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EXHIBIT 4.3
SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (the "Agreement") is executed as of this
____ day of November, 1999, by and among Xxxx Xxxxxxxx International Benefits
Limited, a company organized under the laws of England and Wales ("Xxxx"), BCD
Technology S.A., a corporation formed under the laws of Luxembourg ("BCD"), and
WT Technologies, Inc., a corporation formed under the laws of Georgia (the
"Corporation"), (Xxxx and BCD are collectively referred to as the "Shareholders"
and sometimes individually as a "Shareholder").
W I T N E S S E T H:
WHEREAS, the Shareholders together own a majority of the issued and
outstanding common stock of the Corporation; and
WHEREAS, the Shareholders and the Corporation believe it to be in the
best interest of each Shareholder and of the Corporation to make provision for
any future disposition of the Stock of the Corporation; and
WHEREAS, the Shareholders and the Corporation desire to control the
management of the Corporation and its subsidiaries, for their mutual best
interests;
NOW, THEREFORE, in consideration of the promises and mutual obligations
contained herein, the parties hereto agree as follows:
ARTICLE 1
PURPOSE OF THE CORPORATION
1.1 The Shareholders hereby declare that the purpose of the Corporation
is to generate a profit by directly and indirectly engaging in supplying
technology and information management to the travel industry (the "Business").
1.2 The Corporation has been organized to serve as a holding company
for World Travel Technologies, LLC ("WTT"), currently a wholly-owned subsidiary
of the Corporation, and the holdings of WTT and any other businesses or
companies created or acquired in the future to engage in the Business. It is the
intent of the Shareholders that the Corporation, as the manager of WTT, actively
participate in the management of WTT according to the terms of this Agreement.
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ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Corporation. The Corporation
hereby represents and warrants to the Shareholders that at the time this
Agreement is executed:
(a) The 9,269,373 shares of capital stock of the Corporation (the
"Stock") owned by the Shareholders and the other shareholders of the
Corporation, as shown on Schedule 2.1 hereof, are the only shares of
Stock of the Corporation outstanding;
(b) No outstanding proxies, voting trusts, loan agreements or other
agreements to which the Corporation is a party affect, in any way, the
right of the Shareholders to vote the shares of the Stock or the right
of the Corporation to perform its obligations under this Agreement;
(c) No preferred stock, stock options, warrants or other equity
interests in the Corporation are outstanding;
(d) The stock transfer records of the Corporation are accurate and
reflect all requests to date for registration of shares of the Stock;
(e) The Corporation has duly authorized the execution of this
Agreement; and
(f) The Corporation has outstanding no bonds, debentures or other
instruments of any type that are convertible into Stock.
2.2 Representations and Warranties of the Shareholders. Each
Shareholder hereby represents and warrants to the Corporation and the other
Shareholder as follows: that such Shareholder owns those shares of Stock shown
on Schedule 2.2 hereof, free and clear of all liens, restrictions, pledges and
encumbrances, that such Shareholder has made no "Disposition" (as hereinafter
defined) and that such Shareholder has granted no proxy rights or other voting
rights with respect to any of such shares.
ARTICLE 3
RESTRICTIONS UPON THE TRANSFER OF THE STOCK
3.1 No Dispositions Generally. During the term of this Agreement,
neither Shareholder shall have the right to make any "Disposition" (as
hereinafter defined), other than a "Permitted Disposition" (as hereinafter
defined). The Corporation will not cause or permit the transfer of shares of
Stock on the transfer records of the Corporation for any Disposition, other than
a Permitted Disposition. Any other attempted Disposition shall be void ab initio
and shall have no effect whatsoever. "Disposition" means: any transfer, whether
outright or as security, with or without
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consideration, voluntary or involuntary, of all or any part of any right, title
or interest (including but not limited to voting rights) in or to any shares of
Stock.
3.2 Permitted Dispositions. A Shareholder shall have the right to make
a "Permitted Disposition." "Permitted Disposition" means:
(a) Any Disposition approved by the other Shareholder;
(b) A Disposition made pursuant to Section 3.3;
(c) A Disposition made pursuant to Section 3.4;
(d) A Disposition made pursuant to Section 13.2; and
(e) A Disposition to an Affiliate (as defined below).
Provided, however, that no Disposition shall be a Permitted Disposition unless
the person or entity to whom such shares are transferred (other than an
Affiliate, who shall be bound by this Agreement, or an existing shareholder of
the Corporation) shall have agreed to be bound by and become a party to this
Agreement, as it may be amended from time to time and kept on file with the
Corporation.
3.3 Option of the Corporation.
(a) In the event Xxxx receives a bona fide offer (the "Offer") from
one or more third-parties to purchase any or all of its interest in the
Corporation (the "Offered Stock"), unless a Disposition is permitted pursuant to
Section 3.2 (a), (d), or (e) Xxxx must first offer to sell the Offered Stock to
the Corporation on the same terms as set forth in the Offer. The notice to the
Corporation of the Offer shall be in writing (the "Notice of the Offer"),
delivered to the President of the Corporation. Within sixty (60) days of the
date the Notice of the Offer is delivered, Xxxx shall be notified as to whether
or not the Corporation shall purchase the Offered Stock on the same terms as the
Offer. If the Corporation provides notice that it will purchase the Offered
Stock on such terms (the "Notice of Acceptance"), Xxxx shall transfer the
Offered Stock and the Corporation shall purchase the Offered Stock, at a closing
at such time designated by the Corporation but within sixty (60) days of the
delivery of the Notice of Acceptance to Xxxx. The transfer of the Offered Stock
to the Corporation shall be pursuant to such documentation as the Corporation
shall reasonably require.
(b) If the consideration offered by the third party or parties in
the Offer involves property other than cash, the purchase of the Offered Stock
by the Corporation may be made for cash in an amount equal to the Equivalent
Value of the property offered by the third party or parties. Xxxx and the
Corporation shall initially negotiate with each other to agree upon the
Equivalent Value within thirty (30) days of the Notice of Acceptance. In the
event that Xxxx and the Corporation cannot reach an agreement on the Equivalent
Value within such 30 day period, the Equivalent Value will be determined by two
appraisers, one chosen by Xxxx and one chosen by the
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Corporation. If the two appraisal values (the "Appraisal") differ by 10% or less
(such percentage difference to be computed by subtracting the lesser of the
Appraisals from the greater of the Appraisals and dividing that difference by
the greater of the Appraisals), then the Equivalent Value of the property shall
equal the average of the two Appraisals. In the event that the Appraisals vary
by more than 10%, a third appraiser shall be chosen by the initial two
appraisers to conduct an independent appraisal of the property, and on the basis
of that independent appraisal, the third appraiser shall, in the exercise of his
own professional judgment, determine which of the two Appraisals is the most
commercially reasonably, and that Appraisal shall be the Equivalent Value.
Notwithstanding the provisions of Section 3.3(a), in the event that this Section
3.3(b) is applicable the closing of the purchase of the Offered Stock by the
Corporation shall occur within thirty (30) days of the final determination of
the Equivalent Value.
(c) If the Corporation either rejects the Offer or fails to accept
the Offer within thirty (30) days of the delivery of the Notice of Offer, Xxxx
may, within the subsequent thirty (30) days, transfer the Offered Stock to the
offering party or parties so long as (i) the Disposition does not have an
adverse regulatory or legal effect on the Corporation or any subsidiary or
related entity, and (ii) each transferee agrees in writing to be bound by the
terms of this Agreement subject to the transferee's acknowledgment that Articles
4, 5, 6 and 10 are of no further effect.
3.4 First Offer to Xxxx.
(a) In the event that BCD desires to sell any or all of its portion
of the Stock (the "BCD Offered Stock"), BCD agrees to first give written notice
to Xxxx (the "First Offer Notice") of its intent to sell the BCD Offered Stock
and to negotiate with Xxxx in good faith the price and corresponding terms of
purchase for the BCD Offered Stock. In the event that by the forty-fifth (45)
day after the First Offer Notice (the "Third Party Date") BCD does not accept
Xxxx'x final proposed price and corresponding terms (the "Final Offer"), BCD
shall notify Xxxx in writing that Xxxx'x final price and terms have been
rejected.
(b) In the event BCD does not accept the Final Offer, BCD may sell
the BCD Offered Stock to a third party or parties; provided, however, that any
sale to a third party or parties of the BCD Offered Stock must be evidenced by a
letter of intent which must be signed within six (6) months of the Third Party
Date and the contemplated transaction must be completed within one (1) year of
the Third Party Date. The sale of the BCD Offered Stock to a third party or
parties shall be for a price not less than 95% of the Final Offer.
ARTICLE 4
MANAGEMENT AND BUSINESS PLAN
4.1 Board of Directors. The Shareholders agree that at all times during
the term of this Agreement, the affairs of the Corporation shall be managed by a
Board of Directors consisting of no more than seven (7) members, at least four
(4) members of which shall be appointed by BCD and one (1) member of which shall
be appointed by Xxxx. Any vacancy in office of a director, resulting
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from any cause, shall be filled by a candidate selected by the Shareholder who
appointed the director who previously held the vacated position. BCD shall not
propose or vote for any change in the structure of the Board of Directors, as
set forth above without the approval of Xxxx. Unless all of the members of the
Board of Directors agree otherwise, the meetings of the Board of Directors shall
be held within the business hours of the United Kingdom. Xxxx'x representative
shall be provided with 10 days actual notice of any meeting of the Board of
Directors along with notice of the matters to be considered at such meeting;
provided however that in the event the Company in its reasonable judgement
believes a meeting must be called sooner, Xxxx'x representative shall be given
at least forty eight (48) hours actual notice of the meeting.
4.2 Day-to-Day Management. Subject to the restrictions contained in
this Agreement and the direction of the Board of Directors, the day-to-day
management and operation of the Corporation shall be the responsibility of the
President and other officers of the Corporation.
4.3 Business Plan. The Shareholders agree that the Corporation,
including for purposes of this Section 4.3, all subsidiaries, and its finances
shall be managed in accordance with a business plan ("Business Plan"). The
Corporation's preliminary Business Plan is attached as Schedule 4.3. Each year,
at least sixty (60) days before the start of the Corporation's fiscal year, the
Shareholders shall unanimously approve a new Business Plan. In the event that
the Shareholders are unable to agree upon a new Business Plan, the Business Plan
from the previous year shall remain in effect until a new Business Plan is
agreed upon.
4.4 Dividend Policy. The Corporation shall distribute all net income
(as determined in accordance with generally accepted accounting principles) that
is not reasonably needed by the Corporation or its subsidiaries for
contingencies and capital expenditures. It is understood among the parties
hereto that it is the intention that after the first anniversary of this
Agreement, the Corporation shall endeavor to distribute to its shareholders 50%
of its net income.
4.5 Major Actions. Without the written consent of Xxxx, the Corporation
will not:
(a) Amend, supplement, repeal, or otherwise change the articles of
incorporation or bylaws of the Corporation in any manner or permit any
subsidiary to amend, supplement, repeal, or otherwise change its
articles of certificate of incorporation, bylaws, articles of
organization, operating agreement, or other governing documents, as
applicable, in any manner which would negatively impact the rights of
Xxxx granted pursuant to this Agreement;
(b) Allow any subsidiary to authorize, designate, issue or sell any
additional limited liability company interests, shares, or other
securities of such subsidiary (including any options, warrants, and
purchase rights) except to another subsidiary or the Corporation or
pursuant to Section 4.5(c), below;
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(c) Establish, or allow any subsidiary to establish, any option or
other equity based incentive plan for management, directors, or
employees, grant, or allow any subsidiary to grant, any stock options,
or other rights to purchase securities, or authorize or enter into, or
allow any subsidiary to authorize or enter into, any plan, contract, or
arrangement that provides any person with economic benefits directly or
indirectly, in whole or in part, equivalent to equity security
ownership, including but not limited to, phantom stock option, stock
appreciation rights, and similar plans except for an incentive or bonus
plan which allows for the issuance of options or grants, directly or
indirectly, of up to 2.5% of the outstanding equity securities of the
Corporation;
(d) Redeem or repurchase any security of the Corporation (except
for repurchase in connection with departing employees) or allow any
subsidiary to purchase any security of the Corporation unless done on a
pro rata basis with respect to all shareholders of the Corporation or
pursuant to the terms of Article 3;
(e) Make distributions or pay dividends in cash or property with
respect to any security of the Corporation, except for dividends or
distributions made pro rata among the holders of Stock;
(f) Sell, exchange, transfer, or otherwise dispose of any shares of
capital stock or other security of any subsidiary or allow any
subsidiary to sell, exchange, transfer, or otherwise dispose of any
membership interests, shares of capital stock, or other security of any
other subsidiary, except to the Corporation or another subsidiary, or
pursuant to Section 4.5(c), above;
(g) Enter into, or allow any subsidiary to enter into, any merger,
consolidation, or statutory share exchange with any other entity,
except with the Corporation or another subsidiary;
(h) Sell, exchange, lease, license, or otherwise dispose of, or
allow any subsidiary to sell, exchange, lease, license, or otherwise
dispose of, any material amount of assets (including intangible
property) except in the ordinary course of business;
(i) Take any action to voluntarily dissolve, liquidate, or wind up
or carry out any partial liquidation or distribution or transaction in
the name of a partial liquidation or dissolution;
(j) Acquire, or allow any subsidiary to acquire, assets or
securities of any other person or entity, except for acquisitions with
an aggregate purchase consideration of less than $2,000,000 in any one
transaction or series of related transactions in a financial year;
(k) Enter into any material agreement, license, lease, transaction,
or other arrangement with any Related Party (other than a subsidiary),
provided that Xxxx will not
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unreasonably withhold its consent to such agreement, license, lease,
transaction, or other arrangement if the terms are equivalent to those
in an arms length transaction;
(l) Enter into, or allow any subsidiary to enter into, any new line
of business that is unrelated to an existing business operation unless
the entry into the new line of business is provided for in the Business
Plan;
(m) Incur, or allow any subsidiary to incur, any single expense or
capital expenditure of an amount in excess of $100,000.00 unless such
expenditure is provided for in the Business Plan;
(n) Except as provided in item (k) above, borrow, or allow any
subsidiary to borrow, money in excess of $500,000.00 unless such
arrangement is set forth in the Business Plan;
(o) Amend the Business Plan; or
(p) Authorize, ratify, or enter into any agreement to undertake any
of the matters specified in items (a) through (o), above.
The Corporation shall address all requests for approval of any of the above
listed actions to the Chief Executive Officer of Xxxx Xxxxxxxx, PLC at Abbey
House, 000 Xxxxxxxxxxx Xxxx, Xxxxxxxxxxx Xxxxxxxxx XX00 0XX, facsimile
#44-12-52-542-444, or his successor indicated in writing by Xxxx (the "Xxxx
Representative"). The decision regarding such request shall be delivered by the
Xxxx Representative to the Corporation within ten (10) business days of such
request.
As under in this Section 4.5, "subsidiary" shall mean an entity controlled by
the Corporation, directly or through one or more intermediaries. "Related Party"
shall mean any Affiliate of BCD and any associate of any such Affiliate.
Affiliate and associate shall have the meanings set forth in Rule 405 under the
Securities Act of 1933.
ARTICLE 5
INITIAL PUBLIC OFFERING
5.1 Intent of Corporation. The Corporation desires to engage in an
initial public offering whereby the Stock of the Corporation will be available
for purchase by the public at a valuation of the Corporation at no less than
$150,000,000 (the "IPO"). In the event that the Corporation does engage in an
IPO, the IPO process will be conducted in accordance with this Article 5.
5.2 Investment Banking Firm. The Corporation shall retain a nationally
recognized investment banking firm to advise the Corporation in connection with
the IPO and the Corporation shall confer with Xxxx regarding the Corporation's
proposed choices for the underwriting group for the IPO.
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5.3 Registration Statements. The Corporation agrees that it will
provide to Xxxx and its counsel copies of drafts of Form S-1 (the "Registration
Statement") from time to time as they are prepared. Within a reasonable time
after Xxxx'x receipt of any draft of the Registration Statement, any comments or
objections posed by Xxxx or its counsel shall be submitted to the Corporation in
writing and state with specificity the material in question, the reason for
objection or comment, and Xxxx'x proposed alternative ("Comments").
Notwithstanding the foregoing, during the five (5) business days immediately
proceeding the date scheduled for the filing of the Registration Statement, the
Corporation shall provide Xxxx with as much notice as possible regarding any
proposed revisions to the Registration Statement and Xxxx shall provide the
Corporation with Comments to such proposed revisions within twelve (12) hours of
the time any such documentation regarding any proposed revision is received by
Xxxx and its counsel.
5.4 Dilution. In the event that the Corporation elects to engage in an
IPO, Xxxx shall have the option to purchase stock in the Corporation in
conjunction with the IPO and at the price offered in the IPO, such that Xxxx
will retain 20% of the equity ownership of the Corporation.
5.5 Piggy-Back Registration Rights. If the Corporation allows the
inclusion of any Stock held by a shareholder in a public offering registered
under the Securities Act of 1993, the Shareholders shall be entitled to include
their shares of Stock in such offering on a pro rata basis, provided that the
aggregate amount to be included shall be at the discretion of the Corporation
and the managing underwriter. In order to participate in the offering, each
Shareholder must provide such information and execute such agreements and other
documents as may be required of selling shareholders in the offering by the
Corporation and the managing underwriter.
ARTICLE 6
ADDITIONAL CAPITAL
6.1 Generally. Capital needs of the Corporation shall be funded by
available funds from operations of the Corporation. In the event the funds from
operations are insufficient to fund the capital needs of the Corporation, the
Corporation shall seek to obtain additional capital from third-party lending
sources, including banks, on reasonably acceptable terms. If the Corporation is
unable to satisfy its capital requirements after making a good faith effort to
secure such funding from third-party lending sources, then the Corporation may
issue debt or equity securities of the Corporation (the "Issued Securities").
6.2 Shareholders Purchase Right. In the event the Corporation plans to
issue the Issued Securities pursuant to Section 6.1, the Shareholders have the
right to buy the Issued Securities, pro rata. The Corporation shall notify the
Shareholders of the type, amount, and price of the Issued Securities. Each
Shareholder shall have thirty (30) days within which to elect to purchase all or
part of its pro rata portion of the Issued Securities. In the event a
Shareholder does not purchase its entire pro rata portion of the Issued
Securities, the other Shareholder shall be notified thereof and shall have three
(3) days to agree to purchase all or part of those remaining shares but only on
the price and terms offered to the Shareholders. Any Issued Securities not
purchased by the Shareholders may
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be sold to third-party purchasers within one hundred twenty (120) days. Any
Issued Securities not so purchased by a third party within such period shall
again become subject to the procedures of this Article.
ARTICLE 7
INFORMATION
The Corporation shall deliver the following information and, provide
the following rights to Xxxx:
7.1 Audited Annual Financial Statements. As soon as practicable and, in
any case, within ninety (90) days after the end of each fiscal year, audited
financial statements of the Corporation, consisting of a consolidated balance
sheet of the Corporation as of the end of such fiscal year and consolidated
statements of operations, statements of Shareholders' equity and statements of
cash flows of the Corporation for such fiscal year, setting forth in each case,
in comparative form, the figures for the preceding fiscal year, all in
reasonable detail and fairly presented in accordance with generally accepted
accounting principles ("GAAP") applied on a consistent basis throughout the
periods reflected therein, and accompanied by an opinion thereon of independent
certified public accountants.
7.2 First Quarter Financial Statements. Within forty-five (45) days
after the end of the first calendar quarter, copies of the unaudited
consolidated balance sheet of the Corporation as at the end of such calendar
quarter and the related unaudited consolidated statements of operations and cash
flows for such calendar quarter and the portion of the calendar year through
such calendar quarter all reviewed by the Corporation's public accounting firm,
setting forth in comparative form the figures for the corresponding periods of
(a) the previous calendar year and (b) the budget for the current year, prepared
in reasonable detail and in accordance with GAAP applied consistently throughout
the periods reflected therein and certified by the chief financial officer of
the Corporation as presenting fairly the financial condition and results of
operations of the Corporation (subject to customary exceptions for interim
unaudited financial statements). The cost for such review by the Corporation's
public accounting firm shall be reimbursed by Xxxx.
7.3 Monthly Unaudited Financial Statements. As soon as available, but
in any event within twenty (20) days after the end of each calendar month,
copies of the unaudited consolidated balance sheet of the Corporation as at the
end of such calendar month and the related unaudited consolidated statements of
operations and cash flows for such calendar month and the portion of the
calendar year through such calendar month, in each case setting forth in
comparative form the figures for the corresponding periods of (a) the previous
calendar year and (b) the budget for the current year, prepared in reasonable
detail and in accordance with GAAP applied consistently throughout the periods
reflected therein and certified by the chief financial officer of the
Corporation as presenting fairly the financial condition and results of
operations of the Corporation (subject to customary exceptions for interim
unaudited financial statements).
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7.4 Management's Analysis. All the financial statements delivered
pursuant to Sections 7.1 and 7.2 shall be accompanied by an informal narrative
description of material business and financial trends and developments and
significant transactions that have occurred in the appropriate period or periods
covered thereby.
7.5 Inspection. The Corporation shall, and shall cause each subsidiary
to, permit Xxxx, by its representatives, agents, or attorneys (provided that
such entity or person executes an appropriate confidentiality agreement):
(a) to examine all books of account, records, and other papers of
the Corporation or such subsidiary reasonably requested by Xxxx;
(b) to make copies and take extracts from any thereof, except for
information which is confidential or proprietary;
(c) to discuss the affairs, finances, and accounts of the
Corporation or such subsidiary with the Corporation's or such subsidiary's
officers and independent certified public accountants (and by this provision the
Corporation hereby authorizes said accountants to discuss with any Xxxx and its
representatives, agents or attorneys the finances and accounts of the
Corporation or such subsidiary); and
(d) to visit and inspect, at reasonable times and on reasonable
notice during normal business hours, the properties of the Corporation and such
subsidiary.
Notwithstanding any provision herein to the contrary, the provisions of this
Section 7.5 are in addition to any rights of the Xxxx under the Georgia Business
Corporation Code and shall in no way limit such rights.
7.6 Other Information. The Corporation shall deliver the following to
Xxxx:
(a) Promptly after the submission thereof to the Corporation,
copies of any detailed reports (including the auditors' comment letter to
management, if any such letter is prepared) submitted to the Corporation by its
independent auditors in connection with each annual or interim audit of the
accounts of the Corporation made by such accountants;
(b) With reasonable promptness, a notice of any default by the
Corporation or a subsidiary under any material agreement to which it is a party;
(c) Promptly (but in any event within ten (10) days) after the
filing of any document or material with the SEC, a copy of such document or
materials; and
(d) Promptly upon request therefor, such other data, filings and
information Xxxx may from time to time reasonably request.
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ARTICLE 8
TAG-ALONG RIGHT
8.1 Tag-Along Rights. If after complying with Section 3.4 BCD intends
to sell all or part of its shares of Stock to any person or entity, BCD shall
not sell all or part of its shares of Stock to any person or entity without
first complying with the provisions of this Section. In the event a proposed
transferee offers (the "BCD Offer") to buy a number of shares from BCD (the
"Total Purchase Shares'), BCD shall not transfer all or part of its shares of
Stock unless the proposed transferee offers (the "Xxxx Offer") to acquire from
Xxxx, on the same terms and conditions as were offered to BCD, that number of
shares of Stock determined by multiplying (A) the percentage of the total number
of shares of Stock outstanding owned by Xxxx by (B) the Total Purchase Shares.
In no event shall the total number of shares sold to the proposed transferee
pursuant to the BCD Offer and Xxxx Offer exceed the Total Purchase Shares. In
the event of any proposed sale, BCD shall give a written notice ("Transfer
Notice") to Xxxx. BCD shall attach to the Transfer Notice the offer of the
proposed transferee to Xxxx to purchase shares of Xxxx in accordance with the
terms of this Agreement. Xxxx shall have twenty (20) days after delivery of the
Transfer Notice to accept the offer of the proposed transferee. If Xxxx accepts
the offer of the proposed transferee, it shall give BCD and the proposed
transferee written notice thereof within such twenty-day period, and the
closing, if any, of the purchase of BCD's shares and Xxxx'x shares shall be made
contemporaneously by the proposed transferee.
8.2 Come-Along Rights. If after complying with Section 3.4, BCD intends
to sell all or part of its shares of Stock to any person or entity, BCD has the
right to require Xxxx to transfer to the proposed transferee, on the same terms
and conditions as were offered to BCD, that number of shares of Stock determined
by multiplying (A) the percentage of the total number of shares of Stock
outstanding owned by Xxxx by (B) the number of shares of Stock the proposed
transferee has agreed to purchase from BCD. In the event BCD desires to exercise
its rights under this Section 8.2, BCD shall notify Xxxx of such intent in a
written notice ("Come-Along Notice"). BCD shall attach to the Come-Along Notice
the offer of the proposed transferee to Xxxx to purchase shares of Xxxx in
accordance with the terms of this Agreement. Xxxx shall give BCD and the
proposed transferee written notice of its acceptance of the offer of the
proposed transferee within twenty (20) days after delivery of the Come-Along
Notice. The closing of the purchase of BCD's shares and Xxxx'x shares shall be
made contemporaneously by the proposed transferee.
ARTICLE 9
VOTING AGREEMENT
9.1 Voting of Shares. The Shareholders shall vote their shares of the
Corporation and take such other actions as may be necessary to cause the
Corporation to comply with all provisions of this Agreement.
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ARTICLE 10
LEGEND ON STOCK
10.1 Form of Legend. All certificates representing shares of Stock of
the Corporation held by the Shareholders shall bear the following restrictive
legend:
THE SHARES OF STOCK REPRESENTED BY THIS
CERTIFICATE ARE HELD SUBJECT TO, AND TRANSFER OR
PLEDGE OF SUCH SHARES IS RESTRICTED BY, THE
TERMS OF A SHAREHOLDERS AGREEMENT BY AND BETWEEN
XXXX XXXXXXXX INTERNATIONAL BENEFITS LIMITED,
BCD TECHNOLOGY S.A., AND WT TECHNOLOGIES, INC.
DATED ________, 1999, A COPY OF WHICH IS ON FILE
AT THE OFFICE OF THE CORPORATION. NO TRANSFER OR
PLEDGE OF ANY SHARE REPRESENTED BY THIS
CERTIFICATE SHALL BE VALID UNLESS MADE IN
ACCORDANCE WITH THE TERMS OF THE AGREEMENT.
10.2 Additional Legend. The Secretary shall endorse each certificate
with any additional legend (or legends) as he or she shall deem necessary, upon
the opinion of counsel to the Corporation, to comply with any applicable laws
and regulations. In the event that any additional legend (or legends) are
required, each Shareholder shall surrender to the Corporation all of its
certificates representing shares of Stock. After such endorsement, each of the
certificates so surrendered shall be returned to the Shareholder owning such
certificate. Thereafter, all certificates representing shares of Stock of the
Corporation shall bear an identical endorsement. A copy of this Agreement shall
be filed with the Secretary of the Corporation.
ARTICLE 11
TERMINATION AND AMENDMENT
11.1 Termination. This Agreement shall terminate:
(a) If all outstanding shares of Stock of the Corporation are
owned by any one (1) Shareholder; or
(b) If the Corporation is adjudicated a bankrupt, the Corporation
executes an assignment for benefit of creditors, a receiver is appointed for the
Corporation, or the Corporation voluntarily or involuntarily dissolves;
(c) If all Shareholders agree to terminate this Agreement;
(d) Upon the completion of the IPO.
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Notwithstanding anything to the contrary contained in this Agreement,
this Agreement shall terminate twenty (20) years from the date hereof unless
this Agreement is renewed within such twenty-year period. Amendments to this
Agreement shall be deemed renewals of this Agreement unless the contrary is
stated in the amendment.
11.2 Amendment. This Agreement may not be amended, waived or terminated
orally, and no amendment, termination or attempted waiver shall be valid unless
in writing and signed by all of the Shareholders. Additional parties may be
added to this Agreement in accordance with the terms hereof by execution of a
counterpart of this Agreement which shall be attached hereto and incorporated
herein by this reference.
ARTICLE 12
REMEDIES
12.1 Remedies. During the term of this Agreement, the shares of Stock
shall not be readily marketable, and, for that reason and other reasons, the
parties will be irreparably damaged if this Agreement is not specifically
enforced. In this regard, the parties declare that it is impossible to measure
in money the damages that will accrue to a person having rights under this
Agreement by reason of a failure of another to perform any obligation under this
Agreement. Therefore, this Agreement, including without limitation the
provisions of Article 3, shall be enforceable by specific performance or other
equitable remedy cumulative with and not exclusive of any other remedy. If any
person shall institute any action or proceeding to enforce the provisions of
this Agreement, any person subject to this Agreement against whom such action or
proceeding is brought hereby waives the claim or defense that the person
instituting the action or proceeding has an adequate remedy at law, and no
person shall in any action or proceeding put forward the claims or defense that
an adequate remedy at law exists. Should any dispute concerning the transfer of
shares of Stock arise under this Agreement, an injunction may be issued
restraining the transfer of such shares pending the determination of such
dispute.
ARTICLE 13
DISPUTE RESOLUTION
13.1 Negotiations and Mediation. Should there be any ambiguity,
contradiction or inconsistency in this Agreement, or should any disagreement or
dispute arise in the course of or subsequent to implementation of this
Agreement, the Shareholders shall, as a condition precedent to the use of any
dispute resolution method listed below, meet within ten (10) days of written
request by either party and negotiate in good faith to settle the matter. Each
Shareholder shall make available such persons and documents as maybe reasonably
requested by the other Shareholder in order to facilitate such negotiations. If
such negotiations are unsuccessful in settling the disagreement or dispute, the
parties agree to attempt to settle their differences by non-binding mediation to
be held in Atlanta, Georgia and administered by the American Arbitration
Association under its Commercial Mediation Rules.
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13.2 Stock Buy-Back. In the event that Xxxx exercises its right of
approval pursuant to Sections 4.3 or 4.5 and in doing so takes a position
contrary to the decision of the Board of Directors of the Corporation (a
"Section 13.2 Event") then the Corporation, or its designee, may purchase all of
the shares of Stock held by Xxxx for an amount equal to the greater of (i) the
Fair Market Value (as defined below), or (ii) 125% times the amount paid by Xxxx
for the shares of Stock being sold.
13.3 Fair Market Value. Xxxx and the Corporation shall initially
negotiate with each other to agree upon the Fair Market Value within thirty (30)
days of the Section 13.2 Event. In the event that Xxxx and the Corporation
cannot reach an agreement on the Fair Market Value within such thirty-day
period, the Fair Market Value will be determined by two appraisers, one chosen
by Xxxx and one chosen by the Corporation. If the two appraisal values (the
"Fair Market Value Appraisal") differ by 10% or less (such percentage difference
to be computed by subtracting the lesser of the Fair Market Value Appraisals
from the greater of the Fair Market Value Appraisals and dividing that
difference by the greater of the Fair Market Value Appraisals), then the Fair
Market Value of the property shall equal the average of the two Fair Market
Value Appraisals. In the event that the Fair Market Value Appraisals vary by
more than 10%, a third appraiser shall be chosen by the initial two appraisers
to conduct an independent appraisal of the property, and on the basis of that
independent appraisal, the third appraiser shall, in the exercise of his own
professional judgment, determine which of the two Fair Market Value Appraisals
is the most commercially reasonably, and that Fair Market Value Appraisal shall
be the Fair Market Value.
ARTICLE 14
MISCELLANEOUS
14.1 Applicable Law. This Agreement is executed and will be performed
in the State of Georgia, and this Agreement shall be construed and enforced in
accordance with the laws of the State of Georgia.
14.2 Captions. Titles or captions of sections contained in this
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend or prescribe the scope of this Agreement or the
intent of any provision.
14.3 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 Agreement.
14.4 Further Acts. Each party agrees to perform any further acts and to
execute and deliver any instruments or documents that may be necessary or
reasonably deemed advisable to carry out the purposes of this Agreement.
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14.5 Gender. Where the context so requires, the masculine gender shall
be construed to include the female, a corporation, a trust, or other entity, and
the singular shall be construed to include the plural and the plural the
singular.
14.6 Severability. If any part of this Agreement shall be held void,
voidable, or otherwise unenforceable by any court of law or equity, nothing
contained in this Agreement shall limit the enforceability of any other part.
14.7 Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Shareholders, their respective heirs,
successors, successors-in-title, legal representatives and lawful assigns. No
party shall have the right to assign this Agreement, or any interest under this
Agreement, without the prior written consent of the other parties.
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[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
WT TECHNOLOGIES, INC.
By:
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
BCD TECHNOLOGY S.A.
By:
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Director
By:
--------------------------------
Name: Xxxxxx Xxxxx
Title: Director
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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XXXX XXXXXXXX INTERNATIONAL
BENEFITS LIMITED
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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SCHEDULE 2.1
COMPANY'S SHAREHOLDERS
Name Ownership
---- ---------
Xxxx Xxxxxxxx International Benefits Limited 1,853,874.60
BCD Technology S.A 5,705,858.40
The Alexander Family, L.P. 1,061,015
Xxxxx X. Xxxx 221,045
Xxxxx Xxxxxxx 64,327
Xxxxx Xxxxxxxx 36,736
Xxxxx X. Xxxxxxx 36,736
Xxxxx Xxxxxx 195,892
*note that 58,767 shares are held in escrow
Xxxx X. Xxxxx and Xxxx X. Xxxxx, as Trustees of 5,796
the Xxxx X. Xxxxx and Xxxx X. Xxxxx Trust
*note that 1739 shares are held in escrow
Xxxxxxxxxxx X. Xxxxxxx 79,400
*note that 23,820 shares are held in escrow
F. Xxxxxx Xxxxx 8,693
*note that 2,608 shares are held in escrow
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SCHEDULE 2.2
SHAREHOLDER SHARES
Name # Shares
---- --------
Xxxx Xxxxxxxx International Benefits Limited 1,853,874.60
BCD Technology S.A. 5,705,858.40
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SCHEDULE 4.3
BUSINESS PLAN
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EXHIBIT 4.3
FIRST AMENDMENT TO SHAREHOLDERS AGREEMENT
THIS FIRST AMENDMENT (the "Amendment") to the Shareholders Agreement by and
between Xxxx Xxxxxxxx International Benefits Limited ("Xxxx"), BCD Technology
S.A. ("BCD") and WT Technologies, Inc. (the "Corporation") dated November 5,
1999 (the "Agreement"), is made as of the _______ day of _______________, 2000.
WHEREAS, Xxxx and BCD have agreed that in the event the Corporation engages
in and completes an initial public offering of its stock (the "IPO"), Xxxx and
BCD shall enter into a voting arrangement whereby BCD will vote its shares in
favor of Xxxx'x candidate to the Board of Directors in certain circumstances;
and
WHEREAS, Xxxx has agreed to sell up to 2% of the outstanding shares of
Common Stock of the Corporation to the Corporation or into the IPO in certain
circumstances; and
WHEREAS, Xxxx has agreed to waive its right to retain 20% of the equity
ownership of the Corporation in the event the Corporation engages in an IPO; and
WHEREAS, Xxxx and BCD desire to document their agreement to enter into such
arrangements.
NOW, THEREFORE, for and in consideration of the premises and the mutual
promises, representations and covenants contained herein, Xxxx, BCD and the
Corporation hereby agree as follows:
1. The Agreement is hereby amended by deleting Section 5.4 of the Agreement in
its entirety and substituting in lieu thereof the following:
5.4(a) Required Stock Sale. In the event of an IPO whereby the stock of
the Corporation will be available for purchase by the public at a valuation
of the Corporation at no less than $250,000,000.00, and upon written
request of the Corporation, Xxxx shall, subject to Section 5.4(b), sell to
the Corporation or into the IPO the number of its shares of Common Stock as
specified by the Corporation at a price per share equal to the IPO price
per share, provided, however, that in no event shall Xxxx be required to
sell a number of its shares greater than 2% of the shares of Common Stock
of the Corporation immediately outstanding prior to the IPO.
5.4(b) Xxxx Board Approval. BCD acknowledges that Xxxx must obtain
approval from its Board of Directors to sell the shares pursuant to Section
5.4(a) and Xxxx covenants and agrees to obtain such approval.
2. The Agreement is hereby amended by adding a Section 9.2 to the Agreement as
follows:
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9.2 Additional Voting Agreement. Xxxx and BCD covenant and agree that in
the event that:
(a) the Corporation engages in and completes an initial public
offering of its stock; and
(b) at the date of completion of such initial public offering of the
Corporation's stock (the "Post-IPO Date"), Xxxx owns 5% or more of the
outstanding shares of Common Stock of the Corporation provided that
Xxxx has not sold any of its shares other than contemplated in this
Amendment;
then, within a reasonable time after the Post-IPO Date, Xxxx and BCD shall
enter into a voting agreement whereby:
(c) BCD will agree to vote its shares in favor of Xxxx'x candidate to
the Board of Directors to fill the vacancy created when Xxxxx
Xxxxxxxxx'x or his successor's term expires in 2003 and thereafter
unless:
(1) Xxxx'x ownership percentage of the Corporation reduces to
less than 10% of the outstanding shares of Common Stock of the
Corporation because of the sale of its shares by Xxxx, or
(2) Xxxx'x ownership percentage of the Corporation reduces to
less than 5% of the outstanding shares of Common Stock of the
Corporation because of equity issuances by the Corporation.
Notwithstanding the provisions of Section 4.l, at the request of the Board of
Directors upon the occurrence of Section 9.2(c)(1) or 9.2(c)(2) event, then Xxxx
will require its candidate to resign from the Board of Directors after the
expiration of the term in 2003.
3. All terms and provisions of the Agreement which are not inconsistent with
the terms and provisions of this Amendment shall remain in full force and
effect.
4. This Amendment may be executed in any number of counterparts and each of
such counterparts shall for all purposes be deemed to be an original, and all
such counterparts shall together constitute but one and the same instrument.
5. Capitalized terms used and not otherwise defined herein shall have those
meanings ascribed to them in the Agreement.
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EXHIBIT 4.3
IN WITNESS WHEREOF, the undersigned have executed this First Amendment to
the Shareholders Agreement on the date first above written.
WT TECHNOLOGIES, INC.
By:____________________________________
Name: Xxxxx Xxxxxxx
Title: Executive Vice President
BCD TECHNOLOGY S.A.
By:____________________________________
Name: Xxxxxx Xxxxxxx
Title: Director
By:____________________________________
Name: Xxxxxx Xxxxx
Title: Director
XXXX XXXXXXXX INTERNATIONAL
BENEFITS LIMITED
By:____________________________________
Name:__________________________________
Title:_________________________________
[Signatures Appear on Following Page]
