Stb Beauty, Inc. Stockholders Agreement

Exhibit 4.2

 

ExecutionCopy

 

STBBEAUTY, INC.

STOCKHOLDERSAGREEMENT

Dated as of June 10, 2004

 



TABLEOF CONTENTS

 

ARTICLE I.
DEFINITIONS

1

 

 

1.1.

Certain Matters of Construction

1

1.2.

Definitions

2

 

 

ARTICLE II.
COVENANTS AND CONDITIONS

10

 

 

2.1.

Restrictions on Transfers

11

2.2.

Call by the Company and the Stockholders.

14

2.3.

Take Along.

17

2.4.

Right of First Offer; Compelled Sale

18

2.5.

Corporate Governance.

20

2.6.

Supermajority Provisions.

23

2.7.

Rights of Participation.

24

2.8.

Confidentiality; Non-Solicitation.

25

2.9.

Financial and Business Information

26

 

 

ARTICLE III.
REGISTRATION RIGHTS

26

 

 

3.1.

General

26

3.2.

Demand Registration Initiated by the Berkshire Stockholders.

27

3.3.

Demand Registration Initiated by the JH Stockholders.

27

3.4.

Piggyback Registration.

28

3.5.

Obligations of the Company

29

3.6.

Furnish Information

31

3.7.

Expenses of Registration

31

3.8.

Underwriting Requirements

31

3.9.

Indemnification

32

3.10.

Registration on Form S-3

35

3.11.

Reports Under Securities Exchange Act of 1934

35

3.12.

No Inconsistent Agreements

35

3.13.

Stock Split

35

3.14.

Timing and Other Limitations.

36

3.15.

Lock-up

36

 

 

ARTICLE IV.
MISCELLANEOUS

36

 

 

 

4.1.

Appointment of Proxies.

36

4.2.

Regulatory Cooperation

37

4.3.

Remedies

37

4.4.

Entire Agreement; Amendment; Waiver

38

 

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4.5.

Severability

38

4.6.

Notices

39

4.7.

Binding Effects Assignment

40

4.8.

Governing Law

40

4.9.

Termination

40

4.10.

Recapitalizations, Exchanges, Etc

40

4.11.

Action Necessary to Effectuate the Agreement

40

4.12.

Purchase for Investment; Legend on Certificate

40

4.13.

Effectiveness of Transfers

41

4.14.

Other Stockholders

41

4.15.

No Waiver

42

4.16.

Counterparts

42

4.17.

Headings

42

4.18.

Third Party Beneficiaries

42

4.19.

Consent to Jurisdiction

42

4.20.

WAIVER OF JURY TRIAL

42

 

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STOCKHOLDERSAGREEMENT

This Stockholders Agreement (this “Agreement”) isentered into as of the 10th day of June, 2004 by and among (i) STB Beauty, Inc.,a Delaware corporation (the “Company”) and (ii) the Stockholders (as definedherein) party hereto.

WHEREAS, upon consummation of the transactionscontemplated by that certain Agreement and Plan of Merger dated as of May 3,2004 (the “Merger Agreement”) by and among the Company, MD Beauty, Inc. (“MDBeauty”), STB Acquisition, Inc., JH Partners, LLC and certain stockholders andoption holders of MD Beauty, the Berkshire Stockholders, the JH Stockholders, theMezzanine Stockholders and the Other Stockholders will own the number of sharesof Common Stock of the Company, each as set forth opposite their respectivenames on Exhibit A hereto;

WHEREAS, on the date hereof, the ManagementStockholders will receive, pursuant to the 2004 Equity Incentive Plan, optionsto purchase shares of Common Stock of the Company, as set forth opposite theirrespective names on Exhibit A hereto.

WHEREAS, upon consummation of the transactionscontemplated by the Merger Agreement, the Management Stockholders own thenumber of Rollover Options, each as set forth opposite their respective nameson Exhibit A hereto; and

WHEREAS, each of the Stockholders desires to enterinto this Agreement for the purpose of regulating certain relationships of theStockholders with regard to the Company and certain restrictions on the Sharesowned by the Stockholders.

NOW, THEREFORE, in consideration of the mutualpromises, representations, warranties, covenants and conditions set forth inthis Agreement, and other good and valuable consideration, the receipt andsufficiency of which is hereby acknowledged, the parties hereby agree asfollows:

ARTICLEI.
DEFINITIONS

1.1.          Certain Matters of Construction.  In addition to the definitions referred to orset forth below in this Section 1:

(a)           The words “hereof”, “herein”, “hereunder”and words of similar import shall refer to this Agreement as a whole and not toany particular Section or provision of this Agreement, and reference to aparticular Section of this Agreement shall include all subsections thereof;

(b)           Definitions shall be equallyapplicable to both nouns and verbs and the singular and plural forms of theterms defined; and

(c)           The masculine, feminine and neutergenders shall each include the other.

 



1.2.          Definitions. For the purposes of this Agreement, the following terms shall have thefollowing meanings:

“1933 Act” shall mean the Securities Act of 1933, asamended.

“1934 Act” shall mean the Securities Exchange Act of1934, as amended.

“2004 Equity Incentive Plan” shall mean the Company’s2004 Equity Incentive Plan.

“Affiliate” shall mean, with respect to any specifiedPerson, any other Person which, directly or indirectly, through one or moreintermediaries controls, or is controlled by, or is under common control with,such specified Person (for the purposes of this definition, “control”(including, with correlative meanings, the terms “controlling,” “controlled by”and “under common control with”), as used with respect to any Person, means thepossession, directly or indirectly, of the power to direct or cause thedirection of the management or policies of such Person, whether through theownership of voting securities, by agreement or otherwise and as used withrespect to the Company or any Subsidiary of the Company, shall include anyholder of at least 5% of the capital stock, or any officer or director, of theCompany); provided that, with respect to each JH Stockholder, for the purposesof Section 2.8, “Affiliate” shall also include JH Partners, LLC, JH CapitalPartners, LP, Jesse.Hansen CoVe, Siberia Investment Company and any successorfund controlled by JH Partners, LLC or any of its Affiliates.

“Agreement” shall have the meaning set forth in thefirst paragraph of this Agreement.

“Associate” (i) when used to indicate a relationshipwith any Person shall mean, (a) any corporation or organization of which suchPerson is an officer or partner or is, directly or indirectly, the beneficialowner of ten percent (10%) or more of any class of equity securities, (b) anytrust or other estate in which such Person has a substantial beneficialinterest or as to which such Person serves as a trustee or in a similarfiduciary capacity, and (c) any relative of such Person who has the same home assuch Person, is a parent, aunt or uncle, sibling, spouse, in-law, child, nieceor nephew or grandchild of such Person, or the spouse of any of them, or (ii)when used to indicate a relationship with the Company, shall also mean adirector or officer of the Company or any Subsidiary.  Neither the Company nor any of itsSubsidiaries shall be deemed an Associate of any Stockholder.

“Berkshire Representatives” shall have the meaning asset forth in Section 2.5(a).

“Berkshire Stockholders” shall mean (i) those Personslisted as the Berkshire Stockholders on the signature pages hereof, and (ii)their Permitted Transferees (other than the Company and any transfereeacquiring under clause (viii) of the definition of Permitted Transferee).

“BNP Paribas” means Paribas North America, Inc., aDelaware corporation or other Permitted Transferee that is an Affiliate ofParibas North America, Inc., for so long as such entity is a Stockholder.

“Board” or “Board of Directors” shall mean the Boardof Directors of the Company as the same shall be constituted from time to time.

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“Call Event” shall have the meaning as set forth inSection 2.2(a).

“Call Group” shall have the meaning as set forth inSection 2.2(a).

“Call Notice” shall have the meaning as set forth inSection 2.2(a).

“Call Option” shall have the meaning as set forth inSection 2.2(a).

“Call Price” shall have the meaning as set forth inSection 2.2(b).

“Call Securities” shall mean all of the Shares, RolloverOptions, vested Time Options and vested and earned Performance Options whichare owned by the members of the Call Group on the date of a Call Event.

“Cause” shall have the meaning as set forth below,except with respect to any Management Stockholder who is employed by theCompany or one of its Subsidiaries pursuant to an effective written employmentagreement, if any, between the Company and/or one of its Subsidiaries and suchManagement Stockholder in which there is a definition of “Cause”, in whichevent the definition of “Cause” as set forth in such employment agreement shallbe deemed to be the definition of “Cause” herein solely for such ManagementStockholder and only for so long as such employment agreement remainseffective.

In all other events, the term “Cause” shall mean thatthe Board of Directors of the Company has determined, in its reasonablejudgment, that any one or more of the following has occurred:

(i)           the Management Stockholder shall havebeen convicted of, or shall have pleaded guilty or nolocontendere to, a felony;

(ii)          the Management Stockholder shall havebreached any non-competition agreement between the Management Stockholder andthe Company or its Affiliates; or

(iii)         the Management Stockholder shall have openlydisregarded his or her responsibilities to the Company and/or its Affiliatesand shall have refused to devote substantial time and energy to the businessand affairs of the Company and/or its Affiliates (other than due to Disabilityor temporary disability which, in the reasonable judgment of the Board ofDirectors, causes the Management Stockholder to be incapable of devoting suchtime and energy) within 30 days after written notification by the Board ofDirectors that, in their good faith judgment, the Management Stockholder hasconsistently failed to do so.

“Common Stock” shall mean the Company’s common stock, $0.01par value per share, that the Company may be authorized to issue from time totime, any other securities of the Company into which such Common Stock mayhereafter be changed or for which such Common Stock may be exchanged aftergiving effect to the terms of such change or exchange (by way ofreorganization, recapitalization, merger, consolidation or otherwise) and shallalso include any

2



common stock of the Company hereafter authorized andany capital stock of the Company of any other class hereafter authorized whichis not preferred as to dividends or distribution of assets in liquidation overany other class of capital stock of the Company and which has ordinary votingpower for the election of directors of the Company.

“Company” shall mean STB Beauty, Inc., a Delawarecorporation, and its successors and assigns.

“Company Note” shall have the meaning as set forth inSection 2.2(c).

“Company Option Period” shall have the meaning as setforth in Section 2.1(a).

“Company Sale” shall mean any transaction whether bysale of stock, sale of assets, merger, recapitalization, reorganization orotherwise, pursuant to which one or more Third Parties shall own in excess of50% of the common equity or assets of the Company on a fully diluted basis(assuming exercise of all Options), in each case in a single transaction orseries of related transactions.

“Compelled Sale” shall mean a Company Sale in which onehundred percent (100%) of the equity or assets of the Company shall betransferred to an unaffiliated Third Party, whether by sale of stock, sale ofassets, merger, recapitalization, reorganization or otherwise.

“Compelled Sale Notice” shall have the meaning as setforth in Section 2.4(b).

“Credit Agreement” shall mean the Credit Agreementdated as of June 10, 2004 by and among MD Beauty, Inc., the Company, theLenders (as defined therein), and BNP Paribas, as administrative agent for theLenders, together with all exhibits and schedules thereto.

“Default” shall have the meaning as set forth inSection 2.2(c).

“Disability” shall mean permanent disability withinthe meaning of Section 22(e)(3) of the Internal Revenue Code of 1986, asamended, unless otherwise defined in a separate written employment agreementbetween the Company and/or one of its Subsidiaries and the person whosedisability is in question in which event the definition of “Disability” as setforth in such employment agreement shall be deemed to be the definition of “Disability”herein solely for such person and only for so long as such employment agreementremains effective.

“Existing Incentive Plans” shall mean each of the MDBeauty, Inc. 2001 Stock Plan and the Bioceutix Inc. 2001 Stock Option/StockIssuance Plan, which plans shall be assumed by the Company effective upon theconsummation of the Merger.

“Fair Market Value” shall mean the fair value pershare of the applicable Shares as of the applicable date on the basis of a saleof such Shares in an arms length private sale between a willing buyer and awilling seller, neither acting under compulsion.  In determining such Fair Market Value, nodiscount shall be taken for constituting a minority interest or for theilliquidity of such shares and no upward adjustment or discount shall be takenrelating to the fact that the Shares in question are subject to therestrictions and entitled to the rights provided hereunder.

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Such Fair Market Value shall be determined in goodfaith by the Board of Directors of the Company

“Federal Bankruptcy Code” means Title 11 of the UnitedStates Code.

“First Offer” shall have the meaning as set forth inSection 2.4(a).

 “Fund I” shallmean Gleacher Mezzanine Fund I, L.P.

“Fund P” shall mean Gleacher Mezzanine Fund P, L.P.

“Holder” or “Holders” shall mean the holder or holdersof Registrable Securities.

“Incentive Plans” shall mean the 2004 Equity IncentivePlan and the Existing Incentive Plans.

“Investment Price” shall mean an amount per Shareequal to the price per Share paid for such Share at the time of initialpurchase thereof (subject to appropriate adjustments for stock splits,recapitalizations and the like).

“Involuntary Transfer” shall have the meaning as setforth in Section 2.1(a).

“JH Representatives” shall have the meaning as setforth in Section 2.5(a).

“JH Stockholders” shall mean (i) those Persons listedas the JH Stockholders on the signature pages hereof and (ii) their PermittedTransferees (other than the Company and any transferee acquiring under clause(viii) of the definition of Permitted Transferee).

“Management Proxy” shall have the meaning as set forthin Section 4.1(a).

“Management Representative” shall have the meaning asset forth in Section 2.5(a).

“Management Stockholders” shall mean (i) those Personslisted as the Management Stockholders on the signature pages hereof and (ii)their Permitted Transferees (other than the Company).

“Merger Agreement” shall have the meaning as set forthin the recitals.

“Mezzanine Stockholders” shall mean each of (i) FundI, Fund P and York Street for so long as such Person holds Shares and (ii)their Permitted Transferees (other than the Company) for so long as suchPersons hold such Shares

“New Securities” shall have the meaning as set forthin Section 2.7(b).

“Non-Requesting Party” shall have the meaning as setforth in Section 2.4(a).

“Offer Notice” shall have the meaning as set forth inSection 2.4(a).

“Offer Price” shall have the meaning as set forth inSection 2.4(a).

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“Offer Terminate Date” shall have the meaning as set forthin Section 2.4(a)

“Options” shall mean the Time Options, PerformanceOptions, and Rollover Options.

“Other Stockholders” shall mean (i) those Personslisted as the Other Stockholders on the signature pages hereof, (ii) theirPermitted Transferees (other than the Company), and (iii) those Personsdescribed in Section 4.14(iv) hereof.

“Outside Representatives” shall have the meaning asset forth in Section 2.5(a).

“Performance Options” shall mean, collectively, theoptions, granted to Management Stockholders under the 2004 Equity IncentivePlan, to purchase shares of the Company’s Common Stock, the number of earnedshares of which is subject to the attainment of certain performance targets asdetermined by the requisite vote (as set forth in the 2004 Equity IncentivePlan) of the Board of Directors, on the terms set forth therein.

“Permitted Transfer” shall mean:

(i)           a Transfer of Shares by anyStockholder who is a natural person to (A) such Stockholder’s spouse, children(including legally adopted children and stepchildren) and grandchildren, (B) atrust for the benefit of the Stockholder and/or any of the persons described inclause (A), or (C) a limited partnership or limited liability company whosesole partners or members, as the case may be, are the Stockholder and/or any ofthe persons described in clause (A) or clause (B); provided, that theStockholder transferring such Shares in any of clauses (A), (B) or (C) retainsexclusive power to exercise all rights under this Agreement;

(ii)          a Transfer of Shares by anyStockholder to the Company;

(iii)         a Transfer of Shares by a Stockholderupon death or in capacity to such Stockholder’s estate, executors,administrators and personal representatives, and then to such Stockholder’slegal representatives, heirs or legatees (whether or not such recipients are aspouse, children, grandchildren, parents or siblings of such Stockholder), provided, that, in the case of a Management Stockholderwhose Shares were subject to the provisions of Section 2.2 immediately prior tosuch Management Stockholder’s death, the Company has not exercised its CallOption with respect to such Shares under Section 2.2;

(iv)         a Transfer of Shares (a) by anyBerkshire Stockholder to any Affiliate of Berkshire Partners LLC or any of theemployees, partners, members or Affiliates of such Berkshire Stockholder or anysuch Affiliate or (b) between any Berkshire Stockholders;

(v)          a Transfer of Shares (a) by any JHStockholder to any Affiliate of JH MDB Investors, L.P. or any of the employees,partners, members or

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Affiliates of such JHStockholder or any such Affiliate or (b) between any JH Stockholders;

(vi)         a Transfer of Shares from any Other Stockholderwhich is a corporation,  partnership orlimited liability company to any Affiliate of such Other Stockholder;

(vii)        aTransfer of Shares from any Mezzanine Stockholder to (a) any Affiliate of aMezzanine Stockholder, which will include one or more newly created funds whichis (A) under common or affiliated management with such Mezzanine Stockholder or(B) managed by a group of Persons which includes a material number of suchMezzanine Stockholder professionals and which, in each case, invests in equitysecurities and is a “qualified institutional buyer” or “accredited investor”(as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), solong as such transfer is made as part of a transaction or series oftransactions pursuant to which such Stockholder transfers a material portion ofits equity investments to any one or more such funds; (b) any member or partnerof a Mezzanine Stockholder, in the case of a Mezzanine Stockholder organized asa limited liability company, limited partnership or general partnership; (c)any other Stockholder; (d) any other Mezzanine Stockholder or any of theirrespective Affiliates; or (e) in the case of any Mezzanine Stockholder who isalso a holder of any indebtedness of the Company under the Senior SubordinatedLoan Agreement or whose Affiliates are holders of any such indebtednessthereunder, (X) any transferee (other than a Participant as defined in theSenior Subordinated Loan Agreement) of any such indebtedness pursuant to and inconnection with a transfer permitted under the Senior Subordinated LoanAgreement of (I) at least half of the indebtedness held by the MezzanineStockholder as of the date hereof or (II) a proportionate or greater (ascompared to the percentage of such Mezzanine Stockholder’s Shares beingtransferred) amount of such indebtedness or (Y) as an equity participation inconnection with a sale of a participating interest under Section 10.12.2 of theSenior Subordinated Loan Agreement in (I) at least half of the indebtednessheld by the Mezzanine Stockholder as of the date hereof or (II) a proportionateor greater (as compared to the percentage of such Mezzanine Stockholder’sequity with respect to which such participation is being granted) amount ofsuch indebtedness;

(viii)       a Transfer of Shares from any Stockholderif such Transfer is first approved by a Supermajority Vote or, after theoccurrence of a Trigger Event, by Berkshire Stockholders holding a majority ofthe Shares held by all Berkshire Stockholders; and

(ix)  any transfer of Shares made in accordance withSection 2.3.

provided, however, thatOptions may only be transferred in accordance with the terms of the applicable IncentivePlan; and provided, further, that no Permitted Transfer shall be effective

6


unless and until the transferee of the Shares orOptions so transferred complies with Section 4.13 hereof, including withoutlimitation, executing and delivering to the Company a counterpart of thisAgreement and agreeing to be bound hereunder in the same manner and to the sameextent as the Stockholder from whom the Shares or Options weretransferred.  Except in the case of aPermitted Transfer pursuant to clause (ii) above, from and after the date onwhich a Permitted Transfer becomes effective, the Permitted Transferee of theShares or Options so transferred shall have the same rights, and shall be boundby the same obligations, under this Agreement as the transferor of such Sharesor Options and shall be deemed for all purposes hereunder (i) a “JH Stockholder”in the case of a Permitted Transfer from a “JH Stockholder”, (ii) a “BerkshireStockholder” in the case of a Permitted Transfer from a “Berkshire Stockholder”,(iii) a “Management Stockholder” in the case of a Permitted Transfer from a “ManagementStockholder”, (iv) an “Other Stockholder” in the case of a Permitted Transferfrom an “Other Stockholder” and (v) a “Mezzanine Stockholder” in the case of aPermitted Transfer from a “Mezzanine Stockholder”.  No Permitted Transfer shall conflict with orresult in any violation of a judgment, order, decree, statute, law, ordinance,rule or regulation.

“Permitted Transferee” shall mean any person or entitywho shall have acquired and who shall hold Shares or Options pursuant to aPermitted Transfer.

“Person” shall mean any individual, partnership,corporation, association, limited liability company, trust, joint venture,unincorporated organization, entity or division, or any government,governmental department or agency or political subdivision thereof.

“Proportionate Share” shall have the meaning as setforth in Section 2.1(a).

“Proprietary Information” shall have the meaning asset forth in Section 2.8.

“Public Offering” shall mean the completion of a saleof Common Stock pursuant to a registration statement which has become effectiveunder the 1933 Act (excluding registration statements on Form S-4, S-8 orsimilar limited purpose forms).

“Qualified Public Offering” shall mean a PublicOffering in which the aggregate price to the public of all Common Stock sold insuch offering shall exceed $25,000,000.

“register,” “registered” and “registration” shall havethe meaning as set forth in Section 3.1.

“Registrable Securities” shall mean (i) all shares ofCommon Stock held by any Stockholder, (ii) all shares of Common Stock issuableupon the exercise of Options, to the extent exercisable, held by anyStockholder, and (iii) any other common equity securities of the Company issuedin exchange for, upon a reclassification of, or in a distribution with respectto, such Common Stock.  As to anyparticular Registrable Securities, such securities shall cease to beRegistrable Securities when (a) a registration statement (other than aregistration statement on Form S-8) with respect to the sale of such securitiesshall have become effective under the 1933 Act and such securities shall havebeen disposed of in accordance with such registration statement, (b) aregistration statement on Form S-8 with respect to such securities shall havebecome effective under the 1933 Act, or (c) such securities shall have beensold under Rule 144

 

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(or any successor provision) under the 1933 Act andsuch securities may be resold by the Holder thereof without registration underthe 1933 Act.

“Requesting Party” shall have the meaning as set forthin Section 2.4(a).

“Rollover Options” shall mean, collectively, thevested options retained by certain Management Stockholders under the Existing IncentivePlan to purchase shares of Common Stock on the terms set forth therein and inthe stock option agreements issued pursuant thereto, in each case as set forthon Exhibit A under the column headed “Rollover Options”.

“Rollover Shares” shall mean Shares issued after thedate hereof upon the exercise of Rollover Options.

“Sale Request” shall have the meaning as set forth inSection 2.3(a).

“Schedule” shall refer to the Schedule of Stockholdersattached hereto as Exhibit A.

“Seller” shall have the meaning as set forth inSection 2.3(a).

“Shares” shall mean all (i) shares of Common Stockheld by Stockholders from time to time or (ii) securities of the Company issuedin exchange for, upon reclassification of, or as a distribution in respect of,any of the foregoing.

“Stockholders” shall mean, collectively, the BerkshireStockholders, the JH Stockholders, the Management Stockholders, the OtherStockholders and the Mezzanine Stockholders.

“Senior Subordinated Loan Agreement” shall mean theSenior Subordinated Loan Agreement dated on or around June 10, 2004 among MDBeauty, Inc., the Company, the Lenders (as defined therein), Gleacher MezzanineLLC, as co-arranger, and York Street Capital Partners, L.L.C., as co-arranger,together with all exhibits and schedules thereto.

“Subsidiary” with respect to any entity (the “parent”)shall mean any corporation, firm, association or trust of which such parent, atthe time in respect of which such term is used, (i) owns directly or indirectlymore than fifty percent (50%) of the equity or beneficial interest, on aconsolidated basis or (ii) owns directly or controls with power to vote,indirectly through one or more Subsidiaries, shares of the equity or beneficialinterest having the power to elect more than fifty percent (50%) of thedirectors, trustees, managers or other officials having powers analogous tothat of directors of a corporation. Unless otherwise specifically indicated, when used herein the termSubsidiary shall refer to a direct or indirect Subsidiary of the Company.

“Supermajority Vote” shall mean the affirmative voteof (i) JH Stockholders holding a majority of all Shares held by JHStockholders and (ii) Berkshire Stockholders holding a majority of all Sharesheld by Berkshire Stockholders.

“Take Along Group” shall have the meaning as set forthin Section 2.3(a).

“Third Party” shall mean any person other than theCompany, any Berkshire Stockholder, any JH Stockholder, or any Affiliate of anyBerkshire Stockholder or JH Stockholder..

 

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“Time Options” shall mean, collectively, the timevested options granted to certain Management Stockholders under the 2004 EquityIncentive Plan, to purchase shares of the Company’s Common Stock on the termsset forth therein.

“Transfer” shall mean to transfer, sell, assign,pledge, hypothecate, give, create a security interest in or lien on, place intrust (voting or otherwise), assign or in any other way encumber or dispose of,directly or indirectly and whether or not by operation of law or for value, anyShares or Options.

“Transfer Date” shall have the meaning as set forth inSection 2.1(a).

“Transferring Stockholder” shall have the meaning asset forth in Section 2.1(a).

“Trigger Event” shall mean the occurrence of any ofthe following:

i.                                       Thefailure (for any reason) of John Hansen (“Hansen”), in his personal capacity(subject to applicable community property laws) or through trusts for thebenefit of his children, to own at any time, directly or indirectly, at least 4,460,635shares of the 14,868,783 shares of Common Stock directly owned by JH MDBInvestors, L.P.

ii.                                    Thefailure (for any reason) of (x) Hansen to own interests in JHMD Beauty GP, LLCgiving Hansen the right to direct the management and affairs of JHMD Beauty GP,LLC or (y) JHMD Beauty GP, LLC to have the right to direct the affairs of JH MDBInvestors, L.P. (including, without limitation, the ability to vote and disposeof any securities held by JH MDB Investors, L.P.).

iii.                                 Theconsummation of any Transfer of Shares by a JH Stockholder to any naturalperson or entity other than an entity the affairs of which Hansen has the rightto direct, by means of a voting agreement or otherwise (including, withoutlimitation, the ability to vote and dispose of such Shares on and after suchTransfer); provided that if, prior to suchtransfer, such JH Stockholder provides evidence reasonably satisfactory to the BerkshireStockholders that the transferee is an entity the affairs of which Hansen hasthe right to direct, such Transfer shall be deemed not to be a Trigger Event.

“Voluntary Termination” shall mean any voluntarytermination of employment with the Company by a Management Stockholder.  The term Voluntary Termination shall notinclude termination of employment due to death, Disability or retirement.

“York Street” shall mean York Street MezzaninePartners, L.P.

 

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ARTICLEII.
COVENANTS AND CONDITIONS

2.1.          Restrictions on Transfers.  No Stockholder may Transfer all or any partof the Shares owned by such Stockholder to anyone other than (i) a PermittedTransferee (subject to Section 2.1(c) below) or (ii) in accordance with thefollowing procedures.  Any attemptedTransfer of Shares not permitted by this Section 2.1 shall be null and void andthe Company shall not in any way give effect to such impermissibleTransfer.  Any attempted Transfer ofOptions not permitted by the applicable Incentive Plan shall be null and voidand the Company shall not in any way give effect to such impermissibleTransfer.

(a)           Involuntary Transfer

(i)           Any Stockholder whois the subject of an Involuntary Transfer (as defined below) (the “TransferringStockholder”), shall notify the Company in writing within ten (10) days of suchInvoluntary Transfer (but the failure to give such notice shall not affect therights of the parties hereunder).  Forpurposes of this Section 2.1(c), the later of receipt of such notice by theCompany and the other Stockholders and the date of such Involuntary Transfershall be the “Transfer Date”.

(ii)          For a period oftwenty (20) days after the Transfer Date (the “Company Option Period”), theCompany may, by notice in writing to the Transferring Stockholder, elect inwriting to purchase any or all of the Shares subject to the InvoluntaryTransfer at the Fair Market Value of such Shares.

(iii)         If the Company doesnot elect to purchase any of the Shares subject to the Involuntary Transfer, orexercises such right only with respect to a portion of such Shares, then for aperiod of twenty (20) days commencing on the earlier of (a) the date, if any,that the Transferring Stockholder notifies the other Stockholders in writingthat the Company has determined either not to exercise such right of purchaseor to exercise such right only with respect to a portion of the Shares subjectto the Involuntary Transfer, and (b) the expiration of the Company OptionPeriod, the other Stockholders shall have the right to purchase all or anyportion of such Shares subject to the Involuntary Transfer not so elected to bepurchased by the Company, at the Fair Market Value of such Shares.  The specific number of such Shares subject tothe Involuntary Transfer remaining after the Company has exercised its rightpursuant to clause (ii) to which each other Stockholder shall be entitled topurchase shall be determined on a pro rata basisin proportion to the respective number of shares of Common Stock ownedbeneficially by each such Stockholder as of the Transfer Date in relation tothe total number of shares of Common Stock owned beneficially by all suchStockholders (for each such Stockholder, its “Proportionate Share”).  Each such Stockholder shall also be entitledto indicate a desire to purchase all or a portion of any Shares subject to theInvoluntary Transfer remaining after such pro rataallocation.  Each such Stockholder shallbe allocated the maximum amount of Shares subject to the Involuntary Transferset forth in such Stockholder’s offer to purchase, unless such allocation wouldresult in the allocation of more securities in the aggregate than are availablefor purchase

 

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bythe other Stockholders, in which case such Shares subject to the InvoluntaryTransfer shall be allocated among the Stockholders pro ratain accordance with each such Stockholder’s Proportionate Share; provided, however, that if the foregoing results in anyStockholder being allocated more than the maximum amount of Shares subject tothe Involuntary Transfer specified in such Stockholder’s offer to purchase,such Stockholder will be allocated such maximum amount and the excess will beallocated as provided in this sentence (including this proviso).

(iv)         Any Shares subject tothe Involuntary Transfer not accepted pursuant to clauses (ii) and (iii) aboveshall be Transferred in accordance with the terms and conditions of theInvoluntary Transfer.

(v)          For purposes of this Agreement, theterm “Involuntary Transfer” shall mean any involuntary sale, transfer,encumbrance or other disposition (other than as a result of the death of theStockholder) by or in which any Stockholder shall be deprived or divested ofany right, title or interest in or to any Shares, including without limitation(I) any levy of execution, transfer in connection with bankruptcy,reorganization, insolvency or similar proceedings, (II) any transfer to apublic officer or agency pursuant to any abandoned property or escheat law, or(III) any transfer to the spouse of an individual or change in the recordholder made pursuant to divorce proceedings. A Transfer pursuant to Section 2.2 hereof shall not be deemed to be anInvoluntary Transfer.

(b)           Any Transfer of Shares pursuant tothis Section 2.1 shall remain subject to the Transfer restrictions of thisAgreement and each intended transferee pursuant to this Section shall executeand deliver to the Company a counterpart of this Agreement, which shallevidence such transferee’s agreement that the Shares intended to be transferredshall continue to be subject to this Agreement and that as to such Shares thetransferee shall be bound by the restrictions of this Agreement as aStockholder hereunder.

(c)           Come Along.   Notwithstanding anything to the contrarycontained herein, no Berkshire Stockholder or JH Stockholder may TransferShares to a person described in subsection (viii) of the definition of “PermittedTransferee” (a “Covered Transfer”) without complying with the terms andconditions set forth in this Section 2.1(c).

(i)           Any BerkshireStockholder or JH Stockholder when desiring to effect a Covered Transfer (the “Transferor”)shall give not less than thirty (30) days prior written notice of such intendedTransfer to each Mezzanine Stockholder, Other Stockholder and ManagementStockholder and the Company.  Such notice(the “Participation Notice”) shall set forth the terms and conditions of suchproposed Covered Transfer, including the name of the prospective transferee,the number of Shares proposed to be transferred (the “Participation Securities”)by the Transferor, the percentage of the total number of shares of Common Stockheld by the Transferor that the Participation Securities constitutes (the “ComeAlong Percentage”), the

 

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purchaseprice per share of Common Stock proposed to be paid therefor, the payment termsand type of transfer to be effectuated and the proposed time and place ofclosing.  Within fifteen (15) daysfollowing the delivery of the Participation Notice by the Transferor to each MezzanineStockholder, Other Stockholder and Management Stockholder and the Company, eachnotified Stockholder desiring to participate in such proposed Covered Transfer(each, a “Participating Offeree”) shall, by notice in writing to the Transferorand to the Company, have the opportunity and right to sell to the purchasers insuch proposed Covered Transfer (upon the same terms and conditions as theTransferor) up to that number of shares of Common Stock, as the case may be,subject to the last sentence of Section 2.1(c)(iii) below, as shall equal theproduct of (A) the Come Along Percentage and (B) the number of shares of CommonStock owned by such Participating Offeree. The Transferor shall attempt to obtain inclusion in the proposed CoveredTransfer of the entire number of Shares which the Transferor and theParticipating Offerees desire to have included in the proposed CoveredTransfer.  In the event the Transferorshall be unable to obtain the inclusion of such entire number of shares ofCommon Stock in the proposed Covered Transfer, the number of shares of CommonStock to be sold in the Covered Transfer by each Participating Offeree and theTransferor shall be determined in accordance with Section 2.1(c)(iii) below.  The terms and conditions of any sale pursuantto this Section 2.1(c) shall be the same as set forth in the ParticipationNotice, except as is provided in Section 2.1(c)(iii) below and except that theactual date of the closing of any proposed Covered Transfer may change.

(ii)          At the closing ofany proposed Covered Transfer in respect of which a Participation Notice hasbeen delivered, the Transferor, together with all Participating Offerees, shalldeliver to the proposed transferee certificates evidencing the Shares to besold thereto duly endorsed with stock powers and shall receive in exchangetherefor the consideration to be paid or delivered by the proposed transfereein respect of such Shares as described in the Participation Notice.

(iii)         In the event thatthe Transferor under this Section 2.1(c) fails to complete the proposedTransfer within 90 days from the date of the Participation Notice, in order tocomplete a Transfer after such 90-day period, the Transferor must separatelycomply with this Section 2.1(c).

(iv)         The acceptance ofeach Participating Offeree shall be irrevocable except as hereinafter provided,and each such Participating Offeree shall be bound and obligated to sell, onthe same terms and conditions specified in the Participation Notice as theTransferor (subject to all of the provisions of this Agreement), such number ofShares as specified in such Participating Offeree’s written commitment; provided, however, that in the case of vested PerformanceOptions, Time Options and Rollover Options (for which the exercise price isless than the price per share of Common Stock being paid in the Transfer), theholders of such securities

 

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shallhave the opportunity to exercise such Performance Options, Time Options andRollover Options (if then exercisable) and participate in such sale as holdersof Common Stock.  In the event theTransferor shall be unable to obtain the inclusion in the sale of all Shareswhich the Transferor and each Participating Offeree desires to have included inthe sale, the number of Shares to be sold in the sale by the Transferor andeach Participating Offeree shall be reduced on a pro ratabasis according to the proportion which the number of Shares which each suchparty desires to have included in the sale bears to the total number of Sharesdesired by all such parties to have included in the sale.

(v)          In connection with any CoveredTransfer, the Participating Offerees shall be obligated to become liable inrespect of anyrepresentations, warranties, covenants, indemnities or otherwise to thetransferee solely to the extent provided in the immediately followingsentence.  Without limiting thegenerality of the foregoing, each Participating Offeree agrees to execute anddeliver such agreements as may be reasonably specified by the Transferor to whichsuch Transferor will also be party, including, without limitation, agreementsto (A) (1) make individual representations, warranties, covenants and otheragreements as to the unencumbered title to its Shares and its power, authorityand legal right to Transfer such Shares and the absence of any Adverse Claimwith respect to such Shares and (2) be liable without limitation as to suchrepresentations, warranties, covenants and other agreements and (B) be liable(whether by purchase price adjustment, indemnity payments or otherwise) inrespect of representations, warranties, covenants and agreements in respect ofthe Company and its subsidiaries; provided, however, that the aggregate amountof liability described in this clause (v) in connection with any CoveredTransfer shall not exceed the lesser of (Y) such Participating Offeree ‘s prorata portion of any such liability, to be determined in accordance with suchParticipating Offeree’s portion of the total number of Shares included in suchCovered Transfer or (Z) the proceeds to such Participating Offeree inconnection with such Covered Transfer.

2.2.          Call by the Company and the Stockholders.

(a)           Upon the termination of theemployment of any Management Stockholder by the Company or any of itsSubsidiaries (a “Call Event”) for any reason, the Company or its designee shallhave the right to purchase (the “Call Option”), by delivery of a written notice(the “Call Notice”) to such terminated Management Stockholder no later thanninety (90) days after the date of such Call Event, and such Management Stockholderand such Management Stockholder’s Permitted Transferees (collectively, the “CallGroup”) shall be required to sell all (but not less than all) of the CallSecurities at a price per share equal to the Call Price (as defined below) ofsuch Call Securities as of the date the Call Notice is delivered; provided thatfor purposes of determining whether all such Call Securities have beenpurchased, securities purchased by other Stockholders pursuant to Section2.2(d) below shall be deemed to have been purchased by the Company.

 

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(b)           For purposes of this Section 2.2, theterm “Call Price” shall mean

(i)           with respect to Shares other thanRollover Shares, in the event of a termination of a Management Stockholder’semployment (A) by the Company without Cause, (B) by virtue of death orDisability, (C) upon retirement in accordance with Company policy, or (D) byVoluntary Termination, the Fair Market Value of such Shares;

(ii)          with respect to Shares other thanRollover Shares, in the event of a termination of a Management Stockholder’semployment by the Company for Cause, the lower of (x) the Investment Price or(y) the Fair Market Value of all Shares then held by such ManagementStockholder;

(iii)         with respect to any Rollover Options,in the event of a termination for Cause, the lower of (A) the differencebetween (i) $2.6902 and (ii) the exercise price of such Rollover Options and(B) the difference between (i) the Fair Market Value per share and (ii) theexercise price of such Rollover Options; provided thatthe Call Option shall not apply to Rollover Options if the ManagementStockholder’s employment is terminated other than for Cause;

(iv)         with respect to any Rollover Shares, inthe event of a termination for Cause, the lower of (A) $2.6902 and (B) the FairMarket Value per share; provided thatthe Call Option shall not apply to Rollover Shares if the ManagementStockholder’s employment is terminated other than for Cause;

(v)          with respect to any vested Time Optionsand vested and earned Performance Options, (A) upon a termination for Cause, zero,as such Options shall automatically expire as set forth in the OptionCertificates pursuant to which they were granted and (B) upon any othertermination, the difference between (x) the Call Price for the Sharesunderlying such Time Options or Performance Options, as the case may be(calculated as if the Shares underlying such Time Options or PerformanceOptions, as the case may be were outstanding and had been called pursuant tothis Section 2.2 and therefore calculated in accordance with the procedures setforth in clauses 2.2(b)(i) and 2.2(b)(iii) above) minus (y) the exercise priceof such vested Time Options or vested and earned Performance Options, as thecase may be; provided, that such differenceshall not be less than zero; and

(vi)         with respect to anyunvested Time Options or unvested Performance Options, zero, as such optionsshall automatically expire as set forth in the Option Certificates pursuant towhich they were granted.

(c)           The closing of any purchase of CallSecurities by the Company pursuant to Section 2.2(a) shall take place at theprincipal office of the Company no later than the 180th day after the CallEvent.  At such closing, the Companyshall deliver to the Call

 

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Group consideration (as setforth below) in an amount equal to the aggregate Call Price payable in respectof such Call Securities against delivery of (i) original stock certificates andstock powers duly endorsed in favor of the Company representing the CallSecurities, and (ii) an executed agreement, in form reasonably satisfactory tothe Company, evidencing the cancellation of any Rollover Options, vested TimeOptions and vested and earned Performance Options purchased at such closing.The Company shall pay the Call Price by (i) paying the Call Group in cash, (ii)if required to maintain compliance under any loan or credit agreement orpromissory note to which the Company or any subsidiary is a party, issuing asubordinated promissory note in a principal amount equal to the purchase pricewhich note shall be subordinated on terms satisfactory to the respectivelenders and/or purchasers under each such agreement or note who are contractuallyentitled to such subordination or (iii) a combination of (i) and (ii).  The principal of such note (the “Company Note”)will be due and payable in five equal annual installments, the first suchinstallment becoming due and payable on the first anniversary of the issuanceof such note, and interest will accrue thereon at a rate equal to theapplicable federal rate on the date of issuance of the Company Note plus 3% andbe payable annually in arrears.  SuchCompany Note may be prepaid by the Company in whole at any time or in part fromtime to time without premium or penalty and shall otherwise be in the formapproved by the Board.  The Company shallnot be obligated to make any payment pursuant to this Section 2.2(c) or anypayment of principal or interest due under a Company Note if such payment wouldcause the Company or any Subsidiary to be in violation of applicable law or indefault under or otherwise in violation of the terms of, or limited by theceiling in the availability or credit advances under, any loan, credit orinvestment agreement or promissory note to which the Company or any Subsidiaryis a party (a “Default”).  In the eventthe Company cannot make the payments of principal and interest due under aCompany Note because it is in Default, the Company will undertake to make suchpayments at such time as the Company is no longer in Default and would not beso in Default (i) by virtue of the delivery of any payments, (ii) by deliveryof such Company Note or (iii) by any payment of principal and interest dueunder such Company Note, as contemplated herein.

(d)           Notwithstanding anything set forth inthis Section 2.2 to the contrary, if the Company does not elect to exercise theCall Option or exercises the Call Option with respect to only a portion of theCall Securities, the Board shall delegate the right to exercise the Call Optionto the Stockholders, and shall notify the Stockholders of such delegationwithin 45 days of the Call Event, and the Stockholders shall have the right,but not the obligation to exercise the Call Option and to acquire such CallSecurities at the Call Price and on the same terms and conditions as set forthin Section 2.2(c) which apply to the purchase of Call Securities by theCompany, except all payments pursuant to this Section 2.2(d) shall be made inimmediately available funds.  Thespecific number of Call Securities remaining after the Company has exercised theCall Option which each Stockholder shall be entitled to acquire shall equalsuch Stockholder’s Proportionate Share of such Call Securities.  Each such Stockholder shall also be entitledto indicate within 30 days of receiving notice a desire to purchase all or aportion of any available Call Securities above such amount.  Each such Stockholder shall be allocated themaximum amount of Call Securities set forth in such Stockholder’s offer topurchase, unless such allocation would result in the allocation of more Call Securitiesin the

 

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aggregate than are availablefor purchase by the Stockholders, in which case such Call Securities shall beallocated among the Stockholders pro rata inaccordance with each such Stockholders’ Proportionate Shares; provided, however, that if the foregoing results in anyStockholder being allocated more than the maximum amount of Call Securitiesspecified in such Stockholder’s offer to purchase, such Stockholder will beallocated such maximum amount and the excess will be allocated as provided inthis sentence (including this proviso).

2.3.          Take Along.

(a)           If (i) at any time JH Stockholdersholding a majority of the Shares held by all JH Stockholders and BerkshireStockholders holding a majority of the Shares held by all BerkshireStockholders or (ii) at any time after the occurrence of a Trigger Event, Stockholdersholding a majority of all Shares (which majority includes BerkshireStockholders holding a majority of the Shares held by all BerkshireStockholders) (such Stockholders being referred to herein as the “Take AlongGroup”) elect to consummate, or cause the Company to consummate, a CompanySale, then upon ten (10) business days written notice by the Take Along Groupto each other Stockholder, which notice shall set forth the terms andconditions of such proposed Company Sale or exchange, including the name of theprospective transferee, the number of Shares proposed to be sold or exchangedby the Take Along Group, if any, in the Company Sale, the percentage of Sharesheld by the Take Along Group which are being sold in such Company Sale (the “TakeAlong Percentage”), the consideration to be received by the Take Along Groupand the proposed time and place of closing (such notice being referred to asthe “Sale Request”), each other Stockholder (each, a “Seller”), in the eventthe Company Sale is consummated, shall be obligated to consummate, consent toand raise no objection to the proposed Company Sale and take all other actionsreasonably necessary or desirable to consummate the proposed Company Sale onthe terms proposed by the Take Along Group as set forth in the SaleRequest.  Without limiting the generalityof the foregoing, (i) if the Company Sale is structured as a merger,consolidation or sale of assets, each Seller will vote or cause to be voted allShares that he holds or with respect to which he has the power to direct thevoting and which he is entitled to vote on such proposed Company Sale in favorof such proposed Company Sale and will waive all appraisal and dissentersrights and hereby grants a proxy in favor of the Take Along Group to vote theSeller’s Shares in accordance with this Section 2.3(a) and (ii) if the CompanySale is structured as a sale or redemption of Shares, each Seller will agree tosell the Take Along Percentage of its Shares on the same terms and conditionsas the Take Along Group.  Each proxygranted in the foregoing sentence is irrevocable, coupled with an interest andshall survive until the expiration of the provisions of this Section 2.3(a).  If required, each Seller shall delivercertificates for all of its Shares being Transferred pursuant to this Section2.3(a) at the closing of the proposed Transfer, free and clear of all claims,liens and encumbrances.  The terms andconditions of any sale pursuant to this Section 2.3(a) shall be no less favorablethan those set forth in the Sale Request and shall result in each holderreceiving the same form and amount of consideration per share; provided,however, that in the case of Options, the holders of such securities shall havethe opportunity to either (i) exercise such Options (if then exercisable) andparticipate in such sale as holders of Common Stock issuable upon suchexercise, or (ii) upon the

 

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consummation of the sale,receive in exchange for such Options the amount determined by multiplying (1)the same amount of consideration per share received by the Stockholders forwhich the Option is then exercisable less the exercise price or conversion priceper share of such Option by (2) the number of shares of Common Stock of suchclass represented by such Option.

(b)           Each Stockholder, whether in hiscapacity as a Seller, Stockholder, officer or director of the Company, orotherwise, shall take or cause to be taken all such commercially reasonableactions in order expeditiously to consummate any Company Sale and any relatedtransactions, including, without limitation, executing, acknowledging anddelivering consents, assignments, waivers and other documents or instruments asmay be reasonably requested and otherwise cooperating with the Take Along Groupand any prospective buyer; provided, however,that Stockholders shall be obligated to become liable in respect of anyrepresentations, warranties, covenants, indemnities or otherwise to the ThirdParty solely to the extent provided in the immediately following sentence.  Without limiting the generality of theforegoing, each Stockholder agrees to execute and deliver such agreements asmay be reasonably specified by the Take Along Group to which such Take AlongGroup will also be party, including, without limitation, agreements to (i) (1)make individual representations, warranties, covenants and other agreements asto the unencumbered title to its Shares and its power, authority and legalright to Transfer such Shares and the absence of any Adverse Claim with respectto such Shares and (2) be liable without limitation as to such representations,warranties, covenants and other agreements and (ii) be liable (whether bypurchase price adjustment, indemnity payments or otherwise) in respect ofrepresentations, warranties, covenants and agreements in respect of the Companyand its subsidiaries; provided, however, that the aggregate amount of liabilitydescribed in this clause (b) in connection with any Company Sale shall notexceed the lesser of (i) such Stockholder’s pro rata portion of any suchliability, to be determined in accordance with such Stockholder’s portion ofthe total number of Shares included in such Company Sale or (ii) the proceedsto such Stockholder in connection with such Company Sale.

(c)           The Take Along Group shall not bepermitted to consummate a transaction under this Section 2.3 unless its membershave delivered a Sale Request to all other Stockholders.

(d)           No member of the Take Along Groupshall be entitled to receive fees in connection with the consummation of atransaction under this Section 2.3 in excess of the fees described in theManagement Agreements (as defined in the Merger Agreement).

2.4.          Right of First Offer; Compelled Sale

(a)           Right of First Offer.  Subject to Section 2.4(c), (i) at any timeafter May 30, 2008, either the Berkshire Stockholders or, provided that noTrigger Event shall have occurred, the JH Stockholders or (ii) at any timeduring the 60-day period immediately following the occurrence of a TriggerEvent other than a Trigger Event resulting from the death or disability ofHansen, the Berkshire Stockholders (such Stockholders referred to herein as the“Requesting Party”), may offer to sell all (but not less than all) of theShares

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held by such RequestingParty to whichever of the Berkshire Stockholders or the JH Stockholders is notthe Requesting Party (the “Non-Requesting Party”) by delivery of a notice,stating such Stockholders’ desire to sell such Shares, the number of Sharesproposed to be transferred and the price (the “Offer Price”) and other terms onwhich such Stockholders are offering such Shares (an “Offer Notice”).  Each Offer Notice shall constitute anirrevocable offer by the Requesting Party to sell to the Non-Requesting Partythe Shares described in the Offer Notice on the terms set forth in the OfferNotice.

(i)           No later than the 30th day followingthe delivery of the Offer Notice (the “Offer Termination Date”), theNon-Requesting Party may elect to offer to purchase the Shares described in theOffer Notice for the Offer Price on the terms set forth in the Offer Notice(any such offer, a “First Offer”).  Ifthe Non-Requesting Party fails to elect to purchase all the shares offered inthe Offer Notice, the Requesting Party shall be under no obligation to sell theShares offered in the Offer Notice to the Non-Requesting Party and may demandthat the Company pursue and consummate a Compelled Sale pursuant to Section2.4(b).

(ii)          If the Non-Requesting Party elects to acquire the Shares pursuant to thisSection 2.4(a), then promptly after notifying the Requesting Party of suchelection (but in no event more than 5 business days after) the Non-RequestingParty shall notify the Mezzanine Stockholders and the Other Stockholders inwriting of such election, and each Mezzanine Stockholder and Other Stockholdershall have the right to sell all (but not less than all) of their Shares to theNon-Requesting Party upon the same terms (including the Offer Price) set forthin the Offer Notice.  Such election toparticipate in the First Offer must be exercised by notifying the Non-RequestingParty in writing of such election no later than 30 days following notificationby the Non-Requesting Party pursuant to this Section 2.4(a)(ii).  In connection with any Transfer under thissection, the participating Stockholders shall be obligated to become liable inrespect of any representations, warranties, covenants, indemnities or otherwiseto the transferee solely to the extent provided in the immediately followingsentence.  Without limiting thegenerality of the foregoing, each participating Stockholder agrees to executeand deliver such agreements as may be reasonably specified by theNon-Requesting Party to which the Requesting Party will also be party,including, without limitation, agreements to (A) (1) make individualrepresentations, warranties, covenants and other agreements as to theunencumbered title to its Shares and its power, authority and legal right toTransfer such Shares and the absence of any Adverse Claim with respect to suchShares and (2) be liable without limitation as to such representations,warranties, covenants and other agreements and (B) be liable (whether bypurchase price adjustment, indemnity payments or otherwise) in respect ofrepresentations, warranties, covenants and agreements in respect of the Companyand its subsidiaries; provided, however, that the aggregate amount of liabilitydescribed in this clause (ii) in connection with any Transfer under thisSection shall not exceed the lesser of (Y) such participating Stockholder’s prorata portion of any such

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liability, to be determined in accordance with suchparticipating Stockholder’s portion of the total number of Shares included insuch Transfer or (Z) the proceeds to such participating Stockholder inconnection with such Transfer.

(iii)         The closing of the purchase and sale ofany Shares to be acquired by the Non-Requesting Party pursuant to this Section2.4(a) shall be held at the offices of the Company on such dates and times asthe parties may agree but in all events within ninety (90) days of the OfferTermination Date.

(iv)         At any such closing, the Non-RequestingParty  shall deliver to the RequestingParty (and any other Stockholders who elect to participate pursuant to Section2.4(a)(ii)) against delivery of certificates duly endorsed and stock powersrepresenting the Shares being acquired by the Non-Requesting Party, theconsideration on the same terms as set forth in the Offer Notice, payable inrespect of the Shares being purchased.

(b)           Compelled Sale.  If the Non-Requesting Party does not delivera First Offer to the Requesting Party pursuant to Section 2.4(a) above, theRequesting Party may furnish a written notice (the “Compelled Sale Notice”) tothe Company and each of the other Stockholders notifying the Company of itselection to cause a Compelled Sale. Within 45 days of the receipt of the Compelled Sale Notice, the Companyshall have retained a nationally recognized investment bank reasonablysatisfactory to the Requesting Party. The Company shall take all actions necessary to consummate the CompelledSale as quickly as is reasonably practicable. The Company shall consult with the Requesting Party regularly until theconsummation of the Compelled Sale.  Theparties hereto agree that the Requesting Party shall have the right to cause theCompany to consummate the Compelled Sale within nine (9) months, in accordancewith the terms of this Section 2.4(b) and that all Stockholders will beobligated to consummate, consent to and raise no objection to the CompelledSale and to take all other actions reasonably necessary or desirable toconsummate such Compelled Sale, provided that, such obligationsshall not apply in the event that the Compelled Sale will result in a per shareprice less than the Offer Price and a Compelled Sale shall result in eachholder of Shares receiving the same form and amount of consideration per Share.

(c)           Suspension of Rights.  To the extent that the Requesting Party doesnot furnish a Compelled Sale Notice to the Company within 30 days of the OfferTermination Date, the Requesting Party’s right to elect to cause the Company toeffect a Compelled Sale in accordance with the terms of the Offer Notice shallterminate, and such Non-Requesting Party shall not have the right to deliver asubsequent Offer Notice until the day after the first anniversary of the OfferTermination Date.

2.5.          Corporate Governance.

(a)           Subject to Section 2.5(b) at eachannual meeting of the Stockholders and at each special meeting of theStockholders called for the purpose of electing directors of the Company, andat any time at which Stockholders of the Company shall have the right

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to, or shall, vote fordirectors of the Company, then, and in each event, the Stockholders herebyagree to attend each meeting in person or by proxy and hereby agree to vote allShares of the Company now owned or hereafter acquired by him, her or it(whether at a meeting or by written consent in lieu thereof) (i) to fix thenumber of members of the Board at up to seven (7), and (ii) to elect andthereafter to continue in office as a director of the Company the following:(a) two (2) directors nominated by the Berkshire Stockholders (who shallinitially be Brad Bloom and Ross Jones) (collectively the “Berkshire Representatives”);(b) two (2) directors nominated by the JH Stockholders (who shall initially beJohn Hansen and Peter Crowley) (collectively, the “JH Representatives”), (c) one (1) director who is nominated bythe Management Stockholders (who shall be Leslie Blodgett for as long as sheserves as the Chief Executive Officer of the Company) (the “ManagementRepresentative”) and (d) two individuals nominated by the other five nominees(the “Outside Representatives”) (one of whom shall initially be Lea Anne S.Ottinger; the second of whom shall be nominated at a later date).  As to the directors elected to the Boardpursuant to this Section 2.5(a), the following provisions shall apply:  (i) no Berkshire Representative may beremoved without the consent of a majority in interest of the BerkshireStockholders and (ii) no JH Representative may be removed without the consentof a majority in interest of the JH Stockholders.  Any vacancy on the Board shall be filled bythe designee of the Stockholders who would be entitled to designate suchdirector pursuant to this Section 2.5(a), and if there shall be no suchdesignation right, by a unanimous vote of the Berkshire Representatives, theJH Representatives and the Management Representative.  Each Stockholder shall, upon receipt ofnotice identifying such designee, take all action as may be necessary orappropriate, including without limitation, the voting of all Shares owned bysuch Stockholder, to elect the director so designated.  The Berkshire Stockholders shall have theright to designate one of the directors (who may or may not be a BerkshireRepresentative) to serve as the Chairman of the Board.  The initial Chairman shall be Ross Jones.

(b)           Board Alteration.

(i)           At any time after the occurrence of aTrigger Event, the Berkshire Stockholders may require, (i) upon delivery ofwritten notice to the Outside Representatives, that the Outside Representativesresign from the Board and (ii) upon written notice to the Stockholders, thattwo additional directors nominated by the Berkshire Stockholders be appointedto fill the vacancies caused by such resignations. Such additional Directorsshall be designated “Berkshire Representatives.”  Thereafter, notwithstanding anything to thecontrary in Section 2.5(a) above, the Board shall be composed of four (4)Berkshire Representatives, two (2) JH Representatives and the ManagementRepresentatives (who shall be Leslie Blodgett for as long as she serves as theChief Executive Officer of the Company).

(ii)          Each Stockholder agrees that such Stockholderand its Permitted Transferees shall take all action as may be necessary orappropriate, including without limitation, the voting of all shares owned bythem, to give effect to the provisions of this Section 2.5(b).

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(c)           Subsidiaries; Committees.

(i)           The board of directors of eachSubsidiary of the Company shall be composed of (i) one BerkshireRepresentative, one JH Representative and the Management Representative or (ii)after the occurrence of a Trigger Event so that the representation thereon ofBerkshire Representatives, JH Representatives and Management Representativesshall be in the same proportion, as nearly as may be, as the representation ofsuch directors on the Board.  The initialBoard of Directors of each Subsidiary shall be John Hansen, Ross Jones andLeslie Blodgett.

(ii)          The board of directors of the auditcommittee, the compensation committee and all other authorized committees ofthe Board and of each Subsidiary’s board of directors shall be composed of (i)one Berkshire Representative and one JH Representative and (if a committee ofthe Company) one Outside Representative or (ii) after the occurrence of aTrigger Event so that the representation thereon of Berkshire Representatives andJH Representatives and (if a committee of the Company) Outside Representativesshall be in the same proportion, as nearly as may be, as the representation ofsuch directors on the Board.

(d)           Required Governance Changes.  Notwithstanding anything to the contrarycontained herein, the Stockholders acknowledge that in anticipation of theconsummation of a Qualified Public Offering, the Company may be required tomake certain changes to its governance structure, which changes may beinconsistent with the terms of this Section 2.5, including, but not limited to,the limitation on the number of directors contained in Section 2.5(a) above andthe limitation on board and committee composition contained in Section 2.5(c),and the Stockholders agree to take all actions reasonably necessary to permitsuch required changes.

(e)           Observation Rights.  Each of (i) Fund I and its Affiliates thathold Shares and (ii) York Street and its Affiliates that hold Shares will havethe right to appoint an observer to the Board, who shall be entitled to attend(or at the option of such observer, monitor by telephone) all meetings of theBoard and each committee of the Board, but shall not be entitled to vote, andwho shall receive all reports, meeting materials, notices and other materialsas and when provided to the members of the Board.  In addition, the Berkshire Stockholders and(if no Trigger Event shall have occurred) the JH Stockholders shall each bepermitted to appoint an additional observer to attend meetings of theBoard.  Notwithstanding anything to thecontrary, the rights granted to the observers (including the right to receiveall materials, notices, minutes, consents and forms of consents in lieu ofmeetings) shall be temporarily suspended if and to the extent, in the reasonableopinion of the Board, the observers’ attendance at any such meeting or portionthereof (i) violates any law or Company policy regarding conflicts of interestwith interested members of the Board as applied generally to meetings of theBoard or (ii) otherwise could violate the fiduciary duties of the Board orconstitute a waiver of any attorney-client privilege that may exist inconnection with such meeting or any portion thereof, as advised by outsidecounsel to the Company.  The Companyshall reimburse any

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Stockholder for thereasonable out-of-pocket expenses incurred by any observer appointed by suchStockholder in connection with attendance at meetings of the Board.

(f)            Indemnification.  The Company will maintain indemnification forofficers and directors substantially similar to that which exists as of thedate hereof.

2.6.          Supermajority Provisions.

(a)           Without a prior Supermajority Voteor, after the occurrence of a Trigger Event, without the consent of BerkshireStockholders, holding a majority of all Shares held by Berkshire Stockholders,the Company shall not:

(i)           amend or repeal its charter orby-laws;

(ii)          amend or modify this Agreement;

(iii)         increase the number of members of theBoard; or

(iv)         enter into, or materially modify, anytransaction or arrangement with any Affiliate of any JH Stockholder or anyBerkshire Stockholder.

(b)           After the occurrence of a TriggerEvent, without the consent of JH Stockholders holding a majority of all Sharesheld by JH Stockholders, the Company will not:

(i)           Amend or modify its charter orby-laws in a manner that has a disproportionate adverse effect on the JHStockholders relative to the rights, power and privileges of the BerkshireStockholders;

(ii)          Amend or modify the StockholdersAgreement in a manner that has a disproportionate adverse effect on the rightsof the JH Stockholders thereunder; or

(iii)         Enter into, or materially modify, anytransaction or arrangement with any Berkshire Stockholder or any of itsAffiliates.

(c)           Any matter required to be submittedto the Stockholders of the Company for approval, in addition to anyrequirements contained in the charter or any statutory requirements, shall notbe effective (i) as long as no Trigger Event has occurred, without aSupermajority Vote or (ii) after the occurrence of a Trigger Event, without theapproval of Berkshire Stockholders holding a majority of the Shares held by allBerkshire Stockholders.

(d)           After (i) the occurrence of a TriggerEvent resulting from the death or disability of Hansen and (ii) the BerkshireStockholders’ exercise of their right to replace the Outside Representativespursuant to Section 2.5(b), the Company shall not, and shall not permit MDBeauty to, terminate the employment of Leslie Blodgett as Chief

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Executive Officer of MDBeauty without the consent of at least one of the JH Representatives.

(e)           Without (i) a prior SupermajorityVote or, after the occurrence of a Trigger Event, without the consent ofBerkshire Stockholders, holding a majority of all Shares held by BerkshireStockholders, and (ii) the approval of Mezzanine Stockholders holding amajority of Shares held by Mezzanine Stockholders, the Company will not takeany action to change its corporate structure from a corporation or to otherwisebecome a pass-through entity for tax purposes.

2.7.          Rights of Participation.

(a)           Rights of Participation.  The Company hereby grants to each Stockholderso long as it shall own any Shares, the right to purchase up to a pro rataportion of New Securities (as defined in paragraph (b) below) which theCompany, from time to time, proposes to sell or issue following the datehereof.  A Stockholder’s pro rataportion, for purposes of this Section 2.7, is the product of (i) a fraction,the numerator of which is the number of outstanding Shares which suchStockholder then owns and the denominator of which is the total number ofShares then actually outstanding, multiplied by (ii) the number of NewSecurities the Company proposes to sell or issue.

(b)           Definition of New Securities.  “New Securities” shall mean any Common Stockor other equity securities of the Company whether now authorized or not, anyrights, options or warrants to purchase Common Stock or other equity securitiesand any indebtedness or preferred stock of the Company which is convertibleinto Common Stock or other equity securities (or which is convertible into asecurity which is, in turn, convertible into Common Stock or other equitysecurities); provided, that the term “New Securities” does not include (i)indebtedness of the Company which is not by its terms convertible into CommonStock; (ii) Common Stock issued as a stock dividend to all holders of CommonStock pro rata or upon any subdivision or combination of shares of CommonStock; (iii) any employee stock options approved by the Board of Directors ofthe Company; (iv) Common Stock issued in exchange for the cancellation orretirement of any debt securities of the Company or in connection with anyrestructuring or other financial workout of the Company; (v) Common Stock orwarrants to purchase Common Stock issued to non-Affiliates of the Company aspart of a bona fide debt offering of units comprised of such Common Stock orwarrants, and a debt security of the Company; (vi) Common Stock issued inconnection with the acquisition of another corporation or other entity by theCompany by merger, purchase of substantially all assets or otherreorganization; (vii) the issuance of any Common Stock pursuant to the 2004Equity Incentive Plan or upon the exercise or conversion any warrants orpreferred stock to purchase Common Stock, or Options or other securities issuedpursuant to the Incentive Plans; (viii) Common Stock issuable in a PublicOffering or (ix) securities sold to individual, non-institutional investors(e.g. outside directors) or entities controlled by them in an amount not toexceed $500,000 to any given person or entity.

(c)           Notice from the Company.  In the event the Company proposes to issueNew Securities, the Company shall give each Stockholder who has a right ofparticipation

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under this Section 2.7written notice of such proposal, describing the type of New Securities and theprice and the terms upon which the Company proposes to issue the same.  For a period of twenty (20) business daysfollowing the delivery of such notice by the Company, the Company shall bedeemed to have irrevocably offered to sell to each Stockholder its pro ratashare of such New Securities for the price and upon the terms specified in thenotice.  Each Stockholder may exerciseits rights of participation hereunder by giving written notice to the Company andstating therein the quantity of New Securities to be purchased.  Each Stockholder shall also be entitled toindicate a desire to purchase all or a portion of any New Securities remainingafter such pro rata allocation.  Thespecific allocation of any such remaining New Securities shall be made in thesole discretion of the Board; provided that the Board shall allocate themaximum number of New Securities possible.

(d)           Sale by the Company.  In the event that the Stockholders who have aright of participation under this Section 2.7 fail to commit to purchase all ofsuch New Securities within said twenty (20) business day period, the Companyshall have ninety (90) days thereafter to sell the New Securities with respectto which the right of participation was not exercised, at a price and upon termsno more favorable to the purchasers thereof than specified in the Company’snotice given pursuant to Section 2.7(c). If the sale of such New Securities is not completed prior to the end ofsuch 90-day period, the Company must separately comply with this Section 2.7 toeffect such sale of New Securities.

(e)           Closing.  The closing for any such issuance shall takeplace as proposed by the Company with respect to the New Securities to beissued, at which closing the Company shall deliver certificates for the NewSecurities in the respective names of the purchasing Stockholders againstreceipt of payment therefor.

(f)            Exception.  Notwithstanding anything tothe contrary in this Section 2.7, JH MDB Investors, L.P. may delegate its preemptive rightsunder this Section 2.7 with respect to any issuance of New Securities to anyAffiliate thereof, provided that after giving effect to the completion of theoffer and sale of such New Securities, no Trigger Event shall have occurred.

2.8.          Confidentiality; Non-Solicitation.

(a)           Confidentiality.  Each Stockholder will, and shall ensure thatits Affiliates shall, maintain the confidentiality of any confidential andproprietary information of the Company (“Proprietary Information”) using thesame standard of care, but in no event less than reasonable care, as it appliesto its own confidential information, except for any Proprietary Informationwhich is publicly available or a matter of public knowledge generally. Nothingherein shall prevent any Stockholder from using Proprietary Information toenforce its rights under this Agreement or from disclosing a summary ofProprietary Information to the partners of such Stockholder as to theperformance of the Company.  Nothing inthis Section 2.8(a) shall apply or be construed to apply to BNP Paribas’Affiliate which is the Administrative Agent and a Lender under the CreditAgreement, any other Lender under the Credit Agreement or any Lender under the

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Subordinated Loan PurchaseAgreement or to modify such entity’s obligations, liabilities or lack thereofin such capacity under the terms of the agreements governing the CreditAgreement.

(b)           Non-Solicitation. For a periodof two years from and after the date any Stockholder and its Affiliates ownless than 5% of the equity of the Company, no Berkshire Stockholder or JHStockholder will, and will not permit its Affiliates to, directly or indirectly(a) recruit, lure or entice away, or in any other manner persuade or attempt topersuade, any person who is an employee of the Company or any of itsSubsidiaries to leave the employ of the Company or any Subsidiary, as the casemay be or (b) offer employment to, employ or engage as a consultant anyemployee of the Company or any of its Subsidiaries.  If the final judgment of a court of competentjurisdiction declares that any term or provision of this Section 2.8(b) isinvalid or unenforceable, the parties hereto agree that the court making thedetermination of invalidity or unenforceability will have the power to reducethe scope or duration of the term or provision, to delete specific words orphrases, or to replace any invalid or unenforceable term or provision with aterm or provision that is valid and enforceable and that comes closest to expressingthe intention of the invalid or unenforceable term or provision, and thisagreement will be enforceable as so modified after the expiration of the timewithin which the judgment may be appealed.

2.9.          Financial and Business Information.  As long as (a) the JH Stockholders or theBerkshire Stockholders, respectively, hold 17.5% of the fully diluted equity ofthe Company and (b) each of (i) Fund I and Fund P, (ii) York Street, (iii) BNPParibas and (iv) CIT Lending Service Corporation, respectively, hold 62.5% ofthe Shares purchased by them on June 10, 2004 (appropriately adjusted forsplits and similar events), such Stockholders shall be entitled to receive fromthe Company (i) as soon as practicable following the end of each fiscal monthof the Company, unaudited monthly financial reports, (ii) as soon aspracticable following the end of each fiscal year of the Company, auditedannual financial reports, (iii) when and as approved to the Board of Directors,budgets and business plans of the Company and (iv) as promptly as is reasonablypracticable, any other operating information reasonably requested by suchStockholders.  Notwithstanding anythingto the contrary herein, each of the Mezzanine Stockholders and BNP Paribasshall be entitled to receive unaudited quarterly financial statements andaudited annual financial reports for so long as such Stockholder holds anyShares.

ARTICLEIII.
REGISTRATION RIGHTS

3.1.          General.  Forpurposes of Article III: (a) the terms “register,” “registered” and “registration”refer to a registration effected by preparing and filing a registrationstatement in compliance with the 1933 Act and the declaration or ordering ofeffectiveness of such registration statement; (b) the term “Holder” means anyStockholder holding Registrable Securities; and (c) the shares of Common Stockissuable upon the exercise of Rollover Options, vested Time Options and vestedand earned Performance Options shall be deemed to be outstanding and held bythe holders of such Rollover Options, vested Time Options and vested and earnedPerformance Options.

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3.2.          Demand Registration Initiated by the BerkshireStockholders.

(a)           Subject to paragraph (b) hereof, onor after the date on which the Company has effected a Qualified PublicOffering, if the Company shall receive a written request (specifying that it isbeing made pursuant to this Section 3.2) from Berkshire Stockholders holding anaggregate of fifty percent (50%) or more of the interest of RegistrableSecurities held by the Berkshire Stockholders that the Company file aregistration statement under the 1933 Act, or a similar document pursuant toany other statute then in effect corresponding to the 1933 Act, covering theregistration of at least the lesser of (i) $20 million of RegistrableSecurities (determined based on Fair Market Value of the Registrable Securitiesat the time of the request) or (ii) one hundred percent (100%) of theRegistrable Securities then held by the Berkshire Stockholders, then theCompany shall promptly notify all other Holders of such request pursuant toSection 3.4(b) and shall use its best efforts to cause all RegistrableSecurities that the Holders have requested (within thirty (30) days of suchCompany notice) be registered, to be registered under the 1933 Act.

(b)           If the total amount of RegistrableSecurities that the Holders request to be included in such offering exceeds theamount of securities that the underwriters reasonably believe compatible withthe success of the offering, then the Company will include in such registrationonly the number of securities which, in the opinion of such underwriters, canbe sold, in accordance with the procedures set forth in Section 3.4(b);

(c)           The Company shall be obligated to effectfor the Berkshire Stockholders three (3) registrations of RegistrableSecurities pursuant to this Section 3.2; provided, that in the event that, atthe request of the underwriters, the amount of Registrable Securities that theBerkshire Stockholders requested to be included in any offering is reduced bymore than thirty percent (30%), such offering shall be deemed not to be aregistration demanded by the Berkshire Stockholders for purposes of thisSection 3.2(c).

3.3.          Demand Registration Initiated by the JH Stockholders.

(a)           Subject to paragraph (b) hereof, onor after the date on which the Company has effected a Qualified PublicOffering, if the Company shall receive a written request (specifying that it isbeing made pursuant to this Section 3.3) from JH Stockholders holding anaggregate of fifty percent (50%) or more of the interest of RegistrableSecurities held by the JH Stockholders that the Company file a registrationstatement under the 1933 Act, or a similar document pursuant to any other statutethen in effect corresponding to the 1933 Act, covering the registration of atleast the lesser of (i) $20 million of Registrable Securities (determined basedon Fair Market Value of the Registrable Securities at the time of the request),or (ii) one hundred percent (100%) of the Registrable Securities, then held bythe JH Stockholders, then the Company shall promptly notify all other Holdersof such request pursuant to Section 3.4(b) and shall use its best efforts tocause all Registrable Securities that the Holders have requested (within thirty(30) days of such Company notice) be registered, to be registered under the1933 Act.

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(b)           If the total amount of RegistrableSecurities that all Holders request to be included in such offering exceeds theamount of securities that the underwriters reasonably believe compatible withthe success of the offering, then the Company will include in such registrationonly the number of securities which, in the opinion of such underwriters, canbe sold, in accordance with the procedures set forth in Section 3.4(b).

(c)           The Company shall be obligated toeffect for the JH Stockholders three (3) registrations of RegistrableSecurities pursuant to this Section 3.3; provided, that in the event that, atthe request of the underwriters, the amount of Registrable Securities that theJH Stockholders requested to be included in any offering is reduced by more thanthirty percent (30%), such offering shall be deemed not to be a registrationdemanded by the JH Stockholders for purposes of this Section 3.3(c).

3.4.          Piggyback Registration.

(a)           If, at any time, the Companydetermines to register any of its equity securities for its own account underthe 1933 Act in connection with the public offering of such securities solelyfor cash on a form that would also permit the registration of any of theRegistrable Securities, the Company shall, at each such time, promptly giveeach Holder written notice of such determination.  Upon the written request of any Holderreceived by the Company within thirty (30) days after the giving of any suchnotice by the Company, the Company shall use its best efforts to cause to beregistered under the 1933 Act all of the Registrable Securities of such Holderthat each Holder has requested be registered. If the total amount of Registrable Securities that are to be included bythe Company for its own account and at the request of Holders thereof exceedsthe amount of securities that the underwriters reasonably believe compatiblewith the success of the offering, then the Company will include in suchregistration only the number of securities which in the opinion of suchunderwriters can be sold, in the following order:

(i)           first, the equity securities to beregistered on behalf of the Company; and

(ii)          then the Registrable Securitiesrequested to be included by the Holders pro rata based on the number ofRegistrable Securities owned by each of them which each of them request beincluded in such registration; provided, however, that if an underwriter who isnot an Affiliate or Associate of any Holder, in good faith requires, inconnection with such underwritten offering, that the number of RegistrableSecurities to be sold by any Holder be apportioned or excluded, such number ofRegistrable Securities of such Holder shall be reduced or not included to theextent so requested by said underwriter;

(b)           If the Company at any time proposesto register any of its equity securities for the account of any Holder pursuantto Section 3.2, Section 3.3 or Section 3.10 of this Agreement, under the 1933Act in connection with the public offering of such securities solely for cashon a form that would also permit the registration of any of the RegistrableSecurities, the Company shall, at each such time, promptly give each Holderwritten

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notice of suchdetermination.  Upon the written requestof any Holder received by the Company within thirty (30) days after the givingof any such notice by the Company, the Company shall use its best efforts tocause to be registered under the 1933 Act all of the Registrable Securities ofsuch Holder that each Holder has requested be registered.  If the total amount of Registrable Securitiesthat are to be included by the requesting Holder under Section 3.2., Section3.3 or Section 3.10, by the Company for its own account and at the request ofall other Holders thereof exceeds the amount of securities that theunderwriters reasonably believe compatible with the success of the offering,then the Company will include in such registration only the number ofsecurities which in the opinion of such underwriters can be sold, in thefollowing order:

(i)           first, the equity securities to beregistered on behalf of the Holders pro rata basedon the number of Registrable Securities owned by each of them which each ofthem request be included in such registration; and

(ii)          second, the equity securities to beregistered on behalf of the Company;

provided, however, thatif an underwriter who is not an Affiliate or Associate of any Holder or theCompany, in good faith, requires in connection with such underwritten offeringthat the number of Registrable Securities to be sold by any Holder or theCompany be apportioned or excluded, such number of Registrable Securities ofsuch Holder or the Company shall be reduced or not included to the extent sorequested by said underwriter.

3.5.          Obligations of the Company.  Whenever required under Sections 3.2, 3.3,3.4 or 3.10 hereof to use its best efforts to effect the registration of anyRegistrable Securities, the Company shall:

(a)           prepare and file with the SEC aregistration statement with respect to such Registrable Securities, and use itsbest efforts to cause such registration statement to become and remaineffective until the completion of the proposed offering;

(b)           as expeditiously as reasonablypossible, prepare and file with the SEC such amendments and supplements to suchregistration statement and the prospectus used in connection with suchregistration statement as may be necessary to comply with the provisions of the1933 Act with respect to the disposition of all securities covered by such registrationstatement;

(c)           as expeditiously as reasonablypossible furnish to the Holders such numbers of copies of a prospectus,including a preliminary prospectus, in conformity with requirements of the 1933Act, and such other documents they may reasonably request in order tofacilitate the disposition of Registrable Securities owned by them;

(d)           as expeditiously as reasonablypossible use its best efforts to register and qualify the securities covered bysuch registration statement under such securities or Blue Sky laws of suchjurisdictions as shall be reasonably appropriate for the distribution of thesecurities covered by the registration statement, provided that the Companyshall not be required in connection therewith or as a condition thereto to qualifyto do business or

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to file a general consent toservice of process in any such jurisdiction, and further provided that(anything in this Agreement to the contrary notwithstanding with respect to thebearing of expenses) if any jurisdiction in which the securities shall bequalified shall require that expenses incurred in connection with thequalification of the securities in that jurisdiction be borne by sellingstockholders, then such expenses shall be payable by selling stockholders prorata, to the extent required by such jurisdiction;

(e)           use its best efforts to cause allRegistrable Securities covered by such registration statement to be registeredwith, or approved by, such other governmental agencies or authorities as may benecessary to enable the seller or sellers thereof to consummate the dispositionof such Registrable Securities;

(f)            notify each seller of RegistrableSecurities covered by such registration statement, at any time when a prospectusrelating thereto is required to be delivered under the 1933 Act, upon discoverythat, or upon the happening of any event as a result of which, the prospectusincluded in such registration statement, as then in effect, includes an untruestatement of a material fact or omits to state any material fact required to bestated therein or necessary to make the statements therein not misleading inthe light of the circumstances under which they were made, and at the requestof any such seller or Holder, promptly prepare and furnish to such seller orHolder a reasonable number of copies of a supplement to or an amendment of suchprospectus as may be necessary so that, as thereafter delivered to thepurchasers of such securities, such prospectus shall not include an untruestatement of a material fact or omit to state a material fact required to bestated therein or necessary to make the statements therein not misleading inthe light of the circumstances under which they were made; provided, that, eachHolder agrees that it shall not sell any Registrable Securities covered by sucha registration statement upon notice from the Company until receipt of noticethat such statement or omission has been corrected;

(g)           otherwise use its best efforts tocomply with all applicable rules and regulations of the Securities and ExchangeCommission, and make available to its security holders, as soon as reasonablypracticable, an earnings statement covering the period of at least twelve (12)months, but not more than eighteen (18) months, beginning with the first fullcalendar month after the effective date of such registration statement, whichearnings statement shall satisfy the provisions of Section 11(a) of the 1933Act, and will furnish to each such seller at least two (2) business days priorto the filing thereof a copy of any amendment or supplement to suchregistration statement or prospectus and shall not file any amendment orsupplement thereof to which any such seller shall have reasonably objected,except to the extent required by law, on the grounds that such amendment orsupplement does not comply in all material respects with the requirements ofthe 1933 Act or of the rules or regulations thereunder;

(h)           provide and cause to be maintained atransfer agent and registrar for all Registrable Securities covered by suchregistration statement from and after a date not later than the effective dateof such registration statement; and

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(i)            use its best efforts to list allRegistrable Securities covered by such registration statement on a securitiesexchange on which any of class of Registrable Securities is then listed.

3.6.          Furnish Information. It shall be a condition precedent to the obligations of the Company totake any act pursuant to Article III that the Holders shall furnish to theCompany such information regarding them, the Registrable Securities held bythem, and the intended method of disposition of such securities as the Companyshall reasonably request and as shall be required in connection with the actionto be taken by the Company.

3.7.          Expenses of Registration.  All expenses incurred in connection with aregistration pursuant to Sections 3.2, 3.3, 3.4 or 3.10 hereof (excludingunderwriters, discounts and commissions, which shall be borne by the sellers),including without limitation all registration and qualification fees, printers’and accounting fees, fees and disbursements of counsel for the Company (whichcounsel shall be reasonably satisfactory to the holders of a majority of theRegistrable Securities then being registered), and the reasonable fees anddisbursements of one counsel for the selling Holders and their PermittedTransferees (which counsel shall be selected by the Holders which together withtheir Permitted Transferees own a majority of the Registrable Securities beingsold under the applicable registration) shall be borne by the Company;provided, however, that all such expenses in connection with any amendment orsupplement to a registration statement or prospectus filed more than nine (9)months after the effective date of such registration statement because anyHolder of Registrable Securities has not effected the disposition of thesecurities requested to be registered shall be paid by such Holder; provided,further, however, that the Holders, which together with their PermittedTransferees, own a majority of the Registrable Securities being sold under theregistration may withdraw any request made pursuant to Section 3.2 or Section3.3 hereof, in which event such first withdrawn request shall be deemed for allpurposes herein not to have been made.

3.8.          Underwriting Requirements.  Each Holder (together with its PermittedTransferees) selling Registrable Securities in any registration pursuant to Sections3.2, 3.3 or 3.4 shall, as a condition for inclusion of such RegistrableSecurities in such registration execute and deliver an underwriting agreementacceptable to the Company and consented to by the Berkshire Stockholders and,to the extent no Trigger Event has occurred, the JH Stockholders, in the caseof a registration pursuant to Section 3.4, acceptable to the BerkshireStockholders, in the case of a registration pursuant to Section 3.2 oracceptable to the JH Stockholders, in the case of a registration pursuant toSection 3.3, and in each case the underwriters with respect to suchregistration.  Such underwriters shall be(i) selected by the Company and consented to by the Berkshire Stockholders and,to the extent no Trigger Event has occurred,  the JH Stockholders, in the case of aregistration pursuant to Section 3.4(a), (ii) selected by the BerkshireStockholders and reasonably consented to by the Company, in the case of aregistration pursuant to Section 3.4(b) initiated by the Berkshire Stockholders,or (iii) selected by the JH Stockholders and reasonably consented to by theCompany, in the case of a registration pursuant to Section 3.4(b) initiated bythe JH Stockholders.

Notwithstanding the foregoing, in any registrationpursuant to Sections 3.2 or 3.3, each Holder shall take all action with respectto executing such underwriting agreement, including being liable in respect of(i) any representations and warranties being made by each selling

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Holder, and (ii) any indemnification agreements and “lock-up”agreements made by each selling Holder for the benefit of the underwriters insuch underwriting agreement; provided, however, that except with respect to individualrepresentations and warranties regarding such matters as legal capacity or dueorganization of such participating Holder, authority to participate in thePublic Offering, compliance by such Holder with laws and agreements applicableto it, ownership (free and clear of liens, charges, encumbrances and adverseclaims) of Registrable Securities to be sold by such Holder and accuracy ofinformation with respect to such Holder furnished for inclusion in anydisclosure document relating to each Public Offering, the aggregate amount ofthe liabilities of such participating Holder pursuant to such underwritingagreement shall not exceed the lesser of (a) such participating Holder’s prorata portion of any such liability, in accordance with such participatingHolder’s portion of the total number of Registrable Securities included in thepublic offering, or (b) the net proceeds received by such participating Holderfrom the public offering.

Notwithstandingthe foregoing, in any registration pursuant to Sections 3.4, each Holder shalltake all action with respect to executing such underwriting agreement,including being liable in respect of (i) any representations and warrantiesbeing made by each selling Holder, and (ii) any indemnification agreements and “lock-up”agreements made by each selling Holder for the benefit of the underwriters insuch underwriting agreement; provided, however, that (a) withrespect to individual representations and warranties regarding such matters aslegal capacity or due organization of such participating Holder, authority toparticipate in the Public Offering, compliance by such Holder with laws andagreements applicable to it, ownership (free and clear of liens, charges,encumbrances and adverse claims) of Registrable Securities to be sold by suchHolder and accuracy of information with respect to such Holder furnished forinclusion in any disclosure document relating to each Public Offering, theaggregate amount of such liability shall not exceed the net proceeds receivedby such participating Holder from the public offering and (b) to the extentselling stockholders give further representations, warranties and indemnities,then with respect to all other representations, warranties and indemnities ofsellers of shares in such Public Offering, the aggregate amount of suchliability shall not exceed the lesser of (i) such participating Holder’spro rata portion of any such liability, in accordance with such participatingHolder’s portion of the total number of Registrable Securities included in thepublic offering or (ii) the net proceeds received by such participating Holderfrom the public offering.

3.9.          Indemnification. In the event any Registrable Securities are included in a registrationstatement under Article III:

(a)           To the fullest extent permitted bylaw, the Company will indemnify and hold harmless each Holder (which term, forpurposes of this Section 3.9, shall include each Stockholder, including the JHStockholders, the Berkshire Stockholders, the Management Stockholders and theOther Stockholders holding Registrable Securities and shall also include thedirectors, officers and employees of such Stockholders and their Affiliates)requesting or joining in a registration, any underwriter (as defined in the1933 Act) for it, and each person, if any, who controls such Holder or suchunderwriter within the meaning of the 1933 Act, against any losses, claims,damages or liabilities, joint or several, to which they may become subjectunder the 1933 Act or otherwise, insofar as such losses, claims, damages orliabilities (or actions or proceedings, whether commenced or threatened, inrespect thereof) arise out of or are based on any untrue or

32



alleged untrue statement ofany material fact contained in such registration statement including anypreliminary prospectus or final prospectus contained therein or any amendmentsor supplements thereto, or arise out of or are based upon the omission oralleged omission to state therein a material fact required to be stated therein,or necessary to make the statements therein not misleading, or arise out of anyviolation by the Company of any rule or regulation promulgated under the 1933Act applicable to the Company and relating to action or inaction required ofthe Company in connection with any such registration, and will reimburse eachsuch Holder, underwriter or control person for any legal or other expensesreasonably incurred by them in connection with investigating or defending anysuch loss, claim, damage, liability or action; provided, however, that theindemnity agreement contained in this Section 3.9(a) shall not apply to amountspaid in settlement of any such loss, claim, damage, liability or action if suchsettlement is effected without the consent of the Company (which consent shallnot be unreasonably withheld), nor shall the Company be liable to anyone forany such loss claim, damage, liability or action to the extent that it arisesout of or is based upon an untrue statement or omission made in connection withsuch registration statement, preliminary prospectus, final prospectus oramendments or supplements thereto in reliance upon and in conformity withwritten information furnished expressly for use in connection with suchregistration by such Holder, underwriter or control person.  Such indemnity shall remain in full force andeffect regardless of any investigation made by or on behalf of such Holder,underwriter or control person and shall survive the transfer of such securitiesby such Holder.

(b)           To the fullest extent permitted bylaw, each Holder requesting or joining in a registration will indemnify andhold harmless the Company, each of its directors, each of its officers who hassigned the registration statement, each person, if any, who controls theCompany within the meaning of the 1933 Act, and each agent and any underwriterfor the Company and any person who controls any such agent or underwriter andeach other Holder and any person who controls such Holder (within the meaningof the 1933 Act) against any losses, claims, damages or liabilities to whichthe Company or any such director, officer, control person, agent, underwriter,or other Holder may become subject, under the 1933 Act or otherwise, insofar assuch losses, claims, damages or liabilities (or actions in respect thereto)arise out of or are based upon an untrue statement of any material factcontained in such registration statement, including any preliminary prospectusor final prospectus contained therein or any amendments or supplements thereto,or arise out of or are based upon the omission to state therein a material factrequired to be stated therein or necessary to make the statements therein notmisleading, in each case to the extent, but only to the extent, that suchuntrue statement or omission was made in such registration statement,preliminary or final prospectus, or amendments or supplements thereto, inreliance upon and in conformity with written information furnished by suchHolder expressly for use in connection with such registration; and such Holderwill reimburse any legal or other expenses reasonably incurred by the Companyor any such director, officer, control person, agent, underwriter, or otherHolder in connection with investigating or defending any such loss, claim,damage, liability or action; provided, however, the indemnity obligation ofeach such Holder hereunder shall be limited to and shall not exceed theproceeds actually received by such Holder upon a sale of Registrable Securitiespursuant to a registration statement

33



hereunder; and provided,further that the indemnity agreement contained in this Section 3.9(b) shall notapply to amounts paid in settlements effected without the consent of suchHolder (which consent shall not be unreasonably withheld); and provided,further, that no Holder shall be required to indemnify any Person against anyliability arising from any untrue or misleading statement or omission containedin any preliminary prospectus if such deficiency is corrected in the finalprospectus or for any liability which arises out of the failure of any Personto deliver a prospectus as required by the 1933 Act.  Such indemnity shall remain in full force andeffect regardless of any investigation made by or on behalf of the Company orany such director, officer, Holder, underwriter or control person and shallsurvive the transfer of such securities by such Holder.

(c)           Any person seeking indemnificationunder this Section 3.9 will (i) give prompt notice to the indemnifying party ofany claim with respect to which it seeks indemnification (but the failure togive such notice will not affect the right to indemnification hereunder, unlessthe indemnifying party is materially prejudiced by such failure) and (ii)unless in such indemnified party’s reasonable judgment a conflict of interestmay exist between such indemnified and indemnifying parties with respect tosuch claim, permit such indemnifying party, and other indemnifying partiessimilarly situated, jointly to assume the defense of such claim with counselreasonably satisfactory to the parties. In the event that the indemnifying parties cannot mutually agree as tothe selection of counsel, each indemnifying party may retain separate counselto act on its behalf and at its expense. The indemnified party shall in all events be entitled to participate insuch defense at its expense through its own counsel.  If such defense is not assumed by theindemnifying party, the indemnifying party will not be subject to any liabilityfor any settlement made without its consent (but such consent will not beunreasonably withheld).  No indemnifyingparty will consent to entry of any judgment or enter into any settlement whichdoes not include as an unconditional term thereof the giving by the claimant orplaintiff to such indemnified party of a release from all liability in respectof such claim or litigation.  Anindemnifying party who is not entitled to, or elects not to, assume the defenseof a claim will not be obligated to pay the fees and expenses of more than onecounsel for all parties indemnified by such indemnifying party with respect tosuch claim, unless in the reasonable judgment of any indemnified party aconflict of interest may exist between such indemnified party and any other ofsuch indemnified parties with respect to such claim, in which event theindemnifying party shall be obligated to pay the reasonable fees and expensesof such additional counsel.

(d)           If for any reason the foregoingindemnification is unavailable to any party or insufficient to hold it harmlessas and to the extent contemplated by the preceding paragraphs of this Section3.9, then each indemnifying party shall contribute to the amount paid orpayable by the indemnified party as a result of such loss, claim, damage orliability in such proportion as is appropriate to reflect the relative benefitsreceived by the Company, on the one hand, and the applicable indemnified party,as the case may be, on the other hand, and also the relative fault of theCompany and any applicable indemnified party, as the case may be, as well asany other relevant equitable considerations.

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3.10.        Registration on Form S-3.  After the date on which the Company haseffected a Qualified Public Offering, if (i) one or more Berkshire Stockholdersor JH Stockholders request in writing (specifying that such request is beingmade pursuant to this Section 3.10) that the Company file a registrationstatement on Form S-3 (or any successor form to Form S-3 regardless of itsdesignation) for a public offering of securities having an aggregate value ofnot less than $5,000,000 and (ii) the Company is entitled to use such form toregister such securities, then the Company shall file a Form S-3 with respectto such securities within ninety (90) days from the date of such request, andshall use its best efforts to cause such registration statement to becomeeffective; provided, that the Company shall not be required to effect suchregistration more frequently than once every six (6) months.

3.11.        Reports Under Securities Exchange Act of 1934.  With a view to making available to theHolders and their Permitted Transferees the benefits of Rule 144 promulgatedunder the 1933 Act and any other rule or regulation of the Securities andExchange Commission that may at any time permit a Holder to sell securities ofthe Company to the public without registration, the Company agrees to use itsbest efforts to:

(a)           make and keep public informationavailable, as those terms are understood and defined in Rule 144, at all timessubsequent to ninety (90) days after the effective date of the firstregistration statement covering a Public Offering filed by the Company;

(b)           file with the Securities and ExchangeCommission in a timely manner all reports and other documents required of theCompany under the 1933 Act and the 1934 Act; and

(c)           furnish to any Holder forthwith uponrequest a written statement by the Company that it has complied with thereporting requirements of Rule 144 (at any time after ninety (90) days afterthe effective date of said first registration statement filed by the Company),and of the 1933 Act and the 1934 Act (at any time after it has become subjectto such reporting requirements), a copy of the most recent annual or quarterlyreport of the Company, and such other reports and documents so filed by theCompany as may be reasonably requested in availing any Holder of any rule orregulation of the Securities and Exchange Commission permitting the selling ofany such securities without registration.

3.12.        No Inconsistent Agreements.  The Company represents and warrants that ithas not entered into, and covenants that it will not hereafter enter into, anyagreement with respect to the registration of its securities that isinconsistent with the rights granted to the Holders of Registrable Securitiesin this Agreement without the prior written consent of (i) a majority ininterest of the Holders, (ii) the holders of more than 50% of the RegistrableSecurities held by the Berkshire Stockholders, (iii) to the extent noTrigger Event has occurred, the holders of more than 50% of the RegistrableSecurities held by the JH Stockholders and (iv) to the extent such agreementwould have a disproportionately adverse effect on any Stockholder (distinctfrom the effect on the Stockholders in general), such affected Stockholder.

3.13.        Stock Split. If, on or after the receipt by the Company of a request for registrationof a public offering pursuant to Section 3.2 or Section 3.3 hereof, theproposed managing

35



underwriter or underwriters of such offeringreasonably believes that that a forward or reverse stock split would increasethe likelihood of success of such offering, the Company will promptly prepareand submit to the Board, use best efforts to cause to be adopted by the Boardand Stockholders, and, if so adopted, file and cause to become effective, anappropriate amendment to its charter. Each Stockholder, together with his or its Permitted Transferees, herebyagrees to vote the Shares held by him or it in favor of adopting suchamendment.

3.14.        Timing and Other Limitations.

(a)           No request shall be made with respectto any registration pursuant to Section 3.2 or Section 3.3 hereof within onehundred and twenty (120) days immediately following the effective date of anyregistration statement filed pursuant to this Article III.

(b)           If the Company shall furnish to theHolders of Registrable Securities requesting a registration pursuant to Section3.2 or Section 3.3 hereof a certificate signed by a majority of the Board ofDirectors of the Company stating that in the good faith judgment of the Boardof Directors of the Company, it would be seriously detrimental to the Companyor its stockholders for such registration statement to be filed on or beforethe date filing would be required and it is therefore advisable to defer thefiling of such registration statement, then the Company shall have the right todefer the filing of the registration statement for a period of not more than120 days and the request pursuant to Section 3.2 or Section 3.3 then made shallnot be counted for purposes of determining the number of registrations pursuantto Section 3.2 or Section 3.3 hereof; provided, however, that the Company maynot utilize such right more than once in any twelve-month period.

3.15.        Lock-up.  Inconnection with any Public Offering of Shares, no holder of Shares shallTransfer any Shares for a period beginning seven days immediately preceding thedate upon which the Company in good faith believes that the relevantregistration statement shall become effective, and ending on the 90th day (orin the case of the Initial Public Offering, 180th day) (or, at thediscretion of the underwriter, such lesser period) following the effectivenessof such registration statement with respect to such Public Offering without theprior written consent of the underwriters managing the offering; provided,however, that the provisions of this Section 3.15 shall not prohibit anyPermitted Transfers, provided that the Permitted Transferee agrees to be boundby the terms of this Agreement, including this Section 3.15.

ARTICLEIV.
MISCELLANEOUS

4.1.          Appointment of Proxies.

(a)           Each of the Management Stockholdershereby appoints Leslie Blodgett (the “Management Proxy”) as the agent, proxy,and attorney-in-fact for the Management Stockholders (including, withoutlimitation, full power and authority to act on the Management Stockholders’behalf) to take any action, should the Management Proxy elect to do so in hisor her sole discretion: (i) to vote on all matters to be voted on under thisAgreement, (ii) to receive all notices on behalf of each ManagementStockholder, (iii) to execute and deliver on behalf of the ManagementStockholders any amendment to

36



this Agreement so long assuch amendments shall apply to all Management Stockholders and (vii) to takeall other actions to be taken by or on behalf of the Management Stockholders asa group and exercise any and all rights which the Management Stockholders arepermitted or required to do or exercise under this Agreement other thanexercise any rights with respect to investment decisions.  Each of the Management Stockholders herebyagrees not to assert any claim against, and agrees to indemnify and holdharmless, the Management Proxy from and against any and all losses incurred bythe Management Proxy or any of his Affiliates, partners, employees, agents,investment bankers or representatives, or any Affiliate of any of theforegoing, relating to the Management Proxy’s capacity as the Management Proxyother than such claims or losses resulting from the Management Proxy’s grossnegligence or willful misconduct.  Byexecution hereof, Leslie Blodgett hereby agrees to act as Management Proxyuntil such time as a new Management Proxy is elected by the majority ininterest of the Management Stockholders.

(b)           Each of the Stockholders and theCompany hereby appoints Berkshire Partners, LLC (“Berkshire Partners”) as theagent, proxy, and attorney-in-fact for the Stockholders and the Company(including, without limitation, full power and authority to act on theStockholders’ and the Company’s behalf) to take any action, should BerkshirePartners elect to do so in its sole discretion in connection with thenegotiation of any conflict or dispute arising with the Selling Securityholdersunder the Merger Agreement.

4.2.          Regulatory Cooperation.  If any Stockholder reasonably determinesthat, by reason of any existing or future federal or state rule, regulation,guideline, order, request or directive (whether or not having the force of lawand whether or not failure to comply therewith would be unlawful) (collectively, a “Regulatory Requirement”), it is effectively restricted orprohibited from holding any Shares (including any shares or other securitiesdistributable in any merger, reorganization, readjustment or otherreclassification of such shares), the Company and the other Stockholders shalltake such action as may be reasonably necessary to permit such Stockholder tocomply with such Regulatory Requirement; provided, that no such action pursuantto this Section 4.2 shall adversely affect the Company, the rights of the otherStockholders hereunder or the rights, preferences, qualifications andlimitations of any shares of the Company held by the other Stockholders.  Such reasonable action to be taken mayinclude the Company’s authorization of one or more new classes of non-votingcommon stock that is otherwise substantially identical to the Shares then ownedby such Stockholder and the amendment of the Company’s certificate ofincorporation or any other documents or instruments executed in connection withthe Shares held by such Stockholder. Such Stockholder shall give written notice to the Company and the otherStockholders of any such determination and the actions necessary to comply withsuch Regulatory Requirement, and the Company and such other Stockholders shall takeall reasonably necessary steps to comply with such determination asexpeditiously as possible, provided that any expenses incurred by the Companyin complying with such Regulatory Requirement shall be paid by the requestingStockholder.

4.3.          Remedies.  Theparties to this Agreement acknowledge and agree that the covenants of theCompany and the Stockholders set forth in this Agreement may be enforced inequity by a decree requiring specific performance.  In the event of a breach of any materialprovision of this Agreement, the aggrieved party will be entitled to instituteand prosecute a

37


proceeding to enforce specific performance of suchprovision, as well as to obtain damages for breach of this Agreement.  Without limiting the foregoing, if anydispute arises concerning the sale or other disposition of any of the Sharessubject to this Agreement or concerning any other provisions hereof or theobligations of the parties hereunder, the parties to this Agreement agree thatan injunction may be issued in connection therewith (including, withoutlimitation, restraining the sale or other disposition of such Shares orrescinding any such sale or other disposition). Such remedies shall be cumulative and non-exclusive and shall be inaddition to any other rights and remedies the parties may have under this Agreementor otherwise.

4.4.          Entire Agreement; Amendment; Waiver.  This Agreement, together with the Schedulehereto, sets forth the entire understanding of the parties, and as of theclosing contemplated by the Merger Agreement supersedes all prior agreementsand all other arrangements and communications, whether oral or written, withrespect to the subject matter hereof. The Schedule may be amended to reflect changes in the composition of theStockholders and changes in stock ownership that may occur from time to time asa result of Permitted Transfers or Transfers permitted under Article IIhereof.  Amendments to the Schedulereflecting Permitted Transfers or Transfers permitted under Article II hereofshall become effective when a copy of the Agreement as executed by any newtransferee is filed with the Company, except as otherwise provided in Section4.13 hereof.  Any other amendments to, orthe termination of, this Agreement shall require the prior written consent ofthe Company and a majority in interest of each of the Berkshire Stockholdersand, provided that no Trigger Event has occurred, the JH Stockholders; providedthat (a) any such amendment adversely affecting the Management Stockholders ina manner distinct from the effect of such amendment on the BerkshireStockholders and the JH Stockholders shall require the written consent ofManagement Stockholders holding a majority of the Shares held by the ManagementStockholders, (b) any such amendment adversely affecting the Other Stockholdersin a manner distinct from the effect of such amendment on the BerkshireStockholders and the JH Stockholders shall require the written consent of OtherStockholders holding a majority of the Shares held by the Other Stockholders(c) any such amendment adversely affecting the Mezzanine Stockholders in a mannerdistinct from the effect of such amendment on the Berkshire Stockholders andthe JH Stockholders shall require the written consent of Mezzanine Stockholdersholding a majority of the Shares held by the Mezzanine Stockholders; (d) afterthe occurrence of a Trigger Event, any such amendment adversely affecting theJH Stockholders in a manner distinct from the Berkshire Stockholders shallrequire the written consent of JH Stockholders holding a majority of the Sharesheld by all JH Stockholders and (e) any such amendment adversely affecting anysingle Stockholder in a manner distinct from the effect of such amendment onthe other Stockholders shall require the written consent of such affectedStockholder.  Notwithstanding anyprovisions to the contrary contained herein, any party may waive any rightswith respect to which such party is entitled to the benefits under thisAgreement.  No waiver of or consent toany departure from any provision of this Agreement shall be effective unlesssigned in writing by the party entitled to the benefit thereof.

4.5.          Severability. It is the desire and intent of the parties that the provisions of thisAgreement be enforced to the fullest extent permissible under the laws andpublic policies applied in each jurisdiction in which enforcement issought.  Accordingly, the invalidity orunenforceability of any particular provision of this Agreement shall not affectthe other provisions hereof, and this Agreement shall be construed in allrespects as if the invalid or

38



unenforceable provision were omitted.  Notwithstanding the foregoing, if suchprovision could be more narrowly drawn so as not to be invalid or unenforceablein such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,without invalidating the remaining provisions of this Agreement or affectingthe validity or enforceability of such provision in any other jurisdiction.

4.6.          Notices.  Allnotices or other communications required or permitted to be given hereundershall be in writing and shall be delivered in the manner specified herein or,in the absence of such specification, shall be deemed to have been duly givenseven (7) days after mailing by certified mail, when delivered by hand, uponconfirmation of receipt by telecopy, or one (1) business day after sending byovernight delivery service, to the respective addresses of the parties setforth below:

(a)           For notices and communications to the Company to:

                                                STB Beauty, Inc.

                                                425 Bush Street

                                                SanFrancisco, CA  94108

                                                Attention:  Chief Financial Officer

                                                Facsimile: (415)288-3501

 

                                witha copy to:

 

                                                Ropes& Gray LLP

                                                OneInternational Place

                                                Boston,Massachusetts 02110

                                                Attention:David Chapin, Esq.

                                                Facsimile:(617) 951-7050

 

(b)           For notices and communications to theJH Stockholders, to their respective addresses set forth in the Schedule, ineither case, with a copy to:

                                                Latham& Watkins LLP

                                                12636High Bluff Drive, Suite 300

                                                SanDiego, CA  92130

                                                Attention:  Robert Burwell, Esq.

                                                Facsimile:  (858)523-5450

 

(c)           For notices and communications to theBerkshire Stockholders, to their respective addresses set forth in theSchedule, with a copy to:

                                                Ropes& Gray LLP

                                                OneInternational Place

                                                Boston,Massachusetts 02110

                                                Attention:David Chapin, Esq.

                                                Facsimile:(617) 951-7050

 

 

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(d)           For notices and communications to anyManagement Stockholders or Other Stockholders, to their respective addressesset forth in the Schedule.

By notice complying with the foregoing provisions ofthis Section 4.5, each party shall have the right to change the mailing addressfor future notices and communications to such party.

4.7.          Binding Effects Assignment.  This Agreement shall be binding upon andinure to the benefit of the parties hereto and to their respective transferees,successors and assigns; provided, however, that the rights under this Agreementmay not be assigned except as expressly provided herein, it being understoodthat the Company’s rights hereunder may be assigned by the Company to anycorporation which is the surviving entity in a merger, consolidation or likeevent involving the Company.  No suchassignment shall relieve an assignor of its obligations hereunder.

4.8.          Governing Law. This Agreement shall be governed by the law of the State of Delaware(regardless of the laws that might otherwise govern under applicable Delawareprinciples of conflicts of law) as to all matters, including but not limited tomatters of validity, construction, effect, performance and remedies.

4.9.          Termination. Without affecting any other provision of this Agreement requiringtermination of any rights in favor of any Stockholder or any transferee ofShares, the provisions of Article II of this Agreement shall terminate as tosuch Stockholder or transferee, when, pursuant to and in accordance with thisAgreement, such Stockholder or transferee, as the case may be, no longer ownsany Shares or Options; provided, that termination pursuant to this Section 4.8shall only occur in respect of a Stockholder after all Permitted Transferees inrespect thereof also no longer own any Shares. Notwithstanding the foregoing, Article II of this Agreement shall terminateupon the consummation of a Qualified Public Offering.

4.10.        Recapitalizations, Exchanges, Etc.  The provisions of this Agreement shall apply,to the full extent set forth herein with respect to Shares, to any and allshares of capital stock of the Company or any successor or assign of the Company(whether by merger, consolidation, sale of assets or otherwise) which may beissued in respect of, in exchange for, or in substitution of the Shares, byreason of a stock dividend, stock split, stock issuance, reverse stock split,combination, recapitalization, reclassification, merger, consolidation orotherwise.

4.11.        Action Necessary to Effectuate the Agreement.  The parties hereto agree to take or cause tobe taken all such corporate and other action as may be necessary to effect theintent and purposes of this Agreement.

4.12.        Purchase for Investment; Legend on Certificate.  Each of the parties acknowledges that all ofthe Shares held by such party are being (or have been) acquired for investmentand not with a view to the distribution thereof and that no transfer,hypothecation or assignment of Shares may be made except in compliance withapplicable federal and state securities laws. All the certificates of Shares of the Company which are now or hereafterowned by the Stockholders and which are subject to the terms of this Agreementshall have endorsed in writing, stamped or printed, thereon the followinglegend:

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“Thesecurities represented by this Certificate have not been registered under theSecurities Act of 1933, as amended, and may not be sold, offered for sale,pledged or hypothecated in the absence of an effective registration statementas to the securities under said Act or an opinion of counsel satisfactory tothe Company and its counsel that such registration is not required.”

“Thesecurities represented by this Certificate are subject to the terms andconditions, including certain restrictions on transfer, of a StockholdersAgreement dated as of June 10, 2004, as amended from time to time, and none ofsuch securities, or any interest therein, shall be transferred, pledged,encumbered or otherwise disposed of except as provided in that Agreement.  A copy of the Stockholders Agreement is onfile with the Secretary of the Company and will be mailed to any properlyinterested person without charge within five (5) business days after receipt ofa written request.”

All shares shall also bear all legends required byfederal and state securities laws.

4.13.        Effectiveness of Transfers.  All Shares transferred by a Stockholder(other than pursuant to an effective registration statement under theSecurities Act or pursuant to a Rule 144 transaction) shall, except asotherwise expressly stated herein, be held by the Transferee thereof pursuantto this Agreement.  Such Transfereeshall, except as otherwise expressly stated herein, have all the rights and besubject to all of the obligations of a Stockholder under this Agreement (asthough such party had so agreed pursuant to Section 4.14 hereof) automaticallyand without requiring any further act by such transferee or by any parties tothis Agreement.  Without affecting thepreceding sentence, if such transferee is not a Stockholder on the date of suchtransfer, then such transferee, as a condition to such transfer, shall confirmsuch transferee’s obligations hereunder in accordance with Section 4.14hereof.  No Shares shall be transferredon the Company’s books and records, and no transfer of Shares shall be otherwiseeffective, unless any such transfer is made in accordance with the terms andconditions of this Agreement, and the Company is hereby authorized by all ofthe Stockholders to enter appropriate stop transfer notations on its transferrecords to give effect to this Agreement.

4.14.        Other Stockholders. Subject to the restrictions on transfers of Shares contained herein, anyperson or entity who is not already a Stockholder acquiring Shares, shall, onor before the transfer or issuance to it of Shares, sign a counterpart orjoinder to this Agreement in form reasonably satisfactory to the Company andshall thereby become a party to this Agreement to be bound hereunder as (i) aJH Stockholder if a Permitted Transferee (other than the Company) of a JHStockholder, (ii) a Berkshire Stockholder if a Permitted Transferee (other thanthe Company) of a Berkshire Stockholder, (iii) a Management Stockholder if aPermitted Transferee (other than the Company) of a Management Stockholder, (iv)a Mezzanine Stockholder if a Permitted Transferee (other than the Company) of aMezzanine Stockholder or (v) an Other Stockholder if such transferee (otherthan the Company) is a Permitted Transferee acquiring under clause (vii) of thedefinition of Permitted Transferee or does not fall within clause (i), (ii),(iii) or (iv) above.  Each suchadditional Stockholder shall be listed on the Schedule, as amended from time totime.

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4.15.        No Waiver.  Nocourse of dealing and no delay on the part of any party hereto in exercising anyright, power or remedy conferred by this Agreement shall operate as waiverthereof or otherwise prejudice such party’s rights, powers and remedies.  No single or partial exercise of any rights,powers or remedies conferred by this Agreement shall preclude any other orfurther exercise thereof or the exercise of any other right, power or remedy.

4.16.        Counterparts. This Agreement may be executed in two or more counterparts each of whichshall be deemed an original but all of which together shall constitute one andthe same instrument, and all signatures need not appear on any one counterpart.

4.17.        Headings.  Allheadings and captions in this Agreement are for purposes of reference only andshall not be construed to limit or affect the substance of this Agreement.

4.18.        Third Party Beneficiaries.  Nothing in this Agreement is intended orshall be construed to entitle any Person other than the Company and theStockholders to any claim, cause of action, right or remedy of any kind.

4.19.        Consent to Jurisdiction.  The Company and each of the Stockholders, byits, his or her execution hereof, (i) hereby irrevocably submit to theexclusive jurisdiction of the state courts of the State of Delaware for the purposes of any claim or actionarising out of or based upon this Agreement or relating to the subject matterhereof, (ii) hereby waive, to the extent not prohibited by applicable law, andagree not to assert by way of motion, as a defense or otherwise, in any suchclaim or action, any claim that it or he is not subject personally to thejurisdiction of the above-named courts, that its or his property is exempt orimmune from attachment or execution, that any such proceeding brought in theabove-named court is improper, or that this Agreement or the subject matterhereof may not be enforced in or by such court, and (iii) hereby agree not tocommence any claim or action arising out of or based upon this Agreement orrelating to the subject matter hereof other than before the above named courtsnor to make any motion or take any other action seeking or intending to causethe transfer or removal of any such claim or action to any court other than theabove-named courts whether on the grounds of inconvenient forum orotherwise.  The Company and each of theStockholders hereby consent to service of process in any such proceeding, andagree that service of process by registered or certified mail, return receiptrequested, at its address specified pursuant to Section 4.5 hereof isreasonably calculated to give actual notice.

4.20.        WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW WHICH CANNOT BE WAIVED,EACH PARTY HERETO HEREBY WAIVES AND COVENANTS THAT IT WILL NOT ASSERT (WHETHERAS PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUMIN RESPECT OF ANY ISSUE OR ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT,TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION ARISING OUT OF ORBASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF OR IN ANY WAY CONNECTEDWITH OR RELATED OR INCIDENTAL TO THE TRANSACTIONS CONTEMPLATED HEREBY, IN EACHCASE WHETHER NOW EXISTING OR HEREAFTER ARISING. EACH PARTY HERETO ACKNOWLEDGES THAT IT HAS BEEN INFORMED BY THE OTHERPARTIES HERETO THAT THIS SECTION 4.19 CONSTITUTES A MATERIAL INDUCEMENT UPON WHICHTHEY ARE

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RELYING AND WILL RELY IN ENTERING INTO THISAGREEMENT.   ANY PARTY HERETO MAY FILE ANORIGINAL COUNTERPART OR A COPY OF THIS SECTION 4.19 WITH ANY COURT AS WRITTENEVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIALBY JURY.

[Remainder of PageIntentionally Left Blank]

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IN WITNESS WHEREOF, each of the undersigned has dulyexecuted this Agreement (or caused this Agreement to be executed on its behalfby its officer or representative thereunto duly authorized) under seal as ofthe date first above written.

 

THE COMPANY:

STB BEAUTY, INC.

 

 

 

 

 

 

 

By:

/s/ Ross M. Jones

 

 

Name: Ross M. Jones

 

 

Title: President

 

 

 

 

 

 

THE JH STOCKHOLDERS:

JH MDB INVESTORS, L.P.

 

By:

JHMD Beauty GP, LLC

 

Its:

General Partner

 

 

 

 

 

 

 

By:

/s/ John Hansen

 

 

Name: John Hansen

 

 

Title: Manager

 

[SignaturePage to Stockholders Agreement]

 



 

THE BERKSHIRE

STOCKHOLDERS:

BERKSHIRE FUND VI

INVESTMENT CORP.

 

 

 

 

 

 

 

By:

/s/ Ross M. Jones

 

 

Name: Ross M. Jones

 

 

Title: Vice President

 

 

 

 

 

 

 

BERKSHIRE FUND V,
LIMITED PARTNERSHIP

 

By:

Fifth Berkshire Associates LLC,

 

 

its General Partner

 

 

 

 

 

 

 

By:

/s/ Ross M. Jones

 

 

Name: Ross M. Jones

 

 

Title: Manager Director

 

 

 

 

 

 

 

BERKSHIRE FUND VI,
LIMITED PARTNERSHIP

 

By:

Sixth Berkshire Associates LLC,

 

 

its General Partner

 

 

 

 

 

 

 

By:

/s/ Ross M. Jones

 

 

Name: Ross M. Jones

 

 

Title: Manager Director

 

 

 

 

 

 

 

BERKSHIRE INVESTORS LLC

 

 

 

 

 

 

 

By:

/s/ Ross M. Jones

 

 

Name: Ross M. Jones

 

 

Title: Manager Director

 

[SignaturePage to Stockholders Agreement]

 



 

THE MANAGEMENT

 

 

STOCKHOLDERS:

 

/s/ Leslie A. Blodgett

 

 

Leslie A. Blodgett

 

 

 

/s/ Mary Ann Dunn

 

/s/ Phyllis Halili

Mary Ann Dunn

 

Phyllis Halili

 

 

 

/s/ Joshua A. Harrell

 

/s/ Jaime Hutter

Joshua A. Harrell

 

Jaime Hutter

 

 

 

/s/ Ibtisam Mogannam

 

/s/ Vicki Parotino

Ibtisam Mogannam

 

Vicki Parotino

 

 

 

/s/ Kristen Kendrick-Bigley

 

/s/ Sharon Zuckerman

Kristen Kendrick-Bigley

 

Sharon Zuckerman

 

 

 

/s/ Ron Pulga

 

/s/ Meri Feldman

Ron Pulga

 

Meri Feldman

 

 

 

/s/Andrew Molloy

 

/s/ Gigi Desin-Phillips

Andrew Molloy

 

Gigi Desin-Phillips

 

 

 

/s/ Deirdre Burke

 

/s/ Erika Nagel

Deirdre Burke

 

Erika Nagel

 

 

 

/s/ Sharon Lee

 

/s/ Staci Wilson

Sharon Lee

 

Staci Wilson

 

 

 

/s/ Julia Keroke

 

/s/ Sarina Godin

Julia Keroke

 

Sarina Godin

 

[SignaturePage to Stockholders Agreement]

 



 

THE OTHER

 

 

STOCKHOLDERS:

PARIBAS NORTH AMERICA, INC.

 

 

 

 

 

 

By:

/s/ Everett Schenk

 

 

Name: Everett Schenk

 

 

Title: President & Chief Executive Officer

 

 

 

 

 

 

 

/s/ Lea Anne Ottinger

 

Lea Anne Ottinger

 

 

 

 

 

 

 

RGIP, LLC

 

 

 

 

 

 

By:

/s/ Alfred O. Rose

 

 

Name: Alfred O. Rose

 

 

Title: Managing Member

 

 

 

 

 

 

 

SQUAM LAKE INVESTORS VI, L.P.

 

By:

BGPI, Inc.,

 

 

its Managing General Partner

 

 

 

 

 

 

 

By:

/s/ Bill Doherty

 

 

Name: Bill Doherty

 

 

Title: Vice President

 

 

 

 

 

 

 

SUNAPEE SECURITIES, INC.

 

 

 

 

 

 

By:

/s/ Mary Welch

 

 

Name: Mary Welch

 

 

Title: Assistant Treasurer

 

 

 

 

 

 

 

WABAN INVESTORS II, L.P.

 

By:

BG Investments, Inc.,

 

 

its Managing General Partner

 

 

 

 

 

 

 

By:

/s/ Graham Luce

 

 

Name: Graham Luce

 

 

Title: Director

 

[SignaturePage to Stockholders Agreement]

 



 

THE OTHER

 

 

STOCKHOLDERS:

/s/ Stephen R. Karp

 

Stephen R. Karp

 

 

 

 

 

 

 

STEPHEN R. KARP 1999 TRUST VI

 

 

 

 

 

 

By:

/s/ Steven R. Karp

 

 

Stephen R. Karp

 

 

Trustee

 

 

 

 

 

 

 

/s/ Steven S. Fischman

 

Steven S. Fischman

 

 

 

 

 

 

 

/s/ Steven S. Fischman

 

Gregory W. Sullivan with Power of Attorney dated 6/02/04

 

[SignaturePage to Stockholders Agreement]

 



THE OTHER

 

 

STOCKHOLDERS:

CIT GROUP, INC.

 

 

 

 

 

 

 

By:

/s/ John P. Sirico, II

 

 

Name: John P. Sirico, II

 

 

Title: Vice President and Assistant Chief Counsel

 

[SignaturePage to Stockholders Agreement]

 



 

THE MEZZANINE

 

 

STOCKHOLDERS:

GLEACHER MEZZANINE FUND I, L.P.

 

By:

Gleacher Mezzanine LLC,

 

 

its General Partner

 

 

 

 

 

 

 

By:

/s/ Mary Gay

 

 

Name: Mary Gay

 

 

Title: Managing Director

 

 

 

 

 

 

 

GLEACHER MEZZANINE FUND P, L.P.

 

By:

Gleacher Mezzanine LLC,

 

 

its General Partner

 

 

 

 

 

 

 

By:

/s/ Mary Gay

 

 

Name: Mary Gay

 

 

Title: Managing Director

 

 

 

 

 

 

 

YORK STREET MEZZANINE

 

PARTNERS, L.P.

 

By:

York Street Capital Partners, L.L.C.,

 

 

its General Partner

 

 

 

 

 

 

 

By:

/s/ Christopher A. Layden

 

 

Name: Christopher A. Layden

 

 

Title: Managing Director

 

[SignaturePage to Stockholders Agreement]

 



 

ExhibitA

 

Stockholder

 

Type of Stockholder

 

Common Stock

 

Rollover Options

 

Performance
Options

 

Time Options

 

Berkshire Fund VI
Investment Corp.
c/o Berkshire Partners LLC
One Boston Place
Boston, MA 02108-4401
Attn: Ross Jones




 

Berkshire

 

864,528

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Berkshire Fund V, Limited
Partnership
c/o Berkshire Partners LLC
One Boston Place
Boston, MA 02108-4401
Attn: Ross Jones




 

Berkshire

 

10,016,567

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Berkshire Fund VI Limited
Partnership
c/o Berkshire Partners LLC
One Boston Place
Boston, MA 02108-4401
Attn: Ross Jones




 

Berkshire

 

10,036,429

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Berkshire Investors LLC
c/o Berkshire Partners LLC
One Boston Place
Boston, MA 02108-4401
Attn: Ross Jones



 

Berkshire

 

1,118,946

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JH MDB Investors, L.P.
451 Jackson Street
San Francisco, CA 94111-1615

 

JH

 

14,868,783

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Paribas North America, Inc. 787 Seventh Avenue
32nd Floor
New York, NY 10019

 

Other

 

1,115,159

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Steven R. Karp
c/o New England
Development
One Wells Ave
Newton, MA 02459



 

Other

 

92,930

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Steven R. Karp 1999 Trust VI
c/o New England
Development
One Wells Ave
Newton, MA 02459



 

Other

 

37,172

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Steven S. Fischman
c/o New England
Development
One Wells Ave
Newton, MA 02459



 

Other

 

37,172

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gregory W. Sullivan
c/o New England
Development
One Wells Ave
Newton, MA 02459



 

Other

 

18,586

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Lea Anne S. Ottinger
18 Brook Bay

 

Other

 

111,516

 

 

 

 

 

 

 

 



 

Mercer Island, WA 98040

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

RGIP, LLC
c/o Ropes & Gray LLP
One International Place
Boston, MA 02110
Attn: R. Bradford Malt



 

Other

 

92,930

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Squam Lake Investors VI, L.P.
c/o Bain & Company, Inc.
131 Dartmouth Street
Boston, MA 02116
Attn: Bill Doherty



 

Other

 

86,983

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sunapee Securities, Inc.
c/o Bain & Company, Inc.
131 Dartmouth Street
Boston, MA 02116
Attn: Mary Welch



 

Other

 

3,215

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Waban Investors II, L.P.
c/o The Bridgespan Group, Inc.
535 Boylston Street, 10thFloor
Boston, MA 02116
Attn: Alan W. Tuck



 

Other

 

2,732

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CIT Lending Services
Corporation
1 CIT Drive
Livingston, NJ 07039


 

Other

 

185,860

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gleacher Mezzanine Fund I, L.P.
c/o Gleacher Mezzanine LLC
660 Madison Avenue, 17th Floor
New York, NY 10021


 

Mezzanine

 

821,696

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Gleacher Mezzanine Fund P, L.P.
c/o Gleacher Mezzanine LLC
660 Madison Avenue, 17th Floor
New York, NY 10021


 

Mezzanine

 

293,463

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

York Street Mezzanine Partners, L.P.
One Pluckemin Way
Bedminster, NJ 07921

 

Mezzanine

 

1,115,159