Stockholder Agreement [Series A Preferred Stock] - TWI Holdings Inc., Friedman Fleischer & Lowe and TA Associates Inc.
SERIES A PREFERRED STOCK
STOCKHOLDER AGREEMENT
----------- ---------
This SERIES A PREFERRED STOCK STOCKHOLDER AGREEMENT (this "Agreement"),
dated as of November 1, 2002, is among (a) TWI HOLDINGS, INC., a Delaware
corporation (the "Company"), (b) FRIEDMAN FLEISCHER & LOWE CAPITAL PARTNERS, LP,
a Delaware limited partnership ("FFL-1"), (c) FFL EXECUTIVE PARTNERS, LP, a
Delaware limited partnership ("FFL-2"), (d) TA IX, L.P., a Delaware limited
partnership ("TA-IX"), (e) TA/ATLANTIC AND PACIFIC IV, L.P., a Delaware limited
partnership ("TA/AP-IV"), (f) TA STRATEGIC PARTNERS FUND A L.P., a Delaware
limited partnership ("TA-A"), (g) TA STRATEGIC PARTNERS FUND B L.P., a Delaware
limited partnership ("TA-B"), (h) TA/ADVENT VIII L.P., a Delaware limited
partnership ("TA-ADV"), (i) TA INVESTORS LLC, a Delaware limited liability
company ("TA-I"), and (j) each other Person who becomes a party to this
Agreement by executing an Instrument of Accession ("Instrument of Accession") in
the form of Schedule 1 hereto.
WHEREAS, the Company and its stockholders have entered into a Stockholder
Agreement dated as of the date hereof (the "Stockholder Agreement") providing
for the relative rights of the stockholders of the Company with regard to the
transfer and issuance of the Company's securities, election of the Company's
Board of Directors and certain other matters concerning the Company's capital
stock; and
WHEREAS, the stockholders who are parties to this Agreement, who
collectively own a majority of the outstanding shares of Series A Preferred
Stock (as defined below), as well as a majority of the outstanding shares of
Class B-1 Common Stock (as defined below) on a fully-diluted basis, wish to set
forth their relative rights with regard to the election of the Company's Board
of Directors and certain other matters regarding governance of the Company;
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
Section 1. DEFINITIONS. For all purposes of this Agreement, the following
terms shall have the meanings set forth below:
Affiliate. Affiliate shall mean, with respect to any specified Person, any
other Person directly or indirectly controlling, controlled by or under direct
or indirect common control with such specified Person and shall include (a) any
Person who is a director or beneficial holder of at least 10% of the then
outstanding capital stock (or partnership interests or other shares of
beneficial interest) of such specified Person and Family Members of any such
specified Person, (b) any Person of which such specified Person or an Affiliate
(as defined in clause (a) above) of such specified Person directly or
indirectly, either beneficially owns at least 10% of the then outstanding
capital stock
<PAGE>
(or partnership interests or other shares of beneficial interest) or constitutes
at least a 10% equity participant, (c) any Person of which an Affiliate (as
defined in clause (a) above) of such specified Person is a partner, director or
executive officer, and (d) in the case of a specified Person who is an
individual, Family Members of such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under direct or indirect common control with"), as applied
to any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of that Person,
whether through the ownership of voting securities, by contract or otherwise.
Charter. Charter shall mean the Company's Certificate of Incorporation and
all amendments thereto.
Class A Common Stock. See definition of Common Stock.
Class B Common Stock. Class B Common Stock means, collectively, the Class
B-1 Common Stock and the Class B-2 Common Stock.
Class B-1 Common Stock. See definition of Common Stock.
Class B-2 Common Stock. See definition of Common Stock.
Common Stock. Common Stock shall mean (a) the Company's Class A Common
Stock, $.01 par value per share (the "Class A Common Stock"), (b) the Company's
Class B-1 Voting Common Stock, $.01 par value per share (the "Class B-1 Common
Stock"), (c) the Company's Class B-2 Non-Voting Common Stock, $.01 par value per
share (the "Class B-2 Common Stock"), and (d) any shares of any other class of
capital stock of the Company hereafter issued which are either (i) (A) not
preferred as to dividends or assets upon liquidation over any class of stock of
the Company, and (B) not subject to redemption pursuant to the terms thereof, or
(ii) issued to the holders of shares of Common Stock upon any reclassification
thereof.
Company. See preamble.
Contribution Agreement. Contribution Agreement shall mean the Contribution
Agreement dated as of October 4, 2002 among the Company, the FFL Investors, the
TA Investors and certain other investors.
Family Limited Liability Company. Family Limited Liability Company shall
mean, with respect to any individual, any limited liability company created for
the benefit of such individual and/or one or more of such individual's Related
Persons and controlled by such individual.
Family Limited Partnership. Family Limited Partnership shall mean, with
respect to any individual, any limited partnership created for the benefit of
such
2
<PAGE>
individual and/or one or more of such individual's Related Persons and
controlled by such individual.
Family Members. Family Members shall mean, with respect to any individual,
any Related Person, Family Trust, Family Limited Liability Company or Family
Limited Partnership of such individual.
Family Trust. Family Trust shall mean, with respect to any individual, any
trust created for the benefit of such individual and/or one or more of such
individual's Related Persons and controlled by such individual.
FFL. FFL shall mean Friedman Fleischer & Lowe, LLC.
FFL-1. See preamble.
FFL-2. See preamble.
FFL Investors. FFL Investors shall mean, collectively, FFL-1 and FFL-2.
FFL Securities. FFL Securities shall mean (a) the shares of Series A
Preferred Stock issued to any of the FFL Investors pursuant to the Contribution
Agreement, (b) all shares of Class B-1 Common Stock issued or issuable upon
conversion of such shares of Series A Preferred Stock, (c) all other shares of
the Company's capital stock purchased by or issued from time to time to any of
the FFL Investors, (d) all shares of the Company's capital stock issued or
issuable upon conversion of such shares, and (e) all shares of the Company's
capital stock issued with respect to such shares by way of stock dividend or
stock split or in connection with any merger, consolidation, recapitalization or
other reorganization affecting the Company's capital stock. FFL Securities will
continue to be FFL Securities in the hands of any holder and each transferee
thereof will succeed to the rights and obligations of a holder of FFL Securities
hereunder, provided that shares of FFL Securities will cease to be FFL
Securities when transferred (i) to the Company, (ii) to a TA Stockholder or
(iii) pursuant to a Public Sale.
FFL Stockholder. FFL Stockholder shall mean any of the FFL Investors for so
long as such Person holds FFL Securities and any other Person to whom FFL
Securities are transferred for so long as such Person holds any FFL Securities.
Instrument of Accession. See preamble.
Loan Documents. Loan Documents shall mean the Senior Credit Documents and
the Subordinated Loan Documents.
Majority FFL Holders. Majority FFL Holders shall mean the holder or holders
at the relevant time of determination of more than fifty percent (50%) of the
number of
3
<PAGE>
then issued and outstanding shares of Class B Common Stock included in
the FFL Securities (determined on a fully-diluted basis).
Majority TA Holders. Majority TA Holders shall mean the holder or holders
at the relevant time of determination of more than fifty percent (50%) of the
number of then issued and outstanding shares of Class B Common Stock included in
the TA Securities (determined on a fully-diluted basis).
Person. Person shall mean an individual, partnership, limited liability
company, corporation, association, trust, joint venture, unincorporated
organization, or any government, governmental department or agency or political
subdivision thereof.
Preferred Stock. Preferred Stock shall mean the Company's Series A
Preferred Stock, $.01 par value per share (the "Series A Preferred Stock"), and
any other series of Preferred Stock of the Company issued from time to time.
Public Sale. Public Sale shall mean any sale of Class B Common Stock to the
public pursuant to a public offering registered under the Securities Act or to
the public through a broker or market-maker pursuant to the provisions of Rule
144 (or any successor rule) adopted under the Securities Act.
Qualified Public Offering. Qualified Public Offering shall mean the
Company's underwritten public offering pursuant to an effective registration
statement under the Securities Act covering the offer and sale of shares of
Class B Common Stock in which not less than $25,000,000 of gross proceeds from
such public offering are received by the Company for the account of the Company.
Registration Rights Agreement. Registration Rights Agreement shall mean the
Registration Rights Agreement dated as of the date hereof among the Company and
its stockholders.
Related Persons. Related Persons shall mean, with respect to any
individual, such individual's parents, spouse, children and grandchildren.
Securities. Securities shall mean the FFL Securities and the TA Securities.
Securities Act. Securities Act shall mean the Securities Act of 1933, as
amended.
Senior Credit Documents. Senior Credit Documents shall mean the Amended and
Restated Credit Agreement dated as of the date hereof among the Company, certain
of its Subsidiaries, General Electric Capital Corporation, as Administrative
Agent and a lender, Nordea Bank Danmark A/S, as European Loan Agent and a
lender, and the other financial institutions party thereto, and the Loan
Documents, as defined in such Amended and Restated Credit Agreement, each as
amended, supplemented or
4
<PAGE>
otherwise modified, replaced, extended, renewed or refunded and in effect from
time to time.
Series A Preferred Stock. See definition of Preferred Stock.
Stockholder Agreement. See preamble.
Stockholders. Stockholders shall mean, collectively, the FFL Stockholders
and the TA Stockholders.
Stock Options. Stock Options shall mean any stock option agreements between
the Company and certain officers, employees and directors of the Company and its
Subsidiaries entered into from time to time, in each case as amended and in
effect from time to time.
Subordinated Loan Documents. Subordinated Loan Documents shall mean the
Senior Subordinated Loan Agreement among the Company, certain of its
Subsidiaries, Gleacher Mezzanine Fund I, L.P., Gleacher Mezzanine Fund II, L.P.,
TA Investors LLC and TA Subordinated Debt Fund, L.P., and the Credit Documents,
as defined in such Senior Subordinated Loan Agreement, each as amended,
supplemented or otherwise modified, replaced, extended, renewed or refunded and
in effect from time to time.
Subsidiary. Subsidiary shall mean any corporation, association, trust, or
other business entity, of which the designated parent shall at any time own or
control directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes) of the outstanding shares of capital stock (or
other shares of beneficial interest) which are (a) entitled ordinarily, in the
absence of contingencies, to vote for the election of a majority of such
business entity's directors (or Persons exercising similar functions), even
though the right so to vote has been suspended by the happening of such a
contingency, or (b) entitled at the time to vote for the election of a majority
of such business entity's directors (or Persons exercising similar functions),
whether or not the right so to vote exists by reason of the happening of a
contingency.
TA. TA shall mean TA Associates, Inc., a Delaware corporation.
TA-A. See preamble.
TA/AP-IV. See preamble.
TA-ADV. See preamble.
TA-B. See preamble.
TA-I. See preamble.
5
<PAGE>
TA Investors. TA Investors shall mean, collectively, TA IX, TA/AP IV,
TA-ADV, TA-A and TA-B.
TA-IX. See preamble.
TA Securities. TA Securities shall mean (a) the shares of Series A
Preferred Stock issued to any of the TA Investors pursuant to the Contribution
Agreement, (b) all shares of Class B-1 Common Stock issued or issuable upon
conversion of such shares of Series A Preferred Stock, (c) all other shares of
the Company's capital stock purchased by or issued from time to time to any of
the TA Investors, (d) all shares of the Company's capital stock issued or
issuable upon conversion of such shares, and (e) all shares of the Company's
capital stock issued with respect to such shares by way of stock dividend or
stock split or in connection with any merger, consolidation, recapitalization or
other reorganization affecting the Company's capital stock. TA Securities will
continue to be TA Securities in the hands of any holder and each transferee
thereof will succeed to the rights and obligations of a holder of TA Securities
hereunder, provided that shares of TA Securities will cease to be TA Securities
when transferred (i) to the Company, (ii) to an FFL Stockholder or (iii)
pursuant to a Public Sale.
TA Stockholder. TA Stockholder shall mean any of the TA Investors for so
long as such Person holds TA Securities and any other Person to whom TA
Securities are transferred for so long as such Person holds any TA Securities.
Transfer. See Section 2.1.
Voting Securities. Voting Securities shall mean the shares of Class A
Common Stock, Class B-1 Common Stock, Series A Preferred Stock and any other
class or series of capital stock of the Company entitled to vote generally upon
all matters presented for a vote of stockholders of the Company.
Section 2. RESTRICTIONS ON TRANSFER OF SECURITIES.
2.1. Transfer. No Stockholder may sell, assign, pledge or otherwise
transfer (a "Transfer") any interest in any Securities, either voluntarily or
involuntarily, by operation of law or otherwise, except in accordance with the
provisions of Section 2 of the Stockholder Agreement; provided, that in the
event that any transferee of Securities is required to execute an instrument of
accession to the Stockholder Agreement as a condition precedent to such Transfer
under the terms of the Stockholder Agreement, it shall be a condition precedent
to such Transfer that such transferee shall either be a party hereto or shall
have executed and delivered to the Company and each of the other parties hereto
an Instrument of Accession.
2.2. Additional Restriction on Transfer. In addition to the restrictions on
Transfer set forth in Section 2.1, (a) no FFL Investor may Transfer any FFL
Securities if, as a result of such Transfer, the FFL Investors would
collectively cease to own at
6
<PAGE>
least 51% of the shares of Class B Common Stock (determined on a fully-diluted
basis) included in the FFL Securities unless such FFL Investor has received the
prior written consent of the Majority TA Holders to such Transfer and (b) no TA
Investor may Transfer any TA Securities if, as a result of such Transfer, the TA
Investors would collectively cease to own at least 51% of the shares of Class B
Common Stock (determined on a fully-diluted basis) included in the TA Securities
unless such TA Investor has received the prior written consent of the Majority
FFL Holders to such Transfer; provided, that the restrictions on Transfer set
forth in this Section 2.2 shall not apply with respect to any Transfer that
constitutes a Public Sale.
2.3. Transfers of Securities in Breach of this Agreement. In the event of
any Transfer of Securities in breach of this Agreement, commencing immediately
upon the date of such attempted Transfer (a) such Transfer shall be void and of
no effect, (b) no dividend of any kind or any distribution pursuant to any
liquidation, redemption or otherwise shall be paid by the Company to the
transferring Stockholder or the purported transferee in respect of such
Securities (all such rights to payment by the transferring Stockholder and/or
the purported transferee being deemed waived), (c) the voting rights of such
Securities, if any, shall terminate, and (d) neither the transferring
Stockholder nor the purported transferee shall be entitled to exercise any
rights with respect to such Securities until such Transfer in breach of this
Agreement has been rescinded.
Section 3. BOARD OF DIRECTORS; CONSENT TO CERTAIN ACTIONS.
3.1. Board of Directors. (a) Subject to paragraphs (b) and (c) below, in
any and all elections of directors of the Company or any of its Subsidiaries
(whether at a meeting or by written consent in lieu of a meeting), each
Stockholder shall vote, or cause to be voted, or cause such Stockholder's
designees as directors to vote, all Voting Securities owned by such Stockholder
or over which such Stockholder has voting control so as to fix the number of
directors of the Company and each of its Subsidiaries at five, and to nominate
and elect such five directors of the Company and each of its Subsidiaries as
follows:
(i) Two individuals designated by the Majority TA Holders, one of
whom will serve as the Chairman of the Board of Directors of the Company;
(ii) Two individuals designated by the Majority FFL Holders; and
(iii) One individual determined in accordance with Section 4.1(a)(ii)
of the Stockholder Agreement.
In addition, the Company will take all actions required by law so that a quorum
for meetings of the board of directors of the Company and each of its
Subsidiaries will include at least one member thereof designated by the Majority
FFL Holders who is also an employee of FFL or one of its Affiliates, and at
least one member thereof designated by the Majority TA Holders who is also an
employee of TA or one of its
7
<PAGE>
Affiliates. Such actions, shall include, without limitation, making necessary or
appropriate amendments to the charter or bylaws of the Company or any Subsidiary
of the Company.
(b) If any vacancy shall occur in the Board of Directors of the Company or
any of its Subsidiaries as a result of death, disability, resignation or any
other termination of a director, the replacement for such vacating director
shall be designated by the Person or Persons who originally designated such
vacating director; provided, that in case of any such vacancy occurring as a
result of the death, disability, resignation or other termination of any
director designated pursuant to Section 3.1(a)(iii), the replacement for such
vacating director shall be determined in accordance with such Section
3.1(a)(iii). The Person or Persons entitled to designate a director or a
replacement for a director pursuant to this Section 3.1 shall be the only Person
or Persons entitled to cause the removal of such director, with or without
cause; provided, that the removal of any director designated pursuant to Section
3.1(a)(iii) may only be made in accordance with the terms of Section 4.1(b) of
the Stockholder Agreement. Each Stockholder hereby agrees to vote or cause to be
voted or cause such Stockholder's designees as directors to vote all Voting
Securities owned by such Stockholder or over which such Stockholder has voting
control so as to comply with this Section 3.1(b).
(c) Subject in each case to Section 3.2 below, the Board of Directors of
the Company or any of its Subsidiaries may at any time increase the number of
directors of the Company or such Subsidiary to a number greater than five. In
the event that the Board of Directors of the Company or any of its Subsidiaries
increases the number of directors of the Company or any of its Subsidiaries to a
number greater than five, any vacancies thereby created shall be filled in
accordance with Section 3.2 hereof.
(d) Each Stockholder shall take all such actions, and shall cause such
Stockholder's designees to take all such actions, so as to provide that any
committee of the Board of Directors of the Company or any of its Subsidiaries
shall include at least one member designated by the Majority FFL Holders and at
least one member designated by the Majority TA Holders.
(e) The board and committee designation and governance provisions set
forth in this Section 3.1 may be waived with respect to any Subsidiary of the
Company (including, without limitation, any Subsidiary of the Company organized
under the laws of a laws of any foreign jurisdiction) with the approval of (i)
the Board of Directors of the Company (subject to Section 3.2 hereof) or (ii)
the Majority FFL Holders and the Majority TA Holders.
3.2. Consent to Certain Actions. The Company hereby agrees that the Company
will not take, and will not permit any of its Subsidiaries to take, any of the
actions set forth on Schedule 2 attached hereto and incorporated by reference,
and each of the Stockholders hereby agrees that it shall not take, and shall not
vote any Voting
8
<PAGE>
Securities owned by it or over which it has voting control for or approve, or
cause any of the directors designated by it to vote for or approve, any of the
actions set forth on Schedule 2, unless such action has been approved by either
(a) the affirmative vote of (i) at least one of the directors designated by the
Majority FFL Holders who is also an employee of FFL or one of its Affiliates and
(ii) at least one of the directors designated by the Majority TA Holders who is
also an employee of TA or one of its Affiliates or (b) the Majority FFL Holders
and the Majority TA Holders. The Company will make any necessary or appropriate
amendments to the charter or bylaws of the Company or any Subsidiary of the
Company to reflect the provisions of this Section 3.2.
3.3. PROXY. EACH FFL STOCKHOLDER HEREBY GRANTS TO THE MAJORITY TA HOLDERS,
AND EACH TA STOCKHOLDER HEREBY GRANTS TO THE MAJORITY FFL HOLDERS, AN
IRREVOCABLE PROXY, COUPLED WITH AN INTEREST, TO VOTE ALL OF THE VOTING
SECURITIES OWNED BY SUCH STOCKHOLDER OR OVER WHICH SUCH STOCKHOLDER HAS VOTING
CONTROL TO THE EXTENT NECESSARY TO CARRY OUT THE PROVISIONS OF THIS SECTION 3 IN
THE EVENT OF ANY BREACH BY SUCH STOCKHOLDER OF ITS OBLIGATIONS UNDER THE VOTING
AGREEMENT CONTAINED HEREIN.
3.4. Action by Stockholders. Each Stockholder further agrees that such
Stockholder will not vote any Voting Securities owned by such Stockholder or
over which such Stockholder has voting control, or take any action by written
consent, or take any other action as a stockholder of the Company, to circumvent
the voting arrangements required by this Section 3.
Section 4. ADDITIONAL LEGEND. So long as any Securities are subject to
the provisions hereof, all certificates or instruments representing Securities
will have imprinted on them the following legend:
The shares represented by this certificate are subject to the terms of a
certain Series A Preferred Stock Stockholder Agreement, dated as of
November 1, 2002, among the issuer of this certificate and certain
stockholders. The Series A Preferred Stock Stockholder Agreement contains
certain restrictive provisions relating to the voting and transfer of
shares of the stock represented hereby. A copy of the Series A Preferred
Stock Stockholder Agreement is on file at the Company's principal offices.
Upon written request to the Company's Secretary, a copy of the Series A
Preferred Stock Stockholder Agreement will be provided without charge to
appropriately interested persons.
Section 5. SEVERABILITY. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other
9
<PAGE>
jurisdiction, but this Agreement will be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
Section 6. ENTIRE AGREEMENT. Except as otherwise expressly set forth
herein, this Agreement, together with the Stockholder Agreement, embodies the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way. The parties hereto
acknowledge and agree that the terms and conditions of this Agreement are in
addition to, and not in lieu of, the terms and conditions of the Stockholder
Agreement; provided, that in the event of any conflict between this Agreement
and the Stockholder Agreement, the terms of this Agreement shall be controlling.
Section 7. SUCCESSORS AND ASSIGNS. This Agreement will bind and inure to
the benefit of and be enforceable by the Company and the Stockholders and their
respective successors and assigns.
Section 8. COUNTERPARTS. This Agreement may be executed in separate
counterparts each of which will be an original and all of which taken together
will constitute one and the same agreement.
Section 9. REMEDIES. The Stockholders will be entitled to enforce their
rights under this Agreement specifically (without posting a bond or other
security), to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages are not an adequate remedy for
any breach of the provisions of this Agreement and that any Stockholder shall
have the remedy of specific performance and/or injunctive relief in order to
enforce or prevent any violation of the provisions of this Agreement. In the
event of any dispute involving the terms of this Agreement, the prevailing party
shall be entitled to collect reasonable fees and expenses incurred by the
prevailing party in connection with such dispute from the other parties to such
dispute.
Section 10. NOTICES. Any notice provided for in this Agreement will be in
writing and will be deemed properly delivered if either personally delivered or
sent by telecopier, overnight courier or mailed certified or registered mail,
return receipt requested, postage prepaid to the recipient (a) if to any TA
Stockholder, to TA Associates, Inc., High Street Tower, Suite 2500, 125 High
Street, Boston, Massachusetts 02110, telecopier number (617) 574-6728,
Attention: P. Andrews McLane, (b) if to any FFL Stockholder, to Friedman
Fleischer & Lowe, LLC, One Maritime Plaza, 10/th/ Floor, San Francisco,
California 94111, telecopier number (415) 402-2111, Attention: Christopher A.
Masto and (c) if to the Company, at 1713 Jaggie Fox Way, Lexington, Kentucky
40511, telecopier number (859) 514-4422, Attention:
10
<PAGE>
President, with copies to TA Associates, Inc., High Street Tower, Suite 2500,
125 High Street, Boston, Massachusetts 02110, telecopier number (617) 574-6728,
Attention: P. Andrews McLane, and to Friedman Fleischer & Lowe, LLC, One
Maritime Plaza, 10/th/ Floor, San Francisco, California 94111, telecopier number
(415) 402-2111, Attention: Christopher A. Masto, and to Robert M. Wolf, Esq.,
Bingham McCutchen LLP, 150 Federal Street, Boston, Massachusetts 02110,
telecopier number (617) 951-8736. Any such notice shall be effective (i) if
delivered personally or by telecopier, when received, (ii) if sent by overnight
courier, when receipted for, and (iii) if mailed, 3 days after being mailed as
described above.
Section 11. AMENDMENT AND WAIVER. No modification, amendment or waiver of
any provision of this Agreement will be effective against the Company or the
Stockholders unless such modification, amendment or waiver is approved in
writing by the Majority FFL Holders and the Majority TA Holders. The failure of
any party hereto to enforce any of the provisions of this Agreement will in no
way be construed as a waiver of such provisions and will not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
Section 12. TERMINATION. This Agreement will terminate upon the earliest
to occur of (a) the completion of any voluntary or involuntary liquidation or
dissolution of the Company and (b) the completion of a Disposition Event (as
defined in the Charter).
Section 13. GOVERNING LAW. ALL QUESTIONS CONCERNING THE CONSTRUCTION,
VALIDITY AND INTERPRETATION OF THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 14. DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
Section 15. CONSTRUCTION. The language used in this Agreement will be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction will be applied against any party.
Section 16. CALCULATION OF FULLY-DILUTED EQUITY. All references herein to
calculations of the Company's equity or any type or class thereof as then
outstanding "on a fully diluted basis" or as "fully diluted" or similar terms
shall mean such equity or type or class thereof at any date as diluted by the
issuance of all shares of such equity or type or class thereof then issuable
upon the exercise or conversion of all then outstanding and exercisable
warrants, options or convertible securities pursuant to which the Company is
then obligated to issue such equity or type or class thereof (and if such
exercise or conversion results in the issuance of convertible
11
<PAGE>
securities, as further diluted by the conversion of such convertible
securities), but specifically excluding all shares issuable under Stock Options
which are not then exercisable. For purposes of determining the number of
outstanding shares of Class B Common Stock held by any Stockholder on a
fully-diluted basis hereunder at any time, such Stockholder shall be deemed to
hold that number of shares of Class B Common Stock as is equal to (i) the number
of outstanding shares of Class B Common Stock then held by such Stockholder plus
(ii) the number of shares of Class B Common Stock ultimately issuable upon
conversion or exercise of any other outstanding Securities then held by such
Stockholder.
12
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Series A
Preferred Stock Stockholder Agreement on the day and year first above written.
TWI HOLDINGS, INC.
By: /s/ Caleb S. Everett
-------------------------------------
Title:Vice President
FRIEDMAN FLEISCHER & LOWE CAPITAL
PARTNERS, LP
By: Friedman Fleischer & Lowe GP, LLC,
its General Partner
By: /s/ Christopher Masto
-------------------------------------
Name: Christopher Masto
Title: Managing Member
FFL EXECUTIVE PARTNERS, LP
By: Friedman Fleischer & Lowe GP, LLC,
its General Partner
By: /s/ Christopher Masto
-------------------------------------
Name: Christopher Masto
Title: Managing Member
TA IX, L.P.
By: TA Associates IX, LLC, its General
Partner
By: TA Associates, Inc., its Manager
By: /s/ P.Andrews McLane
-------------------------------------
Name: P.Andrews McLane
Title: Senior Managing Director
<PAGE>
TA/ATLANTIC AND PACIFIC IV L.P.
By: TA Associates AP IV, L.P., its
General Partner
By: TA Associates, Inc., its General
Partner
By: /s/ P.Andrews McLane
------------------------------------
Name: P.Andrews McLane
Title: Senior Managing Director
TA/ADVENT VIII L.P.
By: TA Associates VIII LLC, its General
Partner
By: TA Associates, Inc., its Manager
By: /s/ P.Andrews McLane
-------------------------------------
Name: P.Andrews McLane
Title: Senior Managing Director
TA STRATEGIC PARTNERS FUND A L.P.
By: TA Associates SPF L.P., its General
Partner
By: TA Associates, Inc., its General
Partner
By: /s/ P.Andrews McLane
-------------------------------------
Name: P.Andrews McLane
Title: Senior Managing Director
<PAGE>
TA STRATEGIC PARTNERS FUND B L.P.
By: TA Associates SPF L.P., its General
Partner
By: TA Associates, Inc., its General
Partner
By: /s/ P.Andrews McLane
-------------------------------------
Name: P.Andrews McLane
Title: Senior Managing Director
TA INVESTORS LLC
By: TA Associates, Inc., its Manager
By: /s/ P. Andrews McLane
-------------------------------------
Name: P. Andrews McLane
Title: Senior Managing Director
<PAGE>
SCHEDULE 1
-------- -
TO STOCKHOLDER
-- -----------
AGREEMENT
---------
Instrument of Accession
---------- -- ---------
The undersigned, _________________, in order to become the owner or holder
of ________ shares of [[Class A] [Class B-1] [Class B-2] Common Stock, $.01 par
value per share] [Series A Preferred Stock, $.01 par value per share], of TWI
Holdings, Inc., a Delaware corporation, hereby agrees to become a [FFL] [TA]
Stockholder party to that certain Series A Preferred Stock Stockholder
Agreement, dated as of ________ __, 2002 (the "Stockholder Agreement"), a copy
of which is attached hereto. This Instrument of Accession shall become a part of
such Stockholder Agreement.
Executed as of the date set forth below under the laws of the State of
Delaware.
Signature:
------------------------------
Address:
------------------------------
------------------------------
------------------------------
Date:
------------------------------
Accepted:
TWI HOLDINGS, INC.
By:
--------------------------------
Date:
------------------------------
<PAGE>
SCHEDULE 2
-------- -
TO STOCKHOLDER
-- -----------
AGREEMENT
---------
Consent to Certain Actions
--------------------------
(a) The issuance, purchase, redemption or repurchase of any Preferred
Stock, Common Stock or other securities of the Company and its Subsidiaries,
including, without limitation, options and warrants, but excluding any issuance
of (i) any options to purchase Class B-1 Common Stock issued pursuant to the
terms of the Company's 2002 Stock Option Plan and (ii) any Class B-1 Common
Stock upon conversion of stock of another class, or upon exercise of any options
or warrants;
(b) the declaration or payment of any dividends or other distributions in
respect of the capital of the Company and its Subsidiaries;
(c) the making of an initial public offering of the securities of the
Company or any of its Subsidiaries;
(d) the incurrence by the Company or any of its Subsidiaries of any
indebtedness for borrowed money (including, without limitation, the
establishment of a line of credit at any bank or other financial institution),
other than any indebtedness for borrowed money incurred pursuant to the Loan
Documents as in effect on the date of this Agreement or otherwise permitted
under the Loan Documents as in effect on the date of this Agreement, or any
trade indebtedness incurred in the ordinary course of business;
(e) any amendment or modification of any of the terms of any Loan
Documents as in effect on the date of this Agreement;
(f) any action to effect the voluntary, or which would precipitate an
involuntary, dissolution or winding-up of the Company or any of its
Subsidiaries;
(g) any material amendment, modification or waiver of any rights under the
Charter or the By-laws of the Company, including, without limitation, any
amendment, modification or waiver of any of the powers, designations,
preferences or rights of the Series A Preferred Stock as in effect on the date
of this Agreement;
(h) any amendment or modification of, or the granting of any waiver under,
or the failure to enforce any of the rights of the Company pursuant to, the
Stockholder Agreement or the Registration Rights Agreement;
(i) the entering into or consummating of any Approved Sale (as defined in
the Stockholder Agreement) or any approval by the Company's Board of Directors
or
<PAGE>
consent by the Required Sponsor Holders (as defined in the Stockholder
Agreement) with respect thereto;
(j) the entering into or consummating of any merger or consolidation
(other than a merger or consolidation between the Company and one of its
Subsidiaries or between two of its Subsidiaries), or any sale or other
disposition of any assets of the Company or any of its Subsidiaries or any
voting stock of any Subsidiary of the Company (other than sales of assets in the
ordinary course of business consistent with past practice or sales of assets
having a value of less than $2,000,000 individually or $5,000,000 in the
aggregate during any fiscal year);
(k) the acquisition by the Company or any of its Subsidiaries of any
stock, indebtedness, obligations or liabilities of, or the acquisition by the
Company or any of its Subsidiaries of any division or line of business or all or
a substantial portion of the properties or assets of, or the making by the
Company or any of its Subsidiaries of any loans, advances, capital contributions
or transfers of property (other than sales of inventory in the ordinary course
of business and other than acquisitions or sales of property and assets having a
value of less than $2,000,000 individually or $5,000,000 in the aggregate during
any fiscal year) to, any Person;
(l) the appointment, replacement or termination of the Chief Executive
Officer of the Company and its Subsidiaries, or the entry into, termination of,
or extension of any term under any employment agreement with such officer;
(m) the establishment of, or any material amendment to, any stock option,
stock purchase, pension, insurance or benefit plan for any employee of the
Company or any of its Subsidiaries;
(n) any increase in the size of the board of directors of the Company or
any of its Subsidiaries and the designation of any directors to fill vacancies
created such any such increase; and any waiver of the board and committee
designation and governance provisions set forth in Section 3.1 hereof with
respect to any Subsidiary of the Company and the designation of any directors
(or Persons performing similar functions) of any such Subsidiary;
(o) any approval by the Required Sponsor Holders (as defined in the
Stockholder Agreement) of any modification, amendment or waiver of any of the
provisions of the Stockholder Agreement, including without limitation, any
waiver by the Required Sponsor Holders (as defined in the Stockholder Agreement)
of preemptive rights under Section 5.1 of the Stockholder Agreement;
(p) any conversion of shares of Series A Preferred Stock into Class B-1
Common Stock which would result in the mandatory conversion of all outstanding
shares of Series A Preferred Stock pursuant to the terms of the Charter; and
<PAGE>
(q) the entering into by the Company or any of its Subsidiaries of any
agreement obliging, committing or binding the Company or any such Subsidiary to
do any thing or take any action referred to in clauses (a) - (p) above, and any
amendment or modification of any such agreement.