify generally to do business in any jurisdiction where it is not then
so qualified or (B) take any action which would subject it to general service
of process or to taxation in any jurisdiction where it is not then so subject.


 


(vii)                           Holdings shall cooperate
with the Registering Parties to facilitate the timely preparation and delivery
of certificates representing the Registered Securities to be sold pursuant to
any Registration Statement free of any restrictive legends and in such
denominations and registered in such names as the Registering Parties may
request (including being eligible for deposit with The Depository Trust
Company) a reasonable period of time prior to sales of the Registered
Securities pursuant to such Registration Statement.


 


(viii)                        Upon the occurrence of any
event contemplated by paragraphs (B) through (E) of Section 4.3(c)(ii) above
during the period for which Holdings is required to maintain an effective
Registration Statement, Holdings shall promptly prepare and file a
post-effective amendment to the Registration Statement or a supplement to the
related prospectus and any other required document so that, as thereafter
delivered to the Registering Parties or purchasers of Registered Securities
covered by such Registration Statement, the prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.  If Holdings notifies the Registering Parties
in accordance with paragraphs (B) through (E) of Section 4.3(c)(ii) above to
suspend the use of the prospectus until the requisite changes to the prospectus
have been made, then the Registering Parties shall suspend use of such
prospectus, and the period of effectiveness of the Registration Statement
provided for in Section 4.2(a) above shall each be extended by the number of
days from and including the date of the giving of such notice to and including
the date when the Registering Parties shall have received such amended or
supplemented prospectus pursuant to this paragraph.


 


(ix)                                Not
later than the effective date of the applicable Registration Statement,
Holdings will obtain one CUSIP number for all of the Registered Securities
covered by such Registration Statement.


 


(x)                                   Holdings
may require each Registering Party to furnish to Holdings such information
regarding the Registering Party and the distribution of the Registered
Securities as Holdings may from time to time reasonably require for inclusion
in the Registration Statement, and Holdings may exclude from such registration
the Registered Securities of any Registering Party that fails to furnish such
information within a reasonable time after receiving such request.


 


(xi)                                In
the case of any Demand Registration Statement, Holdings shall (A) make
reasonably available for inspection by the Registering Parties, any underwriter
participating in any disposition pursuant to the Demand Registration Statement
and any attorney, accountant or other agent retained by the Registering Parties
or any such underwriter all relevant financial and other records, pertinent
corporate documents and properties of Holdings and its subsidiaries and (B)
cause Holdings’ and its subsidiaries, officers, directors, employees,
accountants and auditors to supply all relevant information reasonably requested
by the


 


25

















 


Registering Parties or any such underwriter, attorney, accountant or
agent in connection with the Demand Registration Statement, in each case as
shall be reasonably necessary, in the judgment of the Registering Parties or
any such underwriter, attorney, accountant or agent referred to in this
paragraph, to conduct a reasonable investigation within the meaning of Section
11 of the Act; provided, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of the Registering Parties by one
counsel designated by and on behalf of all Registering Parties, selected in
accordance with Section 4.5 below, if applicable, and one counsel designated by
and on behalf of the underwriters.


 


(xii)                             In the case of any Demand
Registration Statement, Holdings, if requested by holders of a majority of the
Demand Securities, shall cause (A) its counsel to deliver an opinion and
updates thereof relating to the Demand Securities to be registered in customary
form addressed to holders of the Demand Securities and the managing
underwriters, if any, thereof and dated, in the case of the initial opinion,
the effective date of such Demand Registration Statement; (B) its officers to
execute and deliver all customary documents and certificates and updates
thereof reasonably requested by any underwriters of the applicable Demand
Securities and (including, without limitation, an underwriting agreement in
form and substance as is customary in underwritten public offerings), and
(C) its independent public accountants and the independent public
accountants with respect to any business acquired, to the extent financial
information with respect thereto is included or incorporated by reference in
the Demand Registration Statement to provide to the holders of the Demand
Securities and any underwriter therefor a comfort letter in customary form and
covering matters of the type customarily covered in comfort letters in
connection with primary underwritten offerings, subject to receipt of
appropriate documentation as contemplated, and only if permitted, by Statement
of Auditing Standards No. 72.


 


(xiii)                          Holdings shall comply with
all applicable rules and regulations of the Commission and make generally available
to its security holders earnings statements satisfying the provisions of
Section 11(a) of the Act and Rule 158 thereunder (or any similar rule
promulgated under the Act) no later than forty-five (45) days after the end of
any twelve (12) month period (or ninety (90) days after the end of any twelve
(12) month period if such period is a fiscal year) (or in each case within such
extended period of time as may be permitted by the Commission for filing the
applicable report with the Commission) (A) commencing at the end of any fiscal
quarter in which Demand Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (B) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of Holdings after the effective date of a Registration
Statement, which statements shall cover said twelve (12) month period.


 


(xiv)                         Holdings shall cooperate with
each seller of Demand Securities covered by any Registration Statement and each
underwriter, if any, participating in the disposition of such Demand Securities
and their respective counsel in connection with any filings required to be made
with the NASD.


 


(xv)                            Holdings
shall use commercially reasonable best efforts to take all other steps necessary
to effect the registration of the Registered Securities covered by a
Registration Statement contemplated hereby.


 


26

















 


(d)  Holdings
agrees to indemnify and hold harmless each Registering Party, the officers,
directors, partners and fiduciaries of each Registering Party and each person,
if any, who controls such Party within the meaning of the Act or the Securities
Exchange Act of 1934, as amended (the “Exchange Act”),
and the officers, directors, partners and fiduciaries of each such controlling
person (collectively the “Indemnified Parties”)
from and against any losses, claims, damages or liabilities, joint or several,
or any actions in respect thereof (including, but not limited to, any losses,
claims, damages, liabilities or actions relating to purchases and sales of the
Registered Securities) to which each Indemnified Party may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in a
Registration Statement or prospectus or in any amendment or supplement thereto
or in any preliminary prospectus relating to a Registration Statement, or arise
out of, or are based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and shall reimburse, as incurred, each Indemnified Party
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending any such loss, claim, damage, liability or action in
respect thereof; provided, however, that (i) Holdings shall not be liable
in any such case to the extent that such loss, claim, damage, liability or
action arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in a Registration Statement or
prospectus or in any amendment or supplement thereto or in any preliminary
prospectus relating to a Registration Statement in reliance upon and in
conformity with written information pertaining to such Registering Party and
furnished to Holdings by or on behalf of such Registering Party specifically for
inclusion therein; (ii) with respect to any untrue statement or omission or
alleged untrue statement or omission made in any prospectus relating to a
Registration Statement, the indemnity agreement contained in this subsection
(d) shall not inure to the benefit of any Registering Party from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Registered Securities concerned, to the extent that a prospectus relating to
such Registered Securities was required to be delivered by such Registering
Party under the Act in connection with such purchase and any such loss, claim,
damage or liability of such Registering Party results from the fact that there
was not sent or given to such person, at or prior to the written confirmation
of the sale of such Registered Securities to such person, a copy of the final
prospectus, as amended or supplemented, if Holdings had previously furnished
copies thereof to such Registering Party and (iii) the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any underwriter or Registering Party from whom the person asserting
any such loss, claim, damage or liability purchased the Registered Securities
if a copy of the prospectus included in the applicable Registration Statement
(as then amended or supplemented, if such amendment or supplement was furnished
by Holdings) was not sent or given by or on behalf of any underwriter or
Registering Party to such person, if such is required by law, at or prior to
the written confirmation of the sale of such Registered Securities to such
person and if the prospectus (as so amended or supplemented) would have cured
the defect giving rise to such loss, claim, damage or liability; provided
further, however, that this indemnity agreement will be in addition to any
liability which Holdings may otherwise have to such Indemnified Party.  Holdings shall also indemnify underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution (in each case as described in a Registration
Statement), their officers and directors and each person who controls such
persons within the


 


27

















 


meaning of the Act or the Exchange Act to the same extent as provided
above with respect to the indemnification of the Registering Parties if
requested by such holders.


 


(e)  Each
Registering Party, severally and not jointly, will indemnify and hold harmless
Holdings and each person, if any, who controls Holdings within the meaning of
the Act or the Exchange Act from and against any losses, claims, damages,
liabilities or actions in respect thereof to which Holdings or any such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages, liabilities or actions
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in a Registration Statement or prospectus or in
any amendment or supplement thereto or in any preliminary prospectus relating
to a Registration, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein not misleading (in the case of the prospectus or preliminary
prospectus, in light of the circumstances under which they were made), but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity
with written information pertaining to such Registering Party and furnished to
Holdings by or on behalf of such Registering Party specifically for inclusion
therein; and, subject to the limitation set forth immediately preceding this
clause, shall reimburse, as incurred, Holdings for any legal or other expenses
reasonably incurred by Holdings or any such controlling person in connection
with investigating or defending any loss, claim, damage, liability or action in
respect thereof.  This indemnity agreement
will be in addition to any liability which such Registering Party may otherwise
have to Holdings or any of its controlling persons.


 


(f)  Promptly
after receipt by an Indemnified Party under Section 4.3(d) or (e) of notice of
the commencement of any action or proceeding (including a governmental
investigation), such Indemnified Party will, if a claim in respect thereof is
to be made against any person (the “Indemnifying
Party”) under Section 4.3(d) or (e), notify the Indemnifying
Party of the commencement thereof; but the omission so to notify the
Indemnifying Party will not, in any event, relieve the Indemnifying Party from
any obligations to any Indemnified Party other than the indemnification
obligation provided in Section 4.3(d) or (e) above unless and to the extent
that the Indemnifying Party has been prejudiced in any material respect by such
failure.  In case any such action is
brought against any Indemnified Party, and it notifies the Indemnifying Party of
the commencement thereof, the Indemnifying Party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
Indemnifying Party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such Indemnified Party (who shall not,
except with the consent of the Indemnified Party, be counsel to the
Indemnifying Party), and after notice from the Indemnifying Party to such
Indemnified Party of its election so to assume the defense thereof the
Indemnifying Party will not be liable to such Indemnified Party under Section
4.3(d) or (e) for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such Indemnified Party in connection
with the defense thereof. 
Notwithstanding the foregoing, an Indemnified Party shall have the right
to employ separate counsel in any such proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Indemnified Party or parties unless (i) the Indemnifying
Party has agreed to pay such fees and expenses; (ii) the Indemnifying Party
shall have failed promptly after notice to assume the defense of such
proceeding or shall have failed to employ counsel reasonably satisfactory to
such Indemnified Party; or (iii) the named parties to any such proceeding
(including any impleaded parties) include both such Indemnified


 


28

















 


Party and the Indemnifying Party or any of its affiliates or
controlling persons, and such Indemnified Party shall have been advised in
writing by counsel that either (A) a conflict of interest may exist if such
counsel represents such Indemnified Party and the Indemnifying Party (or such
affiliate or controlling person) or (B) there may be one or more legal defenses
available to such Indemnified Party that are different from or in addition to
those available to the Indemnifying Party or such affiliate or controlling
person (in which case, if such Indemnified Party notifies the Indemnifying Parties
in writing that it elects to employ separate counsel at the expense of the
Indemnifying Parties, the Indemnifying Parties shall not have the right to
assume the defense thereof and the fees and expenses of such counsel shall be
at the expense of the Indemnifying Party; it being understood, however, that
the Indemnifying Party shall not, in connection with any one such proceeding or
separate but substantially similar or related proceedings in the same
jurisdiction, arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys
(together with appropriate local counsel) at any time for all such Indemnifying
Parties.  No Indemnifying Party shall be
liable for any settlement of any such proceeding effected without its written
consent, but if settled with its written consent, or if there be a final
unappealable judgment for the plaintiff in any such proceeding, each
Indemnifying Party jointly and severally agrees, subject to the exceptions and
limitations set forth above, to indemnify and hold harmless each indemnified
party from and against any and all losses, claims, damages or liabilities by
reason of such settlement or judgment. 
No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened action in
respect of which any Indemnified Party is or could have been a party sand
indemnity could have been sought hereunder by such Indemnified Party unless
such settlement includes an unconditional release of such Indemnified Party
from all liability on any claims that are the subject matter of such action.


 


(g)  If the
indemnification provided for in Section 4.3(d) or (e) is unavailable or
insufficient to hold harmless an Indemnified Party thereunder, then each
Indemnifying Party shall contribute to the amount paid or payable by such
Indemnified Party as a result of the losses, claims, damages, liabilities or
actions in respect thereof referred to in Sections 4.3(d) and (e) above in such
proportion as is appropriate to reflect the relative fault of the Indemnifying
Party or Parties on the one hand and the Indemnified Party on the other in
connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities (or actions in respect thereof) as well as any other
relevant equitable considerations.  The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by Holdings, on the one hand, or such Registering Party or
such other indemnified person, as the case may be, on the other, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. 
The amount paid by an Indemnified Party as a result of the losses,
claims, damages, liabilities or actions referred to in the first sentence of
this subsection (g) shall be deemed to include any legal or other expenses
reasonably incurred by such Indemnified Party in connection with investigating
or defending any action or claim which is the subject of this Section 4.3(g),
the Registering Party shall not be required to contribute any amount in excess
of the amount by which the net proceeds received by such holders from the sale
of Registered Securities pursuant to a Registration Statement exceeds the
amount of damages which such holders have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged


 


29

















 


omission.  No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.  The
parties agree that it would not be just and equitable if contribution pursuant
to this section were determined by pro rata allocation or by any other method
that does not take account of the equitable considerations referred to
above.  For purposes of this subsection
(g), each person, if any, who controls such Indemnified Party within the
meaning of the Act or the Exchange Act shall have the same rights to
contribution as such Indemnified Party and each person, if any, who controls
the Company within the meaning of the Act or the Exchange Act shall have the
same rights to contribution as the Company.


 


(h)  The
agreements contained in Sections 4.3(d) through (g) shall survive the sale of
the Registered Securities pursuant to a Registration Statement and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.


 


4.4         Definition of Common Stock.


 


For the purposes of this Article 4, the term “common stock” shall
include any securities issued or issuable with respect to such securities by
any of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise.


 


4.5         Designation of Underwriters.


 


In connection with any underwritten public offering pursuant to a
Demand Registration, the holders of a majority of Demand Securities shall
select the managing underwriter, counsel and co-manager if one is desired by
them (with the consent of Holdings, such consent not to be unreasonably
withheld).


 


5.          SPECIAL WHITNEY
PRIVILEGES


 


5.1         Whitney Board Designee.


 


Prior to an Initial Public Offering and subject to
Section 5.1(i) below:


 


(a)  the
parties shall, at any annual meeting of stockholders of Holdings or any special
meeting of stockholders of Holdings, or by written consent, vote their Shares
to set the size of the Board to seven (7) directors; provided, that if Whitney
becomes entitled to designate an additional member of the Board pursuant to
Section 9.01(b) of the Third Stock Purchase Agreement (such designee, a “Third Whitney Designee”), then
promptly thereafter, the Initial Parties shall take all action necessary to
increase the size of the Board to eight (8) directors, and thereafter, the
parties shall, at any annual meeting of stockholders of Holdings or any special
meeting of stockholders of Holdings, or by written consent, vote their Shares
to set the size of the Board to eight (8) directors.


 


(b)  prior to
January 1, 2007, the Parties shall, at any annual meeting of stockholders of
Holdings or any special meeting of stockholders of Holdings called for the


 


30

















 


purpose of electing directors, or by written consent, vote their Shares
for the election of the following members of the Board:


 


(i)                                     two
(2) members of the Board designated by Whitney V; provided, that if Whitney
becomes entitled to designate a Third Whitney Designee pursuant to Section
9.01(b) of the Third Stock Purchase Agreement, Whitney shall be entitled to
designate three (3) members of the Board pursuant to this Section 5.1(b)(i),
provided further, that at each time of election or re-election of any such
Third Whitney Designee, he or she, if not an employee of Whitney, shall be
reasonably acceptable to Hartnett;


 


(ii)                                  four
(4) members of the Board designated by the holders of a majority of the Hartnett
Securities; and


 


(iii)                               William Killian (“Killian”), or his successor determined in accordance
with Section 5.1(f).


 


(c)  on and
after January 1, 2007, the Parties shall, at any annual meeting of stockholders
of Holdings or any special meeting of stockholders of Holdings called for the
purpose of electing directors, or by written consent, vote their Shares for the
election of the following members of the Board:


 


(i)                                     two
(2) members of the Board designated by Whitney V; provided, that if Whitney
becomes entitled to designate a Third Whitney Designee pursuant to Section
9.01(b) of the Third Stock Purchase Agreement, Whitney shall be entitled to
designate three (3) members of the Board pursuant to this Section 5.1(c)(i),
provided further, that at each time of election or re-election of any such
Third Whitney Designee, he or she, if not an employee of Whitney, shall be
reasonably acceptable to Hartnett;


 


(ii)                                  three
(3) members of the Board designated by the holders of a majority of the
Hartnett Securities;


 


(iii)                               one (1) other person
mutually agreeable to Hartnett and Whitney V (the “Independent
Director”); and


 


(iv)                              Killian,
or his successor determined in accordance with Section 5.1(f).


 


(d)  the Board
shall not act through any committee or similar body unless the directors
designated by Whitney V pursuant to Section 5.1(b)(i) or 5.1(c)(i) above (as
the case may be, the “Whitney Designees”)
and the directors designated by holders of a majority of the Hartnett
Securities pursuant to Section 5.1(b)(ii) or 5.1(c)(ii) above (as the case may
be, the “Hartnett Designees” and together
with the Whitney Designees, the “Designees”) have
been provided the continuing opportunity to join as a member thereof.


 


(e)  Whitney
and the holders of a majority of the Hartnett Securities, respectively, may
remove from the Board the Whitney Designee or Hartnett Designee, as applicable,
in its or their sole discretion and without providing notice to the other
Parties.  Upon the resignation or removal
of any Whitney Designee or Hartnett Designee, the other Parties shall vote
their Shares


 


31

















 


for such replacement director as shall be designated by Whitney or the
holders of a majority of the Hartnett Securities, as applicable (in the case of
a Third Whitney Designee who is not an employee of Whitney, subject to
Hartnett’s reasonable approval).  No
Whitney Designee or Hartnett Designee, respectively, may be removed from the
Board without the vote or consent of a majority of the holders of the Whitney
Securities or the Hartnett Securities, as applicable, absent fraud or willful
misconduct by such individual.


 


(f)  Upon the
resignation or removal of Killian or the Independent Director from the Board,
the Parties shall vote their Shares for such replacement director as shall be
mutually agreeable to both Hartnett and Whitney.


 


(g)  In no
event shall Board meetings or any meetings of a committee of the Board
(collectively, “Board Meetings”) be convened
without affording the Designees with two (2) business days’ written notice to
attend such a meeting.  The Designees
shall be provided with all information and materials provided to the other
directors for such a meeting.  All Board
Meetings shall either be held at locations reasonably convenient to the Designees
or, in the alternative, the Designees shall be permitted to participate in such
Board Meeting telephonically.


 


(h)  The
parties hereto shall take all action within their power (including in the case
of Holdings, voting the capital stock of RBCA) to provide that the composition
of the board of directors of RBCA be identical to that of the Board and
Holdings shall afford Whitney the opportunity to designate one (1) member of
the governing bodies of all other entities over which Holdings has Control.  The parties’ rights with respect to designees
on the board of directors of RBCA shall be identical to the rights of such
parties with respect to the Board. 
Whitney’s designee on such other governing bodies shall be entitled to
all rights in respect of its membership in the governing body of any such
entity as the Whitney Designees have in respect of the Board.


 


(i)  (A)
Whitney shall forfeit its right to appoint one member of the Board pursuant to
Sections 5.1(b)(i) and 5.1(c)(i) above at any time that (x) the Minimum Whitney
Common Ownership equals or is less than 20% or (y) the Minimum Whitney
Preferred Ownership equals or is less than 20%; (B) the provisions of Section
5.1(c)(iii) shall not apply (and instead a majority of the Hartnett Securities
shall have the right to designate four (4) members of the Board pursuant to
Section 5.1(c)) at any time that the Minimum Whitney Preferred Ownership equals
or is less than 20%; and (C) Whitney shall forfeit its right to appoint any
member of the Board pursuant to Sections 5.1(b)(i) and 5.1(c)(i) above and its
right to participate in the designation under Section 5.1(c)(iii) above, upon
the occurrence of both (A)(x) and (B)(x) hereof.


 


5.2         Whitney’s Written Consent.


 


Prior to an Initial Public Offering and for so long as the Minimum
Whitney Common Ownership exceeds twenty percent (20%), Holdings shall not take,
and shall cause its subsidiaries not to take, any of the following actions
without the prior written consent of Whitney:


 


32

















 


(a)  Any
redemption or other repurchase of equity securities by Holdings consisting of
more than ten percent (10%) in the aggregate of the Outstanding Common Shares
on the date hereof; provided, however, that any redemption or other repurchase
of Securities held by Hartnett or his Permitted Transferees may not be effected
without the prior written consent of Whitney, provided further, however, that
by execution of this Agreement, Whitney hereby consents to the exercise by
Holdings from time to time of the Call Option.


 


(b)  A sale,
lease, exchange or other distribution (including by way of merger or
consolidation) of all or substantially all of Holdings’ and its Subsidiaries’
property and assets prior to thirty (30) months following the date hereof for a
consideration that will result in, after giving effect to such transaction, a
Whitney IRR of less than 25%; provided, however, that such action
shall not require the prior written consent of Whitney from and after such time
that Whitney transfers any Whitney Securities to a Person other than a
Permitted Transferee.


 


(c)  Any
acquisition or series of related acquisitions by Holdings or any of its
subsidiaries, by way of merger, consolidation, stock purchase, asset purchase
or otherwise, of any Person in which Holdings or any of its Subsidiaries will
pay consideration of $30,000,000 or more in the aggregate.


 


(d)  The
entering into any agreement, transaction or arrangement between Holdings or any
of its subsidiaries, on the one hand, and Hartnett or any holder of more than
five percent (5%) of the Outstanding Common Shares, on the other hand, other
than the Hartnett Employment Agreement, the Management Services Agreement, any
grant of options or warrants to Hartnett permitted pursuant to subsection (f)
below or the issuance of any shares of Common Stock or Preferred Stock to
Whitney pursuant to the Holdings Certificate of Incorporation, the Third Stock
Purchase Agreement, the New Stock Purchase Agreement or the Old Stock Purchase
Agreement, provided, however, that by execution of this Agreement, Whitney
hereby consents to the exercise by Holdings from time to time of the Call
Option.


 


(e)  Changes in
the general lines of business from those currently conducted by Holdings and
its subsidiaries.


 


(f)  Any grant
of options or warrants granted from and after the date hereof pursuant to
management option plans heretofore or hereafter approved by the Board to
purchase Common Stock which, when taken together with all other options and
warrants issued following the date hereof pursuant to this subsection (f),
exceed 396,241.50 shares (subject to adjustment to reflect any stock split,
stock dividend, reclassification, recapitalization or other transaction having
a similar effect); provided, however, that any grant of options or warrants to
Hartnett following the date hereof which, when taken together with all other
options and warrants granted to Hartnett pursuant to this subsection (f), would
be in excess of 242,669 shares (subject to adjustment to reflect any stock
split, stock dividend, reclassification, recapitalization or other transaction
having a similar effect) shall require prior written consent of Whitney.


 


(g)  Any
issuance of Common Stock by Holdings at a price per share below the fair market
value of such shares as determined in good faith by the Board.  If the holders of a majority of the Whitney
Securities disagree with such Board determination, the disagreement regarding
the fairness of the issuance price shall be resolved by binding arbitration.  In the event


 


33

















 


of a dispute, the holders of a majority of the Whitney Securities may
notify Holdings in writing of its request for such arbitration and its choice
of an arbitrator.  Within thirty (30) days
following its receipt of such a request, Holdings shall notify the holders of a
majority of the Whitney Securities of its choice of an arbitrator.  The arbitrators so chosen shall meet within
thirty (30) days thereafter and select a third arbitrator and commence the
arbitration in accordance with rules agreed by the parties.  If the parties are unable to agree on such
rules, the arbitrators shall establish them by a majority vote.  The holders of the Whitney Securities and
Holdings shall bear their own costs and expenses, and the fees and expenses of
the arbitrators shall be divided equally between the parties, unless
arbitrators rule by a majority vote that a party has not acted in good faith
with regard to the institution, conduct and/or the subject of the
arbitration.  In the event of such a
ruling, the arbitrators shall require such party to pay all of the arbitrators’
costs and expenses, as well as some or all of the other party’s arbitration
costs and expenses, in the discretion of the arbitrators.  By execution of this Agreement, Whitney
agrees that the issuance and sale of Class A Preferred Stock pursuant to the
Third Stock Purchase Agreement is for fair market value and agrees not to
challenge such determination by the Board.


 


(h)  Any
issuance of capital stock having liquidation, dividend, or distribution rights
(i) senior to the Class B Preferred Stock, Class C Preferred Stock or Class D
Preferred Stock, or (ii) senior to, or pari passu with, the Class A Preferred
Stock provided, however, that by execution of this Agreement, Whitney consents
to the issuance and sale of Class A Preferred Stock pursuant to the Third Stock
Purchase Agreement.


 


5.3         Whitney’s Right to Information.


 


(a)  Prior to
an Initial Public Offering, and so long as the Minimum Whitney Common Ownership
exceeds twenty percent (20%), Holdings shall provide to Whitney or the Whitney
Designee (i) monthly, quarterly and annual financial statements, but only to
the extent, and in such form, as are normally prepared by Holdings and/or Roller
Bearing Company of America, Inc., (ii) copies of all significant reports
submitted to Holding’s certified public accountants in connection with each
annual, interim or special audit or review of any type of the financial
statements or related internal control systems of Holdings and its subsidiaries
made by such accountants, including any comment letter submitted by such
accountants, including any comment letter submitted to such accountants to
management in connection with their services, (iii) for so long as Holdings is
subject to the reporting requirements of Section 13(a) or 15(d) of the Exchange
Act, all information and reports required to be delivered by Holdings under the
reporting requirements of Section 13(a) or 15(d) of the Exchange Act when and
as delivered to the Commission or the securities holders of Holdings, (iv) all
press releases and other statements made available by Holdings or any of its
subsidiaries to the public concerning material developments in the business of
Holdings or its subsidiaries, (v) not less than fifteen (15) days prior to
creating a new subsidiary or acquiring the stock of, or other equity interests
in a Person, such that such Person will become a subsidiary, written notice of
the intention of Holdings or any of its subsidiaries to create such a
subsidiary or acquire such stock or equity interests, and (vi) such other
information and data with respect to Holdings or any of its subsidiaries as
from time to time may be reasonably required by the holders of the Whitney Securities.  The delivery of such financial statements
shall not be deemed to constitute a representation by Holdings respecting the
accuracy of the information contained therein.


 


34

















 


(b)  Holdings
shall permit, and will cause each of its subsidiaries to permit,
representatives of Whitney or its Permitted Transferees to visit and inspect
any of their properties, to examine their corporate, financial and operating
records and make copies thereof or abstracts therefrom, and to discuss their
affairs, finances and accounts with their respective directors, officers and
independent public accountants, all at such reasonable times during normal
business hours and as often as may be reasonably requested, upon reasonable
advance notice.


 


6.          AFFIRMATIVE
COVENANTS


 


Prior to an Initial Public Offering and so long as the
Minimum Whitney Common Ownership exceeds twenty percent (20%), Holdings hereby
covenants with Whitney as follows:


 


6.1         Preservation of Corporate Existence.


 


Holdings shall, and shall cause each of its
subsidiaries to:


 


(a)  preserve
and maintain in full force and effect its corporate (or, as applicable, limited
liability company or other entity) existence; provided, that Holdings and its
subsidiaries will not be subject to such requirement if the Board determines in
good faith that it is not in Holdings’ best interest to do so; and


 


(b)  file or
cause to be filed in a timely manner all material reports, applications and
licenses that shall be necessary for the conduct of its business.


 


6.2         Payment of Obligations.


 


Holdings shall, and shall cause each of its
subsidiaries to, pay and discharge, within a reasonable time from the time that
such payment or liability shall become due and payable, (and the expiration of
any grace period related thereto) all their respective material obligations and
liabilities known to Holdings, including without limitation:


 


(a)  all known
tax liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless the same are being contested in good faith by
appropriate proceedings and adequate reserves in accordance with generally
accepted accounting principles (“GAAP”) are being
maintained by Holdings or such subsidiary; and


 


(b)  all known
lawful claims which Holdings and each of its subsidiaries is obligated to pay,
which are due and which, if unpaid, might by law become a lien upon its
property, unless the same are being contested in good faith by appropriate
proceedings and adequate reserves in accordance with GAAP are being maintained
by Holdings or such subsidiary.


 


6.3         Compliance with Laws.


 


Holdings shall comply, and shall cause each of its
subsidiaries to comply, in all material respects, with applicable laws and with
the written directions of each governmental authority


 


35

















 


having jurisdiction over them or their business or property (including,
without limitation all applicable environmental laws).


 


6.4         Insurance.


 


Holdings and its subsidiaries will maintain or cause
to be maintained with financially sound and reputable insurers that have a
rating of “A” or better as established by Best’s Rating Guide (or an equivalent
rating with such other publication of a similar nature as shall be in current use),
public liability and property damage insurance with respect to their respective
businesses and properties against loss or damage of the kinds and in amounts
customarily carried or maintained by companies of established reputation
engaged in similar businesses.


 


6.5         Books
and Records.


 


Holdings shall, and shall cause each of its
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of Holdings and each of its Subsidiaries in accordance with GAAP
consistently applied to Holdings and its Subsidiaries taken as a whole.


 


6.6         Recourse.


 


Any monetary proceeds received by Whitney for a
violation of this Article 6 must be shared with the other holders of equity
Securities of Holdings on a pro rata basis.


 


7.          TERMINATION;
AMENDMENT; WAIVER


 


7.1         Termination; Amendment.


 


(a)  This
Agreement may be terminated and the terms hereof amended at any time by the
execution of a written instrument signed by each of the Initial Parties or, as
to any of them, a Person designated by any such Initial Party in accordance
with Section 2.6.


 


(b)  In the
event of the termination of this Agreement, this Agreement shall forthwith
become void and have no effect, without any liability on the part of any party
hereto or any of their directors, officers, partners or stockholders.


 


7.2         Waiver.


 


Any agreement on the part of any Party hereto as to
any waiver of any of its rights hereunder shall be valid only if set forth in
an instrument in writing signed on behalf of such Party.


 


8.          MISCELLANEOUS


 


8.1         Notices.


 


Any
notice, request, instruction, or other communication to be given hereunder by
any party to another shall be in writing and shall be deemed to have given if
delivered by hand or


 


36

















 


sent by telecopier (transmission confirmed), certified or registered
mail (return receipt requested), postage prepaid, or by overnight express
service, addressed to the respective party or parties at the following
addresses:


 


	
   

  	
  If to Holdings:

  
	
   

  	
   

  
	
   

  	
   

  	
  Roller Bearing Holding Company, Inc.

  
	
   

  	
   

  	
  60 Round Hill Road

  
	
   

  	
   

  	
  P.O. Box 430

  
	
   

  	
   

  	
  Fairfield, Connecticut 06430-0430

  
	
   

  	
   

  	
  Telecopier:

  	
  203-256-0775

  
	
   

  	
   

  	
  Attention:

  	
  Chief Executive Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
   

  	
  McDermott, Will & Emery

  
	
   

  	
   

  	
  50 Rockefeller Plaza

  
	
   

  	
   

  	
  New York, New York 10020

  
	
   

  	
   

  	
  Telecopier:

  	
  212-547-5444

  
	
   

  	
   

  	
  Attention:

  	
  C. David Goldman, Esq.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  If to any Whitney Party, to:

  
	
   

  	
   

  
	
   

  	
   

  	
  Whitney & Co.

  
	
   

  	
   

  	
  177 Broad Street

  
	
   

  	
   

  	
  Stamford, Connecticut 06901

  
	
   

  	
   

  	
  Telecopier:

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  Michael R. Stone, Ransom A. Langford,

  
	
   

  	
   

  	
   

  	
  Kevin Curley, Joseph Carrabino

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  With a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
   

  	
  Kirkland & Ellis

  
	
   

  	
   

  	
  153 East 53rd Street

  
	
   

  	
   

  	
  New York, NY 10022-4675

  
	
   

  	
   

  	
  Telecopier:

  	
  212-446-4900

  
	
   

  	
   

  	
  Attention:

  	
  Frederick Tanne, Esq.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  If to Hartnett:

  
	
   

  	
   

  
	
   

  	
   

  	
  Dr. Michael J. Hartnett

  
	
   

  	
   

  	
  c/o Roller Bearing Holding

  
	
   

  	
   

  	
  Company, Inc.

  
	
   

  	
   

  	
  60 Round Hill Road

  
	
   

  	
   

  	
  P.O. Box 430

  
	
   

  	
   

  	
  Fairfield, Connecticut 06430-0430

  
	
   

  	
   

  	
  Telecopier:

  	
  203-256-0775

  



 


37

















 


	
   

  	
  with a copy (which shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
   

  	
  McDermott, Will & Emery

  
	
   

  	
   

  	
  50 Rockefeller Plaza

  
	
   

  	
   

  	
  New York, New York 10020

  
	
   

  	
   

  	
  Telecopier:

  	
  212-547-5444

  
	
   

  	
   

  	
  Attention:

  	
  C. David Goldman, Esq.

  



 


or to such other address or addresses as any party may designate to the
others by like notice as set forth above. 
Any notice given hereunder shall be deemed given and received on the
date of hand delivery or transmission by telecopier, or three days after
mailing by certified or registered mail or one day after delivery to an
overnight express service for next day delivery, as the case may be.


 


8.2         Entire
Agreement.


 


This Agreement contains the entire agreement between
the Parties with respect to the subject matter contemplated hereby and
expressly supersedes in its entirety the Existing Stockholders’ Agreement.


 


8.3         Captions.


 


The captions of the various Articles and Sections of
this Agreement have been inserted only for convenience of reference and shall
not be deemed to modify, explain, enlarge or restrict any provision of this
Agreement or affect the construction hereof.


 


8.4         No Third Party Beneficiary.


 


Nothing expressed or implied in this Agreement is
intended, or shall be construed, to confer upon or give any person other than
the parties hereto and their respective heirs, personal representatives, legal
representatives, and successors, any rights or remedies under or by reason of
this Agreement.


 


8.5         Remedies Cumulative.


 


No remedy made available by any of the provisions of
this Agreement is intended to be exclusive of any other remedy, and each and
every remedy shall be cumulative and shall be in addition to every other remedy
given hereunder or now or hereafter existing at law or in equity.


 


8.6         Governing Law; Submission to
Jurisdiction.


 


(a)  THIS AGREEMENT SHALL BE DEEMED TO BE A
CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT GIVING
EFFECT TO THE RULES OF SAID STATE GOVERNING THE CONFLICTS OF LAWS.


 


38

















 


(b)  The
Parties hereby agree that any action, proceeding or claim against it arising
out of, or relating in any way to, this Agreement may be brought and enforced
in the courts of the State of New York or of the United States of America for
the Southern District of New York, and irrevocably submits to such jurisdiction
for such purpose.  The Parties hereby
irrevocably waive any objection to such exclusive jurisdiction or inconvenient
forum.  Any such process or summons to
be served upon any of the Parties (at the option of the party bringing such
action, proceeding or claim) may be served by transmitting a copy thereof, by
registered or certified mail, return receipt requested, postage prepaid,
addressed to it at the address set forth in Section 8.1 hereof.  Such mailing shall be deemed personal
service and shall be legal and binding upon the Party so served in any action,
proceeding or claim.  Except with
respect to disputes to be resolved in accordance with Section 5.2(g), nothing
herein shall affect the right of any party hereto to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed against
any other party in any other jurisdiction.


 


8.7         Assignment.


 


Except as otherwise set
forth in this Agreement, neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the Parties
hereto (whether by operation of law or otherwise) without the prior written
consent of the other parties.  Subject
to the preceding sentence, this Agreement will be binding upon, inure to the
benefit of and be enforceable by the parties and their respective successors
and assigns.


 


8.8         No Inconsistent Agreements.


 


Holdings will not, on or after the date of this
Agreement, enter into any agreement or grant any rights to any Person that
conflicts with the provisions hereof.


 


8.9         Counterparts.


 


This Agreement may be executed in two or more
counterparts, each of which shall be considered one and the same agreement and
shall become effective when a counterpart has been signed by each of the
parties and delivered to the other party, it being understood that all parties
need not sign the same counterpart.


 


39

















 


IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders’ Agreement on this 6th day of February, 2003.


 


	
   

  	
  ROLLER BEARING HOLDING COMPANY,

  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael J.
  Hartnett

  	
   

  
	
   

  	
   

  	
  Michael J.
  Hartnett

  
	
   

  	
   

  	
  President and
  CEO

  
	
   

  	
   

  	
   

  
	
   

  	
  /s/ Michael J.
  Hartnett

  	
   

  
	
   

  	
  Michael J.
  Hartnett

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HARTNETT FAMILY INVESTMENTS, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael J.
  Hartnett

  	
   

  
	
   

  	
   

  	
  Michael J.
  Hartnett

  
	
   

  	
   

  	
  General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WHITNEY RBHC INVESTOR, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Whitney V, L.P.,

  
	
   

  	
  its Managing
  Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Whitney Equity
  Partners V, LLC,

  
	
   

  	
  its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duly
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Duly Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  	
  Duly Authorized
  Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WHITNEY V, L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Whitney Equity
  Partners V, LLC,

  
	
   

  	
  its General
  Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Duly
  Authorized Signatory

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Duly Authorized
  Signatory

  
	
   

  	
   

  	
  Title:

  	
  Duly Authorized
  Signatory

  
					



 


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