AMENDED AND RESTATED SHAREHOLDER AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER AGREEMENT (the "Agreement"),
dated as of March 30, 2001, is among RMH Teleservices, Inc., a Pennsylvania
corporation (the "Company"), and Xxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx, Xxxxxxx X.
Xxxxxx, Xxxx X.Xxxxxx, Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxx and Xxxxx X. Xxxxxx
(each, a "Shareholder" and collectively, the "Shareholders").
WHEREAS, prior to its dissolution, each of the Shareholders was a
member, and together all of the Shareholders constituted all of the members, of
R-T Investors, LLC, a Nevada limited liability company ("R-T Investors"); and
WHEREAS, R-T Investors was a party to that certain Shareholder
Agreement dated of March 28, 2000 between the Company and R-T Investors (the
"Original Agreement"); and
WHEREAS, R-T Investors on June 2, 2000 distributed to the Shareholders
all of the shares of the Company's common stock, no par value ("Common Stock")
held by R-T Investors at the time of such distribution, and R-T Investors has
dissolved and ceased to exist as of December 6, 2000; and
WHEREAS, pursuant to the terms of the Original Agreement, the
Shareholders have agreed to become parties to this Agreement as successors in
interest to R-T Investors.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein and intending to be legally bound hereby, the parties hereto
agree as follows:
ARTICLE I
Definitions
1.1 Definitions. Unless otherwise specified all references to
"days" shall be deemed to be references to calendar days. For purposes of this
Agreement, the following terms shall have the following meanings:
(a) Affiliate. An "Affiliate" of a Person shall have the
meaning set forth in Rule 12b-2 of the Exchange Act as in effect on the date
hereof. In addition, for purposes of this Agreement, each Shareholder shall
each be deemed to be an Affiliate of each other Shareholder.
(b) Beneficial Owner. A Person shall be deemed to
"beneficially own," or to have "beneficial ownership" of, Voting Securities as
the term "beneficial ownership" is defined in Rule 13d-3 under the Exchange
Act as in effect on the date hereof; provided that notwithstanding the
foregoing a Person shall also have "beneficial ownership" of securities which
such Person has the right to acquire (irrespective of whether such right is
exercisable immediately or only after the passage of time, including the
passage of time in excess of sixty
days) pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrants or options, or
otherwise.
(c) Board of Directors. "Board of Directors" shall mean
the Board of Directors of the Company.
(d) CEO. "CEO" shall mean the Chief Executive Officer of
the Company.
(e) Excess Shares. "Excess Shares" means, as to any matter
being voted upon by the Company's shareholders, the aggregate Voting
Securities of the Company beneficially owned by the Shareholders and their
Affiliates that represent Voting Power in excess of 32% of the votes entitled
to be cast in respect of such matter.
(f) Exchange Act. "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
(g) Group. "Group" shall mean a "group" as such term is
used in Section 13(d)(3) of the Exchange Act as in effect on the date hereof.
(h) Independent Director. "Independent Director" means a
director of the Company who is not (apart from such directorship) (i) an
officer, director, Affiliate, employee, shareholder, consultant or partner of
a Shareholder or any Affiliate of a Shareholder or of any entity that was
dependent upon a Shareholder or any Affiliate of a Shareholder for more than
5% of its revenues or earnings in its most recent fiscal year, or (ii) an
officer, employee, consultant or partner of the Company or any Affiliate of
the, Company or an officer, employee, shareholder, consultant or partner of an
entity that ' was dependent upon the Company or any Affiliate of the Company
for more than 5% of its revenues or earnings in its most recent fiscal year.
(i) Person. "Person" shall mean any individual, group,
corporation, general or limited partnership, limited liability company,
governmental entity, joint venture, estate, trust, association, organization
or other entity of any kind or nature.
(j) Securities Act. "Securities Act" shall mean the
Securities Act of 1933, as amended.
(k) Takeover Proposal. "Takeover Proposal" means (i) any
tender or exchange offer, (ii) any other proposal to takeover control of the
Company or a merger, share exchange, other business combination,
recapitalization, restructuring, liquidation or similar transaction involving
the Company or any of its material subsidiaries, or any proposal or offer to
acquire in any manner Voting Securities of the Company representing more than
20% of the Total Voting Power of the Company or any of its material
subsidiaries, a substantial equity interest in any of the Company's material
subsidiaries or a substantial portion of the assets of the Company or any of
its material subsidiaries, (iii) any waiver or opt out of any anti-takeover
statutes or other antitakeover provisions applicable to the Company, or (iv) a
proposal having similar effect.
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(l) Total Voting Power. The term "Total Voting Power"
shall mean the total combined Voting Power in the general election of
directors of the Company, on a fully diluted basis, of all the Voting
Securities then outstanding. For purposes of determining Total Voting Power
under this Agreement, a Voting Security which is convertible into or
exchangeable for a Voting Security shall be counted as having the greater of
(i) the number of votes to which such Voting Security is entitled prior to
conversion or exchange and (ii) the number of votes to which the Voting
Security into which such Voting Security is convertible or exchangeable is
entitled.
(m) Voting Power. The term "Voting Power" shall mean the
voting power of the Voting Securities then outstanding entitled to vote upon
any such matter, and shall be calculated for each Voting Security by reference
of the maximum number of votes such Voting Security is or would be entitled to
cast with respect to such matter.
(n) Voting Securities. "Voting Securities" shall mean,
without duplication, (x) any securities entitled, or which may be entitled, to
vote as to any matter which is the subject of shareholder action and shall
include without limitation the shares of Common Stock, (y) any securities
convertible or exercisable into or exchangeable for such securities (whether
or not the right to convert, exercise or exchange is subject to the passage of
time or contingencies or both), or (z) any direct or indirect rights or
options to acquire any such securities.
1.2 Other Definitions. In addition, the following terms have the
definitions specified in the Sections noted:
TERM SECTION
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Agreement recitals
Company recitals
Common Stock recitals
Moving Party 5.4
Original Agreement recitals
Shareholder Representative 4.5
Shareholder(s) recitals
Unaffiliated Shares 4.2
ARTICLE II
Representations, Warranties and Covenants of the Company
The Company represents and warrants to, and covenants and agrees with,
the Shareholders as follows:
2.1 The Company is a corporation validly existing and subsisting
under the laws of the State of Pennsylvania.
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2.2 The Company has full corporate power and corporate authority
to make, execute, deliver and perform this Agreement and to carry out all of
the transactions provided for herein.
2.3 The Company has taken such corporate action as is necessary
or appropriate to enable it to perform its obligations hereunder, and this
Agreement constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
ARTICLE III
Representations, Warranties and Covenants of the Shareholders
Each Shareholder represents and warrants to, and covenants and agrees
with, the Company that:
3.1 Shareholder is the record and beneficial owner of that
number of shares of Common Stock set forth opposite such Shareholder's name on
Exhibit A attached hereto, and Shareholder owns such shares of Common Stock
free and clear of any lien, pledge, encumbrance, voting agreement or other
restriction or obligation.
3.2 Shareholder has full legal right, power and authority to
make, execute, deliver and perform this Agreement and to carry out all of the
transactions provided for herein.
3.3 Shareholder has taken such action as is necessary or
appropriate to enable it to perfon-n its obligations hereunder, and this
Agreement constitutes the legal, valid and binding obligation of Shareholder,
enforceable against Shareholder in accordance with its terms. No approval,
waiver, consent or clearance is required from any third party or governmental
authority in connection with the execution, delivery or performance of this
Agreement by Shareholder.
ARTICLE IV
Other Covenants and Representations
4.1 Corporate Governance. The Shareholders and the Company agree
that the Board of Directors shall consist (and the Shareholders and the
Company shall use their respective best efforts to cause the Board of
Directors to consist) of (i) two persons designated by the Shareholders and
reasonably acceptable to the Independent Directors and the CEO, (ii) the CEO
and (iii) at least three other persons who are Independent Directors. The
Board of Directors will nominate directors thereafter consistent with the
preceding sentence. The provisions of this paragraph shall terminate in the
event the Shareholders and their Affiliates beneficially own in the aggregate
Voting Securities representing less than 15% of the Voting Power in respect of
the general election of directors of the Company.
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4.2 Restrictions on Business Combinations. The Shareholders
agree that they and their Affiliates will not (and each of the Shareholders
agrees that it will cause its Affiliates not to) consummate any tender offer,
exchange offer, merger or other business combination, recapitalization or
similar transaction involving the Company or any of its subsidiaries unless
approved by (i) a majority of members of a special committee consisting of all
of the Independent Directors and (ii) a majority of the shares voted by
holders of shares of Common Stock (or other Voting Securities) of the Company
not owned by the Shareholders or their Affiliates (the "Unaffiliated Shares")
or, in the case of a tender offer or exchange offer, the offer has a minimum
condition that a majority of the Unaffiliated Shares shall have been validly
tendered and not withdrawn and the offer provides that it will be extended for
10 business days after the Shareholders have publicly announced that such
minimum condition has been satisfied. In the event of a Takeover Proposal
initiated by a third party and recommended by the Company's Board of
Directors, each of the Shareholders agree that they and their Affiliates will
vote the Excess Shares in the same proportion as the Unaffiliated Shares are
voted on such Takeover Proposal.
4.3 Bylaws. The Shareholders and the Company agree that the
Company's bylaws shall be amended to provide that the approval of at least a
majority of the Company's Independent Directors shall be required to approve
any amendment to the articles of incorporation or bylaws of the Company that
would contravene or otherwise alter this Agreement.
4.4 Amendments. The Shareholders and the Company agree that at
least a majority of the Company's Independent Directors shall be required to
approve any amendment to, or waiver of, this Agreement, including amendments
of the defined terms used herein.
4.5 Shareholder Representative.
(a) The Shareholders hereby appoint Xxxxxxx X. Xxxxxx
("Xxxx Xxxxxx") as the Shareholder Representative (the "Shareholder
Representative"). In the event Xxxx Xxxxxx shall at any time be unable to, or
shall notify the Company that he is unwilling to, continue to perform the
duties of the Shareholder Representative, the remaining Shareholders shall
promptly designate a successor Shareholder Representative, and in the absence
of such an appointment, Xxxxxx X. Xxxxxx shall serve as the Shareholder
Representative. Xxxx Xxxxxx hereby accepts and agrees to perform his duties as
Shareholder Representative provided for herein.
(b) A decision, act, consent or instruction of the
Shareholder Representative provided for herein, shall constitute a decision of
all Shareholders and shall be final, binding and conclusive upon each such
Shareholder, and the Company may rely upon any decision, act, consent or
instruction of the Shareholder Representative as being the decision, act,
consent or instruction of each and every Shareholder. The Company is hereby
relieved from any liability to any Person for any acts done by them in
accordance with such decision, act, consent or instruction of the Shareholder
Representative, except for liability arising out of fraud, gross negligence,
bad faith or willful default under this Agreement.
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(c) In dealing with this Agreement and any instruments,
agreements or documents relating thereto, and in exercising or failing to
exercise all or any of the powers conferred upon the Shareholder
Representative hereunder, (i) the Shareholder Representative shall not assume
any, and shall incur no, responsibility whatsoever to any Shareholder by
reason of any error in judgment or other act or omission performed or omitted
hereunder or in connection with this Agreement, excepting only responsibility
for any act or failure to act which represents gross negligence or willful
misconduct, and (ii) the Shareholder Representative shall be entitled to rely
on the advice of counsel, public accountants or other independent experts
experienced in the matter at issue, and any error in judgment or other act or
omission of the Shareholder Representative pursuant to such advice shall in no
event subject the Shareholder Representative to liability to any Shareholder.
The Shareholders shall severally indemnify the Shareholder Representative and
hold him or her harmless against any loss, liability or expense incurred
without gross negligence or willful misconduct on the part of the Shareholder
Representative and arising out of or in connection with the acceptance or
administration of his or her duties hereunder. All of the indemnities,
inimunities and powers granted to the Shareholder Representative under this
Agreement shall survive any termination of this Agreement.
(d) A decision, act, consent or instruction of a
Shareholder Representative shall constitute a decision of all Shareholders and
shall be final, binding and conclusive upon each of such Shareholders and the
Company, and all other persons may rely upon any such decision, act, consent
or instruction of the Shareholders Representative as being the decision, act,
consent or instruction of each and every such Shareholder. The Company, and
all other persons are hereby relieved from any liability to any person for any
acts done by them in accordance with such decision, act, consent or
instruction of the Shareholders Representative.
ARTICLE V
Miscellaneous
5.1 Notices. All notices, requests, demands and other
communications required or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telex, fax or air courier
guaranteeing delivery:
If to the Company, to:
RMH Teleservices, Inc.
00 Xxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Chairman of the Board
Telecopy: (000) 000-0000
(with copies to):
Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP
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0000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxx X. Xxxxx
Telecopy: (000) 000-0000
or to such other person or address as the Company shall fumish to the
Shareholders in writing;
If to the Shareholders, to:
Xxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxx Xxxx
Xxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
(with copies to):
Gardere Xxxxx Xxxxxx LLP
Attention: Xxxxxxx X. Xxx, Esq.
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Telecopy: (000) 000-0000
or to such other person or address as the Shareholders shall furnish to the
Company in writing.
All such notices, requests, demands and other communications shall be
deemed to have been duly given: at the time of delivery by hand, if personally
delivered; five (5) business days after being deposited in the mail, postage
prepaid, if mailed domestically in the United States; when answered back, if
telexed; when receipt acknowledged, if telecopied; and on the business day for
which delivery is guaranteed, if timely delivered to an air courier guaranteeing
such delivery.
5.2 Survival of Representations and Warranties. The
representations and warranties made herein shall survive through the term of
this Agreement.
5.3 Legends. If requested in writing by the Company, the
Shareholders shall present or cause to be presented promptly all certificates
representing Voting Securities beneficially owned by the Shareholders or any
of their Affiliates, for the placement thereon of a legend substantially to
the following effect, which legend will remain thereon as long as such Voting
Securities are beneficially owned by a Shareholder or an Affiliate of a
Shareholder:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE TRANSFERRED WITHOUT REGISTRATION UNDER THE SECURITIES ACT OR STATE SECURITIES
LAWS OR AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY, THAT SUCH
REGISTRATION IS NOT
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REQUIRED. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO
THE TERMS AND CONDITIONS OF A SHAREHOLDER AGREEMENT BETWEEN THE COMPANY AND
THE HOLDERS SPECIFIED THEREIN. A COPY OF WHICH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY. THE SALE, TRANSFER OR OTHER DISPOSITION OF
THE SECURITIES IS SUBJECT TO THE TERMS OF SUCH AGREEMENT AND THE SECURITIES
ARE TRANSFERABLE ONLY UPON PROOF OF COMPLIANCE THEREWITH.
The Company may enter a stop transfer order with the transfer order with the
transfer agent or agents of Voting Securities against any transfer of Voting
Securities not in compliance with the provisions of this Agreement.
5.4 Enforcement. The Shareholders on the one hand, and the
Company, on the other hand, acknowledge and agree that irreparable injury to
the other party would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached and that such injury would not be adequately compensable in
damages. It is accordingly agreed that, in addition to any other remedies
which may be available at law or in equity, each party hereto (the "Moving
Party") shall be entitled to specific enforcement of, and injunctive relief to
prevent any violation of, the terms hereof, and the other party hereto will
not take action, directly or indirectly, in opposition to the Moving Party
seeking such relief on the grounds that any other remedy or relief is
available at law or in equity. The parties further agree that no bond shall be
required as a condition to the granting of any such relief.
5.5 Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties with respect to the transactions
contemplated hereby. This Agreement may be amended only by a written
instrument duly executed by the parties or their respective successors or
assigns.
5.6 Severability. Whenever possible, each provision or portion
of this Agreement will be interpreted in such manner as to be effective and
valid under applicable law, but if any provision or portion of any provision
of this Agreement is held to be invalid, illegal or unenforceable in any
respect under any applicable law, rule or regulation in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision shall have been
replaced with a provision which shall, to the maximum extent permissible under
such applicable law, rule or regulation, give effect to the intention of the
parties as expressed in such invalid, illegal or unenforceable provision.
5.7 Headings. Descriptive headings contained in the Agreement
are for convenience only and will not control or affect the meaning or
construction of any provision of this Agreement.
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5.8 Counterparts. For the convenience of the parties, any number
of counterparts of this Agreement may be executed by the parties, and each
such executed counterpart will be an original instrument.
5.9 No Waiver. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a
waiver of any other breach of such provision or any breach of any other
provision of this Agreement. The failure of a party to insist upon strict
adherence to any term of this Agreement on one or more occasions shall not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
5.10 Successors and Assigns. This Agreement shall be binding upon
the respective successors and assigns of the parties, provided that the
Shareholders agree that it and its Affiliates shall not transfer any Voting
Securities to any Person who has not agreed in writing to be bound by the
terms of the Agreement as if it were a Shareholder or an Affiliate of a
Shareholder. Notwithstanding the foregoing, each of the Shareholders and their
Affiliates shall not be required to obtain such written agreement from any
transferee of Voting Securities if such transfer is (i) pursuant to a bona
fide public offering, (ii) pursuant to transactions effected in accordance
with Rule 144 under the Securities Act or (iii) a block transfer that will
result in the transferee beneficially owning Voting Securities representing
less than 10% of the Voting Power in respect of the general election of
directors of the Company.
5.11 Governing Law. This Agreement will be governed by and
construed and enforced in accordance with the internal laws of the
Commonwealth of Pennsylvania, without giving effect to the conflict of laws
principles thereof.
5.12 Further Assurances. From time to time on and after the date
hereof, the Company and the Shareholders, as the case may be, shall deliver or
cause to be delivered to the other party hereto such ftirther documents and
instruments and shall do and cause to be done such ftirther acts as the other
party hereto shall reasonably request to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance herewith or
to assure that it is protected in acting hereunder.
5.13 Consent to Jurisdiction and Service of Process. Any legal
action or proceeding with respect to this Agreement or any matters arising out
of or in connection with this Agreement, and any action for enforcement of any
judgment in respect thereof shall be brought exclusively in the Court of
Common Pleas of Philadelphia County in the Commonwealth of Pennsylvania or the
United States District Court for the Eastern District of Pennsylvania, and, by
execution and delivery of this Agreement, the Company and the Shareholders
each irrevocably consent to service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, or by
recognized international express carrier or delivery service, to the Company
or the Shareholders at their respective addresses referred to herein. The
Company and the Shareholders each hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with this
Agreement
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brought in the courts referred to above and hereby further irrevocably waives
and agrees, to the extent permitted by applicable law, not to plead or claim
in any such court that any such action or proceeding brought in any such court
has been brought in an inconvenient forum. Nothing herein shall affect the
right of any party hereto to serve process in any other manner permitted by
law.
5.14 Confidentiality. All information gained by the Company and
the Shareholders regarding the business and affairs of the other shall be kept
confidential, except for information in the public domain, information which
was previously known to the receiving party, or such information as is
required, in the good faith deten-nination of the party's counsel, to be
disclosed by any law, regulation or governmental agency.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first referred to above.
THE SHAREHOLDERS
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
RMH Teleservices, Inc.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Xxxx X. Xxxxxxx
Chief Executive Officer
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EXHIBIT A
SHAREHOLDER NAME SHARES OF COMMON STOCK OWNED
---------------- ----------------------------
Xxxxxx X. Xxxxxx 813,000*
Xxxxxx X. Xxxxxx 813,000**
Xxxxxxx X. Xxxxxx 1,154,138
Xxxx X. Xxxxxx 983,500
Xxxxx X. Xxxxxx 983,500
Xxxxx X. Xxxxxx 983,500
Xxxxx X. Xxxxxx 848,500
* 313,000 of the shares are jointly owned with Xxxxxx X. Xxxxxx
**313,000 of the shares are jointly owned with Xxxxxx X. Xxxxxx
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