Exhibit 4.5
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT, dated as of August 23, 2001, among Cross Country,
Inc. (the "ISSUER"), Xxxxxx Xxxxxxx and Xxxx Xxxxxx (each, a "MANAGEMENT
INVESTOR") and the other persons listed on the signature pages hereof under the
heading "Financial Investor," (each a "FINANCIAL INVESTOR").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. DEFINITIONS. Terms defined herein shall have the meaning set
forth on Annex A.
SECTION 2. GENERAL RESTRICTIONS. Until the first to occur of (i) the first
anniversary of the consummation of the Issuer's initial public offering of
initial public shares and (ii) the date of the consummation of the first
registered secondary public offering of Common Shares following the Issuer's
initial public offering, and except for Transfers by a Management Investor to
his Permitted Transferees, each Management Investor and each Permitted
Transferee of such Management Investor agrees not to Transfer, mortgage, pledge,
grant a security interest in or otherwise encumber, any of his Common Shares.
SECTION 3. AGREEMENT TO BE BOUND. No Transfer of Common Shares by a
Management Investor to one of his Permitted Transferees otherwise permitted
pursuant to this Agreement shall be effective unless prior to such Transfer,
such Permitted Transferee shall have executed and delivered to the Issuer an
instrument or instruments in form and substance satisfactory to the other
parties hereto confirming that such Permitted Transferee has agreed to be bound
by the terms of this Agreement in the same manner as the transferor, a copy of
which instrument shall be maintained on file with the Secretary of the Issuer
and shall include the address of such transferee to which notices hereunder
shall be sent.
SECTION 4. MISCELLANEOUS. This Agreement constitutes the entire agreement
and understanding of the parties hereto and thereto in respect of the subject
matter contained herein and therein. This Agreement may be executed in any
number of counterparts, each of which shall be an original with the same effect
as if the signatures thereto and hereto were upon the same instrument. The
invalidity or unenforceability of any provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement in such jurisdiction or the validity, legality or
enforceability of this Agreement, including any such provision, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the xxxxxx extent permitted by law.
SECTION 5. EFFECTIVENESS. This Agreement shall become effective only upon
the consummation of the Issuer's initial public offering pursuant to
Registration No. 333-64914.
If such initial public offering is not consummated, then this Agreement shall
have no force or effect.
SECTION 6. APPLICABLE LAW. This Agreement shall be construed in accordance
with and governed by the laws of the State of Florida, without regard to the
conflicts of law rules of such state.
SECTION 7. SUCCESSORS, ASSIGNS, TRANSFEREES. The provisions of this
Agreement shall be binding upon and accrue to the benefit of the parties hereto
and their respective heirs, executors, administrators, successors and permitted
assigns. Notwithstanding the foregoing, neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by the Issuer or any other party hereto, except (i) as specifically
provided pursuant to the terms hereof and (ii) that any Financial Investor may
assign any of its rights, remedies, obligations or liabilities hereunder to (or
exercise any of the foregoing jointly with) an Affiliate of such Financial
Investor without the consent of the other parties hereto,
SECTION 8. AMENDMENTS; WAIVERS. No failure or delay on the part of any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof. The rights and remedies herein provided shall be cumulative and
not exclusive of any rights or remedies provided by law. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed by the parties hereto, or in the case of a waiver, by
the party against whom the waiver is to be effective.
SECTION 9. REMEDIES. The parties hereto acknowledge and agree that in the
event of any breach of this Agreement, the parties would be irreparably harmed
and could not be made whole by monetary damages. Each party hereto accordingly
agrees (i) not to assert by way of defense or otherwise that a remedy at law
would be adequate, and (ii) that the parties agree, in addition to any other
remedy to which they may be entitled, that the remedy of specific performance of
this Agreement is appropriate in any action in court.
SECTION 10. TERMINATION. This Agreement shall terminate as to any
Management Investor upon the earlier to occur of (i) the sale of all of the
Common Shares owned by such Management Investor pursuant to the terms hereof,
(ii) the date on which the Financial Investors cease to hold any Common Shares;
PROVIDED that nothing in this Section shall relieve any such Management
Investor(s) of liability for breach prior to such termination of any of his
covenants or agreements contained in this Agreement, or (iii) the date such
Management Investor ceases to be an employee of the Issuer.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
CROSS COUNTRY, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman
Financial Investors: CHARTERHOUSE EQUITY PARTNERS III, L.P.
By: CHUSA Equity Investors III, L.P.,
general partner
By: Charterhouse Equity III, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CHEF NOMINEES LIMITED
By: Charterhouse Group International, Inc.,
Attorney-in-Fact
By: /s/ Xxxxxx X. Xxxxxx
-------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
XXXXXX XXXXXXX XXXX XXXXXX
CAPITAL PARTNERS IV, L.P.
By: MSDW Capital Partners IV, LLC,
as General Partner
By: MSDW CAPITAL PARTNERS IV, INC.,
as Member
By: /s/ Xxxxx Xxxxxxx
-----------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
MSDW IV 892 INVESTORS, L.P.
By: MSDW Capital Partners IV, LLC,
as General Partner
By: MSDW CAPITAL PARTNERS IV, INC.,
as Member
By: /s/ Xxxxx Xxxxxxx
--------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX XXXX XXXXXX
CAPITAL INVESTORS IV, L.P.
By: MSDW Capital Partners IV, LLC,
as General Partner
By: MSDW CAPITAL PARTNERS IV, INC.,
as Member
By: /s/ Xxxxx Bechte
----------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX VENTURE
PARTNERS III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III, L.L.C.,
its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
XXXXXX XXXXXXX VENTURE
INVESTORS III, L.P.
By: Xxxxxx Xxxxxxx Venture Investors III,
L.L.C., its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Xxxxxxx Xxxxx
--------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
THE XXXXXX XXXXXXX VENTURE
PARTNERS ENTREPRENEUR FUND, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III,
L.L.C., its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III, Inc.,
its Institutional Managing Member
By: /s/ Xxxxxxx Xxxxx
-----------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
Management Investors: By:
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President and Chief Executive
Officer
By:
------------------------------------
Name: Xxxx Xxxxxx
Title: Chief Financial Officer
ANNEX A
The following terms, as used herein, have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person, directly or
indirectly, controlling, controlled by, or under common control with, such
Person.
"COMMON SHARES" means shares of the common stock of the Issuer, par value
$0.0001 per share.
"PERMITTED TRANSFEREE" means: (i) with respect to any party that is an
individual, (x) the spouse, issue, grandparents, grandchildren, aunts, uncles,
nieces and nephews (in each case, whether natural or adopted) of such party, (y)
a Person to whom Common Shares are Transferred by such Holder by will or the
laws of descent and distribution or (z) a trust established for the exclusive
benefit of such party or his Permitted Transferees and for no other Person; and
(ii) with respect to any other party, any Affiliate of such Holder.
"PERSON" means an individual, partnership, corporation, limited liability
company, trust, joint stock company, association, joint venture, or any other
entity or organization.
"TRANSFER" means, with respect to any security, (i) when used as a verb, to
sell, assign, dispose of, exchange or otherwise transfer such security or any
interest therein, whether directly or indirectly, or agree or commit to do any
of the foregoing and (ii) when used as a noun, a direct or indirect sale,
assignment, disposition, exchange or other transfer or any agreement or
commitment to do any of the foregoing.
