Exhibit 4.5
AMENDED AND RESTATED EMPLOYEE-SHAREHOLDERS AGREEMENT
This AMENDED AND RESTATED EMPLOYEE-SHAREHOLDERS AGREEMENT, dated as of November
1, 1995 (the "Agreement"), among Xxxxxx Corporation, a Delaware corporation (the
"Company"), and each Employee Grantee (as defined below) supersedes and replaces
in its entirety the EMPLOYEE-SHAREHOLDERS AGREEMENT dated as of August 26, 1992
(the "Prior Agreement") among USMIC Corporation, a Delaware corporation and each
Employee Grantee as defined in the Prior Agreement.
W I T N E S S E T H:
WHEREAS, the Company has previously entered into a Shareholders Agreement dated
as of August 26, 1992 (the "Shareholders Agreement") with Xxxxxx X. Xxxxxxxx,
Xxxxxx X. Xxxxxxx and the Investors set forth on the signature pages thereof;
and
WHEREAS, in connection with the initial public offering of the common stock of
the Company (the "IPO"), the Shareholders Agreement has been superseded in its
entirety by the Amended and Restated Shareholders Agreement, dated as of
November 2, 1995 (the "Amended Shareholders Agreement") among the Company,
Xxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxx and the Investors set forth on the
signature pages thereof; and
WHEREAS, this Company and the parties hereto wish to amend and restate the Prior
Agreement in connection with the IPO; and
WHEREAS, the Company has granted and may from time to time pursuant to its 1992
Long-Term Stock Incentive Plan (the "1992 Plan") grant to certain employees of
Xxxxxx Guaranty Corporation ("Xxxxxx Guaranty") shares of, or options to
purchase, Common Stock, par value $.01 per share, of the Company; and
WHEREAS, each grant under the 1992 Plan shall require that the grantee enter
into an Award Agreement pursuant to which such grantee agrees to become a party
to this Employee-Shareholders Agreement as an Employee Grantee unless such
grantee is a party to the Amended Shareholders Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. The following terms, as used herein, have the following
meanings:
"Award Agreement" means, with respect to any Employee Grantee, the Xxxxxx
Corporation Equity Award Agreement entered into pursuant to the 1992 Plan
between the Company and such Employee Grantee.
"Board of Directors" means the Board of Directors of the Company.
"Common Equity" means Common Stock and Nonvoting Common Stock, par value
$.01 per share, of the Company.
"Common Stock" means Common Stock, par value $.01 per share, of the
Company
"Employee Grantee" means any person who has entered into an Award Agreement
with the Company, pursuant to which such person has agreed to be bound by
the provisions of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder" means each Person bound by the Amended Shareholders
Agreement.
"Shares" means all shares of Common Equity held by the Employee Grantees.
ARTICLE II
VOTING OF SHARES
2.1 VOTING OF SHARES. For so long as any Shareholder is entitled pursuant to
Section 2.1 of the Shareholders Agreement to designate any member of the Board
of Directors, each Employee Grantee shall vote its Shares as directed by the
Company with respect to the election or removal of any director so designated.
2.2 TRANSFER RESTRICTIONS. Each Employee Grantee who during the Restriction
Period (as defined below), has a title of Senior Vice President of the Company
or higher (or any equivalent or successor title) agrees that he or she will not
during the period beginning on the date of the prospectus delivered in
connection with the Company's initial public offering and ending 180 days
thereafter (the "Restriction Period"), (1) offer, pledge, sell, contract to
sell, sell any option or contract to
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purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock (whether such shares or any such
securities are now owned by the Employee Grantee or are hereafter acquired), or
(2) enter into any swap or other agreement that transfers, in whole or in part,
any of the economic consequences of ownership of the Common Stock, whether any
such transaction described in clause (1) or (2) above is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise.
Notwithstanding the foregoing, in the event such Employee Grantee's employment
is terminated by the Company during the Restriction Period, the restrictions of
clause (1) and (2) above shall no longer apply.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF EMPLOYEE GRANTEES
Each Employee Grantee represents and warrants on behalf of himself to the
Company as follows:
3.1 AUTHORIZATION. Each Employee Grantee has full power and authority to enter
into this Agreement and the Award Agreement and to carry out his obligations
hereunder and thereunder. Each of this Agreement and the Award Agreement has
been duly executed and delivered by each Employee Grantee and constitutes a
valid and binding obligation of such Employee Grantee.
3.2 NO CONFLICT; NO APPROVALS REQUIRED. The execution, delivery and
performance of this Agreement and the Award Agreement by such Employee Grantee
and the consummation by such Employee Grantee of the transactions contemplated
hereby and thereby, will not conflict with or violate, with or without the
giving of notice or the lapse of time, or both, or require any registration,
qualification, consent, approval or filing under, any provision of any order,
judgment, decree, law, statute, ordinance or regulations applicable to each
Employee Grantee or result in the imposition of any restriction on the Company
or Xxxxxx Guaranty or any affiliate of either of them that would interfere with
the conduct of their business as proposed to be conducted. Such Employee
Grantee is not subject to any contract or other instrument or agreement, order,
judgment, decree, law, statue, ordinance or regulation or any other restriction
of any kind or character that would prevent such Employee Grantee from entering
into this Agreement or from consummating the transactions contemplated hereby in
accordance with the terms hereof.
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ARTICLE IV
MISCELLANEOUS
4.1 ENTIRE AGREEMENT. This Agreement and the Award Agreement constitute the
entire agreement between the parties hereto and supersede all prior agreements
and understandings, oral and written, among the parties and hereto with respect
to the subject matter hereof.
4.2 BINDING EFFECT; BENEFIT. This Agreement shall inure to the benefit of and
be binding upon the parties hereto and their respective heirs, successors, legal
representatives and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto, and
their respective heirs, successors, legal representatives and permitted assigns,
any rights, remedies, obligations or liabilities under or by reason of this
Agreement.
4.3 ASSIGNABILITY. This Agreement shall not be assignable by any party hereto,
except that any Person acquiring Common Stock who is required by the terms of
this Agreement to become a party hereto shall execute and deliver to the Company
an agreement to be bound by this Agreement and shall thenceforth be an "Employee
Grantee", and any Employee Grantee who ceases to hold any Shares shall cease to
be bound by the terms hereof.
4.4 AMENDMENT; WAIVER; TERMINATION. No provision of this Agreement may be
waived except by an instrument in writing executed by the party against whom the
waiver is to be effective. No provision of this Agreement may be amended or
otherwise modified except by an instrument in writing executed by the Company
with the approval of the Board of Directors and Employee Grantees holding at
least a majority of the Shares; provided that any amendment or modification that
would not impair the rights of an Employee Grantee hereunder, may be made
without such person's consent. In such case only the Company, with the approval
of its Board of Directors, shall be required to execute such amendment or
modification.
4.5 NOTICES. All notices and other communications given or made pursuant
hereto or pursuant to any other agreement among the parties, unless otherwise
specified, shall be in writing and shall be deemed to have been duly given or
made if sent by telecopy (with confirmation in writing), delivered personally or
sent by registered or certified mail (postage prepaid, return receipt
requested), if to the Company at the telecopy number or address set forth below
its name on the signature pages hereof, and if to an Employee Grantee at such
address and telecopy number provided to the Company by such Employee Grantee, or
at such other addresses as shall be furnished by the parties by like notice, and
such notice or communication shall be deemed to have been given or made upon
receipt.
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4.6 HEADINGS. The headings contained in this Agreement are for convenience
only and shall not affect the meaning or interpretation of this Agreement.
4.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
4.8 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SUCH STATE.
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IN WITNESS WHEREOF, Xxxxxx Corporation has executed and delivered this Agreement
as of the date first above written.
XXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------
President
000 Xxxx Xxxxxxxx Xxxxx
00xx Xxxxx
Xxxxxxx, XX 00000-0000
Attention: General Counsel
Telecopier: (000) 000-0000
