THE WORD
"INCLUDING" IN THIS AGREEMENT SHALL BE BY WAY OF EXAMPLE RATHER THAN BY
LIMITATION. REFERENCE TO ANY AGREEMENT, DOCUMENT, OR INSTRUMENT MEANS SUCH
AGREEMENT, DOCUMENT, OR INSTRUMENT AS AMENDED OR OTHERWISE MODIFIED FROM TIME TO
TIME IN ACCORDANCE WITH THE TERMS THEREOF, AND, IF APPLICABLE, HEREOF. WHEREVER
REQUIRED BY THE CONTEXT, REFERENCES TO A FISCAL YEAR SHALL REFER TO A PORTION
THEREOF. THE USE OF THE WORDS "OR," "EITHER," AND "ANY" SHALL NOT BE EXCLUSIVE.
WHEREVER A CONFLICT EXISTS BETWEEN THIS AGREEMENT AND ANY OTHER AGREEMENT, THIS
AGREEMENT SHALL CONTROL BUT SOLELY TO THE EXTENT OF SUCH CONFLICT.
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31.
NO STRICT CONSTRUCTION. THE PARTIES HERETO
HAVE PARTICIPATED JOINTLY IN THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT. IN
THE EVENT AN AMBIGUITY OR QUESTION OF INTENT OR INTERPRETATION ARISES, THIS
AGREEMENT SHALL BE CONSTRUED AS IF DRAFTED JOINTLY BY THE PARTIES HERETO, AND NO
PRESUMPTION OR BURDEN OF PROOF SHALL ARISE FAVORING OR DISFAVORING ANY PARTY BY
VIRTUE OF THE AUTHORSHIP OF ANY OF THE PROVISIONS OF THIS AGREEMENT.
32.
ELECTRONIC DELIVERY. THIS AGREEMENT, THE
AGREEMENTS REFERRED TO HEREIN, AND EACH OTHER AGREEMENT OR INSTRUMENT ENTERED
INTO IN CONNECTION HEREWITH OR THEREWITH OR CONTEMPLATED HEREBY OR THEREBY, AND
ANY AMENDMENTS HERETO OR THERETO, TO THE EXTENT SIGNED AND DELIVERED BY MEANS OF
A PHOTOGRAPHIC, PHOTOSTATIC, FACSIMILE OR SIMILAR REPRODUCTION OF SUCH SIGNED
WRITING USING A FACSIMILE MACHINE OR ELECTRONIC MAIL SHALL BE TREATED IN ALL
MANNER AND RESPECTS AS AN ORIGINAL AGREEMENT OR INSTRUMENT AND SHALL BE
CONSIDERED TO HAVE THE SAME BINDING LEGAL EFFECT AS IF IT WERE THE ORIGINAL
SIGNED VERSION THEREOF DELIVERED IN PERSON. AT THE REQUEST OF ANY PARTY HERETO
OR TO ANY SUCH AGREEMENT OR INSTRUMENT, EACH OTHER PARTY HERETO OR THERETO SHALL
REEXECUTE ORIGINAL FORMS THEREOF AND DELIVER THEM TO ALL OTHER PARTIES. NO PARTY
HERETO OR TO ANY SUCH AGREEMENT OR INSTRUMENT SHALL RAISE THE USE OF A FACSIMILE
MACHINE OR ELECTRONIC MAIL TO DELIVER A SIGNATURE OR THE FACT THAT ANY SIGNATURE
OR AGREEMENT OR INSTRUMENT WAS TRANSMITTED OR COMMUNICATED THROUGH THE USE OF A
FACSIMILE MACHINE OR ELECTRONIC MAIL AS A DEFENSE TO THE FORMATION OR
ENFORCEABILITY OF A CONTRACT AND EACH SUCH PARTY FOREVER WAIVES ANY SUCH
DEFENSE.
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*
*
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30
IN WITNESS WHEREOF, the parties hereto have executed this Securityholders
Agreement on the day and year first above written.
VARIETAL DISTRIBUTION HOLDINGS, LLC
By:
Its:
MADISON DEARBORN CAPITAL PARTNERS
V-A, L.P.
By: Madison Dearborn Partners V-A&C, L.P.
Its: General Partner
By: Madison Dearborn Partners, LLC
Its: General Partner
By:
Its: Managing Director
MADISON DEARBORN CAPITAL PARTNERS
V-C, L.P.
By: Madison Dearborn Partners V-A&C, L.P.
Its: General Partner
By: Madison Dearborn Partners, LLC
Its: General Partner
By:
Its: Managing Director
[SIGNATURE PAGE TO SECURITYHOLDERS AGREEMENT]
MADISON DEARBORN CAPITAL PARTNERS V EXECUTIVE-A, L.P.
By: Madison Dearborn Partners V-A&C, L.P.
Its: General Partner
By: Madison Dearborn Partners, LLC
Its: General Partner
By:
Its: Managing Director
MDCP CO-INVESTORS (VARIETAL), L.P.
By: Madison Dearborn Partners V-A&C,