Exhibit 4.8
AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT (the "Agreement")
dated as of _______________, 1996, by and among QCS CORPORATION, a Delaware
corporation ("QCS"), the Persons listed on Annex 1 hereto (the "Purchasers")
and the Persons listed on Annex 2 hereto (the "Existing Shareholders"). The
Existing Shareholders and the Purchasers are sometimes hereinafter referred
to collectively as "the Shareholders."
W I T N E S S E T H
WHEREAS, the Shareholders and QCS are parties to the Shareholders'
Agreement dated November 22, 1994 (the "Prior Agreement"); and
WHEREAS, the Existing Shareholders are currently together the legal and
equitable owners of fourteen million sixty-seven thousand one hundred
(14,067,100) shares of Common Stock (as hereinafter defined) of QCS;
WHEREAS, the Purchasers are currently together the legal and equitable
owners of four million three hundred sixty-eight thousand nine hundred
thirty-seven (4,368,937) shares of Series A Preferred of QCS;
WHEREAS, QCS and the Shareholders desire to amend and restate the Prior
Agreement; and
WHEREAS, QCS and the Shareholders intend that this Agreement shall
supersede the Prior Agreement and that the Prior Agreement shall terminate
upon the execution of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
All terms not otherwise defined herein shall have the meanings given or
assigned to them in that certain Stock Purchase Agreement dated as of
November 22, 1994, as amended, among certain of the parties hereto (the
"Stock Purchase Agreement").
1.
2. BOARD OF DIRECTORS AND CONDUCT OF QCS' AFFAIRS; VOTING RIGHTS.
2.1 BOARD OF DIRECTORS.
2.1.1 The Board of Directors of QCS shall consist at anytime of
no more than seven (7) persons.
2.1.2 The Purchasers acknowledge that the Certificate of
Incorporation of QCS, as amended, entitles the holders of Series A Preferred,
voting as a separate series, to elect no less than three (3) directors of
QCS, Notwithstanding the foregoing, the Purchasers agree that the Purchasers,
voting together, shall elect only two (2) directors to the Board of Directors
of QCS. The parties hereto further acknowledge and agree that the holders of
Common Stock and Series A Preferred, voting together on an as-converted
basis, shall elect all remaining members of the Board of Directors in
accordance with the applicable provisions of the Delaware General Corporation
Law. The Board of Directors shall appoint one (1) of the Directors to be
Chairman of QCS by a vote of the majority of its members. Such Chairman
shall not have a second or casting vote at any meeting of the Board of
Directors.
2.1.3 (a) The Board of directors shall meet at least every
quarter at such time as may be fixed by the Chairman of the Board of
Directors. Special meetings of the Board of Directors may be called by any
Director. Notice of the time and place of regular and/or special meetings of
the Board of Directors shall be effective if delivered to each Director by
hand, facsimile or telex. In case of a regular meeting, such notice must be
delivered at least five (5) business days prior to such meeting, and in the
case of a special meeting, such notice must be delivered at least two (2)
business days prior to such special meeting.
(b) Meetings of the Board of Directors shall be held at
such place as the Board of Directors may from time to time agree upon or in
the absence of agreement at QCS' principal office.
(c) Whenever notice is required to be given under this
Section 2.1.3 hereof a written waiver of notice, signed by the Director
entitled to notice (whether before of after the time of the meeting) shall be
deemed equivalent to notice. A Director's attendance at a meeting shall
constitute a waiver of notice of that meeting, except when the Director
attends a meeting for the express purpose of objecting, and does object, at
the beginning of the meeting, to the transaction of any business because the
meeting is not lawfully called or convened.
2.1.4 To the fullest extent permitted by law, QCS shall
indemnify and hold harmless each and every one of its Directors from all
liabilities incurred by reason of performing their functions. For the
purposes of such indemnification, QCS shall purchase an adequate insurance
policy from an insurance carrier of national reputation and shall modify its
By-laws so as to make this provision fully enforceable.
2.2 ACTION REQUIRING A SUPERMAJORITY VOTE. It is agreed that, in
addition to any other vote required by law or QCS's Certificate of
Incorporation, as amended, the vote or
2.
consent of the holders of eighty percent (80%) in internet of the Series A
Preferred shall be required:
(i) to amend the Certificate of Incorporation and
By-laws of QCS;
(ii) to sell, lease or exchange all of
substantially all of the property and assets of QCS;
(iii) to merge, reorganize and consolidate QCS with
any other corporation or entity;
(iv) to voluntarily dissolve QCS, or to revoke
voluntary dissolution by QCS; and
(v) to change materially the principal business
conducted by QCS.
3. REPRESENTATION AND WARRANTIES.
3.1 THE EXISTING SHAREHOLDERS. Each of the Existing Shareholders
represents and warrants, as to itself, as follows:
(a) Each of the Existing Shareholders is currently the legal and
equitable owner of the shares of Common Stock of QCS set forth opposite their
respective names in Annex 1 hereto.
(b) The execution and delivery by each of the Existing
Shareholders of this Agreement and the consummation by it of the transactions
contemplated herein will not violate any law or any contract to which such
Existing Shareholder is a party, and no approval , authorization, consent, or
order of, or filing with, any third party, court, administrative agency, or
other governmental authority is required for the execution and delivery by such
Existing Shareholder of this Agreement or the consummation by it of the
transactions contemplated herein.
(c) This Agreement is the valid and binding obligation of each
of the Existing Shareholders enforceable in accordance with its terms, subject
to bankruptcy, insolvency, reorganization and similar laws of general
application affecting the rights and remedies of creditors and subject to
general principles of equity.
3.2 QCS. QCS REPRESENTS AND WARRANTS AS FOLLOWS:
(a) QCS is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, United States of America,
with full power and authority to enter into this Agreement and to consummate the
transactions contemplated herein.
3.
(b) The execution and delivery by QCS of this Agreement and
the consummation by it of the transactions contemplated herein will not
violate any law or any contract to which QCS is a party, and no approval,
authorization, consent, or order of, or filing with, any third party, court,
administrative agency, or other governmental authority is required for the
execution and delivery by QCS of this Agreement or the consummation by it of
the transactions contemplated herein.
(c) This Agreement is the valid binding obligation of QCS
enforceable in accordance with its terms, subject to bankruptcy, insolvency,
reorganization and similar laws of general application affecting the rights
and remedies of creditors, and subject to general principles of equity.
(d) Messrs. Marcel van Heesewijk and Matteus Wegbrans are
each duly authorized and empowered to execute this Agreement on behalf of QCS.
3.3 THE PURCHASERS. Each of the Purchasers represents and warrants,
as to itself, as follows:
(a) Each of the Purchasers is currently the legal and
equitable or beneficial owner of the shares of Series A Preferred of QCS set
forth opposite its respective name in Annex 1 hereto.
(b) The execution and delivery by each of the Purchasers of
this Agreement and the consummation by it of the transactions contemplated
herein will not violate any law or any contract to which such Purchaser is a
party, and no approval, authorization, consent or order of, or filing with,
any third party, court, administrative agency, or other governmental
authority is required for the execution and delivery by such Purchaser of
this Agreement or the consummation by it of the transactions contemplated
herein.
(c) This Agreement is the valid binding obligation of each of
the Purchasers enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization and similar laws of general
application affecting the rights and remedies of creditors, and subject to
general principles of equity.
4. RESTRICTIONS ON TRANSFERS OF THE SERIES A PREFERRED AND OF THE COMMON
STOCK.
Each Shareholder agrees not to transfer all or any shares of Series A
Preferred or of Common Stock, as the case may be, except in accordance with and
subject to the following restrictions and each Shareholder shall hold its shares
subject hereto and by accepting the same upon original issue, upon stock
dividends or stock distributions or upon subsequent transfer, agrees for itself,
its successors, legal representatives and assigns as follows:
(a) The Series A Preferred or the Common Stock shall not be
sold, transferred, assigned, pledged, hypothecated or otherwise encumbered,
whether voluntarily or
4.
involuntarily, by operation of law, legal proceedings or otherwise (hereinafter
referred to as a "Transfer") other than as provided in this Section 4.
(b) The Founders, the holders of Series A Preferred and the
holders of Warrants shall not be entitled to dispose of their securities for
a period of twenty-four (24) months from the date of Closing, unless
otherwise agreed upon by unanimous consent of the Board of Directors of QCS;
provided, however, that the Founders, the holders of Series A Preferred and
the holders of Warrants shall be entitled to dispose of their securities
after expiration of a twelve (12) month period from the date of Closing, if,
after the expiration of such twelve (12) month period, the Holders of the
Registrable Securities (as these terms are defined in the Registration Rights
Agreement) request in writing the registration of such Registrable Securities
from QCS pursuant to the Registration Rights Agreement. Subject to the
Registration Rights Agreement in the event that, at any time after the
above-mentioned twenty-four (24) month or twelve (12) month periods, as the
case may be, a Shareholder desires to make a BONA FIDE sale of some or all of
its Series A Preferred or Common Stock to a third party (the "Proposed
Transferee"), such Shareholder (the "Offeror") shall notify the
non-transferring Shareholders (the "Offerees") in writing of such desire,
together with the identity of the Proposed Transferee and the price and terms
offered in good faith at arm's length by such Proposed Transferee and shall
offer to transfer such shares of Series A Preferred or Common Stock to the
Offerees pro rata to their shareholdings of QCS at the time at the same price
and on the same terms. For a period of thirty (30) days after receipt of
such notice, each Offeree shall have the following option:
(i) if the Offeree is a holder of shares of Series A
Preferred or of Converted Shares, to acquire his or its pro rata share of the
shares of Series A Preferred offered for sale, subject to the proposed
Transfer;
(ii) if the Offeree is a holder of Common Stock (except
Converted Shares), to acquire his or its pro rata share of the shares of
Common Stock offered for sale, subject to the proposed Transfer.
In the event an Offeree has not purchased such shares within such
thirty (30) day period, such Offeree shall be deemed to have approved the
sale of the Offeror's shares of Common Stock or Preferred Stock to the
Proposed Transferee.
(c) No disposition to the Proposed Transferee may be made
until such Proposed Transferee agrees to be bound by the terms of this
Agreement.
(d) Notwithstanding the foregoing, the Existing Shareholders
may sell all or part of their shares of Common Stock to other Existing
Shareholders or to the Purchasers, and the Purchasers may sell all or part of
their Shares to other Purchasers or to the Existing Shareholders, at such
price and on such terms as the Purchasers and Existing Shareholders who are
parties to such sale may together agree.
5.
(e) Each of the Shareholders agrees to be bound by the terms and
provisions of this Section 4.
(f) The provisions restricting the sale of shares contained in
this Section 4 shall automatically terminate upon the happening of any of the
following events: the adjudication of QCS or QCS Development Company S.A. (the
"Subsidiary") as a bankrupt, the execution by QCS or the Subsidiary of any
assignment for the benefit of creditors, the appointment of a receiver for all
or part of its properties, or the voluntary or involuntary dissolution of QCS or
of the Subsidiary.
(g) Each certificate for all classes of Series A Preferred and
of Common Stock of QCS shall bear the following legend prominently stamped,
printed or typed on the face thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE
SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR
INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE. ANY
SALE, TRANSFER, PLEDGE OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE OR COMMON STOCK RECEIVED UPON
CONVERSION OF THE SECURITES REPRESENTED BY THIS CERTIFICATE BY BE
MADE ONLY (I) IN A TRANSACTION REGISTERED UNDER SAID ACT AND ANY
APPLICABLE STATE SECURITIES LAWS OR (II) IF AN EXPEMPTION FROM
REGISTRATION UNDER SAID ACT IS AVAILABLE AND QCS HAS RECEIVED AN
OPINION OF COUNSEL TO SUCH EFFECT REASONABLY SATISFACTORY TO IT.
QCS WILL FURNISH A FULL STATEMENT OF ALL OF THE SEDIGNATIONS,
PREFERENCES, LIMITATIONS AND RALATIVE RIGHTS OF THE SHARES OF EACH
CLASS OF STOCK OR SERIES THEREOF OF QCS TO ANY SHAREHOLDER WITHOUT
CHARGE UPON WRITTEN REQUEST TO QCS AT ITS PRINCIPAL PLACE OF
BUSINESS OR REGISTERED OFFICE THE TRANSFER OF SHARES REPRESENTED
BY THIS CERTIFICATE IS RESTRICTED BY THE TERMS OF THAT CERTAIN
SHAREHOLDERS OF QCS, AS WELL AS OF THAT CERTAIN REGISTRATION
RIGHTS AGREEMENT, BOTH DATED AS OF NOVEMBER 22, 1994, WHICH
AGREEMENTS ALSO CONTAIN OTHER IMPORTANT PROVISIONS RELATING TO
SUCH SHARES. COPIES OF THESE AGREEMENTS ARE ON FILE AT QCS'S
PRINCIPAL PLACE OF BUSINESS AND REGISTERED OFFICE AND MAY BE
6.
OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO QCS AT ITS
PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE. BY ACCEPTANCE OF
THIS CERTIFICATE, THE HOLDER HEREOF AGREES TO BE BOUND BY THE
TERMS OF SUCH AGREEMENTS."
5. BOOKS AND RECORDS.
QCS shall maintain its books of account on a accrued basis of accounting
and shall prepare its financial statements in accordance with Generally Accepted
Accounting Principles consistently applied. The year-end balance sheet,
statement of operations and statement of changes in financial position shall be
audited each year by an independent certified public accountant. Mr. Yves
Sisteron and the Carlyle Group, together with their lawful agents, attorneys and
representatives, shall have access to the books and records and facilities of
QCS on behalf of the syndicates of Shareholders they each lead (as indicated in
Exhibit 2.1of the Stock Purchase Agreement) during all normal business hours.
6. NOTICES.
All notices required to be given hereunder shall be in writing and shall
be deemed to have been properly given if sent by registered or certified mail,
postage prepaid, or by telecopy, addressed as follows:
(a) if to the Existing Shareholders:
Mr. Marcel van Heesewijk
QCS Corporation
000 Xxxxxx Xxxxxx, 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
(b) if to QCS:
QCS Corporation
000 Xxxxxx Xxxxxx, 000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
7.
with a copy to:
Xxxxxx X. Xxxxx, Esq.
Xxxxxx Godward Castro Xxxxxxxxxx & Xxxxx
3000 El Camino Real
Five Palo Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Telecopy: (000) 000-0000
(c) if to the Purchasers:
Mr. Yves Sisteron
0000 Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
and
Carlyle-QCS Partners, L.P.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000
Telecopy: (000) 000-0000
with a copy to:
Arent Fox Xxxxxxx Xxxxxxx & Xxxx
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx-Xxxxxxxx Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
All such notices, requests, demands and other communications shall, when
mailed (which mailing must be accomplished by first class mail, postage prepaid;
express overnight courier service; or registered mail, return receipt requested)
or telegraphed, be effective three (3) days after deposited in the mails or
delivered to the telegraph company, respectively, addressed as aforesaid, unless
otherwise provided herein. All such notices, requests, demands and other
communications shall, when telecopied, be effective immediately upon printing of
the corresponding receipt slip by the sending machine, unless otherwise provided
herein.
7. ASSIGNMENT.
This Agreement shall not be assigned by any Party hereto without the
prior written consent of the other Parties hereto. This Agreement shall incure
to the benefit of the Parties hereto and shall be binding upon the heirs,
administrators, successors (including, witness
8.
limitation, former partners of any one of the Parties hereto which would be
constituted under the form of a partnership, following the dissolution of
such partnership) and assigns of the Parties hereto.
8. AMENDMENT, MODIFICATION AND WAIVER.
This Agreement may be modified, amended and supplemented only upon the
mutual written agreement of the holders of eighty percent (80%) in interest
of the Series A Preferred. Each Party may waive any term, provision or
condition intended for its, his or her benefit, provided that such waiver be
in writing and be signed by the Party so waiving.
9. SEVERABILITY.
If any one or more of the provisions of this Agreement shall be held
invalid, illegal or unenforceable under applicable law, the validity,
legality and enforceability of the remaining provisions shall not be affected
or impaired thereby. Such provision shall be deemed modified to the extent
necessary to render it legal, valid and enforceable, and if no modification
shall render it legal, valid and enforceable, then this Agreement shall be
construed as if not containing the provision held to be invalid, and the
rights and obligations of the parties shall be construed and enforced
accordingly.
10. GOVERNING LAW.
This Agreement and the legal relationships among the Purchasers, the
Existing Shareholders and QCS shall be governed by and construed in
accordance with, the internal laws of the State of New York exclusively,
without regard to conflicts of laws principles. Each of the Parties (i)
hereby irrevocably consents and agrees that any legal or equitable action or
proceeding arising under or in connection with this Agreement shall be
brought exclusively before the federal courts of the State of New York, (ii)
by execution and delivery of this Agreement irrevocably submits to and
accepts, with respect to any such action or proceeding for itself and in
respect of its properties and assets, generally and unconditionally, the
exclusive jurisdiction of the aforesaid courts and irrevocably waives any and
all rights it may have to object to such jurisdiction under the laws of the
State of New York, the laws of France including, without limitation, Articles
14 and 15 of the French Civil Code, the Constitution of the United States of
America, the Constitution of France or otherwise, and (iii) irrevocably
comments that service of process upon it in any such action or proceeding
shall be valid and
9.
effective against it if made in the manner provided in Section 6 hereof for
delivery of notices hereunder.
12. COUNTERPARTS
This Agreement may be executed by the parties in any number of
counterparts, all of which taken together shall constitute one (1) and the
same instrument.
13. CERTIFICATE OF INCORPORATION AND BYLAWS.
To the extent permissible under Delaware law, the provisions of this
Agreement shall apply notwithstanding any provisions to the contrary in the
Certificate of Incorporation or Bylaws of QCS from time to time being in
force and the Parties shall take such actions as may reasonably be required
to render effective the provisions of this Agreement.
14. EXPIRATION.
This Agreement shall expire on the earlier of (i) the day when the
Purchasers or their heirs, transferees, successors (including, without
limitation, former partners of any one of the Parties hereto which would be
constituted under the form of a partnership, following the dissolution of
such partnership) or assignees shall hold no more than thirty percent (30%)
of the Common Stock in the aggregate or (ii) the effective date of a
registration statement pertaining to, and subject to the consummation of, an
underwritten public offering of QCS' Common Stock at a per share price of at
least five dollars ($5.00) per share. Such percentage shall be computed on
the basis of the total number of shares of Common Stock which would have been
held by the Purchasers on the Closing Date if all of the Series A Preferred
held by the Purchasers on such date had been immediately converted.
15. EFFECTIVE DATE.
This Agreement shall become effective on the date on which it has been
executed and delivered by all parties hereto and all of the following
agreement have been executed and delivered by all parties thereto, and shall
not become effective unless and until all such parties have so executed and
delivered such agreements; (a) the Amendment No. 1 to Series A Convertible
Preferred Stock Purchase Agreement attached hereto as EXHIBIT A; (b) the
Agreement of even date by the Founders in favor of the Purchasers attached
hereto as EXHIBIT B; and (c) the Amended and Restated Class U Warrant
attached hereto as EXHIBIT C.
(Remainder of Page Intentionally Left Blank)
10.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
QCS CORPORATION
By: ______________________________
Name: ______________________________
Title: ______________________________
Marcel Van Heesewijk
________________________________
Matteus Wegbrans
________________________________
Xxxxxxxxx Xxxxxx
________________________________
Leonardus Klijn
________________________________
CARLYLE QCS PARTNERS, L.P.
By: ______________________________
Name: ______________________________
Title: ______________________________
11.
STF MANAGEMENT LIMITED, as General
Partner of Sharp Technology Fund I
Limited Partnership
By: _____________________________
Name: _____________________________
Title: ______________________________
STF MANAGEMENT LIMITED, as General
Partner of Sharp Technology Fund II
Limited Partnership
By: _____________________________
Name: _____________________________
Title: _____________________________
LAGUNITAS PARTNERS, L.P.
By: _____________________________
Name: _____________________________
Title: _____________________________
PROACTIVE PARTNERS, L.P.
By: _____________________________
Name: _____________________________
Title: _____________________________
OAKWOOD HOLDINGS, BVI
By: _____________________________
Name: _____________________________
Title: _____________________________
12.
DE NOYANGE S.A.
By: _____________________________
Name: _____________________________
Title: _____________________________
XXXXXXX CAPITAL MANAGEMENT
By: _____________________________
Name: _____________________________
Title: _____________________________
Xx. Xxxx Xxxxxx
_______________________________________
Xx. Xxxxxx Xxxxxxxxx
_______________________________________
Xx. Xxxx Xxxxxx
_______________________________________
Mr. Xxxxx Xxxxx
_______________________________________
Xx. Xxxxx Xxxxx
_______________________________________
Xx. Xxxxxx Xxxxx
________________________________________
13.
DE NOYANGE S.A.
By: ______________________________
Name: ______________________________
Title: ______________________________
XXXXXXX CAPITAL MANAGEMENT
By: ______________________________
Name: ______________________________
Title: ______________________________
Xx. Xxxx Xxxxxx
________________________________________
Xx. Xxxxxx Xxxxxxxxx
________________________________________
Xx. Xxxx Xxxxxx
________________________________________
Mr. Xxxxx Xxxxx
________________________________________
Xx. Xxxxx Xxxxx
________________________________________
Xx. Xxxxxx Xxxxx
________________________________________
14.
XXXXX 0
XXXXXXXXXX
Xxxxxxx-XXX Partners, L.P.
STF Management Limited, as General Partner of Sharp Technology Fund I Limited
Partnership
STF Management Limited, as General Partner of Sharp Technology Fund II Limited
Partnership
Lagunitas Partners, L.P.
Proactive Partners, L.P.
Oakwood Holdings, BVI
DeNoyange X.X.
Xxxxxxx Capital Management
Xx. Xxxx Xxxxxx
Xx. Xxxxxx Xxxxxxxxx
Xx. Xxxx Xxxxxx
Mr. Xxxxx Xxxxx
Xx. Xxxxx Xxxxx
Xx. Xxxxxx Xxxxx
15.
ANNEX 2
EXISTING SHAREHOLDERS
Xx. Xxxxxxxxx Stille
Mr. Marcel van Heesewijk
Xx. Xxxxxxx Wegbrans
Mr. Leonardus Klijn
16.
