Exhibit 10.4
AMENDMENT NO. 1 TO
STOCKHOLDERS AGREEMENT
This AMENDMENT NO. 1 TO STOCKHOLDERS AGREEMENT (this "AMENDMENT"), dated as
of May 1, 1997, is by and among Esquire Communications Ltd., a Delaware
corporation (the "COMPANY"), and those stockholders of the Company whose
signatures appear on the signature page hereto (collectively, the
"STOCKHOLDERS") and amends that certain Stockholders Agreement (the
"Agreement"), dated as of October 23, 1996, by and among the Company and the
Stockholders. Terms defined in the Agreement shall have the same meaning when
used herein.
WHEREAS, the Stockholders and the Company wish to amend the Agreement
as set forth herein.
NOW THEREFORE, in consideration of the agreements herein contained,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Section 1 of the Agreement is hereby amended as follows:
(a) deleting the word "seven" in Section 1(a)(i) of
the Agreement and replacing it with the word "nine";
(b) deleting Section 1(a)(ii)(B) of the Agreement in
its entirety and replacing it with the following:
"three representatives designated by the Management
Stockholders (the "MANAGEMENT STOCKHOLDERS"), determined by
vote of the Management Stockholders owning a majority of the
Stockholder Shares held by all Management Stockholders;
provided, however, that the Management Stockholders agree to
designate Xxxxx Xxxxxxx ("Xxxxxxx") as one of its
representatives for so long as he may desire through the later
of (x) September 30, 1998 and (y) the date Xxxxxxx or his
affiliates ceases to own an aggregate of at least 400,000
shares of common stock of the Company (subject to adjustment
to reflect stock splits or similar events) if Xxxxxxx is not a
principal, officer, director or greater than 5% stockholder of
a competing court reporting business."
(c) deleting the first sentence of Section
1(a)(ii)(C) of the Agreement in its entirety and replacing
it with the following:
"four representatives jointly designated by GTCR and the
Management Stockholders (the "JOINT REPRESENTATIVES"), it
being agreed that Xxxxxxxx Xxxxxxxx, Xxxxxx Xxxxxx, Xxxxx
Xxxxx and Fir Xxxxxx (collectively, the "INITIAL
REPRESENTATIVES") are acceptable to GTCR and the Management
Stockholders; provided that GTCR shall have the right at any
time (with or without cause) to remove the Initial
Representatives from the Board.".
2. RELEASE OF XXXXXXX. Each of the parties to the Agreement agrees that
notwithstanding anything to the contrary contained in the Agreement, when
Xxxxxxx is no longer a director of the Company, he shall, automatically and
without any further action required to be taken, be released from the Agreement
(and the Agreement shall terminate with respect to him) and from all his rights
and obligations under the Agreement, except for any rights Xxxxxxx may have with
respect to breaches of the Agreement which may have occurred when Xxxxxxx was a
director.
3. STATEMENTS ABOUT XXXXXXX. Each of the parties to the Agreement
hereby agrees not to make outside of the Company any statements which are false,
defamatory or derogatory in any material respect, either orally or in writing,
about Xxxxxxx. GTCR, upon the request of Xxxxxxx, will provide to Xxxxxxx solely
positive references for submission by Xxxxxxx to third parties and, upon
Xxxxxxx'x prior written request, oral confirmation thereof.
4. APPLICABLE LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF DELAWARE.
5. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
This Amendment shall become effective upon the execution of a counterpart hereof
by the holders of a majority of the Stockholder Shares as provided for in
Section 10 of the Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have cause this Amendment to be
executed as of the day and year first written above.
ESQUIRE COMMUNICATIONS LTD.
By:
---------------------------------
Name:
Title:
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GOLDER, THOMA, CRESSEY,
RAUNER, INC.
Its: General Partner
By:
---------------------------------
Its:
---------------------------------
-------------------------------------
Xxxxxxx Xxxxx
-------------------------------------
Xxxxx Xxxxxxx
THE XXXXXXX TRUST
By:
----------------------------------
Xxxx X. Xxxxxxx, as Trustee
By:
----------------------------------
Xxxxxxxx X. Xxxxxxx, as Trustee
ALLIED INVESTMENT CORPORATION
By:
-----------------------------------
Its:
-----------------------------------
ALLIED INVESTMENT CORPORATION II
By:
-----------------------------------
Its:
-----------------------------------
ALLIED CAPITAL CORPORATION II
By:
-----------------------------------
Its:
-----------------------------------
CMNY CAPITAL, L.P.
By:
------------------------------------
Its: General Partner
ANTARES LEVERAGED CAPITAL CORP.
By:
------------------------------------
Its:
------------------------------------
AMENDMENT NO. 2 TO
STOCKHOLDERS AGREEMENT
This AMENDMENT NO. 2 TO STOCKHOLDERS AGREEMENT (this "AMENDMENT"),
dated as of June __, 1997, is by and among Esquire Communications Ltd., a
Delaware corporation (the "COMPANY"), and those stockholders of the Company
whose signatures appear on the signature page hereto (collectively, the
"STOCKHOLDERS") and amends that certain Stockholders Agreement (the
"Agreement"), dated as of October 23, 1996, as amended by Amendment No. 1 dated
as of May 1,1997, by and among the Company and the Stockholders, other than Xxxx
X. Xxxxxx. Terms defined in the Agreement shall have the same meaning when used
herein.
WHEREAS, the Stockholders and the Company wish to amend the Agreement
to add Xxxx X. Xxxxxx as a party and as otherwise set forth herein.
NOW THEREFORE, in consideration of the agreements herein contained,
the sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Section 1 of the Agreement is hereby amended as follows:
(a) deleting the word "nine" in Section 1(a)(i) of the Agreement
and replacing it with the word "ten" and adding the following proviso
at the end of Section 1(a)(i): "provided, that if the number of
Management Representatives is reduced from four to three pursuant to
Section 1(a)(ii)(B), then the number of authorized directors shall be
reduced from ten to nine";
(b) deleting Section 1(a)(ii)(B) of the Agreement in its entirety
and replacing it with the following:
"four representatives designated by the Management Stockholders
(the "MANAGEMENT REPRESENTATIVES"), determined by vote of the
Management Stockholders owning a majority of the Stockholder
Shares held by all Management Stockholders; provided, however,
that the Management Stockholders agree to designate (I) Xxxxx
Xxxxxxx ("Xxxxxxx") as a Management Representative for so long as
he may desire through the later of (x) September 30, 1998 and (y)
the date Xxxxxxx or his affiliates ceases to own an aggregate of
at least 400,000 shares of Common Stock of the Company (subject
to adjustment to reflect stock splits or similar events) if
Xxxxxxx is not a principal, officer, director or greater than 5%
stockholder of a competing court reporting business and (II) Xxxx
X. Xxxxxx ("Durham") as a Management Representative for so long
as he may desire through the first to occur of (x) the
termination of this Agreement and (y) the date Durham ceases to
own at least 20% of the shares of Common Stock of the Company
(subject to adjustment to reflect stock splits or similar events)
acquired by him on the date hereof; provided, that if and when
Durham ceases to be a Management Representative, the number of
Management Representatives designated by the Management
Stockholders shall be reduced from four to three."
2. ADDITION AND RELEASE OF DURHAM. The Agreement is amended to add
Xxxx X. Xxxxxx as a "Stockholder" party thereto for purposes of Sections 1 and
10 of the Agreement only. Each of the parties to the Agreement agrees that
notwithstanding anything to the contrary contained in the Agreement, when Durham
is no longer a director of the Company, he shall, automatically and without any
further action required to be taken, be released from the Agreement (and the
Agreement shall terminate with respect to him) and from all his rights and
obligations under the Agreement, except for any rights Durham may have with
respect to breaches of the Agreement which may have occurred when Durham was a
director.
3. APPLICABLE LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS AMENDMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW
PROVISIONS (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF DELAWARE.
4. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument.
This Amendment shall become effective upon the execution of a counterpart hereof
by the holders of a majority of the Stockholder Shares as provided for in
Section 10 of the Agreement.
IN WITNESS WHEREOF, the parties hereto have cause this Amendment to be
executed as of the day and year first written above.
ESQUIRE COMMUNICATIONS LTD.
By:
-----------------------------------
Name:
Title:
GOLDER, THOMA, XXXXXXX, XXXXXX
FUND IV, L.P.
By: GOLDER, THOMA, CRESSEY,
RAUNER, INC.
Its: General Partner
By:
-----------------------------------
Its:
----------------------------------
--------------------------------------
Xxxxxxx Xxxxx
--------------------------------------
Xxxxx Xxxxxxx
THE XXXXXXX TRUST
By:
------------------------------------
Xxxx X. Xxxxxxx, as Trustee
By:
------------------------------------
Xxxxxxxx X. Xxxxxxx, as Trustee
ALLIED INVESTMENT CORPORATION
By:
------------------------------------
Its:
------------------------------------
ALLIED INVESTMENT CORPORATION II
By:
-------------------------------------
Its:
------------------------------------
ALLIED CAPITAL CORPORATION II
By:
-------------------------------------
Its:
------------------------------------
CMNY CAPITAL, L.P.
By:
-------------------------------------
Its: General Partner
ANTARES LEVERAGED CAPITAL CORP.
By:
-------------------------------------
Its:
------------------------------------
HARLINGWOOD & COMPANY, LLC
By:
---------------------------------------
Xxxxx Xxxxx
--------------------------------------
Xxxx X. Xxxxxx
