EXHIBIT 4(c)
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement (this "Agreement") is
made as of December 6, 2005 (this "Agreement") by and among Xxxx X. Xxxxxxxxxx
and Xxxxx X. Xxxxxxxxxx (together with any transferee to whom they transfer
Shares, as hereinafter defined, to the extent of the Shares so transferred,
collectively, the "Xxxxxxxxxx Stockholders"), Xxxxxxx X. Xxxxxxx and Xxxxxxx X.
Xxxxxxx (the "Xxxxxxx Family" and together with any transferees to whom any of
them transfers Shares to the extent of the Shares so transferred, collectively,
the "Xxxxxxx Family Stockholders"). Each of the Xxxxxxxxxx Stockholders with the
Xxxxxxx Family Stockholders are individually referred to as a "Stockholder" and
collectively referred to as the "Stockholders".
W I T N E S S E T H
WHEREAS, Xxxx X. Xxxxxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
entered into a Stockholders Agreement dated as of July 22, 2004 (the "Original
Stockholders Agreement"), which was amended on December 28, 2004 (as so amended
to date, the "Existing Stockholders Agreement"), regarding the voting of the
shares of Common Stock, par value of $.025 per share of DRYCLEAN USA, Inc., a
Delaware corporation (the "Company"), owned of record by them; and
WHEREAS, since the date of the Original Stockholders Agreement, Xxxx X
Xxxxxxxxxx has transferred 250,000 of such shares to each of Xxxxxxx X. Xxxxxxx
and Xxxxxxx X. Xxxxxxx and proposes to transfer to each of Xxxxxxx X. Xxxxxxx
and Xxxxxxx X. Xxxxxxx an additional 258,620 of such shares in consideration of
the satisfaction of the obligations incurred by Xxxx X. Xxxxxxxxxx in connection
with the acquisition of such shares; and
WHEREAS, Xxxx X. Xxxxxxxxxx proposes to transfer 482,760 of such shares
to Xxxxx X. Xxxxxxxxxx; and
WHEREAS, pursuant to the Existing Stockholders Agreement, Xxxxx X.
Xxxxxxxxxx, as a Xxxxxxxxxx Stockholder, is to become bound by the terms and
provisions of the Existing Stockholders Agreement; and
WHEREAS, it is a condition to the acceptance by each of Xxxxxxx X.
Xxxxxxx and Xxxxxxx X. Xxxxxxx of such 258,620 shares, in consideration for the
satisfaction of the obligations incurred by Xxxx X. Xxxxxxxxxx to them, that the
provisions regarding the voting obligations under the Existing Stockholders
Agreement be amended; and
WHEREAS, as a result of the transfers heretofore made and proposed to
be made, Xxxxxxx X. Xxxxxxx, Xxxxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxxxx will own
of record 2,019,097, 2,019,097 and 482,760 Shares, respectively (collectively
the "Shares"), which Shares shall be subject to this Agreement; and
WHEREAS, the Stockholders believe it is in their mutual best interests
to vote together with respect to the election of directors to serve as the
Company's Board of Directors
(the "Board") in the manner set forth in this Agreement and to effectuate the
other purposes of this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
representations, covenants and agreements set forth herein, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Stockholders hereby agree as follows:
1. Agreement to be Bound. Xxxxx X. Xxxxxxxxxx agrees to become a party
to this Agreement and shall be fully bound by, and subject to, all of the
covenants, terms and conditions of this Agreement, shall be entitled to all of
the benefits of this Agreement and shall be deemed a "Xxxxxxxxxx Stockholder"
for all purposes of this Agreement.
2. Confirmation of Status of Certain Shares. The parties confirm that,
for all purposes of this Agreement, the Shares heretofore transferred and the
Shares proposed to be transferred to Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx
by Xxxx X. Xxxxxxxxxx are and shall be treated (together with the other shares
owned of record by them) as Shares owned by the Xxxxxxx Family Stockholders and
the Shares being transferred to Xxxxx X. Xxxxxxxxxx by Xxxx X. Xxxxxxxxxx shall
be treated as Shares owned by the Xxxxxxxxxx Family Stockholders; and
3. Agreement to Vote. Except to the extent otherwise agreed from time
to time by each of (a) the holders of a majority of the Shares held by the
Xxxxxxxxxx Stockholders and (b) the holders of a majority of the Shares held by
the Xxxxxxx Family Stockholders, each Stockholder covenants and agrees to vote
(in person or by proxy), at all meetings of the stockholders of the Company
however called and with regard to actions proposed to be taken by written
consent of the stockholders of the Company at any time during the term of this
Agreement with regard to the election of directors, all of the Shares in favor
of the election as directors of the Company of such designees as may be selected
of the Xxxxxxx Family Stockholders. Should any designee of the Xxxxxxx Family
Stockholders resign, determine not to seek re-election to the Board, be removed
from office, die, become incapacitated or otherwise cease to serve on the Board,
and should such designee not be replaced by the Board with a designee
recommended to the Board by the Xxxxxxx Family Stockholders, or should such
designee's term of office expire, the Stockholders agree to take all such action
as may be permitted under the Company's Certificate of Incorporation or By-laws
and laws of its state of incorporation to promptly call a special or other
meeting of stockholders of the Company and vote, or execute a written consent,
to elect as the successor to such former director a person designated by the
holders of a majority of the Shares held by the Xxxxxxx Family Stockholders.
The ability of the Xxxxxxx Family Stockholders to designate one or more
directors is a right and not an obligation and such right may be exercised at
any time during the term of this Agreement.
For avoidance of doubt, it is agreed and understood that any shares of
Common Stock of the Company (other than the Shares) which a party hereto owns in
street name (or may in the future acquire of record or in street name) shall not
(unless agreed to in writing by the party to be charged) be subject to this
Agreement.
-2-
4. Stockholders' Representations. Each Stockholder represents and
warrants to each other Stockholder that, immediately following the transfer of
the Shares as reflected in the preambles to this Agreement: (a) the Stockholder
will be the sole record and beneficial owner, with sole voting power, of the
Shares owned as reflected in the fifth preamble to this Agreement; (b) the
Stockholder possesses full power and authority to enter into this Agreement and
carry out such Stockholder's obligations under this Agreement; (c) the execution
and delivery of this Agreement does not, and carrying out such Stockholder's
obligations under this Agreement will not, conflict with or result in the
violation of any agreement, judgment, decree, law or regulation applicable to
the Stockholder; and (d) other than this Agreement, there are no outstanding
rights or obligations granted by the Stockholder relating to the ownership,
voting or disposition of any of the Shares.
5. Parties Bound. This Agreement shall inure to the benefit of, and be
binding upon, the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns. Nothing herein shall be
construed as otherwise limiting a Stockholder's right to transfer his, her or
its Shares; however it is a condition to any transfer of Shares by a Xxxxxxxxxx
Stockholder that the transferee join in this Agreement and agree to be bound
truly as a Xxxxxxxxxx Stockholder. All rights and authority granted herein by
each Stockholder shall survive the death or incapacity of the Stockholder.
6. Legend. The stock certificates evidencing Shares held by a
Stockholder (and any Shares issued to transferees thereof to whom this Agreement
applies) shall, so long as this Agreement pertains thereto, bear the following
legend:
"The shares represented by this certificate are subject to the
terms and conditions of a Stockholders Agreement dated as of
July 22, 2004 by and among certain stockholders of the Company
(as same has been, and may be, amended, modified, or restated
from time to time), a copy of which is on file at the
principal office of the Company."
7. Term. This Agreement became effective on July 22, 2004 and shall
terminate on the earliest to occur of: (i) the date agreed to in writing by the
owners of record of a majority of the Shares, and (ii) the liquidation of the
Company or the Company's merger with, or sale of substantially all of its assets
to, or another change in control transaction with, another entity that is
approved by the Board of Directors, following which transaction or series of
transactions the stockholders of the Company immediately prior to the first of
such transactions do not own more than 50% of the outstanding voting power of
the resulting entity at the effective date of the last of such transactions.
8. Availability of Equitable Remedies. The Stockholders acknowledge
that a breach of the provisions of this Agreement by any Stockholder would cause
irrevocable injury to the other Stockholders and could not adequately be
compensated by money damages. Accordingly, a Stockholder shall be entitled, in
addition to any other right or remedy available to him, her or it, to an
injunction restraining a breach or a threatened breach of this Agreement and to
specific performance of any such provision of this Agreement, in either case
without bond or other security, and the Stockholders will not take any action,
directly or indirectly, in opposition
-3-
to the moving party seeking such relief on the grounds that any other remedy or
relief is available at law or in equity.
9. Governing Law, Consent to Service of Process, etc. This Agreement
shall be governed and interpreted in accordance with the laws of the State of
Delaware, without regard to the conflict of laws principles thereof that would
defer to the laws of another jurisdiction or the actual domiciles of the parties
hereto.).
The parties hereby consent and agree that the Circuit Court of the
State of Florida for the County of Miami-Dade and the United States District
Court for the Southern District of Florida each shall have personal jurisdiction
and proper venue with respect to any dispute between them under this Agreement.
No party shall raise, and each party hereby expressly waives, any objection or
defense to any such jurisdiction and venue as an inconvenient forum. Each party
further agrees that any action or proceeding brought under this Agreement shall
be brought only in the Circuit Court of the State of Florida for the County of
Miami-Dade or the United States District Court for the Southern District of
Florida. Each party hereby waives personal service of any summons, complaint or
other process, which may be delivered by any of the means permitted for notices
under this Agreement.
In any action, suit or proceeding in any jurisdiction brought with
respect to this Agreement, each party waives trial by jury.
10. Notices. All notices, requests, demands and other communications
which are required to be or which may be given under this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in person,
the scheduled business day of delivery if sent by Express Mail, Federal Express,
other overnight delivery service or five business days after mailed if mailed by
certified or registered first class mail return receipt requested, in any such
case with delivery charges prepaid, to the party to whom the same is so given or
made, at the following addresses (or such other address as shall be provided by
notice given in accordance with this Section 10 by the party whose address is to
be changed):
(a) If to a member of the Xxxxxxx Family:
c/x Xxxxxxx-Atlantic Corp.
000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
(b) If to a member of the Xxxxxxxxxx Stockholders:
x/x Xxxxx X. Xxxxxxxxxx
0000 X.X. 000 Xxxxxx
Xxxxxxxx Xxxxx, Xxxxxxx 00000
11. Amendments. This Agreement and any term hereof may not be amended,
changed, discharged or terminated except by an instrument in writing signed by
the original signatories of this Amended and Restated Stockholders Agreement who
continues to be a Stockholder.
-4-
12. Waivers. The failure of a party to insist upon strict adherence to
any term or provision of this Agreement on any occasion shall not be considered
a waiver, or deprive the party of the right thereafter to insist upon strict
adherence to that term or provision or any other term or provision of this
Agreement. Any waiver must be in writing and be duly executed by the party to be
charged.
13. Counterparts. This Agreement may be executed in two or more
counterparts and by the different parties hereto on separate counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14. Headings. The headings in this Agreement are for purposes of
reference only and shall not be considered in construing this Agreement.
15. Entire Agreement. This Agreement contains the entire understanding
of the parties herein, and supersedes all prior discussions and understandings
of the parties hereto, respecting the subject matter hereof.
16. Severability. If any provision of this Agreement or the application
of any provision to any person or circumstance shall be held invalid, the
remainder of this Agreement, or the application of that provision to persons or
circumstances other than those which it is held invalid, shall not be affected
thereby.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement.
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxxxxx
---------------------------
Xxxx X. Xxxxxxxxxx
/s/ Xxxxx X. Xxxxxxxxxx
---------------------------
Xxxxx X. Xxxxxxxxxx
-5-
