Exhibit 10.1
Form of Stockholders Agreement
Stockholders Agreement (this "Agreement") dated as of ______
__, 1997 among Xxxxx River Corporation of Virginia, a Virginia corporation (the
"Company"), Xxxxxx Xxxxxxx Group Inc. ("MS Group"), Xxxxxx Xxxxxxx Leveraged
Equity Fund II, L.P. ("MSLEF II") and Fort Xxxxxx Equity Investors II, L.P. ("XX
XX" and, collectively with MSLEF II and MS Group, the "Stockholders").
WHEREAS, Xxxxx River Delaware, Inc., a Delaware corporation
and a wholly owned subsidiary of the Company ("Merger Sub"), will be merged (the
"Merger") with and into Fort Xxxxxx Corporation, a Delaware corporation ("Fort
Xxxxxx"), pursuant to an Agreement and Plan of Merger by and among the Company,
Merger Sub and Fort Xxxxxx dated as of May 4, 1997 (the "Merger Agreement");
WHEREAS, the Stockholders and certain of their affiliates will
receive the number of shares of common stock, par value $0.10 per share, of the
Company ("Common Stock"), set forth on Schedule I to this Agreement (the
"Shares") pursuant to the Merger; and
WHEREAS, it is a condition to the obligations of the parties
to the Merger Agreement that this Agreement be executed by the Company
concurrently with the closing under the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereto hereby
agree as follows:
Section 1. (a) Appointment of Directors. Promptly upon the
execution of this Agreement, the Board of Directors of the Company (the "Board")
shall take all necessary action to increase the size of the Board to fifteen
(15) and to appoint the four (4) persons listed on Schedule 1.05(c) to the
Merger Agreement (which persons shall be reasonably satisfactory to the
Company) as directors on the Board. So long as the Stockholders and their
affiliates other than Xxxxxx Xxxxxxx & Co. Incorporated ("MS&Co.") beneficially
own the requisite number of Shares pursuant to Section 1(b) or (c), as
applicable, the Company shall cause the person(s) designated pursuant to Section
1(b) or (c) to be appointed or nominated for election as directors on the Board
at each annual meeting thereafter and at each special meeting, if any, at which
directors are being elected.
(b) From and after the effective time of the Merger and until
the date on which the Stockholders and their affiliates other than MS&Co. no
longer hold at least five million of the then outstanding Shares (the "Upper
Director Threshold") MS Group shall be entitled to designate two (2) persons
reasonably satisfactory to the Company to be nominated for election as directors
on the Board; provided, however, that (i) so long as MSLEF II owns any Shares,
MSLEF II shall be entitled to designate one (1) of such persons to be nominated
as a director on the Board and (ii) so long as XX XX owns any Shares, XX XX
shall be entitled to designate one (1) of such persons to be nominated as a
director on the Board and provided, further, that any such nominee of MSLEF II
or XX XX, as the case may be, shall be reasonably satisfactory to the Company.
(c) From and after the effective time of the Merger and until
the date on which the Stockholders and their affiliates other than MS&Co. no
longer hold at least two million of the then outstanding Shares (the "Lower
Director Threshold" and, together with the Upper Director Threshold, the
"Director Thresholds") MS Group shall be entitled to designate one (1) person
reasonably satisfactory to the Company to be nominated for election as a
director on the Board; provided, however, that (i) so long as either MSLEF II or
XX XX (but not both) owns any Shares, such entity shall be entitled to designate
such person to be nominated for election as a director on the Board and (ii) if
both MSLEF II and XX XX own any Shares, MSLEF II shall have the right provided
for in clause (i) above.
(d) None of MS Group, MSLEF II and XX XX shall be entitled to
designate any nominee for election as a director on the Board from and after the
time when the Stockholders and their affiliates other than MS&Co. own less than
two million of the then outstanding Shares.
(e) If the number of outstanding shares of Common Stock shall
change into a different number of shares or shall be designated as a different
class, by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares, the number or class
of shares required for purposes of the Director Thresholds shall be
correspondingly adjusted to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of shares. No
shares of Common Stock acquired after the effective time of the Merger, other
than shares acquired (i) with respect to a Stockholder or an affiliate of a
Stockholder
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which is a limited partnership, pursuant to a distribution or transfer to the
partners of such a Stockholder or such an affiliate of a Stockholder pursuant to
or otherwise in accordance with its Agreement of Limited Partnership or (ii)
pursuant to any stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares, shall be included for purposes of
determining whether the Director Thresholds are met.
Section 2. Certain Notices. Each of MSLEF II and XX XX shall,
within ten business days, notify the Company if it no longer owns any Shares of
Common Stock and MS Group shall, within ten business days, notify the Company if
the Stockholders and their affiliates other than MS&Co. own less than the number
of Shares required for purposes of either of the Director Thresholds.
Section 3. Miscellaneous. This Agreement shall survive
indefinitely and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York. If any provision of this Agreement is rendered void, invalid or
unenforceable by any court of law for any reason, such invalidity or
unenforceability shall not void or render invalid or unenforceable any other
provision of this Agreement. This Agreement may be changed, waived, discharged
or terminated only with the written consent of each party hereto. This Agreement
may be executed in one or more counterparts, and with counterpart signature
pages, each of which shall be an original, but all of which together shall
constitute one and the same Agreement.
Section 4. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or mailed by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) if to any of the Stockholders, to:
[ ]
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
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(b) if to the Company, to
Xxxxx River Corporation of Virginia
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, XX
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
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IN WITNESS WHEREOF, the parties hereto caused this Agreement
to be duly executed by their respective authorized signatories thereunto duly
authorized as of the date first above written.
XXXXX RIVER CORPORATION OF VIRGINIA
By ________________________________
Name:
Title:
XXXXXX XXXXXXX GROUP INC.
By ________________________________
Name:
Title:
XXXXXX XXXXXXX LEVERAGED EQUITY
FUND II, L.P.
By ________________________________
Name:
Title:
FORT XXXXXX EQUITY INVESTORS II, L.P.
By ________________________________
Name:
Title:
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Schedule I
Ownership of Shares
As of The Effective Time
Xxxxxx Xxxxxxx Group Inc. ___________________
MSLEF II ___________________
XX XX ___________________
[other affiliates] ___________________
