EXHIBIT 4.1
THE NATIONAL REGISTRY INC.
FIRST AMENDED AND RESTATED STOCKHOLDERS' VOTING AGREEMENT
THIS FIRST AMENDED AND RESTATED STOCKHOLDERS' VOTING AGREEMENT (the
"Agreement") dated as of June 25, 1999 ("Effective Date"), is being entered into
by and among RMS Limited Partnership ("RMS"), a Nevada limited partnership,
Xxxxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx") and J. Xxxxxxx Xxxxxxxxx ("Forstmann" and
together with RMS and Xxxxxxxxxx are the "Shareholders" and individually a
"Shareholder").
WITNESSETH
WHEREAS, the Shareholders are parties to that certain Stockholders'
Voting Agreement ("Voting Agreement") dated March 14, 1995 concerning certain
voting arrangements with respect to shares of common stock ("Common Stock"), par
value $0.01 per share, of The National Registry Inc. ("NRI"), a Delaware
corporation, and certain options ("Options") to acquire such Common Stock;
WHEREAS, RMS and Xxxxxxxxxx acquired certain shares of Series "C"
Convertible Preferred Stock ("Preferred Stock") of NRI pursuant to a Stock
Purchase Agreement dated as of December 17, 1998 and converted such shares into
shares of Common Stock;
WHEREAS, as of the date hereof, Xxxxxxxxxx owns of record 1,308,377
shares of Common Stock and Options to acquire 249,999 additional shares of
Common Stock, Forstmann owns of record 583,333 shares of Common Stock and
Options to acquire 117,917 additional shares of Common Stock and RMS owns of
record 8,080,805 shares of Common Stock; and
WHEREAS, the Shareholders desire to enter into this Agreement, which
amends and restates the Voting Agreement in its entirety;
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this agreement, the parties hereto hereby agree as
follows:
1. Tandem Voting. Subject to Section 2 below, each of Xxxxxxxxxx and
Forstmann (on behalf of itself and each Affiliate of such Shareholder that may
acquire such Voting Shares on or after the date hereof) agrees to vote in tandem
with and in like manner as and as directed by RMS (or its designee) for the
election of directors of NRI and on all other matters which may be presented at
any meeting of the shareholders of NRI or with respect to which the consent of
the shareholders of NRI is sought. RMS shall provide written notice to each
Xxxxxxxxxx and Forstmann on or prior to the time of a vote for the election of
directors of NRI or on any other matters which may be presented at any meeting
of the shareholders of NRI or as to which the consent of the shareholders of NRI
is sought. Such notice shall state how such Shareholder shall vote on such
matter or the consent required of such Shareholder.
THE NATIONAL REGISTRY INC.
2. Director Designee.
(a) RMS hereby agrees to vote the Voting Shares (as hereinafter
defined) in favor of one nominee selected by Forstmann ("Director Designee"),
and reasonably acceptable to RMS, for election to the board of directors of NRI.
(b) If at any time Forstmann shall notify RMS of his desire to
have his Director Designee removed, RMS shall vote all of the Voting Shares for
the removal of such Director Designee and shall undertake all other reasonable
actions, at Forstmann's expense, permitted under applicable law for the removal
of such Director Designee.
(c) In the event that the Director Designee ceases to serve for
any reason whatsoever, RMS shall vote all of the Voting Shares for the election
of a new Director Designee and shall undertake all other reasonable actions, at
Forstmann's expense, permitted under applicable law for the election of such
Director Designee.
3. Termination.
(a) In the event that Forstmann or his Affiliates cease to
hold, in aggregate, at least 2% (two percent) of the issued and outstanding
Common Stock, then Section 2 herein shall cease to apply and the Shareholders
and their respective Affiliates shall be released from any obligations
thereunder.
(b) In the event that (i) more than 50% (fifty percent) of the
issued and outstanding Common Stock is sold to any Person or "group", as such
term is defined under the Securities Exchange Act of 1934, as amended, other
than any of the Shareholders, (ii) NRI sells substantially all of its assets to
any Person, other than to an Affiliate, and RMS and its Affiliates hold less
than 50% (fifty percent) of the voting interest of such Person or (iii) NRI
merges with any Person, other than with an Affiliate, and RMS and its Affiliates
hold in the aggregate less than 25% (twenty five percent) of the voting interest
of such Person, then in each case this Agreement shall terminate as of the date
of consummation of any such transaction.
(c) In the event that any Shareholder ceases to hold at least
50% (fifty percent) of the Common Stock (including any Common Stock which may be
received upon conversion or exchange of any other security of NRI) that such
Shareholder holds on the date hereof, then this Agreement shall terminate with
respect to such Shareholder and such Shareholder shall be released from all
obligations hereunder. If, by the operation of the this Section 3(c), only one
Shareholder shall be bound by the terms and conditions of this Agreement, then
this Agreement shall terminate as of such date.
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THE NATIONAL REGISTRY INC.
4. Notice Provisions. All notices or communications required to be given
by any Person pursuant to this Agreement shall be effected in writing either by
personal delivery or by registered or certified mail, postage prepaid with
return receipt requested to the addresses indicated below:
If to Forstmann:
J. Xxxxxxx Xxxxxxxxx
0 Xxxxxxx Xxxx
Xxxxxxx Xxxxx, XX 00000
With a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
If to RMS:
RMS Limited Partnership
000 Xxxx Xxxxxxx Xxxxxx
XX Xxx 000
Xxxx, XX 00000
Attn: C. Xxxxxx Xxxxxx
With a copy to:
Xxxxxx X. Xxxx, Xx., Esq.
Xxxxx & XxXxxxxx, Suite 900
000 Xxxxxxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
If to Xxxxxxxxxx:
Xxxxxxx X. Xxxxxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxxx Xxxxx, XX 00000
5. Owner of Shares. Each party to this Agreement may deem and treat the
person in whose name shares of securities are registered in the stock books of
NRI as the owner thereof for all purposes, including without limitation, for
giving of notices under this Agreement.
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THE NATIONAL REGISTRY INC.
6. Legend. A copy of this Agreement shall be filed with the Secretary of
NRI and shall be kept at its principal executive office. Upon the execution of
this Agreement, each of the parties thereto shall cause each certificate
representing shares of voting securities now or hereafter owned by it to carry a
legend as follows:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE PROVISIONS OF
THE FIRST AMENDED AND RESTATED STOCKHOLDERS' VOTING AGREEMENT, DATED AS OF JUNE
25, 1999. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY.
7. Complete Agreement. This is the complete agreement between the parties
with respect to the subject matter hereof and supersedes all prior negotiations
and agreements with respect thereto. There are no representations, warranties,
covenants, conditions, terms, agreements, promises, understandings, commitments
or other arrangements with respect to the subject matter hereof other than those
expressly set forth herein.
8. Governing Law. This agreement shall be governed by, construed under and
enforced in accordance with the laws of the State of Delaware without regard to
any conflict of law principles thereof.
9. Binding Agreement; Successors. This agreement shall be binding upon,
inure to the benefit of and be enforceable by the parties hereto and each of
their respective successors, assigns, heirs and other representatives.
10. Headings. The section headings herein are for reference purposes only
and shall not affect in any way, the meaning or interpretation of this
agreement, nor are they deemed to constitute a part of this Agreement.
11. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
12. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the successful party shall be entitled to recover reasonable and
actual attorneys' fees (including any such fees incurred in connection with
enforcement of any judgments) in addition to its or his costs and expenses and
other available remedies.
13. Waiver; Amendment. Any waiver of an provision or breach of this
Agreement must be in writing, executed by the waving party. No waiver of any
provision or breach of this Agreement shall be a waiver of any other provision
or breach of this Agreement or any subsequent breach. Any amendment or
modification of this Agreement must be in writing and executed by all of the
parties hereto.
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THE NATIONAL REGISTRY INC.
14. Specific Performance. Each of the parties hereto acknowledges that
money damages would be both incalculable and an insufficient remedy for any
breach of this Agreement by a party hereto and that any such breach would cause
the other party hereto irreparable harm. Accordingly, each party hereto agrees
that in the event of any actual or threatened beach of this Agreement by any
party hereto, the other parties hereto shall be entitled to specific
performance. Such remedy shall not be the exclusive remedy for any breach of
this Agreement, but shall be in addition to all other remedies available at law
or equity to such party.
15. Interpretation of Agreement. This Agreement shall be construed in its
entirety, with no emphasis or meaning being given to the headings or captions
utilized in this Agreement or the placement of the various provisions.
16. Definitions. The following capitalized terms shall have the meanings
set forth below:
(a) "Affiliate" means, with respect to any specified Person,
(i) any other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person or (ii) any
other Person that owns, directly or indirectly, 5% or more of such specified
Person's voting stock or any executive officer or director of any such specified
Person or other Person or, with respect to any natural Person, any Person having
a relationship with such Person by blood, marriage or adoption not more remote
than first cousin. For the purposes of this definition, "control," when used
with respect to any specified Person, means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing. For
purposes of this Agreement, no Shareholder shall be deemed to be an Affiliate of
any other Shareholder.
(b) "Person" means any individual, corporation, limited
liability company, partnership, joint venture, association, trust, or
unincorporated organization.
(c) "Voting Shares" shall mean shares of NRI's Common Stock,
Options, Preferred Stock or any other voting securities of NRI held on or after
the Effective Date by any Shareholder or its Affiliate, plus all voting
securities hereinafter attributable to such shares or received or receivable in
respect thereof by way of stock splits or stock dividends, recapitalization or
liquidation of the NRI or merger or consolidation of the NRI with any other
corporation or organization.
17. Assignment. RMS may assign the terms and conditions of this Agreement
to any Affiliate that holds Voting Shares.
[Remainder of Page Intentionally Left Blank]
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THE NATIONAL REGISTRY INC.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
/s/ J. XXXXXXX XXXXXXXXX
---------------------------
J. Xxxxxxx Xxxxxxxxx
/s/ XXXXXXX X. XXXXXXXXXX
----------------------------
Xxxxxxx X. Xxxxxxxxxx
RMS: Limited Partnership
By: Xxxxxxx Xxxxxxx, Inc.
Its: Managing General Partner
By:/s/ XXXXXXX X. XXXXX
-------------------------
Name: Xxxxxxx X. Xxxxx
Title: Secretary/Treasurer of
Xxxxxxx Xxxxxxx, Inc.
ACKNOWLEDGMENT OF FIRST AMENDED AND RESTATED STOCKHOLDERS' VOTING AGREEMENT
The National Registry Inc. hereby acknowledges the existence of the
foregoing First Amended and Restated Stockholders' Voting Agreement.
THE NATIONAL REGISTRY INC.
By: /s/ XXXXXXX X. XXXXXXX
------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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