Exhibit 10.1
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_______________________________________________________________________________
SECOND AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
BY AND BETWEEN
XXXXXXX FAMILY INVESTORS, LLC
XXXXXX X. XXXXXX AND XXXXX X. XXXXXX, JOINT TENANTS
XXXXXX & XXXXX XXXXXX CHARITABLE REMAINDER UNITRUST
AND
XXXXXXX & XXXXXX, INC.
_______________________________________________________________________________
SECOND AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
BY AND BETWEEN
XXXXXXX FAMILY INVESTORS, LLC
XXXXXX X. XXXXXX AND XXXXX X. XXXXXX, JOINT TENANTS
XXXXXX & XXXXX XXXXXX CHARITABLE REMAINDER UNITURST
AND
XXXXXXX & XXXXXX, INC.
TABLE OF CONTENTS
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DESCRIPTION PAGE
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1. Definitions 1
2. First Right of Offer 3
3. Purchase Option of Corporation 4
4. Purchase Option of Remaining Shareholders 4
5. Purchase Price 4
6. Payment of Purchase Price 4
7. Promissory Note and Guarantee 5
8. Transfer of Shares to Purchaser 6
9. Endorsement of Stock 8
10. Covenants of the Corporation 8
11. Securities Law Compliance 8
12. Stock Splits, Dividends, Etc. 9
SECOND AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
BY AND BETWEEN
XXXXXXX FAMILY INVESTORS, LLC
XXXXXX X. XXXXXX AND XXXXX X. XXXXXX, JOINT TENANTS
XXXXXX & XXXXX XXXXXX CHARITABLE REMAINDER UNITRUST
AND
XXXXXXX & XXXXXX, INC.
DESCRIPTION PAGE
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13. Rights, Obligations and Remedies 9
14. Notices, Offers, Acceptances and Rejections 9
15. Benefit 10
16. Entire Agreement; Amendment, Modification and Termination 10
17. Execution in Counterparts 11
18. Governing Law 11
19. Miscellaneous 11
(a) Indulgences, Etc.
(b) Provisions Separable
(c) Paragraph Headings
(d) Gender, Etc.
(e) Number of Days
SECOND AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT made as of this 21st
day of February 2003 by and among Xxxxxxx Family Investors, LLC ("Xxxxxxx") and
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx, husband and wife as joint tenants
("Xxxxxx"), Xxxxxx & Xxxxx Xxxxxx Charitable Remainder Unitrust ("Unitrust")
(Xxxxxxx, Xxxxxx and Unitrust are hereinafter referred to individually as
"Shareholder" and jointly as "Shareholders") and Xxxxxxx & Xxxxxx, Inc., a
Delaware corporation (hereinafter referred to as "Corporation").
W I T N E S S E T H :
- - - - - - - - - - -
WHEREAS, Shareholders are the owners of the majority of the outstanding
stock of Corporation; and
WHEREAS, Shareholders desire to promote their mutual interests and the
interests of Corporation by imposing certain restrictions and obligations on
themselves, on Corporation and on their shares of stock of Corporation; and
WHEREAS, Xxxxxxx X. Xxxxxxx ("Xxxxxxx"), Xxxxxx X. Xxxxxx ("Xxxx") and
Corporation entered into a Shareholders Agreement dated the 11th day of August
1988, as amended and restated by a First Amended and Restated Shareholders
Agreement dated July 31, 2002, both of which are to be superseded by this Second
Amended and Restated Shareholders Agreement.
NOW, THEREFORE, the parties intending to be legally bound, agree as
follows:
1. Definitions. The following terms as used in this Agreement shall be
deemed to have the following definitions:
1.01 "Act" - The Securities Act of 1933.
1.02 "Affiliate"- With respect to any Person, (i) any Person that
directly or indirectly controls, is controlled by, or is under common control
with such Person; (ii) any Person that directly or indirectly controls 10% or
more of the outstanding equity securities of such Person or of which such Person
is directly or indirectly owner of 10% or more of any class of equity
securities; (iii) any Person that is an officer of, director of, partner in, or
trustee of, or serves in a similar capacity with respect to, such Person or of
which such Person is an officer, director, partner or trustee, or with respect
to which such Person serves in a similar capacity; or (iv) any Person that is a
member of the immediate family of such Person ("immediate family" as used herein
shall mean spouse, mother, father, brother, sister or lineal descendant) or is
an entity controlled by a member of or members of such Person's immediate
family. For avoidance of doubt, Xxxxxxx Xxxxxxx and Xxxxxx Xxxxxxx shall be
considered Affiliates of Xxxxxxx.
1.03 "Board of Directors" - The Board of Directors of
Corporation.
1.04 "Certificates" - The stock certificates representing
Shares.
1.05 "Offer" - An offer to sell Shares made in accordance
with Paragraph 2 of this Agreement.
1.06 "Offering Shareholder" - A Shareholder or his/her or
its personal representative who offers to sell his/her or its Shares in
accordance with Paragraph 2 of this Agreement.
1.07 "Permitted Transferee" - The spouse and issue of
Xxxxxxx or Xxxx or a trust established for the benefit of such spouse or issue,
and a private foundation formed by Xxxxxxx or Xxxx which qualifies as charitable
organization as defined in Section 501(c)(3) of the Internal Revenue Code of
1986 and a partnership or limited liability company either controlled by Xxxxxxx
or Xxxx or in which an Affiliate is the beneficial owner of 5% of more of the
equity interests.
1.07 "Purchase Price" - The purchase price set forth in
Paragraph 5 of this Agreement.
1.08 "Purchaser" - The Corporation or a Shareholder who
purchases Shares pursuant to the terms of this Agreement.
1.09 "Rejected Offer" - An offer made in accordance with
Paragraph 2 of this Agreement which is rejected by the Corporation and the
Remaining Shareholder in accordance with Paragraphs 3 and 4 of this Agreement.
1.10 "Remaining Shareholders" - The Shareholders, other than
the Offering Shareholder, at the time an offer to sell Shares is made in
accordance with Paragraph 2 of this Agreement.
1.11 "Seller" - A Shareholder who sells Shares in accordance
with the terms of this Agreement.
1.12 "Shares" - Shares of outstanding common stock of
Corporation.
2. First Right of Offer.
(a) Offer and Notice. A Shareholder or a Permitted Transferee
who wishes to sell, give, contribute, assign, transfer, encumber or otherwise in
any manner whatsoever dispose of any of the Shares which he/she or it now owns
or hereafter at any time shall acquire, may only do so after first offering all
such Shares for sale to Corporation and then to the Remaining Shareholders upon
the terms and conditions set forth herein. Every such Offer shall be made in
writing and shall state (i) the number of the Shares which the Offering
Shareholder desires to sell, give, contribute, assign, transfer, encumber or
otherwise dispose, (ii) the purchase price for the Shares, (iii) terms of
payment, (iv) the amount of deposit required, and (v) the terms of any guaranty
in connection with any deferred payments (the "Notice of Offer). A written copy
of such Notice of Offer shall be given simultaneously to Corporation and to the
Remaining Shareholders.
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(b) Transfers to Permitted Transferees. The first right of
offer set forth in this Section 2 shall not apply to an inter vivos or
testamentary gift or other transfer of Shares by a Shareholder to a Permitted
Transferee, provided such Permitted Transferee agrees in writing to be bound by
the terms of this Agreement to the same extent as the Shareholders are bound
hereby, or to any change in control of a Shareholder other than a natural person
so long as the controlling person is a Permitted Transferee. In the event that
any Permitted Transferee fails to agree in writing to be bound by this
Agreement, the proposed transfer shall be null and void absent compliance with
the terms of this Agreement as if such person were not a Permitted Transferee.
An involuntary seizure of Shares owned by a Shareholder shall be deemed to
constitute an offer by such Shareholder to sell his/her/its Shares.
3. Purchase Option of Corporation. Corporation shall have a period of
thirty (30) days after receipt by it of an Offer within which to accept or
reject such Offer, provided that the Corporation must, in writing,
unconditionally accept all of the Shares so offered, including the purchase
price for which the Shares are offered and the terms of such offer, and any
attempted conditional or partial acceptance of the Offer shall constitute a
rejection. The Offering Shareholder, and any Permitted Transferee of the
Offering Shareholder, shall not participate in any way in the making of the
decision as the whether Corporation shall accept or reject such Offer. Failure
on the part of Corporation to take action within such period shall constitute a
rejection of the Offer.
4. Purchase Option of Remaining Shareholders. Should Corporation reject
an Offer, the Remaining Shareholders shall have an additional period of thirty
(30) days within which to accept or reject such Offer; provided that the
Remaining Shareholders, individually or collectively, must, in writing,
unconditionally accept all of the Shares so offered, including the purchase
price for which the Shares are offered and the terms of such offer, and any
attempted conditional or partial acceptance of the Offer shall constitute a
rejection.. Failure on the part of the Remaining Shareholders to take action
within the period specified shall constitute a rejection of the Offer. In the
event that more than one of the Remaining Shareholders wish to exercise its or
their option and in the aggregate they wish to purchase more Shares than those
available under the Offer, they shall do so in proportion to their ownership of
Shares.
5. Sales Following Rejection of Offer. In the event that Corporation or
the Remaining Shareholders fail to accept the Offer made by the Offering
Shareholder in whole, and then only during the period of one hundred eighty
(180) days following the rejection by the Remaining Shareholders, the Offering
Shareholder may sell, give contribute, assign, transfer, encumber or otherwise
in any manner whatsoever dispose of the Shares not purchased by Corporation
and/or the Remaining Shareholders in accordance with the terms set forth in the
Notice of Offer. If the Seller wishes to sell such Shares at a price which is
less than that set forth in the Notice of Offer, upon terms less favorable to
the Seller than those set forth in the Notice of Offer or more than 180 days
after the rejection of the Offer as to such Shares by Corporation and the
Remaining Shareholders (the "Revised Offer"), then such Shares must be offered
again to Corporation and the Remaining Shareholders on the terms and conditions
in the Revised Offer, and in accordance with the procedures and time periods set
forth above.
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6. Endorsement of Stock. All Certificates owned by the Shareholders
shall have endorsed thereon the following statement:
"The shares of stock represented by this certificate are
held subject to the terms and conditions of a Second
Amended and Restated Shareholders Agreement dated as of
the 21st day of February, 2003 by and among the
Corporation and certain of its Shareholders, which
Agreement contains provisions restricting the
Shareholder's right to transfer the shares of stock
represented by this certificate. A copy of the Agreement
is on file at the office of the Corporation."
All Certificates representing additional Shares of stock of Corporation
acquired by any of the Shareholders shall be similarly endorsed.
7. Covenants of the Corporation. Corporation shall use its best efforts
to cause the legend specified in Paragraph 6 hereof to be placed on all
Certificates in respect of Shares which are subject to the provisions of this
Agreement and shall also institute a stop transfer order with the transfer agent
for such Shares. Corporation shall retain a copy of this Agreement and copies of
all amendments thereto which it receives on file at the office of Corporation.
Corporation shall have no liability as a result of its failure to perform its
obligations under this Paragraph 7, unless such failure is willful. In carrying
out its obligations hereunder, Corporation shall be entitled to rely
conclusively on any notice believed by Corporation to have been signed by the
Shareholders or their authorized representatives.
8. Securities Law Compliance. Corporation shall have no obligation to
issue Certificates in connection with any transfer of Shares unless satisfied
that there has been compliance with the requirements of the Securities Act of
1933 and applicable state securities laws and all rules and regulations
promulgated under the Securities Act of 1933 and such state securities laws.
9. Stock Splits, Dividends, Etc. Whenever a specific number of Shares
or the Purchase Price is to be computed hereunder such number or amount shall be
adjusted for subsequent stock splits, stock dividends or other capital
adjustments of the Corporation.
10. Rights, Obligations and Remedies. Shareholders agree that their
rights and obligations under, and the remedies to enforce, this Agreement are
joint and several and each Shareholder shall be completely free to enforce any
or all of the rights or obligations under this Agreement against the other
Shareholder with or without the concurrence or joinder of the other Shareholder
or Corporation. The Shares are unique, and recognizing that the remedy at law
for any breach or threatened breach by a Shareholder of the covenants and
agreements set forth in this Agreement would be inadequate and that any such
breach or threatened breach would cause such immediate and permanent damage as
would be irreparable and the exact amount of which would be impossible to
ascertain, the Shareholders agree that in the event of any breach or threatened
breach of nay such covenant or agreement, in addition to any and all other legal
and equitable remedies which may be available, any Shareholder may specifically
enforce the terms of this Agreement and may obtain temporary and/or permanent
injunctive relief without the necessity of proving actual damage by reason of
any breach or threatened breach hereof and, to the extent permissible under the
applicable statutes and rules of procedure, a temporary injunction may be
granted immediately upon the commencement of any such suit and without notice.
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11. Notices, Offers, Acceptances and Rejections.
(a) Notices, etc. Any notice required to be given, or offer,
acceptance or rejection made pursuant to the provisions of this Agreement shall
be given in writing (including telecopy or similar teletransmission), addressed
as follows:
If to the Corporation: Xxxxxxx & Xxxxxx, Inc.
000 X Xxxxxx X.X.
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: S. Xxxxxxxx Xxxxxxx
Shaiman, Drucker, Xxxxxxx & Xxxxx, LLP
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If to Xxxxxxx: c/x Xxxxxxx Family Investors, L.L.C.
00000 Xxxxxxxxx Xxxxx
Xxxxxxxxx 0000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxxx X. Xxxxx
Xxxxx, Harrison, Harvey, Branzburg & Xxxxxx LLP
000 X. Xxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
If to Xxxxxx or the Unitrust: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
With a copy to: Xxxxxx X. Xxxxxx
Xxxx and Xxxx LLP
0000 Xxxxxxxxxxxx Xxx. X.X.
Xxxxxxxxxx, X.X. 00000
Facsimile: (000)-000-0000
Unless otherwise specified herein, such notices or other communication shall be
deemed received (a) in the case of any notice or communication sent other than
by mail, on the date actually delivered to such address (evidenced, in the case
of delivery by overnight courier, by confirmation of delivery from the overnight
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courier service making such delivery, and in the case of a telecopy, by receipt
of a transmission confirmation form or the addressee's confirmation of receipt),
or (b) in the case of any notice or communication sent by mail, three (3)
business days after being sent, if sent by registered or certified mail, with
first-class postage prepaid., Each of the parties hereto shall be entitled to
specify a different address by giving notice as aforesaid to each of the other
parties hereto.
(b) Computation of Time. Whenever a period of time is to be
computed from the date of receipt of an item of certified mail, such period
shall be computed from the fifth (5th) day following the date of mailing if
delivery of the certified mail item is refused by the party to who it was
directed.
(c) Multiple Notices. Whenever a notice, Offer, acceptance or
rejection or a copy is required to be sent to more than one person, all such
communications should, whenever reasonably possible, be mailed within a single
twenty-four (24) hour period.
11. Benefit. Except as herein otherwise provided, this Agreement shall
inure to the benefit of and shall be binding upon the parties hereto and their
personal representatives, heirs, successors and assigns.
12. Entire Agreement; Amendment, Modification and Termination.
(a) Superseded Agreements. The Shareholders Agreement, dated
August 11, 1988, by and between Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx and
Corporation and the First Amended and Restated Shareholders Agreement by and
between Xxxxxxx Family Investors, LLC, Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx,
Joint Tenants, and Xxxxxx & Xxxxx Xxxxxx Charitable Remainder Unitrust and
Corporation, dated July 31, 2002, are hereby made null and void and are
superseded by this Second Amended and Restated Shareholders Agreement.
Corporation shall authorize is Transfer Agent to remove all endorsements
currently on outstanding Certificates which refer to said August 11, 1998 and
July 31, 2002 agreements.
(b) Entire Agreement; Amendment, Modification and Termination.
This Agreement contains the entire understanding among the parties hereto with
respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance and/or usage
inconsistent with any of the terms hereof. This Agreement may be amended,
modified or terminated at any time or times by the unanimous agreement in
writing of Corporation and the Shareholders, provided, however, no such
amendment, modification or termination, shall affect the right of any person or
entity to receive, or the obligation of any person or entity to pay, on the
terms and conditions of this Agreement, the Purchase Price for Shares sold
pursuant to this Agreement prior to such amendment, modification or termination,
or the right or obligation of any person or entity to sell or purchase Shares,
on the terms and conditions of this Agreement, if the offer giving rise to such
right or obligation to sell or purchase Shares has in fact been made prior to
such amendment, modification or termination.
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13. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
14. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
15. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the
part of any party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege with respect to
any concurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence.
(b) Provisions Separable. If any provision or term of this
Agreement is held to be illegal, invalid or unenforceable, such provision or
term shall be fully severable; this Agreement shall be construed and enforced as
if such illegal, invalid or unenforceable provision had never comprised part of
this Agreement; and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement. Furthermore, in
lieu of each such illegal, invalid or unenforceable provision or term there
shall be added automatically as part of this Agreement another provision or term
as similar to the illegal, invalid or unenforceable provision as may be possible
and that is legal, valid and enforceable.
(c) Paragraph Headings. The paragraph headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
(d) Gender, Etc. Words used herein, regardless of the number
and gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(e) Counterparts. This Agreement may be executed in
counterparts and when each party has executed a counterpart this Agreement shall
be deemed to be in full force and effect and binding upon all parties.
(f) Number of Days. In computing the number of days for
purposes of this Agreement, all days shall be counted, including Saturdays,
Sundays and holidays; provided, however, that if the final day of any time
period falls on a Saturday, Sunday or holiday on which Federal banks are or may
elect to be closed, then the final day shall be deemed to be the next day which
is not a Saturday, Sunday or such holiday.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Xxxxxxx & Xxxxxx, Inc. Xxxxxxx Family Investors, LLC
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx
Chief Executive Officer Manager
Attest:
/s/ Xxxxxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxxx, Joint Tenant
/s/ Xxxxxx X. Xxxxxx /s/Xxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx, Joint Tenant
Xxxxxx & Xxxxx Xxxxxx
Charitable Remainder Unitrust
By: /s/ Xxxxxx X. Xxxxxx
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