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EXHIBIT 10.05
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT FOR SHARES
ISSUED UNDER 1992 INCENTIVE STOCK OPTION PLAN
AGREEMENT, dated the ____ day of __________, 199__ between ATLANTIC
DATA SERVICES, INC., a Massachusetts corporation (herein called the
"Corporation") and _________ (herein called the "Shareholder"),
WITNESSETH:
WHEREAS, the Corporation has granted Shareholder under the terms of
the Corporation's 1992 Incentive Stock Plan (the "Plan") the right and option
(the "Option") to purchase ________ shares of Common Stock Class A, one cent par
value of the Corporation (the "Shares") for $0.91 per share; and
WHEREAS, Shareholder desires to exercise such Option for said Shares
of the Corporation; and
WHEREAS, in furtherance of the Plan, the parties hereto desire to
set forth certain terms and conditions with respect to the use, ownership and
transfer of the Shares by the Shareholders.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
provisions herein contained, each of the parties hereto, for himself or itself,
and for his or its heirs, representatives, successors and assigns agrees with
every other party hereto as follows:
ARTICLE 1
INVESTMENT REPRESENTATION
1.01 Shareholder has exercised its option to purchase the Shares of the
Corporation as granted pursuant to the Plan and Option and delivers
herewith his check payable to the order of the Corporation in the
amount of $________ (the "Purchase Price") representing payment in
full for said Shares so subscribed for. The Corporation hereby
acknowledges receipt of such payment by Shareholder and has
delivered to Shareholder a certificate registered in his name for
the Shares of the Corporation. Shareholder hereby acknowledges
receipt of such Shares.
1.02 Shareholder represents and warrants to the Corporation that the
Shares have been purchased for investment within the meaning of the
Securities Act of 1933 (the "Act") and agrees that notwithstanding
any other term or provision of the Plan, the Option or this
Agreement, they may not, and will not, be offered or sold without an
effective Registration Statement under the Act and the Massachusetts
Uniform Securities Act (namely, Massachusetts General Laws Chapter
110A) (the "State Act") or an opinion of counsel satisfactory to the
Corporation to the effect that the proposed transaction will be
exempt from registration under the Act and the State Act. Nothing
contained in the Plan,
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the Option or Articles 2 or 3 hereof shall constitute a waiver of
the requirements of this Section 1.02.
ARTICLE 2
RESTRICTIONS DURING LIFE
2.01 Shareholder's Obligations to Offer Shares to Corporation -
Shareholder shall not, during his lifetime, sell, assign, transfer,
pledge or otherwise, directly or indirectly, dispose of, or encumber
(all such dispositions shall hereafter be referred to by use of the
verb "dispose") any of his Shares of the Corporation to, or with,
any other person, firm or corporation (including, without
limitation, dispositions to any other shareholder and dispositioning
by gift) unless (a) the Shareholder shall have first made the offer
to sell hereinafter described in this Article 2 (the "Offer") and
such Offer shall not have been accepted by the Corporation and (b)
thereafter, the Shareholder shall have compiled with the Right of
First Refusal set forth in Article 3 hereof and the Corporation
shall have elected not to exercise its rights thereunder. In any
event, no Shares shall be sold or offered for sale by Shareholder in
violation of the Plan, the Option or Section 1.02 hereof.
2.02 Offer by Transferor - The Offer shall be given (the date on which
such Offer is given is hereinafter called the "Offer Date") to the
Corporation and shall consist of a written offer to sell all the
Shares of the Corporation which the Shareholder then intends to
dispose of (said shares are hereinafter called the "Offer Shares")
to which written Offer shall be attached a statement of intention to
dispose of the Offered Shares, the number of shares involved and the
price at which it would be willing to sell such shares.
2.03 Rights of Corporation - The Corporation may elect to purchase all,
but not less than, all of the Offered Shares by giving written
notice to the Shareholder within thirty (30) days of the Offer Date
which (a) shall state whether or not the Corporation elects to
exercise its option and (b) shall fix a date and time (herein called
"Closing Date") for the closing of the purchase of such stock which
shall be not less than twenty (20), nor more than sixty (60), days
after giving of such notice by the Corporation.
2.04 Effect of Failure to Give Notice - Failure by the Corporation to
give notice required of it pursuant to the foregoing Sections within
the time limits therein provided shall be deemed an election by said
Corporation not to exercise the subject rights.
2.05 Failure to Subscribe All Offered Shares - If the Corporation shall
fail to exercise the respective right and option provided in this
Article 2 to acquire all of the Offered Shares owned by the
Shareholder, the Shareholder shall (subject to the Corporation's
further Right of First Refusal set forth in Article 3 hereof and
subject to the other restrictions set forth in the Plan and/or on
the stock certificate for such Shares) be free to sell all the
Offered Shares, only if such sale is bona fide and is consummated in
strict accordance with the terms of the Offer within ninety (90)
days after the expiration of the Corporation's Right of First
Refusal, and if no such third party transfer or encumbrance is
consummated within such period, such Offered Shares shall, again,
become subject to all the restrictions of this Agreement and the
rights of Corporation hereunder and under
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Article 3 in the same manner as if no notice of Offer had been
given; and, in any event, such Offered Shares shall, again, be
subject to these restrictions and to the terms of this Article 2,
Article 3, 8 (and to all other restrictions and terms set forth in
this Agreement, the Option and the Plan) in the hands of the
third-party purchaser or lienor if such disposition is effected.
2.06 Payment of Purchase Price - If the Corporation shall exercise any
right described in this Article 2, then the Corporation shall pay to
the Shareholder on the Closing Date, an amount equal to the Purchase
Price (as hereinafter defined) for the Shares purchased, either in
cash or by certified or official bank check.
2.07 Purchase Price - The Purchase Price for the Offered Shares shall be
the price set forth in the Offer.
2.08 Assumption on Sale - Shareholder shall not sell or otherwise
transfer any of the Shares of the Corporation held by him unless the
transferee thereof shall agree to be bound by the terms of this
Agreement by an instrument in writing directly with the Corporation,
an executed copy of which shall have been furnished to the
Corporation; such transferee, however, by the acceptance of such
Shares shall thereupon become a party to this Agreement, bound by
all the terms hereof, without further action and, specifically,
whether or not such transferee shall have executed such an
instrument. Shareholder is not presently, and shall not at any time,
except as expressly permitted hereby, become a party to any voting
trust or other agreement with respect to Shares owned by him which
would, in any way, impair the rights of the Corporation.
2.09 Assignment of Corporation's Purchase Rights - If, at any time, the
Corporation shall have the right to purchase any Offered Shares
pursuant to the provisions of this Article 2 or Article 3, the
Corporation may, by a two-thirds vote of the Board of Directors,
assign any such right to any officer, director, or employee of the
Corporation, in such proportions as the Board may determine. All
provisions of this Agreement shall remain applicable to any shares
purchased by any such officer, director, or employee pursuant to
such assignments.
2.10 Circumstances Under Which an Offer is Deemed Made - If a Shareholder
shall attempt to assign, transfer, pledge, hypothecate, or otherwise
encumber or dispose any of his Shares without complying with the
terms of this Agreement, the Option and the Plan, or if the Shares,
or any part thereof, shall be executed against, or voluntarily
subjected to encumbrance, or if he shall attempt to sell any of his
Shares other than in compliance with the terms of this Agreement,
the Option and the Plan, or if a Shareholder shall initiate or have
initiated against him, a bankruptcy or insolvency proceeding which
is not discharged within ninety (90) days of the commencement
thereof or if Shareholder ceases to be employed by the Corporation
(or in the case of a non-employee, director, ceases to be a director
of the Corporation) (whether voluntarily or involuntarily) or if
Shareholder dies, such Shareholder shall be deemed to have given an
Offer to the Corporation under Section 2.02 of this Agreement with
respect to all Shares owned by him, with the Offer Date being the
date upon which each member of the Board of Directors has actual
notice thereof.
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ARTICLE 3
RIGHTS OF FIRST REFUSAL
3.01 Corporation and Shareholder agree that if the Corporation shall not
elect to purchase the Offered Shares pursuant to the Corporation's
rights under Article 2 of this Agreement and if Shareholder,
nevertheless, desires to sell the Offered Shares and shall have
received a bona fide offer from a third party to purchase the same,
Shareholder shall first offer the Offered shares for sale to the
Corporation. Such offer shall be at the price and upon the other
terms and conditions embodied in the Shareholder's offer from the
third party and as provided in this Article 3. Such offer by
Shareholder to the Corporation shall also give the name and address
of each prospective purchaser of the Shares. Corporation shall have
the longer of (i) thirty (30) days, if the value of such offer is
readily ascertainable or (ii) the time required for an accurate
determination of the value of such offer (if such offer shall not be
a cash or equivalent transaction) plus fifteen days, in which to
elect to purchase the offered interest from the Shareholder, upon
the price, terms and conditions set forth in said notice.
3.02 If the Corporation elects to purchase, the Shareholder shall sell
the Offered Shares and the Corporation shall purchase the Offered
Shares (subject to and with the benefit of (i) the continued
application of Articles 2 and 3 of this Agreement to any subsequent
sale of Shares if the Shares being sold do not include all of the
Shares included in the original Offer under Article 2. The closing
of the purchase shall occur at the offices of the Corporation upon
the later to occur of (a) thirty (30) days after the date of
acceptance of such offer by the Corporation or (b) the date set for
closing in the Offer, and each party shall deliver such documents
and take such action in connection with the closing as is required
by the Offer.
3.03 If the Corporation shall fail to give notice of election to purchase
the Offered Shares, or after giving notice of election to purchase
the Offered Shares, shall fail to perform its obligation pursuant
thereto, the Shareholder shall (subject to other restrictions set
forth in the Plan the other restrictions appearing in the Stock
Certificates) be free to sell the Offered Shares but only for the
price and upon the terms and conditions set forth in the Offer, only
to the purchase named therein and only if such sale is bona fide and
is consummated in strict accordance with the terms of the Offer
within ninety (90) days after expiration of the Corporation's rights
under this Article 3 and if no such third party transfer is
consummated within such period, such Offered Shares shall, again,
become subject to all the restrictions of this Agreement (and other
applicable provisions of the Plan) and all of the rights of the
Corporation under Articles 2 and 3, in the same manner as if no
notice of Offer had first been given under Article 2 of this
Agreement, and, in any event, such Offered Shares shall, again, be
subject to the terms and provisions of this Agreement in the hands
of the third party purchaser if such disposition is effected. No
offer or sale shall be made to any third party purchaser without
compliance with Section 1.02 hereof.
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ARTICLE 4
PURCHASE BY CORPORATION HEREUNDER
4.01 Whenever Corporation, pursuant to this Agreement, shall purchase any
Shares, each selling Shareholder shall do all things and execute and
deliver all papers as the Corporation may deem reasonably necessary
to consummate such purchase.
ARTICLE 5
PURCHASE PRICE
5.01 The purchase price for Shares as set forth in Section 2.07(b) in
this Agreement (the "Price") shall be determined by multiplying the
price per share (the "Share Price") by the number of shares of Stock
being acquired. The Share Price shall be equal to the price per
share of Common Stock Class A last established by the Board of
Directors of the Corporation and in effect on the date the offer is
made.
5.02 The determination by the Corporation's Board of Directors of the
Share Price shall be final, binding, and conclusive upon all parties
hereto and their legal representatives.
ARTICLE 6
BAR AGAINST ENCUMBRANCING
6.01 Notwithstanding anything contained in this Agreement to the
contrary, Shares may not be voluntarily mortgaged, pledged,
hypothecated, collaterally assigned or otherwise encumbered as
security for any loan or other obligation without first obtaining
the written consent of all parties bound by the terms of this
Agreement.
ARTICLE 7
ENDORSEMENT ON SHARE CERTIFICATES
7.01 Each certificate representing Shares of the Corporation now or
hereafter held by the Shareholder shall be stamped with a legend in
substantially the following form-(in addition to the legend required
under Section 4(L) or the Plan):
"The transfer of the shares represented by the within certificate is
restricted under the terms of an agreement between the holder and
the Corporation dated __________, 199__, a copy of which is on file
at the office of the Corporation. These shares have been purchased
for investment within the meaning of the Securities Act of 1933 and
they may not be offered or sold without an effective Registration
Statement under that Act or an opinion of counsel satisfactory to
the Company to the effect that the proposed transaction
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will be exempt from registration. The shares represented by this
Certificate have been issued pursuant to the Limited Offering
Exemption under Section 402(b) (9) of the Massachusetts Uniform
Securities Act and may not be offered or sold to a person without an
effective Registration Statement under that Act or an opinion of
counsel satisfactory to the Corporation to the effect that the
proposed transaction will be exempt from registration. Preferences,
voting powers, qualifications and rights (including, without
limitation, exchange and conversion rights) attributable to various
classes of stock of the Company exist and vary among the different
classes of stock of the Company. The Company will furnish a copy
thereof to the holder hereto without charge."
ARTICLE 8
MANDATORY TRANSFER OR EXCHANGE OF SHARES
8.01 Upon the occurrence of a Triggering Event (as said term is
hereinafter defined), the Corporation shall have the right (the
"Mandatory Sale Right") to require, at its option, that Shareholder
sell and transfer all of the Shares to, at the option of the
Corporation, either the Corporation or the purchaser of the Control
Shares (as said term is hereinafter defined) in connection with such
Triggering Event. In such case, the purchase price shall be an
amount equal to the Mandatory Sale Price, (as said term is
hereinafter defined). If the Triggering Event involves an exchange
of all, but not less than all, of the Control Shares for shares of
another corporation, partnership, limited partnership, trust or
other entity (an "Exchange Entity") or a combination of the sale
some of the Control Shares and an exchange for the balance of the
Control Shares, then, upon the occurrence of such Triggering Event,
the Corporation shall also have the right (the "Mandatory Exchange
Right") to require, at its option, that Shareholder exchange all of
the Shares for shares or other securities in the Exchange Entity at
the same per share exchange ratio applicable to the Control Shares
of the Major Shareholders which are exchanged in such transaction
or, at the option of the Corporation, the Corporation may require
that the Shareholder sell and transfer all of the shares to, at the
option of the Corporation, either the Corporation or the Exchange
Entity, in which case, the purchase price shall be an amount equal
to the per share price payable to the Major Shareholder for the
Control Stock in connection with such Triggering Event. It is
expressly understood and agreed that for purposes hereof the term
"Triggering Event" shall include the exchange by the Major
Shareholders (or the combined sale and exchange by the Major
Shareholders) of all the Control Shares then owned by such Major
Shareholders for stock or other securities of an Exchange Entity or
for stock and cash. For purposes hereof, an Exchange Entity will
only include Persons who are Qualified Purchasers (as said term is
hereinafter defined). The Corporation may exercise such Mandatory
Sale or Exchange Right at any time after the occurrence of a
Triggering Event through and including the date of closing of the
transaction contemplated by the Triggering Event. The closing of any
such purchase, sale or exchange of the Shares in connection with the
exercise of such Mandatory Sale or Exchange Right shall occur
simultaneously with the closing of the transfer or exchange (as the
case may be) of the Control Shares (as said term is hereinafter
defined) in connection with the applicable Triggering Event.
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8.02 Tenders - All shares which the Corporation or the purchaser in
connection with a Triggering Event purchases or is to receive in an
exchange under this Article 8 shall be tendered to the Corporation
or to such designated purchaser at the principal office of the
Corporation, or at such other reasonable place as the Corporation
may require, at a reasonable date and time specified by the
Corporation (but, in any event, if the Corporation so elects within
seven (7) days after the Corporation's notice to the Shareholder of
the exercise of such Mandatory Sale or Exchange Right) by delivery
of certificates representing such Shares, endorsed in blank and in
proper form for transfer against payment of the purchase price in
cash or by certified or bank check (or for exchange, as the case may
be, for stock of an Exchange Entity). If the transaction
contemplated by the Triggering Event giving rise to the exercise of
the Mandatory Sale or Exchange Right shall not close, then the
Corporation shall be under no obligation to purchase or exchange, or
cause the purchase, of such Shares pursuant to this Article 8 and
shall have no liability or obligation to the Shareholder in
connection therewith. The Corporation shall have the right to extend
the Closing Date of the sale or exchange contemplated by the
exercise of the Mandatory Sale or Exchange Right from time to time
by written notice to the Shareholder but in no event shall the
Corporation have the right to extend such sale beyond the date for
closing the sale or exchange by the Major Shareholders in connection
with the Triggering Event as such date may be extended from time to
time. If a sale or exchange hereunder does not close because the
transaction giving rise to the applicable Triggering Event does not
close, the Shares shall, nevertheless, remain subject to all the
terms and provisions of this Agreement and all of the rights of the
Corporation under this Article 8 in the same manner as if no
Triggering Event had occurred.
8.03 As used herein, the term "Triggering Event" shall mean the sale and
transfer by Xxxxxx Xxxx, Xxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, and General
Atlantic Partners II, L.P. ("GAP"), a Bermuda corporation
(collectively, the "Major Shareholders" which term shall also
include the successors and assigns of the named Major Shareholders
with respect to their Control Shares) to a person(s), corporation,
partnership, limited partnership, trust or other entity
(collectively, a "Person") of all (but not less than all) of the
Common Stock, Par Value $.01 per share and Special Common Stock, Par
Value $.01 per share of the Corporation then owned, in the
aggregate, by the Major Shareholders (such Common Stock and Special
Common Stock being hereinafter collectively referred to as the
"Control Shares") to a Person (a "Qualified Purchaser") who is not
(i) a Major Shareholder, (ii) a trustee of a trust established by a
Major Shareholder, (iii) a family member of a Major Shareholder,
(iv) a Person or Persons 51% or more of the capital stock of which
is owned or controlled, directly or indirectly, or through one or
more intermediaries, by one or more Major Shareholders (except where
GAP is the only Major Shareholder which owns or controls such
interest) or (v) a Person (except GAP and the persons who own or
control GAP) (collectively, "Affiliates"). The term "Triggering
Event" shall also include certain exchanges of Control Shares for
shares in Exchange Entities as more particularly set forth in
Section 8.01. It is expressly agreed that sales and/or transfers of
the Control Shares to any Affiliate (except GAP and affiliates of
GAP) shall not constitute a Triggering Event and that sales and/or
transfers of less than all of the Control Shares of all Major
Shareholders shall not constitute a Triggering Event. As used
herein, the term "Mandatory Sale Price" shall mean an amount equal
to (a) the
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product of (i) the number of Shares being transferred by the
Shareholder hereunder and (ii) the per share price payable to the
Major Shareholders for the Control Stock in connection with the
applicable Triggering Event.
ARTICLE 9
SPECIFIC PERFORMANCE
9.01 Shareholder acknowledges that it will be impossible to measure in
money the damage to the Corporation if there is a failure to comply
with any of the restrictions or obligations herein imposed upon the
disposition of his Shares, or a failure to comply with the
provisions of Articles 1, 2, 3, 6, and 8 hereof or any provision of
the Plan or Option, and agrees that in the event of any such
failure, the Corporation will not have an adequate remedy at law.
9.02 It is therefore agreed that the Corporation, in addition to any
other rights or remedies which it has, shall be entitled to
immediate injunctive relief to enforce such restrictions,
obligations or provisions, or any of them, and that in the event any
action or proceeding is brought in equity to enforce the same, no
Shareholder will urge, as a defense, that there is an adequate
remedy at law.
ARTICLE 10
NOTICES
10.01 Any and all notices, designations, consents, offers, acceptances, or
any other communication provided for herein shall be given in
writing by hand delivery or by registered or certified mail which
shall be addressed, in the case of the Corporation, to its principal
office, and in the case of the Shareholder, to his address appearing
on the books of the Corporation or his residence or to such other
address as may be designated by him. Each such notice shall be dated
as of the date of its mailing and shall be deemed given, delivered,
and completed on the date of mailing thereof provided it is received
in due course or, in the case of hand delivery, on the date of
delivery.
ARTICLE 11
INVALID PROVISIONS
11.01 The invalidity or unenforceability of any particular provision of
this Agreement shall not affect the other provisions hereof, and the
Agreement shall be construed in all respects as if such invalid or
unenforceable provisions were omitted.
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ARTICLE 12
MODIFICATION
12.01 No change or modification of this Agreement shall be valid unless
the same be in writing and signed by all the parties hereto.
ARTICLE 13
NO SEPARATE ASSIGNMENT
13.01 Except as otherwise expressly permitted by the terms of this
Agreement, the right granted under this Agreement may not be severed
from the Shares or separately assigned, sold or otherwise
transferred.
ARTICLE 14
MISCELLANEOUS
14.01 No waiver by a party hereto of a breach of any condition, term or
provision of this Agreement shall be deemed a waiver of any
preceding or subsequent breach of the same or any other condition,
term or provision hereto.
14.02 This Agreement is made pursuant to, and shall be governed by and
construed in accordance with the internal laws of the Commonwealth
of Massachusetts, as of the date hereof. It sets forth the entire
agreement among the parties concerning the subject matter thereof,
and any amendment or modification will be effective only if in
writing and signed by the parties affected thereby. Time is of the
essence of this Agreement for all purposes. Any provisions in the
Articles of Incorporation of the Bylaws of the Corporation
purporting to effect restrictions on the transfer of Stock are in
addition to the restrictions contained herein.
14.03 This Agreement shall supersede and replace all prior agreements
between the Corporation and any other party hereto relating to the
same subject matter. Except as set forth in Section 14.04 below,
this Agreement shall continue in full force and effect so long as
the Shares shall remain issued and outstanding. This Agreement shall
bind and benefit the parties hereto and their respective successors
and legal representatives.
14.04 The restrictions on transfer of the Shares contained in Articles 2,
3,6 and 8 shall terminate on the earliest to occur of: (i) ten years
from the date hereof or (ii) a distribution to the public of shares
of common stock of the Company for an aggregate public offering
price of at least $10 million pursuant to an effective registration
statement filed under the Act or any successor statute.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
the day and year first above written.
ATLANTIC DATA SERVICES, INC.
By:_____________________________________
Its:____________________________________
SHAREHOLDER:
________________________________________
