1
EXHIBIT 99.4
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement") is made and entered
into as of July 19, 2000, by and among XXXXXXXXXX.XXX, INC., a Georgia
corporation (the "Company"), OMNICOM GROUP INC., a New York corporation
("Omnicom"), XXXXXXX XXXXX GROUP INC., a Delaware corporation and wholly owned
subsidiary of Omnicom ("BHA"), and ITC HOLDING COMPANY, INC., a Delaware
corporation ("ITC") (Each of Omnicom, BHA and ITC may be referred to
individually as a "Shareholder" and collectively as "Shareholders").
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger,
dated as of April 15, 2000 (as the same may be amended, the "Acquisition
Agreement"), by and among the Company, Resume Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of the Company ("Merger Sub"),
Omnicom, BHA and Career Mosaic, Inc., a wholly owned subsidiary of BHA ("Career
Mosaic"), Career Mosaic will merge with and into Merger Sub (the "Acquisition"),
with the result that each of outstanding shares of common stock of Career Mosaic
will be converted into the right to receive shares of common stock of the
Company (the "Company Common Stock"); and
WHEREAS, the parties have reached certain agreements with
respect to their beneficial ownership of Company Common Stock after consummation
of the Acquisition;
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties hereby agree as follows:
1. Definitions.
(a) "Affiliate" shall have the meaning assigned thereto
in Rule 405, as presently promulgated under the Securities Act.
(b) "beneficially owns" (or comparable variations
thereof) has the meaning set forth in Rule 13d-3 as presently promulgated under
the Exchange Act.
(c) "BHA Slate" shall mean the two persons named as
members of the BHA Slate in Section 3(b) hereof, as may be changed by BHA from
time to time in accordance with Section 3.
(d) "Equity Securities" means Voting Securities,
Convertible Securities and Rights to Purchase Voting Securities.
(e) "Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
2
(f) "Independent Slate" shall mean the three persons
named as members of the Independent Slate in Section 3(b) hereof, as may be
changed by mutual agreement of ITC and BHA from time to time in accordance with
Section 3(d) hereof.
(g) "ITC Slate" shall mean the two persons named as
members of the ITC Slate in Section 3(b) hereof, as may be changed by ITC from
time to time in accordance with Section 3.
(h) "Maximum Voting Percentage" shall mean 30% of the
Voting Power of the Company.
(i) "Person" means any individual, corporation,
partnership, trust, other entity or group (within the meaning of Section
13(d)(3) of the Exchange Act).
(j) "Restricted Group" means (i) any Shareholder, (ii)
any and all Persons directly or indirectly controlled by any Shareholder, (iii)
if such Shareholder is an individual, (a) any member of such Shareholder's
family (including any spouse, parent, sibling, child, grandchild or other lineal
descendant, including adoptive children), (b) the heirs, executors, personal
representatives and administrators of any of the foregoing Persons, (c) any
trust established for the benefit of any of the foregoing Persons and (d) any
charitable foundations established by any of the foregoing Persons, and (iv) any
and all groups (within the meaning of Section 13(d)(3) of the Exchange Act) of
which any Shareholder or any Person directly or indirectly controlled by such
Shareholder is a member, other than any such group not acting for the purpose of
acquiring, holding or beneficially owning Equity Securities.
(k) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(l) "Standstill Period" means the period beginning on the
date of this Agreement and ending on a date five years from the date of this
Agreement.
(m) "Voting Power" means, with respect to any Outstanding
Voting Securities, the highest number of votes that the holders of all such
Outstanding Voting Securities would be entitled to cast for the election of
directors or on any other matter (except to the extent such voting rights are
dependent upon events or default or bankruptcy), assuming, for purposes of this
computation, the conversion or exchange into Voting Securities of Convertible
Securities (whether presently convertible or exchangeable or not) and the
exercise of Rights to Purchase Voting Securities (whether presently exercisable
or not), in either case to the extent that any such action would increase the
number of such votes.
(n) "Voting Securities" means the Company Common Stock
and any other securities of the Company of any kind or class having power
generally to vote for the election of directors; "Convertible Securities" means
securities of the Company which are convertible or exchangeable (whether
presently convertible or exchangeable or
-2-
3
not) into Voting Securities; "Rights to Purchase Voting Securities" means
options, warrants and rights issued by the Company (whether presently
exercisable or not) to purchase Voting Securities or Convertible Securities; and
"Outstanding Voting Securities" means at any time the then issued and
outstanding Voting Securities, Convertible Securities (which shall be counted at
the maximum number of Voting Securities for which they can be converted or
exchanged) and Rights to Purchase Voting Securities (which shall be counted at
the maximum number of Voting Securities for which they can be exercised).
2. Standstill Agreement. Each Restricted Group agrees, during the
Standstill Period, unless specifically invited in writing by the Board of
Directors of the Company, that such Restricted Group will not, either directly
or indirectly through a representative or otherwise, (a) effect or seek, offer
or propose (whether publicly or otherwise) to effect, or cause or participate in
or in any way assist any other person to effect or seek, offer or propose
(whether publicly or otherwise) to effect or participate in (i) any acquisition
of any securities (or beneficial ownership thereof) or assets of the Company or
any of its subsidiaries; (ii) any tender or exchange offer or merger or other
business combination involving the Company or any of its subsidiaries; (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the Company or any of its subsidiaries; or (iv) any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
Exchange Act) or consents to vote any Voting Securities of the Company, (b)
form, join or in any way participate in a "group" (as defined under the Exchange
Act), (c) except by reason of an Affiliate serving on the Board of Directors of
the Company, otherwise act, alone or in concert with others, to seek to control
or influence the management, Board of Directors or policies of the Company, (d)
take any action which might force the Company to make a public announcement
regarding any of the types of matters set forth in (a) above, or (e) enter into
any discussions or arrangements with any third party with respect to any of the
foregoing. Each Restricted Group also agrees during any such period not to
request the Company (or its directors, officers, employees or agents), directly
or indirectly, to amend or waive any provision of this paragraph (including this
sentence); provided, however, that nothing will prohibit a Restricted Group or
member thereof from making a confidential proposal to the Board of Directors
with respect to any of the foregoing provided that the terms thereof are
conditioned upon the maintenance of such confidentiality by the Company.
3. Voting.
(a) Until such time as a Restricted Group beneficially owns
Outstanding Voting Securities representing less than the lower of (1) 10% of the
Voting Power of all Outstanding Voting Securities or (2) 50% of the Voting Power
beneficially owned by such Restricted Group on the date hereof, at each meeting
of shareholders of the Company, each Restricted Group shall vote the Voting
Securities held by such Restricted Group (x) with respect to the election of
directors, in favor of the persons named in the ITC Slate, the BHA Slate and the
Independent Slate, (y) on all proposals of any other shareholder of the Company,
in accordance with the recommendation of the Board of
-3-
4
Directors of the Company, and (z) on all other matters that shall come before
the shareholders of the Company for a vote, in its discretion up to the Maximum
Voting Percentage and, with respect to any Voting Securities held in excess of
the Maximum Voting Percentage, in proportion to how all other Voting Securities
which are not held by such Restricted Group are voted.
(b) For purposes of this Section 3, until subsequently changed as
provided herein, the ITC Slate shall be Xxxxxxxxx X. Xxxxxxxx as a Class II
director and Xxxxxxx X. Xxxxx, III as a Class III director; the BHA Slate shall
be an individual designated by BHA, who may be any officer or director of BHA or
Omnicom or any other person designated by BHA if such person is approved by the
Company (such approval no to be unreasonably withheld or delayed) as a Class II
director and an individual designated by BHA, who may be any officer or director
of BHA or Omnicom or any other person designated by BHA if such person is
approved by the Company (such approval no to be unreasonably withheld or
delayed) as a Class III director; and the Independent Slate shall be Xxxxxx X.
Xxxxxxxxxx, Xx. as a Class I director, Xxxxxx X. Xxxxxxxxx, Xx. as a Class I
director and an individual designated by BHA (who shall have been approved by
the Company, such approval not to be unreasonably withheld or delayed) as a
Class I director;
(c) Each of ITC and BHA may change the ITC Slate and the BHA
Slate, respectively, by written notice to the Board of Directors of the Company
not later than the end of any fiscal year of the Company immediately preceding
the next annual meeting of shareholders at which such director to be replaced
would otherwise stand for election. ITC and BHA jointly may change any member of
the Independent Slate by written notice to the Board of Directors of the Company
not later than the end of any fiscal year of the Company immediately preceding
the next annual meeting of shareholders at which such director to be replaced
would otherwise stand for election.
(d) In the event of any termination, death, disability, removal or
resignation of any director or in the event that either ITC or BHA elects to
change a member of its slate and causes its designee to resign as a director (a
"Former Director"), such vacancy shall be filled as follows: (i) If the Former
Director is a member of the ITC Slate or the BHA Slate, then ITC or BHA, as the
case may be, shall nominate a person to replace the Former Director (a
"Replacement Director") in writing to the Board of Directors; and (ii) if the
Former Director is a member of the Independent Slate, then ITC and BHA jointly
shall agree on a Replacement Director and nominate such Replacement Director to
the Board of Directors. If the Board of Directors shall fail to appoint any such
Replacement Director selected as set forth above to fill the unexpired term of a
Former Director, then such vacancy on the Board of Directors of the Company
shall remain until the next annual meeting of shareholders at which time such
Replacement Director shall be elected to the Board of Directors as a member of
the ITC Slate, the BHA Slate or the Independent Slate, as the case may be.
(e) ITC's right to designate the members of the ITC Slate and the
Independent Slate in Sections 3(b) and 3(d) will terminate on the date the
Restricted Group that
-4-
5
includes ITC beneficially owns Outstanding Voting Securities representing less
than the lower of (i) 10% of the Voting Power of all Outstanding Voting
Securities or (ii) 50% of the Voting Power beneficially owned by such Restricted
Group on the date hereof. BHA's right to designate the members of the BHA Slate
and the Independent Slate in Sections 3(b) and 3(d) will terminate on the date
that Restricted Group that includes BHA beneficially owns Outstanding Voting
Securities representing less than the lower of (i) 10% of the Voting Power of
all Outstanding Voting Securities or (ii) 50% of the Voting Power beneficially
owned by such Restricted Group on the date hereof.
4. Miscellaneous.
(a) Notices.
(i) All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if delivered
by hand, by facsimile transmission, by courier or overnight carrier or by
registered or certified mail, postage prepaid to the parties as follows:
(A) if to the Company, to XxxxXxxxxx.XXX, Inc.,
000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, (000) 000-0000,
Attention: Chief Executive Officer, or at such other address as it may have
furnished in writing to the parties;
(B) if to the Shareholders, at the addresses
listed on Schedule I hereto, or at such other addresses as may have been
furnished the Company in writing.
(ii) Any notice shall be deemed to have been delivered as
of the date so delivered.
(b) Reproduction of Documents. This Agreement and all documents
relating thereto, including, without limitation, any consents, waivers and
modifications which may hereafter be executed may be reproduced by the parties
by any photographic, photostatic, microfilm, microcard, miniature photographic
or other similar process and the parties may destroy any original document so
reproduced. The parties hereto agree and stipulate that any such reproduction
shall be admissible in evidence as the original itself in any judicial or
administrative proceeding (whether or not the original is in existence and
whether or not such reproduction was made in the regular course of business) and
that any enlargement, facsimile or further reproduction of such reproduction
shall likewise be admissible in evidence.
(c) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties.
(d) Entire Agreement; Amendment and Waiver. This Agreement
constitutes the entire understanding of the parties hereto and supersedes all
prior understandings among such parties with respect to the subject matter
hereof. This Agreement may be
-5-
6
amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of the parties.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) Remedies. Each party, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. Each party
agrees that monetary damages would not be adequate compensation for any loss
incurred by reason of a breach by it of the provisions of this Agreement and
hereby agrees to waive the defense in any action for specific performance that a
remedy at law would be adequate.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby, it being intended and understood that all of the rights and
privileges of each party shall be enforceable to the fullest extent permitted by
law.
-6-
7
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------
Name: Xxxx X. Xxxxxx
---------------------------------
Title: Chief Financial Officer
---------------------------------
OMNICOM GROUP INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
---------------------------------
Title:
---------------------------------
XXXXXXX XXXXX GROUP INC.
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
---------------------------------
Title:
---------------------------------
ITC HOLDING COMPANY, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Xxxxxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
-7-
