INVESTORS' AGREEMENT
This INVESTORS' AGREEMENT (this "Agreement") is made as of July 20,
2000, between United Road Services, Inc., a Delaware corporation (the
"Company"), and Blue Truck Acquisition, LLC ( "Blue Truck").
WHEREAS, the Company and Blue Truck have entered into a Purchase
Agreement, dated as of April 14, 2000 (as amended, the "Purchase Agreement"),
pursuant to which the Company has agreed to issue and sell to Blue Truck
613,073.27 shares of the Company's Series A Participating Convertible Preferred
Stock, par value $0.001 (the "Series A Preferred Stock");
WHEREAS, the Certificate of Powers, Designations, Preferences and
Rights of the Preferred Shares (the "Certificate of Designations") provides,
among other things, that shares of the Series A Preferred Stock are convertible
at any time, in part or in whole, at the option of the holder into shares of the
common stock, par value $0.01 per share, of the Company (the "Common Stock");
and
WHEREAS, the execution and delivery of this Agreement is a condition to
the closing of the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following terms shall have the meanings
set forth below:
1.1 Capitalized terms used but not otherwise defined herein
shall have the respective meanings ascribed to them in the Purchase Agreement.
1.2 "Affiliate" of a Person means any other Person who is
controlled by, controls or is under common control with such Person.
1.3 "Company Board" means the Board of Directors of the
Company.
1.4 "Converted Shares" means the shares of Common Stock
actually received by the Original Holders upon conversion of some or all of the
shares of Series A Preferred Stock.
1.5 "Current Company Directors" means the members of the Board
of Directors of the Company as constituted immediately prior to the Closing.
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1.6 "Independent Committee" means a committee of the Board of
Directors of the Company which consists of (i) all the Independent Members, and
(ii) one Investor Nominee.
1.7 "Independent Member" means a member of the Company Board
who is not an Investor Nominee.
1.8 "Investor Nominee" means any person designated, nominated
or elected by the Majority Holders to serve as a director on the Company Board
pursuant to this Agreement.
1.9 "Liquidation" means the liquidation under applicable
bankruptcy or reorganization legislation, or the dissolution or winding up, of
the Company.
1.10 "Majority Holders" shall mean the holders of a majority
of the outstanding shares of Series A Preferred Stock.
1.11 "Original Holders" shall mean Blue Truck and any
Permitted Transferees.
1.12 "Permitted Transferee" means any Affiliate, partner,
member or stockholder of Blue Truck and the respective Affiliates, partners,
members or Stockholders of such persons.
1.13 "Person" means an individual, corporation, limited
liability company, partnership, association, trust or any other entity or
organization.
1.14 "Stockholders" means all of the holders of capital stock
of the Company and "Stockholder" shall mean any such Person.
1.15 "Transfer" means to sell, assign, transfer (voluntarily
or involuntarily), exchange (by merger or otherwise) or otherwise dispose of or
to ▇▇▇▇▇ ▇ ▇▇▇▇, encumbrance, pledge or other form of security interest.
2. Corporate Governance.
2.1 Election of Directors.
2.1.1 Resignation of Directors and Filling of
Vacancies. Subject to the second sentence of this Section 2.1.1, effective as of
the Closing, four of the Current Company Directors shall resign as directors,
such resignations to be evidenced by letters of resignation delivered to the
Company on or prior to the Closing Date, and the remaining Current Company
Directors shall fill the vacancies caused by such resignations, along with the
two other vacancies presently existing on the Company Board, with six (6)
persons designated by the Majority Holders, such that immediately after the
Closing, the Company Board shall consist of eleven (11) members, six (6) of whom
shall have been designated by the Majority Holders and five (5) of whom shall be
Current Company Directors. Notwithstanding anything herein to the contrary, if
the Current Company Directors shall determine, in their sole discretion, that it
is in the best interests of the Company to reduce the size of the Company Board
to nine members prior to the Closing Date, effective as of the
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Closing Date, five Current Company Directors shall resign as directors, such
resignations to be evidenced as provided above and the remaining Current Company
Directors shall fill the vacancies caused by such resignations with five (5)
persons designated by the Majority Holders, such that, immediately after
Closing, the Company Board shall consist of nine (9) members, five (5) of whom
shall have been designated by the Majority Holders and four (4) of whom shall be
Current Company Directors. In connection with such resignations and filling of
vacancies, the Company Board shall take all action necessary (through
redesignation of classes or otherwise) to cause the classes of directors on the
Company Board after the Closing to be as nearly equal in number as possible and
to have the Investor Nominees spread as evenly as possible among the various
classes.
2.1.2 From and after the Closing:
(a) The Original Holders and the Company
Board shall take all necessary actions to cause the establishment and
appointment of the Independent Committee having the powers under this Agreement
and to select the nominees of the Independent Committee consistent with the
terms of this Agreement.
(b) For so long as the Original Holders own
(as reflected in the stock ledger of the Company on the record date for
determining the shareholders who are entitled to vote for the election of
directors (the "Record Date")) at least 50% of the Adjusted Number of Shares
Purchased (as defined in Section 2.1.2(f)), the size of the Company Board shall
be either 9 or 11 and if the size of the Company Board is eleven, the Majority
Holders shall be entitled to elect and designate six of the directors to the
Company Board; and if the size of the Company Board is nine, the Majority
Holders shall be entitled to elect and designate five of the directors of the
Company Board, and in both cases, the remainder of the members of the Company
Board shall be nominated by the Independent Committee; provided, however, that
so long as Charter URS LLC and its permitted transferees ("Charterhouse") are
entitled to nominate members of the Company Board pursuant to the Investors
Agreement, dated April 14, 2000, as amended, between Charterhouse and the
Company (the "Charterhouse Investors Agreement"), the Charterhouse Nominees (as
defined in the Charterhouse Investors Agreement) shall be included among the
nominees of such Independent Committee.
(c) If the Original Holders ever own (as
reflected in the stock ledger of the Company on the relevant Record Date) less
than 50% of the Adjusted Number of Shares Purchased, for so long as the Original
Holders own at least 25% of the Adjusted Number of Shares Purchased, and
regardless of whether the Original Holders subsequently regain ownership of 50%
or more of the Adjusted Number of Shares Purchased, then the size of the Company
Board shall be either nine or eleven, and the Majority Holders shall be entitled
to elect and designate three directors to the Company Board (regardless of
whether the size of the Company Board is nine or eleven).
(d) If the Original Holders ever own (as
reflected in the stock ledger of the Company on the relevant Record Date) less
than 25% of the Adjusted Number of Shares Purchased, for so long as the Original
Holders own at least 10% of the Adjusted Number of Shares Purchased, and
regardless of whether the Original Holders subsequently regain ownership of 25%
or more of the
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Adjusted Number of Shares Purchased, then the total number of directors shall be
designated in accordance with the Company's Bylaws, and the Majority Holders
shall be entitled to elect and designate one director to the Company Board
(regardless of whether the size of the Company Board is nine or eleven).
(e) If the Original Holders shall ever fail
to own (as reflected in the stock ledger of the Company on the relevant Record
Date) at least 10% of the Adjusted Number of Shares Purchased, and regardless of
whether the Original Holders subsequently regain ownership of 10% or more of the
Adjusted Number of Shares Purchased, then the total number of directors shall be
designated in accordance with the Company's Bylaws and the holders of the Series
A Preferred Stock shall no longer be entitled, as a class, to elect any
particular number of directors to the Company Board.
(f) The "Adjusted Number of Shares
Purchased" means the Number of Convertible Equivalent Shares (as defined in the
Certificate of Designations) purchased by the Original Holders, as increased,
from time to time, by the number of shares of capital stock of the Company (as
converted into Common Stock, if applicable) that the Original Holders purchase
directly from the Company after the date hereof and as equitably adjusted, from
time to time, in connection with any event requiring adjustment under Section
5(f) of the Certificate of Designations, such adjustment to be made in a manner
consistent with such adjustment of the Conversion Price under Section 5(f) of
the Certificate of Designations.
2.1.3 If at any time more Investor Nominees are
serving on the Company Board than are entitled to serve on the Company Board
pursuant to this Section 2.1, the holders of the Series A Preferred Stock shall
cause the requisite number of Investor Nominees to immediately resign (the
person to resign to be designated by the Majority Holders) from the Company
Board by giving written notice to the Company so that the correct number of
Investor Nominees are serving on the Company Board. Notwithstanding anything
herein to the contrary, in the event that written resignations of the requisite
number of Investor Nominees are not received by the Company within one business
day after the event that causes such Investor Nominees to no longer be entitled
to serve on the Company Board pursuant to this Section 2.1, the Independent
Committee shall be entitled (without the consent of the Original Holders or the
Investor Nominees) to take all action permitted under the Company's Certificate
of Incorporation and Bylaws and the Delaware General Corporation Law to remove
such Investor Nominees from the Company Board.
2.1.4 At any time during which the holders of the
Series A Preferred Stock are entitled to designate persons for election to the
Company Board, neither the Company nor the Original Holders shall take any
action to change the size of the Company Board without the approval of a
majority of the Investor Nominees and the approval of a majority of the
Independent Members. Notwithstanding anything herein or in the Purchase
Agreement to the contrary, at any time during which the Original Holders do not
own shares of the Series A Preferred Stock that represent at least 25% of the
Adjusted Number of Shares Purchased (and regardless of whether the Original
Holders subsequently regain ownership of 25% or more of the Adjusted Number of
Shares Purchased), the Company Board may be
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reduced or increased at the option of the Company without the consent of holders
of the Series A Preferred Stock or the Investor Nominees.
2.2 Removal and Replacement of Directors.
2.2.1 Removal of Investor Nominees. If at any time
the Majority Holders notify the Company Board of their wish to remove any
Investor Nominee from the Company Board, the Company Board shall vote so as to
remove such Investor Nominee provided that such Investor Nominee can be removed
in accordance with the Company's Bylaws and the Delaware General Corporation
Law. Except as otherwise provided in Sections 2.1.3 above, removal of an
Investor Nominee by the Company Board requires the prior written consent of the
Majority Holders unless such removal is based upon the gross negligence or
willful misconduct of the Investor Nominee.
2.2.2 Replacement of Directors. If at any time after
the Closing Date, a vacancy is created on the Company Board by reason of the
incapacity, death, removal or resignation of, or the expiration of the term of,
any Investor Nominee, then the Majority Holders shall designate an individual to
fill such vacancy provided that the Original Holders continue to have the right
to designate a person for such position pursuant to Section 2.1 above. If at any
time after the Closing Date, a vacancy is created on the Company Board by reason
of the incapacity, death, removal or resignation of, or the expiration of the
term of, any Independent Member, then the Independent Committee shall have the
right to nominate an individual to fill such vacancy.
2.2.3 Stockholder Meetings. At each meeting of
Stockholders of the Company at which directors are elected, the nominees for
directors proposed by the Company Board shall include the Investor Nominees and
the nominees of the Independent Committee required pursuant to this Agreement.
2.3 Board Members.
2.3.1 All members of the Company Board shall receive
notice of each meeting of the Company Board at the same time and in the same
manner.
2.3.2 All Investor Nominees shall be entitled to the
same indemnification rights as are accorded Independent Members. The Company
shall at all times maintain a directors' and officers' insurance policy covering
all the members of the Company Board.
3. Restriction on Transfer.
3.1 (a) The Original Holders shall not Transfer any shares of
Series A Preferred Stock to any Person (other than a Permitted Transferee)
unless the Independent Committee approves such Transfer and any proposed
transferee (including the Permitted Transferees) agrees in writing to be bound
by the provisions of this Agreement; provided, that the Original Holders may,
subject to prior compliance with Section 3.1(b), sell all, or any part of, the
Series A Preferred Shares at any time when the product of the Current Market
Price (as defined in the
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Certificate of Designations) times ten is less than the Series A Preferred Base
Liquidation Amount (as defined in the Certificate of Designations but adjusted
in accordance with Section 5(f)(i) of the Certificate of Designations). Any
transferee of shares of Series A Preferred Stock under this Section 3.1 shall
stand in the shoes of the Original Holders for all purposes of this Agreement
and shall be bound by all of the obligations and restrictions and entitled to
all of the rights set forth herein as if such transferee were the initial
signatory to this Agreement.
(b) Right to Redeem. Prior to any Transfer of any
shares of Series A Preferred Stock pursuant to Section 3.1(a), the Original
Holders shall offer the Company in writing (the "First Refusal Offer") the right
to purchase the shares of Series A Preferred Stock proposed to be Transferred
(the "Transfer Shares"), on the same terms other than price which shall be at
the Series A Preferred Liquidation Preference Amount (as defined in the
Certificate of Designations) as the Transfer Shares. The Company shall have the
right to accept the offer for all (but not less than all) Transfer Shares by
written notice to the Original Holders within 5 days of receipt by the Company
of the First Refusal Offer.
3.2 The Original Holders shall not Transfer any Converted
Shares to any Person without the prior written approval of the Independent
Committee, except:
(a) The Original Holders may transfer Converted
Shares to Permitted Transferees who agree in writing to be bound by the
provisions of this Agreement;
(b) The Original Holders may sell Converted Shares on
any national securities exchange or on any other market in which such shares are
eligible for trading at the time of such proposed transfer;
(c) The Original Holders may sell Converted Shares in
a private transaction to any Person who would not own immediately following such
purchase more than 15% of the then outstanding Common Stock (on a fully diluted
basis); and
(d) The Original Holders may sell Converted Shares
either (i) in a private transaction or in any merger, consolidation or similar
business combination in which all stockholders of the Company are offered the
right to participate on identical terms and conditions in proportion, to their
ownership interests; provided, that a transaction shall not be deemed to fail to
satisfy the requirements of this clause (i) of this paragraph (d) if any or all
of the stockholders of the Company are required to retain up to 15% of the
shares of capital stock of the Company in such transaction, or (ii) in any other
transaction approved by the Independent Committee.
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4. Preemptive Rights. The Company shall not issue any Common Stock or
any other capital stock of the Company to any Person (the "Offered Shares")
(other than Common Stock or capital stock issued (i) pursuant to any officer or
director stock option plan or stock purchase plan approved by the Company Board,
(ii) in connection with a stock dividend or a subdivision of outstanding shares
of Common Stock into a larger number of shares of Common Stock, (iii) in
connection with an acquisition which is approved by the Company Board, (iv)
pursuant to a registration statement of the Company as declared effective by the
Securities Exchange Commission, (v) upon exercise or conversion of presently
outstanding options, warranties or securities, including, without limitation,
the Company's 8% Convertible Subordinated Debentures due 2008 and the Series A
Preferred Stock, (vi) the issuance of the Closing Shares (as such term is
defined in the Amended and Restated Purchase Agreement, dated as of April 14,
2000, as amended, between the Company and Charter URS LLC or (vii) pursuant to
an agreement identified on Schedule 2.2 of the Company Disclosure Schedule to
the Purchase Agreement), unless the Company has offered in writing (the
"Preemptive Notice") to the Original Holders the right to purchase, at the same
price and on the same terms as the Offered Shares, a portion of the Offered
Shares equal to the product of (a) the total number of Offered Shares and (b) a
fraction, the numerator of which is the number of shares of capital stock owned
by the Original Holders and the denominator of which is the total number of
outstanding shares (on a fully diluted, as converted basis). The Original
Holders shall have the right to accept the offer for all or any portion of its
portion of the Offered Shares as calculated in accordance with this Section 4 by
written notice to the Company within 5 days of receipt by the Original Holders
of the Preemptive Notice.
5. Miscellaneous.
5.1 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered personally, or
sent by facsimile, certified, registered or express mail, postage prepaid. Any
such notice shall be deemed given when so delivered personally, or sent by
facsimile, certified, registered or express mail or, if mailed, five days after
the date of deposit in the United States mail, as follows:
(a) if to the Company:
United Road Services, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇▇▇▇, Will & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇. ▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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(b) If to the Original Holders:
Blue Truck Acquisition, LLC
c/o KPS Special Situations Fund, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1285 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may, by notice given in accordance with this Section 5.1, designate
another address or person for receipt of notices hereunder.
5.2 Amendment and Waiver.
5.2.1 No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
parties hereto at law, in equity or otherwise.
5.2.2 Any amendment, supplement or modification of or
to any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by any party from the terms of any
provision of this Agreement, shall be effective (i) only if it is made or given
in writing and signed by the Company and the Majority Holders and (ii) only in
the specific instance and for the specific purpose for which made or given.
5.3 Specific Performance. The parties hereto intend that each
of the parties has the right to seek damages or specific performance in the
event that any other party hereto willfully fails to perform such party's
obligations hereunder. Therefore, if any party shall institute any action or
proceeding to enforce the provisions hereof, any party against whom such action
or proceeding is brought hereby waives any claim or defense therein that the
plaintiff party has an adequate remedy at law.
5.4 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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5.5 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
5.6 Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
5.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
5.8 Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates to, execute such instruments and take such
action as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby.
5.9 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. This Agreement is not assignable by the Company and may
be assigned by Blue Truck to any Permitted Transferee.
5.10 No Third Party Beneficiaries. Except for Section 2.3,
this Agreement is not intended to, and does not, create any rights or benefits
of any Person other than the parties hereto.
5.11 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
5.12 Effectiveness. Notwithstanding anything to the contrary
contained in this Agreement, this Agreement shall not become effective, and the
Original Holders shall have no rights hereunder, unless and until the Closing
has occurred.
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IN WITNESS WHEREOF, the undersigned have executed, or have caused to be
executed, this Agreement on the date first written above.
UNITED ROAD SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Executive Officer
BLUE TRUCK ACQUISITION, LLC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President