Exhibit 10(a)
STOCKHOLDERS AGREEMENT
Stockholders Agreement(this "Agreement") dated as of August 13,
1997 among Xxxxx River Corporation of Virginia, a Virginia corporation (the
"Company"), Xxxxxx Xxxxxxx, Xxxx Xxxxxx, Discover & Co. ("MSDWD"), Xxxxxx
Xxxxxxx Leveraged Equity Fund II, Inc. ("MSLEF II"), Xxxxxx Xxxxxxx Leveraged
Equity Holdings, Inc. ("MSLEH") and Xxxxxx Xxxxxxx Equity Investors, Inc.
("MSEI" and, collectively with MSLEF II, MSLEH and MSDWD, the "Stockholders").
WHEREAS, Xxxxx River Delaware, Inc., a Delaware corporation
and a wholly owned subsidiary of the Company ("Merger Sub"), will be merged (the
"Merger") with and into Fort Xxxxxx Corporation, a Delaware corporation ("Fort
Xxxxxx"), pursuant to an Agreement and Plan of Merger by and among the Company,
Merger Sub and Fort Xxxxxx dated as of May 4, 1997 (the "Merger Agreement");
WHEREAS, the Stockholders and certain of their affiliates will
receive the number of shares of common stock, par value $0.10 per share, of the
Company ("Common Stock"), set forth on Schedule I to this Agreement (the
"Shares") pursuant to the Merger; and
WHEREAS, it is a condition to the obligations of the parties
to the Merger Agreement that this Agreement be executed by the Company
concurrently with the closing under the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained in this Agreement, the parties hereto hereby
agree as follows:
Section 1 . (a) Appointment of Directors. Promptly upon the execution of this
Agreement, the Board of Directors of the Company (the "Board") shall take all
necessary action to increase the size of the Board to fifteen (15) and to
appoint the four (4) persons listed on Schedule 1.05(c) to the Merger Agreement
(which persons shall be reasonably satisfactory to the Company) as directors on
the Board. So long as the Stockholders and their affiliates other than Xxxxxx
Xxxxxxx & Co. Incorporated and Xxxx Xxxxxx Xxxxxxxx, Inc. (collectively, "MSDW")
beneficially own the requisite number of Shares pursuant to Section 1(b) or (c),
as applicable, the Company shall cause the person(s) designated pursuant to
Section 1(b) or (c) to be appointed or nominated for election as directors on
the Board at each annual meeting thereafter and at each special meeting, if any,
at which directors are being elected.
From and after the effective time of the Merger and until the
date on which the Stockholders and their affiliates other than MSDW no longer
beneficially own at least five million of the then outstanding Shares (the
"Upper Director Threshold"), the Stockholders shall be entitled to designate two
(2) persons reasonably satisfactory to the Company to be nominated for election
as directors on the Board.
(c) From and after the effective time of the Merger and until the date on which
the Stockholders and their affiliates other than MSDW no longer beneficially own
at least two million of the then outstanding Shares (the "Lower Director
Threshold" and, together with the Upper Director Threshold, the "Director
Thresholds"), the Stockholders shall be entitled to designate one (1) person
reasonably satisfactory to the Company to be nominated for election as a
director on the Board.
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(d) If the number of outstanding shares of Common Stock shall change into a
different number of shares or shall be designated as a different class, by
reason of any stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares, the number or class of shares required
for purposes of the Director Thresholds shall be correspondingly adjusted
equitably to reflect such stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares. No shares of Common
Stock acquired after the effective time of the Merger, other than shares
acquired (i) with respect to a Stockholder or an affiliate of a Stockholder
which is a limited partnership, pursuant to a distribution or transfer to the
partners of such a Stockholder or such an affiliate of a Stockholder pursuant to
or otherwise in accordance with its Agreement of Limited Partnership or (ii)
pursuant to any stock dividend, subdivision, reclassification, recapitalization,
split, combination or exchange of shares, shall be included for purposes of
determining whether the Director Thresholds are met.
Section 2 . Certain Notices. One of the Stockholders shall, within ten business
days, notify the Company if the Stockholders and their affiliates other than
MSDW own less than the number of Shares required for purposes of either of the
Director Thresholds.
Section 3 . Miscellaneous. This Agreement shall survive until the Stockholders
and their affiliates other than MSDW no longer beneficially own at least two
million of the then outstanding Shares and shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York. If any provision of this Agreement is
rendered void, invalid or unenforceable by any court of law for any reason, such
invalidity or unenforceability shall not void or render invalid or unenforceable
any other provision of this Agreement. This Agreement may be changed, waived,
discharged or terminated only with the written consent of each party hereto.
This Agreement may be executed in one or more counterparts, and with counterpart
signature pages, each of which shall be an original, but all of which together
shall constitute one and the same Agreement.
Section 4 . Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, telecopied (which is
confirmed) or mailed by registered or certified mail (return receipt requested)
to the parties at the following addresses (or at such other address for a party
as shall be specified by like notice):
(a) if to any of the Stockholders, to:
Xxxxxx Xxxxxxx Capital Partners
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxxxxx, Esq.
(b) if to the Company, to
Fort Xxxxx Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxx, XX
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: 212) 403-2000
Attention: Xxxxxxxx X. Xxxxxxxx, Esq.
IN WITNESS WHEREOF, the parties hereto caused this Agreement
to be duly executed by their respective authorized signatories thereunto duly
authorized as of the date first above written.
XXXXX RIVER CORPORATION OF VIRGINIA
By /s/ C.A. Xxxxxxxx IV
Name: C.A. Xxxxxxxx, IV
Title: Sr. Vice President
XXXXXX XXXXXXX, XXXX XXXXXX,
DISCOVER & CO.
By /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Chief Financial Officer
XXXXXX XXXXXXX LEVERAGED EQUITY
FUND II, INC.
By /s/ X.X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice Chairman
XXXXXX XXXXXXX LEVERAGED EQUITY
HOLDINGS, INC.
By /s/ X.X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice Chairman
XXXXXX XXXXXXX EQUITY INVESTORS, INC.
By /s/ X.X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice Chairman
Schedule I
Ownership of Shares
As of The Effective Time
Xxxxxx Xxxxxxx, Xxxx Xxxxxx,
Discover & Co. 3,114,373
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MSLEF II 2,470,396
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MSLEH 3,476,482
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MSEI 370,606
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