SHAREHOLDERS AGREEMENT
Exhibit
10.7
SHAREHOLDERS
AGREEMENT
This
SHAREHOLDERS AGREEMENT dated as of ______________, 2008 (this “Agreement”),
among Artio Global Investors Inc., a Delaware corporation (the “Company”),
and Xxxxxx Xxxx Holding Ltd., a company organized under the laws of Switzerland
(“JBH”)
and each other holder from time to time of Class C Stock (as defined below) that
hereafter becomes a party hereto (JBH and each such other holder being herein
called a “Shareholder”).
W
I T N E S S E T H :
WHEREAS,
the Company will issue shares of its class C common stock, par value $0.001 per
share (the “Class
C Stock”), to JBH immediately prior to the initial public offering of
shares of stock of the Company (the “IPO”);
and
WHEREAS,
pursuant to the Amended and Restated Certificate of Incorporation of the Company
(the “Certificate
of Incorporation”), any holder of Class C Common Stock shall be entitled
to a vote per share for each share held of record on all matters on which
stockholders generally are entitled to vote equal to the greater of (a) one vote
for each share of Class C Common Stock held of record by such holder and (b) an
amount equal to (i) 25% of the sum of (x) the total number of shares of the
Company’s class A common stock, par value $0.001 per share (the “Class
A Stock”), then outstanding and (y) the total number of shares of the
Company’s class B common stock, par value $0.001 per share (the “Class
B Stock”), then outstanding, divided by (ii) the total number of shares
of Class C Common Stock then outstanding; and
WHEREAS,
the parties hereto desire to enter into this Agreement to govern certain of
their rights, duties and obligations after consummation of the
IPO.
NOW,
THEREFORE, in consideration of the covenants and agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, intending to be legally bound
hereby, the parties hereto agree as follows:
1. Composition
of the Board. (a) Following the consummation of the IPO, JBH
shall have the right to designate one director of the Board of Directors of the
Company (the “Board”)
for so long as the Aggregate Ownership of JBH and the JBH Subsidiaries (as
defined below) is equal to or greater than 10%. Such director shall
initially be in the class of directors with a term expiring in
2011. For the purposes of this Agreement, “Aggregate
Ownership” means the percentage of the outstanding Class A Common
Stock “beneficially
owned” (as
such term
is defined in Rule 13d-3 of the Securities Exchange Act of 1934, as
amended) (without duplication) by JBH and its JBH Subsidiaries as of the date of
such calculation, calculated on a fully diluted basis assuming all New Class A
Units of Artio Global Holdings LLC held by each of Xxxxxxx X. Xxxx and
Xxxxxxx-Xxxx Xxxxxx and their respective successors and assigns and Class C
Stock owned by JBH and the JBH Subsidiaries are exchanged or converted, as
applicable, for shares of Class A Stock. “JBH
Subsidiary” means any subsidiary of JBH that holds Class C Stock and is a
party to this Agreement.
(b) The
Company agrees to use its best efforts to cause the individual designated
pursuant to Section 1(a) to be
nominated to serve as a director on the Board, and to take all other necessary
actions (including calling a special meeting of the Board and/or shareholders)
to ensure that the individual designated pursuant to Section 1(a) serves
as a director of the Company.
2. Vacancy. (a)
If, as a result of death, permanent disability, retirement, resignation, removal
(with or without cause) or otherwise, the Board seat held by the individual
designated pursuant to Section 1(a) becomes
vacant, the Shareholder may, subject to the provisions of Section 1(a), designate
pursuant to Section 1(a) another
individual (the “Replacement
Nominee”) to fill such vacancy and serve as a director of the
Company.
(b) The
Company agrees to use its best efforts to cause the Replacement Nominee to be
nominated to serve as a director on the Board, and to take all other necessary
actions (including calling a special meeting of the Board and/or shareholders)
to ensure that the Replacement Nominee succeeds to the Board seat vacated by the
individual designated pursuant to Section 1(a).
3. Board
Observer. If the Aggregate Ownership of JBH and the JBH
Subsidiaries falls below 10%, then, until the later of the date upon
which (a) the Aggregate Ownership of JBH and the JBH Subsidiaries falls
below 5% or (b) that certain Transition Services Agreement between JBH and
the Company dated as of [_________],
2008 (as amended from time to time) is terminated or expires according to its
terms, JBH shall have the right to appoint a representative (the “Board
Representative”) to attend each meeting of the Board as a non-voting
observer, whether such meeting is conducted in person or by
teleconference. The Board Representative shall have the right to
present matters for consideration by the Board and to speak on matters presented
by others. Subject to the confidentiality provisions of this Section
3, the
Company shall cause the Board Representative to be provided with all
communications and materials that are provided by the Company or its consultants
to the members of the Board generally, at the same time and in the same manner
that such communications and materials are provided to such members, including
all notices, board packages, reports, presentations, minutes and
consents. The Board Representative shall be entitled to meet and
consult with the senior executive management team of the
2
Company on a quarterly
basis to discuss the quarterly and annual business plans of the Company and the
Company’s subsidiaries and to review the progress of the Company and the
Company’s subsidiaries in achieving their plans. In addition, upon
request to the chief executive officer of the Company, the members of the senior
executive management team of the Company shall make themselves available during
normal business hours to meet with the Board Representative on an interim basis,
as the Board Representative may reasonably request from time to time, and as
would not unreasonably interfere with the duties of the members of the senior
executive management team of the Company.
Notwithstanding
any other provision of this Section 3 to the
contrary, the Company or the Board shall have the right to keep confidential
from the Board Representative for such period of time as the Company or the
Board deems reasonable any information and copies of written materials the
Company is required by law or agreement with a third party to keep
confidential. As a condition of the exercise of their rights under
this Section 3, the Board
Representative shall enter into such agreements or undertakings with the Company
to maintain the confidentiality of information provided to them in connection
with the exercise of such rights as the Company may reasonably
request.
4. Voting
Agreement. To the extent the Shareholders are entitled under
the Certificate of Incorporation to a vote per share of Class C Stock greater
than one vote for each share of Class C Stock held of record by the Shareholders
at any meeting of the common stockholders of the Company and at any adjournment
thereof, each Shareholder hereby agrees to vote (or cause to be voted) in person
or by proxy, such excess shares on the same basis and in the same proportion as
the votes cast by holders of the Class A Stock and Class B Stock. Any
such excess vote shall be cast in accordance with the procedures applicable
thereto so as to ensure that it is duly counted for purposes of determining that
a quorum is present and for purposes of recording the results of such
vote.
5. Entire
Agreement. This Agreement constitutes the entire agreement
among the parties hereto and supersedes all other prior agreements, both oral
and written, among the parties hereto with respect to the subject matter
hereof.
6. No
Third Party Beneficiaries. Nothing in this Agreement,
expressed or implied, is intended to confer on any person other than the parties
hereto, and their respective heirs, successors, legal representatives and
permitted assigns, any rights or remedies hereunder.
7. Assignment. Neither
this Agreement nor any of the rights or obligations hereunder shall be assigned
by any of party hereto without the prior written consent of the other
party. Notwithstanding the preceding sentence, JBH
3
may assign
its rights hereunder in whole or in part to a JBH Subsidiary, provided
that such JBH Subsidiary (a) executes and delivers a Joinder Agreement (as
defined in Section 16), and (b) remains at all times thereafter a subsidiary of
JBH. Subject to the preceding sentence, this Agreement will be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and permitted assigns.
8. Waiver;
Amendment. No provision of this Agreement may be waived unless
such waiver is in writing and signed by the party against whom the waiver is to
be effective. No provision of this Agreement may be amended unless
such amendment is approved in writing by the Company and the
Shareholders.
9. Counterparts. This
Agreement may be executed (including by facsimile transmission) with counterpart
pages or in one or more counterparts, each of which shall be deemed to be an
original and all of which shall, taken together, be deemed to be one and the
same instrument.
10. Governing
Law. This Agreement shall be governed by, construed and
enforced in accordance with, the laws of the State of New York, without regard
to the conflicts of laws rules of such state.
11. Consent
to Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby shall be brought in the United States District Court for the
Southern District of New York or any New York State court sitting in the Borough
of Manhattan, so long as one of such courts shall have subject matter
jurisdiction over such suit, action or proceeding, and that any cause of action
arising out of this Agreement shall be deemed to have arisen from a transaction
of business in the State of New York, and each of the parties hereby irrevocably
consents to the jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any party anywhere in the
world, whether within or without the jurisdiction of any such
court.
12. Waiver
of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
4
13. Severability. The
provisions of this Agreement shall be deemed severable and the invalidity or
unenforceability of any provision shall not affect the validity or
enforceability of the other provisions hereof. If any provision of
this Agreement, or the application thereof to any person or entity or any
circumstance, is found to be invalid or unenforceable in any jurisdiction, (a) a
suitable and equitable provision shall be substituted therefor in order to carry
out, so far as may be valid and enforceable, the intent and purpose of such
invalid or unenforceable provision and (b) the remainder of this Agreement and
the application of such provision to other persons, entities or circumstances
shall not be affected by such invalidity or unenforceability, nor shall such
invalidity or unenforceability affect the validity or enforceability of such
provision, or the application thereof, in any other jurisdiction.
14. Effective
Time. This Agreement shall become effective upon the
IPO.
15. Joinder. JBH
shall cause all its successors and permitted assigns and each other JBH
Subsidiary that is a holder of any Class C Stock to execute and deliver to
the Company an agreement to be bound by this Agreement as a Shareholder, in form
and substance reasonably satisfactory to the Company (a “Joinder
Agreement”) prior to or contemporaneously with any such JBH Subsidiary
becoming a holder of Class C Stock. No Shareholder shall transfer any
shares of Class C Stock to a JBH Subsidiary unless such JBH Subsidiary executes
and delivers a Joinder Agreement and any purported transfer in violation of this
Section 15 shall be deemed to be null and void ab
initio.
5
IN WITNESS
WHEREOF, the parties have caused this Agreement to be duly executed and
delivered, all as of the date first set forth above.
|
ARTIO
GLOBAL INVESTORS INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
XXXXXX
XXXX HOLDING LTD.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
