Exhibit 4.2
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of
August 23, 2001, among CROSS COUNTRY, INC. (f/k/a Cross Country Staffing, Inc.),
a Delaware corporation (the "Company"), the CEP Investors and the MS Investors
(each as defined below).
W I T N E S S E T H:
WHEREAS, the parties desire to amend and restate that certain
Stockholders Agreement, dated as of October 29, 1999 (the "ORIGINAL AGREEMENT"),
among the Company, the CEP Investors and the MS Investors;
WHEREAS, the CEP Investors and the MS Investors own shares of
Class A Common Stock, $.01 par value, of the Company (together with any shares
into which the Class A Common Stock may be converted or recapitalized, the
"COMMON STOCK");
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. DEFINITIONS.
1.1 CERTAIN DEFINITIONS. The following terms shall have the
following respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined).
"ACT" means the Securities Act of 1933, as amended.
"AGREEMENT" means this Amended and Restated Stockholders
Agreement, including all amendments, modifications and supplements and any
exhibits or schedules to any of the foregoing, and shall refer to the Agreement
as the same may be in effect at the time such reference becomes operative.
"CEP" means Charterhouse Equity Partners III, L.P.
"CEP INVESTORS" means CEP, Chef Nominees Limited and each of
their respective Permitted Transferees.
"CEP NOMINEE" has the meaning set forth in Section 2.1(a).
"COMMON STOCK" has the meaning set forth in the recitals
hereto.
"COMMON STOCK REORGANIZATION" means any subdivision by the
Company of its outstanding shares of Common Stock into a greater number of
shares or any consolidation by the Company of its outstanding shares of Common
Stock into a smaller number of shares.
"COMPANY" has the meaning given to it in the caption hereto.
"COMPANY BOARD" means the Board of Directors of the Company.
"INVESTORS" means, collectively, the CEP Investors and the MS
Investors and "Investor" means any of them.
"MS NOMINEES" has the meaning set forth in Section 2.1(a).
"MSDWCP" means Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital Partners IV,
L.P.
"MSDWCP NOMINEE" has the meaning set forth in Section 2.1(a).
"MSDWVP" means Xxxxxx Xxxxxxx Venture Partners III, L.P.
"MSDWVP NOMINEE" has the meaning set forth in Section 2.1(a).
"MS INVESTORS" means Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital
Partners IV, L.P., MSDW IV 892 Investors, L.P., Xxxxxx Xxxxxxx Xxxx Xxxxxx
Capital Investors IV, L.P., Xxxxxx Xxxxxxx Venture Partners III, L.P., Xxxxxx
Xxxxxxx Venture Investors III, L.P. and The Xxxxxx Xxxxxxx Venture Partners
Entrepreneur Fund, L.P. and their respective Permitted Transferees.
"OFFERED INVESTORS" has the meaning set forth in Section
5.1(a).
"OFFERED SECURITIES" has the meaning set forth in Section
5.1(a).
"OPTIONS" means any rights to subscribe for or to purchase, or
any warrants or options for the purchase of, capital stock of the Company or any
stock or securities convertible into or exchangeable for capital stock of the
Company.
"ORIGINAL AGREEMENT" has the meaning set forth in the captions
hereto.
"PERMITTED TRANSFEREE" means (i) with respect to any CEP
Investor or MS Investor, any entity controlling, controlled by or under common
control with such Investor; and (ii) with respect to any other Investor, any
parent or wholly owned direct or indirect subsidiary entity thereof (it being
understood that the later sale, liquidation or spin off of such wholly owned
subsidiary or other transaction in which the parent ceases to control, directly
or indirectly, 100% of the equity of such subsidiary would constitute a Transfer
of Stock, which may only be made in compliance with the terms and restrictions
set forth in this Agreement).
"RULE 144" means Rule 144, and any amendments thereto,
promulgated by the U.S. Securities and Exchange Commission pursuant to the
Securities Act of 1933, as amended.
"STOCK" means (i) shares of outstanding capital stock of the
Company; (ii) Options; and (iii) shares of capital stock issuable upon the
exercise of Options.
"STOCKHOLDERS" mean, all the holders of Common Stock and
"Stockholder" means any such person.
"SUBSIDIARY" means any entity of which ownership interests
having ordinary voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time directly or
indirectly owned by the Company.
"SUBSIDIARY BOARD" has the meaning set forth in Section
2.1(C).
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"TAG ALONG OFFER" has the meaning set forth in Section 5.1(a).
"TAG ALONG OFFER PERIOD" has the meaning set forth in Section
5.1(a).
"TAG ALONG NOTICE" has the meaning set forth in Section 5.1.
"TAG ALONG RIGHT" has the meaning set forth in Section 5.1.
"TAGGED INVESTORS" has the meaning set forth in Section 5.1.
"TRANSFER" means any direct or indirect sale, assignment,
transfer or other disposal of Stock.
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SECTION 2. CORPORATE GOVERNANCE
2.1 ELECTION OF DIRECTORS.
(a) COMPANY BOARD.
(i) At each meeting of the stockholders of the
Company (or consent solicitation in lieu of a meeting) at which directors of the
Company are to be elected, the Company agrees to (x) nominate two individuals
designated by the CEP Investors to serve as members of the Company Board (each a
"CEP NOMINEE"), (y) nominate one individual designated by MSDWCP to serve as a
member of the Company Board (a "MSDWCP NOMINEE") and (z) nominate one individual
designated by MSDWVP to serve as a member of the Company Board (a "MSDWVP
NOMINEE", together with the MSDWCP Nominee, the "MS NOMINEES"). Further, at each
such meeting of the stockholders (or consent solicitation in lieu of a meeting),
the Company agrees to recommend that the stockholders elect such CEP Nominees
and MS Nominees to the Company Board.
(ii) At such time as the MS Investors shall have
Transferred to persons other than their Permitted Transferees more than 50% of
the shares of Common Stock owned by the MS Investors, collectively, as of the
date hereof, the rights set forth in Section 2.1(a)(ii) shall be automatically
amended to provide that the Company shall be required to nominate only one
individual designated by MSDWCP, which individual shall be a MSDWCP Nominee to
serve as a member of the Company Board. Additionally, at such time as the CEP
Investors shall have Transferred to persons other than their Permitted
Transferees more than 50% of the shares of Common Stock owned by the CEP
Investors, collectively, as of the date hereof, the rights set forth in Section
2.1(a)(i) shall be automatically amended to provide that the Company shall be
required to nominate only one individual designated by the CEP Investors to
serve as a member of the Company Board.
(iii) At such time as the MS Investors shall have
Transferred to persons other than their Permitted Transferees more than 90% of
the shares of Common Stock owned by the MS Investors, collectively, as of the
date hereof, the rights of the MS Investors set forth in Sections 2.1(a)(i)-(ii)
shall terminate. Additionally, at such time as the CEP Investors shall have
Transferred to persons other than their Permitted Transferees more than 90% of
the shares of Common Stock owned by the CEP Investors, collectively, as of the
date hereof, the rights of the CEP Investors set forth in Sections
2.1(a)(i)-(ii) shall terminate.
(b) COMMITTEES. The membership of each committee of the
Company Board (other than the Audit Committee) shall include at least one MS
Nominee (so long as at least one MS Nominee remains on the Company Board) and at
least one CEP Nominee (so long as at least one CEP Nominee remains on the
Company Board).
(c) SUBSIDIARY BOARDS. The board of directors of each
subsidiary of the Company (each such board, a "SUBSIDIARY BOARD") shall include
at all times at least one CEP Nominee (so long as at least one CEP Nominee
remains on the Company Board) or one MS Nominee (so long as at least one MS
Nominee remains on the Company Board). The number of CEP Nominees and MS
Nominees, respectively, on the Subsidiary Boards shall be as equitable as
possible. Further, each of the CEP Investors and the MS Investors shall have the
right to have
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a representative participate as an observer at each meeting of a Subsidiary
Board whose membership does not include one of its Nominees.
(d) INVESTORS' AGREEMENT. Each Investor shall vote his or its
shares of Stock, and the Company and each Investor shall take all other actions
necessary, to ensure that the certificate of incorporation and bylaws of the
Company facilitate and do not at any time conflict with any provision of this
Agreement.
2.2 AGREEMENT TO VOTE FOR DIRECTORS Each Investor agrees to
vote, in person or by proxy, all its shares of Common Stock, or to execute a
written consent in respect of all such shares of Common Stock, as the case may
be, in favor of the CEP Nominees and the MS Nominees for election to the Company
Board and take all other necessary action (including causing the Company to call
a special meeting of Stockholders) in order to ensure that the composition of
the Company Board is as set forth in this Section.
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2.3 REMOVAL AND REPLACEMENT OF DIRECTORS.
(a) REMOVAL OF CEP NOMINEES. If at any time the CEP Investors
notify the Investors of a wish to remove any CEP Nominee, the Investors shall
take all actions contemplated by Section 2.1(a) so as to remove such CEP
Nominee. Removal of a CEP Nominee, other than pursuant to the immediately
preceding sentence, shall require the prior written consent of CEP unless such
removal is based upon the gross negligence or wilfull misconduct of the CEP
Nominee.
(b) REMOVAL OF MS NOMINEES. If at any time the MS Investors
notify the Investors of their wish to remove any MS Nominee, the Investors shall
take all actions contemplated by Section 2.1(a) so as to remove such MS Nominee.
Removal of a MS Nominee, other than pursuant to the immediately preceding
sentence, shall require the prior written consent of the MS Investors, unless
such removal is based upon the gross negligence or wilfull misconduct of the MS
Nominee.
(c) REPLACEMENT OF DIRECTORS. If at any time a vacancy is
created on the Company Board by reason of the incapacity, death, permitted
removal or resignation of any director nominated by the CEP Investors or the MS
Investors, then the persons who were entitled to designate such individual to be
nominated by the Company to serve as a member of the Company Board in accordance
with Section 2.1(a) shall designate an individual to be nominated by the Company
to fill such vacancy. Each Investor hereby agrees to take all actions
contemplated by Section 2.1(a) reasonably necessary to effect the foregoing.
SECTION 3. TRANSFER OF STOCK
3.1 TRANSFERS TO PERMITTED TRANSFEREES. Each Investor may, at
any time, Transfer any Stock owned by it to a Permitted Transferee, subject to
the provisions of Section 8.6. None of the restrictions on Transfers of Stock
contained in this Agreement shall apply to any Transfers by will or by the laws
of descent, except that any such transferee shall be deemed to take such Stock
subject to all provisions of this Agreement.
3.2 TRANSFERS PURSUANT TO RULE 144; PUBLIC DISTRIBUTIONS. Any
Investor may, at any time, and from time to time, Transfer Common Stock pursuant
to and in compliance with Rule 144. If any Investor shall intend to Transfer any
Stock publicly (other than in a registered offering pursuant to the Registration
Rights Agreement dated as of October 29, 1999, as amended as of August 23,
2001, among the parties hereto) or to distribute any Stock in a manner that is
likely to result in sales into the public market, such Investor shall give
notice of such intention to the Company and each other Investor, and shall
refrain from effecting any such Transfer or distribution for a period of five
business days. If other Investors shall have given notice of a similar intention
at any time prior to the end of such five business day period, all of such
Investors shall endeavor, subject to the provisions of applicable securities
laws, to effect such Transfers or distributions in manner that will not
adversely disrupt or otherwise adversely affect the market for the Stock. Such
Investors shall agree that, to the extent practicable, in the case of any public
Transfer, they will sell their securities through a single broker or market
maker over a sufficient period of time to permit an orderly disposition of such
securities. Any such Transfers shall be made proportionately based on the number
of shares desired to be sold by each Investor or on such other basis as the
Investors may agree. Any Investor that intends to
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make a distribution of Stock shall coordinate the timing and the magnitude of
such distribution with the distributions or Transfers of other Investors in
order to avoid adversely disrupting the public market for the Stock.
3.3 NO MORTGAGE, ETC. Notwithstanding anything herein to the
contrary, no Investor may mortgage, pledge, grant a security interest or
participation in or otherwise encumber any Stock owned by it. Each Transfer of
Stock must be made in compliance with the Act, any applicable state and foreign
securities law and this Agreement. Each Investor understands and agrees that the
Common Stock has not been registered under the Act and that shares of Common
Stock are restricted securities. Any attempt to Transfer, pledge, grant a
security interest or participation in, or otherwise encumber any Stock not in
compliance with this Agreement shall be null and void and neither the Company
nor any transfer agent shall give any effect in the Company's transfer records
to such Transfer, pledge, grant or encumbrance.
3.4 NO PROXIES, ETC. No Investor shall (i) grant any proxy or
enter into or agree to be bound by any voting trust or agreement with respect to
the Stock, (ii) enter into any agreement or arrangement of any kind with any
person with respect to its Stock inconsistent with the provisions of this
Agreement or for the purpose or with the effect of denying or reducing the
rights of any other Investor under this Agreement including, but not limited to,
agreements or arrangements with respect to the Transfer or voting of its Stock
or (iii) act, for any reason, as a member of a group or in concert with any
other person in connection with the Transfer or voting of its Stock in any
manner which is inconsistent with the provisions of this Agreement.
SECTION 4. COVENANTS
4.1 FINANCIAL INFORMATION. The Company shall cause to be
prepared and delivered to each Investor owning more than 10% of the outstanding
Common Stock the following financial information:
(a) no later than 90 days after the end of each fiscal year of
the Company, the following audited financial statements, prepared in accordance
with generally accepted accounting principles consistently applied and
accompanied by the report thereon of the independent accountants for the
Company: a consolidated balance sheet of the Company as at the end of such
fiscal year and consolidated statements of income and cash flows for such fiscal
year, in each case setting forth in comparative form the figures for the
previous fiscal year and the budgeted figures for such fiscal year;
(b) within 30 days after the end of each fiscal month of the
Company, the following financial statements, prepared in accordance with
generally accepted accounting principles consistently applied: balance sheets of
the Company as at the end of such fiscal month and the consolidated statements
of income and cash flows for such fiscal month and for the elapsed portion of
the fiscal year ended with the last day of such month, in each case on a
consolidated basis and broken out by division and setting forth in comparative
form the figures for the corresponding periods in the previous fiscal year and
budgeted figures for the periods in such fiscal year; and
(c) within 30 days after the end of each fiscal month of the
Company, financial information relating to the key operating statistics of the
business of the Company and
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its subsidiaries to the extent such information is distributed to senior
management of the Company in the ordinary course.
SECTION 5. TAG-ALONG RIGHTS
5.1 TAG-ALONG RIGHT OF THE INVESTORS.
(a) If the CEP Investors or the MS Investors (such parties who
propose to Transfer shall be referred to as the "TAGGED INVESTORS" and such
other unaffiliated parties shall be referred to as the "OFFERED INVESTORS")
propose, in a single, bona fide, arm's length transaction or a series of related
transactions, to Transfer more than 10% of the total number of shares of Common
Stock owned by the Tagged Investors on the date hereof to transferees other than
Permitted Transferees of such Tagged Investors (the "TAG ALONG OFFER") the
Tagged Investors shall promptly give notice thereof to the Offered Investors
(the "TAG ALONG NOTICE"). The Tag Along Notice shall identify the proposed
purchaser, the consideration per share and the other material terms and
conditions of the Tag Along Offer and, in the case of a Tag Along Offer in which
the consideration payable for the Common Stock consists in part or in whole of
consideration other than cash, such information relating to such consideration
as the Offered Investors may reasonably request as being necessary to evaluate
such non-cash consideration (it being understood that such request shall not
obligate the Tagged Investors to deliver any information to the Offered
Investors not available to such Tagged Investors). Each Offered Investor shall
have the right, exercisable as set forth below, to Transfer to such transferees
on the same terms and for the same consideration per share of Common Stock as
are set forth in the Tag Along Notice with respect to the Tagged Investors'
shares of Common Stock (the "TAG ALONG RIGHT"), up to the number of shares of
Common Stock then owned by such Offered Investor at the time of the Transfer,
multiplied by a fraction (i) the numerator of which is the number of shares of
Common Stock desired to be Transferred to the Transferee by the Tagged
Investors, and (ii) the denominator of which is the total number of shares of
Common Stock owned by the Tagged Investors at the time of the Transfer. Each
Offered Investor's rights under this Section 5.1 may be exercised by giving
written notice (which shall be irrevocable) to the Tagged Investors during the
period (the "TAG ALONG OFFER PERIOD") which is 45 days after the delivery to the
Offered Investors of the Tag Along Notice. The failure by any Offered Investor
to so notify the Tagged Investors within such Tag Along Offer Period shall be
deemed an election by such Offered Investor not to exercise its Tag Along
Rights. The provisions of this Section 5.1 shall not apply to any Transfers (i)
pursuant to and in compliance with Rule 144, (ii) pursuant to a public offering
registered under the Act, or (iii) to the limited partners of any Investor in
connection with a pro rata distribution to such partners pursuant to the terms
of such Investor's partnership agreement.
(b) The Tagged Investors shall have 120 days from the
termination of the Tag Along Offer Period to consummate the Transfer
contemplated by the Tag Along Offer to the proposed transferees at the price and
on the terms contained in the Tag Along Notice. If the Tagged Investors have not
completed the Transfer contemplated by the Tag Along Notice within the period
described above, then the rights of the Tagged Investors and the Offered
Investors to Transfer such Common Stock pursuant to this Section 5.1 shall
terminate and the Tagged Investors shall again comply with the procedures set
forth in this Section 5.1 with respect to any subsequent proposed Transfer.
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(c) Promptly after the consummation of the Transfer of the
Common Stock pursuant to the Tag Along Offer, the Tagged Investors shall notify
the Offered Investors thereof, shall remit to the Offered Investors the total
sales price and consideration specified in the Tag Along Notice for their shares
of Common Stock Transferred pursuant thereto, and shall furnish such other
evidence of such Transfer and the terms thereof as may be reasonably requested
by the Offered Investors. Notwithstanding the foregoing, the Offered Investors
shall be required (i) to bear their proportionate share of any escrows,
holdbacks or adjustments in purchase price and (ii) to make such
representations, warranties and covenants and enter into such agreements as are
customary to be made in the Offered Investors' capacities as stockholders of the
Company and for transactions of the nature of the Tag Along Offer.
(d) Notwithstanding anything contained in this Section 5.1,
there shall be no liability on the part of the Tagged Investors to the Offered
Investors if the Transfer of Common Stock pursuant to this Section 5.1 is not
consummated for whatever reason, regardless of whether the Tagged Investors have
delivered a Tag Along Notice. Whether or not to effect a Transfer of Common
Stock pursuant to this Section 5.1 by the Tagged Investors is in the sole and
absolute discretion of the Tagged Investors.
5.2 CLOSING. In the event the rights of an Offered Investor
under Section 5.1 shall be exercised, each transferring party shall cause the
stock certificate or certificates representing the shares covered by such
Transfer to be delivered to said transferee, duly endorsed for Transfer with all
applicable stock transfer tax stamps attached, paid or otherwise provided for by
such Offered Investor, together with such other documents and instruments as the
transferee may reasonably request.
SECTION 6. SPECIFIC PERFORMANCE. Each of the Investors acknowledges and agrees
that in the event of any breach of this Agreement, the non-breaching party or
parties would be irreparably harmed and could not be made whole by monetary
damages. It is accordingly agreed that the Investors shall waive the defense in
any action for specific performance that a remedy at law would be adequate and
that the Investors, in addition to any other remedy to which they may be
entitled at law or in equity, shall be entitled to compel specific performance
of this Agreement.
SECTION 7. LEGEND. Each of the Investors agrees that substantially the following
legend shall be placed on the certificates representing any shares of Stock
owned by them:
"THE SHARES REPRESENTED BY THIS CERTIFICATE (I) HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
REGISTERED OR QUALIFIED UNDER ANY STATE SECURITIES LAW, AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH SUCH LAWS,
AND (II) ARE SUBJECT TO THE RIGHTS AND RESTRICTIONS CONTAINED IN THE
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT DATED AS OF AUGUST 23,
2001 (A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE ISSUER
HEREOF)."
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SECTION 8. MISCELLANEOUS.
8.1 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not control or affect the meaning or
construction of any provisions hereof.
8.2 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties with respect to the subject matter contained
herein, and supersedes all prior arrangements or understandings with respect
hereto.
8.3 NOTICES. All notices and other communications hereunder
shall be validly given or made if in writing, (i) when delivered personally (by
courier service or otherwise); (ii) when sent by telecopier; or (iii) when
actually received if mailed by first-class certified or registered United States
mail, postage-prepaid and return receipt requested, and all legal process with
regard hereto shall be validly served when served in accordance with applicable
law, in each case to the address of the party to receive such notice or other
communication set forth below, or at such other address as any party hereto may
from time to time advise the other parties pursuant to this Section:
(a) If to the Company, to it at:
Cross Country, Inc.
0000 Xxxx xx Xxxxxxxx Xxxx., X.X.
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Executive Officer
(B) If to any CEP Investor, to it at:
c/o Charterhouse Group International, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, President
Fax: (000) 000-0000
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
(C) If to any MS Investor, to it at:
c/o Morgan Xxxxxxx Xxxx Xxxxxx Capital
Partners IV, L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Managing
Director
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Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx, Esq.
Fax (000) 000-0000
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8.4 APPLICABLE LAW; SUBMISSION TO JURISDICTION. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of Delaware (without regard to its conflicts of law rules). Each of the
parties hereto hereby consents to the exclusive jurisdiction of the United
States District Court for the District of Delaware and the Chancery Court of the
State of Delaware (and of the appropriate appellate courts therefrom) over any
suit, action or proceeding arising out of or relating to this Agreement. Each
party hereto irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of venue in any such
court or that any such proceeding which is brought in accordance with this
Section has been brought in an inconvenient forum. Subject to applicable law,
process in any such proceeding may be served on any party any where in the
world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing and subject to applicable law, each party agrees that
service of process on such party as provided in Section 8.3 shall be deemed
effective service of process on such party. Nothing herein shall affect the
right of any party to serve legal process in any other manner permitted by law
or at equity or to enforce in any lawful manner a judgment obtained in one
jurisdiction in any other jurisdiction. WITH RESPECT TO A PROCEEDING IN ANY SUCH
COURT, EACH OF THE PARTIES IRREVOCABLY WAIVES AND RELEASES TO THE OTHER ITS
RIGHT TO A TRIAL BY JURY, AND AGREES THAT IT WILL NOT SEEK A TRIAL BY JURY IN
ANY SUCH PROCEEDING.
8.5 SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity,
legality or enforceability of the remainder of this Agreement in such
jurisdiction or the validity, legality or enforceability of this Agreement,
including any provision, in any other jurisdiction, it being intended that all
rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
8.6 AGREEMENT TO BE BOUND. Notwithstanding anything to the
contrary contained in this Agreement, no shares of Common Stock held by any
Investor may be Transferred unless the transferee, prior to such Transfer,
agrees in writing, in form and substance reasonably satisfactory to the Company,
to be bound by the terms of this Agreement to the same extent and in the same
manner as the transferor of such shares, a copy of which writing shall be
maintained on file with the Secretary of the Company and shall include the
address of such transferee to which notices hereunder shall be sent; provided
that the provisions of this Section 8.6 shall not apply to any Transfers: (i)
pursuant to and in compliance with Rule 144, (ii) pursuant to a public offering
registered under the Act or (iii) to the limited partners of any Investor in
connection with a pro rata distribution to such partners pursuant to the terms
of such Investor's partnership agreement.
8.7 SUCCESSOR, ASSIGNS, TRANSFEREES. The provisions of this
Agreement shall be binding upon and accrue to the benefit of the parties hereto
and their respective heirs, successors and permitted assigns. Notwithstanding
the foregoing, neither this Agreement nor any right, remedy, obligation or
liability arising hereunder or by reason hereof shall be assignable by the
Company or any Investor, except to a Permitted Transferee of such Investor and
then only if such Transferee agrees to be bound by the terms of this Agreement
pursuant to Section 8.6 above.
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8.8 AMENDMENTS; WAIVERS. This Agreement may not be amended,
terminated, modified or supplemented and no waivers of or consents to departures
from the provisions hereof may be given unless consented to in writing by the
parties hereto.
8.9 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
8.10 TERM OF AGREEMENT.
(a) This Agreement shall become effective only upon the
consummation of the Company's initial public offering pursuant to Registration
No. 333-64914. If such initial public offering is not consummated then this
Agreement shall have no force or effect and the Original Agreement shall remain
in effect in accordance with its terms. This Agreement shall automatically
terminate on the occurrence of any of the following events: (i) the cessation of
the Company's business or the complete liquidation of the Company; or (ii)
whenever one holder owns all of the shares of Common Stock.
(b) In addition, this Agreement shall terminate and be of no
further force or effect (i) with respect to any Investor when such Investor
ceases to own any Stock or (ii) by written consent in accordance with Section
8.8.
8.11 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 successors and permitted assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
8.12 RECAPITALIZATION, ETC. In the event that any capital
stock or other securities are issued in respect of, in exchange for, or in
substitution of, any Common Stock by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off, partial or
complete liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the Common Stock or any other change in capital
structure of the Company, appropriate adjustments shall be made with respect to
the relevant provisions of this Agreement so as to fairly and equitably
preserve, as far as practicable, the original rights and obligations of the
parties hereto under this Agreement.
8.13 REASONABLE BEST EFFORTS. Subject to the terms and
conditions of this Agreement, the Company and each of the Investors will use its
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary or desirable under applicable laws and
regulations to give effect to the terms and conditions of this Agreement.
8.14 EFFECTIVE DATE. This Agreement has been executed as of
the date first above written, to automatically and without further action of the
parties become effective on the date first written above.
8.15 DISPUTES. In the event of any dispute under this
Agreement, the non-prevailing party shall pay all legal fees and expenses of the
prevailing party.
13
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
The Company: CROSS COUNTRY, INC.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: President and Chief Executive Officer
The CEP Investors: CHARTERHOUSE EQUITY PARTNERS III, L.P.
By: CHUSA Equity Investors III, L.P.,
general partner
By: Charterhouse Equity III, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
CHEF NOMINEES LIMITED
By: Charterhouse Group International, Inc.,
Attorney-in-Fact
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director
MS Investors: XXXXXX XXXXXXX XXXX XXXXXX
CAPITAL PARTNERS IV, L.P.
By: MSDW Capital Partners IV, LLC,
as General Partner
By: MSDW CAPITAL PARTNERS IV, INC.,
as Member
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
14
MSDW IV 892 INVESTORS, L.P.
By: MSDW Capital Partners IV, LLC,
as General Partner
By: MSDW CAPITAL PARTNERS IV, INC.,
as Member
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX XXXX XXXXXX
CAPITAL INVESTORS IV, L.P.
By: MSDW Capital Partners IV, LLC,
as General Partner
By: MSDW CAPITAL PARTNERS IV, INC.,
as Member
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
XXXXXX XXXXXXX VENTURE
PARTNERS III, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III,
L.L.C., its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III,
Inc., its Institutional Managing Member
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
XXXXXX XXXXXXX VENTURE INVESTORS III, L.P.
By: Xxxxxx Xxxxxxx Venture Investors III,
L.L.C., its General Partner
15
By: Xxxxxx Xxxxxxx Venture Capital III,
Inc., its Institutional Managing Member
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
THE XXXXXX XXXXXXX VENTURE
PARTNERS ENTREPRENEUR FUND, L.P.
By: Xxxxxx Xxxxxxx Venture Partners III,
L.L.C., its General Partner
By: Xxxxxx Xxxxxxx Venture Capital III,
Inc., its Institutional Managing Member
By: /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Executive Director
16
