Exhibit 10.5
[Xxxxxx Xxxxx & Company Letterhead]
Xxxxxx X. Xxxxxxxxxxxx
Vice President
and General Counsel
Suite 000
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000-1129
August 23, 2000
RE: SHARES OF XXXXXX XXXXX & COMPANY HOLDINGS
Dear Fellow Shareholder:
We are asking that you enter into this letter agreement in consideration for the
agreement of the several underwriters, for which Deutsche Bank Securities Inc.
intends to act as representative, to underwrite a proposed public offering
("IPO" or "offering") of Class A common stock of Xxxxxx Xxxxx & Company
Holdings, our newly-created Delaware holding company, as described in the proxy
statement transmitted to you on May 24, 2000 and as contemplated by the
registration statement filed with the Securities and Exchange Commission on Form
S-3, as amended. By signing below, you hereby agree that you will not, directly
or indirectly, without our prior written consent, "transfer" Xxxxxx Xxxxx &
Company Holdings shares during the following periods, the last of which will end
four years after the public offering date: o 25% of the aggregate Xxxxxx Xxxxx &
Company Holdings shares which you own immediately following the IPO may be
transferred beginning one year after the public offering date;
o 25% of the aggregate Xxxxxx Xxxxx & Company Holdings shares which you
own immediately following the IPO may be transferred beginning two
years after the public offering date;
o 25% of the aggregate Xxxxxx Xxxxx & Company Holdings shares which you
own immediately following the IPO may be transferred beginning three
years after the public offering date; and
o 25% of the aggregate Xxxxxx Xxxxx & Company Holdings shares which you
own immediately following the IPO may be transferred beginning four
years after the public offering date.
As you know, at the time of the IPO your shares of Xxxxxx Xxxxx & Company stock
will be converted into Class B-1 and Class B-2 shares of Xxxxxx Xxxxx & Company
Holdings. The Class B shares are subject to restrictions contained in the
Certificate of Incorporation of Xxxxxx Xxxxx & Company Holdings, as described in
the proxy statement which was provided to you in May 24, 2000. Under the
Certificate of Incorporation you may only sell such shares which have been duly
converted to Class A shares on the first and second anniversaries of the IPO,
respectively. Any sales of shares permitted by this letter agreement remain
subject to the requirements contained in the Certificate of Incorporation,
including those related to the conversion of Class B shares into Class A shares.
By signing below, you also authorize us during the foregoing periods to cause
the company's designated transfer agent to decline to transfer and to note stop
transfer restrictions on our transfer books and records with respect to any such
shares. In the case of any shares for which you are the beneficial but not the
record holder, you agree to cause the record holder to cause the company's
designated transfer agent to decline to transfer and to note stop transfer
restrictions on the books and records with respect to such shares.
The term "transfer" includes selling, offering or agreeing to sell, granting any
option for the sale of, pledging, making any short sale or maintaining any short
position, establishing or maintaining a "put equivalent position" (within the
meaning of
August 23, 2000
Page 2
the rules under the Securities Exchange Act of 1934, as amended), entering into
any swap, derivative transaction or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of the stock
(whether any such transaction is to be settled by delivery of shares, other
securities, cash or other consideration) or otherwise disposing of, such stock
(or any securities convertible into, exercisable for or exchangeable for such
shares) or interest in the shares.
Despite the foregoing restrictions, if you are an individual, you may transfer
shares (or any securities convertible into, exercisable for, or exchangeable for
such shares) in accordance with the provisions of the Xxxxxx Xxxxx & Company
Holdings Certificate of Incorporation governing "Permitted Transferees," or to
your immediate family, or to a trust the beneficiaries of which are exclusively
you and/or a member or members of your immediate family (for purposes of this
paragraph, "immediate family" shall mean spouse, lineal descendant, father,
mother, brother or sister of the transferor); PROVIDED in any such case it is a
condition to the transfer that (i) each transferee execute an agreement stating
that the transferee is receiving and holding the shares (or any securities
convertible into, exercisable for, or exchangeable for such shares) subject to
the provisions of this letter agreement, and that there will be no further
transfer of the shares (or any securities convertible into, exercisable for, or
exchangeable for such shares) except in accordance with this letter agreement
and (ii) each transferee certifies in writing to us that such transferee is in
compliance with the terms of this letter agreement as if such transferee had
been bound as of the original date of this letter agreement.
The restrictions contained in this letter agreement will terminate immediately
upon the involuntary termination of your employment, your retirement, your
death, or in the event of a transaction involving a sale of all or substantially
all of the assets or stock of Xxxxxx Xxxxx & Company Holdings; PROVIDED HOWEVER,
that notwithstanding the occurrence of any of the events enumerated in this
paragraph, the restrictions contained in the Certificate of Incorporation,
including those related to the conversion of Class B shares into Class A shares,
shall remain applicable to all shares.
This letter agreement shall be governed by the laws of the state of New York.
You hereby represent and warrant that you have full power and authority to enter
into this letter agreement, and that, upon request, you will execute any
additional documents necessary in connection with its enforcement. Any of your
obligations under this letter agreement will be binding upon you successors and
assigns.
Very truly yours,
XXXXXX XXXXX & COMPANY XXXXXX XXXXX & COMPANY HOLDINGS
By: _______________________ By: _______________________
Xxxxxx X. Xxxxxxxxxxxx Xxxxxx X. Xxxxxxxxxxxx
Secretary Secretary
BY MY SIGNATURE BELOW, I XXXXXX AGREE TO BE BOUND BY THE TERMS OF THIS LETTER
AGREEMENT.
SIGNATURE:
_________________________________ Date: _______________________
[Individual Stockholder]
PRINT NAME:
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