Exhibit 10.8
▇▇▇▇▇▇▇▇▇ & CO INC.
STOCKHOLDERS' AGREEMENT
DATED AS OF AUGUST __, 1999
TABLE OF CONTENTS
Page
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ARTICLE I LIMITATIONS ON TRANSFER OF SECURITIES....................................3
Section 1.1. General.........................................................3
Section 1.2. General Transfer Restrictions...................................3
Section 1.3. Compliance with Certain Restrictions............................3
Section 1.4. Transfers Following Death or Disability.........................4
Section 1.5. Transfers with the Consent of Board of Directors................4
Section 1.6. Transfers to Permitted Transferees..............................4
Section 1.7. Compliance with Law and Regulations.............................4
Section 1.8. Legend on Certificates; Entry of Stop Transfer Orders...........4
Section 1.9. Certificates to be Held by Company..............................5
Section 1.10. Transfers in Violation of Agreement Void........................6
ARTICLE II VOTING AGREEMENT.........................................................6
Section 2.1. Voting by Stockholders..........................................6
Section 2.2. Designation of Successors.......................................6
ARTICLE III REPRESENTATIONS AND WARRANTIES...........................................7
Section 3.1. Representations and Warranties of the Stockholders..............7
ARTICLE IV DEFINITIONS..............................................................8
ARTICLE V MISCELLANEOUS...........................................................10
Section 5.1. Standstill Provisions..........................................10
Section 5.2. Expenses.......................................................11
Section 5.3. Filing of Schedule 13D or 13G..................................11
Section 5.4. Notices........................................................12
Section 5.5. Term of the Agreement..........................................12
Section 5.6. Amendments; Waivers............................................13
Section 5.7. Adjustment upon Changes in Capitalization; Adjustments upon
Changes of Control; Representatives, Successors and Assigns....13
Section 5.8. Disinterested Board Members to Make Determinations.............14
Section 5.9. Severability...................................................14
Section 5.10. Representatives, Successors and Assigns........................14
Section 5.11. Governing Law..................................................14
Section 5.12. Specific Performance...........................................14
Section 5.13. Arbitration....................................................15
Section 5.14. Submission to Jurisdiction.....................................15
Section 5.15. Further Assurances.............................................15
Section 5.16. Execution in Counterparts......................................16
Section 5.17. Entire Agreement...............................................16
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "AGREEMENT"), dated as of August
___, 1999, is by and among (i) ▇▇▇▇▇▇▇▇▇ & Co Inc., a Delaware corporation (the
"COMPANY"), (ii) the Exchanging Members (as defined below) listed on Schedule I
hereto and (iii) the Employee Stockholders (as defined below) listed on
Schedules I and II hereto. The Exchanging Members and Employee Stockholders are
collectively referred to herein as the "STOCKHOLDERS." Except as otherwise
provided herein, capitalized terms used herein have the respective meanings
ascribed thereto in Article IV of this Agreement.
W I T N E S S E T H :
WHEREAS, the Company, LaB Investing Co. L.L.C., a New York limited
liability company ("INVESTING"), and the Exchanging Members have entered into an
Exchange Agreement, dated as of the date hereof (the "EXCHANGE AGREEMENT"),
pursuant to which the Exchanging Members have agreed to contribute their
respective membership interests in Investing to the Company in exchange for
common stock, par value $.01 per share ("COMMON STOCK"), of the Company (or, in
the case of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III, a
combination of shares of Common Stock and cash) (the "LLC EXCHANGE") in
connection with the Company's proposed initial public offering of shares of
Common Stock (the "IPO");
WHEREAS, the Company, the Exchanging Members and the Employee
Stockholders desire to enter into certain agreements with respect to the
Transfer (as defined below) and voting of their Common Stock and various other
matters in order to continue harmonious relationships among themselves with
respect to the conduct of the business and affairs of the Company and ▇▇▇▇▇▇▇▇▇
& Co., a New York limited partnership of which Investing is the sole general
partner ("▇▇▇▇▇▇▇▇▇ ▇▇"); and
WHEREAS, it is a condition under the Exchange Agreement that the
parties hereto enter into this Agreement.
NOW THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and provisions herein contained and for good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
LIMITATIONS ON TRANSFER OF SECURITIES
Section 1.1. GENERAL. Each Stockholder agrees that he or she shall not
Transfer any Covered Securities beneficially owned by him or her, except in
accordance with all of the following: (a) the terms
of this Agreement, (b) the restrictions on the transfer of the Company's
securities contemplated by the Plan of Incorporation of ▇▇▇▇▇▇▇▇▇ ▇▇, dated as
of June 10, 1999, (c) in the case of employees of the Company Group, any trading
restrictions generally applicable to employees of the Company Group, (d) the
terms of any "lock-up" agreement required by the underwriters of the IPO and (e)
the terms of any other contract or agreement with the Company or other
undertaking by which such Stockholder is bound and to which such Covered
Securities are subject.
Section 1.2. GENERAL TRANSFER RESTRICTIONS.
(a) Each Stockholder agrees that he or she may Transfer
Covered Securities only as follows, subject to applicable securities laws:
(i) up to 33-1/3% of such Covered Securities at any
time after the third anniversary of the date of the consummation of the
IPO;
(ii) up to an additional 33-1/3% of such Covered
Securities at any time after the fourth anniversary of the date of the
consummation of the IPO; and
(iii) all of such Covered Securities at any time
after the fifth anniversary of the date of the consummation of the IPO.
(b) Notwithstanding the provisions set forth in Section 1.2(a)
above, each Stockholder agrees that for so long as such Stockholder remains in
the employ of any member of the Company Group, such Stockholder shall at all
times be the sole beneficial Owner of that number of Covered Securities equal to
25% or more of the aggregate number of Covered Securities (1) beneficially owned
by such Stockholder immediately after the consummation of the IPO and (2)
beneficial ownership of which is acquired by such Stockholder thereafter, with
no reduction in such aggregate number for Covered Securities disposed of by such
Stockholder.
Section 1.3. COMPLIANCE WITH CERTAIN RESTRICTIONS.
(a) Each Stockholder agrees that, with respect to all Covered
Securities beneficially owned by such Stockholder, he or she shall comply with
the restrictions on Transfer imposed by the underwriters of the IPO.
(b) Each Stockholder agrees that he or she shall, at the
request of the Company, comply with any future restrictions on Transfer imposed
by or with the consent of the Company from time to time in connection with any
future offerings of securities of the Company, whether by the Company or by any
securityholder of the Company and whether or not such restrictions on Transfer
refer to such Stockholder by name.
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(c) Each Stockholder agrees that, with respect to all Covered
Securities beneficially owned by such Stockholder, he or she will comply with
any restrictions imposed by the Company from time to time to enable the Company
or any party to an agreement with the Company to account for a business
combination by the pooling of interests method.
Section 1.4. TRANSFERS FOLLOWING DEATH OR DISABILITY. Notwithstanding
any other provisions of this Agreement, upon the death or Disability of any
Stockholder, such Stockholder (or his or her estate) may Transfer his or her
Covered Securities free of any provisions of this Agreement, subject to the
provisions of any other agreement relating to this subject matter.
Section 1.5. TRANSFERS WITH THE CONSENT OF BOARD OF DIRECTORS.
Notwithstanding any other provisions of this Agreement, a Stockholder may
Transfer any number of Covered Securities at any time with the prior written
consent of the Board of Directors, which consent may be withheld or delayed, or
granted on such terms and conditions as the Board of Directors may determine, in
its sole discretion.
Section 1.6. TRANSFERS TO PERMITTED TRANSFEREES. Notwithstanding any
other provision of this Agreement, a Stockholder may Transfer any number of
Covered Securities to a Permitted Transferee at any time, provided that it shall
be a condition to any such Transfer that such Permitted Transferee agree in
writing to be bound by all the provisions of this Agreement as if such Permitted
Transferee were a Stockholder from and after the date of such Transfer for all
purposes of this Agreement.
Section 1.7. COMPLIANCE WITH LAW AND REGULATIONS. Each Stockholder
agrees that any Transfer of Covered Securities by such Stockholder shall be in
compliance with any applicable constitution, rule or regulation of, or any
applicable policy of, any of the exchanges or associations or other institutions
with which any member of the Company Group has membership or other privileges
(including, without limitation, the NYSE), federal and securities laws, and any
applicable law, rule or regulation of the Commission or any other governmental
agency having jurisdiction.
Section 1.8. LEGEND ON CERTIFICATES; ENTRY OF STOP TRANSFER ORDERS. (a)
Each Stockholder agrees that each outstanding certificate representing any
Covered Securities that are subject to this Agreement shall bear an endorsement
noted conspicuously on each such certificate reading substantially as follows:
"The securities evidenced by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Act"), or under any
state securities law and may not be sold, offered for sale, pledged,
hypothecated or otherwise transferred in the absence of an effective
registration statement with respect thereto under the Act and any
applicable state securities law, or the receipt by the Company of an
opinion of counsel, reasonably satisfactory to the Company, that such
registration is not required.
The securities represented by this certificate are subject to the
provisions of a Stockholders' Agreement dated as of August __, 1999
among the Company and certain
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persons listed on Schedules I and II to such agreement, a copy of which
is on file at the principal executive office of the Company, and such
securities may be sold, assigned, pledged or otherwise transferred only
in accordance with such agreement."
(b) Each Stockholder agrees to the entry of stop transfer
orders against the Transfer of legended certificates representing securities of
the Company not in compliance with this Agreement.
Section 1.9. CERTIFICATES TO BE HELD BY COMPANY. (a) Each Stockholder
agrees that the certificates representing his or her Covered Securities shall be
issued in the name of a nominee holder to be designated by the Company and shall
be held in custody by the Company at its principal office. The Company shall,
upon the request of any such Stockholder or the estate of any Stockholder, as
the case may be, in writing addressed to the Secretary of the Company or any
officer designated by the Secretary (which request shall include a
representation by such Stockholder or his or her estate that he or she is then
permitted to Transfer a specified number of Covered Securities under the
provisions of this Agreement), promptly release from custody the certificates
representing such specified number of such Stockholder's Covered Securities
which are then intended and permitted to be Transferred under the provisions of
this Agreement.
(b) Subject to the Stockholders having provided appropriate
written direction to the Company, whenever the nominee holder shall receive any
cash dividend or other cash distribution upon any Covered Securities deposited
pursuant to Section 1.8(a), the Company shall cause the nominee holder to
distribute promptly such cash dividend or other distribution (by any other
manner that it may determine, net of its charges and expenses in effecting such
conversion), by checks drawn on a bank in the United States, to the Stockholders
in proportion to the number of Covered Securities Owned by each of them
respectively; provided that the Company shall cause the nominee holder to make
appropriate adjustments in the amounts so distributed in respect of any amounts
required to be withheld by the nominee holder from any distribution on account
of taxes. The nominee holder shall distribute only such amount as can be
distributed without distributing to any Stockholder a fraction of one cent, and
any balance not so distributable shall be held by the nominee holder (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the nominee holder for distribution to the Stockholders.
Section 1.10. TRANSFERS IN VIOLATION OF AGREEMENT VOID. Any attempted
Transfer of Covered Securities not made in accordance with the provisions of
this Agreement shall be void, and the Company shall not register, or cause or
permit the registration, of Common Stock Transferred in violation of this
Agreement.
ARTICLE II
VOTING AGREEMENT
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Section 2.1. VOTING BY STOCKHOLDERS. At any meeting of the stockholders
of the Company called to vote with respect to any corporate action or where
action by stockholders of the Company is taken by written consent, each
Stockholder agrees to vote or act by written consent with respect to all Covered
Securities then Owned by such Stockholder on all such matters in which action is
proposed to be taken as determined by a majority of ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. (or the successors designated in
accordance with Section 2.2 herein to replace them in the event of their death,
disability or resignation) (collectively, the "VOTING EXECUTIVES").
Notwithstanding any other provisions of this Agreement, the power to direct the
vote of each Stockholder with respect to the Covered Securities Owned by such
Stockholder shall remain in full effect until such Stockholder no longer Owns
such Covered Securities.
Section 2.2. DESIGNATION OF SUCCESSORS. In the event of the death,
disability or resignation of any of the Voting Executives, successors shall be
designated as follows:
(a) in the event of such death, disability or resignation of
any one Voting Executive, such Voting Executive's successor shall be designated
by mutual consent of the remaining Voting Executives;
(b) in the event of the simultaneous death, disability or
resignation of any two Voting Executives, such Voting Executives' successors
shall be designated by the sole remaining Voting Executive; or
(c) in the event of the simultaneous death, disability or
resignation of all three Voting Executives, such Voting Executives' successors
shall be designated by a majority in interest of the Stockholders who then Own
Covered Securities.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder severally represents and warrants to the Company and to each other
Stockholder that:
(a) he or she has (and with respect to Covered Securities to
be acquired, will have) good, valid and marketable title to the Covered
Securities, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind, other than pursuant to this Agreement,
the Plan of Incorporation of ▇▇▇▇▇▇▇▇▇ ▇▇, the Exchange Agreement or another
agreement with the Company by which such Stockholder is bound and to which the
Covered Securities are subject; and
(b) (i) he or she is of sound mind and has full legal capacity
to enter into, execute and deliver this Agreement and perform his or her
obligations hereunder; (ii) this Agreement constitutes his or
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her legal, valid and binding obligation, enforceable against him or her in
accordance with its terms (subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles);
(iii) neither his or her execution and delivery of this Agreement nor the
consummation of the transactions contemplated herein conflicts with or results
in a breach of any of the terms, conditions or provisions of any agreement or
instrument to which he or she is a party or by which his or her assets are
bound, or constitutes a default under any of the foregoing, or violates any law
or regulation; (iv) he or she has obtained all authorizations, consents,
approvals and clearances of all courts, governmental agencies and authorities,
and any other person, if any (including his or her spouse with respect to the
interest of such spouse in his or her Covered Securities if the consent of such
spouse is required), required to permit him or her to enter into this Agreement
and to consummate the transactions contemplated herein; (v) there are no
actions, suits or proceedings pending, or, to his or her knowledge, threatened
against or affecting him or her or his or her assets in any court or before or
by any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality which, if adversely determined, would
impair his or her ability to perform this Agreement; (vi) the performance of
this Agreement will not violate any order, writ, injunction, decree or demand of
any court or federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality to which he or she is
subject; and (vii) no statement, representation or warranty made by him or her
in this Agreement, nor any information provided by him or her for inclusion in a
report filed pursuant to Section 6.3 hereof or in a registration statement filed
by the Company contains or will contain any untrue statement of a material fact
or omits or will omit to state a material fact necessary in order to make the
statements, representations or warranties contained herein or information
provided therein not misleading.
ARTICLE IV
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
following meanings:
"AGREEMENT" has the meaning set forth in the preamble to this
Agreement.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or, to
the extent expressly authorized by the Board of Directors to exercise the powers
of the Board of Directors under this Agreement, (i) any committee of such Board
of Directors or (ii) any board of directors or committee of any Subsidiary of
the Company.
"BUSINESS DAY" means a day on which the NYSE is open for the
transaction of business.
"COMMISSION" means the Securities and Exchange Commission.
"COMMON STOCK" has the meaning set forth in the recitals to this
Agreement.
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"COMPANY" has the meaning set forth in the preamble to this Agreement
and any successors thereof, whether by operation of law or otherwise.
"COMPANY GROUP" means the group comprised of the Company and its
Subsidiaries, including Investing and ▇▇▇▇▇▇▇▇▇ ▇▇.
"COVERED SECURITIES" means, with respect to any Stockholder at the time
in question, subject to Section 5.7, the shares of Common Stock received by such
Stockholder as a result of the LLC Exchange, any securities of the Company
received by such Stockholder pursuant to any agreement, arrangement or stock
option, incentive or similar plan of the Company and any shares of Common Stock
issuable upon the exercise of such securities, or, in the case of any
Stockholder that becomes a party to this Agreement by an amendment to Schedule I
or II hereof, the shares of Common Stock designated on such Schedule. Prior to
or after the IPO, securities of the Company Stock may be excluded from the
definition of Covered Securities by action of the Board of Directors, in its
sole discretion.
"DISABILITY" means disability as that term is defined under the
Company's long-term disability plan in effect at the date of such determination,
or any other plan or definition designated by the Board of Directors for the
purpose of this provision.
"EMPLOYEE STOCKHOLDER" means any Stockholder employed by the Company
Group listed on Schedules I and II hereto.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE AGREEMENT" has the meaning set forth in the recitals to this
Agreement.
"EXCHANGING MEMBERS" mean the holders of membership interests in
Investing listed on Schedule I hereto.
"IPO" has the meaning set forth in the recitals to this Agreement.
"INVESTING" has the meaning set forth in the recitals to this
Agreement.
"INVESTMENT COMPANY ACT" means the Investment Company Act of 1940, as
amended.
"LLC EXCHANGE" has the meaning set forth in the recitals to this
Agreement.
"▇▇▇▇▇▇▇▇▇ ▇▇" has the meaning set forth in the recitals to this
Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
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"NYSE" means the New York Stock Exchange, Inc.
"OWN" means to own of record or beneficially, whether directly, through
a nominee designated by the Company pursuant to Section 1.8 or through any other
Person.
"PERMITTED TRANSFEREE" means any Person receiving Covered Securities
from a Stockholder that is: (i) a trust for the benefit of any spouse or lineal
descendant (or spouse of such lineal descendant) of such Stockholder, provided
that the controlling trustee of such trust is such Stockholder; (ii) any
organization to which contributions by such Stockholder of Covered Securities
are deductible for federal income, estate or gift tax purposes or any
split-interest trust described in Section 4947 of the Internal Revenue Code of
1986, as amended, provided that, in each case, such Stockholder is a trustee or
a member of the board of directors or other governing body or group having the
ultimate authority, INTER ALIA, to vote, dispose or direct the voting or
disposition of such Covered Securities; or (iii) a corporation of which a
majority of the outstanding shares of capital stock entitled to vote generally
for the election of directors is beneficially owned by, or a partnership or
limited liability company of which a majority of the partnership or limited
liability company interests entitled to vote and participate in the management
of such partnership or limited liability company are beneficially owned by, such
Stockholder..
"PERSON" means any natural person or any firm, partnership, limited
liability partnership, association, corporation, limited liability company,
trust, business trust, governmental authority or other entity.
"PROXIES" has the meaning set forth in Section 2.1(a).
"RESTRICTED PERSON" means any person that is not (i) a Stockholder or
(ii) a director, officer or employee of any member of the Company Group acting
in such person's capacity as a director, officer or employee.
"STOCKHOLDERS" has the meaning set forth in the preamble to this
Agreement.
"SUBSIDIARY" means a corporation, limited liability company, limited
partnership or other entity of which the Company, directly or indirectly, has
the power, whether through the ownership of voting securities, equity interests,
contract or otherwise, (i) to elect at least a majority of the members of such
entity's board of directors or other governing body or (ii) in the absence of a
governing body, to control the business affairs of such entity.
"TRANSFER" means, with respect to any Covered Securities, directly or
indirectly, (i) to sell, assign, transfer, pledge, convey, distribute, mortgage,
encumber, hypothecate or otherwise dispose, whether by gift, for consideration
or for no consideration, or (ii) to grant any right to vote, whether by voting
agreement, voting trust or otherwise. For purposes of this Agreement, Transfer
shall include any disposition and any other transaction that would constitute a
"constructive sale" within the meaning of Section 1259 of the Internal Revenue
Code of 1986, as amended, including, without limitation, a short-sale, forward
sale,
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equity swap or other derivative contract with respect to Common Stock or
substantially identical property, or other transaction having substantially the
same effect as the foregoing.
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ARTICLE V
MISCELLANEOUS
Section 5.1. STANDSTILL PROVISIONS.
Each Stockholder agrees that he or she shall not, directly or
indirectly, alone or in concert with any other person, (a) make, or in any
way participate in, any "solicitation" of "proxies" (as such terms are
defined in Exchange Act Rule 14A-1) relating to any securities of the Company
to or with any Restricted Person; (b) except as contemplated by this
Agreement, deposit any Covered Securities in a voting trust or subject any
Covered Securities to any voting agreement or arrangement that includes as a
party any Restricted Person; (c) form, join or in any way participate in a
group (as contemplated by Exchange Act Rule 13d-5(b)) with respect to any
securities of the Company (or any securities the ownership of which would
make the owner thereof a beneficial owner of securities of the Company (for
this purpose as determined by Exchange Act Rule 13d-3 and Exchange Act Rule
13d- 5)) that includes as a party any Restricted Person; (d) make any
announcement subject to Exchange Act Rule 14a-1(1)(2)(iv) to any Restricted
Person; (e) initiate or propose any "shareholder proposal" subject to
Exchange Act Rule 14a-8; (f) together with any Restricted Person, make any
offer or proposal to acquire any securities or assets of any member of the
Company Group or solicit or propose to effect or negotiate any form of
business combination, restructuring, recapitalization or any extraordinary
transaction involving, or any change in control of, any member of the Company
Group, any Subsidiaries or any of its respective securities or assets; (g)
together with any Restricted Person, seek the removal of any directors or a
change in the composition or size of the Board of Directors; (h) together
with any Restricted Person, in any way participate in a call for any special
meeting of the stockholders of the Company; or (i) assist, advise or
encourage any Person with respect to, or seek to do, any of the foregoing.
Section 5.2. EXPENSES.
(a) The Company shall be responsible for all expenses incurred
in the operation and administration of this Agreement, including expenses
incurred in preparing appropriate filings and correspondence with the Commission
or NYSE, lawyers', accountants', agents', consultants', experts', investment
banking and other professionals' fees, expenses incurred in enforcing the
provisions of this Agreement, expenses incurred in maintaining any necessary or
appropriate books and records relating to this Agreement and expenses incurred
in the preparation of amendments to and waivers of provisions of this Agreement.
(b) Each Stockholder shall be responsible for all of his or
her expenses incurred in connection with his or her compliance with his or her
obligations under this Agreement, including expenses incurred by the Company in
enforcing the provisions of this Agreement relating to such obligations,
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Section 5.3. FILING OF SCHEDULE 13D OR 13G.
(a) In the event that a Stockholder is required to file a
report of beneficial ownership on Schedule 13D or 13G (or any successor forms
thereto) with respect to the Covered Securities beneficially owned by such
Stockholder (for this purpose as determined by Exchange Act Rule 13d-3 and
Exchange Act Rule 13d-5), he or she agrees that, unless otherwise directed by
the Company, he or she will not separately file such a report, but will file a
report together with the other Stockholders, containing the information required
by the Exchange Act, and such Stockholder understands and agrees that such
report shall be filed on his or her behalf by the Company. Such Stockholder
shall cooperate fully with the other Stockholders and the Company to achieve the
timely filing of any such report and any amendments thereto as may be required,
and such Stockholder agrees that any information concerning such Stockholder
which such Stockholder furnishes in connection with the preparation and filing
of such report will be complete and accurate.
(b) Each Stockholder hereby irrevocably makes, constitutes and
appoints each of ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇. and any other officer(s) of the Company designated in writing by
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇, each with full power of substitution, his or her true
attorney-in-fact and agent, for and in his or her name, place and ▇▇▇▇▇, to
execute a report of beneficial ownership on Schedule 13D or 13G (or any
successor forms thereto) and any and all amendments thereto and to file such
reports with all exhibits thereto and other documents in connection therewith
with the Commission, granting to such attorneys, and each of them, full power
and authority to do and perform each and every act and thing whatsoever that
such attorney or attorneys may deem necessary, advisable or appropriate to carry
out fully the intent of this Section 5.3 as such Stockholder might or could do
personally, hereby ratifying and confirming all acts and things that such
attorney or attorneys may do or cause to be done by virtue of this power of
attorney. Each Stockholder hereby further designates such attorneys as such
Stockholder's agents authorized to receive notices and communications with
respect to such reports and any amendments thereto. It is understood and agreed
by each such Stockholder that this appointment, empowerment and authorization
may be exercised by the aforementioned Persons for the period beginning on the
date hereof and ending on the date such Stockholder is no longer subject to the
provisions of this Agreement (and shall extend thereafter for such time as is
required to reflect that such Stockholder is no longer a party to this
Agreement).
Section 5.4. NOTICES. (a) All notices, requests, demands, waivers and
other communications to be given by any party hereunder shall be in writing and
shall be (i) mailed by first-class, registered or certified mail, postage
prepaid, (ii) sent by hand delivery or reputable overnight delivery service or
(iii) transmitted by telecopy (provided that a copy is also sent by reputable
overnight delivery service) addressed, in the case of any Stockholder, to him or
her at his or her last address appearing in the Company Group's employment
records or, in the case of the Company, to ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: Secretary, or, in each case, to such other address as may be
specified in writing to the other parties hereto.
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(b) All such notices, requests, demands, waivers and other
communications shall be deemed to have been given and received (i) if by
personal delivery or telecopy, on the day of such delivery, (ii) if by
first-class, registered or certified mail, on the fifth Business Day after the
mailing thereof or (iii) if by reputable overnight delivery service, on the day
delivered.
Section 5.5. TERM OF THE AGREEMENT. (a) This Agreement shall become
effective upon the occurrence of the consummation of the IPO and shall terminate
on the earlier to occur of (i) the first date on which there are no Stockholders
who remain bound by its terms and (ii) the date on which the Company and the
Stockholders who Own a majority of the Covered Securities subject to this
Agreement as of such date agree to terminate this Agreement.
(b) Unless this Agreement is theretofore terminated pursuant
to Section 5.5(a) hereof, a Stockholder shall be bound by its terms until all
Covered Securities owned by such Stockholder are free of the provisions of
Articles I and II hereof.
Section 5.6. AMENDMENTS; WAIVERS. (a) This Agreement may be amended or
modified, and any provision in this Agreement may be waived, if such amendment,
modification or waiver is approved by the Board of Directors, provided that any
amendment that would materially adversely affect any Stockholder (other than an
amendment that, in the good faith judgment of the Board of Directors, is
intended to cure any ambiguity or correct or supplement any provisions of this
Agreement that may be incomplete or inconsistent with any other provision
contained herein) must be approved by the Stockholders that Own a majority of
the Covered Securities subject to this Agreement as of the date of such
amendment or modification, provided, further, that, without the consent of any
Person, the Board of Directors may permit any Person who executes and delivers a
counterpart of this Agreement to become a party to this Agreement by amending
Schedule I or II hereto, as the case may be.
(b) The failure of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect the
rights at a later time to enforce the same. No waiver by any party of the breach
of any term contained in this Agreement, whether by conduct or otherwise, in any
one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such breach or the breach of any other term of this
Agreement.
Section 5.7. ADJUSTMENT UPON CHANGES IN CAPITALIZATION; ADJUSTMENTS
UPON CHANGES OF CONTROL; REPRESENTATIVES, SUCCESSORS AND ASSIGNS.
(a) In the event of any change in the outstanding Common Stock
by reason of stock dividends, stock splits, reverse stock splits, spin-offs,
split-ups, recapitalizations, combinations, exchanges of shares and the like,
the term "Covered Securities" shall refer to and include the securities received
or resulting therefrom, but only to the extent such securities are received in
exchange for or in respect of Covered Securities. Upon the occurrence of any
event described in the immediately preceding sentence, the Board of Directors
shall make such adjustments to or interpretations of the restrictions of Section
1.1 (and, if it so determines, any other provisions hereof) as it shall deem
necessary or desirable to carry out
12
the intent of such provision(s). If the Board of Directors deems it desirable,
any such adjustments may take effect from the record date, the "when issued
trading date," the "ex dividend date" or another appropriate date.
(b) In the event of any business combination, restructuring,
recapitalization or other extraordinary transaction involving any member of the
Company Group or any of its respective securities or assets as a result of which
the Stockholders shall hold voting securities of a Person other than the
Company, the Stockholders agree that this Agreement shall also continue in full
force and effect with respect to such voting securities of such other Person
formerly representing or distributed in respect of Covered Securities, and the
terms "Covered Securities," "Common Stock," "Voting Interests," and "Company,"
shall refer to such voting securities formerly representing or distributed in
respect of Covered Securities and such Person, respectively. Upon the occurrence
of any event described in the immediately preceding sentence, the Board of
Directors shall make such adjustments to or interpretations of the restrictions
of Section 1.2 (and, if it so determines, any other provisions hereof) as it
shall deem necessary or desirable to carry out the intent of such provisions(s).
If the Board of Directors deems it desirable, any such adjustments may take
effect from the record date or another appropriate date.
Section 5.8. DISINTERESTED BOARD MEMBERS TO MAKE DETERMINATIONS. In the
event that any Stockholder breaches its obligations under this Agreement, then
the Board of Directors shall have the exclusive right to make (on behalf of the
Company) any and all determinations that may be necessary or appropriate under
this Agreement, including without limitation, determinations relating to the
exercise and enforcement of remedies hereunder. If a Stockholder who is also a
member of the Board of Directors breaches his or her obligations under this
Agreement, such Stockholder must refrain from exercising his or her vote at
meetings of the Board of Directors and general meetings of the Company to give
effect to this Section 5.8.
Section 5.9. SEVERABILITY. If the final determination of a court of
competent jurisdiction declares, after the expiration of the time within which
judicial review (if permitted) of such determination may be perfected, that any
term or provision hereof is invalid or unenforceable, (a) the remaining terms
and provisions hereof shall be unimpaired and (b) the invalid or unenforceable
term or provision shall be deemed replaced by a term or provision that is valid
and enforceable and that comes closest to expressing the intention of the
invalid or unenforceable term or provision.
Section 5.10. REPRESENTATIVES, SUCCESSORS AND ASSIGNS. This Agreement
shall be binding upon and inure to the benefit of the respective parties hereto
and their respective legatees, legal representatives, successors and assigns;
provided that Stockholders may not assign, delegate or otherwise Transfer any of
their rights or obligations under this Agreement except with the prior written
consent of the Board of Directors, and any assignment without such consent by
the Board of Directors shall be void.
Section 5.11. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD
TO THE CONFLICT OF LAWS PRINCIPLES OR RULES THEREOF).
13
Section 5.12. SPECIFIC PERFORMANCE. Each of the parties hereto
acknowledges that it will be impossible to measure in money the damage to the
Company or the Stockholders if any party hereto fails to comply with the
provisions of Article I or II and each party hereto agrees that in the event of
any such failure, neither the Company nor any Stockholder will have an adequate
remedy at law. Therefore, the Company and each Stockholder, in addition to all
of the other remedies which may be available, shall have the right to equitable
relief, including, without limitation, the right to enforce specifically the
provisions of Article I and II by obtaining injunctive relief against any
violation thereof, or otherwise. All claims for specific performance of one or
more provisions of this Agreement shall be resolved exclusively by litigation
before a court of competent jurisdiction located in the State of New York.
Section 5.13. ARBITRATION. Except for claims for specific performance
brought in accordance with Section 5.12, all disputes, differences, and
controversies arising out of or in any way related to this Agreement shall be
submitted:
(a) to the NYSE to be heard and decided under the terms of
this Agreement and the then applicable rules of the NYSE or, if those rules as
interpreted by the NYSE do not permit the disputes, differences and
controversies to be submitted to the NYSE for arbitration; then
(b) to the American Arbitration Association in New York,
New York; to be heard and decided under the terms of this Agreement and in
accordance with the then applicable rules of the hearing body by a panel of
three arbitrators (unless the rules of the hearing body shall require a
different number of arbitrators) chosen in accordance with the then applicable
rules of the hearing body. The decision of the arbitrators shall be final and
binding upon the parties, and an order may be entered upon the award of the
arbitrators in any court of competent jurisdiction.
Section 5.14. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITY. Each
Stockholder, for himself or herself and his or her successors and assigns,
hereby irrevocably waives (a) any objection, and agrees not to assert, as a
defense in any arbitration or legal or equitable action, suit or proceeding
against such Stockholder arising out of or relating to this Agreement or any
transaction contemplated hereby or the subject matter of any of the foregoing,
that (i) he or she is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable before such arbitral body
or in said courts, (ii) the venue thereof may not be appropriate and (iii) the
internal laws of the State of Delaware do not govern the validity,
interpretation or effect of this Agreement, (b) any immunity from jurisdiction
to which he or she might otherwise be entitled in any such arbitration, action,
suit or proceeding which may be instituted before any state or federal court in
the State of New York in accordance with Section 5.12 or before any arbitral
body in accordance with Section 5.13 and (c) any immunity from the maintaining
of an action against him or her to enforce any judgment for money obtained in
any such arbitration, action, suit or proceeding and, to the extent permitted by
applicable law, any immunity from execution.
14
Section 5.15. FURTHER ASSURANCES. Each Stockholder agrees to execute
such additional documents and take such further action as may be requested by
the Company to effect the provisions of this Agreement.
Section 5.16. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which shall be deemed an original, but
all such counterparts shall together constitute but one and the same instrument.
Section 5.17. ENTIRE AGREEMENT. This Agreement, including the Schedules
hereto, contains the entire understanding of the parties with respect to the
subject matter hereof.
[Remainder of page intentionally left blank.]
15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
▇▇▇▇▇▇▇▇▇ & CO INC.
By:
-------------------------------------------
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇
Title: Chairman and Chief Executive Officer
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
16
------------------------------- -------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ▇▇▇▇▇ ▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
17
------------------------------- -------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
------------------------------- -------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------- -------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
18
SCHEDULE I
EXCHANGING MEMBERS
▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
▇▇▇▇ ▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇*
▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
▇▇▇▇ ▇▇▇▇▇*
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
▇▇▇▇ ▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
▇▇▇▇▇ ▇▇▇▇*
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III*
▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III*
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇*
--------
*/Also an Employee Stockholder
I-1
SCHEDULE II
EMPLOYEE STOCKHOLDERS
II-1