Conformed Copy
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Exhibit No. 10.1
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of May 19, 1997 (the "Agreement"),
between the undersigned holder (the "Holder") of shares of the common stock,
$0.0001 par value (the "Company Common Stock"), of Renaissance Solutions, Inc.,
a Delaware corporation (the "Company"), and The Registry, Inc., a Massachusetts
corporation ("Parent").
RECITALS
The Company, Parent and Rain Acquisition Corp., a Delaware corporation
and a wholly owned subsidiary of Parent ("Merger Sub"), propose to enter into an
Agreement and Plan of Merger dated the date hereof (the "Merger Agreement";
capitalized terms not otherwise defined herein being used herein as therein
defined), pursuant to which Merger Sub would be merged (the "Merger") with and
into the Company, and each outstanding share of Company Common Stock would be
converted into the right to receive shares ("Parent Shares") of the common
stock, no par value, of Parent;
In order to induce Parent to enter into the Merger Agreement, and at
the request of Parent, the Holder has agreed, to enter into this Agreement;
Prior to the date hereof, Parent, Merger Sub and the Holder had no
agreement, arrangement or understanding (as defined in Section 203 of the
Delaware General Corporation Law (the "DGCL")) for the purpose of acquiring,
holding, voting or disposing of shares of Company Common Stock; and
In consideration for the agreements contained herein and in the Merger
Agreement, prior to the date hereof, and prior to the time at and date on which
each of Parent and Merger Sub became an "interested stockholder" for purposes of
Section 203 of the DGCL, the board of the directors of the Company has approved
this Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. Representations and Warranties of Holder. The Holder
represents and warrants to Parent as follows:
(a) Ownership of Securities. The Holder is the record and
beneficial owner of the number of shares of Company Common Stock (together with
any shares of Company Common Stock hereafter acquired by the Holder, the
"Subject Shares") and the number and kind of other securities of the Company
(together with the Subject Shares and any other securities of the Company
hereafter acquired by the Holder, the "Subject Securities") set forth on the
signature page to this Agreement. The Holder has sole voting power and sole
power to issue instructions with respect to the voting of the Subject
Securities, sole power of disposition, sole power of exercise or conversion and
the sole power to demand appraisal right, in each case with respect to all of
the Subject Securities.
(b) Power; Binding Agreement. The Holder has the legal capacity,
power and authority to enter into and perform all of the Holder's obligations
under this Agreement. The execution, delivery and performance of this Agreement
by the Holder will not violate any other agreement to which such Holder is a
party including, without limitation, any trust agreement, voting agreement,
stockholder's agreement or voting trust. This Agreement has been duly and
validly executed and delivered by the Holder and constitutes a valid and binding
agreement of such Holder, enforceable against the Holder in accordance with its
terms. If the Holder is married and the Subject Securities constitute community
property, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, the Holder's spouse,
enforceable against such person in accordance with its terms.
(c) No Conflicts. Except for filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, if applicable, no filing with,
and no permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this Agreement by the
Holder and the consummation by the Holder of the transactions contemplated
hereby and neither the execution and delivery of this Agreement by the Holder
nor the consummation by the Holder of the transactions contemplated hereby nor
compliance by the Holder with any of the provisions hereof shall conflict with
or result in any breach of any applicable partnership or other organizational
documents applicable to the Holder, result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third-party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which the Holder is a party or by which the Holder's properties or
assets may be bound or violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to the Holder or any of the
Holder's properties or assets.
(d) No Liens. The Subject Securities are now and at all times
during the term hereof will be held by the Holder, or by a nominee or custodian
for the benefit of the Holder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any encumbrances arising
hereunder.
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(e) No Plan or Intention. The Holder has no present plan or
intention (a "Plan") to engage in a sale, exchange, transfer, distribution,
pledge, disposition, a transaction to reduce the risk of loss (by short sale or
otherwise) or any other transaction which would result in a direct or indirect
disposition (a "Sale") of, or an interest in, Parent Shares which would have an
aggregate fair market value, as of the Effective Time of the Merger, in excess
of fifty percent (50%) of the aggregate fair market value, immediately prior to
the Merger, of all outstanding shares of the Company Common Stock held by the
Holder immediately prior to the Merger. For purposes of this representation,
shares of Company Common Stock (or the portion thereof) with respect to which a
Sale occurs prior to the Merger shall be considered shares of outstanding
Company Common Stock exchanged for Parent Shares in the Merger and then disposed
of pursuant to a Plan. The Holder acknowledges that this representation is being
given to enable counsel to opine that the Merger constitutes a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code and further
recognizes that significant adverse tax consequences may result if such
representation is not true. The Holder understands and agrees that, in
connection with the Merger, such Holder will be required to restate the
foregoing representation on or about the Effective Time of the Merger.
(f) No Brokers. Except as provided in the Merger Agreement, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the transactions contemplated by the
Merger Agreement based upon arrangements made by or on behalf of the Holder.
2. Agreement to Vote Shares. At every meeting of the
stockholders of the Company called with respect to any of the following, and at
every adjournment thereof, and on every action or approval by written consent of
the stockholders of the Company with respect to any of the following, the Holder
shall vote all or cause to be voted the Subject Securities that he beneficially
owns on the record date of any such vote in favor of the Merger, the adoption of
the Merger Agreement and the approval of the terms thereof.
3. Proxy. THE STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS MERGER
SUB AND THE PRESIDENT OF MERGER SUB AND THE TREASURER OF MERGER SUB, IN THEIR
RESPECTIVE CAPACITIES AS OFFICERS OF MERGER SUB, AND ANY INDIVIDUAL WHO SHALL
HEREAFTER SUCCEED TO ANY SUCH OFFICE OF MERGER SUB, AND ANY OTHER DESIGNEE OF
MERGER SUB, AND EACH OF THEM INDIVIDUALLY, THE STOCKHOLDER'S PROXY AND ATTORNEY-
IN-FACT (WITH FULL POWER OF SUBSTITUTION) TO VOTE OR ACT BY WRITTEN CONSENT WITH
RESPECT TO THE SUBJECT SECURITIES SOLELY WITH RESPECT TO THE MATTERS IN AND
SOLELY IN ACCORDANCE WITH, SECTION 2 HEREOF. THIS PROXY IS COUPLED WITH AN
INTEREST AND SHALL BE IRREVOCABLE, AND THE HOLDER WILL TAKE SUCH FURTHER ACTION
OR EXECUTE SUCH OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT
OF THIS PROXY AND HEREBY
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REVOKES ANY PROXY PREVIOUSLY GRANTED BY HIM WITH RESPECT TO THE SUBJECT
SECURITIES.
4. Covenants of the Holder. The Holder hereby agrees and
covenants that:
(a) No Solicitation. The Holder, solely in his capacity as a
stockholder of the Company, shall not, directly or indirectly, solicit
(including by way of furnishing information) or respond to any inquiries or the
making of any proposal by any person or entity (other than Parent or any
affiliate of Parent) with respect to the Company that constitutes or could
reasonably be expected to lead to an Acquisition Proposal. If the Holder
receives any such inquiry or proposal, then he shall promptly inform Parent of
the terms and conditions, if any, of such inquiry or proposal and the identity
of the person making it. The Holder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any of the foregoing. The restrictions and
covenants contained in this Section 4(a) shall apply to the Holder only in his
capacity as a stockholder, and not to the Holder in his capacity as a director
or officer of the Company.
(b) Restriction on Transfer, Proxies and Noninterference. The
Holder shall not, directly or indirectly: (i) except pursuant to the terms of
the Merger Agreement, offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for sale,
sale, transfer, tender, pledge, encumbrance, assignment or other disposition of,
any or all of the Holder's Subject Securities; (ii) except as contemplated
hereby, grant any proxies or powers of attorney, deposit any Subject Shares into
a voting trust or enter into a voting agreement with respect to any Subject
Shares; or (iii) take any action that would make any representation or warranty
contained herein untrue or incorrect or have the effect of preventing or
disabling the Holder from performing his obligations under this Agreement.
Holder agrees within three (3) business days of the date of this Agreement to
cause to be affixed a legend on each certificate representing Subject Securities
the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY
BE TRANSFERRED ONLY IN COMPLIANCE WITH THE CONDITIONS
SPECIFIED IN THE STOCKHOLDER AGREEMENT, DATED AS OF
MAY 19, 1997, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE ISSUER."
(c) Pooling Restrictions. From and after 30 days prior to the
Effective Time of the Merger, the Holder shall not engage in any Sale of
securities of the Company or Parent until such time (the "Publication Time") as
Parent has published financial results covering at least 30 days of combined
operations of Parent and the Company after the
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Effective Time of the Merger. The Holder understands that the certificate(s)
representing the Parent Shares received by the Holder in the Merger will be
placed on the "stop transfer list" maintained by Parent's transfer agent and
will remain so listed until the Publication Time, and that there will be placed
on the certificate(s) representing the Parent Shares, or any certificate(s)
delivered in substitution therefor, a legend stating in substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE
MAY BE TRANSFERRED ONLY IN COMPLIANCE WITH THE
CONDITIONS SPECIFIED IN THE STOCKHOLDER
AGREEMENT, DATED AS OF MAY 19, 1997, A COPY OF
WHICH IS ON FILE WITH THE CLERK OF THE ISSUER.
5. Agreements and Covenants of Parent.
(a) Publication of Financial Results. Parent hereby agrees and
covenants that: (i) it will use its best efforts to publish financial results
covering at least 30 days of combined operations of Parent and the Company after
the Effective Time of the Merger as soon as practicable and in no event later
than 45 days after the end of the first fiscal quarter which includes at least
30 days of such combined operations after the Effective Time; and (ii) promptly
after the Publication Time, it will terminate the stop transfer instructions
and, upon the request of the Holder, cause the legends referred to above to be
removed.
(b) Registration Rights Agreement. Parent hereby agrees to enter
into a registration rights agreement with the Holder substantially in the form
of Exhibit A attached hereto, such registration rights agreement to be of even
date herewith and to become effective, by its terms, at the Effective Time.
6. Covenants under Rule 145.
(a) Applicability of Rule 145. The Holder has been advised that
the issuance of the Parent Shares to the undersigned pursuant to the Merger will
be registered under the Securities Act of 1933, as amended (the "Securities
Act"), pursuant to a registration statement on Form S-4. The undersigned has
also been advised that, if the undersigned is in fact an "affiliate" of the
Company at the time the merger is submitted to a vote of the stockholders of the
Company, Rule 145 under the Securities Act will restrict the Holder's sales of
Parent Shares received in the Merger. The Holder has also been advised that if
he is so subject to Rule 145, the Holder may not sell or otherwise dispose of
any Parent Shares except in accordance with Rule 145(d) or pursuant to an
effective registration statement under the Securities Act or an exemption from
the registration requirements of the Securities Act.
(b) Stop Transfer; Legends. The Holder understands and agrees
that Parent is under no obligation to register the sale, transfer or other
disposition by Holder of the Parent Shares to be received by the Holder in the
Merger except as set forth in written
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agreements with the undersigned that have been entered into by Parent or that
have been specifically assumed by Parent, as provided herein. Stop transfer
instructions will be given to Parent's transfer agent with respect to the
Parent Shares to be received by the Holder in the Merger, and there will be
placed on the certificate(s) representing the Parent Shares, or any
certificate(s) delivered in substitution therefor, a legend stating in
substance:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE
ISSUED IN A TRANSACTION TO WHICH RULE 145 UNDER THE
SECURITIES ACT OF 1933 (THE "ACT") APPLIES. THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE
TRANSFERRED ONLY IN ACCORDANCE WITH RULE 145 (D) OR
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
EXEMPTION FROM REGISTRATION UNDER THE ACT."
Unless the transfer by the Holder of the Parent Shares is a sale made in
conformity with the provisions of Rule 145(d), or is made pursuant to a
registration statement under the Securities Act, Parent reserves the right to
put an appropriate Securities Act legend on the certificate issued to a
transferee.
(c) Availability of Rule 144 and Rule 145. Parent agrees that for
so long as and to the extent necessary to permit the Holder to sell the Parent
Shares pursuant to Rule 145 and, to the extent applicable, Rule 144 under the
Securities Act, Parent shall use its best efforts to file, on a timely basis,
all reports required to be filed with the SEC by it pursuant to Section 13 of
the Exchange Act, so long as it is subject to such requirement, and shall
furnish to the Holder upon request a written statement as to whether Parent has
complied with such reporting requirements during the 12 months preceding any
proposed sale under Rule 145 and shall otherwise use its best efforts to permit
such sales pursuant to Rule 145 and Rule 144. Parent has filed, on a timely
basis, all reports required to be filed with the SEC pursuant to Section 13 of
the Exchange Act during the preceding 12 months.
(d) Legend Removal. Parent agrees that the stop transfer
instructions and legends referred to in paragraph (b) above shall be promptly
terminated and removed if the Holder shall have delivered to Parent a copy of a
letter from the staff of the SEC or an opinion of counsel with recognized
expertise in securities law matters, in form and substance reasonably
satisfactory to Parent, to the effect that such instructions and legends are not
required for the purposes of the Securities Act.
7. Agreement as Stockholder. Parent and the Holder acknowledge
and agree that none of the provisions set forth herein shall be deemed to
restrict or limit any fiduciary duty that the Holder may have as a director or
an officer of the Company provided that no such duty shall excuse the Holder
from his obligation to vote the Subject Securities, to the extent that they may
be so voted as provided herein, and to otherwise comply with each of the terms
and conditions of the Agreement.
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8. Xxxx-Xxxxx-Xxxxxx, etc. The Holder and Parent shall use all
reasonable efforts promptly to make all required filings and applications with
any governmental or regulatory agencies required to be made in connection with
the acquisition by the Holder of Parent Shares in the Merger, including, without
limitation, under the HSR Act, and to furnish all information required to be
furnished in or in connection with any such filing or application.
9. Assignment; Benefits. The rights (but not the obligations) of
Parent hereunder may be assigned, in whole or in part, to Merger Sub or any
other direct or indirect wholly owned subsidiary of Parent, to the extent and
for so long as it remains a direct or indirect wholly owned subsidiary of
Parent. Other than as permitted in the preceding sentence, this Agreement may
not be assigned by any party hereto without the prior written consent of the
other party.
This Agreement shall be binding upon, and shall inure to the benefit
of, the Holder, Parent and their respective successors and permitted assigns.
10. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made if and when delivered personally or by overnight courier or sent by
electronic transmission, with confirmation received, to the telecopy numbers
specified below:
If to the Holder, to the Holder at the address appearing on the
signature page beneath the Holder's name, with a copy to:
Renaissance Solutions, Inc.
00 Xxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: President
With a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
If to Parent or Merger Sub:
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The Registry, Inc.
000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: General Counsel
With a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
or to such other address or telecopy number as any party may have furnished to
the other parties in writing in accordance herewith.
11. Specific Performance. The parties hereto agree that
irreparable harm would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
12. Amendment. This Agreement may not be amended or modified,
except by an instrument in writing signed by or on behalf of each of the parties
hereto. This Agreement may not be waived by either party hereto, except by an
instrument in writing signed by or on behalf of the party granting such waiver.
13. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts
without giving effect to the conflict of laws principles thereof.
14. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same agreement.
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15. Termination. Unless the Merger shall have been consummated,
this Agreement shall terminate upon the earliest to occur of (i) the termination
of the Merger Agreement pursuant to Section 7.1 thereof, or (ii) December 31,
1997. The date and time at which this Agreement is terminated in accordance
with this Section 15 is referred to herein as the "Termination Date." Upon any
termination of this Agreement, this Agreement shall thereupon become void and of
no further force and effect, and there shall be no liability in respect of this
Agreement or of any transactions contemplated hereby or by the Merger Agreement
on the part of any party hereto or any of its directors, officers, stockholders,
employees, agents, advisors, representatives or affiliates; provided, however,
that nothing herein shall relieve any party from any liability for such party's
willful breach of this Agreement; and provided further that nothing herein shall
limit, restrict, impair, amend or otherwise modify the rights, remedies,
obligations or liabilities of any person under any other contract or agreement,
including, without limitation, the Merger Agreement. This Agreement shall
survive the consummation of the Merger.
[This space intentionally left blank.]
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of
each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
/s/ O. Xxxxx Xxxxxx
---------------------------------
Name: O. Xxxxx Xxxxxx
Address:
Shares of Company Common Stock: 1,010,000
Options to Purchase Company Common Stock: 0
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
/s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
Address:
Shares of Company Common Stock: 700,757
Options to Purchase Company Common Stock: 0
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
/s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Address:
Shares of Company Common Stock: 735,930
Options to Purchase Company Common Stock: 0
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Address:
Shares of Company Common Stock: 850,786
Options to Purchase Company Common Stock: 0
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
The Xxxxx X. Xxxxxx Children's Trust
By: /s/ Xxxxx Xxxxxxxx
--------------------------------------
Xxxxx Xxxxxxxx, Trustee
And
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
Address:
Shares of Company Common Stock: 108,028
Options to Purchase Company Common Stock: 0
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
The Red Farm Charitable Trust
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx, Trustee
And
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx, Trustee
Address:
Shares of Company Common Stock: 42,000
Options to Purchase Company Common Stock: 0
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
The Xxxxx X. Xxxxx Children's Trust
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx, Trustee
Address:
Shares of Company Common Stock: 72,856
Options to Purchase Company Common Stock: 0
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto, all as of the date first above written.
THE REGISTRY, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Counsel
THE HOLDER:
The Pine Point Foundation
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx, Trustee
And
By: /s/ Xxxx Xxxxxxx
-------------------------------------
Xxxx Xxxxxxx, Trustee
Address:
Shares of Company Common Stock: 39,500
Options to Purchase Company Common Stock: 0
