Exhibit 10.14
FORM OF TRANSFER RESTRICTION AGREEMENT
This Transfer Restriction Agreement (this "Agreement") is made and entered
into as of June __, 2002, by and among Xxxxxx Associates, Inc., a Delaware
corporation (the "Company"), and the Continuing Partners listed on Appendix A
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hereto.
WITNESSETH:
WHEREAS, the Continuing Partners are beneficial owners of shares of Series
A Preferred Stock, par value $0.01 per share, of the Company (the "Preferred
Stock") and may become beneficial owners of shares of Class B Common Stock, par
value $0.01 per share, of the Company (the "Class B Common Stock") and Class C
Common Stock, par value $0.01 per share, of the Company (the "Class C Common
Stock"); and
WHEREAS, the Continuing Partners and the Company desire to address herein
certain rights and obligations with respect to the disposition of their shares
of Preferred Stock, Class B Common Stock and Class C Common Stock.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, covenants and provisions herein contained, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS AND OTHER MATTERS
Section 1.1. Definitions. The following words and phrases as used herein
shall have the following meanings, except as otherwise expressly provided or
unless the context otherwise requires:
(a) A "beneficial owner" of a security includes any person who, directly
or indirectly, through any contract, arrangement, understanding, relationship or
otherwise has or shares:
(i) voting power, which includes the power to vote, or to direct the
voting of, such security and/or
(ii) investment power, which includes the power to dispose, or to
direct the disposition of, such security,
but for purposes of this Agreement a person shall not be deemed a beneficial
owner of (A) Common Stock solely by virtue of the application of Exchange Act
Rule 13d-3(d) or Exchange Act Rule 13d-5 as in effect on the date hereof (B)
Common Stock solely by virtue of the possession of the legal right to vote
securities under applicable state or other law (such as by
proxy or power of attorney) or (C) Common Stock held of record by a "private
foundation" subject to the requirements of Section 509 of the Code.
"Beneficially own" and "beneficial ownership" shall have correlative meanings.
(b) "Class A Common Stock" shall mean the Class A Common Stock, par value
$0.01 per share, of the Company.
(c) "Class C Covered Shares" shall mean Covered Shares which consist of
(i) Class C Common Stock or (ii) Preferred Stock in respect of which shares of
Class C Common Stock would be issued upon exercise of the put and call rights of
such Preferred Stock.
(d) "Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time, and the applicable rulings and regulations thereunder.
(e) "Common Stock" shall mean the Class A Common Stock, Class B Common
Stock and Class C Common Stock.
(f) "Continuing Partners" shall mean those persons from time to time
listed on Appendix A hereto, and all persons who may become parties to this
Agreement and whose name are required to be listed on Appendix A hereto, in each
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case in accordance with the terms hereof.
(g) A Continuing Partner's "Covered Shares" shall mean (i) any shares of
Preferred Stock issued to the Continuing Partner upon closing of the
transactions contemplated by the Business Amalgamation Agreement by and among
the Company, Xxxxxx Holdings LLC and the Continuing Partners (the "Business
Amalgamation Agreement), and (ii) any shares of Common Stock issued upon
exercise of the put and call rights of the Preferred Stock. "Covered Shares"
shall also include the securities that are defined to be "Covered Shares" in
Section 3.3.
(h) "Employee Continuing Partner" shall mean a Continuing Partner who is
employed by the Company or its Subsidiary at the time in question.
(i) "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
(j) A reference to an "Exchange Act Rule" shall mean such rule or
regulation of the Securities and Exchange Commission under the Exchange Act, as
in effect from time to time or as replaced by a successor rule thereto.
(k) "IPO Date" shall mean date on which the Company consummates the first
public offering pursuant to an effective registration statement under the
Securities Act of 1933, as amended, (other than on Form S-4 or S-8 or their
equivalents or any successor form thereto) covering the offer and sale by the
Company of its shares of Class A Common Stock.
(l) A "person" shall include, as applicable, any individual, estate,
trust, corporation, partnership, limited liability company, unlimited liability
company, foundation, association or other entity.
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(m) Sole Beneficial Owner" shall mean a person who is the beneficial owner
of Covered Shares, who does not share beneficial ownership of such Covered
Shares with any other person (other than pursuant to the Certificate of
Incorporation of the Company or applicable community property laws) and who is
the only person (other than pursuant to applicable community property laws) with
a direct economic interest in the Covered Shares.
(n) "Stockholders' Committee" shall mean the Stockholders' Committee
established pursuant to the Certificate of Incorporation of the Company.
(o) "Subsidiary" shall mean any person in which the Company owns, directly
or indirectly, a majority of the equity economic or voting ownership interest.
(p) "Transfer" shall mean any sale, transfer, pledge, hypothecation or
other disposition, whether direct or indirect, whether or not for value,
including any short sale; provided, that a "Transfer" shall not include the
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purchase of a put option after the fifth (5th) trading day following the
twenty-fifth (25th) day after the IPO Date to sell Covered Shares at the time
such shares are free from the Transfer Restrictions.
(q) "Transfer Restrictions" shall mean the restrictions on Transfer set
forth in Section 2.1 and Section 2.2.
Section 1.2. Gender. For the purposes of this Agreement, the words "he,"
"his" or "himself" shall be interpreted to include the masculine, feminine and
corporate, other entity or trust form.
ARTICLE II
LIMITATIONS ON TRANSFER OF SHARES
Section 2.1. Restrictions on Transfer.
(a) Each Continuing Partner agrees that such Continuing Partner shall not
Transfer any Covered Shares beneficially owned by such Continuing Partner prior
to the third anniversary of the IPO Date (which period may be extended at the
option of the Company for an additional six months if the Company consummates a
secondary offering of its Class A Common Stock on or about the third anniversary
of the IPO Date); provided, that the Company may waive such restrictions on
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Transfer to allow the Continuing Partners to participate in organized secondary
offerings of Class A Common Stock by the Company.
(b) The Company currently expects to make organized secondary offerings of
Class A Common Stock on or about each of the first, second and (possibly) third
anniversaries of the IPO Date to facilitate sales of such shares by the
Continuing Partners and the owners of Xxxxxx Holdings LLC (the "Xxxxxx Owners").
The number of Covered Shares which can be sold by the Continuing Partners
pursuant to Section 2.1(a) in each of such organized secondary offerings is
currently expected to be approximately twelve percent (12%) of the Covered
Shares. Notwithstanding the foregoing, the Company shall not be obligated to
make any secondary
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offering of its securities on behalf of its stockholders or to include any of
its stockholders as selling stockholders in offerings on behalf of the Company
or any other person.
Section 2.2. Minimum Hold Requirement. Each Continuing Partner agrees that
for so long as such Continuing Partner is an Employee Continuing Partner such
Continuing Partner shall at all times be the Sole Beneficial Owner of at least
that number of Class C Covered Shares which equals 25% of the aggregate number
of Class C Covered Shares beneficially owned by such Continuing Partner
(including those issuable upon exercise of the put and call rights with respect
to the Preferred Stock beneficially owned by such Continuing Partner) as of the
closing of the transactions contemplated by the Business Amalgamation Agreement.
Section 2.3. Overriding Provision. The provisions of this Article II are
subject to an overriding condition that those provisions applicable to
Continuing Partners shall be no less favorable to Continuing Partners than those
applicable to Xxxxxx Owners. Accordingly, where a Continuing Partner would have
been treated more favorably under terms applicable to Xxxxxx Owners generally,
or under terms applicable generally to Xxxxxx Owners subject to conditions which
the Continuing Partner also fulfills, the Continuing Partner may elect to be
subject to those terms in place of those otherwise applicable to such Continuing
Partner. This Section 2.3 shall not affect any allocation among the Continuing
Partners individually of Covered Shares to be sold by the Continuing Partners in
the organized secondary offerings referred to in Section 2.1.
Section 2.4. Legend on Certificates; Entry of Stop Transfer Orders.
(a) Each Continuing Partner understands and agrees that any outstanding
certificate representing Covered Shares beneficially owned by a Continuing
Partner may bear a legend noted conspicuously on each such certificate reading
substantially as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS OF ANY
STATE, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED
PLEDGED OR OTHERWISE DISPOSED OF UNLESS REGISTERED
PURSUANT TO THE PROVISIONS OF SUCH ACT AND STATE
SECURITIES LAWS OR AN EXEMPTION THEREFROM IS AVAILABLE
AND THE COMPANY RECEIVES A WRITTEN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT REGISTRATION UNDER
SUCH ACT AND STATE SECURITIES LAWS IS NOT REQUIRED.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE PROVISIONS OF A TRANSFER RESTRICTION
AGREEMENT DATED AS OF JUNE 2002, INCLUDING THEREIN
CERTAIN RESTRICTIONS ON TRANSFER, THE RELEVANT PROVISIONS
OF WHICH ARE AVAILABLE FOR INSPECTION AT THE PRINCIPAL
OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN
REQUEST."
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(b) Each Continuing Partner agrees and consents to the entry of stop
transfer orders against the transfer of Covered Shares subject to Transfer
Restrictions except in compliance with this Agreement.
ARTICLE III
OTHER AGREEMENTS OF THE PARTIES
Section 3.1. Expenses. Each Continuing Partner shall be responsible for all
expenses of such Continuing Partner incurred in connection with the compliance
by such Continuing Partner with his obligations under this Agreement, including
expenses incurred by the Company in enforcing the provisions of this Agreement
relating to such obligations.
Section 3.2. Rule 144. The Company undertakes to cooperate with the
Continuing Partners to facilitate sales under Rule 144 of the Securities Act of
1933.
Section 3.3. Adjustment upon Changes in Capitalization; Adjustments upon
Changes of Control; Representatives, Successors and Assigns.
(a) In the event of any change in the outstanding Common Stock by reason
of stock dividends, stock splits, reverse stock splits, spin-offs, split-ups,
recapitalizations, combinations, exchanges of shares and the like, the term
"Covered Shares" shall refer to and include the securities received or resulting
therefrom, but only to the extent such securities are received in exchange for
or in respect of Covered Shares.
(b) In the event of any business combination, restructuring,
recapitalization or other extraordinary transaction involving the Company, its
Subsidiaries or any of their respective securities or assets as a result of
which the Continuing Partners shall hold voting securities of a person other
than the Company, the Continuing Partners agree that this Agreement shall also
continue in full force and effect with respect to such voting securities of such
other person formerly representing or distributed in respect of Covered Shares
of the Company, and the terms "Covered Shares", "Common Stock" and "Company,"
shall refer to such voting securities formerly representing or distributed in
respect of Covered Shares of the Company and such person, respectively.
(c) This Agreement shall be binding upon and inure to the benefit of the
respective legatees, legal representatives, successors and assigns of the
Continuing Partners (and the Company in the event of a transaction described in
Section 3.2(b) hereof); provided, however, that a Continuing Partner may not
assign this Agreement or any of his rights or obligations hereunder without the
prior written consent of the Company, and any assignment without such consent by
a Continuing Partner shall be void; and provided further that no assignment of
this Agreement by the Company or to a successor of the Company (by operation of
law or otherwise) shall be valid unless such assignment is made to a person
which succeeds to the business of the Company substantially as an entirety.
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Section 3.4. Further Assurances. Each Continuing Partner agrees to execute
such additional documents and take such further action as may be reasonably
necessary to effect the provisions of this Agreement.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Term of the Agreement. This Agreement shall remain in full
force and effect with respect to each Continuing Partner until the later of (i)
the expiration of the period described in Section 2.1(a) and (ii) the
termination of the Continuing Partner's employment by the Company or a
Subsidiary.
Section 4.2. Amendment. The provisions of this Agreement may be amended
only with the written consent of the Company and the holders of a majority of
the Covered Shares.
Section 4.3. Waivers.
(a) The Company may, without the consent of any other person, waive the
Transfer Restrictions and the other provisions of this Agreement, including
without limitation, to permit: (A) Continuing Partners to participate as sellers
in underwritten public offerings of, and stock repurchase programs and tender
offers by the Company for, Common Stock; (B) Transfers of Covered Shares to
organizations described in Section 501(c)(3) of the Code, including gifts to
"private foundations" subject to the requirements of Section 509 of the Code;
and (C) particular Continuing Partners or all Continuing Partners to Transfer
Covered Shares in particular situations (such as Transfers to family members,
partnerships or trusts), but not generally. Each waiver shall be effective only
in the specific instance and for the specific purpose for which given and the
Company shall not be obligated to grant a similar waiver to any other person.
(b) In connection with any waiver granted under this Agreement, the
Company may impose such conditions as they determine on the granting of such
waivers.
(c) The failure of the Company at any time or times to require performance
of any provision of this Agreement shall in no manner affect the rights at a
later time to enforce the same. No waiver by the Company of the breach of any
term contained in this Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be or construed as a further or continuing
waiver of any such breach or the breach of any other term of this Agreement.
Section 4.4. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAWS.
Section 4.5. Relationship of Parties. The terms of this Agreement are
intended not to create a separate entity for income tax purposes, and nothing in
this Agreement shall be read to create any partnership, joint venture or
separate entity among the parties or to create any trust or other fiduciary
relationship between them.
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Section 4.6. Notices. Any communication, demand or notice to be given
hereunder will be duly given (and shall be deemed to be received) when delivered
in writing by hand or first class mail or by telecopy to a party at its address
as follows: If to a Continuing Partner, to the address of such Continuing
Partner then in the records of the Company; If to the Company, to 000 Xxxx Xxx
Xxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention: General Counsel. Any notice which
is required to be given in writing pursuant to the terms of this Agreement may
be given by telecopy.
Section 4.7. Severability. If any provision of this Agreement is finally
held to be invalid, illegal or unenforceable, (a) the remaining terms and
provisions hereof shall be unimpaired and (b) the invalid or unenforceable term
or provision shall be deemed replaced by a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid or
unenforceable term or provision.
Section 4.8. No Third-Party Rights. Nothing expressed or referred to in
this Agreement will be construed to give any person other than the parties to
this Agreement any legal or equitable right, remedy, or claim under or with
respect to this Agreement or any provision of this Agreement. This Agreement and
all of its provisions and conditions are for the sole and exclusive benefit of
the parties to this Agreement and their successors and assigns.
Section 4.9. Section Headings. The headings of sections in this Agreement
are provided for convenience only and will not affect its construction or
interpretation.
Section 4.10. Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an original, but all
such counterparts shall together constitute but one and the same instrument.
* * *
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IN WITNESS WHEREOF, the parties hereto have duly executed or caused to be
duly executed this Agreement as of the dates indicated.
XXXXXX ASSOCIATES, INC.
By:________________________________________
Printed Name:______________________________
Title:_____________________________________
Executed as a deed by XXXXX XXXXXX on his own behalf )
and as attorney for )
X.X. XXXXX, M.A. XXXXXX, ) ...................
X.X. XXXXXX, X.X. XXXXX,
A.R. XXXXXX, X.X. XXXXX,
X.X. XXXXXXX, P.R.C. XXXXXX,
X.X. WESBROOM,
M.G.J. XXXXXX, X.X. XXXXXX,
X.XXXXXX, L.S. PARSONAGE,
X.X. XXXXXXXX, R.L.M. XXXXXX,
N.D. XXXXXXXXXXX, X.X. XXXXXXXX,
X.XXXXXXX, P.M. XXXXXXX,
A.S. CAIRNS, M.A. XXXXX,
A.M. JUDES, R.A. BLOCK,
X.X. XXXXXXX, R.D. SENIOR,
S.A. ST XXXXX-XXXXXX,
A.R. ASHTON, X.X. XXXX,
A.D. XXX, X.X. XXXXXXXX,
X.X. XXXX, X.X. CORVESOR,
X.X. XXXXXX, X.X. XXXXXX,
X.X. XXXXXXXXX, X. XXXXXXXX,
X.X. XXXXXX, X. XXXXXXXXXX,
X.X. X. XXXXXX, X.X. XXXXXXXX,
X.X. XXXXX, X. XXXXX,
X.X. XXXXXX, M.A. XXXXX,
X.X. XXXXXX, X.X. XXXXXX,
T.D.A. REAY, X.X. XXXXXXX,
X.X. XXXXXXXXXX
THE XXXXX & XXXXXXX EMPLOYEE TRUST
in the presence of:
Witness' signature :
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Witness' name :
Occupation :
Address :
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ANNEX A
The Continuing Partners
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Part A - The Original Continuing Partners
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Xxxxxx Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxx Block
Xxxxxxx Xxxxxxx Xxxxxx
Xxxxxxx Xxxx Xxxxxxx
Xxxxx Xxxxxxxxx Xxxx
Xxxxxx Xxxxx Corvesor
Xxxxxx Xxxxxxx Xxx
Xxx Xxxxxxx
Morfydd Xxx Xxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxx Xxxxxx
Xxxxx Xxxx Xxxxx
Xxxxxxx Xxxx Xxxxxxxx
Xxxxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx Xxxxxx
Xxxxxxx Xxxx Xxxxx
Xxxxxx Xxxxxx Xxxxxx Xxxxxx
Xxxx Xxxx Xxxxx
Xxxxxx Xxxxxxx XxXxxxxx
Xxxxxx Xxxxxxx Xxxx
Xxxxxxx Xxxxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxxxxx Xxxxxxxx Xxxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxxx Xxxxx Parsonage
Xxxx Xxxxx Xxxxxxxx
Xxxxxxx Xxxx Xxxxxx
Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxx Xxxxxxx Senior
Xxxxx Xxxxxx St. Xxxxx-Xxxxxx
Penelope Xxxx Xxxxxxx
Xxxxx Xxxxxxx Wesbroom
Xxxxxxx Xxxx Xxxxxxxx
Part B - The 2002 Partners
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Xxxxx Xxxxxxxxxx
Xxxx Xxxxxxxxx Xxxx Xxxxxx
Xxxxx Xxxxx Lelliott
Xxxx Xxxxxx Lowes
Xxxxxx Xxxxx
Xxxxx Xxxxxxx Xxxxxx
Xxxx Xxxxxxx Xxxxxx
Xxxx Xxxx Xxxxx
Xxxx Xxxxxx Xxxxxx
Xxxxxx Xxx Xxxxxx
Xxxxxx Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxx Xxxx Xxxx
Xxxxxx Xxxxx Xxxxxxx
The Bacon & Xxxxxxx Employee Trust
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