Exhibit 10.1
EXECUTION COPY
AGREEMENT
This AGREEMENT ("Agreement"), dated effective as of September 6, 2001,
by and among Provant, Inc., a corporation organized and existing under the laws
of Delaware (the "Company"), and those persons whose names appear at the end of
this Agreement (the "Stockholders").
WHEREAS, the Stockholders are presently the beneficial owners of shares
of Common Stock of the Company ("Common Stock");
WHEREAS, the Stockholders have expressed their desire to cause the
election to the Company's Board of Directors (the "Board") of persons who are
not presently officers or directors of the Company;
WHEREAS, the Company and the Stockholders entered into an agreement
effective August 31, 2001 among the Company and the Provant Committee to Restore
Shareholder Value (the "Prior Agreement") wherein the parties agreed to enter
into this Agreement; and
WHEREAS, in view of the foregoing and in consideration of the mutual
agreements contained in this document, the Company and the Stockholders are
prepared to take the actions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements contained
herein, and intending to be legally bound hereby, the parties hereto agree as
follows:
SECTION 1. THE COMPANY'S REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to each of the Stockholders as
follows:
(a) AUTHORITY. The Company has the power and authority to
execute, deliver and carry out the terms and provisions of this
Agreement and to consummate the transactions contemplated hereby, and
has taken all necessary action to authorize the execution, delivery and
performance of this Agreement.
(b) ENFORCEABILITY. This Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms.
(c) CONSENTS AND APPROVALS; NO VIOLATION. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, result in the breach of any
of the terms or conditions of, constitute a default under or violate,
accelerate or permit the acceleration of any other similar right of any
other party under, the Certificate of Incorporation or By-laws of the
Company, any law, rule or regulation or any agreement, lease, mortgage,
note, bond,
indenture, license or other document or undertaking, to which the
Company is a party or by which the Company or its properties may be
bound, nor will such execution, delivery and consummation violate any
order, writ, injunction or decree of any federal, state, local or
foreign court, administrative agency or governmental or regulatory
authority or body (each, an "Authority") to which the Company or any of
its properties is subject, the effect of any of which, either
individually or in the aggregate, would impair in any material respect
the ability of the Company to perform its obligations hereunder.
(d) BOARD PRACTICE. The practice of the Board is that members
abstain from any vote in which they individually have a personal
financial interest different from those of the Company's stockholders
generally.
SECTION 2. STOCKHOLDERS' REPRESENTATIONS AND WARRANTIES.
Each of the Stockholders severally and not jointly represents and
warrants to the Company as follows:
(a) AUTHORITY. He or she has the legal capacity and the power
and authority to execute, deliver and carry out the terms and
provisions of this Agreement and to consummate the transactions
contemplated hereby.
(b) ENFORCEABILITY. This Agreement has been duly executed and
delivered by him or her, or by his or her duly authorized and appointed
attorney, and constitutes his or her valid and binding obligation,
enforceable against him or her in accordance with its terms.
(c) REPRESENTATION OF OWNERSHIP. He or she beneficially owns,
as of the date of this Agreement, the shares of Common Stock set forth
in the Schedule 13D filed with the Securities and Exchange Commission
on June 19, 2001 and amended on July 10, 2001 (the "Stockholders'
Schedule 13D") (except that Xxxxx Xxxxxxxx represents and warrants that
he beneficially owns an additional 128 shares of Common Stock). Except
as set forth in the Stockholders' Schedule 13D or as disclosed above,
the Stockholder does not beneficially own any equity securities of the
Company entitled to vote at any meeting of stockholders of the Company
("Voting Securities").
(d) CONSENTS AND APPROVALS; NO VIOLATION. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, result in the breach of any
of the terms or conditions of, constitute a default under or violate,
accelerate or permit the acceleration of any other similar right of any
other party under any law, rule or regulation, or any agreement, lease,
mortgage, note, bond, indenture, license or other document or
undertaking, to which the Stockholder is a party or by which he or she
or his or her properties may be bound, nor will such execution,
delivery and consummation violate any order, writ, injunction or decree
of any Authority to which the Stockholder or any of the Stockholder's
properties is subject, the effect of any of which, either individually
or in the aggregate,
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would impair in any material respect the Stockholder's ability to
perform his or her obligations hereunder.
SECTION 3. COMPANY AGREEMENTS.
The Company covenants and agrees as follows:
(a) The size of the Board has been increased to eight (8)
directors and Xxxxxx X. Xxxxxxxxx, Xxxxx X. Xxxxxxx and Xxxxxx X.
Xxxxxxx (the "Stockholders Nominees") have been elected to the Board
effective September 17, 2001.
(b) Effective on or before September 17, 2001, the Board
created as a standing committee of the Board a "Strategic Planning
Committee". The role of the Strategic Planning Committee shall be to
advise the Board concerning strategic planning for the Company. The
initial members of the Strategic Planning Committee shall be Xxxx X.
Xxxxx (Chairman), Xxxxxx Xxxxxxxxx and Xxxxxx X. Xxxxxxx.
(c) The 2001 annual meeting of stockholders of the Company
shall be held on October 15, 2001 (the "2001 Meeting"). With respect to
the 2001 Meeting, the Company shall fix the number of directors at
eight (8) and shall nominate and use all reasonable efforts to cause
the election of the following persons:
Xxxx X. Xxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
SECTION 4. GRANT OF IRREVOCABLE PROXY; AGREEMENT TO VOTE SHARES OF
COMMON STOCK, ETC.
(a) Each Stockholder hereby severally and not jointly agrees
with the Company to vote all outstanding Voting Securities beneficially
owned by him for the election of the persons specified in Section 3(c)
as directors of the Company at the 2001 Meeting, and agrees upon the
request of the Company, to irrevocably grant to, and appoint, Xxxxxx X.
Xxxxxx and Xxxxxx X. Xxxxxxxx, and each of them individually, such
Stockholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of such
Stockholder, to vote such Voting Securities at the 2001 Meeting.
(b) So long as (i) the Stockholders Nominees are included in
the slate of nominees for election to the Board at the Company's 2002
annual meeting of stockholders (the "2002 Meeting") (unless the failure
to include any such person as a
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nominee is because of such person's death or incapacity or such person
has advised the Board that he does not wish to stand for election) and
(ii) no more than eight persons are nominated for election to the Board
by the Company, (A) each Stockholder hereby severally and not jointly
agrees with the Company to vote all outstanding Voting Securities then
beneficially owned by such Stockholder in favor of the election of each
of the persons listed in Section 3(c) as directors of the Company who
are included in the Company's slate of nominees at the 2002 Meeting and
(B), if requested by the Company, each Stockholder will severally and
not jointly irrevocably grant to, and appoint, such persons as the
Company designates generally as proxies with respect to the 2002
Meeting, and each of them individually, such Stockholder's proxy and
attorney-in-fact to vote such securities for the election of the
Company's slate of nominees at such annual meeting.
(c) Each Stockholder severally and not jointly agrees with,
and covenants to, the Company that prior to the 2002 Meeting such
Stockholder shall not, except as contemplated by the terms of this
Agreement, (i) grant any proxy, power-of-attorney or other
authorization in or with respect to such securities, (ii) deposit such
securities into a voting trust or enter into a voting agreement or
arrangement with respect to such securities or (iii) take any other
action that would in any way restrict, limit or interfere with the
performance of his or her obligations hereunder or the transactions
contemplated hereby.
SECTION 5. RESTRICTIONS ON CERTAIN OTHER ACTIONS.
Each Stockholder severally and not jointly agrees that until December
31, 2002 he or she will not, directly or indirectly:
(a) make, or in any way participate in, any "solicitation" of
"proxies" (as such terms are defined or used in Regulation 14A under
the Securities Exchange Act of 1934, as amended ("1934 Act")) with
respect to any equity securities of the Company (including by the
execution of actions by written consent), become a "participant" in any
"election contest" (as such terms are defined or used in Regulation 14A
under the 0000 Xxx) with respect to the Company or seek to advise,
encourage or influence any person or entity with respect to the voting
of any equity securities of the Company (other than family members);
(b) initiate or propose or otherwise solicit or participate in
the solicitation of one or more stockholders for the approval of, one
or more stockholder proposals (including, without limitation, any
proposal in respect of the nomination or election of directors)
relating to the Company (whether pursuant to Rule 14a-8 under the 1934
Act or otherwise) or knowingly induce any other individual or entity to
initiate any stockholder proposal (including, without limitation, any
proposal in respect of the nomination or election of directors)
relating to the Company;
(c) except as reflected in the Stockholders' Schedule 13D
until the group disclosed therein can cease acting as a group (which
disassociation the Stockholders
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agree to effect as promptly as possible), form, join or in any way
participate in a "group", act in concert with any other person or
entity or otherwise take any action or actions which would cause it to
be deemed to be part of a "group" (for purposes of Section 13(d) of the
1934 Act), with respect to any equity securities of the Company;
(d) initiate, participate in or encourage the calling of a
special meeting of stockholders of the Company or seek, request or take
any action to obtain or retain, directly or indirectly, any list of
holders of any securities of the Company;
(e) participate in or encourage the formation of any group
which owns or seeks or offers to acquire beneficial ownership of any
equity securities of the Company or rights to acquire such securities
or which seeks or offers to affect control of the Company or to take
any action for the purpose of circumventing any provision of this
Agreement;
(f) solicit, seek or offer to effect, negotiate with, or make
any statements or proposals, whether written or oral, either alone or
in concert with others, to the Board, to any director or officer of the
Company, or to any other stockholder of the Company, or otherwise
formulate any plan or proposal or make any public announcement,
proposal, offer or filing under the 1934 Act, any similar or successor
statute or otherwise, or take action to cause the Company to make any
such filing, with respect to: (A) any form of business combination or
transaction involving equity securities of the Company including,
without limitation, a merger, tender offer, exchange offer or
liquidation of the Company's assets; (B) any form of restructuring,
recapitalization or similar transaction with respect to the Company or
any affiliate thereof, including, without limitation, a merger,
exchange offer or liquidation of the Company's assets; (C) any
acquisition or disposition of assets material to the Company; (D) any
request to amend, waive or terminate the provisions of this Agreement;
or (E) any proposal or other statement inconsistent with the terms and
intent of the Agreement; provided, however, that the Stockholders and
their affiliates and associates may discuss the affairs and prospects
of the Company, the status of the Stockholders' investments in the
Company and any of the matters described in clauses (A) through (E) of
this paragraph at any time, and from time to time, with (i) each other
and with their outside legal and financial advisors or (ii) any member
of the Board of the Company on an informal, cooperative basis, in each
case if as a result of any such discussions the Stockholders are not
required to make, and otherwise do not make, any public announcement or
filing under the 1934 Act otherwise prohibited by this Agreement as a
result hereof;
(g) otherwise act (or permit any investment banker, attorney,
accountant or any other representative retained by them to take any
action as part of such retention), alone or in concert with others
(including by providing financing for another party), to seek or offer
to control or influence, in any manner, the management, Board or
policies of the Company; or
(h) knowingly instigate or encourage any third party to take
any of the actions enumerated in this Section 5.
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Nothing contained in this Section 5 shall prohibit any Stockholders
Nominee, acting in his capacity as a member of the Board, from taking any action
which he would be required to take in the exercise of his fiduciary duties as a
director under applicable law.
SECTION 6. MUTUAL NON-DISPARAGEMENT COVENANT.
Until December 31, 2002, each Stockholder severally and not jointly
agrees that he or she will not in any way disparage the Company or its current
and former officers, directors and employees, orally or in writing, or make any
statements to the press or to third parties that may reasonably be derogatory or
detrimental to the Company's good name or business reputation. Likewise, until
December 31, 2002, the officers and directors of the Company shall not in any
way disparage the Stockholders or the Provant Committee to Restore Shareholder
Value (the "Committee"), orally or in writing, or make any statements to the
press or to any third parties that may reasonably be derogatory or detrimental
to the good name or reputation of the Stockholders or the Committee. Nothing in
this section shall preclude any party from responding truthfully to inquiries
made in connection with any legal or governmental proceeding pursuant to
subpoena or from making such other statements as may be required by applicable
law.
SECTION 7. FILING ON FORM 10-Q AND SCHEDULE 13D.
The Company agrees that it will file a copy of this Agreement as an
exhibit to its Quarterly Report on Form 10-Q for the quarter ending September
30, 2001. The Stockholders represent that they have filed on or about September
20, 2001 with the Securities and Exchange Commission an amendment to the
Stockholders Schedule 13D to reflect the terms of the Prior Agreement.
SECTION 8. PUBLIC ANNOUNCEMENTS.
Other than the press releases issued by the Company on August 31, 2001
and September 10, 2001, unless consented to by the other parties hereto or
otherwise required by applicable law, each of the parties agrees not to make any
public disclosure or public statement with respect to the matters covered by
this Agreement.
SECTION 9. MISCELLANEOUS PROVISIONS.
(a) FEES AND EXPENSES. Each party hereto agrees to bear its
own fees and expenses relating to each of the matters referred to,
contemplated by or the subject of this Agreement; provided, however,
that if (i) each Stockholder executes and delivers this Agreement or
(ii) signifies in writing his agreement to the terms of the Prior
Agreement, the Company shall reimburse the Stockholders in cash for
their documented expenses incurred in connection with the subject
matter of this Agreement up to a maximum of three hundred fifty
thousand dollars ($350,000). Such reimbursement shall be made on or
before October 3, 2001, subject to the satisfaction of the foregoing
condition. The Company acknowledges that, on or about September 19,
2001, it has received both (x) satisfactory documentation of the
expenses incurred by the Stockholders in connection with the subject
matter of this Agreement in an amount in
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excess of $350,000 and (y) the signification in writing from each of
the Stockholders of his agreement to the terms of the prior Agreement.
(b) AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented only by written agreement of the Company and
the Stockholders.
(c) NOTICES. All notices, requests, demands and other
communications required or permitted shall be made in writing by
hand-delivery, telecopier (with written confirmation) or air courier
guaranteeing overnight delivery:
If to the Stockholders, to the address appearing on
the signature page to this Agreement, with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx, Esq.
or to such other persons or addresses as the Stockholders shall
reasonably furnish to the Company;
If to the Company, to:
Provant, Inc.
00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
with a copy to:
Xxxxxx, XxXxxxxxx & Fish, LLP
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx Xxxxxxxxx, Esq.
Xxxxx X. Xxxxxx, Esq.
or to such other persons or addresses as the Company shall reasonably
furnish to the Stockholders in writing.
All such notices, requests, demands and other communications
shall be deemed to have been duly given at the time delivered by hand,
if personally delivered; when receipt is acknowledged, if telecopied;
and on the next business day, if timely delivered to an air courier
guaranteeing overnight delivery.
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(d) SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Agreement is
held to be prohibited by or invalid under applicable law, such
provision shall fail to be in effect only to the extent of such
prohibition or invalidity without invalidating the remainder of this
Agreement or of any such provision.
(e) ASSIGNMENT. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but
except as otherwise provided for or permitted herein neither this
Agreement nor any of the rights, interests or obligations hereunder
shall be assigned by any party hereto without the prior written consent
of the other party.
(f) GOVERNING LAW. This Agreement and the legal relations
among the parties hereto shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without
regard to its conflicts of law doctrine.
(g) JURISDICTION AND VENUE. Each of the Company and the
Stockholders hereby agree that any proceeding relating to this
Agreement shall be brought in the Commonwealth of Massachusetts. Each
of the Company and the Stockholders hereby consents to personal
jurisdiction in any such action brought in any such Massachusetts
court, consents to service or process by registered mail made upon such
party and such party's agent and waives any objection to venue in any
such Massachusetts court or to any claim that any such Massachusetts
court is an inconvenient forum.
(h) COUNTERPARTS. This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be
deemed an original but all of which together shall constitute one and
the same instrument. If less than all of the Stockholders execute this
Agreement, this Agreement shall nevertheless bind all Stockholders who
execute this Agreement provided that the Company executes this
Agreement as well.
(i) HEADINGS. The headings of the Sections of this Agreement
are inserted for convenience only and shall not constitute a part
hereof or affect in any way the meaning or interpretation of this
Agreement.
(j) ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties hereto in respect of the
subject matter contained herein, and supersedes all prior agreements,
promises, covenants, arrangements, communications, representations or
warranties, whether oral or written, relating to the subject matter
hereof.
(k) SPECIFIC PERFORMANCE AND REMEDIES. Each of the parties
hereto recognizes and acknowledges that a breach by a party of any
covenants or agreements contained in this Agreement will cause the
other party to sustain injury for which it
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would not have an adequate remedy at law for money damages. Therefore,
each of the parties hereto agrees that in the event of any such breach,
the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and preliminary and
permanent injunctive and other equitable relief in addition to any
other remedy to which it may be entitled, at law or in equity, and the
parties hereto further agree to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief. If any action is taken to enforce
or interpret this Agreement, the prevailing party shall be entitled to
recover its, his or her fees and expenses (including, without
limitation, attorneys' fees) incurred in enforcing or interpreting the
rights hereunder in addition to any other damages or remedies it, he or
she may have.
(l) FURTHER ASSURANCES. Each Stockholder shall, upon request
of the Company, execute and deliver any additional documents and take
such further actions as may reasonably be deemed by the Company to be
necessary or desirable to carry out the provisions hereof including but
not limited to documents and actions necessary or desirable to vest the
power to vote such Stockholder's shares of Common Stock as contemplated
by this Agreement.
(m) INTERPRETATION. The parties acknowledge and agree that:
(i) each party and its counsel reviewed and negotiated the terms and
provisions of this Agreement and has had the opportunity to have it
reviewed by counsel acting on his behalf; (ii) the rule of construction
to the effect that any ambiguities are resolved against the drafting
party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed
fairly as to all parties hereto and not in favor of or against any
party, regardless of which party was generally responsible for the
preparation of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, all as of the day and year first above written.
PROVANT, INC.
By: /s/ Xxxx X. Xxxxx *
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Name: Xxxx X. Xxxxx Xxxxxx X. Xxxxx
Title: Chairman of the Board 000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
* *
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Xxxxxx X. Xxxxx Xxxxxx X. Xxxxx
000 Xxxxx Xxxxx Xxxx 0000 Xxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000 Xxxx Xxx Xxxxxx, XX 00000
* *
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Xxxxxxx X. Xxxxxx Xxxxxx Xxxxxxx
00000 Xxx Xxxx Xxxx 000 Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
* *
-------------------------------------- ---------------------------------
Xxxx X. Xxxxx, Ph.D. Xxxx Xxxxx Kunitz
0000 Xxxxx Xxxx Xxxxx 0000 X. Xx. Xxxxxxx Xxxxx
Xxxxxxx, XX 00000 Xxxxxx, XX 00000
* *
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Xxxxx Xxxxxxxxx Xxxxxxx X. Xxxxxxx
815 Fairfield Road American Entrepreneur Group, Inc.
Xxxxxxx, XX 00000 00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
* /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
By Xxxxxxx X. Xxxxxxx
Attorney-in-Fact for the
Undersigned Stockholder
