1
EXHIBIT 10.2
AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT
THIS AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT, dated as of December
21, 1999 (this "Amendment"), is entered into by and among ClientLogic Holding
Corporation, a Delaware corporation, formerly known as CustomerONE Holding
Corporation (including its successors, the "Corporation"), and the
securityholders listed on Schedule A attached hereto. Unless otherwise noted,
all capitalized terms have the defined meanings afforded them in that certain
Stockholders Agreement, dated as of October 1, 1998, by and among the
Corporation and the securityholders listed therein (the "Stockholders
Agreement").
WHEREAS, the Corporation and its Stockholders desire to amend such
Stockholders Agreement as set forth in this Amendment, and
WHEREAS, as of the date hereof the Stockholders collectively own all
the outstanding shares of Common Stock of the Corporation as enumerated in
Schedule A.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
agreements hereinafter contained and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AMENDMENT TO SECTION 1.1 OF STOCKHOLDERS AGREEMENT
A definition of the term "Designating Minority Stockholders" is hereby
added to read as follows:
"DESIGNATING MINORITY STOCKHOLDERS" shall mean Berczi and Xxxxxxxx.
2. AMENDMENT TO SECTION 2.1 OF STOCKHOLDERS AGREEMENT
Section 2.1 of the Stockholders Agreement is hereby amended to read in its
entirety as follows:
2.1 Board
(a) Board Representation. Subject to Section 2.1(c), the
Board shall consist of (i) such number of individuals as may be designated
from time to time by the Designating Minority Stockholders that equals the
greater of (a) one and (b) twenty percent (20%) of the total number of
directors (rounded, as appropriate, to the nearest whole number) (the
"Minority Designee") and (ii) such individuals as may be designated from
time to time by the Onex Group (an "Onex Group Designee"). The Designating
Minority Stockholders shall be entitled to designate a director or
directors as provided in clause (i) above only for so long as the
Designating Minority Stockholders collectively own more than five percent
(5%) of the shares of Fully-Diluted Common Stock then outstanding;
thereafter, Onex shall be entitled to designate all of the directors of the
Corporation, subject to Section 2.1(c). Each Minority Designee shall be a
Designating Minority
2
Stockholder; provided, however, that if and only if, all Designating Minority
Stockholders are Minority Designees and the Designating Minority Stockholders
are entitled to designate additional Minority Designees, then such additional
Minority Designees are not required to be Designating Minority Stockholders.
(b) Vacancies. If, prior to his or her election to the Board pursuant
to Section 2.1(a), any Minority Designee or Onex Group Designee shall be
unable or unwilling to serve as a director of the Corporation, the Designating
Minority Stockholders or Onex Group, as applicable, shall be entitled to
designate a replacement who shall then be a Minority Designee or an Onex Group
Designee, as applicable, for purposes of this Article 2. If, following an
election to the Board pursuant to Section 2.1(a), any Minority Designee or
Onex Group Designee shall resign or be removed or be unable to serve for any
reason prior to the expiration of his or her term as a director of the
Corporation, the Designating Minority Stockholders or the Onex Group, as
applicable, shall, within thirty (30) days of such event, notify the Board in
writing of a replacement Minority Designee or Onex Group Designee, as
applicable, and either (i) the Stockholders shall vote their shares of Common
Stock, at any regular or special meeting called for the purpose of filling
positions on the Board or in any written consent executed in lieu of such a
meeting of stockholders, and shall take all such other actions necessary to
ensure the election to the Board of such replacement Minority Designee or Onex
Group Designee to fill the unexpired term of the Minority Designee or Onex Group
Designee who such new Minority Designee or Onex Group Designee, as applicable,
is replacing or (ii) the Board shall elect such replacement Minority Designee or
Onex Group Designee to fill the unexpired term of the Minority Designee or the
Onex Group Designee who such new Minority Designee or Onex Group Designee, as
applicable, is replacing. If Stockholders holding a majority of the shares of
Common Stock held by the Designating Minority Stockholders or the Onex Group, as
applicable, request that any Minority Designee or any Onex Group Designee, as
applicable, be removed as a Director (with or without cause) by written notice
thereof to the Corporation, then the Corporation shall take all actions
necessary to effect, and each of the Stockholders shall vote all his, her or its
capital stock in favor of, such removal upon such request.
(c) Termination of Rights. The right of the Designating Minority
Stockholders and the Onex Group to designate directors under Section 2.1(a),
and the obligation of the Stockholders to vote their shares as provided herein,
shall terminate upon the first to occur of (i) the termination or expiration of
this Stockholders Agreement or this Article 2, (ii) such time as the holders of
a majority of the shares of Common Stock held by the Designating Minority
Stockholders or the Onex Group elects in writing to terminate their respective
rights under this Article 2, or (iii) such time as the Onex Group ceases to own
at least fifteen percent (15%) of the shares of Fully-Diluted Common Stock then
outstanding.
2
3
(d) Costs and Expenses. The Corporation will pay all reasonable
out-of-pocket expenses incurred by the designees of the Designating Minority
Stockholders and the Onex Group in connection with their participation in
meetings of the Board (and committees thereof) of the Corporation and the Boards
of Directors (and committees thereof) of the Subsidiaries of the Corporation.
(e) Election of Designees. Each Stockholder shall vote his, her or its
shares of Common Stock or Common Stock Equivalents entitled to vote for the
election of directors at any regular or special meeting of stockholders of the
Corporation or in any written consent executed in lieu of such a meeting of
stockholders and shall take all other actions necessary to give effect to the
agreements contained in this Stockholders Agreement (including without
limitation the election of persons designated by the Designating Minority
Stockholders and the Onex Group to be elected as directors as described in the
preceding sentences) and to ensure that the Certificate of Incorporation and
Bylaws as in effect immediately following the date hereof do not, at any time
thereafter, conflict in any respect with the provisions of this Stockholders
Agreement. In order to effectuate the provisions of this Article 2, each
Stockholder hereby agrees that when any action or vote is required to be taken
by such Stockholder pursuant to this Stockholders Agreement, such Stockholder
shall use his, her or its best efforts to call, or cause the appropriate
officers and directors of the Corporation to call, a special or annual meeting
of stockholders of the Corporation, as the case may be, or execute or cause to
be executed a consent in writing in lieu of any such meetings pursuant to
Section 228(a) of the DGCL.
3. AMENDMENT TO SECTION 7.2(a)(2) OF STOCKHOLDER AGREEMENT
Section 7.2(a)(2) of the Stockholders Agreement is hereby amended to read
in its entirety as follows:
(2) subject to Section 7.2(b), until such time as such Stockholder
ceases to be a Stockholder of the Corporation, either individually or in
partnership or jointly or in conjunction with any person, as principal, agent,
shareholder or in any other manner whatsoever, carry on or be engaged in or
concerned with or interested in, or advise, lend money to, guarantee the debts
or obligations of, or permit its name or any part thereof to be used or employed
by or associated with, any person engaged in or concerned with or interested in
any business which is competitive with the business carried on by the
Corporation or any Subsidiary at such time without, in each case, the prior
written consent of the Corporation, which consent shall not be unreasonably
withheld or delayed; provided, however , that a Stockholder shall not be bound
by the restrictions set forth in this Section 7.2(a)(2) if and during such time
as such Stockholder's fully diluted ownership of the equity securities of the
Corporation constitutes less than one and one half percent (1.5%) of the total
issued and outstanding equity ownership of the Corporation; and
3
4
4. AMENDMENT TO SECTION 3.3(a) OF STOCKHOLDERS AGREEMENT
Section 3.3(a) of the Stockholders Agreement is amended and restated to
read, in its entirety, as follows:
(a) Rights to Participate in Future Sales. Subject to Section 33(e), in
the event that the Corporation or any Affiliated Successor (as hereinafter
defined) proposes to issue or sell (a "Preemptive Rights Transaction") any
shares of Common Stock, Common Stock Equivalents or other generally voting
equity securities (the "Offered Securities"), the Corporation shall first offer
(the "Preemptive Rights Offer") to each Stockholder (i) who certifies (to the
reasonable satisfaction of the Corporation) that such Stockholder is an
Accredited Investor (an "Accredited Offeree") or (ii) who is not a "U.S. person"
(as defined in Regulation S under the Securities Act) (a "Foreign Stockholder")
but only in the event that the participation of such Foreign Stockholder in the
Preemptive Rights Offer would not (a) require delivery by the Corporation or any
other person of a prospectus, offering circular or any other similar material
(including, without limitation, financial statements of the Corporation), (b)
require the registration (or equivalent action) with respect to the Offered
Securities or the obtaining of any waiver with respect to the Offered
Securities, (c) restrict the Corporation's or its Subsidiaries' ability to
complete any transaction in a timely manner, or (d) require the filing by the
Corporation or its Subsidiaries of any periodic reports following the completion
of any such Preemptive Rights Offer, at the same price and for the same
consideration to be paid by the proposed purchaser, that proportion of the
Offered Securities which equals that Accredited Offeree's Proportionate Interest
at the time the Board determines to issue such Offered Securities. As used
herein, the term "Affiliated Successor" shall mean a successor entity to the
Corporation (whether by merger, consolidation, reorganization, or otherwise) in
which the Onex Group owns at least the same percentage of the fully-diluted
common stock of such entity (after giving effect to the merger, consolidation,
reorganization, or other transaction) as the Onex Group owns of the
Fully-Diluted Common Stock of the Corporation. Notwithstanding the foregoing, as
a condition to any Foreign Stockholder's right to participate in any Preemptive
Rights Offer, such Foreign Stockholder shall make such undertakings to the
Corporation as required to comply with the requirements of Regulation S.
5. AMENDMENT TO SECTION 3.3(c) OF STOCKHOLDERS AGREEMENT
SECTION 3.3(c) of the Stockholders Agreement is amended and restated to
read, in its entirety, as follows:
(c) Exercise. Any Stockholder may exercise its Preemptive Right by
giving notice (an "Exercise Notice") to the Corporation within five (5) days
after the Offer Notice (or any supplement thereto) is sent by the Corporation by
registered mail to the Stockholder. The Exercise Notice shall specify the
4
5
number of shares of Offered Securities, as the case may be, that the Stockholder
wishes to purchase and shall irrevocably bind the Stockholder to purchase such
securities at the price and on the date specified in the Offer Notice. If any
such Stockholder fails to accept such offer by written notice within five (5)
days after the Offer Notice was sent by the Corporation by registered mail to
the Stockholder, the Corporation or such Affiliated Successor may proceed with
the proposed issue or sale of the Offered Securities, free of any right on the
part of such Stockholder under this Section 3.3 in respect thereof.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
5
6
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first written above.
CLIENTLOGIC HOLDING
CORPORATION
By: /s/ XXXX X. XXXXXX
------------------------------------
Name: Xxxx X. Xxxxxx
----------------------------------
Title: Chief Executive Office
---------------------------------
ONEX CLIENTLOGIC HOLDINGS LLC
By: /s/ XXXXXX X. XXXX
------------------------------------
Xxxxxx X. Xxxx
Director
By: /s/ XXXX X. XXXXX
------------------------------------
Xxxx X. Xxxxx
Director
7
SCHEDULE A
C/L HOLDINGS -- STOCKHOLDERS OF RECORD
NAME NO. OF SHARES NO. OF SHARES
---- HELD OUTRIGHT HELD IN ESCROW
------------- --------------
Xxxxxx, Xxxxxxx 5,000
Baurdoux, Jan L. 26,876 2,609
Berczi, Xxxxx X. 260,000
Xxxxxxxxx, Xxxxxx 15,000
Xxxxxx, Xxxx X. 200,000
Xxxx, Xxxxxx 30,000
Xxxxx-Xxxxxxxxxxx, Xxx-Xxxxx 1,650
Xxxxxxx, Xxxxx 83,333
Xxxxxx, Xxxx X. 20,000
Xxxxxx, Xxxxx X. 120,619 11,710
Xxxxxx, Xxxxxx 25,000
Xxxxxxxx, Xxx Xxxxxx 35,132 3,411
Xxxxx, Xxxxx (to be issued) 50
Xxxx, Xxxx X. 71,703
Xxxxxxxx, Xxxxx 4,200
Koopmans, Sytze 21,641 2,101
Kortenhorst, Alessandra M. 2,008 195
Kortenhorst, Xxxxx X. 2,008 195
Kortenhorst, Xxxxx X. 50,683 54,103
Kortenhorst, Xxxxx X. 506,609
Kortenhorst, Rainier G. 2,008 195
Kortenhorst, Xxxxxxx X. 2,008 000
Xxxxxxxxxxx Xxxxxx Family Trust 49,653 4,820
Levy, Jordan A. 153,525
Loubaresse, Xxxxx 359,305
Loubaresse, Laurent 181,367
Onex ClientLogic Holdings LLC 85,607,360
Online Services SARL 183,178
Xxxxx, Xxxx 400,000
Xxxxx, Xxxxxx 106,666
Xxxxxxxxx, Xxxxxx X. 153,525
Xxxxxxxx, Xxxxxx 3,921,844
Xxxxx, Xxxxxxxx X. X. 2,008 195
Xxxxx, Xxxxxx, J. 2,008 195
Xxxxxxxxx, Xxxx X. 50
van der Xxxx, Xxxxxx X. 119,018 11,555
xxx Xxxx, Xxxxx X. X. 126,475 12,278
8
Xxxxxx, Xxx 5,000
Xxxxxx, Xxxxxxx X. 22,500
Xxxx, Xxxxxxx X. 71,703
---------- -------
SUBTOTALS 92,950,713 103,757
GRAND TOTAL 93,054,470
