EXHIBIT 4.2
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STOCKHOLDERS AGREEMENT
AMONG
RESOURCES CONNECTION, INC.
and
THE STOCKHOLDERS SIGNATORY HERETO
Dated as of December 11, 2000
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Table of Contents
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Page
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ARTICLE I DEFINITIONS..................................................... 1
SECTION 1.1. Definitions............................................. 1
ARTICLE II CORPORATE GOVERNANCE........................................... 4
SECTION 2.1. Composition of the Board of Directors................... 4
SECTION 2.2. Solicitation and Voting of Shares....................... 5
SECTION 2.3. Committees.............................................. 5
SECTION 2.4. Certificate of Incorporation and By-Laws................ 6
ARTICLE III REGISTRATION RIGHTS........................................... 6
SECTION 3.1. Registration on Request................................. 6
SECTION 3.2. Registration Procedures................................. 9
SECTION 3.3. Information Supplied.................................... 12
SECTION 3.4. Restrictions on Disposition............................. 12
SECTION 3.5. Indemnification......................................... 12
SECTION 3.6. Required Reports........................................ 15
SECTION 3.7. Selection of Counsel.................................... 15
SECTION 3.8. Holdback Agreement...................................... 15
ARTICLE IV REPRESENTATIONS AND WARRANTIES................................. 15
SECTION 4.1. Representations of the Company.......................... 15
ARTICLE V MISCELLANEOUS................................................... 16
SECTION 5.1. Notices................................................. 16
SECTION 5.2. Amendments; No Waivers.................................. 18
SECTION 5.3. Severability............................................ 18
SECTION 5.4. Entire Agreement; Assignment............................ 18
SECTION 5.5. Parties in Interest..................................... 18
SECTION 5.6. Specific Performance.................................... 19
SECTION 5.7. Governing Law........................................... 19
SECTION 5.8. Headings................................................ 19
SECTION 5.9. Counterparts............................................ 19
SECTION 5.10. Effectiveness; Termination............................. 19
SECTION 5.11. Waiver of Jury Trial................................... 19
Stockholders Agreement (the "Agreement"), dated as of December 11, 2000,
among Resources Connection, Inc., a Delaware corporation (the "Company"), the
stockholders listed on Schedule I (the "Evercore Stockholders") and the
stockholders listed on Schedule II (the "Management Stockholders") (each of the
Evercore Stockholders and the Management Stockholders is sometimes hereinafter
referred to individually as a "Stockholder Group").
WHEREAS, the Evercore Stockholders and the Management Stockholders
beneficially own shares of Common Stock in the amounts set forth on Schedules I
and II, respectively; and
WHEREAS, the parties desire to establish in this Agreement certain terms
and conditions relating to their investment in the Company, including certain
aspects of the corporate governance of the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
and agreements contained herein, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. As used in this Agreement, the following terms
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have the following meanings:
(a) "Affiliate" has the same meaning as in Rule 12b-2 promulgated
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under the Exchange Act.
(b) "Associate" has the same meaning as in Rule 12b-2 promulgated
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under the Exchange Act.
(c) "Beneficial owner" and to "beneficially own" has the same meaning
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as in Rule 13d-3 promulgated under the Exchange Act.
(d) "Board of Directors" means the Board of Directors of the Company.
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(e) "Common Stock" means the common stock, par value $.01 per share,
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of the Company.
(f) "Director" means a member of the Board of Directors.
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(g) "Effective Date" means the closing of the underwritten initial
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public offering of shares of Common Stock.
(h) "Equity Security" means any (i) Common Stock, (ii) securities of
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the Company convertible into or exchangeable for Common Stock, and (iii)
options, rights, warrants and similar securities issued by the Company to
acquire Common Stock.
(i) "Evercore's Interest" means the percentage of outstanding Common
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Stock that is beneficially owned by the Evercore Stockholders.
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(j) "Exchange Act" means the Securities Exchange Act of 1934, and the
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rules and regulations promulgated thereunder, as amended.
(k) "Holder" shall mean any holder of Registrable Securities.
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(l) "Independent Director" means a director of the Company (i) who is
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not and has never been an officer or employee of the Company, any Affiliate
or Associate of the Company or an entity that derived 10% or more of its
revenues or earnings in its most recent fiscal year from transactions
involving the Company or any Affiliate or Associate of the Company, (ii)
who is not and has never been an officer, employee or director of Evercore
Capital Partners L.P., Evercore Capital Partners (NQ) L.P., Evercore
Capital Offshore Partners L.P. and Evercore Co-Investment Partnership L.P.
(collectively, "Evercore"), any Affiliate or Associate of Evercore or an
entity that derived more than 10% of its revenues or earnings in its most
recent fiscal year from transactions involving Evercore or any Affiliate or
Associate of Evercore.
(m) "Initial Stockholders Agreement" means the Stockholders Agreement
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made as of April 1, 1999, among RC Transaction Corp., a Delaware
corporation, the stockholders listed on Schedule I to such agreement, the
stockholders listed on Schedule II to such agreement, and the stockholders
listed on Schedule III to such agreement.
(n) "Management's Interest" means the percentage of outstanding Common
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Stock that is beneficially owned by the Management Stockholders.
(o) "Nominating Group" means a majority of the entire Board of
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Directors at any time.
(p) "Other Holders" means Persons other than Holders who, by virtue of
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agreements with the Company, are entitled to include their securities in
certain registrations hereunder.
(q) "Other Securities" means securities of the Company, other than
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Registrable Securities that, by virtue of agreements between Other Holders
and the Company, are entitled to be included in certain registrations
hereunder.
(r) "Register," "registered" and "registration" shall refer to a
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registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act and the declaration
or ordering of effectiveness of such registration statement or document.
(s) "Registration Expenses" means any and all expenses incident to
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performance of or compliance with Article III of this Agreement, including
(a) all SEC and securities exchange or NASD registration and filing fees
(including, if applicable, the fees and expenses of any "qualified
independent underwriter," as such term is defined in Schedule E to the
bylaws of the NASD, and of its counsel), (b) all fees and expenses of
complying with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (c) all printing, messenger
and delivery expenses, (d) all fees and
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expenses incurred in connection with the listing of the Registrable
Securities on any securities exchange or NASD pursuant to Section
3.2(h)(i), (e) the reasonable fees and disbursements of counsel for the
Company and of its independent public accountants, including the reasonable
expenses of any special audits (provided nothing in this Agreement shall
require the Company to conduct a special audit) and/or "cold comfort"
letters required by or incident to such performance and compliance, (f) the
reasonable fees and disbursements of one counsel selected pursuant to
Section 3.7, (g) any reasonable fees and disbursements of underwriters
customarily paid by the issuers or sellers of securities, including
liability insurance if the Company so desires or if the underwriters so
require, and the reasonable fees and expenses of any special experts
retained by the Company in connection with the requested registration, but
excluding underwriting discounts and commissions and transfer taxes, if
any, and (h) expenses incurred in connection with any road show (including
the reasonable out-of-pocket expenses of the Demand Party).
(t) "Registrable Securities" shall mean (i) any Common Stock held by
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the Evercore Stockholders or the Management Stockholders, in each case in
the amounts set forth on Schedules I and II hereto, respectively, (ii) any
Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right, option or other convertible security which is issued as) a
dividend or other distribution with respect to, or in exchange for, or in
replacement of, such Common Stock and (iii) any Common Stock issued by way
of a stock split of the Common Stock referred to in clauses (i) or (ii)
above. For purposes of this Agreement, any Registrable Securities shall
cease to be Registrable Securities when (v) a registration statement
covering such Registrable Securities has been declared effective and such
Registrable Securities have been disposed of pursuant to such effective
registration statement, (w) such Registrable Securities shall have been
distributed pursuant to Rule 144 (or any similar provision then in effect)
under the Securities Act, (x) such Registrable Securities are sold by a
person in a transaction in which the rights under the provisions of this
Agreement are not assigned, (y) such Registrable Securities shall cease to
be outstanding or (z) such Registrable Securities shall have been otherwise
transferred, new certificates for them not bearing a legend restricting
further transfer shall have been delivered by the Company and subsequent
disposition of them shall not require registration or qualification of them
under the Securities Act, any state securities or blue sky law, or any
other applicable law then in force.
(u) "SEC" means the Securities and Exchange Commission.
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(v) "Securities Act" means the Securities Act of 1933, and the rules
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and regulations promulgated thereunder, as amended.
(w) "Subsidiary" has the same meaning as in Rule 12b-2 promulgated
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under the Exchange Act.
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ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.1. Composition of the Board of Directors (a) At the Effective
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Date, the Board of Directors shall be comprised of nine directors (the "Initial
Directors"), (i) three directors designated by the Evercore Stockholders and
listed on Exhibit B, (ii) three directors designated by the Management
Stockholders and listed on Exhibit B and (iii) three Independent Directors
listed on Exhibit B. The Nominating Group shall designate the Independent
Directors and any replacements thereof.
(b) At all times during the term of this Agreement that Evercore's Interest
is:
(i) below 7.5%, the Evercore Stockholders shall have no right to
designate any Directors;
(ii) 7.5% or above but less than 16.5%, the Evercore Stockholders
shall have the right to designate one Director;
(iii) 16.5% or above but less than 27.5%, the Evercore Stockholders
shall have the right to designate two Directors; and
(iv) above 27.5%, the Evercore Stockholders shall have the right to
designate three Directors.
(c) At all times during the term of this Agreement that Management's
Interest is:
(i) below 7.5%, the Management Stockholders shall have no right to
designate any Directors;
(ii) 7.5% or above but less than 16.5%, the Management Stockholders
shall have the right to designate one Director;
(iii) 16.5% or above but less than 27.5%, the Management Stockholders
shall have the right to designate two Directors; and
(iv) above 27.5%, the Management Stockholders shall have the right
to designate three Directors.
(d) The Company shall take such action as may be required under applicable
law to cause the Board of Directors to consist of the number of Directors
specified in clauses 2.1(a) - (c), as applicable. The Company shall also take
such action as may be required under applicable law to cause the Directors
generally, and the Directors designated by each of the Evercore Stockholders and
the Management Stockholders to be divided as equally as practicable among each
class of directors.
(e) Notwithstanding the foregoing and subject to the other provisions of
this Agreement, each party to this Agreement hereby agrees that the number of
directorships
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on the Board of Directors may be increased or decreased from time to time as the
Board of Directors determines to be in the best interests of the Company;
provided however, in the event that the Board of Directors determines to
increase or decrease the number of directorships on the Board of Directors, the
composition of the Board will be as set forth on Exhibit A hereto. Without the
written consent of the Evercore Stockholders and the Management Stockholders,
the Company agrees not to take any action (other than any action required to
reduce the size of the Board of Directors to give effect to the provisions of
Sections 2.1(b) and 2.1(c) hereof) that would cause the number of Directors
constituting the entire Board to be other than six, nine, or twelve Directors,
except that the Company may increase the number of Directors to ten or eleven,
having the composition set forth on Exhibit A hereto, without such consent
provided that the new Directors are appointed to the Board in connection with an
acquisition pursuant to which the Company issues at least 5% of its Common Stock
(measured prior to issuance) and such new Directors are executive officers or
directors of the acquisition target.
(f) The party who designated a Director shall have the right to designate
any replacement for such director in accordance with Section 2.1, at the
termination of such director's term or upon death, resignation, retirement,
disqualification, and removal from office or other cause. The Board of Directors
shall elect each person so designated upon nomination by the Nominating Group.
(g) Each person designated as a nominee for Director pursuant to this
Section 2.1 shall be nominated for such position by the Board of Directors
unless the Board of Directors, in the execution of its fiduciary duties, shall
reasonably determine such designee is not qualified to serve on the Board of
Directors. If the Board of Directors shall reasonably determine that such
designee is not so qualified, the designating person shall have the opportunity
to specify one or more additional designees who shall become nominees subject to
the qualification set forth in the immediately preceding sentence.
SECTION 2.2. Solicitation and Voting of Shares. (a) In any election of
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Directors or any meeting of the stockholders of the Company called expressly for
the approval of Directors or any written consent relating to the election of
Directors, each party to this Agreement will vote their shares of Common Stock
in favor of each Stockholder Group's nominees for the Board of Directors and
against any actions that would frustrate the provisions of this Article II.
SECTION 2.3. Committees. (a) Except as otherwise provided under
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applicable law or regulation, the Company shall cause any executive committee,
compensation committee, audit committee, investment committee, nominating
committee or other committee of the Board to include at least one director
designated by the Evercore Stockholders, one director designated by the
Management Stockholders and one Independent Director, provided, that, (i) the
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Management Stockholders shall not have the right to designate a member of the
compensation committee and (ii) upon such time as the Evercore Stockholders or
the Management Stockholders, as the case may be, own less than 10% of the
outstanding shares of Common Stock, such Stockholder Group will no longer have
the right to designate one committee member.
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(b) No action by any committee of the Board shall be valid unless taken at
a meeting for which adequate notice has been duly given or waived by the members
of such committee. Such notice shall include a description of the general nature
of the business to be transacted at the meeting and no other business may be
transacted at such meeting. Any committee member unable to participate in person
at any meeting shall be given the opportunity to participate by telephone. Each
of the committees established by the Board of Directors pursuant to this Section
2.3 shall establish such other rules and procedures for its operation and
governance as it shall see fit and may seek such consultation and advice as to
matters within its purview as it shall require.
SECTION 2.4. Certificate of Incorporation and By-Laws. The Company shall
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take or cause to be taken all lawful action necessary to ensure at all times
that the Company's Certificate of Incorporation and By-Laws are not, at any
time, inconsistent with the provisions of this Agreement.
ARTICLE III
REGISTRATION RIGHTS
SECTION 3.1. Registration on Request. (a) At any time after the date
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hereof, upon the written request of the Evercore Stockholders holding at least
7.5% of Evercore's Interest then outstanding or ▇▇▇ ▇. ▇▇▇▇▇▇, on behalf of the
Management Stockholders, as the case may be (each, a "Demand Party"), requesting
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that the Company effect the registration under the Securities Act of at least
10% of the Demand Party's Registrable Securities and specifying the amount and
intended method of disposition thereof, the Company will promptly give written
notice of such requested registration to all other Holders, and thereupon will,
as expeditiously as possible, use its reasonable best efforts to effect the
registration under the Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Demand Party; and
(ii) all other Registrable Securities of the same class(es) or
series as are to be registered at the request of a Demand Party and which
the Company has been requested to register by any other Holder thereof by
written request given to the Company within 15 days after the giving of
such written notice by the Company (which request shall specify the amount
and intended method of disposition of such Registrable Securities), all to
the extent necessary to permit the disposition (in accordance with the
intended method thereof as aforesaid) of the Registrable Securities so to
be registered; provided, that the Evercore Stockholders may not request
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more than three registrations pursuant to this Section 3.1 and the
Management Stockholders may not request more than three registrations
pursuant to this Section 3.1; and provided, further, that, the Company
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shall not be obligated to file a registration statement relating to any
registration request under this Section 3.1 within a period of 180 days
after the effective date of any other registration statement relating to
any registration of the Company's securities.
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(b) Registration Statement Form. The Company shall select the
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registration statement form for any registration pursuant to this Section 3.1;
provided, that if any registration requested pursuant to this Section 3.1 which
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is proposed by the Company to be effected by the filing of a registration
statement on Form S-3 (or any successor or similar short-form registration
statement) shall be in connection with an underwritten public offering, and if
the managing underwriter shall advise the Company in writing that, in its
opinion, the use of another form of registration statement is of material
importance to the success of such proposed offering, then such registration
shall be effected on such other form.
(c) Expenses. The Company will pay the Registration Expenses in
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connection with registrations of each class or series of Registrable Securities
pursuant to this Section 3.1, provided, that, the Company will only pay the
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Registration Expenses in connection with two requests for registration by the
Evercore Stockholders and two requests for registration by the Management
Stockholders, and provided further that, the amount of the Registration Expenses
to be paid by the Company shall not exceed $500,000, in the aggregate, for the
two requests for registration by the Evercore Stockholders and $500,000, in the
aggregate, for the two requests for registration by the Management Stockholders.
The selling Holders will pay the Registration Expenses in connection with any
other registrations of Registrable Securities pursuant to Section 3.1. In
addition, the selling Holders will pay all underwriting discounts and selling
commissions applicable to the sale of Registrable Securities and the fees and
disbursements of any counsel, other than the one counsel to the Holders, engaged
by the Holders pursuant to Section 3.7 hereof, in connection with any and all
registrations of Registrable Securities pursuant to this Section 3.1.
(d) Effective Registration Statement. Registrations withdrawn or
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otherwise terminated by the Evercore Stockholders or the Management
Stockholders, as the case may be, shall be deemed to have been effected and
shall count as one of the six demand registration rights hereunder, provided
that, if a requested registration pursuant to this Section 3.1 involves an
underwritten offering and the managing underwriter advises the Company or the
Demand Party in writing that, in its opinion, market factors may prevent the
successful marketing of such offering (including, but not limited to, the price
at which such securities can be sold and the number of securities that can be
sold), and as a result of such advice, the registration is withdrawn or
otherwise terminated, then such registration will not be deemed to have been
effected and shall not count as one of the six demand registrations hereunder.
For purposes of this Section 3.1(d), the Company shall inform each Demand Party
of any written communication with the managing underwriter with respect to a
registration and offering that would have such an Adverse Effect.
Notwithstanding anything contained herein to the contrary, any registration
abandoned or withdrawn pursuant to the last sentence of Section 3.1(f) or
Section 3.1(g) shall not count as one of the six demand registrations.
(e) Selection of Underwriters. If a requested registration pursuant to
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this Section 3.1 involves an underwritten offering, the investment banker(s),
underwriter(s) and manager(s) for such registration shall be selected by the
Demand Party; provided,
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however, that such investment banker(s), underwriter(s) and manager(s) shall be
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reasonably satisfactory to the Company.
(f) Priority in Requested Registrations. If a requested registration
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pursuant to this Section 3.1 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities to be included in such registration (including securities of the
Company which are not Registrable Securities) would be likely to have an adverse
effect on the successful marketing of such offering (including the price at
which such securities can be sold) (an "Adverse Effect"), then the Company shall
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include in such registration (a) first, 100% of the Registrable Securities
requested to be included in such registration by the Demand Party and all other
requesting Holders of Registrable Securities pursuant to this Section 3.1 (to
the extent that the managing underwriter believes that all such Registrable
Securities can be sold in such offering without having an Adverse Effect;
provided, that if they cannot, the Company will include in such registration the
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amount of Registrable Securities that the managing underwriter advises will not
have such Adverse Effect. In such event, the number of such Registrable
Securities to be included in such registration shall be allocated pro rata among
all requesting Holders on the basis of the relative number of shares of
Registrable Securities then held by each such Holder (provided that any shares
thereby allocated to any such Holder that exceed such Holder's request shall be
reallocated among the remaining requesting Holders in like manner), and (b)
second, to the extent the managing underwriter believes additional securities
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can be sold in the offering without having an Adverse Effect, the amount of
Other Securities requested to be included by Other Holders in such registration,
allocated pro rata among all requesting Other Holders on the basis of the
relative amount of all Other Securities then held by each such Other Holder
(provided, that any such amount thereby allocated to any such Other Holder that
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exceeds such Other Holder's request shall be reallocated among the remaining
requesting Other Holders in like manner). In the event that the number of
Registrable Securities and Other Securities to be included in such registration
is less than the number which, in the opinion of the managing underwriter, can
be sold without having an Adverse Effect, the Company may include in such
registration the securities the Company proposes to sell up to the number of
securities that, in the opinion of such managing underwriter, can be sold
without having an Adverse Effect. If the managing underwriter of any
underwritten offering shall advise the Holders participating in a registration
pursuant to this Section 3.1 that the Registrable Securities covered by the
registration statement cannot be sold in such offering within a price range
acceptable to the Demand Party, then the Demand Party shall have the right to
notify the Company that it has determined that the registration statement be
abandoned or withdrawn, in which event the Company shall abandon or withdraw
such registration statement.
(g) Postponements in Requested Registrations. Notwithstanding Section
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3.1(f), (i) if the Board determines, in its good faith judgment, that the
registration and offering otherwise required by this Section 3.1 would have an
Adverse Effect on a then contemplated public offering of the Company's Equity
Securities, the Company may postpone the filing (but not the preparation) of a
registration statement required by this Section 3.1, during the period starting
with the 30th day immediately preceding the date of the anticipated filing of,
and ending on a date 180 days following the effective date of,
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the registration statement relating to such other public offering and (ii) if
the Company shall at any time furnish to the Holders a certificate signed by any
one of its authorized officers stating that, in the good faith judgment of the
Board, after consultation with its outside securities counsel, the filing of a
registration statement would materially and adversely affect the Company, the
Company may postpone the filing (but not the preparation) of a registration
statement required by this Section 3.1 for up to 90 days; provided, that, the
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Company shall at all times in good faith use its reasonable best efforts to
cause any registration statement required by this Section 3.1 to be filed as
soon as possible and; provided, further, that, the Company shall not be
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permitted to postpone registration pursuant to this Section 3.1(g) more than
once in any 360-day period. The Company shall promptly give the Holders
requesting registration thereof pursuant to this Section 3.1 written notice of
any postponement made in accordance with the preceding sentence. If the Company
gives the Holders such a notice, the Holders shall have the right, within 15
days after receipt thereof, to withdraw their request in which case,
notwithstanding subsection (d) hereof, such request will not be counted as one
of the six demand registrations for purposes of this Section 3.1.
SECTION 3.2. Registration Procedures. If and whenever the Company is
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required to use its reasonable best efforts to effect or cause the registration
of any Registrable Securities under the Securities Act as provided in this
Agreement, the Company will promptly:
(a) prepare and file with the SEC a registration statement with respect to
such Registrable Securities and use its reasonable best efforts to cause such
registration statement to become effective;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for a period not in
excess of 180 days and to comply with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all securities covered by
such registration statement during such period in accordance with the intended
methods of disposition by the seller or sellers thereof set forth in such
registration statement; provided, that before filing a registration statement or
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prospectus, or any amendments or supplements thereto in accordance with Sections
3.2(a) or (b), the Company will furnish to counsel selected pursuant to Section
3.7 hereof copies of all documents proposed to be filed, which documents will be
subject to the reasonable review of such counsel;
(c) furnish to each seller of such Registrable Securities such number of
copies of such registration statement and of each amendment and supplement
thereto (in each case including all exhibits filed therewith, including any
documents incorporated by reference), such number of copies of the prospectus
included in such registration statement (including each preliminary prospectus
and summary prospectus), in conformity with the requirements of the Securities
Act, and such other documents as such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities by such seller;
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(d) use its reasonable best efforts to register or qualify such
Registrable Securities covered by such registration in such jurisdictions as
each seller shall reasonably request, and do any and all other acts and things
which may be reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the Registrable Securities
owned by such seller, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction where, but for the requirements of this subsection (d), it would
not be obligated to be so qualified, to subject itself to taxation in any such
jurisdiction or to consent to general service of process in any such
jurisdiction;
(e) use its reasonable best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such Registrable Securities;
(f) notify each seller of any such Registrable Securities covered by such
registration statement, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the Company's becoming
aware that the prospectus included in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing, and at
the request of any such seller, prepare and furnish to such seller a reasonable
number of copies of an amended or supplemental prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable (but not more than 18 months) after
the effective date of the registration statement, an earnings statement which
shall satisfy the provisions of Section 11(a) of the Securities Act;
(h) (i) use its reasonable best efforts to list such Registrable
Securities on any securities exchange on which the Common Stock is then listed
if such Registrable Securities are not already so listed and if such listing is
then permitted under the rules of such exchange; and (ii) use its reasonable
best efforts to provide a transfer agent and registrar for such Registrable
Securities covered by such registration statement not later than the effective
date of such registration statement;
(i) enter into an underwriting agreement in customary form, which may
include indemnification provisions in favor of underwriters and other Persons in
addition to, or in substitution for the provisions of Section 3.5 hereof,
reasonably requested in order to expedite or facilitate the disposition of such
Registrable Securities;
(j) obtain a "cold comfort" letter or letters from the Company's
independent public accountants in customary form and covering matters of the
type customarily
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covered by "cold comfort" letters as the seller or sellers of a majority of
shares of such Registrable Securities shall reasonably request;
(k) make available for inspection by any seller of such Registrable
Securities covered by such registration statement, by any underwriter
participating in any disposition to be effected pursuant to such registration
statement and by any attorney, accountant or other agent retained by any such
seller or any such underwriter, all pertinent financial and other records,
pertinent corporate documents and properties of the Company, and cause all of
the Company's officers, directors and employees to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(l) notify counsel (selected pursuant to Section 3.7 hereof) for the
Holders of Registrable Securities included in such registration statement and
the managing underwriter or agent, in writing (i) when the registration
statement, or any post-effective amendment to the registration statement, shall
have become effective, or any supplement to the prospectus or any amendment to
the prospectus shall have been filed, (ii) of the receipt of any comments from
the SEC, (iii) of any request of the SEC to amend the registration statement or
amend or supplement the prospectus or for additional information, and (iv) of
the issuance by the SEC of any stop order suspending the effectiveness of the
registration statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
registration statement for offering or sale in any jurisdiction, or of the
institution or threatening of any proceedings for any of such purposes;
(m) make every reasonable effort to prevent the issuance of any stop order
suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus and, if any such
order is issued, to obtain the withdrawal of any such order as soon as
practicable;
(n) if requested by the managing underwriter or agent or any Holder of
Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such Holder reasonably
requests to be included therein, including, with respect to the number of
Registrable Securities being sold by such Holder to such underwriter or agent,
the purchase price being paid therefor by such underwriter or agent and with
respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
prospectus supplement or post-effective amendment as soon as practicable after
being notified of the matters incorporated in such prospectus supplement or
post-effective amendment;
(o) cooperate with the Holders of Registrable Securities covered by the
registration statement and the managing underwriter or agent, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and registered
in such names as the managing underwriter or agent, if any, or such Holders may
request;
12
(p) obtain for delivery to the Holders of Registrable Securities being
registered and to the underwriter or agent an opinion or opinions from counsel
for the Company in customary form and in form, substance and scope reasonably
satisfactory to such Holders, underwriters or agents and their counsel;
(q) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the NASD; and
(r) use its reasonable best efforts to make available the executive
officers of the Company to participate with the Holders of Registrable
Securities and any underwriters in any "road shows" or other selling efforts
that may be reasonably requested by the Holders in connection with the methods
of distribution for the Registrable Securities.
SECTION 3.3. Information Supplied. The Company may require each seller of
--------------------
Registrable Securities as to which any registration is being effected to furnish
the Company with such information regarding such seller and pertinent to the
disclosure requirements relating to the registration and the distribution of
such securities as the Company may from time to time reasonably request. Each
selling Holder will be required to represent to the Company that all such
information is both complete and accurate in all material respects.
SECTION 3.4. Restrictions on Disposition. Each Holder agrees that, upon
---------------------------
receipt of any notice from the Company of the happening of any event of the kind
described in Section 3.2(f), such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 3.2(f), and, if so
directed by the Company, such Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the prospectus covering such Registrable Securities
current at the time of receipt of such notice. In the event the Company shall
give any such notice, the period mentioned in Section 3.2(b) shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 3.2(f) and to and including the date
when each seller of Registrable Securities covered by such registration
statement shall have received the copies of the supplemented or amended
prospectus contemplated by Section 3.2(f).
SECTION 3.5. Indemnification
---------------
(a) In the event of any registration of any Registrable Securities under
the Securities Act pursuant to Section 3.1, the Company shall indemnify and hold
harmless, to the extent permitted by law, each selling Holder, each Affiliate of
such Holder and their respective directors, officers, members or general and
limited partners (and any director, officer, and controlling Person of any of
the foregoing), each Person who participates as an underwriter in the offering
or sale of such securities and each other Person, if any, who controls such
seller or any such underwriter within the meaning of the Securities Act
(collectively, the "Indemnified Parties"), against any and all losses,
-------------------
13
claims, damages or liabilities, joint or several, actions or proceedings
(whether commenced or threatened) in respect thereof ("Claims") and expenses
------
(including reasonable attorney's fees and reasonable expenses of investigation)
to which such Indemnified Party may become subject under the Securities Act,
common law or otherwise, insofar as such Claims or expenses arise out of, relate
to or are based upon (a) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement thereto, or
(b) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein (in the case of
a prospectus, in light of the circumstances under which they were made) not
misleading; provided, that the Company shall not be liable to any Indemnified
--------
Party in any such case to the extent that any such Claim or expense arises out
of, relates to or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in such registration statement or amendment
or supplement thereto or in any such preliminary, final or summary prospectus in
reliance upon and in conformity with written information furnished to the
Company by or behalf of such seller specifically stating that it is for use in
the preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of any Indemnified Party
and shall survive the transfer of securities by any seller.
(b) As a condition to including any Registrable Securities in any
registration statement filed in accordance with Section 3.1 or 3.2 herein, the
Company shall have received an undertaking reasonably satisfactory to it from
the prospective seller of such Registrable Securities or any underwriter to
indemnify and hold harmless in the same manner and to the same extent as set
forth in Section 3.5(a) the Company and all other prospective sellers or any
underwriter, as the case may be, with respect to any untrue statement or alleged
untrue statement in or omission or alleged omission from such registration
statement, any preliminary, final or summary prospectus contained therein, or
any amendment or supplement thereto, if such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such seller or underwriter specifically stating that it is for use in the
preparation of such registration statement, preliminary, final or summary
prospectus or amendment or supplement, or a document incorporated by reference
into any of the foregoing. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Company or any of
the prospective sellers, or any of their respective Affiliates, directors,
officers or controlling Persons and shall survive the transfer of securities by
any seller. In no event shall the liability of any selling Holder of Registrable
Securities under this Section 3.5(b) be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding with respect to which a
claim for indemnification may be made pursuant to this Section 3.5, such
indemnified party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice
14
to the latter of the commencement of such action or proceeding; provided, that
--------
the failure of the indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under Section 3.5, except to
the extent that the indemnifying party is materially prejudiced by such failure
to give notice. In case any such action or proceeding is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such action or proceeding (in which case the indemnified party
shall have the right to assume or continue its own defense and the indemnifying
party shall be liable for any reasonable expenses therefor, but in no event will
bear the expenses for more than one firm of counsel for all indemnified parties
in each jurisdiction who, with respect to any indemnification rights of Holders
hereunder, shall be approved by the majority of the participating Holders in the
registration in respect of which such indemnification is sought), the
indemnifying party will be entitled to participate in and to assume the defense
thereof (at its expense), jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs of investigation and shall have no
liability for any settlement made by the indemnified party without the consent
of the indemnifying party, such consent not to be unreasonably withheld. No
indemnifying party will settle any action or proceeding or consent to the entry
of any judgment without the prior written consent of the indemnified party,
unless such settlement or judgment (i) includes as an unconditional term thereof
the giving by the claimant or plaintiff of a release to such indemnified party
from all liability in respect of such action or proceeding and (ii) does not
involve the imposition of equitable remedies or the imposition of any
obligations on such indemnified party and does not otherwise adversely affect
such indemnified party, other than as a result of the imposition of financial
obligations for which such indemnified party will be indemnified hereunder.
(d) (i) If the indemnification provided for in this Section 3.5 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any Claim or expenses referred to herein, then the indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such Claim or expenses in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified party in connection with the actions which
resulted in such Claim or expenses, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether any
action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party under this Section 3.5(d) as a result of the Claim and
expenses referred to above shall be deemed to include any legal or other
15
fees or expenses reasonably incurred by such party in connection with any action
or proceeding.
(ii) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 3.5(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in Section 3.5(d)(i). No Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(e) The obligations of the parties under this Section 3.5 shall be in
addition to any liability which any party may otherwise have to any other party.
SECTION 3.6. Required Reports. The Company covenants that it will file
----------------
the reports required to be filed by it under the Securities Act and the Exchange
Act (or, if the Company is not required to file such reports, it will, upon the
request of any Holder, make publicly available such information), and it will
take such further action as any Holder may reasonably request, all to the extent
required from time to time to enable such Holder to sell shares of Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (a) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the SEC. Upon the request of any Holder, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
SECTION 3.7. Selection of Counsel. In connection with any registration
--------------------
of Registrable Securities pursuant to Section 3.1 hereof, the Demand Party in
the case of a registration pursuant to Section 3.1 may select one counsel to
represent all Holders of Registrable Securities covered by such registration;
provided, however, that in the event that the counsel selected as provided above
is also acting as counsel to the Company in connection with such registration,
the remaining Holders shall be entitled to select one additional counsel to
represent all such remaining Holders.
SECTION 3.8. Holdback Agreement. Each Holder hereby agrees that it shall
------------------
not, to the extent requested by the Company and an underwriter of Equity
Securities of the Company, sell or otherwise transfer or dispose of any
Registrable Securities in a market transaction during the 7 day period prior and
the 180 day period following the effective date of a registration statement of
the Company filed under the Securities Act.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1. Representations of the Company. As of the date hereof and
------------------------------
as of the Effective Date the Company represents and warrants as follows:
(a) Authority Relative to This Agreement. The Company has all necessary
------------------------------------
power and authority to execute and deliver this Agreement and to perform its
obligations
16
hereunder. The execution and delivery of this Agreement by the Company has been
duly and validly authorized by all necessary corporate action and no other
corporate proceedings on the part of the Company are necessary to authorize this
Agreement. This Agreement has been duly and validly executed and delivered by
the Company and, assuming the due authorization, execution and delivery by the
stockholders signatory hereto, constitutes legal, valid and binding obligations
of the Company.
(b) No Conflict. The execution and delivery by the Company of this
-----------
Agreement does not, and the performance of this Agreement by the Company will
not, (i) conflict with or violate the Certificate of Incorporation or By-Laws of
the Company or any of its Subsidiaries, (ii) conflict with or violate any law,
rule, regulation, order, judgment or decree applicable to the Company or any of
its Subsidiaries or by which any property or asset of the Company or any of its
Subsidiaries is bound or affected, or (iii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of the Company or any of its
Subsidiaries pursuant to, any note, bond, mortgage, indenture, contract,
agreement, lease, license, permit, franchise or other instrument or obligation
to which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any property or asset of the Company or
any of its Subsidiaries is bound or affected, except for any such breaches,
defaults or other occurrences which would not, individually or in the aggregate,
have a material adverse effect on the results of operations, financial condition
or business of the Company and its Subsidiaries, taken as a whole.
(c) Required Filings and Consents. The execution and delivery by the
-----------------------------
Company of this Agreement does not, and the performance of this Agreement by the
Company will not, require any consent, approval, authorization or permit of, or
filing by the Company with or notification to, any governmental or regulatory
authority, domestic or foreign, except (i) for applicable requirements, if any,
of the Securities Act, the Exchange Act, state blue sky and takeover laws, and
(ii) where failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or delay
the Company from performing its obligations under this Agreement and would not,
individually or in the aggregate, have a material adverse effect on the results
of operations, financial condition or business of the Company and its
Subsidiaries, taken as a whole.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given by hand
delivery, by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any courier service, such as Federal Express, providing proof
of delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
17
if to the Evercore Stockholders, to:
Evercore Capital Partners L.P.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
if to the Company, to:
Resources Connection, Inc.
c/o Resources Connection LLC
Three ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
if to the Management Stockholders, to:
Resources Connection, Inc.
c/o Resources Connection LLC
Three ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
with a copy to:
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
18
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SECTION 5.2. Amendments; No Waivers. (a) The Agreement may not be
----------------------
amended except in writing, and signed by (a) the Company, (b) the Evercore
Stockholders and (c) the Management Stockholders.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 5.3. Severability. If any term or other provision of this
------------
Agreement is invalid,illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the Transactions is not affected in any manner adverse to any
party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in a mutually acceptable manner in order that the
Transactions be consummated as originally contemplated to the fullest extent
possible.
SECTION 5.4. Entire Agreement; Assignment. This Agreement and the
----------------------------
Initial Stockholders Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and thereof and supersedes all
prior agreements and undertakings, both written and oral, among the parties, or
any of them, with respect to the subject matter hereof. Notwithstanding the
foregoing, Section 3.11 of the Initial Stockholders Agreement shall survive the
execution of this Agreement for a period of five years after the date hereof.
Except as otherwise provided herein, this Agreement shall not be
assigned by operation of law or otherwise without the prior written consent of
the other parties. Notwithstanding the foregoing, without the consent of any
party hereto: (i) the Evercore Stockholders, (x) may assign their rights under
this Agreement to any Affiliate and (y) may assign their rights under Article
III of this Agreement and Section 3.11 of the Initial Stockholders Agreement to
any third party if the Evercore Stockholders sell at least 10% of Evercore's
Interest as of the date hereof to such third party and (ii) the Management
Stockholders may assign their rights under Article III of this Agreement and
Section 3.11 of the Initial Stockholders Agreement to any third party if the
Management Stockholders sell at least 10% of Management's Interest as of the
date hereof to such third party.
SECTION 5.5. Parties in Interest. This Agreement shall be binding upon
-------------------
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
19
SECTION 5.6. Specific Performance. The parties hereto agree that
--------------------
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or equity.
SECTION 5.7. Governing Law. This Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in the State of Delaware. All actions
and proceedings arising out of or relating to this Agreement shall be heard and
determined in any Delaware state or federal court thereof.
SECTION 5.8. Headings. The descriptive headings contained in this
--------
Agreement are included for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.
SECTION 5.9. Counterparts. This Agreement may be executed and delivered
------------
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
SECTION 5.10. Effectiveness; Termination. This Agreement shall be
--------------------------
effective as of the Effective Date. The provisions of Article II of this
Agreement shall terminate with respect to any Stockholder Group at such time as
such Stockholder Group beneficially owns less than 7.5% of the outstanding
shares of Common Stock. The provisions of Article III of this Agreement and
Section 3.11 of the Initial Stockholders Agreement shall terminate with respect
to any Holder at such time as such Holder no longer beneficially owns any
Registrable Securities and in no event later than five years after the date
hereof, provided, that, no party will be subject to this Agreement at such time
-------- ----
when such party no longer owns any shares of the Company.
SECTION 5.11. Waiver of Jury Trial. Each party hereto hereby irrevocably
--------------------
waive all right to trial by jury in any action, proceeding or counterclaim
(whether based on contract, tort or otherwise) arising out of or relating to
this Agreement or the actions of such party in the negotiation, administration,
performance and enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE COMPANY:
RESOURCES CONNECTION, INC.
By: _____________________________________
Name:
Title:
EVERCORE STOCKHOLDERS:
EVERCORE CAPITAL PARTNERS L.P.
By: Evercore Partners L.L.C., its General Partner
By: _____________________________________
Name:
Title:
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By: Evercore Partners L.L.C., its General Partner
By: _____________________________________
Name:
Title:
EVERCORE CAPITAL OFFSHORE PARTNERS L.P.
By: Evercore Partners L.L.C., its General Partner
By: _____________________________________
Name:
Title:
EVERCORE CO-INVESTMENT PARTNERSHIP L.P.
By: Evercore Partners L.L.C., its General Partner
By: _____________________________________
Name:
Title:
MANAGEMENT STOCKHOLDERS:
_________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
EXHIBIT A
---------
6 Person Board of Directors
---------------------------
Evercore Stockholder's Interest
--------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 16.5%/+/ but less (greater than)25.0%
than 16.5% than 25.0%
-----------------------------------------------------------------------------------------------------------
# of directors 0 1 1 2
designated by Evercore
Stockholders
-----------------------------------------------------------------------------------------------------------
# of directors 2 2 2 2
designated by
Management
Stockholders
-----------------------------------------------------------------------------------------------------------
# of Independent 2 2 2 2
Directors
-----------------------------------------------------------------------------------------------------------
6 Person Board of Directors
---------------------------
Management Stockholder's Interest
--------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 16.5%/+/ but less (greater than)25.0%
than 16.5% than 25.0%
-----------------------------------------------------------------------------------------------------------
# of directors 2 2 2 2
designated by Evercore
Stockholders
-----------------------------------------------------------------------------------------------------------
# of directors 0 1 1 2
designated by
Management
Stockholders
-----------------------------------------------------------------------------------------------------------
# of Independent 2 2 2 2
Directors
-----------------------------------------------------------------------------------------------------------
10 Person Board of Directors
----------------------------
Evercore Stockholder's Interest
--------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 12.5%/+/ but less (greater than)27.5%
than 12.5% than 27.5%
-----------------------------------------------------------------------------------------------------------
# of directors 0 1 2 3
designated by Evercore
Stockholders
-----------------------------------------------------------------------------------------------------------
# of directors 3 3 3 3
designated by
Management
Stockholders
-----------------------------------------------------------------------------------------------------------
# of Independent 3 3 3 3
Directors
-----------------------------------------------------------------------------------------------------------
# of Acquisition 1 1 1 1
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Directors
-----------------------------------------------------------------------------------------------------------
10 Person Board of Directors
----------------------------
Management Stockholder's Interest
--------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 12.5%/+/ but less (greater than)27.5%
than 12.5% than 27.5%
-----------------------------------------------------------------------------------------------------------
# of directors 3 3 3 3
designated by Evercore
Stockholders
-----------------------------------------------------------------------------------------------------------
# of directors 0 1 2 3
designated by
Management
Stockholders
-----------------------------------------------------------------------------------------------------------
# of Independent 3 3 3 3
Directors
-----------------------------------------------------------------------------------------------------------
# of Acquisition 1 1 1 1
Directors
-----------------------------------------------------------------------------------------------------------
11 Person Board of Directors
----------------------------
Evercore Stockholder's Interest
--------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 10.5%/+/ but less (greater than)25.9%
than 10.5% than 25.9%
-----------------------------------------------------------------------------------------------------------
# of directors 0 1 2 3
designated by Evercore
Stockholders
-----------------------------------------------------------------------------------------------------------
# of directors 3 3 3 3
designated by
Management
Stockholders
-----------------------------------------------------------------------------------------------------------
# of Independent 3 3 3 3
Directors
-----------------------------------------------------------------------------------------------------------
# of Acquisition 2 2 2 2
Directors
-----------------------------------------------------------------------------------------------------------
11 Person Board of Directors
----------------------------
Management Stockholder's Interest
--------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 10.5%/+/ but less (greater than)25.9%
than 10.5% than 25.9%
-----------------------------------------------------------------------------------------------------------
# of directors 3 3 3 3
designated by Evercore
Stockholders
-----------------------------------------------------------------------------------------------------------
# of directors 0 1 2 3
designated by
Management
Stockholders
-----------------------------------------------------------------------------------------------------------
# of Independent 3 3 3 3
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
Directors
-----------------------------------------------------------------------------------------------------------
# of Acquisition 2 2 2 2
Directors
-----------------------------------------------------------------------------------------------------------
12 Person Board of Directors
----------------------------
Evercore Stockholder's Interest
------------------------------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 12.5%/+/ but less 20.8%/+/ but less (greater than)29.2%
than 12.5% than 20.8% than 29.2%
--------------------------------------------------------------------------------------------------------------------------------
# of directors 0 1 2 3 4
designated by Evercore
Stockholders
---------------------------------------------------------------------------------------------------------------------------------
# of directors 4 4 4 4 4
designated by
Management
Stockholders
---------------------------------------------------------------------------------------------------------------------------------
# of Independent 4 4 4 4 4
Directors
---------------------------------------------------------------------------------------------------------------------------------
12 Person Board of Directors
----------------------------
Management Stockholder's Interest
------------------------------------------------------------------------------------------------------------------
(less than)7.5% 7.5%/+/ but less 12.5%/+/ but less 20.8%/+/ but less (greater than)29.2%
than 12.5% than 20.8% than 29.2%
--------------------------------------------------------------------------------------------------------------------------------
# of directors 4 4 4 4 4
designated by Evercore
Stockholders
--------------------------------------------------------------------------------------------------------------------------------
# of directors 0 1 2 3 4
designated by
Management
Stockholders
--------------------------------------------------------------------------------------------------------------------------------
# of Independent 4 4 4 4 4
Directors
--------------------------------------------------------------------------------------------------------------------------------