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EXHIBIT 10.13
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT (this "Agreement") is
made and entered into as of February 27, 2001, 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"), OMNICOM FINANCE, INC., a Delaware
corporation and wholly owned subsidiary of Omnicom ("OFI"), and ITC HOLDING
COMPANY, INC., a Delaware corporation ("ITC") (Each of Omnicom, BHA, OFI and ITC
may be referred to individually as a "Shareholder" and collectively as
"Shareholders").
WHEREAS, the Company and certain of the Shareholders entered into a
Shareholders' Agreement, dated as of July 19, 2000 (the "Prior Agreement"), and
desire to amend and restate the Prior Agreement in its entirety as herein
provided.
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 Director" shall mean the person named as the BHA
Director in Section 3(b) hereof, as may be changed by BHA from time to time in
accordance with Section 3.
(d) "Company Common Stock" means the Company's common stock,
par value $0.01 per share.
(e) "Equity Securities" means Voting Securities, Convertible
Securities and Rights to Purchase Voting Securities.
(f) "Exchange Act" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
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(g) "Finance Securities" means any shares of Company Common
Stock issued to OFI or any of its Affiliates pursuant to the Amended and
Restated Credit Agreement, dated the date hereof, between OFI and the Company.
(h) "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.
(i) "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.
(j) "Maximum Voting Percentage" shall mean 30% of the Voting
Power of the Company.
(k) "Person" means any individual, corporation, partnership,
trust, other entity or group (within the meaning of Section 13(d)(3) of the
Exchange Act).
(l) "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.
(m) "Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(n) "Standstill Period" means the period beginning on the date
of the Prior Agreement and ending on July 19, 2005.
(o) "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
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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.
(p) "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, including the Finance Securities;
"Convertible Securities" means securities of the Company which are convertible
or exchangeable (whether presently convertible or exchangeable or 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 in this Agreement will prohibit a
Restricted Group or member thereof from acquiring Finance Securities or 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.
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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 upon the consummation of the
transactions pursuant to which the Prior Agreement was entered into, 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 BHA Director and the persons named in the ITC
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 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 (A) any Voting Securities held in excess
of the Maximum Voting Percentage and (B) any Voting Securities that are Finance
Securities, 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 Director
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 the Independent Slate shall be Xxxxxx X. Xxxxxxxxxx, Xx.
as a Class I director and Xxxxxx X. Xxxxxxxxx, Xx. as a Class I director;
(c) Each of ITC and BHA may change the ITC Slate and the BHA Director,
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 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 elects to change a
member of its slate or BHA elects to change the BHA Director and, in either
case, 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 is the BHA Director, 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
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Independent Slate, then ITC shall 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 or the Independent Slate or as the BHA Director, 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 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 upon the consummation of the transactions
pursuant to which the Prior Agreement was entered into. BHA's right to designate
the BHA Director 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 of the Prior Agreement.
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
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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.
Section 3(a)(z) shall be binding on any transferee of Finance Securities held by
a member of a Restricted Group for so long as the Restricted Group of which it
is a member is subject to Section 3(a). Except for open-market transactions with
a Person who is not a member of the transferor's Restricted Group effected
through one or more brokers in the primary securities markets on which the
Company Common Stock is then traded, no transfer of Finance Securities by a
member of the Restricted Group shall be effective until the transferee shall
have entered into an agreement in the form of Exhibit A agreeing to be so bound.
(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,
including the Prior Agreement. This Agreement may be 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.
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IN WITNESS WHEREOF, the parties have executed this Amended and Restated
Shareholders' Agreement as of the date first set forth above.
XXXXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx
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Chief Financial Officer
OMNICOM GROUP INC.
By: /s/ Xxxxxx X. Xxxxxxxx
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Executive Vice President
XXXXXXX XXXXX GROUP INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxxxx
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Executive Vice President
ITC HOLDING COMPANY, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxxx
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Senior Vice President
OMNICOM FINANCE, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Treasurer
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EXHIBIT A
AGREEMENT
The undersigned, being a transferee of _______ shares of common stock
of XxxxXxxxxx.XXX, Inc., hereby agrees to be bound by the provisions of Section
3(a)(z) of the Amended and Restated Shareholders Agreement, dated February 27,
2001, as if the undersigned were an original "Shareholder" under that Agreement.
Executed this ____ day of ________, 200__.
[TRANSFEREE NAME]
By:
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Name:
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Title:
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