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EXHIBIT 10.22
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Amended and Restated Stockholders Agreement (the "Agreement") is
made as of the 20th day of August, 1997 by and among C. Xxxxxx XxXxxxx
("XxXxxxx"), Xxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxx X. Xxxxxx ("Xxxxxx" and
collectively with XxXxxxx and Xxxxxxxx, the "Stockholders" and each
individually, a "Stockholder") and X.X. Xxxxxxx & Company, a Delaware
corporation (the "Company," and collectively with the Stockholders, the
"Parties").
RECITALS
A. As of the date hereof, the Stockholders collectively own
approximately 77 % of the outstanding shares of Common Stock of the Company
(including shares owned by Family Donees, as defined below).
B. As of the closing date of the Company's underwritten initial
public offering, it is expected that the Stockholders collectively will own
approximately 64% of the outstanding shares of Common Stock of the Company
(including shares owned by Family Donees).
C. The Parties have previously entered into a Shareholder Agreement
dated February 15, 1993, as amended on January 30, 1996 (the "Previous
Agreement"), which provides for certain obligations with respect to the voting
of the shares of Common Stock owned by the Shareholders and certain
restrictions on the transfer of such shares.
D. The Company has filed a Registration Statement on Form S-1
(Registration No. 33-30701) with the Securities and Exchange Commission in
connection with the proposed underwritten initial public offering of certain
shares of the Company's Common Stock (the "IPO").
E. In connection with the IPO, the Parties have determined that it
is in the best interest of the Company and the Stockholders to amend and
restate the Previous Agreement in its entirety effective as of the closing date
of the IPO (the "Effective Date").
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1. Definitions. The following terms, as used herein, have the
following meanings:
(a) "Code" shall mean the Internal Revenue Code of
1986, as amended.
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(b) "Control Stockholder" shall mean any Stockholder
holding at least 5% of the beneficial ownership of the Company, as calculated
in accordance with Rule 13d-3 of the Exchange Act of 1934, as amended, and
which ownership shall also include shares beneficially owned by a Family Donee.
(c) "Fair Market Value" shall mean the average over the
five trading days preceding any date for the determination of value of the last
reported sales price (or of the bid price if no sales were reported) of the
Common Stock on NASDAQ (as defined below), a stock exchange or an over-the-
counter market. If price information is available from NASDAQ and one or more
stock exchanges or over-the-counter market, then the Fair Market Value shall be
calculated based on the trading market or stock exchange with the highest
trading volume for the prior five day period. If the Common Stock is not
actively traded on NASDAQ, a stock exchange or an over-the-counter market, then
Fair Market Value shall be an amount determined in good faith by the Board of
Directors.
(d) "Family Donee" with respect to a Stockholder shall
mean:
(i) Any parent, child, including adopted
children, or sibling of the Stockholder, the spouse of any of the foregoing, or
the spouse of the Stockholder;
(ii) Any trust established by the Stockholder, or
any trustee, custodian, fiduciary, or foundation which holds shares of Common
Stock of the Company for charitable purposes or the benefit of the Stockholder
or any of the persons described in subsection (d)(i) above; or
(iii) Committees, guardians or other legal
representatives of the Stockholder or any of the persons described in
subsection (d)(i) above, other than legal representatives who are appointed as
a result of the death of the Stockholder or of the person described in
subsection (d)(i) above.
(e) "NASDAQ" shall mean the NASDAQ National Market.
(f) "Shares" shall mean and include all shares of
Common Stock, par value $0.001 per share, of the Company owned by each of the
Stockholders, whether presently held or hereafter acquired.
ARTICLE II
VOTING AGREEMENT
2.1. Voting on Significant Corporate Issues.
(a) With respect to the matters set forth in Section
2.1(b), each of Xxxxxxxx and Xxxxxx agrees that he will take such action as may
be required so that all Shares owned by him are voted in the same proportion as
the votes cast by XxXxxxx with respect to those matters set forth in Section
2.1(b). With respect to matters not covered by Section 2.1(b)
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and Section 2.2, Xxxxxxxx and Xxxxxx shall have no limitation on voting any of
their Shares. In accordance with this Section 2.1, XxXxxxx may direct each of
Xxxxxxxx and Xxxxxx to appoint XxXxxxx as the proxy for each of them on any
matter set forth in Section 2.1(b).
(b) The following matters will be voted in accordance
with Section 2.1(a):
(i) Any amendment, alteration or repeal of any
provision of the Certificate of Incorporation, as amended or restated, of the
Company;
(ii) Any merger, consolidation, combination or
share exchange involving the Company or any subsidiary of the Company, which
requires approval by the stockholders of the Company;
(iii) Any sale, lease, assignment, transfer or
other disposition of all or substantially all of the assets of the Company
(considered together with its subsidiaries);
(iv) The winding up, dissolution or liquidation
of the Company; or
(v) The voluntary filing of a petition in
bankruptcy for the Company.
2.2. Election of Directors.
(a) Each Stockholder shall vote all of his Shares for
the election of XxXxxxx, Xxxxxxxx and Xxxxxx to the Board of Directors. In the
event that any of XxXxxxx, Xxxxxxxx or Xxxxxx declines to serve on the Board of
Directors, the non-declining Stockholders shall vote for the election of a
director designated in writing by the declining Stockholder (a "Designated
Director"), provided that the Designated Director has been unanimously approved
in writing in advance by the non-declining Stockholders. In the event that the
Designated Director ceases to be a director for any reason before his term
expires, the non-declining Stockholders shall vote for the election of another
director designated in writing by the declining Stockholder, provided that such
newly designated director has been unanimously approved by the non-declining
Stockholders.
(b) Notwithstanding Section 2.2(a), if any Stockholder
ceases to be a Control Stockholder on the record date for the election of
directors (a "Non-Control Stockholder"), then:
(i) the remaining Control Stockholders shall be
under no obligation to vote for the election of the Non-Control Stockholder, or
his designee, to the Board of Directors; and
(ii) the Non-Control Stockholder shall no longer
have a right to designate a director to be elected to the Board of Directors.
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2.3. Agreement to Vote; Best Efforts. Each Stockholder agrees (i) to
use his best efforts to take all actions necessary to act in a manner
consistent with the intent of this Agreement in voting his Shares according to
Section 2.1 and in electing persons to be directors in accordance with Section
2.2, and (ii) to take any other necessary or appropriate actions as may be
required to give effect to the provisions of this Agreement. Any vote in
contravention of this Section 2 shall be null and void.
ARTICLE III
RESTRICTIONS ON SHARES
3.2. Restrictions on Family Donees. A Stockholder may transfer Shares
(the "Transferring Stockholder") to a Family Donee, by gift or sale, provided
that the Family Donee agrees in writing to take the Shares subject to the
voting provisions in Article 2. For all matters to be voted on in Sections 2.1
and 2.2, such transferred Shares shall be deemed to be controlled by the
Transferring Stockholder. Prior to any transfer, the Family Donee must agree in
writing to appoint the Transferring Stockholder as his or her proxy with
respect to any matters set forth in Sections 2.1 and 2.2. All certificates
owned by Family Donees shall bear the legend set forth in Section 3.3(b).
3.3. Restrictive Legend.
(a) At the Effective Time, all certificates for Shares owned
by the Stockholders shall be delivered to the Company, or to the transfer agent
for the Company, as appropriate, for endorsement with the following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
ON TRANSFER AND VOTING AS PROVIDED IN AN AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT BETWEEN CERTAIN STOCKHOLDERS AND THE COMPANY
DATED AUGUST 20, 1997, A COPY OF WHICH IS ON FILE WITH THE COMPANY AND
MAY BE INSPECTED THEREAT."
(b) At the Effective Time, and thereafter, all certificates
for Shares owned by a Family Donee shall be delivered to the Company, or to the
transfer agent for the Company, as appropriate, for endorsement with the
following legend:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
VOTING AS PROVIDED IN AN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT BETWEEN
CERTAIN STOCKHOLDERS AND THE COMPANY DATED AUGUST 20, 1997, A COPY OF WHICH IS
ON FILE WITH THE COMPANY AND MAY BE INSPECTED THEREAT."
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ARTICLE IV
EFFECTIVE TIME OF AGREEMENT; TERMINATION
4.1. Effective Time of Agreement. This Agreement shall be effective
at the Effective Time and shall have no force and effect before such time.
4.2. Termination of Previous Agreement. The Company and the
Stockholders agree that the rights and obligations provided herein set forth
the sole and entire agreement on the subject matter hereof among the Company
and the Stockholders. At the Effective Time, the Previous Agreement shall be
terminated in its entirety and the rights and obligations of the Company and
the Stockholders relating to the subject matter thereof shall be superseded and
governed by this Agreement.
4.3. Termination of this Agreement. This Agreement shall terminate
upon the first to occur of the following events:
(a) The written agreement of the Parties;
(b) The filing by the Company of a petition in bankruptcy, an
order placing the Company in receivership or upon liquidation or dissolution of
the Company;
(c) With respect to any one Stockholder, when such Stockholder
is no longer a Control Stockholder;
(d) XxXxxxx'x personal physician certifies, or two physicians
licensed to practice medicine in Colorado certify, in writing that XxXxxxx is
disable and unable to handle financial affairs or a conservator has been
appointed; or
(f) One day prior to ten (10) years after the Effective Date.
ARTICLE V
MISCELLANEOUS
5.1. Maintenance of Copy of this Agreement. A copy of this Agreement,
and any amendments hereto, shall be filed with the Secretary of the Company.
So long as this Agreement shall be in effect, this Agreement and any amendments
hereto shall be made available for inspection by any Stockholder or Family
Donee at the principal offices of the Company.
5.2 Governing Law. This Agreement shall be construed and enforced
in accordance with the internal laws of the State of Colorado.
5.3. Arbitration. Any dispute or claim arising out of or related to
this Agreement, or the interpretation, making performance, breach, validity or
termination thereof, shall be finally settled by binding arbitration in Denver,
Colorado under the American Arbitration Association
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Commercial Arbitration Rules (the "AAA Rules") by one arbitrator appointed in
accordance with the AAA Rules.
The arbitrator shall apply Colorado law to the merits of any dispute or
claim, without reference to rules of conflict of law. The arbitrator shall
have the power to decide all questions of arbitrability. The arbitration
proceedings shall be governed by federal arbitration law and by the AAA Rules,
without reference to state arbitration law. At the request of either party,
the arbitrator will enter an appropriate protective order to maintain the
confidentiality of information produced or exchanged in the course of the
arbitration proceedings. Judgment on the award rendered by the arbitrator may
be entered in any court having jurisdiction thereof.
The parties may apply to any court of competent jurisdiction for a
temporary restraining order, preliminary injunction, or other interim or
conservatory relief, as necessary, without breach of this arbitration agreement
and without any abridgment of the powers of the arbitrator.
The arbitrator shall allocate the costs and fees of the arbitration
among the Company and the Stockholders as the arbitrator deems appropriate.
5.4. Specific Performance. The Parties hereto agree that money
damages or other remedy at law would not be sufficient or adequate remedy for
any breach or violation of, or a default under, this Agreement by them and that
in addition to all other remedies available to them, each of them shall be
entitled to an injunction restraining such breach, violation or default or
threatened breach, violation or default and to any other equitable relief,
including without limitation specific performance, without bond or other
security being required.
5.5. No Inconsistent Agreements. Each Stockholder agrees that it will
not, on or after the date of this Agreement, enter into any agreement or take
any action with respect to its Common Stock which is inconsistent with this
Agreement or otherwise conflicts with the provisions hereof. No Stockholder
will grant any proxy or become a party to any voting trust or other agreement,
in each case which is inconsistent with or conflicts with this Agreement or
otherwise conflicts with the provisions hereof, and no Stockholder will
circumvent this Agreement by taking any action that would be prohibited under
this Agreement through an affiliate.
5.6. Stock Changes. The provisions of this Agreement shall apply
equally to any share of Common Stock or other securities distributed in respect
of shares of Common Stock or issued in exchange therefore pursuant to any
reorganization, recapitalization, merger, consolidation or share exchange.
5.7. Successors and Assigns. Except as otherwise provided herein, the
provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the Parties.
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the Parties or their respective successors and assigns any
right, remedy, obligation, or liability under or by reason of this Agreement,
except as expressly provided in this Agreement.
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5.8. Notices. All notices and other communications hereunder shall be
in writing and shall be mailed by registered or certified mail, postage
prepaid, by facsimile, in person, or by overnight courier addressed to the
party at the address set forth below (or to such other address as a party shall
have furnished in writing in accordance with the provisions of this Section
5.8) with a copy to each of the other parties hereto. Any notice given to a
corporate party shall be addressed to the attention of the president of the
corporation. Notices to the estate of a Stockholder shall be sufficient if
addressed to the Stockholder. Each such notice or other communication shall
for all purposes of this Agreement be treated as effective or having been given
when delivered if delivered personally, or if sent by overnight courier, upon
receipt, if by facsimile, upon confirmation of transmission, and if sent by
mail, at the earlier of its receipt or 72 hours after the same has been sent,
addressed, as set forth below, and postage prepaid.
C. Xxxxxx XxXxxxx [HOME ADDRESS]
Xxxx X. Xxxxxxxx [HOME ADDRESS]
Xxxxxx X. Xxxxxx [HOME ADDRESS]
X.X. Xxxxxxx & Company Xxx Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
5.9. Status Of Family Donees. Any Family Donee acquiring any Shares
which are subject to this Agreement, by accepting such Shares, shall be deemed
to be a party to this Agreement and agree to be subject to all the terms and
conditions of this Agreement as if such Family Donee signed this Agreement as a
Stockholder. Any Stockholder or other person transferring shares of Common
Stock which are subject to this Agreement shall contemporaneously therewith
give written notice to the Company of such transfer. Promptly (but in any
event within five (5) days) after the Company receives notice of any such
transfer, the Company shall give (i) to those persons who are then Stockholders
or who hold shares of Common Stock subject to the terms of this Agreement,
notice of the name and address of the Family Donee becoming an owner of shares
of Common Stock subject to the terms of this Agreement and (ii) to Family
Donees who become owners of shares subject to the terms of this Agreement, a
copy of this Agreement and a list of the names and addresses of each person who
is then a Stockholder or who holds shares of Common Stock subject to the terms
of this Agreement.
5.10. Amendments; Waivers.
(a) No failure or delay on the part of any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
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(b) Neither this Agreement nor any term or
provision hereof may be amended or waived except by an instrument in writing
signed, in the case of an amendment, by each of the Parties and, in the case
of waiver, by the party against whom the enforcement of such waiver is sought.
5.11. Severability. 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
fullest extent permitted by law.
5.12. Stock Ownership. Except for Xxxxxxxx who has pledged 35,000
Shares to a third party, each Stockholder severally represents and warrants to
each of the other Parties that the Shares owned by him as of the date hereof
are owned by him free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders' agreements (other than this Agreement or
the Previous Agreement), and voting trusts. Each Stockholder agrees promptly
to notify each of the other parties to this Agreement of the occurrence and
circumstances of any event which would make the above representation and
warranty untrue as to him.
5.13. Descriptive Headings; Plurals. The headings and captions
contained herein are inserted for convenience only and shall not control or
affect the meaning or construction of any provision hereof. As used herein, the
plural form of any noun shall include the singular and the singular shall
include the plural, unless the context requires otherwise. Each of the
masculine, neuter and feminine forms of any pronoun shall include all such
forms unless the context requires otherwise.
5.14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and which
together shall constitute one and the same instrument.
5.15. Further Assurances. Each party hereto shall do and perform or
cause to be done and performed all further acts and things and shall execute
and deliver all other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the consummation of the
transactions contemplated hereby.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
/s/ C. XXXXXX XxXXXXX
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C. Xxxxxx XxXxxxx
/s/ XXXX X. XXXXXXXX
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Xxxx X. Xxxxxxxx
/s/ XXXXXX X. XXXXXX
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Xxxxxx X. Xxxxxx
X.X. XXXXXXX & COMPANY
/s/ C. XXXXXX XxXXXXX
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C. Xxxxxx XxXxxxx, President and Chief
Executive Officer
