CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 26 of 39
EXHIBIT 7(b)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of October 22, 2001, by and among
OAO Technology Solutions, Inc., a Delaware corporation (the "Company"), Terrapin
Partners Subsidiary LLC, a Delaware limited liability company (the
"Shareholder"), and, only for the purposes of Article VII and Section 8.6, X.X.
Xxxxxx Equity Investors I, L.P., a Delaware limited partnership ("JFLEI").
WHEREAS, the Company, the Shareholder, Safeguard Scientifics, Inc.,
a Delaware corporation ("Safeguard Scientifics"), Safeguard Delaware, Inc., a
Delaware corporation and a wholly owned subsidiary of Safeguard Scientifics
("Safeguard Delaware"), and Safeguard 97 Capital, L.P., a Delaware limited
partnership of which Safeguard Delaware is the general partner, are parties to a
Stock Purchase Agreement, dated the date hereof (the "Stock Purchase
Agreement"), pursuant to which the Shareholder acquired on the date hereof
5,729,356 shares of Common Stock (as defined below);
WHEREAS, concurrently with the purchase referred to above, on the
date hereof, Xxxxxx X. Xxxxxx ("Xxxxxx") and certain members of management of
the Company exchanged 1,369,458 shares of Common Stock for common units of
Terrapin Partners Holding Company LLC (the "Holding Company"), a Delaware
limited liability company and the managing member of the Shareholder;
WHEREAS, Xxxxxx, the Shareholder and the Holding Company entered
into that certain Voting Agreement and Irrevocable Proxy, dated the date hereof,
with respect to 1,826,400 shares of Common Stock held by Xxxxxx that are
encumbered to secure obligations of Xxxxxx or his affiliates (the "Encumbered
Shares"), pursuant to which Xxxxxx agreed (i) to vote the Encumbered Shares in
accordance with the voting instructions given by the Shareholder, (ii) to grant
the Shareholder an irrevocable proxy with respect to the Encumbered Shares in
the event they are not voted on a matter and (iii) once the Encumbered Shares
become freely transferable, to contribute the Encumbered Shares to the Holding
Company in exchange for a like number of common units; and
WHEREAS, as a result of the transactions described above
(collectively, the "Transactions"), on the date hereof, the Shareholder will
Beneficially Own (as defined below) approximately 46% of the Total Voting Power
(as defined below) of the Company; and
WHEREAS, the parties hereto wish to further establish the nature of
their relationship and set forth their agreement concerning the governance of
the Company following consummation of the Transactions as well as certain
matters relating to the Shareholder's ownership of Voting Securities (as defined
below) of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto hereby agree
as follows:
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 27 of 39
ARTICLE I
DEFINITIONS
1.1 Definitions. As used in this Agreement, and unless the context
requires a different meaning, the following terms have the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as defined
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act. For
purposes of this definition, "control" when used with respect to any Person
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of this Person, whether through the
ownership of voting securities, by agreement or otherwise; and the terms
"controlling", "controlled by" and "under common control with" have the meanings
correlative to the foregoing; provided that the ability to vote 10% or more of
the Voting Securities of the Company will constitute "control" of the Company.
In addition, for purposes of this definition, any member of the Shareholder
shall be deemed to be an Affiliate of the Shareholder. For the avoidance of
doubt, the Company will not be deemed to be an Affiliate of the Shareholder or
JFLEI under this Agreement.
"Agreement" means this Stockholders Agreement as the same may be
amended, supplemented or modified in accordance with the terms hereof.
Any Person shall be deemed to "Beneficially Own", to have
"Beneficial Ownership" of, or to be "Beneficially Owning" any securities (which
securities shall also be deemed "Beneficially Owned" by such Person) (i) that
such Person is deemed to "beneficially own" within the meaning of Rule 13d-5
under the Exchange Act as in effect on the date of this Agreement or (ii) that
such Person has the right to vote pursuant to a voting agreement, a voting
arrangement or otherwise.
"Board of Directors" means the Board of Directors of the Company.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Charter Documents" means the Restated Certificate of Incorporation
and the Amended and Restated Bylaws of the Company each as in effect on the date
hereof
"Commission" means the United States Securities and Exchange
Commission or any similar agency then having jurisdiction to enforce the
Securities Act.
"Common Stock" means the Common Stock, par value $0.01 per share, of
the Company or any other capital stock of the Company into which such stock is
reclassified or reconstituted and any other common stock of the Company.
"Company" has the meaning set forth in the preamble to this
Agreement.
"Continuing Independent Directors" means members of the Independent
Committee that are (i) Initial Independent Directors or (ii) were appointed to
the Independent Committee in accordance with the provisions of Section 2.1.
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 28 of 39
"DGCL" has the meaning set forth in Section 2.1.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
"Governmental Authority" means the government of any nation, state,
city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Group" has the meaning set forth in Section 13(d) of the Exchange
Act as in effect on the date of this Agreement.
"Independent Committee" has the meaning set forth in Section 2.1.
"Independent Director" means a director of the Company who (i) is
not and has not been, within the three years prior to the date of such person's
appointment as a director, an officer, employee or director of any of the
Shareholder, JFLEI or their Affiliates (as defined in Rule 12b-2 under the
Exchange Act), in each case other than the Company, (ii) has no affiliation or
compensation, consulting or contractual relationship with any of the
Shareholder, JFLEI or their Affiliates (in each case other than the Company)
such that a reasonable person would regard such director as likely to be unduly
influenced by any of such Persons or any of their Affiliates (in each case other
than the Company) and (iii) and is deemed "independent" pursuant to the rules
and regulations of any primary securities exchange or over-the-counter market on
which the Voting Securities of the Company are listed or traded at any time.
"Initial Independent Directors" has the meaning set forth in Section
2.1.
"Material Transaction" shall mean (a) any transaction or series of
related transactions between the Company and the Shareholder, JFLEI or their
Affiliates (i) with a value in excess of $375,000 in the aggregate or (ii) which
is reasonably likely to have a material effect on the Company's business,
financial condition, results of operations or prospects or (b) any reverse stock
split by the Company of the Voting Securities.
"JFLEI" has the meaning set forth in the Preamble to this Agreement.
"Person" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"Purchase Transaction" has the meaning set forth in Section 3.2.
"Restricted Transferees" means (i) Affiliates of the Shareholder or
JFLEI, (ii) members of a Group that includes the Shareholder, JFLEI or their
Affiliates or (iii) other Persons that have a voting trust, voting agreement or
voting arrangement with respect to any Voting Securities of the Company with any
of the Persons referred to in clauses (i) or (ii).
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 29 of 39
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Shareholder" has the meaning set forth in the Preamble to this
Agreement.
"Shares" means, the Voting Securities owned or to be Beneficially
Owned by the Shareholder, including the 8,925,214 Voting Securities to be
acquired by the Purchaser pursuant to the Transactions.
"Stock Purchase Agreement" has the meaning set forth in the recitals
to this Agreement.
"Stockholders Meeting" has the meaning set forth in Section 5.1.
"Total Voting Power" shall mean the total number of votes that may
be cast in the election of directors of the Company if all Voting Securities
outstanding are treated as outstanding pursuant to the final sentence of this
definition were present and voting at a meeting held for such purpose. The
percentage of the Total Voting Power of the Company Beneficially Owned by any
Person is the percentage of the Total Voting Power of the Company that is
represented by the total number of votes that may be cast in the election of
directors of the Company by Voting Securities Beneficially Owned by such Person.
In calculating such percentage, the Voting Securities Beneficially Owned by any
Person that are not outstanding but are subject to issuance upon exercise or
exchange of rights of conversion or any options, warrants or other rights
Beneficially Owned by such Person shall be deemed to be outstanding for the
purpose of computing the percentage of the Total Voting Power represented by
Voting Securities Beneficially Owned by such Person, but shall not be deemed to
be outstanding for the purpose of computing the percentage of the Total Voting
Power represented by Voting Securities Beneficially Owned by any other Person.
"Transactions" has the meaning set forth in the recitals to this
Agreement.
"Voting Securities" shall mean Common Stock and any other securities
of the Company that are entitled to vote generally in the election of directors
of the Company.
"Written Consent" has the meaning set forth in Section 5.1.
ARTICLE II
INDEPENDENT DIRECTORS
2.1 Independent Committee. The Board of Directors shall establish an
independent committee of the Board of Directors (the "Independent Committee") in
accordance with the terms and procedures set forth in the Charter Documents and
the Delaware General Corporation Law (the "DGCL"). The Independent Committee
shall consist of at least three members of the Board of Directors. All members
of the Independent Committee shall be Independent Directors. The Independent
Committee shall initially be composed of Xxxxx X. Xxxxxx III, Xxxxxxx X. Xxxx
and Xxxxxx Xxxxxxxxxx Xxxxx (the "Initial Independent Directors"). All future
members of the Independent Committee shall be recommended by a majority of the
Continuing Independent Directors to the Board of Directors for designation for
election to the
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 30 of 39
Board of Directors and designation for appointment to the Independent Committee.
The Company and the Board of Directors shall consider in good faith the
recommendations of the Continuing Directors for such Independent Directors, and
if such recommendations meet with the reasonable approval of a majority of the
Board of Directors, the Board of Directors and the Company shall use their best
efforts, including soliciting proxies, to cause the election and appointment of
such members, it being understood that in no event shall the Board of Directors
or the Company appoint any Independent Director to the Independent Committee if
such Independent Director has not been recommended by a majority of the
Continuing Independent Directors as provided above; provided, however, that, if
at any point in time there are no Continuing Independent Directors, the Board of
Directors shall appoint at least three Independent Directors to serve on the
Independent Committee, which Independent Directors shall be deemed to be
Continuing Directors for purposes of this Agreement.
2.2 Powers of the Independent Committee. During the term of this
Agreement, notwithstanding anything to the contrary contained in this Agreement,
the Company shall not take, approve or otherwise ratify any Material Transaction
without the consent of at least a majority of the Independent Directors
constituting the entire Independent Committee.
2.3 D&O Insurance; Indemnification. The Shareholder shall not vote
the Voting Securities Beneficially Owned by it for any amendment to the
provisions in the Company's Charter Documents that deal with indemnification of
directors, which amendment would make such provisions less favorable to such
directors. In addition, the Shareholder shall not take any action or cause any
action to be taken that would result in the Company's policies and procedures as
to (i) the reimbursement of expenses of the Independent Directors in performing
their duties as such and (ii) maintaining directors' liability insurance
policies for Independent Directors to be materially less favorable to the
Independent Directors than those in effect on the date hereof.
ARTICLE III
STANDSTILL
3.1 Standstill. Except as otherwise expressly provided in this
Agreement (including this Section 3.1 and Section 3.2 hereto), none of the
Shareholder or any of its Affiliates shall, directly or indirectly, acting
alone, in a Group (other than a Group consisting solely of the Shareholder,
JFLEI and their Affiliates) or in concert with others:
(a) by purchase or otherwise, Beneficially Own, acquire, agree
or offer to acquire any Voting Securities or direct or indirect rights or
options to Beneficially Own Voting Securities, including any voting trust
certificates representing such securities (in each case, other than (i) the
Shares, (ii) rights, options or warrants distributed on a pro rata basis to all
holders of the class or classes of securities of the Company pursuant to
distribution that has been approved by at least a majority of the Independent
Directors constituting the entire Independent Committee, (iii) securities
acquired from the Company pursuant to a rights offer, exchange offer or similar
transaction made by the Company which has been approved by at least a majority
of the Independent Directors constituting the entire Independent Committee; (iv)
grants of restricted Voting Securities or options to purchase Voting Securities
(and the exercise thereof) to an executive officer of the Company who may be
deemed to be an Affiliate of the Shareholder or JFLEI under this Agreement,
which grants have been approved by at least a majority of the Independent
Directors constituting the entire Independent Committee; and (v) grants of
restricted
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 31 of 39
Voting Securities or options to purchase Voting Securities (and the exercise
thereof) to a nonemployee director of the Company who may be deemed to be an
Affiliate of the Shareholder or JFLEI under this Agreement pursuant to an equity
compensation plan generally available to all nonemployee directors of the
Company, which grants have been approved by at least a majority of the
Independent Directors constituting the entire Independent Committee);
(b) enter, propose to enter into, or solicit any merger or
business combination, tender offer, exchange offer or similar transaction
involving the Company, or purchase, acquire, propose to purchase or acquire or
solicit the purchase or acquisition of any portion of the business or assets of
the Company if, in each case, (i) in such transaction, all holders of Voting
Securities of the Company are not treated equally in terms of the dollar value
at closing of the consideration, if any, to be received by such holders or (ii)
such transaction is entered into with Affiliates, members of a Group that
includes the Shareholder, JFLEI or their Affiliates or other Persons that are
acting in concert with the Shareholder, JFLEI or their Affiliates to circumvent
the foregoing provisions;
(c) make, or in any way participate in, any "solicitation" of
"proxies" or become a "participant" in any "election contest" (as such terms are
used in the proxy rules promulgated by the Commission under the Exchange Act)
for the removal of any member of the Independent Committee; or
(d) take any action challenging the validity or enforceability
of the foregoing.
3.2 Shareholder Right To Acquire Voting Securities. Notwithstanding
anything to the contrary set forth in this Agreement (including Section 3.1
above), the Shareholder and its Affiliates shall be entitled to purchase Voting
Securities (a) through market intermediaries in open-market transactions in
amount not to exceed 5% of the Voting Securities in the aggregate through all
open-market purchases; or (b) if (i) such purchase is made as a result of a
transaction or series of transactions (a "Purchase Transaction") in which the
Shareholder and its Affiliates acquire or offer to acquire (by tender offer or
otherwise) all of the outstanding Voting Securities of the Company, (ii) such
Purchase Transaction is approved by at least a majority of the Independent
Directors constituting the entire Independent Committee (so long as such
approval was not obtained by the Shareholder or their Affiliates in violation of
this Agreement), (iii) the consideration to be paid for the Voting Securities in
such Purchase Transaction is deemed to be fair from a financial point of view in
a written opinion issued by an independent nationally recognized investment
banking firm retained by the Independent Committee and (iv) such Purchase
Transaction is approved by holders of Voting Securities representing at least a
majority of the outstanding Voting Securities of the Company actually voting on
such Purchase Transaction (excluding for the purposes of such calculation any
Voting Securities Beneficially Owned by the Shareholder, JFLEI or any of their
Affiliates or members of a Group that includes the Shareholder, JFLEI or their
Affiliates).
ARTICLE IV
AFTER-ACQUIRED SECURITIES; AGREEMENT TO BE BOUND
4.1 After-Acquired Securities. All of the provisions of this
Agreement shall apply to all of the Voting Securities now Beneficially Owned or
which may be Beneficially
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 32 of 39
Owned, issued or transferred hereafter to the
Shareholder in consequence of any additional issuance, purchase, exchange
or reclassification of any of such Voting Securities, corporate reorganization,
or any other form of recapitalization, consolidation, merger, share split or
share dividend, or which are acquired by the Shareholder in any other manner.
ARTICLE V
CORPORATE GOVERNANCE
5.1 General. From and after the execution of this Agreement, the
Shareholder shall vote the Voting Securities it Beneficially Owns at any regular
or special meeting of stockholders of the Company (a "Stockholders Meeting") or
in any written consent executed in lieu of such a meeting of stockholders (a
"Written Consent"), to give effect at all times to the provisions of this
Agreement (including, without limitation, Article II hereof) and, to the extent
of its ability to do so, to ensure that the Charter Documents do not, at any
time hereafter, conflict in any respect with the provisions of this Agreement,
and will otherwise take all other actions within its power required to fulfill
the intent of this Agreement.
ARTICLE VI
STOCK CERTIFICATE LEGEND
6.1 A copy of this Agreement shall be filed with the Secretary of
the Company and kept with the records of the Company. Each certificate
representing Voting Securities now held or hereafter acquired by the Shareholder
shall for as long as this Agreement is effective bear a legend substantially in
the following form in addition to any other legends already set forth on such
certificates:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
RESTRICTED BY THE TERMS OF THE STOCKHOLDERS AGREEMENT,
DATED OCTOBER 22, 2001, AMONG THE COMPANY AND THE
STOCKHOLDERS NAMED THEREIN, A COPY OF WHICH MAY BE
INSPECTED AT THE COMPANY'S PRINCIPAL OFFICE.
Such legend shall be removed only upon transfer of the Voting Securities to
Persons other than JFLEI or the Restricted Transferees.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
Each of the parties hereby represents and warrants, severally and
not jointly, to the others as follows:
7.1 Authority Relative to This Agreement. Such party has all
necessary power and authority to execute and deliver this Agreement, to perform
its obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement by such party and the
consummation by such party of the transactions contemplated hereby have been
duly and validly authorized by the board of directors or other governing body of
such party, and no other proceedings on the part of such party are necessary to
authorize this
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Agreement or to consummate such transactions. This Agreement has been duly and
validly executed and delivered by such party and, assuming the due
authorization, execution and delivery by the other parties hereto, constitutes a
legal, valid and binding obligation of such party, enforceable against such
party in accordance with its terms, except to the extent enforceability may be
limited by bankruptcy, insolvency, moratorium or other similar laws affecting
creditors' rights generally or by general principles governing the availability
of equitable remedies.
7.2 No Conflict. (a) The execution and delivery of this Agreement by
such party does not, and the performance of this Agreement by such party shall
not, (i) conflict with or violate the organizational documents of such party,
(ii) conflict with or violate any agreement, arrangement, law, rule, regulation,
order, judgment or decree to which such party is a party or by which such party
(or the Shares Beneficially Owned by such party) is bound or affected or (iii)
result in any breach of or constitute a default (or an event that with notice or
lapse or time or both would become a default) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of a lien or encumbrance on any of the Shares Beneficially Owned by
such party pursuant to any note, bond, mortgage, indenture, contract, agreement,
lease, license, permit, franchise or other instrument or obligation to which
such party is a party or by which such party (or the Shares Beneficially Owned
by such party) is bound or affected, except, in the case of clauses (ii) and
(iii) of this Section 7.2, for any such conflicts, violations, breaches,
defaults or other occurrences which would not prevent the performance by such
party of its material obligations under this Agreement.
(b) The execution and delivery of this Agreement by such
party does not, and the performance of this Agreement by such party shall not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any Governmental Authority except for applicable requirements,
if any, of federal or state securities and antitrust laws and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent the performance by such
party of its material obligations under this Agreement.
ARTICLE VIII
MISCELLANEOUS
8.1 Notices. All notices, demands or other communications provided
for or permitted hereunder shall be made in writing and shall be by registered
or certified first class mail, return receipt requested, telecopier, courier
service, or personal delivery.
(a) if to the Company:
OAO Technology Solutions, Inc.
0000 Xxxxxxxx Xxxxxx Xxxxx
00xx xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
General Counsel and Secretary
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with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
(b) if to the Shareholder or JFLEI:
c/o X.X. Xxxxxx & Company
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx
with a copy to:
Xxxxxx Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
All such notices, demands and other communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five Business Days after
being deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 8.1 designate another address or Person for receipt
of notices hereunder.
8.2 Successors and Assigns; Third Party Beneficiaries. This
Agreement shall inure to the benefit of and be binding upon successors and
permitted assigns of the parties hereto. This Agreement is not assignable except
in connection with a transfer of Voting Securities in accordance with this
Agreement. No Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement.
8.3 Amendment and Waiver.
(a) No failure or delay on the part of any party hereto in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the parties
hereto at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any party from the terms of any provision of
this Agreement, shall be effective only
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 35 of 39
if it is (i) approved by at least a majority of the Independent Directors
constituting the entire Independent Committee and (ii) made or given in writing
and signed by the Company, the Shareholder and JFLEI. Any such amendment,
supplement, modification, waiver or consent shall be binding upon the Company,
the Shareholder and JFLEI.
8.4 Counterparts. This Agreement may be executed in any number of
counterparts, and by the parties hereto in separate counterparts each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
8.5 Specific Performance. The parties hereto intend that each of the
parties have the right to seek damages or specific performance in the event that
any other party hereto fails to perform such party's obligations hereunder.
Therefore, if any party shall institute any action or proceeding to enforce the
provisions hereof, any party against whom such action or proceeding is brought
hereby waives any claim or defense therein that the plaintiff party has an
adequate remedy at law.
8.6 JFLEI Guarantee. JFLEI shall use commercially reasonable efforts
to cause the Shareholder to comply with, and perform, all its obligations
hereunder.
8.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
8.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
8.9 Severability. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, 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 hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
8.10 Rules of Construction. Unless the context otherwise requires,
references to sections or subsections refer to sections or subsections of this
Agreement.
8.11 Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, representations, warranties or undertakings, other than those set
forth or referred to herein. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such subject matter.
8.12 Term of Agreement. This Agreement shall become effective upon
the execution hereof and shall terminate and cease to be of any further force
and effect upon the earlier of: (i) the third anniversary of the date hereof;
(ii) with respect to any Voting Securities Beneficially Owned by the Shareholder
(including the Shares), upon the transfer of such Voting
CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 36 of 39
Securities to a Person other than JFLEI or a Restricted Transferee; (iii) the
date on which the Shareholder, together with JFLEI and any Restricted
Transferee, shall cease to Beneficially Own Voting Securities of the Company
representing at least 15% of the Total Voting Power of the Company; and (iv) the
date on which the Company files a Form 15 with the Commission, or a comparable
form then in effect, notifying the Commission that its filing obligations with
the Commission have terminated, the filing of which was approved by at least a
majority of the Independent Directors constituting the Independent Committee.
8.13 Further Assurances. Each of the parties shall, and shall cause
their respective Affiliates to, execute such documents and perform such further
acts as may be reasonably required or desirable to carry out or to perform the
provisions of this agreement.
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CUSIP NO. 67082B 10 5 SCHEDULE 13D Page 37 of 39
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Stockholders Agreement on the date first written above.
OAO TECHNOLOGY SOLUTIONS, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxx X. Xxxxx
President and Chief Executive Officer
TERRAPIN PARTNERS SUBSIDIARY LLC
By: Terrapin Partners Holding Company LLC,
its managing member
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Managing Member
X.X. XXXXXX EQUITY INVESTORS I, L.P. (only
for the purpose of Article VII and Section 8.6)
By: JFL Investors LLC, its sole general partner
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxx, Managing Member
