**Exhibit10.32**

** **

**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 asof February 6, 2003**

 

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**TABLE OFCONTENTS**

 
| 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 |

 

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|   | 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

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**SECONDAMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT**

 

This Second Amended andRestated Stockholder’s Agreement, dated as of this 6th day ofFebruary, 2003, by and among Roller Bearing Holding Company, Inc., a Delawarecorporation (“*Holdings*”), Whitney RBHC Investor,LLC, a Delaware limited liability company (“*WhitneyInvestor*”) and Whitney V, L.P., a Delaware limited partnership(“*Whitney V*” and, collectively withWhitney Investor, “*Whitney*”), Dr. Michael J. Hartnettand Hartnett Family Investments, L.P., a Delaware limited partnership (togetherwith Dr. Michael J. Hartnett, “*Hartnett*” andtogether with Whitney, collectively the “*InitialParties*” and individually an “*InitialParty*”) and the Persons who by operation of Section 2.6become a party hereto.

 

WHEREAS, Whitney is theowner of (i) 2,368,265 shares (the “*WhitneyCommon Shares*”) of Class A Voting Common Stock of Holdings,par value $0.01 per share (“*Class A Common Stock*”),(ii) 230,000 shares (the “*WhitneyClass B Preferred Shares*”) of Class B Exchangeable ConvertibleParticipating 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*”) ofClass A Preferred Stock of Holdings, par value $0.01 per share (“*Class APreferred Stock*”); and

 

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

 

WHEREAS, the Initial Parties entered into aStockholders’ Agreement (the “*First Stockholders’ Agreement*”), datedDecember 18, 2000, setting forth their agreements regarding certain mattersrelating to their ownership of the Shares and the Warrants; and

 

WHEREAS, the Initial Parties entered into an Amendedand 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 ExistingStockholders Agreement in the manner set forth herein.

 

NOW, THEREFORE, in consideration of the premises and the mutualcovenants and agreements hereinafter set forth and other good and valuableconsideration, 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 meanindebtedness of Holdings or any of its subsidiaries that (i) is in an amount ofnot less than $50 million, (ii) is unsecured, and (iii) is subordinated to allsecured 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 CRedeemable Preferred Stock of Holdings, par value $0.01 per share.

##  

## 1.5                                 “Class D Preferred Stock shall mean the Class DPreferred 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 commonstock 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”), withrespect to any Person, shall mean possession, directly or indirectly, of thepower to direct or cause the direction of the management and policies of suchPerson, whether through the ownership of voting securities or by contract orotherwise.

##  

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

##  

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

##  

## 1.10                           “Hartnett Employment Agreement” shall meanthe Amended and Restated Employment Agreement, dated December 18, 2000, byand between RBCA and Hartnett.

##  

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

##  

## 1.12                           “Indemnification Shares” shall mean any shares ofClass A Preferred Stock issued by Holdingspursuant to Article 9 of the Old Stock Purchase Agreement, Article 8 of the NewStock Purchase Agreement” or Article 8 of the Third Stock Purchase Agreement.

 

2

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

##  

## 1.14                           “Management Services Agreement” shall meanthat certain Amended and Restated Management Services Agreement, dated as ofJuly 29, 2002, by and between Whitney & Co., a Delaware Corporation, andRBCA.

##  

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

##  

## 1.16                           “Minimum Whitney Common Ownership” whenstated as a percentage, shall mean the indicated percentage of all WhitneyCommon Shares owned by the Whitney Parties as of the date hereof (and for theavoidance of doubt, excluding Common Stock that may be obtained upon conversionof the Class B Preferred Stock) and always as adjusted to reflect any stocksplit, stock dividend, reclassification, recapitalization or other transactionhaving a similar effect.  For thepurposes hereof and of Section 1.18 below, if the Whitney Parties dispose ofany shares of Class A Common Stock, the first shares of Class A Common Stockactually disposed of shall be deemed to be Common Stock obtained uponconversion of the Class B Preferred Stock (and not the Whitney Common Shares orotherwise).

##  

## 1.17                           “Minimum Whitney Ownership” when stated as apercentage, shall mean the indicated percentage of all Outstanding WhitneyCommon Shares owned by the Whitney Parties as of the date hereof, other thanshares of Class A Preferred stock purchased pursuant to the Third StockPurchase Agreement, and always as adjusted to reflect any stock split, stockdividend, reclassification, recapitalization or other transaction having asimilar 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 havebeen converted, and (ii) the Whitney Class B Preferred Shares, which for thepurposes 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 theWhitney Parties, each as of the date hereof and always as adjusted to reflectany stock split, stock dividend, reclassification, recapitalization or othertransaction having a similar effect. Further, for the purposes hereof, the Whitney Parties shall be deemednot to have transferred any shares of such Preferred Stock, which shall havebeen redeemed by Holdings.

##  

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

##  

## 1.20                           “Old Stock Purchase Agreement” shall meanthat certain Stock Purchase Agreement dated as of November 20, 2000, among theCorporation, Michael J. Hartnett, Hartnett Family Investments, L.P. and WhitneyAcquisition II, Inc.

 

3

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1.21                           “Outstanding Common Shares” including subsetsof such terms such as “OutstandingWhitney Common Shares” or “OutstandingHartnett Common Shares,” shall mean all Common Stock that may be issued byHoldings or its successors upon conversion, exchange or exercise of any sharesof Common Stock, Warrants or other Derivative Securities, including the Class BPreferred Stock.

##  

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

 

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

##  

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

##  

## 1.25                           “Preferred Stock” shall mean all outstanding Class APreferred Stock, Class B Preferred Stock, Class C Preferred Stock and Class DPreferred Stock.

##  

## 1.26                           “Public Sale” shall mean any sale of Securities to thepublic pursuant to an offering registered under the Act or to the publiceffected through a broker, dealer or market pursuant to the provisions of Rule144 (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 Delawarecorporation and a wholly-owned subsidiary of Holdings.

##  

## 1.28                           “Sale of Business Transaction” shall mean atransaction involving a sale of all or substantially all of the capital stockof Holdings, a sale of all or substantially all of the assets of Holdings andits subsidiaries or a merger, consolidation, recapitalization or othertransaction having a substantially similar result.

 

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

 

4

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

##  

## 1.30                           “Third Stock Purchase Agreement” shall meanthat 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 directorsand other matters that are the subject of a vote of the stockholders ofHoldings.

##  

## 1.32                           “Whitney IRR” shall mean as of any date of determination,the annualized internal rate of return realized by the Whitney Parties as aresult of their investment in Class A Common Stock and Class B Preferred Stockpursuant to the Old Stock Purchase Agreement and the New Stock PurchaseAgreement through such date of determination (it being understood that anyproceeds received by the Whitney Parties in respect of the shares of Class CPreferred Stock, Class D Preferred Stock and/or Class A Common Stock issued in respect of the Class B PreferredStock shall be included in the calculation of the Whitney IRR).  For the avoidance of doubt, (i) all “ClosingFees” 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 toSection 3(a) of the Management Services Agreement (so long as the amount ofsuch annual “Advisory Fees” equals or exceeds $450,000 per year) shall beincluded in the calculation of the Whitney IRR, and all other fees or expensespaid to Whitney & Co. pursuant to the Management Services Agreement shallbe excluded from such calculation.

 

## 1.33                           “Whitney Management” means Whitney & Co., aDelaware Corporation.

##  

## 1.34                           “Whitney Notice Parties” means (a) for so longas the Whitney Securities are held by Whitney and its Permitted Transferees,Whitney Management, and (b) if any Whitney Securities are owned by Personsother than Whitney and its Permitted Transferees, (i) Whitney Managementon behalf of Whitney and its Permitted Transferees, and (ii) each of theother holders of Whitney Securities.

##  

## 1.35                           “Whitney Parties” shall mean Whitney Investor, WhitneyV, Whitney Management and their respective Affiliates and PermittedTransferees.

##  

## 1.36                           Additional Defined Terms

##  

## The following terms are defined elsewhere in this Agreement in theSections 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

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| **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

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| **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

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| **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.**          TRANSFERRESTRICTIONS

##  

## 2.1         Legends.

 

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

 

Thesecurities represented by this certificate have not been registered under theSecurities Act of 1933, as amended (“*Act*”), and may not be offered or soldexcept pursuant to (i) an effective registration statement under the Actor (ii) an exemption from registration under such Act.

 

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

 

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among the issuer of such securities (the “*Company*”) and certain of the Company’s stockholdersas such agreement may be amended from time to time.  A copy of such stockholders’ agreement shall be furnished withoutcharge by the Company to the holder hereof upon written request.

 

The legend set forthabove shall be removed from the certificates evidencing any Securities uponTransfer pursuant to a Public Sale.

##  

## 2.2         Restrictions on Transfer.

 

No Party shall, directly or indirectly, voluntarily orinvoluntarily, sell, assign, gift, transfer, pledge, mortgage, hypothecate orotherwise dispose of (each such event, a “*Transfer*”) anySecurities other than (a) Transfers to Permitted Transferees, (b)transfers of Class A Preferred Stock to Holdings upon the exercise by Holdingsof the call option (the “*Call Option*”) provided in Section9.01(a) of the Third Stock Purchase Agreement (“*CallOption Transfer**s*”), and (c) Transfers incompliance with the provisions of this Article 2.

 

## 2.3         Right of First Offer.

 

So long as the Minimum Whitney Common Ownership is atleast twenty percent (20%), neither Hartnett nor any of his PermittedTransferees (the “*Hartnett Parties*”) may Transferany Securities except in compliance with this Section 2.3.

###  

### (a)  If anyHartnett Party desires to Transfer Securities, he shall give notice thereof tothe Whitney Notice Parties (a “*First Offer Notice*”).  The First Offer Notice shall include thenumber 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 andthe intended timing of such Transfer.

###  

### (b)  Theholders of a majority of the Whitney Common Shares (the “*Required Holders*”) shall have theright, but not the obligation, exercisable at any time within thirty (30) daysafter delivery of the First Offer Notice, to deliver in writing to the HartnettParty an offer to purchase all, but not less than all, of such Securities (the“*First Offer Election*”) settingforth the material terms and conditions on which it proposes to purchase suchSecurities (the “*First Offer Terms*”).

###  

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

###  

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

 

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

###  

### (e)  If theRequired Holders do not make a First Offer Election or if the Hartnett Partyhas 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 shallhave the unlimited right at his option, at any time within the one hundredeighty (180) days following the date of the First Offer Notice to sell all ofthe Securities that were the subject of the First Offer Notice free of anyobligation to sell any of such Securities to the Required Holders; provided,however, that, if the Required Holders shall have made a First Offer Electionbut the Hartnett Party did not accept such offer as aforesaid, the per shareprice in such sale shall not be less than the per share price contained in theFirst Offer Terms.  Any subsequent orother proposed Transfer shall be subject to the rights of first offer set forthherein.

###  

### (f) Notwithstanding any provision of this Section 2.3 to the contrary, ifthe exercise by any holder of Whitney Securities of its Right of First Offerwould cause the Voting Power (on a fully-diluted basis, including in respect ofall Derivative Securities) which all of the holders of the Whitney Securitiesown, 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 ofWhitney Securities agrees that that portion of the Securities so exceeding suchforty-nine and nine-tenths percent (49.9%) threshold shall be replaced with adifferent class of Securities without any voting rights whatsoever (but in allother respects identical to the Securities offered pursuant to this Section 2.3).  Each of the Parties covenants and agreesthat it shall take all measures required to carry out the foregoing, includingapproval of any required amendment to the Certificate of Incorporation ofHoldings.

###  

### (g) Notwithstanding anything contained herein to the contrary, this Section2.3 shall not apply to: (i) any Transfer or series of related Transfers ofSecurities by the Hartnett Parties that, in the aggregate, together with allother 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 rightto compel sale pursuant to Section 2.5.

##  

## 2.4         Tag-Along Rights.

###  

### (a)  IfHartnett or any of his Permitted Transferees (the “*Tag-AlongTransferor*”) wishes to transfer Securities owned by suchPerson (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 theWhitney Securities to purchase such Securities) to any Person other than aPermitted 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 theright (the “*Tag-Along Right*”) to require, as acondition to such Transfer by the Tag-Along Transferor of such Securities, thatthe Tag-Along Transferee purchase from such Tag-Along Party, at the same priceand on the same terms and conditions as involved in the Transfer by theTag-Along Transferor, up to that number of Outstanding Common Shares owned bysuch Tag-Along Party equaling the

 

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number derived by multiplying (i) the total number of OutstandingCommon Shares owned by such Tag-Along Party by (ii) a fraction (A) thenumerator of which is the actual number of Outstanding Common Shares to beTransferred to the Tag-Along Transferee by the Tag-Along Transferor as setforth in the Tag-Along Offer Notice and (B) the denominator of which is theaggregate number of Outstanding Common Shares owned by Hartnett and hisPermitted Transferees immediately prior to such Transfer.  Notwithstanding the foregoing, in the eventthe Tag-Along Transferee is unwilling to purchase the sum of the aggregatenumber 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 TransferSecurities to the Tag-Along Transferee shall be entitled to Transfer only thatnumber of Outstanding Common Shares equal to the number of Outstanding CommonShares which such Party desires to Transfer to such Tag-Along Transferee, asset 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 whichis the total number of Outstanding Common Shares which the Tag-Along Transfereeis willing to acquire and the denominator of which is the total number ofOutstanding Common Shares which the Tag-Along Transferor and all of theTag-Along Parties wish to Transfer to such Tag-Along Transferee (all as setforth, as applicable, in the Tag-Along Offer Notice and the Tag-Along Notices).

###  

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

###  

### (c)  If aTag-Along Transferor proposes to Transfer any Securities in a transactionsubject to this Section 2.4, it shall notify the Whitney Notice Parties inwriting of such proposed Transfer (a “*Tag-AlongOffer Notice*”).  SuchTag-Along Offer Notice shall set forth: (i) the name of the Tag-AlongTransferee, (ii) the number and nature of the Securities proposed to beTransferred, (iii) the proposed amount and form of consideration and all othermaterial terms and conditions of such offer, including the date of the proposedTransfer and all applicable representations, indemnities and other contractprovisions required by the Tag-Along Transferee (the “*Tag-Along Transferee Terms*”),(iv) the total number and nature of Securities owned by the Tag-AlongTransferor and Hartnett and his Permitted Transferees and (v) that theTag-Along Transferee has been informed of the Tag-Along Right provided for inthis Section 2.4 and has agreed to purchase Securities subject hereto in themanner set forth in Subsections 2.4(a) and (b).  The Tag-Along Right may be exercised by any Tag-Along Party bydelivery 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 tothe Tag-Along Transferee.  The failureby any Tag-Along Party to provide the Tag-Along Notice on or before theTag-Along Notice Deadline shall be deemed to be an election by such Tag-AlongParty not to exercise the Tag-Along Right with respect to the transactiondescribed in the Tag-Along Offer Notice.

###  

### (d)  Upondelivery of a Tag-Along Notice, each participating Tag-Along Party shall beobligated to sell to the Tag-Along Transferee the number of Securities setforth in its Tag-Along Notice (but not to exceed the number determined inaccordance with subparagraph (a) of this Section 2.4) subject to the Tag-AlongTransfer Terms (including the same

###  

### 11

### 

###  

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

###  

### (e)  TheTag-Along Parties electing to participate in the sale of Securities to theTag-Along Transferee (and each of them) shall execute and deliver to Holdingswithin fifteen (15) business days after delivery to such Tag-Along Parties forsuch execution, all documents required to be executed by each such Tag-AlongParty in order to consummate the sale, subject to the limitations on liabilitycontained in Section 2.4(d) above.

###  

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

###  

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

###  

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

###  

### (i)  If anyproposed Transfer contemplated by Sections 2.4(e) and (g) above is terminatedor is otherwise not consummated for any reason (in the case of Transferscontemplated by Section 2.4(g) within the ninety (90) day period in which suchTransfer may be made), the Tag-Along Transferor shall, without prejudice to itsrights hereunder to deliver a subsequent Tag-Along Notice, provide writtennotice of such termination to the other Parties and shall promptly return toall Tag-Along Parties who elected to participate in such Transfer alldocumentation which such Tag-Along Parties had previously delivered to Holdingsin connection with such Transfer.

 

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### (j)  Notwithstandinganything 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 rightto compel sale pursuant to Section 2.5.

##  

## 2.5         Right to Compel Sale.

###  

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

###  

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

###  

### (c)  TheCompelled Sale Transferor shall notify the Other Parties in writing of aCompelled Sale (a “*Compelled Sale Notice*”),as soon as practicable after the definitive terms of such transaction areknown.  Such Compelled Sale Notice shallset forth all of the material terms and conditions of the Compelled Sale,including, without limitation, the proposed amount and nature of considerationand all other material terms and conditions, including the proposed closingdate of the Compelled Sale and all applicable representations, indemnities andother contract provisions.  The OtherParties (and each of them) shall execute and deliver to Holdings within (10)business days after delivery to such Other Parties for such execution, alldocuments, other than the Compelled Sale Shares, required to be executed byeach such Other Party in order to consummate such Compelled Sale, all subjectto the following:

####  

#### (i)                                     Unlessotherwise agreed upon by the Other Parties, if the Sale of Business Transactionis structured as a sale of capital stock, the terms and conditions applicableto the sale of the capital stock of Holdings owned by the Other Parties shallbe substantially the same to those applicable to the sale of the capital stockby the Compelled Sale Transferor,

 

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

####  

#### (ii)                                  Upona Sale of Business Transaction, each party that owns Preferred Stock willreceive consideration in an amount per share of Preferred Stock equal to theLiquidation Amount of such share as set forth in Holdings Certificate ofIncorporation.  For the avoidance ofdoubt, if the total consideration payable in respect of any such Sale ofBusiness Transaction is not sufficient to pay the aggregate Liquidation Amountof each share of Preferred Stock then outstanding to the holders thereof, thensuch holders will share all of such consideration in accordance with SectionB(3) of Article Fourth of the Holdings Certificate of Incorporation and theholders of Common Stock will not be entitled to receive any consideration inrespect of such Sale of the Business.

####  

#### (iii)                               Notwithstanding theforegoing, no Other Party shall be required to provide for indemnification tothe Compelled Sale Purchaser (A) other than on a several (and not jointand several) basis and (B) in excess of the proceeds actually received bysuch Other Party.  The Compelled SaleTransferor and each of the Other Parties shall bear their own costs andexpenses related to the Compelled Sale.

####  

#### (iv)                              Unlessthe Compelled Sale Purchaser shall agree to the contrary, prior to any Transferto the Compelled Sale Purchaser, the Other Parties shall exercise, convert orexchange such number of their Derivative Securities as may be necessary so thatonly shares of Common Stock are Transferred.

###  

### (d)  The OtherParties shall (i) vote for, consent to and raise no objections against anyCompelled Sale pursuant to this Section 2.5, and (ii) enter into suchdefinitive agreements as are consistent with subsection (c) above.  If the Compelled Sale is structured as asale of issued capital stock, (A) each Other Party shall agree to sell all ofsuch Other Party’s capital stock of Holdings on the terms and conditions of theCompelled Sale and (B) at the closing of such Compelled Sale each Other Partywill transfer to the Compelled Sale Purchaser all shares of capital stock ownedby it, with full title guarantee free and clear of all liens and encumbrances,together with duly executed written instruments of transfer with respectthereto, in form and substance reasonably satisfactory to the CompelledTransferor.  If the Compelled Sale isstructured as a sale of assets, the Other Parties agree to cause Holdings toexecute 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 SalePurchaser good and marketable title to such assets.  If the sale of Holdings is structured as a merger orconsolidation, each Other Party shall waive any dissenters’ rights, appraisalrights or similar rights in conjunction with such merger or consolidation.

###  

### (e)  TheCompelled Sale Transferor shall have the right at any time within one hundredtwenty (120) days following the execution of all required documents pursuant toSubsection (d) above to consummate the Compelled Sale on the terms set forth insuch documents.  The closing of theCompelled Sale shall take place not less than five (5) business days’ priornotice, setting forth the date and location of such closing.

 

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### (f)  At theclosing of the Compelled Sale, if the Compelled Sale is structured as a sale ofissued capital stock or as a merger or consolidation, the Compelled SalePurchaser shall cause all amounts payable to the Other Parties to be delivereddirectly to them (including, as to the cash portion of the consideration, toaccounts designated by each of the Other Parties).

###  

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

###  

### (h) Notwithstanding anything contained herein to the contrary, (i) Hartnettand his Permitted Transferees shall have no rights under this Section 2.5 inrespect of Whitney Securities and the holders of Whitney Securities shall haveno obligations under this Section 2.5, with respect to any proposed CompelledSale by Hartnett and/or his Permitted Transferees that is to be consummated onor before thirty (30) months following the date hereof, unless the Whitney IRRmeasured as of, and after giving effect to, the closing of the Compelled Saleis equal to or greater than 25%; provided, however, that thelimitation set forth in this subparagraph (i) shall not apply from and aftersuch time that Whitney transfers any Whitney Securities to a Person other thana Permitted Transferee, (ii) (A) Whitney and its Permitted Transferees shallhave no rights under this Section 2.5 in respect of Hartnett Securities and theholders of Hartnett Securities shall have no obligations under this Section2.5, as to any Compelled Sale that is initiated by Whitney and its PermittedTransferees pursuant to an Initiating Notice that is delivered before January1, 2007, and (B) Whitney and its Permitted Transferees shall have no rightsunder this Section 2.5 in respect of Hartnett Securities and the holders ofHartnett Securities shall have no obligations under this Section 2.5, unlessWhitney and/or its Permitted Transferees shall have (x) first providedHartnett with notice (a “*Negotiation Notice*”) of its intent tocause a Compelled Sale and (y) for a period of thirty (30) days followingdelivery of the Negotiation Notice, negotiated exclusively with Hartnettregarding the purchase of the Whitney Securities by Hartnett or his designee(for a purchase price reflective of the value of such securities in connectionwith a Compelled Sale), and (iii) neither Hartnett and his PermittedTransferees or Whitney and its Permitted Transferees shall have any rights toinitiate a Compelled Sale process hereunder for a period of one hundred twenty(120) days following such time that the other shall have delivered anInitiating Notice; provided, that (x) such period shall be extended forso long as may be reasonably requested by the Investment Bank retained at therequest of the Compelled Sale Transferor in order to pursue the Sale ofBusiness Transaction, and (y) in order to give effect to the rights of Whitneyand its Permitted Transferees to initiate a Compelled Sale process on January1, 2007, Hartnett and his Permitted Transferees may not initiate a CompelledSale process between September 1, 2006 and December 31, 2006.

##  

## 2.6         Securities of Transferees.

###  

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

 

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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)  Inconnection with the Transfer of any Securities other than a Transfer describedin clause (i) of Section 2.6(a) above, any Call Option Transfer or any Transferbetween a Party and any of its Permitted Transferees, the holder thereof shalldeliver written notice to Holdings describing in reasonable detail the Transferor proposed Transfer, together with, if reasonably requested by Holdings, anopinion of counsel reasonably acceptable to Holdings to the effect that suchTransfer of Shares may be effected without registration of such Securitiesunder the Act.  In addition, if theholder of the Securities delivers to Holdings an opinion of counsel that nosubsequent Transfer of such Securities shall require registration under theAct, Holdings shall upon such contemplated Transfer deliver new certificatesfor such Securities which do not bear the relevant legend set forth in Section2.1 above.  If Holdings is not requiredto deliver new certificates for such Securities not bearing such legend, theholder thereof shall not Transfer the same until the prospective transferee hasconfirmed to Holdings in writing its agreement to be bound by the conditionscontained herein, as provided in Section 2.6(d).

###  

### (c)  Upon therequest of a holder of Securities, Holdings shall supply to such Person or itsprospective transferees all the information within its possession regardingHoldings, required to be delivered in connection with a Transfer pursuant toRule 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 beconditioned 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 formattached hereto as Exhibit B, pursuant to which such Transferee, and theSecurities acquired, shall become subject to the terms and conditions of thisAgreement, including (f) below.  In caseof a Transfer of Indemnification Shares, the Transfer by the Parties shall alsobe conditioned upon the relevant Transferee (including any PermittedTransferee) first entering into and delivering to the Other Parties a JoinderAgreement in the form attached hereto as Exhibit C, pursuant to which suchTransferee, and the Securities acquired, shall become subject to the terms andconditions of the Old Stock Purchase Agreement, the New Stock PurchaseAgreement or the Third Stock Purchase Agreement, as applicable.

###  

### (e)  Upon anyTransfer and the execution of a Joinder Agreement, each Transferee, and theSecurities acquired by it, shall be subject to all of the limitations andobligations set forth herein and shall obtain the benefits and rights of aParty hereunder with respect to the Securities so acquired; provided that theSecurities purchased by any Tag-Along Transferee in accordance with theprocedures set forth in Section 2.4 shall not be subject to tag-alongobligations under Section 2.4 upon any further Transfers otherwise subjectthereto.

###  

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

 

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

###  

### (g)  In theevent that any Initial Party (other than Whitney) Transfers any of itsSecurities hereunder, thereafter: (i) any notices to be given to suchTransferees shall be deemed given if delivered to their Initial PartyTransferor, (ii) a notice from any such Transferee shall be deemeddelivered only if delivered by its Initial Party Transferor, and (iii) allof the Parties hereto shall be permitted to rely upon any notice given by anInitial Party (other than Whitney) as containing the intentions of itsTransferees.  If an Initial Party (otherthan Whitney) wishes, it may designate, by written notice to Holdings and allother Parties, a successor Person to give and accept notices on behalf of allTransferees 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 anySecurities to any Person who competes, directly or indirectly through one ofits Affiliates, with Holdings or its subsidiaries in any business whichHoldings or any such subsidiary is engaged or at the time of such Transferintends to engage (a “*Competitor*”).

###  

### (b)  Whitney(to the extent it is the record holder of Whitney Securities) shall not, andshall cause its Affiliates not to, acquire any debt or equity securities in anyCompetitor (excepting less than 5% stock holdings for investment purposes insecurities of publicly held and traded companies that Whitney or such holder ofthe Whitney Securities does not have the power to appoint a director) withoutproviding Hartnett and Holdings with written notice thereof.  Holdings’ recourse against Whitney and, asapplicable, Whitney V, in case of breach of this subsection (b) shall belimited to demanding notification of such acquisition by Whitney, the holdersof 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 incompliance with this Agreement shall be null and void and of no force andeffect whatsoever.  Accordingly, suchTransfer shall not be reflected on the books of Holdings and Holdings will notrecognize 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 shallterminate and be of no further force and effect following an Initial PublicOffering.

 

# **3.**               RIGHT OF FIRST OFFER; PARTICIPATION RIGHT

 

## 3.1         Right of First Offer and ParticipationRight as to New Securities.

 

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

 

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### (a)  So long asthe Minimum Whitney Common Ownership is at least twenty percent (20%), ifHoldings desires to issue New Securities, it shall give first notice thereof tothe Whitney Notice Parties (a “*New Issue Notice*”).

####  

#### (i)                                     Anysuch New Issue Notice shall contain a description of the material terms andconditions on which Holdings will offer the New Securities including (A) thenumber and type of New Securities to be issued, (B) the proposed processapplicable 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 ofsuch issuance (together, the “*New Issue Terms*”).  The New Issue Notice shall constitute anoffer by Holdings to sell the Securities that are the subject of the New IssueNotice to the holders of the Whitney Securities on the New Issue Terms.

####  

#### (ii)                                  TheRequired Holders shall have the right (the “*Right ofFirst Offer*”), exercisable at any time within thirty (30)days after delivery of the New Issue Notice, to either (A) accept the offermade thereby by furnishing written notice thereof to Holdings and agreeing topurchase all and not less than all of the Securities so offered in, and at theNew Issue Terms specified in, the New Issue Notice or (B) make a counter-offerto Holdings to acquire such New Securities on different terms (the “*Whitney Counter-Offer*”).  Any such Whitney Counter-Offer shall containa description of the material terms and conditions on which the RequiredHolders offer to buy all and not less than all of the New Securities fromHoldings (the “*Counter-Offer Terms*”).  The Whitney Counter-Offer shall constitutean offer by the holders of the Whitney Securities to purchase the Securitiesthat 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) daysafter delivery of the Whitney Counter-Offer, to accept the WhitneyCounter-Offer made thereby by furnishing written notice thereof to the RequiredHolders (the “*Holdings Response*”) and agreeingto sell all and not less than all of the Securities so offered in the New IssueNotice and at the Counter-Offer Terms specified in the WhitneyCounter-Offer.  Any Party who fails todeliver a notice called for by the subsection to exercise a right within thetime periods provided for herein shall be deemed not be have exercised suchright.

####  

#### (iii)                               Upon the acceptance ofany such offer or Counter-Offer pursuant to (ii) above, Holdings shalldesignate a date on which it shall issue the Securities to be sold, which dateshall be not less than five (5) days nor more than thirty (30) days followingthe date on which it accepts such offer or Counter-Offer.  At such closing, the Required Holders shalldeliver payment in the appropriate amount to Holdings against (A) deliveryof certificates or other instruments representing the Securities so purchasedand (B) completion of all documentation necessary to satisfy all of theterms of the purchase of the New Securities. The closing for the purchase of Securities pursuant hereto shall occurwithin thirty (30) days after acceptance by, as the case may be, Holdings orthe Required Holders, unless otherwise agreed to as between Holdings and theRequired Holders.

####  

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

 

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

###  

### (b)  If theRequired Holders do not purchase the New Securities that are the subject of theNew Issue Notice by operation of the provisions of Section 3.1(a) and Holdingsproceeds to issue such New Securities (a “*PreemptiveIssuance*”), Whitney, Hartnett and their respective PermittedTransferees (the “*Preemptive Parties*”) shall eachhave the right (the “*Participation Right*”)to purchase New Securities of the same class and series issued in suchPreemptive Issuance at the price per New Security paid in connection therewithand otherwise upon the same terms and conditions as the New Securities beingissued in the Preemptive Issuance.

####  

#### (i)                                     Inthe case of a Preemptive Issuance, Holdings shall provide each Preemptive Partywith written notice identifying the New Securities, the Persons to whom the NewSecurities are being issued and describing the terms and amount of thePreemptive Issuance.  A Preemptive Partymay exercise its Participation Right by written notice to Holdings within ten(10) days following delivery of the notice described in the precedingsentence.  The failure by any PreemptiveParty to provide such notice before the expiration of the ten (10) day periodshall be deemed to be an election by such Preemptive Party not to exercise itsParticipation Right with respect to the Issuance.  Each Preemptive Party electing to exercise its ParticipationRight under this Section 3.1(b)(i) shall execute such documents as may bereasonably requested by Holdings to evidence the purchase of such NewSecurities; provided that the terms and conditions applicable to thesale of such New Securities shall be the same as required of the purchaser ofsuch New Securities (including, without limitation, the amount and nature ofconsideration and representations, indemnities and the like).  The closing of the issuance of such NewSecurities issued to Preemptive Parties under this Section 3.1(b) (includingthe payment therefor by the Preemptive Parties) shall occur at the same time asthe closing of the issuance of such New Securities to the third-partypurchasers thereof.

####  

#### (ii)                                  Thenumber of New Securities each Preemptive Party may purchase under this Article3 with respect to each Preemptive Issuance shall be such number so that afterexercise of the Participation Right such Preemptive Party’s Outstanding CommonShares will represent the same percentage of the total Outstanding CommonShares following the Preemptive Issuance as such Preemptive Party’s OutstandingCommon Shares represented of the total Outstanding Common Shares priorthereto.  Notwithstanding the foregoing,(i) the Required Holders may assign their Participation Right to other holdersof Whitney Securities and (ii) Hartnett and his Permitted Transferees (the“*Hartnett Preemptive Parties*”)shall have the right to assign their Participation Right to other HartnettPreemptive Parties.

##  

## 3.2         Exceptions to Right of First Offer andParticipation Right.

###  

### (a)  The Rightof First Offer and Participation Right provided for in this Article 3 shall notapply to any New Securities being issued in connection with, and the term“Preemptive Issuance” shall not include an issuance in respect of, (i) theexercise, conversion or exchange of Derivative Securities outstanding on thedate hereof, (ii) a restructuring, including a cancellation or modification ofthe terms of any, of the debt of Holdings or any of its subsidiaries in whichlenders or owners of debt securities of Holdings or its subsidiaries receiveequity interests in

 

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

###  

### (b) Notwithstanding any provision of this Article 3 to the contrary, if theexercise by any holder of Whitney Securities of their Right of First Offerwould cause the Common Stock (on a fully-diluted basis, assuming conversion ofall Derivative Securities) which all of the holders of Whitney Securities own,directly or indirectly, to exceed forty-nine and nine-tenths percent (49.9%) ofthe Voting Power of the Common Stock (on a fully-diluted basis, assumingconversion of all Derivative Securities), then such holders of WhitneySecurities agrees that that portion of the New Securities so exceeding suchforty-nine and nine-tenths percent (49.9%) threshold shall be replaced with adifferent class of Securities without any voting rights whatsoever (but in allother respects identical to the New Securities); provided that thisSubsection 3.2(b) shall not apply to issuances of New Securities whichthemselves constitute issuances of more than fifty percent (50%) of the VotingPower of the Common Stock (on a fully-diluted basis, assuming conversion of allDerivative Securities, after giving effect to such issuance).  Each of the Parties covenants and agreesthat it shall take all measures required to carry out the foregoing, includingapproval of any required amendment to the Certificate of Incorporation ofHoldings.

##  

## 3.3         Right of First Offer on SubordinatedDebt Issuances.

 

So long as the Minimum Whitney Ownership is at least 25%, prior to theissuance by Holdings or any of its subsidiaries of Applicable SubordinatedDebt, Holdings shall provide notice to Whitney of such intended issuance (a “*DebtNotice*” which Debt Notice shall include, to the extent known,the amount and terms of such Applicable Subordinated Debt), and neitherHoldings nor any such subsidiary shall issue such Applicable Subordinated Debtwithout providing Whitney with the right for a period of thirty (30) daysfollowing delivery of the Debt Notice to make an offer to purchase suchApplicable Subordinated Debt.  It isspecifically agreed that neither Holdings nor any such subsidiary shall beobligated to accept such offer; and following such thirty (30) day periodHoldings or such subsidiary may issue such Applicable Subordinated Debt to suchparty or parties and on such terms (irrespective of the terms offered byWhitney), as it deems appropriate without regard to any rights under thisSection 3.3.

 

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## 3.4         Termination on Initial PublicOffering.

 

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

# ** **

# **4.**          REGISTRATION RIGHTS.

##  

## 4.1         Piggyback Registration.

 

If, at any time Holdings proposes to file aregistration statement or statements under the Act (together with any registrationstatement filed pursuant to a demand made under Section 4.2, “*Registration Statement*”) for thepublic sale of Common Stock for cash (other than in connection with a merger orpursuant to Form S-4, Form S-8 or comparable registration statement); it willgive written notice by registered mail, at least thirty (30) days prior to thefiling of each such registration statement, to each Party of its intention todo so.  If any Party (all such Partiescollectively with any Parties who have made a demand pursuant to Section 4.2 ifthe context so requires, the “*Registering Parties*”)notifies Holdings within ten (10) business days after delivery of any suchnotice of its desire to include any such Common Stock (including Common Stockunderlying Derivative Securities) (all such shares, “*PiggybackShares*”) in such proposed Registration Statement, Holdingsshall afford such Registering Party the opportunity to have any PiggybackShares owned by such Party registered under such Registration Statement;provided, however, that in the case of an underwritten offering, if themanaging underwriter notifies any Registering Party that the inclusion in theregistration statement of any portion of its Piggyback Shares would have anadverse effect on such underwritten offering, then the managing underwriter maylimit the number of Piggyback Shares to be included in such registrationstatement only to the extent necessary to avoid such adverse effect (an “*Underwriter’s Cutback*”).  Such limit will apply pro rata among the RegisteringParties based upon the number of Piggyback Shares such Parties have requestedto be so included (provided that if the Registration Statement is being filedpursuant 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’sCutback shall first be applied to such other Parties’ Securities); and in theevent securities of Holdings held by any person or entity other than Holdingsor the Parties (“*Third Party Securities*”)are to be included in such underwritten offering, and the managing underwritershall have determined to effectuate an Underwriter’s Cutback, then suchlimitation shall first be applied to the Third Party Securities, and then tothe Piggyback Shares.

 

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

##  

## 4.2         Demand Registration.

###  

### (a)           (i)                                     Commencingon the earlier of (A) six (6) months following the effective date of an InitialPublic Offering and (B) the third anniversary of the date hereof, and expiringfive (5) years thereafter and provided that such Securities shall not at thattime be eligible for

 

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sale pursuant to Rule144(k) under the Act, the holders of Whitney Securities shall have thecollective right, on two (2) occasions (which right is in addition to theregistration rights under Section 4.1 hereof), exercisable by written notice toHoldings (the “*Demand Notice*”) given by theholders of a majority (the “*Demanding Holders*”)of the Whitney Securities then outstanding that have not been sold pursuant toa Registration Statement or pursuant to Rule 144(k) of the Commission withoutregard to limiting or qualifying of Securities to be sold and have had alltransfer restrictions contained thereon removed (the “*DemandSecurities*”), to have Holdings prepare and file with theSecurities and Exchange Commission (the “*Commission*”)a registration statement (“*DemandRegistration Statement*”) and such other documents, includinga prospectus, as may be necessary in the opinion of counsel for Holdings, andshall keep such registration statement effective and the disclosure in suchdocuments current, in order to comply with the provisions of the Act, so as topermit a public offering and sale of the Demand Securities by the holdersthereof for nine (9) consecutive months.

####  

#### (ii)                                  Aregistration requested pursuant to this Section 4.2 shall not be deemed to havebeen effected (and thereby the right to make a demand not used) (A) unlessa Registration Statement with respect thereto has become effective, providedthat a registration which does not become effective after Holdings has filed aRegistration Statement with respect thereto solely by reason of the refusal toproceed of the holders (other than a refusal to proceed based upon the adviceof counsel relating to a matter with respect to Holdings) shall be deemed tohave been effected by Holdings at the request of such holders unless theholders of Demand Securities shall have elected to pay all expenses referred toin Section 4.3(b) in connection with such registration, (B) if, after it hasbecome effective, such registration becomes subject to any stop order,injunction or other order or requirement of the Commission or othergovernmental agency or court for any reason and such order, injunction orrequirement is not promptly withdrawn or lifted, (C) the conditions to closingspecified in the purchase agreement or underwriting agreement entered into inconnection with such registration are not satisfied, other than by reason ofsome 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)  Theholders of Whitney Securities shall have the right, exercisable at any time andfrom time to time by written notice to Holdings of the holders of twenty-fivepercent (25%) of the Whitney Securities, to have Holdings prepare and file withthe Commission, if available, a registration on Form S-2, Form S-3, or anysimilar form if not available, for the sale of Securities held by such Parties.

###  

### (c)  Aregistration requested pursuant to this Section 4.2 may, if determined byHoldings to have the potential to have a material adverse effect on, orotherwise interfere with, any transaction or other business matter with whichHoldings is then involved or contemplates, at Holding’s option be deferred forno more than one hundred and eighty (180) days from the date of delivery of theDemand Notice.

###  

### (d)  Holdingsshall have the right, at its option, following receipt of the Demand Noticerequiring the filing of a Registration Statement that would result in the firstpublic offering of equity securities of Holdings under the Act, in lieu offiling a Registration Statement referred to in such demand, to undertake thefiling of a Registration Statement under the Act with the Commission for the saleby Holdings of securities of Holdings, in which case the Parties

 

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

###  

### (e)  InHoldings’ discretion, it may include a sale of shares or shares owned by othersor an issuance of shares by Holdings in a registration pursuant to this Section4.2.  In the event of an Underwriter’sCutback in connection with a registration pursuant to this Section 4.2, suchUnderwriter’s Cutback shall first be applied in respect of such shares owned byothers, then in respect of the shares to be included by Holdings, pursuant tothis Section 4.2(e) and lastly in respect of the Demand Securities.

##  

## 4.3         Covenants With Respect toRegistration.

 

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

###  

### (a)  Holdingsshall prepare and use commercially reasonable efforts to, not later than sixty(60) days after (or if the sixtieth (60th) day is not a businessday, the first business day thereafter) of delivery of any demand therefor, tocause such Demand Registration Statement to become effective under the Actwithin 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 demandtherefor and shall keep the Demand Registration Statement effective for notless than nine months after the date on which notice of the effectiveness thereofis received (such period being called the “*DemandRegistration Period*”), and shall furnish holders of DemandSecurities such number of prospectuses as shall reasonably be requested.

###  

### (b)  Holdingsshall pay all costs (including fees and expenses of one counsel to theRegistering Parties, selected in accordance with Section 4.5 below, ifapplicable, but excluding any underwriting or selling commissions or discountsor other charges of any broker-dealer acting on behalf of any holder of DemandSecurities), fees and expenses in connection with all registration statementsfiled pursuant to Sections 4.1 and 4.2 hereof and offers and sales pursuantthereto including, without limitation, Holdings’ legal and accounting fees,printing expenses, blue sky fees and expenses, registration fees, filing feesand listing fees.

###  

### (c)  Inconnection with any registration contemplated by Section 4.1 or 4.2 hereof, thefollowing provisions shall apply:

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

####  

#### (ii)                                  Holdingsshall promptly give written notice to each Registering Party:

 

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

#####  

##### (B) of any request by theCommission or other governmental authority for amendments or supplements to theRegistration Statement or the prospectus included therein or for additionalinformation;

#####  

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

#####  

##### (D)  of the receipt by Holdings orits legal counsel of any notification with respect to the suspension of thequalification of the Piggyback Shares or Demand Securities (as applicable, the“*Registered Securities*”) for salein any jurisdiction or the initiation or threatening of any proceeding for suchpurpose; and

#####  

##### (E)    of the happening of any eventthat requires Holdings to make changes in the Registration Statement or theprospectus in order that the Registration Statement or the prospectus does notcontain an untrue statement of a material fact nor omit to state a materialfact required to be stated therein or necessary to make the statements thereinnot misleading or of the commencement of any Suspension Period.

####  

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

####  

#### (iv)                              Holdingsshall furnish to each Registering Party, without charge, at least one copy ofthe Registration Statement and any post-effective amendment thereto, includingfinancial statements and schedules, and, if the Registering Party so requestsin writing, all exhibits thereto (including those, if any, incorporated byreference).

####  

#### (v)                                 Holdingsshall deliver to each Registering Party, without charge, as many copies of theprospectus (including each preliminary prospectus) included in the RegistrationStatement and any amendment or supplement thereto as such person may reasonablyrequest.  Holdings consents, subject tothe provisions of this Agreement, to the use of the prospectus or any amendmentor supplement thereto included in the Registration Statement by each of the RegisteringParties in connection with the offering and sale of the Registered Securitiescovered by such prospectus or any such amendment or supplement.

####  

#### (vi)                              Priorto any public offering of the Registered Securities, pursuant to anyRegistration Statement, Holdings shall register or qualify or cooperate withthe Registering Parties and their respective counsel in connection with theregistration or qualification of the Registered Securities covered thereby foroffer and sale under the securities or “blue sky” laws of such states of theUnited States as any Registering Party reasonably requests in writing and doany and all other acts or things necessary or advisable to enable the offer andsale in such jurisdictions of the Registered Securities covered by suchRegistration

 

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

####  

#### (vii)                           Holdings shall cooperatewith the Registering Parties to facilitate the timely preparation and deliveryof certificates representing the Registered Securities to be sold pursuant toany Registration Statement free of any restrictive legends and in suchdenominations and registered in such names as the Registering Parties mayrequest (including being eligible for deposit with The Depository TrustCompany) a reasonable period of time prior to sales of the RegisteredSecurities pursuant to such Registration Statement.

####  

#### (viii)                        Upon the occurrence of anyevent contemplated by paragraphs (B) through (E) of Section 4.3(c)(ii) aboveduring the period for which Holdings is required to maintain an effectiveRegistration Statement, Holdings shall promptly prepare and file apost-effective amendment to the Registration Statement or a supplement to therelated prospectus and any other required document so that, as thereafterdelivered to the Registering Parties or purchasers of Registered Securitiescovered by such Registration Statement, the prospectus will not contain anuntrue statement of a material fact or omit to state any material fact requiredto be stated therein or necessary to make the statements therein, in light ofthe circumstances under which they were made, not misleading.  If Holdings notifies the Registering Partiesin accordance with paragraphs (B) through (E) of Section 4.3(c)(ii) above tosuspend the use of the prospectus until the requisite changes to the prospectushave been made, then the Registering Parties shall suspend use of suchprospectus, and the period of effectiveness of the Registration Statementprovided for in Section 4.2(a) above shall each be extended by the number ofdays from and including the date of the giving of such notice to and includingthe date when the Registering Parties shall have received such amended orsupplemented prospectus pursuant to this paragraph.

####  

#### (ix)                                Notlater than the effective date of the applicable Registration Statement,Holdings will obtain one CUSIP number for all of the Registered Securitiescovered by such Registration Statement.

####  

#### (x)                                   Holdingsmay require each Registering Party to furnish to Holdings such informationregarding the Registering Party and the distribution of the RegisteredSecurities as Holdings may from time to time reasonably require for inclusionin the Registration Statement, and Holdings may exclude from such registrationthe Registered Securities of any Registering Party that fails to furnish suchinformation within a reasonable time after receiving such request.

####  

#### (xi)                                Inthe case of any Demand Registration Statement, Holdings shall (A) makereasonably available for inspection by the Registering Parties, any underwriterparticipating in any disposition pursuant to the Demand Registration Statementand any attorney, accountant or other agent retained by the Registering Partiesor any such underwriter all relevant financial and other records, pertinentcorporate 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 requestedby the

 

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Registering Parties or any such underwriter, attorney, accountant oragent in connection with the Demand Registration Statement, in each case asshall be reasonably necessary, in the judgment of the Registering Parties orany such underwriter, attorney, accountant or agent referred to in thisparagraph, to conduct a reasonable investigation within the meaning of Section11 of the Act; provided, however, that the foregoing inspection and informationgathering shall be coordinated on behalf of the Registering Parties by onecounsel designated by and on behalf of all Registering Parties, selected inaccordance with Section 4.5 below, if applicable, and one counsel designated byand on behalf of the underwriters.

####  

#### (xii)                             In the case of any DemandRegistration Statement, Holdings, if requested by holders of a majority of theDemand Securities, shall cause (A) its counsel to deliver an opinion andupdates thereof relating to the Demand Securities to be registered in customaryform addressed to holders of the Demand Securities and the managingunderwriters, if any, thereof and dated, in the case of the initial opinion,the effective date of such Demand Registration Statement; (B) its officers toexecute and deliver all customary documents and certificates and updatesthereof reasonably requested by any underwriters of the applicable DemandSecurities and (including, without limitation, an underwriting agreement inform and substance as is customary in underwritten public offerings), and(C) its independent public accountants and the independent publicaccountants with respect to any business acquired, to the extent financialinformation with respect thereto is included or incorporated by reference inthe Demand Registration Statement to provide to the holders of the DemandSecurities and any underwriter therefor a comfort letter in customary form andcovering matters of the type customarily covered in comfort letters inconnection with primary underwritten offerings, subject to receipt ofappropriate documentation as contemplated, and only if permitted, by Statementof Auditing Standards No. 72.

####  

#### (xiii)                          Holdings shall comply withall applicable rules and regulations of the Commission and make generally availableto its security holders earnings statements satisfying the provisions ofSection 11(a) of the Act and Rule 158 thereunder (or any similar rulepromulgated under the Act) no later than forty-five (45) days after the end ofany 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 suchextended period of time as may be permitted by the Commission for filing theapplicable report with the Commission) (A) commencing at the end of any fiscalquarter in which Demand Securities are sold to underwriters in a firmcommitment or best efforts underwritten offering and (B) if not sold tounderwriters in such an offering, commencing on the first day of the firstfiscal quarter of Holdings after the effective date of a RegistrationStatement, which statements shall cover said twelve (12) month period.

####  

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

####  

#### (xv)                            Holdingsshall use commercially reasonable best efforts to take all other steps necessaryto effect the registration of the Registered Securities covered by aRegistration Statement contemplated hereby.

 

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### (d)  Holdingsagrees 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 SecuritiesExchange Act of 1934, as amended (the “*Exchange Act*”),and the officers, directors, partners and fiduciaries of each such controllingperson (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 theRegistered Securities) to which each Indemnified Party may become subject underthe Act, the Exchange Act or otherwise, insofar as such losses, claims,damages, liabilities or actions arise out of or are based upon any untruestatement or alleged untrue statement of a material fact contained in aRegistration Statement or prospectus or in any amendment or supplement theretoor in any preliminary prospectus relating to a Registration Statement, or ariseout of, or are based upon, the omission or alleged omission to state therein amaterial fact required to be stated therein or necessary to make the statementstherein not misleading, and shall reimburse, as incurred, each Indemnified Partyfor any legal or other expenses reasonably incurred by it in connection withinvestigating or defending any such loss, claim, damage, liability or action inrespect thereof; provided, however, that (i) Holdings shall not be liablein any such case to the extent that such loss, claim, damage, liability oraction arises out of or is based upon any untrue statement or alleged untruestatement or omission or alleged omission made in a Registration Statement orprospectus or in any amendment or supplement thereto or in any preliminaryprospectus relating to a Registration Statement in reliance upon and inconformity with written information pertaining to such Registering Party andfurnished to Holdings by or on behalf of such Registering Party specifically forinclusion therein; (ii) with respect to any untrue statement or omission oralleged untrue statement or omission made in any prospectus relating to aRegistration Statement, the indemnity agreement contained in this subsection(d) shall not inure to the benefit of any Registering Party from whom theperson asserting any such losses, claims, damages or liabilities purchased theRegistered Securities concerned, to the extent that a prospectus relating tosuch Registered Securities was required to be delivered by such RegisteringParty 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 therewas not sent or given to such person, at or prior to the written confirmationof the sale of such Registered Securities to such person, a copy of the finalprospectus, as amended or supplemented, if Holdings had previously furnishedcopies thereof to such Registering Party and (iii) the foregoing indemnityagreement with respect to any preliminary prospectus shall not inure to thebenefit of any underwriter or Registering Party from whom the person assertingany such loss, claim, damage or liability purchased the Registered Securitiesif a copy of the prospectus included in the applicable Registration Statement(as then amended or supplemented, if such amendment or supplement was furnishedby Holdings) was not sent or given by or on behalf of any underwriter orRegistering Party to such person, if such is required by law, at or prior tothe written confirmation of the sale of such Registered Securities to suchperson and if the prospectus (as so amended or supplemented) would have curedthe defect giving rise to such loss, claim, damage or liability; providedfurther, however, that this indemnity agreement will be in addition to anyliability which Holdings may otherwise have to such Indemnified Party.  Holdings shall also indemnify underwriters,selling brokers, dealer managers and similar securities industry professionalsparticipating in the distribution (in each case as described in a RegistrationStatement), their officers and directors and each person who controls suchpersons within the

 

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meaning of the Act or the Exchange Act to the same extent as providedabove with respect to the indemnification of the Registering Parties ifrequested by such holders.

###  

### (e)  EachRegistering Party, severally and not jointly, will indemnify and hold harmlessHoldings and each person, if any, who controls Holdings within the meaning ofthe Act or the Exchange Act from and against any losses, claims, damages,liabilities or actions in respect thereof to which Holdings or any suchcontrolling person may become subject under the Act, the Exchange Act orotherwise, insofar as such losses, claims, damages, liabilities or actionsarise out of or are based upon any untrue statement or alleged untrue statementof a material fact contained in a Registration Statement or prospectus or inany amendment or supplement thereto or in any preliminary prospectus relatingto a Registration, or arise out of or are based upon the omission or allegedomission to state therein a material fact necessary to make the statementstherein not misleading (in the case of the prospectus or preliminaryprospectus, in light of the circumstances under which they were made), but ineach case only to the extent that the untrue statement or alleged untruestatement or omission or alleged omission was made in reliance upon and in conformitywith written information pertaining to such Registering Party and furnished toHoldings by or on behalf of such Registering Party specifically for inclusiontherein; and, subject to the limitation set forth immediately preceding thisclause, shall reimburse, as incurred, Holdings for any legal or other expensesreasonably incurred by Holdings or any such controlling person in connectionwith investigating or defending any loss, claim, damage, liability or action inrespect thereof.  This indemnity agreementwill be in addition to any liability which such Registering Party may otherwisehave to Holdings or any of its controlling persons.

###  

### (f)  Promptlyafter receipt by an Indemnified Party under Section 4.3(d) or (e) of notice ofthe commencement of any action or proceeding (including a governmentalinvestigation), such Indemnified Party will, if a claim in respect thereof isto be made against any person (the “*IndemnifyingParty*”) under Section 4.3(d) or (e), notify the IndemnifyingParty of the commencement thereof; but the omission so to notify theIndemnifying Party will not, in any event, relieve the Indemnifying Party fromany obligations to any Indemnified Party other than the indemnificationobligation provided in Section 4.3(d) or (e) above unless and to the extentthat the Indemnifying Party has been prejudiced in any material respect by suchfailure.  In case any such action isbrought against any Indemnified Party, and it notifies the Indemnifying Party ofthe commencement thereof, the Indemnifying Party will be entitled toparticipate therein and, to the extent that it may wish, jointly with any otherIndemnifying Party similarly notified, to assume the defense thereof, withcounsel reasonably satisfactory to such Indemnified Party (who shall not,except with the consent of the Indemnified Party, be counsel to theIndemnifying Party), and after notice from the Indemnifying Party to suchIndemnified Party of its election so to assume the defense thereof theIndemnifying Party will not be liable to such Indemnified Party under Section4.3(d) or (e) for any legal or other expenses, other than reasonable costs ofinvestigation, subsequently incurred by such Indemnified Party in connectionwith the defense thereof. Notwithstanding the foregoing, an Indemnified Party shall have the rightto employ separate counsel in any such proceeding and to participate in thedefense thereof, but the fees and expenses of such counsel shall be at theexpense of such Indemnified Party or parties unless (i) the IndemnifyingParty has agreed to pay such fees and expenses; (ii) the Indemnifying Partyshall have failed promptly after notice to assume the defense of suchproceeding or shall have failed to employ counsel reasonably satisfactory tosuch Indemnified Party; or (iii) the named parties to any such proceeding(including any impleaded parties) include both such Indemnified

 

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Party and the Indemnifying Party or any of its affiliates orcontrolling persons, and such Indemnified Party shall have been advised inwriting by counsel that either (A) a conflict of interest may exist if suchcounsel represents such Indemnified Party and the Indemnifying Party (or suchaffiliate or controlling person) or (B) there may be one or more legal defensesavailable to such Indemnified Party that are different from or in addition tothose available to the Indemnifying Party or such affiliate or controllingperson (in which case, if such Indemnified Party notifies the Indemnifying Partiesin writing that it elects to employ separate counsel at the expense of theIndemnifying Parties, the Indemnifying Parties shall not have the right toassume the defense thereof and the fees and expenses of such counsel shall beat the expense of the Indemnifying Party; it being understood, however, thatthe Indemnifying Party shall not, in connection with any one such proceeding orseparate but substantially similar or related proceedings in the samejurisdiction, arising out of the same general allegations or circumstances, beliable for the fees and expenses of more than one separate firm of attorneys(together with appropriate local counsel) at any time for all such IndemnifyingParties.  No Indemnifying Party shall beliable for any settlement of any such proceeding effected without its writtenconsent, but if settled with its written consent, or if there be a finalunappealable judgment for the plaintiff in any such proceeding, eachIndemnifying Party jointly and severally agrees, subject to the exceptions andlimitations set forth above, to indemnify and hold harmless each indemnifiedparty from and against any and all losses, claims, damages or liabilities byreason of such settlement or judgment. No Indemnifying Party shall, without the prior written consent of theIndemnified Party, effect any settlement of any pending or threatened action inrespect of which any Indemnified Party is or could have been a party sandindemnity could have been sought hereunder by such Indemnified Party unlesssuch settlement includes an unconditional release of such Indemnified Partyfrom all liability on any claims that are the subject matter of such action.

###  

### (g)  If theindemnification provided for in Section 4.3(d) or (e) is unavailable orinsufficient to hold harmless an Indemnified Party thereunder, then eachIndemnifying Party shall contribute to the amount paid or payable by suchIndemnified Party as a result of the losses, claims, damages, liabilities oractions in respect thereof referred to in Sections 4.3(d) and (e) above in suchproportion as is appropriate to reflect the relative fault of the IndemnifyingParty or Parties on the one hand and the Indemnified Party on the other inconnection with the statements or omissions that resulted in such losses, claims,damages or liabilities (or actions in respect thereof) as well as any otherrelevant equitable considerations.  Therelative fault of the parties shall be determined by reference to, among otherthings, whether the untrue or alleged untrue statement of a material fact orthe omission or alleged omission to state a material fact relates toinformation supplied by Holdings, on the one hand, or such Registering Party orsuch other indemnified person, as the case may be, on the other, and theparties’ relative intent, knowledge, access to information and opportunity tocorrect 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 ofthis subsection (g) shall be deemed to include any legal or other expensesreasonably incurred by such Indemnified Party in connection with investigatingor 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 excessof the amount by which the net proceeds received by such holders from the saleof Registered Securities pursuant to a Registration Statement exceeds theamount of damages which such holders have otherwise been required to pay byreason of such untrue or alleged untrue statement or omission or alleged

 

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

###  

### (h)  Theagreements contained in Sections 4.3(d) through (g) shall survive the sale ofthe Registered Securities pursuant to a Registration Statement and shall remainin full force and effect, regardless of any termination or cancellation of thisAgreement 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” shallinclude any securities issued or issuable with respect to such securities byany of stock dividend or stock split or in connection with a combination ofshares, recapitalization, merger, consolidation or other reorganization orotherwise.

##  

## 4.5         Designation of Underwriters.

 

In connection with any underwritten public offering pursuant to aDemand Registration, the holders of a majority of Demand Securities shallselect the managing underwriter, counsel and co-manager if one is desired bythem (with the consent of Holdings, such consent not to be unreasonablywithheld).

# ** **

# **5.**          SPECIAL WHITNEYPRIVILEGES

##  

## 5.1         Whitney Board Designee.

 

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

###  

### (a)  theparties shall, at any annual meeting of stockholders of Holdings or any specialmeeting of stockholders of Holdings, or by written consent, vote their Sharesto set the size of the Board to seven (7) directors; provided, that if Whitneybecomes entitled to designate an additional member of the Board pursuant toSection 9.01(b) of the Third Stock Purchase Agreement (such designee, a “*Third Whitney Designee*”), thenpromptly thereafter, the Initial Parties shall take all action necessary toincrease the size of the Board to eight (8) directors, and thereafter, theparties shall, at any annual meeting of stockholders of Holdings or any specialmeeting of stockholders of Holdings, or by written consent, vote their Sharesto set the size of the Board to eight (8) directors.

###  

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

 

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

####  

#### (i)                                     two(2) members of the Board designated by Whitney V; provided, that if Whitneybecomes entitled to designate a Third Whitney Designee pursuant to Section9.01(b) of the Third Stock Purchase Agreement, Whitney shall be entitled todesignate 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 suchThird Whitney Designee, he or she, if not an employee of Whitney, shall bereasonably acceptable to Hartnett;

####  

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

####  

#### (iii)                               William Killian (“*Killian*”), or his successor determined in accordancewith Section 5.1(f).

###  

### (c)  on andafter January 1, 2007, the Parties shall, at any annual meeting of stockholdersof Holdings or any special meeting of stockholders of Holdings called for thepurpose of electing directors, or by written consent, vote their Shares for theelection of the following members of the Board:

####  

#### (i)                                     two(2) members of the Board designated by Whitney V; provided, that if Whitneybecomes entitled to designate a Third Whitney Designee pursuant to Section9.01(b) of the Third Stock Purchase Agreement, Whitney shall be entitled todesignate 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 suchThird Whitney Designee, he or she, if not an employee of Whitney, shall bereasonably acceptable to Hartnett;

####  

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

####  

#### (iii)                               one (1) other personmutually agreeable to Hartnett and Whitney V (the “*IndependentDirector*”); and

####  

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

###  

### (d)  the Boardshall not act through any committee or similar body unless the directorsdesignated by Whitney V pursuant to Section 5.1(b)(i) or 5.1(c)(i) above (asthe case may be, the “*Whitney Designees*”)and the directors designated by holders of a majority of the HartnettSecurities pursuant to Section 5.1(b)(ii) or 5.1(c)(ii) above (as the case maybe, the “*Hartnett Designees*” and togetherwith the Whitney Designees, the “*Designees*”) havebeen provided the continuing opportunity to join as a member thereof.

###  

### (e)  Whitneyand the holders of a majority of the Hartnett Securities, respectively, mayremove from the Board the Whitney Designee or Hartnett Designee, as applicable,in its or their sole discretion and without providing notice to the otherParties.  Upon the resignation or removalof any Whitney Designee or Hartnett Designee, the other Parties shall votetheir Shares

 

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for such replacement director as shall be designated by Whitney or theholders of a majority of the Hartnett Securities, as applicable (in the case ofa Third Whitney Designee who is not an employee of Whitney, subject toHartnett’s reasonable approval).  NoWhitney Designee or Hartnett Designee, respectively, may be removed from theBoard without the vote or consent of a majority of the holders of the WhitneySecurities or the Hartnett Securities, as applicable, absent fraud or willfulmisconduct by such individual.

###  

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

###  

### (g)  In noevent shall Board meetings or any meetings of a committee of the Board(collectively, “*Board Meetings*”) be convenedwithout affording the Designees with two (2) business days’ written notice toattend such a meeting.  The Designeesshall be provided with all information and materials provided to the otherdirectors for such a meeting.  All BoardMeetings shall either be held at locations reasonably convenient to the Designeesor, in the alternative, the Designees shall be permitted to participate in suchBoard Meeting telephonically.

###  

### (h)  Theparties hereto shall take all action within their power (including in the caseof Holdings, voting the capital stock of RBCA) to provide that the compositionof the board of directors of RBCA be identical to that of the Board andHoldings shall afford Whitney the opportunity to designate one (1) member ofthe governing bodies of all other entities over which Holdings has Control.  The parties’ rights with respect to designeeson the board of directors of RBCA shall be identical to the rights of suchparties with respect to the Board. Whitney’s designee on such other governing bodies shall be entitled toall rights in respect of its membership in the governing body of any suchentity 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 toSections 5.1(b)(i) and 5.1(c)(i) above at any time that (x) the Minimum WhitneyCommon Ownership equals or is less than 20% or (y) the Minimum WhitneyPreferred Ownership equals or is less than 20%; (B) the provisions of Section5.1(c)(iii) shall not apply (and instead a majority of the Hartnett Securitiesshall have the right to designate four (4) members of the Board pursuant toSection 5.1(c)) at any time that the Minimum Whitney Preferred Ownership equalsor is less than 20%; and (C) Whitney shall forfeit its right to appoint anymember of the Board pursuant to Sections 5.1(b)(i) and 5.1(c)(i) above and itsright to participate in the designation under Section 5.1(c)(iii) above, uponthe 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 MinimumWhitney Common Ownership exceeds twenty percent (20%), Holdings shall not take,and shall cause its subsidiaries not to take, any of the following actionswithout the prior written consent of Whitney:

 

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### (a)  Anyredemption or other repurchase of equity securities by Holdings consisting ofmore than ten percent (10%) in the aggregate of the Outstanding Common Shareson the date hereof; provided, however, that any redemption or other repurchaseof Securities held by Hartnett or his Permitted Transferees may not be effectedwithout the prior written consent of Whitney, provided further, however, thatby execution of this Agreement, Whitney hereby consents to the exercise byHoldings from time to time of the Call Option.

###  

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

###  

### (c)  Anyacquisition or series of related acquisitions by Holdings or any of itssubsidiaries, by way of merger, consolidation, stock purchase, asset purchaseor otherwise, of any Person in which Holdings or any of its Subsidiaries willpay consideration of $30,000,000 or more in the aggregate.

###  

### (d)  Theentering into any agreement, transaction or arrangement between Holdings or anyof its subsidiaries, on the one hand, and Hartnett or any holder of more thanfive percent (5%) of the Outstanding Common Shares, on the other hand, otherthan the Hartnett Employment Agreement, the Management Services Agreement, anygrant of options or warrants to Hartnett permitted pursuant to subsection (f)below or the issuance of any shares of Common Stock or Preferred Stock toWhitney pursuant to the Holdings Certificate of Incorporation, the Third StockPurchase Agreement, the New Stock Purchase Agreement or the Old Stock PurchaseAgreement, provided, however, that by execution of this Agreement, Whitneyhereby consents to the exercise by Holdings from time to time of the CallOption.

###  

### (e)  Changes inthe general lines of business from those currently conducted by Holdings andits subsidiaries.

###  

### (f)  Any grantof options or warrants granted from and after the date hereof pursuant tomanagement option plans heretofore or hereafter approved by the Board topurchase Common Stock which, when taken together with all other options andwarrants 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 havinga similar effect); provided, however, that any grant of options or warrants toHartnett following the date hereof which, when taken together with all otheroptions and warrants granted to Hartnett pursuant to this subsection (f), wouldbe in excess of 242,669 shares (subject to adjustment to reflect any stocksplit, stock dividend, reclassification, recapitalization or other transactionhaving a similar effect) shall require prior written consent of Whitney.

###  

### (g)  Anyissuance of Common Stock by Holdings at a price per share below the fair marketvalue of such shares as determined in good faith by the Board.  If the holders of a majority of the WhitneySecurities disagree with such Board determination, the disagreement regardingthe fairness of the issuance price shall be resolved by binding arbitration.  In the event

 

33

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of a dispute, the holders of a majority of the Whitney Securities maynotify Holdings in writing of its request for such arbitration and its choiceof an arbitrator.  Within thirty (30) daysfollowing its receipt of such a request, Holdings shall notify the holders of amajority of the Whitney Securities of its choice of an arbitrator.  The arbitrators so chosen shall meet withinthirty (30) days thereafter and select a third arbitrator and commence thearbitration in accordance with rules agreed by the parties.  If the parties are unable to agree on suchrules, the arbitrators shall establish them by a majority vote.  The holders of the Whitney Securities andHoldings shall bear their own costs and expenses, and the fees and expenses ofthe arbitrators shall be divided equally between the parties, unlessarbitrators rule by a majority vote that a party has not acted in good faithwith regard to the institution, conduct and/or the subject of thearbitration.  In the event of such aruling, 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 arbitrationcosts and expenses, in the discretion of the arbitrators.  By execution of this Agreement, Whitneyagrees that the issuance and sale of Class A Preferred Stock pursuant to theThird Stock Purchase Agreement is for fair market value and agrees not tochallenge such determination by the Board.

###  

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

##  

## 5.3         Whitney’s Right to Information.

###  

### (a)  Prior toan Initial Public Offering, and so long as the Minimum Whitney Common Ownershipexceeds twenty percent (20%), Holdings shall provide to Whitney or the WhitneyDesignee (i) monthly, quarterly and annual financial statements, but only tothe extent, and in such form, as are normally prepared by Holdings and/or RollerBearing Company of America, Inc., (ii) copies of all significant reportssubmitted to Holding’s certified public accountants in connection with eachannual, interim or special audit or review of any type of the financialstatements or related internal control systems of Holdings and its subsidiariesmade by such accountants, including any comment letter submitted by suchaccountants, including any comment letter submitted to such accountants tomanagement in connection with their services, (iii) for so long as Holdings issubject to the reporting requirements of Section 13(a) or 15(d) of the ExchangeAct, all information and reports required to be delivered by Holdings under thereporting requirements of Section 13(a) or 15(d) of the Exchange Act when andas delivered to the Commission or the securities holders of Holdings, (iv) allpress releases and other statements made available by Holdings or any of itssubsidiaries to the public concerning material developments in the business ofHoldings or its subsidiaries, (v) not less than fifteen (15) days prior tocreating a new subsidiary or acquiring the stock of, or other equity interestsin a Person, such that such Person will become a subsidiary, written notice ofthe intention of Holdings or any of its subsidiaries to create such asubsidiary or acquire such stock or equity interests, and (vi) such otherinformation and data with respect to Holdings or any of its subsidiaries asfrom time to time may be reasonably required by the holders of the Whitney Securities.  The delivery of such financial statementsshall not be deemed to constitute a representation by Holdings respecting theaccuracy of the information contained therein.

 

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### (b)  Holdingsshall permit, and will cause each of its subsidiaries to permit,representatives of Whitney or its Permitted Transferees to visit and inspectany of their properties, to examine their corporate, financial and operatingrecords and make copies thereof or abstracts therefrom, and to discuss theiraffairs, finances and accounts with their respective directors, officers andindependent public accountants, all at such reasonable times during normalbusiness hours and as often as may be reasonably requested, upon reasonableadvance notice.

# ** **

# **6.**          AFFIRMATIVECOVENANTS

 

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

##  

## 6.1         Preservation of Corporate Existence.

 

Holdings shall, and shall cause each of itssubsidiaries to:

###  

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

###  

### (b)  file orcause to be filed in a timely manner all material reports, applications andlicenses that shall be necessary for the conduct of its business.

##  

## 6.2         Payment of Obligations.

 

Holdings shall, and shall cause each of itssubsidiaries to, pay and discharge, within a reasonable time from the time thatsuch payment or liability shall become due and payable, (and the expiration ofany grace period related thereto) all their respective material obligations andliabilities known to Holdings, including without limitation:

###  

### (a)  all knowntax liabilities, assessments and governmental charges or levies upon it or itsproperties or assets, unless the same are being contested in good faith byappropriate proceedings and adequate reserves in accordance with generallyaccepted accounting principles (“*GAAP*”) are beingmaintained by Holdings or such subsidiary; and

###  

### (b)  all knownlawful 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 itsproperty, unless the same are being contested in good faith by appropriateproceedings and adequate reserves in accordance with GAAP are being maintainedby Holdings or such subsidiary.

##  

## 6.3         Compliance with Laws.

 

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

 

35

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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 causeto be maintained with financially sound and reputable insurers that have arating of “A” or better as established by Best’s Rating Guide (or an equivalentrating with such other publication of a similar nature as shall be in current use),public liability and property damage insurance with respect to their respectivebusinesses and properties against loss or damage of the kinds and in amountscustomarily carried or maintained by companies of established reputationengaged in similar businesses.

##  

## 6.5         Booksand Records.

 

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

##  

## 6.6         Recourse.

 

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

# ** **

# **7.**          TERMINATION;AMENDMENT; WAIVER

##  

## 7.1         Termination; Amendment.

###  

### (a)  ThisAgreement may be terminated and the terms hereof amended at any time by theexecution of a written instrument signed by each of the Initial Parties or, asto any of them, a Person designated by any such Initial Party in accordancewith Section 2.6.

###  

### (b)  In theevent of the termination of this Agreement, this Agreement shall forthwithbecome void and have no effect, without any liability on the part of any partyhereto or any of their directors, officers, partners or stockholders.

##  

## 7.2         Waiver.

 

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

# ** **

# **8.**          MISCELLANEOUS

##  

## 8.1         Notices.

 

Anynotice, request, instruction, or other communication to be given hereunder byany party to another shall be in writing and shall be deemed to have given ifdelivered by hand or

 

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sent by telecopier (transmission confirmed), certified or registeredmail (return receipt requested), postage prepaid, or by overnight expressservice, addressed to the respective party or parties at the followingaddresses:

 
|   | 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 |

 

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|   | 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 theothers by like notice as set forth above. Any notice given hereunder shall be deemed given and received on thedate of hand delivery or transmission by telecopier, or three days aftermailing by certified or registered mail or one day after delivery to anovernight express service for next day delivery, as the case may be.

##  

## 8.2         EntireAgreement.

 

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

##  

## 8.3         Captions.

 

The captions of the various Articles and Sections ofthis Agreement have been inserted only for convenience of reference and shallnot be deemed to modify, explain, enlarge or restrict any provision of thisAgreement or affect the construction hereof.

##  

## 8.4         No Third Party Beneficiary.

 

Nothing expressed or implied in this Agreement isintended, or shall be construed, to confer upon or give any person other thanthe parties hereto and their respective heirs, personal representatives, legalrepresentatives, and successors, any rights or remedies under or by reason ofthis Agreement.

##  

## 8.5         Remedies Cumulative.

 

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

##  

## 8.6         Governing Law; Submission toJurisdiction.

###  

### (a)  **THIS AGREEMENT SHALL BE DEEMED TO BE ACONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSESSHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT GIVINGEFFECT TO THE RULES OF SAID STATE GOVERNING THE CONFLICTS OF LAWS.**

 

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### (b)  TheParties hereby agree that any action, proceeding or claim against it arisingout of, or relating in any way to, this Agreement may be brought and enforcedin the courts of the State of New York or of the United States of America forthe Southern District of New York, and irrevocably submits to such jurisdictionfor such purpose.  The Parties herebyirrevocably waive any objection to such exclusive jurisdiction or inconvenientforum.  Any such process or summons tobe served upon any of the Parties (at the option of the party bringing suchaction, proceeding or claim) may be served by transmitting a copy thereof, byregistered 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 personalservice and shall be legal and binding upon the Party so served in any action,proceeding or claim.  Except withrespect to disputes to be resolved in accordance with Section 5.2(g), nothingherein shall affect the right of any party hereto to serve process in any othermanner permitted by law or to commence legal proceedings or otherwise proceed againstany other party in any other jurisdiction.

##  

## 8.7         Assignment.

 

Except as otherwise setforth in this Agreement, neither this Agreement nor any of the rights,interests or obligations hereunder shall be assigned by any of the Partieshereto (whether by operation of law or otherwise) without the prior writtenconsent of the other parties.  Subjectto the preceding sentence, this Agreement will be binding upon, inure to thebenefit of and be enforceable by the parties and their respective successorsand assigns.

##  

## 8.8         No Inconsistent Agreements.

 

Holdings will not, on or after the date of thisAgreement, enter into any agreement or grant any rights to any Person thatconflicts with the provisions hereof.

##  

## 8.9         Counterparts.

 

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

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amended andRestated 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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