EXECUTION COPY
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STOCKHOLDERS AGREEMENT
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This Stockholders Agreement (this "Agreement") is made as of April 1, 1999,
among RC Transaction Corp., a Delaware corporation (the "Company"), the
stockholders listed on Schedule I (the "Evercore Stockholders"), the
stockholders listed on Schedule II (the "Management Stockholders"), and the
stockholders listed on Schedule III (the "Outside Stockholders").
RECITALS
A. The Evercore Stockholders, the Step 1 Management Stockholders and the
Outside Stockholders have acquired Common Stock and Subordinated Notes in the
amounts set forth on Schedules I, II and III, respectively, pursuant to the
Investment Agreement.
B. The Evercore Stockholders, the Step 1 Management Stockholders and the
Outside Stockholders anticipate that certain Step 2 Management Stockholders will
hereafter acquire Class A Common Stock and Subordinated Notes and, to the extent
such Step 2 Management Stockholders do not acquire such Common Stock and
Subordinated Notes, that the Evercore Stockholders will acquire such Common
Stock and Subordinated Notes.
C. The parties desire to provide for the governance of the Company's
affairs, and to provide for certain restrictions on the transfer of the
Company's securities, in accordance with this Agreement.
AGREEMENT
The parties agree as follows:
ARTICLE 1
DEFINITIONS
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1.1 Certain Definitions. The following capitalized terms have the
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following meanings:
"AAA" means the American Arbitration Association.
"Affiliate" means, with respect to a specified Person, any other
Person that directly or indirectly controls, is controlled by, or is under
common control with, the specified Person.
"Bank Stockholder" means BT Capital Investors, L.P., BancBoston
Investments Inc., and any of their respective Permitted Transferees that becomes
a party to this Agreement in accordance Section 3.2.
"Beneficially Own" means, with respect to any security, to be the
"beneficial owner" of that security as determined pursuant to Rule 13d-3 under
the Securities Exchange Act of 1934, as amended.
"Board" means the Company's board of directors.
"Chief Executive Officer" means the Company's chief executive officer.
"Class A Common Stock" means the Company's Class A common stock.
"Class B Common Stock" means the Company's Class B common stock.
"Class C Common Stock" means the Company's Class C common stock.
"Closing Date" has the meaning given in the Investment Agreement.
"Common Stock" means the Company's common stock, par value $.01 per
share, including the Class A Common Stock, the Class B Common Stock and the
Class C Common Stock.
"Directors" means the members of the Board.
"EBITDA" means the Company's earnings before interest, taxes,
depreciation and amortization, as determined in accordance with GAAP.
"Evercore I" means Evercore Capital Partners L.P., a Delaware limited
partnership.
"Evercore II" means Evercore Capital Partners (NQ) L.P., a Delaware
limited partnership.
"Evercore III" means Evercore Capital Offshore Partners L.P., a Cayman
Islands exempted limited partnership.
"Evercore IV" means Evercore Co-Investment Partnership L.P., a
Delaware limited partnership.
"Fair Market Value" means, with respect to shares of Common Stock or
any other Security, the fair market value thereof as determined reasonably and
in good faith by the Board, in consultation with the Company's independent
accountants.
"Fiscal Year" means the Company's fiscal year ended December 31 of
each year.
"Founders' Stock" means shares of Common Stock acquired by Management
Stockholders pursuant to the Stock Purchase Plan.
"GAAP" means generally accepted accounting principles, consistently
applied.
"Initial Founders" means Xxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx
Xxxxxxxx and Xxxxx X. Xxxxxxx, each for so long as he or she remains an employee
and stockholder of the Company.
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"Investment Agreement" means the Investment Agreement dated as of the
date hereof among the Company, the Evercore Stockholders, the Outside
Stockholders, and the Step 1 Management Stockholders.
"Permitted Transferee" means (i) with respect to a Management
Stockholder or an Outside Stockholder who is a natural person: (A) such
Stockholder's spouse, siblings or lineal descendants, (B) a Person who acquires
any Securities of a Stockholder pursuant to a will or the laws of descent or
distribution and (C) any trust the beneficiaries of which, or family limited
partnership or limited liability company the limited partners or members of
which, consist only of that Stockholder and/or his or her spouse, siblings
and/or lineal descendants; (ii) with respect to a Management Stockholder, any
other Stockholder; (iii) with respect to an Evercore Stockholder and, to the
extent applicable, a Bank Stockholder: (A) that Stockholder's officers,
employees or consultants, (B) any corporation or corporations, partnership or
partnerships (or other entity for collective investment, such as a fund) which
is (and continues to be) an Affiliate of that Stockholder and (C) the partners
of that Stockholder and the general partners of such partners (in the case of a
distribution by that Stockholder); (iv) with respect to a Xxxxxxxxx Group
Stockholder, each other Xxxxxxxxx Group Stockholder, but only for so long as
Xxxxxx Xxxxxxxxx (or his estate) continues to hold at least 50% of the shares of
Common Stock held by him as of the date hereof and (v) with respect to an
Evercore Stockholder, any transferee of shares of Class B Common Stock solely
with respect to shares of Class B Common Stock, which may be converted into
shares of Class A Common Stock pursuant to Section 4.8(c).
"Person" means any natural person, corporation, partnership (whether
general, limited or limited liability), limited liability company, joint
venture, estate, trust, association, governmental entity, or other entity or
organization.
"President" means the Company's president.
"Public Offering" means a public offering of any Security.
"Qualified Public Offering" means the sale, in an underwritten public
offering, registered under the Securities Act of 1933, as amended, of shares of
Common Stock, (A) immediately after which the number of shares of Common Stock
then publicly held constitute at least 20% of the outstanding shares of Common
Stock, on a fully diluted basis, and (B) which results in cash proceeds to the
Company and/or its stockholders which, when aggregated with any cash proceeds
paid to the Company and/or its stockholders in connection with any prior
underwritten registered public offerings of Common Stock, equals or exceeds
$25,000,000.
"RCLLC" means Resources Connection LLC, a Delaware limited liability
company.
"Regulation Y" means Regulation Y of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Part 225 (or any successor to such
Regulation).
"Regulatory Problem" means, with respect to any Bank Stockholder, any
change of facts, events or circumstances occurring after the date hereof, the
existence of which would cause such Bank Stockholder to believe that there is a
substantial risk of assertion by a governmental entity (which belief shall be
reasonable in light of the prevailing regulatory
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environment and applicable law) that such Bank Stockholder is or would be in
violation of any law, regulation, rule or other requirement of any governmental
authority (including, without limitation, Regulation Y).
"Xxxxxxxxx Group Stockholders" means Xxxxxxx Xxxxxxx, Xxxx Xxxxxxxxx,
Xxxxxx Xxxxxxxxx and Mainz Holdings Ltd.
"Securities" means the Common Stock, the Subordinated Notes, and any
other securities of the Company, whether now owned or hereafter acquired by a
Stockholder.
"Stockholders" means the Evercore Stockholders, the Management
Stockholders, and the Outside Stockholders.
"Step 1 Management Stockholders" means Xxxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxx.
"Step 2 Management Stockholders" means the Management Stockholders,
other than the Step 1 Management Stockholders, who become parties to this
Agreement pursuant to Section 4.7.
"Stock Purchase Plan" means the Company's 1998 Employee Stock Purchase
Plan.
"Strategic Transaction" means: (i) the sale, transfer, lease or
assignment of all or substantially all of the Company's business or assets
(whether or not such business is conducted or such assets are held by
Subsidiaries) or (ii) the merger of the Company with or into another Person, the
consolidation of the Company with another Person, the acquisition by another
Person of equity securities of the Company, or a recapitalization,
reorganization or other transaction, in each case following which the
Stockholders do not own more than 50% of the outstanding voting stock of the
surviving Person in such transaction.
"Subordinated Notes" means the Company's 12.0% Junior Subordinated
Promissory Notes in the form attached to the Investment Agreement as Exhibit A
thereto.
"Subsidiary" means any subsidiary of the Company, including (without
limitation) RCLLC.
"Transfer" means transfer, sell, assign, pledge, encumber, grant a
security interest in, or otherwise dispose of, whether voluntarily or
involuntarily, directly or indirectly, in whole or in part.
"Voting Securities" means any securities of the Company entitled to
vote in the election of directors, including Class A Common Stock.
1.2 Other Definitions. The following capitalized terms have the meanings
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given in the following Sections:
Term section
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Agreement First Paragraph
Annual Business Plan 2.3(a)
Arbitration Rules 6.4(a)
Class A Designees 2.1(a)
Company Offer 3.9(b)(i)
Dispute 6.1
Dispute Notice 6.2
Disputing Parties 6.2
Drag-Along Sale 3.7(a)
Drag-A1ong Sale Date 3.7(c)
Eligible Offering 3.9(b)
Eligible Securities 3.10(b)
Emergency Rules 6.4(a)
Evercore Offered Securities 3.10(a)
Evercore Stockholders First Paragraph
Evercore Transferee 3.10(a)
Initial Designees 2. 1(a)
Management Designees 2.1(a)
Management Stockholders First Paragraph
Offered Securities 3.9(a)
Outside Stockholders First Paragraph
Registration Expenses 3.11(b)
Registrable Securities 3.11(d)
Repurchase Notice 3.3(c)
Rightholder 3.10(a)
Sale Notice 3.7(c)
Stockholders' Representative 4.2(a)
Terminated Employee Stockholder 3.3(c)
Third Party 3.9(b)(ii)
Transfer Notice 3.3(a)
ARTICLE 2
CORPORATE GOVERNANCE
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2.1 Composition of Board.
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(a) Effective as of the Closing, the Board shall consist of eight
directors, four of whom shall be designated by the Management Stockholders (the
"Management Designees") and four of whom shall be designated by Stockholders
representing a majority of the issued and
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outstanding shares of Class A Common Stock (the "Class A Designees"). The
initial Management Designees and Class A Designees are listed on Schedule
2.1(a) (the "Initial Designees").
(b) No Management Stockholder or Outside Stockholder shall vote any
Voting Securities or execute any written consent for the removal of, or
otherwise attempt to remove, any Class A Designee from the Board. No Evercore
Stockholder or Outside Stockholder shall vote any Voting Securities or execute
any written consent for the removal of, or otherwise attempt to remove, any
Management Designee from the Board.
(c) If any Management Designee ceases to serve on the Board for any
reason (including, without limitation, due to death, resignation or removal),
the Management Stockholders shall have the right to fill the resulting vacancy.
If any Class A Designee ceases to serve on the Board for any reason (including,
without limitation, due to death, resignation or removal), Stockholders
representing a majority of shares of issued and outstanding Class A Common Stock
shall have the right to fill the resulting vacancy.
(d) Each Stockholder shall vote all of that Stockholder's Voting
Securities or execute written consents, as the case may be, and take all other
necessary action, including (without limitation) in connection with the
nomination and election of Directors and the filling of vacancies on the Board,
in order to ensure that the composition of the Board is as set forth in this
Section 2.1.
(e) If a Management Designee is a party to an employment agreement
with the Company or any Subsidiary (an "Employee/Designee"), and such
Employee/Designee's employment is terminated pursuant to that agreement, then
the Management Stockholders shall cause such Employee/Designee to resign
promptly after the Management Stockholders have designated a replacement
Management Designee and such replacement Management Designee has been elected to
the Board, but in any event within 45 days after the Evercore Stockholders have
given written notice to the Management Stockholders requesting such resignation;
provided, however, that if such termination of employment is other than for
Cause (as defined in such employment agreement) and, within such 45-day period,
Management Stockholders representing a majority of the Management Stockholders'
shares of Voting Securities have affirmed such Employee/Designee's status as the
Management Designee, then the resignation of such Employee/Designee shall not be
required.
2.2 Meetings. In addition to any other meetings that may be held by the
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Board, the Board shall hold regular meetings on a quarterly basis, in March,
June, September and December of each year.
2.3 Annual Business Plan.
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(a) Each Fiscal Year, the Company shall prepare an annual operating
and financial plan for the next Fiscal Year (the "Annual Business Plan"). The
Annual Business Plan shall include key financial targets (including, without
limitation, revenues and EBITDA), a capital expenditure budget, key business
development targets (including, without limitation, proposed new office openings
or product line introductions) and any proposed material changes
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to existing equity compensation arrangements with the Company's or its
Subsidiaries' employees.
(b) At least 15 days before the December regular meeting of the Board
each Fiscal Year, the Company shall submit a copy of the Annual Business Plan
for the next Fiscal Year to each of the Directors.
(c) At the December regular meeting of the Board each Fiscal Year,
the Company shall submit the Annual Business Plan for the next Fiscal Year to
the Board for approval. If the Board does not approve the Annual Business Plan
at the December regular meeting, then the Company and the Board shall use their
best efforts to arrive at an Annual Business Plan that is acceptable to the
Board and to seek Board approval thereof prior to the end of the then current
Fiscal Year.
2.4 Financial Reports.
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(a) The Company shall deliver the following financial reports to the
Evercore Stockholders, the Bank Stockholders and each of the Directors:
(i) the Company's unaudited monthly, quarterly and year-to-date
financial statements, prepared in accordance with GAAP (including a monthly
and year-to-date balance sheet, profit and loss statement and cash flow
statement), within 30 days after the end of each calendar month, or 45 days
after the end of such quarter or Fiscal Year, as the case may be; and
(ii) the Company's audited year-end financial statements,
prepared in accordance with GAAP (including balance sheet, profit and loss
statement and cash flow statement), within 90 days of the end of each
Fiscal Year.
(b) The Company shall make available to any Management Stockholder or
Outside Stockholder, promptly after such Stockholder's request therefor, any
financial information that has been provided to the Evercore Stockholders or the
Directors pursuant to Section 2.4(a).
(c) All information provided pursuant to Section 2.4(a) or Section
2.4(b) shall be deemed confidential and proprietary information of the Company
and shall not be disclosed by any Stockholder to any other Person; provided that
the foregoing shall not apply to information that (A) was in the public domain
before the date hereof or subsequently came into the public domain other than
as a result of disclosure by such Stockholder in breach of this Agreement or (B)
is required to be disclosed in a judicial or administrative proceeding or by
law.
2.5 Certain Decisions by Majority Vote. Except as otherwise required by
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law or this Agreement, each of the following actions shall require the prior
approval of the Board by simple majority vote (or, if the Board is deadlocked,
the prior written consent of Stockholders representing a majority of the issued
and outstanding shares of Class A Common Stock), in addition to any approval (if
any) that may be required for such action under Section 2.6:
(a) beginning two years after the date hereof, any Public Offering;
(b) beginning four years after the date hereof, any Strategic
Transaction;
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(c) any acquisition or sale of assets by the Company not
contemplated by the then current Annual Business Plan (other than as part of a
Strategic Transaction) for a cumulative purchase price in excess of $1,000,000
in any twelve month period;
(d) the issuance of any Securities (other than pursuant to
the exercise of employee stock options granted with the Board's approval);
(e) any changes to the Company's equity compensation
arrangements (including stock option, stock purchase and similar plans) with the
Company's employees (provided, however, that this subsection (e) shall not limit
the authority and discretion of the administrator of any such plan to grant
awards under any such plan);
(f) cause the Company to directly or indirectly incur,
refinance, create, assume, guarantee or otherwise become liable with respect to
(collectively, "incur"), any indebtedness, except (i) indebtedness incurred
pursuant to the Credit Agreement (as defined in the Subordinated Notes), (ii)
the Subordinated Notes and (iii) indebtedness incurred in the ordinary course of
the Company's business in amounts not to exceed that contemplated by the Annual
Business Plan;
(g) except in the ordinary course of the Company's
business, cause the Company to enter into any transaction after the date hereof,
or materially amend any transaction in effect on the date hereof, with any
Affiliate of the Company;
(h) after the date of this Agreement, cause the Company to
enter into, modify or terminate (including for purposes hereof, a decision not
to renew or extend) any employment agreement with an Initial Founder;
(i) the modification of existing cash compensation
arrangements between the Company and its two most highly compensated executives.
(j) the approval or material amendment of the Annual
Business Plan for any Fiscal Year;
(k) (i) cause the Company to institute, voluntarily
dismiss, terminate or settle any litigation or arbitration against any Person
(A) involving claims for damages and penalties in excess of $100,000 on an
individual basis or $500,000 in the aggregate in any twelve month period or (B)
otherwise material to the Company and Subsidiaries taken as a whole (provided,
however, that this subsection (k) provision shall not apply to any dispute
between the Company and any Stockholder or its Affiliates); or (ii) enter into,
agree to or otherwise become subject to any consent decree or other order issued
by any governmental authority relating to the Company or any of its Affiliates
and material to the Company and Subsidiaries taken as a whole; and
(l) any agreement by the Company (or, if applicable, any
Subsidiary) that would obligate the Company (or such Subsidiary) to do any of
the foregoing.
2.6 Certain Decisions by Super-Majority Vote. Notwithstanding any
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other provision of this Agreement (including Section 2.5), the following actions
shall require the prior approval of the Board by the affirmative vote of at
least five of the Directors:
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(a) for a period of two years after the date hereof, any Public
Offering of any Security;
(b) for a period of four years after the date hereof, any
Strategic Transaction;
(c) (i) any issuance of Class B Common Stock or (ii) any
issuance of Securities, reclassification, recapitalization or similar action
that would result in the dilution of the Management Stockholders' aggregate
voting power or equity interest in the Company (except (A) after the expiration
of four years after the date of this Agreement, pursuant to a Strategic
Transaction or (B) after the expiration of two years after the date of this
Agreement, pursuant to a Public Offering that is a Qualified Public Offering),
or otherwise adversely affect any rights or privileges of the Management
Stockholders;
(d) with respect to the removal of the Chief Executive Officer,
the determination of whether or not such removal is for "Cause" as defined in
his or her employment agreement;
(e) the election of the Chairman of the Board;
(f) the declaration of any distributions or dividends to
Stockholders (except interest payments to holders of Subordinated Notes in
accordance therewith);
(g) any agreement or transaction by the Company with an Evercore
Stockholder or any Affiliate of an Evercore Stockholder;
(h) any redemption or repurchase by the Company, or any purchase
by any Subsidiary, of any Security Beneficially Owned by any Evercore
Stockholder or any of their respective Affiliates;
(i) the dissolution or liquidation of, or filing for bankruptcy
by, the Company;
(j) the designation or establishment of, and the selection of
the members of, any committee of the Board;
(k) (i) any amendment to or repeal of any provision of the
Company's certificate of incorporation or bylaws or (ii) any amendment to or
repeal of any provision of any organizational document (including, without
limitation, any certificate or articles of incorporation, bylaws, certificate or
articles or organization, or operating agreement) of any Subsidiary;
(l) the Transfer of any common stock or other security of any
material subsidiary or all or substantially all of the assets of any material
Subsidiary (including, without limitation, any membership interest in or other
security of RCLLC), or a merger, consolidation or reorganization involving any
material Subsidiary, except, after the expiration of four years after the date
of this Agreement, pursuant to a Strategic Transaction;
(m) the conversion of the Company from a corporation into any
other type of entity;
(n) any amendment to, or the termination of, this Agreement;
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(o) any change in the number of members of the Board;
(p) the approval of an investment pursuant to Section 4.1;
(q) the prior approval of an issuance or sale pursuant to
Section 3.3(a)(i)(B);
(r) any amendment of any Subordinated Note, taking of any
action, or omission to perform any act pursuant to Section 4 thereof; and
(s) any agreement by the Company (or, if applicable, any
Subsidiary) that would obligate the Company (or such Subsidiary) to do any of
the foregoing.
2.7 Officers.
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(a) The initial Chief Executive Officer shall be Xxxxxx X.
Xxxxxx, who shall only be removed from such position in accordance with his
employment agreement with the Company.
(b) If, as a result of death, disability, retirement,
resignation, removal or otherwise, there shall exist a vacancy in the office of
Chief Executive Officer, the Board shall in good faith consider electing one of
the other Initial Founders to fill such vacancy.
(c) The other officers of the Company shall be appointed as
follows: (i) the Chief Financial Officer shall be recommended by the Chief
Executive Officer and subject to election by the Board and (ii) other officers
shall be appointed by the Company's Chief Executive Officer. The initial Chief
Financial Officer as of the Closing shall be the individual listed on Schedule
2.7(c).
ARTICLE 3
TRANSFER OF SECURITIES
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3.1 General Restriction. No Stockholder shall Transfer any
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Securities, except as expressly permitted by and in accordance with this
Agreement.
3.2 Transfer to Permitted Transferees. A Stockholder may transfer all
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or part of his, her or its Securities to a Permitted Transferee; provided,
however, that (a) prior to such transfer, the Permitted Transferee shall agree
in writing, in form acceptable to the Company, to be bound by the terms of this
Agreement and (b) any such transfer or attempted transfer shall be void and of
no effect unless and until there has been full compliance with the requirements
of this Section 3.2.
3.3 Transfer Upon Death of Stockholder or Termination of Employment.
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(a) In the event of the death of a Management Stockholder, and
if the Initial Founders or the Company, or any of them, give notice to the
others invoking this Section 3.3(a) within six months after the date of death
(the "Transfer Notice"), then (i) if, within 10 days after the date of the
Transfer Notice, the Administrator of the Stock Purchase Plan determines (and
gives the Initial Founders and the personal representative of the deceased
Management Stockholder notice of such determination) to purchase a specified
number of shares of such deceased Management Stockholder's Founders' Stock for
the purpose of reserving such shares
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for issuance upon the exercise of stock options to be granted to a qualified
replacement for such deceased Management Stockholder, as may be reasonably
deemed necessary to attract such a replacement, then (A) the Company shall have
the right to purchase the number of shares of Founders' Stock so specified at
the Fair Market Value thereof as of the date of death; provided, however, that
(B) no shares so purchased by the Company shall be issued, sold or otherwise
transferred except pursuant to the exercise of such stock options by such a
replacement, without the prior approval of the Board pursuant to Section 2.6(q);
(ii) the Initial Founders (or any of them) shall have the right to purchase all
or part of the deceased Management Stockholder's remaining Founders' Stock at
the Fair Market Value thereof as of the date of death by giving the Company and
the personal representative of the deceased Management Stockholder notice of
their intent to exercise their rights under this Section 3.3(a) within 20 days
after the date of the Transfer Notice; and (iii) to the extent the Initial
Founders do not exercise such repurchase right with respect to all of the
deceased Management Stockholder's remaining Founders' Stock, the Company shall
have the right, subject to Section 3.3(c), to purchase all or part of the
remaining Founders' Stock of the deceased Management Stockholder at the Fair
Market Value thereof as of the date of death by giving the personal
representative of the deceased Management Stockholder notice of the Company's
intent to exercise its rights under this Section 3.3(a) within 30 days after
the date of the Transfer Notice. This Section 3.3(a) is subject to the
provisions of Section 3.8.
(b) If a Management Stockholder's employment with the Company
terminates for any reason (including, without limitation, due to termination by
the Company with or without cause or resignation by such Management Stockholder
with or without good reason), and if the Initial Founders or the Company, or any
of them, give notice to each other and to such Management Stockholder (the
"Terminated Employee Stockholder") invoking this Section 3.3(b) within six
months after the date of termination of such employment (the "Repurchase
Notice"), then (i) if, within 10 days after the date of the Repurchase Notice,
the Administrator of the Stock Purchase Plan determines (and gives the Initial
Founders and the Terminated Employee Stockholder notice of such determination)
to purchase a specified number of shares of such Terminated Employee
Stockholder's Founders' Stock for the purpose of reserving such shares for
issuance upon the exercise of stock options to be granted to a qualified
replacement for such Terminated Employee Stockholder, as may be reasonably
deemed necessary to attract such a replacement, then (A) the Company shall have
the right to purchase the number of shares of Founders' Stock so specified at
the Fair Market Value thereof as of the date of termination; provided, however,
that (B) no shares so purchased by the Company shall be issued, sold or
otherwise transferred except pursuant to the exercise of such stock options by
such a replacement, without the prior approval of the Board pursuant to Section
2.6(q); (ii) the Initial Founders (or any of them) shall have the right to
purchase all or part of the Terminated Employee Stockholder's remaining
Founders' Stock at the Fair Market Value thereof as of the date of termination
by giving the Company and the Terminated Employee Stockholder notice of their
intent to exercise their rights under this Section 3.3(b) within 20 days after
the date of the Repurchase Notice; and (iii) to the extent the Initial Founders
do not exercise such repurchase right with respect to all of the Terminated
Employee Stockholder's remaining Founders' Stock the Company shall have the
right, subject to Section 3.3(c), to purchase all or part of the remaining
Founders' Stock of the Terminated Employee Stockholder at the Fair Market Value
thereof as of the date of termination by giving the Terminated Management
Stockholder notice of
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the Company's intent to exercise its rights under this Section 3.3(c) within 30
days after the date of the Repurchase Notice. This Section 3.3(b) is subject to
the provisions of Section 3.8.
(c) If notice is given under this Section 3.3 invoking the
purchase provisions of subsection (a), subsection (b) or subsection (c) hereof,
all of the parties to such purchase transaction shall use their respective
reasonable efforts and act in good faith to consummate such purchase transaction
as soon as is practicable, but in no event more than 45 days after such notice.
In connection with any purchase pursuant to this Section 3.3, the personal
representative, heir, or Terminated Employee Stockholder (as the case may be)
shall enter into a purchase agreement with, and in form and substance reasonably
acceptable to, the Initial Founders and/or the Company (as the case may be).
3.4 Lock-Up Agreement. Each Stockholder agrees, in the event of an
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underwritten Public Offering, to the extent deemed by the managing underwriter
to be necessary or appropriate in connection with such Public Offering: (a) not
to effect any public sale or distribution of any Common Stock or of any Security
convertible into or exercisable for Common Stock (in each case, other than as
part of such Public Offering) during such period (not to exceed 180 days) as the
managing underwriter and the Company shall agree upon and (b) to enter into a
lock-up agreement to this effect and for such period in customary form.
3.5 Compliance with Securities Laws. Notwithstanding any other
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provision of this Agreement, no Stockholder shall Transfer any Security unless
such Transfer is, in the opinion of the Company's legal counsel given prior to
such Transfer, in compliance with all applicable federal, state and foreign
securities laws.
3.6 Legends. In addition to any other legend that may be required by
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applicable law or deemed appropriate by the Company's legal counsel, each
certificate for Securities issued to a Stockholder shall bear a legend in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
RESTRICTIONS ON TRANSFER SET FORTH IN THE STOCKHOLDERS AGREEMENT
DATED APRIL 1, 1999, AND MAY NOT BE TRANSFERRED EXCEPT IN
ACCORDANCE THEREWITH.
3.7 Drag-Along Rights.
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(a) Beginning four years after the date hereof, if the Board
approves a Strategic Transaction, then, subject to subsection (c) below, each
Stockholder shall sell all (or such lesser amount as may be required pursuant to
such Strategic Transaction) Securities held by him, her or it pursuant to such
Strategic Transaction, and in accordance with the terms and provisions, and in
the manner, approved by the Board for such Strategic Transaction (the "Drag-
Along Sale"). All sellers of Securities in such Drag-Along Sale shall (i)
receive the same consideration per share of Common Stock (without regard to
class) and of each class of any other Securities, shall be subject to the same
terms and conditions of sale and shall otherwise be treated
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equally or, where appropriate, pro rata based upon the number of shares of
Securities held by each Stockholder; (ii) receive consideration (A) at least 50%
of which shall consist of cash and/or marketable securities listed for trading
on the New York Stock Exchange, the American Stock Exchange, or the National
Market System of the Nasdaq Stock Market and (B) equal to or exceeding the Fair
Market Value of the Securities being sold in such Strategic Transaction; and
(iii) execute such reasonable and customary documents and take such actions as
may be reasonably required by the Board for the purposes of consummating such
Strategic Transaction in accordance with this Section 3.7.
(b) Subject to the provisions of Subsection (a) above, any such
sale by any Stockholder shall be on the same terms and conditions as the
proposed Drag-Along Sale by each other Stockholder; provided, however, that all
selling Stockholders shall share pro rata, based upon the number of shares of
Common Stock (without regard to class), the number of shares of each class of
Security (other than Common Stock) or the principal amount of the Subordinated
Notes, as the case may be, being sold by each, (i) in any reasonable or
customary indemnity liabilities to the purchaser in the Drag-Along Sale (other
than representations as to encumbered ownership of and ability to transfer the
shares being sold by any other seller in the Drag-Along Sale, any other matter
relating solely to another seller, which shall be the sole responsibility of
such other seller, or any representations relating to the Company or its
Subsidiaries, their financial condition, assets or results of operations) and
(ii) in any reasonable or customary escrow (not to exceed 20% of the purchase
price in the Drag-Along Sale) for the purpose of satisfying any such indemnity
liabilities; provided further, however, that each Stockholder's sharing
obligation hereunder with respect to such indemnity or other liabilities shall
be limited to the lesser of(A) the Securities being sold by such Stockholder and
the proceeds thereof, including (without limitation) the cash and non-cash
consideration received by such Stockholder with respect to such Securities and
(B) a pro rata portion of such indemnity or other liability based upon the
amount of proceeds received by such Stockholder in the Drag-Along Sale. In no
circumstance whatsoever hereunder or under any provision of any agreement
relating to the Strategic Transaction or otherwise shall any recourse be had to
such Stockholder, whether by levy or execution, or under any law, or by the
enforcement of any assessment or penalty or otherwise, it being understood that
the sole recourse for enforcing such Stockholder's obligation shall be to such
Securities being sold thereby and the proceeds thereof.
(c) The Company shall provide each Stockholder with written
notice (the "Sale Notice") not more than 60 nor less than 30 days prior to the
date of the consummation of the Drag-Along Sale (the "Drag-Along Sale Date").
Each Sale Notice shall set forth: (i) the name and the address of each proposed
transferee or purchaser of Securities in the Drag-Along Sale; (ii) the proposed
amount and form of consideration to be paid for such Securities and the terms
and conditions of payment offered by each proposed transferee or purchaser,
(iii) confirmation that the proposed purchaser or transferee has been informed
of the "Drag-Along Rights" provided for herein and has agreed to purchase
Securities in accordance with the terms hereof; and (iv) the Drag-Along Sale
Date.
(d) Notwithstanding the provisions of this Section 3.7, no Bank
Stockholder shall be required to participate in a Drag-Along Sale if the form of
consideration to be received by such Bank Stockholder in such Drag-Along Sale
would cause a Regulatory Problem, provided
13
that such Bank Stockholder gives the Company written notice setting forth the
legal and factual basis for such Regulatory Problem no later than 15 days after
the date of the Sale Notice.
3.8 Other Agreements. Notwithstanding anything to the contrary
----------------
contained in this Article 3, if an employment, employee stock option, employee
stock purchase, restricted stock or other agreement between the Company and a
Stockholder that is an employee of the Company, or any related plan, contains
provisions for the Transfer of any Securities by such employee Stockholder
(including, without limitation, for the sale to the Company by that Stockholder
(including, without limitation, any put right) or the repurchase by the Company
from that Stockholder (including, without limitation, any call right) of such
Securities), then such provisions shall, with respect to such Securities, and to
the extent inconsistent with this Article 3, apply in lieu of, and prevail over,
the provisions of this Article 3.
3.9 Regulatory Problem.
------------------
(a) Notwithstanding any other provision of this Agreement to the
contrary, in the event a Bank Stockholder or any of its Affiliates shall
reasonably determine that if such Bank Stockholder or such Affiliate, shall
continue to hold some or all of the shares of Common Stock or any other
securities of the Company held by it, there is a material risk that such
ownership will result in a Regulatory Problem or the cost of complying with
regulatory requirements applicable to such Bank Stockholder or such Affiliate
would materially increase, then such Bank Stockholder may (i) subject to Section
3.9(b), sell or otherwise dispose of such securities (the "Offered Securities")
in a prompt and orderly manner or (ii) request that the Company, and upon
receipt of any such request the Company agrees to exchange all or any portion of
the Offered Securities on a share-for-share basis for shares of a non-voting
Security of the Company (such non-voting security to be identical in all
respects to the Offered Securities, except that they shall be non-voting and
shall be convertible or exercisable into voting securities with terms identical
to the Offered Securities on such conditions as are reasonably requested by such
Bank Stockholder in light of the regulatory considerations then prevailing).
(b) The Bank Stockholders, and each of them, hereby grant to the
Company the right to purchase all of the Offered Securities in any disposition
pursuant to Section 3.9(a) (an "Eligible Offering") in the manner and pursuant
to the following procedures:
(i) Each Bank Stockholder shall, before disposing of any
Offered Securities pursuant to an Eligible Offering, give written
notice thereof to the Company specifying the type and amount of the
Offered Securities, the factual and legal basis for the Regulatory
Problem, and the aggregate cash proceeds that such Bank Stockholder
desires to obtain therefrom. The Company shall within 10 business days
thereafter be entitled to offer to purchase all of the Offered
Securities at such price per share and pursuant to such other terms
and conditions as specified in a written notice from the Company to the
Bank Stockholder (the "Company Offer"). The Bank Stockholder shall have
10 business days following receipt of the Company Offer to elect to
accept the Company Offer in a written notice to the Company. If the
Bank Stockholder accepts Company Offer, the Bank Stockholder shall sell
to the Company and the Company shall purchase from the Bank
Stockholder, for the price and on such other terms set forth in the
Company Offer, all of the Offered Securities. The Company and the Bank
Stockholder
14
shall use their respective reasonable efforts and act in good faith to
consummate such purchase transaction as soon as practicable, but in no
event more than 30 days after the date of the Company Offer, pursuant
to a purchase agreement in form and substance reasonably acceptable to
the Company and the Bank Stockholder.
(ii) If the Bank Stockholder rejects the Company Offer, then
the Bank Stockholder shall have 90 business days from the date of the
written rejection of the Company Offer within which to sell all of the
Offered Securities to a third party or parties (the "Third Party"), at
a purchase price not less than 100% of the purchase price proposed in
the Company Offer. The Bank Stockholders agree that as a condition to
purchasing such Offered Securities, the Third Party shall be required
to execute a signature page to this Agreement and agree to be bound by
the terms and provisions of this Agreement in a form mutually
acceptable to the Company and the Bank Stockholder. If the Offered
Securities are not sold by the Bank Stockholder during such 90
business-day period, the right of the Bank Stockholder to sell such
Offered Securities to the Third Party shall expire and such Offered
Securities shall again be subject to the restrictions contained in this
Section 3.9 and shall not thereafter be sold, exchanged or otherwise
disposed of except in compliance with the provisions of this Agreement.
(c) In connection with a sale to a Third Party pursuant to this
Section 3.9 and subject to Section 3.9(b), if requested by a Bank Stockholder,
the Company shall cooperate with such Bank Stockholder in effecting the transfer
of such Offered Securities to a Third Party. Without limiting the foregoing, at
the request of such Bank Stockholder, the Company shall provide (and authorize
such Bank Stockholder to provide) financial and other information concerning the
Company to any prospective purchaser of such Offered Securities owned by such
Bank Stockholder. The Company shall not be required to provide any such
information unless the recipient thereof signs a confidentiality agreement
reasonably satisfactory to the Company.
(d) The Company hereby covenants and agrees with each Bank
Stockholder that prior to exchanging any voting security of the Company held by
a Bank Stockholder for any non-voting security of the Company or if the Company
proposes to take any other action or enter into any other transaction that would
increase the percentage of voting securities owned or controlled by any Bank
Stockholder, it shall deliver to each Bank Stockholder a notice 10 business days
prior to executing such exchange or taking such other action or consummating
such other transaction describing in sufficient detail the terms and conditions
of such exchange or other action or transaction so that each Bank Stockholder
can determine whether such exchange or other action or transaction may result in
a Regulatory Problem.
3.10 Tag Along Rights.
----------------
(a) If the Evercore Stockholders seek to sell their Securities
to a Person or Persons that is not a Permitted Transferee of the Evercore
Stockholders (or shall have entered into a bona fide written agreement with such
Person or Persons) (each, an "Evercore Transferee") in which any other
Stockholder is not participating on a pro rata basis, then the Evercore
Stockholders shall send written notice to each other Stockholder (each, a
15
"Rightholder") which shall state (i) the amount of Securities proposed to be
sold or otherwise transferred to the Evercore Transferees (the "Evercore
Offered Securities"), (ii) the proposed purchase price to be paid by the
Evercore Transferees, (iii) the name of the Evercore Transferees, (iv) the
projected closing date of the sale or transfer of the Evercore Offered
Securities, which in no event shall be prior to thirty (30) days after the
giving of such written notice to each Rightholder and (v) that the Evercore
Stockholders shall sell or otherwise transfer the Evercore Offered Securities
subject to the rights of each Rightholder contained in this Section 3.10.
(b) For a period of thirty (30) days after the giving of the notice
pursuant to Section 3.10(a) above, each Rightholder shall have the right to
sell to the Evercore Transferees on the same terms and conditions and for the
same consideration that amount of Securities held by such Rightholder (the
"Eligible Securities") equal to that percentage of the Evercore Offered
Securities determined by dividing (i) the total number of shares of Common Stock
then owned by such Rightholder by (ii) the total number of shares of Common
Stock owned by all Stockholders participating in the sale to the Evercore
Transferees (including the shares of Common Stock owned by the Evercore
Stockholders, such Rightholder and all other Rightholders). To the extent that
such Rightholder exercises his, her or its right to sell shares pursuant to this
Section 3.10, the amount of the Evercore Offered Securities to be sold to the
Evercore Transferees by the Evercore Stockholders, shall be reduced
proportionately.
(c) The rights of each Rightholder under this Section 3.10 shall be
exercisable by delivering written notice thereof, prior to the expiration of the
30-day period referred to Section 3.10(b), to the Evercore Stockholders, with
a copy to the Company. The failure of such Rightholder to respond within such
period to the Evercore Stockholders shall be deemed to be a waiver of his, her
or its rights under this Section 3.10.
3.11 Incidental Registration Rights.
------------------------------
(a) Right to Include Registrable Securities. If the Company at any
---------------------------------------
time after a Public Offering of shares of Common Stock proposes to register its
Common Stock under the Securities Act (other than a registration on Form S-4 or
S-8, or any successor or other forms promulgated for similar purposes), in a
secondary offering of shares of Common Stock held by Stockholders (and not for
sale for the Company's own account) or at any time that the Company effects a
combination of a primary offering by the Company and a secondary offering of
shares of Common Stock held by Stockholders, in either case, pursuant to a
registration statement on which it is permissible to register Registrable
Securities (as defined below) for sale to the public under the Securities Act,
it will each such time give prompt written notice to all Stockholders of its
intention to do so and of the Stockholders' rights under this Section 3.11.
Upon the written request of any such Stockholder made within 15 days after the
receipt of any such notice (which request shall specify the Registrable
Securities intended to be disposed of by such Stockholder), the Company will use
its reasonable best efforts to effect the registration under the Securities Act
of all Registrable Securities which the Company has been so requested to
register by such Stockholder; provided that (i) if, at any time after giving
written notice of its intention to register any Securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company (or any Stockholder on whose behalf the registration
statement is being filed) shall determine for any reason not to proceed with the
proposed registration of the
16
Securities to be sold by it, the Company may, at its election, give written
notice of such determination to each holder of Registrable Securities and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses (as defined below) in connection therewith), and
(ii) if such registration involves an underwritten offering, all holders of
Registrable Securities requesting to be included in the registration must sell
their Registrable Securities to the underwriters selected by the Company on the
same terms and conditions as apply to the other sellers included in such
registration, with such differences, including any with respect to
indemnification and liability insurance, as may be customary or appropriate in
secondary offerings. If a registration requested pursuant to this Section
3.11(a) involves an underwritten public offering, any holder of Registrable
Securities requesting to be included in such registration may elect, in writing
prior to the effective date of the registration statement filed in connection
with such registration, not to register such securities in connection with such
registration.
(b) Expenses. The Company will pay all Registration Expenses in
--------
connection with each registration of Registrable Securities requested pursuant
to this Section 3.11. For purposes hereof, "Registration Expenses" shall mean
any and all expenses incident to performance of or compliance with this Section
3.11, including, without limitation, (i) all SEC and stock exchange or National
Association of Securities Dealers, Inc. registration and filing fees, (ii) all
fees and expenses of complying with securities or blue sky laws (including fees
and disbursements of counsel for the underwriters in connection with blue sky
qualifications of the Registrable Securities), (iii) all printing, messenger and
delivery expenses, (iv) all fees and expenses incurred in connection with the
listing of the Registrable Securities on any securities exchange, (v) the fees
and disbursements of counsel for the Company and of its independent public
accountants, including the expenses of any special audits and/or "cold comfort"
letters required by or incident to such performance and compliance, (vi) the
reasonable fees and disbursements of one counsel selected by the holders of a
majority of the Registrable Securities being registered to represent all holders
of the Registrable Securities being registered in connection with each such
registration, and (vii) any fees and disbursements of underwriters customarily
paid by the issuers or sellers of securities, including liability insurance if
the Company so desires or if the underwriters so require, and the reasonable
fees and expenses of any special experts retained by the Company in connection
with the requested registration, but excluding underwriting discounts and
commissions, fees and expenses of counsel for the underwriters (except as
otherwise set forth in clause (ii) above) and transfer taxes, if any.
(c) Priority in Incidental Registrations. If a registration pursuant to
------------------------------------
this Section 3.11 involves an underwritten offering and the managing
underwriter advises the Company in writing that, in its opinion, the number of
securities requested to be included in such registration exceeds the number
which can be sold in such offering, so as to be likely to have an adverse effect
on the successful marketing of such offering (including the price at which such
securities can be sold), then the Company will include in such registration, to
the extent of the number of Registrable Securities (and shares of Common Stock
held by other Persons with similar registration rights) requested to be included
in such registration which, in the opinion of such managing underwriter, can be
sold without having the adverse effect referred to above, the number of
Registrable Securities (and such shares of Common Stock) which the Stockholders
(and such other Persons) have requested to be included in such registration,
such amount to be
17
allocated pro rata among all requesting Stockholders (and such other Persons) on
the basis of the relative number of shares of Registrable Securities then held
by each such Stockholder (or shares of Common Stock then held by such other
Person) (provided that any shares thereby allocated to any such Stockholder (or
such other Person) that exceed such Stockholder's (or such other Person's)
request will be reallocated among the remaining requesting Stockholders (and
such other Persons) in like manner; provided, however that nothing contained in
this Section 3.11(c) shall cause a reduction in the number of shares of Common
Stock that the Company is seeking to sell pursuant to a registration statement
for a primary offering of shares of Common Stock).
(d) Registrable Securities. For purposes hereof, "Registrable
----------------------
Securities" shall mean any Common Stock or other securities which may be issued
or distributed in respect thereof by way of stock dividend or stock split or
other distribution, recapitalization or reclassification. As to any particular
Registrable Securities, once issued such Securities shall cease to be
Registrable Securities when (i) a registration statement with respect to the
sale of such Securities shall have become effective under the Securities Act,
(ii) they shall have been distributed to the public pursuant to Rule 144 (or any
successor provision) under the Securities Act, (iii) they shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration or qualification
of them under the Securities Act or any state securities or blue sky law then in
force or (iv) they shall have ceased to be outstanding.
(e) Cooperation. The Company may require each seller of Registrable
-----------
Securities as to which any registration is being effected to furnish the Company
with such information regarding such seller and pertinent to the disclosure
requirements relating to the registration and the distribution of such
securities as the Company may from time to time reasonably request in writing.
(f) Survival. This Section 3.11 shall survive for a period of two (2)
--------
years following the termination of this Agreement under Section 5.2.
ARTICLE 4
ADDITIONAL AGREEMENTS
---------------------
4.1 Competing Investments. Unless approved in advance pursuant to Section
---------------------
2.6(p) and by the Stockholders' Representative, no Evercore Stockholder and no
Affiliate of any Evercore Stockholder shall make any direct or indirect equity
investment in any business or Person anywhere engaged principally (a) in the
business of providing contract staffing services (including, without limitation,
in the areas of finance, accounting or information systems) or (b) in any other
business engaged in by the Company or by RCLLC on or prior to the date hereof.
Notwithstanding the foregoing, nothing contained herein shall limit the right of
the Evercore Stockholders and their Affiliates to Beneficially Own as a passive
investment the securities of any Person that are publicly traded on a national
securities exchange or a generally recognized over-the-counter market; provided,
however, that the Evercore Stockholders and their Affiliates shall not
Beneficially Own, in the aggregate, more than 10% of the outstanding voting
securities of any such Person.
18
4.2 Stockholders' Representative.
----------------------------
(a) The Management Stockholders hereby appoint, and shall be
represented by, a representative (the "Stockholders' Representative") with
respect to all matters arising under or related to this Agreement.
(b) The initial Stockholders' Representative shall be Xxxxxx X.
Xxxxxx. If Xxxxxx X. Xxxxxx is no longer able or willing to act as the
Stockholders' Representative, or if he ceases to be an employee of the Company,
then the Management Stockholders shall appoint a replacement Stockholders'
Representative from among the Initial Founders, by majority vote of their shares
of Common Stock (without regard to class); provided, however, that if there are
no remaining Initial Founders able and willing to act as the Stockholders'
Representative, then such replacement shall be a Management Stockholder approved
by Management Stockholders representing a majority of the Management
Stockholders' shares of Common Stock (without regard to class).
4.3 Appointment of Proxy. Each Management Stockholder hereby irrevocably
--------------------
appoints the Stockholders' Representative, with full power of substitution, as
his, her, or its attorney and proxy to attend meetings, vote, give consents and
in all other ways act in his, her or its place with respect to all of his, her
or its Securities, in the Stockholders' Representative's discretion.
4.4 Acknowledgement and Release.
---------------------------
(a) Each Stockholder hereby (i) acknowledges and agrees that the
Stockholders' Representative is authorized and entitled to act in his or her
discretion with respect to all matters arising under or related to this
Agreement and (ii) releases the Stockholders' Representative from any and all
liability arising from or related to the Stockholders' Representative's exercise
of his or her authority, discretion and functions under this Agreement.
(b) Each Stockholder hereby acknowledges the provisions of Section
1542 of the California Civil Code, which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE
CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT
THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
Each Stockholder hereby waives and relinquishes any rights or benefits that he,
she or it may have under Section 1542 of the California Civil Code in connection
with the release contained in this Section 4.4, as well as under any Other
California or any Federal or state statute or common law principle of similar
effect.
19
4.5 Spouse's Consents. Each Stockholder who has a spouse as of the date
-----------------
hereof or hereafter shall deliver to the Company a Spouse's Consent in
substantially the form attached hereto as Exhibit 4.5, duly executed by the
Stockholder's spouse.
4.6 Testamentary Provisions. Each Stockholder who is a natural person
-----------------------
agrees that he or she will insert in his or her will and other estate planning
documents a direction and authorization to his or her personal representative or
heirs (as the case may be) to fulfill and comply with the provisions of this
Agreement; provided, however, that in no event shall the absence of such a
direction or authorization be deemed to constitute or imply a contrary direction
or authorization. The personal representative or heirs (as the case may be) of
each Stockholder who is a natural person shall execute and deliver any and all
documents and instruments as may be necessary or desirable to give effect to and
carry out the provisions of this Agreement regardless of the absence or presence
of such a direction or authorization.
4.7 Step 2 Management Stockholders. Each Step 2 Management Stockholder
------------------------------
that acquires Common Stock and a Subordinated Note as contemplated by Recital B
shall enter into this Agreement by executing a signature page in substantially
the form attached as Exhibit 4.7, whereupon such Step 2 Management Stockholder
shall be deemed a "Management Stockholder" under, and bound by the provisions
of, this Agreement. Promptly thereafter, Schedule II shall be revised to reflect
the amount of Common Stock and the principal amount of the Subordinated Note so
acquired by such Step 2 Management Stockholder. If the Evercore Stockholders (or
any of them) acquire additional Common Stock or Subordinated Notes as
contemplated by Recital B, then Schedule I shall be revised accordingly promptly
thereafter.
4.8 Conversion of Certain Shares.
----------------------------
(a) For each share of Class A Common Stock (i) that the Company
issues after the date hereof to any Person or (ii) that an Evercore Stockholder
transfers to any Person in accordance with the provisions of this Agreement
after the date hereof, in each case other than an Evercore Stockholder or a
Permitted Transferee of an Evercore Stockholder, one share of Class B Common
Stock held by Evercore I (or, if there are no shares of Class B Common Stock
then held by Evercore I, then by Evercore II; and if there are further no shares
of Class B Common Stock then held by Evercore II, then by Evercore III; and if
there are further no shares of Class B Common Stock then held by Evercore III,
then by Evercore IV) shall automatically and simultaneously, without any action
on the part of the Board, the Company or any other Person, be converted into one
share of Class A Common Stock.
(b) Upon the termination of this Agreement, each share of Class B
Common Stock and Class C Common Stock held by any Stockholder shall
automatically and simultaneously, without any action on the part of the Board,
the Company or any other Person, be converted into one share of Class A Common
Stock.
(c) Each share of Class B Common Stock that is transferred to any
Person by an Evercore Stockholder in accordance with this Agreement shall
automatically and simultaneously, without any action on the part of the Board,
the Company or any other Person, be converted into one share of Class A Common
Stock.
20
ARTICLE 5
TERM AND TERMINATION
--------------------
5.1 Term of Agreement. The term of this Agreement shall begin on the date
-----------------
hereof and continue until terminated in accordance with Section 5.2.
5.2 Termination. This Agreement shall terminate upon the first to occur of
-----------
the following:
(a) the execution by the Company, the Evercore Stockholders, the
Bank Stockholders, the Xxxxxxxxx Group Stockholders and the Stockholders'
Representative of a written agreement approved in advance pursuant to Section
2.6(n), to terminate this Agreement;
(b) the date on which the Evercore Stockholders and their respective
Affiliates Beneficially Own, in the aggregate, less than 50% of the shares of
Common Stock Beneficially Owned by the Evercore Stockholders in the aggregate on
the date hereof;
(c) the closing of a Qualified Public Offering;
(d) the consummation of a Strategic Transaction; or
(e) the effective dissolution of the Company in accordance with the
Delaware General Corporation Law.
ARTICLE 6
DISPUTE RESOLUTION
------------------
6.1 Procedures. Any controversy, claim or dispute arising out of or
----------
relating to this Agreement, or the breach hereof (a "Dispute"), shall be settled
in accordance with the procedures set forth in this Article 6.
6.2 Dispute Notice. If any Dispute arises among any parties hereto (the
--------------
"Disputing Parties"), any Disputing Party may give written notice thereof to the
other Disputing Party (the "Dispute Notice"). The Dispute Notice shall contain a
brief statement setting forth the nature of the Dispute.
6.3 Negotiation. Promptly after the Dispute Notice, the Disputing Parties
-----------
shall commence good faith negotiations with the goal of promptly reaching a just
and equitable resolution of the Dispute.
6.4 Arbitration.
-----------
(a) If the Dispute has not been resolved within 15 business days
after the Dispute Notice, then any Disputing Party may initiate arbitration in
accordance with the AAA Commercial Arbitration Rules (the "Arbitration Rules"),
in which case the Dispute shall be settled by arbitration administered by the
AAA under the Arbitration Rules, including the AAA Optional Rules for Emergency
Measures of Protection (the "Emergency Rules"), and judgment on the award
rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
21
(b) The arbitrator(s) shall be appointed in accordance with the
Arbitration Rules. Unless otherwise determined in accordance with the
Arbitration Rules, there shall be one arbitrator. The locale where the
arbitration is to be held, and the date, time and place for each arbitration
hearing, shall be determined in accordance with the Arbitration Rules.
(c) Expenses of arbitration shall be borne in accordance with the
Arbitration Rules; provided, however, that to the extent a party is non-
prevailing or unsuccessful on a claim in an arbitration proceeding under this
Section 6.4, as determined by the arbitrator(s), that party shall pay the
prevailing or successful party's costs and expenses incurred in connection with
the arbitration of that claim, including (without limitation) attorneys' fees
and arbitration expenses, whether or not such claim is prosecuted to award or
judgment.
6.5 Emergency Relief. If a Disputing Party is in need of emergency relief
----------------
at any time after the Dispute Notice but prior to the constitution of an
arbitration panel under Section 6.4, then that Disputing Party may seek such
relief in accordance with, and by notifying the AAA under, the Emergency Rules;
provided, however, that the resolution of the Dispute nevertheless shall
continue in accordance with the procedures set forth in this Article 6.
ARTICLE 7
MISCELLANEOUS
-------------
7.1 Notices. All notices and other communications to a party under this
-------
Agreement shall be in writing and shall be deemed given if personally delivered,
sent by fax (with confirmation), sent by a nationally-recognized overnight
delivery service (with confirmation) or mailed by certified mail (return receipt
requested), in each case to that party's address and fax number set forth below
(or to such other address and fax number as that party may designate by notice
to the other parties):
----------------------------------------------------------------------------------------------------
Party Address and Fax Number With a Copy to:
----------------------------------------------------------------------------------------------------
Company RC Transaction Corp. O'Melveny & Xxxxx LLP
c/o Re:sources Connection LLC 000 Xxxxxxx Xxxxxx Drive, 17th Floor
Three Imperial Promenade Xxxxxxx Xxxxx, XX 00000-0000
Xxxxx Xxx, XX 00000-0000 Fax: 000-000-0000
Fax: 000-000-0000 Attention: Xxxxx X. Xxxxxxx
Attention: Chief Executive Officer
----------------------------------------------------------------------------------------------------
Evercore Evercore Capital Partners L.P. Xxxxxxx Xxxxxxx & Xxxxxxxx
Stockholders 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000-0000
Fax: 000-000-0000 Fax: 000-000-0000
Attention: Xxxxx X. Xxxxxxxxx Attention: Xxxxx X. Xxxxx
----------------------------------------------------------------------------------------------------
22
---------------------------------------------------------------------------------------------------------------
Management RC Transaction Corp. O'Melveny & Xxxxx LLP
Stockholders c/o Resources Connection LLC 000 Xxxxxxx Xxxxxx Drive, 17th Floor
Three Imperial Promenade Xxxxxxx Xxxxx, XX 00000-0000
Xxxxx Xxx, XX 00000-0000 Fax: 000-000-0000
Fax: 000-000-0000 Attention: Xxxxx X. Xxxxxxx
Stockholders' Representative Xxxxxx X. Xxxxxx
---------------------------------------------------------------------------------------------------------------
Outside To the address set forth opposite each Outside
Stockholders Stockholder's respective name on Schedule III.
---------------------------------------------------------------------------------------------------------------
7.2 Amendment. This Agreement may not be amended except in writing,
---------
approved in advance pursuant to Section 2.6(n), and signed by (a) the Company,
(b) the Evercore Stockholders, (c) the Stockholders' Representative and (d)
Outside Stockholders representing a majority of the Outside Stockholders' shares
of Common Stock; provided, however, that if any such amendment would have an
adverse effect on an Outside Stockholder, then such amendment shall further be
subject to the prior written consent of that Outside Stockholder.
7.3 Waiver. No waiver shall be deemed effective under this Agreement
------
unless in writing signed by the party against whom the waiver is to be
effective. No failure or delay by any party hereto in exercising any right,
power or privilege hereunder, and no course of dealing among or between any of
the parties hereto, shall operate as a waiver thereof, nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
7.4 Successors and Assigns. Except as otherwise provided in this
----------------------
Agreement, this Agreement shall be binding upon and inure to the benefit of the
parties and their respective successors and permitted assigns.
7.5 Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with Delaware law, without regard to choice of law and conflicts
of law rules.
7.6 Severability. If any provision of this Agreement is held by an
------------
arbitrator or court of competent jurisdiction to be illegal, invalid or
unenforceable in any jurisdiction, the remainder of this Agreement shall remain
in full force and effect, and such holding shall not affect this Agreement or
any provision hereof in any other jurisdiction. If any provision of this
Agreement is so held to be illegal, invalid or unenforceable only in part or
degree, that provision shall remain in full force and effect to the extent not
held illegal, invalid or unenforceable.
7.7 Headings. The headings contained in this Agreement are for
--------
convenience only and shall not affect the meaning or interpretation of this
Agreement.
7.8 Exhibits and Schedules. The exhibits and schedules referred to in
----------------------
this Agreement hereby are incorporated herein and made part of this Agreement.
7.9 Entire Agreement. This Agreement constitutes the entire
----------------
agreement, and supersedes all prior agreements and understandings, among the
parties with respect to the subject matter hereof.
23
7.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
24
IN WITNESS WHEREOF, the parties have executed this Stockholders Agreement
as of the date first above written.
THE COMPANY:
RC TRANSACTION CORP.
By: /s/ Xxxxxx Xxxxxx
-------------------------------
Name: Xxxxxx Xxxxxx
Title: President
EVERCORE STOCKHOLDERS:
EVERCORE CAPITAL PARTNERS LP.
By: Evercore Partners L.L.C., its
General Partner
By:_______________________________
Name:
Title:
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By: Evercore Partners L.L.C., its
General Partner
By:_______________________________
Name:
Title:
EVERCORE CAPITAL OFFSHORE
PARTNERS L.P.
By: Evercore Partners L.L.C., its
General Partner
By:_______________________________
Name:
Title:
IN WITNESS WHEREOF, the parties have executed this Stockholders Agreement
as of the date first above written.
THE COMPANY:
RC TRANSACTION CORP.
By:
---------------------------------
Name:
Title:
EVERCORE STOCKHOLDERS:
EVERCORE CAPITAL PARTNERS L.P.
By: Evercore Partners L.L.C., its
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name:
Title:
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By: Evercore Partners L.L.C., its
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name:
Title:
EVERCORE CAPITAL OFFSHORE
PARTNERS L.P.
By: Evercore Partners L.L.C., its
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name:
Title:
EVERCORE CO-INVESTMENT
PARTNERSHIP L.P.
By: Evercore Partners L.L.C., its
General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name:
Title:
STEP 1 MANAGEMENT STOCKHOLDERS:
______________________________________
Xxxxxx X. Xxxxxx
______________________________________
Xxxxxxx X. Xxxxxx
[Remainder of Page Intentionally Left Blank]
EVERCORE CO-INVESTMENT
PARTNERSHIP LP.
By: Evercore Partners L.L.C., its
General Partner
By:_______________________________
Name:
Title:
STEP 1 MANAGEMENT STOCKHOLDERS:
/s/ Xxxxxx X. Xxxxxx
--------------------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
(Remainder of Page Intentionally Left Blank]
OUTSIDE STOCKHOLDERS:
/s/ Xxxxxxx Xxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxx
______________________________________
Xxxx Xxxxxxxxx
______________________________________
Xxxxxx Xxxxxxxxx
MAINZ A.G., a German entity
By: ______________________________
Name: ______________________________
Title: ______________________________
[Remainder of Page Intentionally left Blank]
S-3
OUTSIDE STOCKHOLDERS:
______________________________________
Xxxxxxx Xxxxxxx
/s/ Xxxx Xxxxxxxxx
--------------------------------------
Xxxx Xxxxxxxxx
______________________________________
Xxxxxx Xxxxxxxxx
MAINZ A.G., a German entity
By: ______________________________
Name: ______________________________
Title: ______________________________
[Remainder of Page Intentionally left Blank]
S-3
OUTSIDE STOCKHOLDERS:
______________________________________
Xxxxxxx Xxxxxxx
______________________________________
Xxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------
Xxxxxx Xxxxxxxxx
MAINZ A.G., a German entity
By: ______________________________
Name: ______________________________
Title: ______________________________
[Remainder of Page Intentionally left Blank]
S-3
OUTSIDE STOCKHOLDERS:
______________________________________
Xxxxxxx Xxxxxxx
______________________________________
Xxxx Xxxxxxxxx
______________________________________
Xxxxxx Xxxxxxxxx
MAINZ Holdings Ltd
By: /s/ Alain Andrey
------------------------------
Name: Alain Andrey
------------------------------
Title: Attorney in fact
------------------------------
[Remainder of Page Intentionally Left Blank]
S-3
BT CAPITAL INVESTORS, L.P.,
a Delaware limited partnership
By: /s/ Xxxxxx X. Xxxx
--------------------------
Name: Xxxxxx X. Xxxx
--------------------------
Title: MD
--------------------------
BANCBOSTON INVESTMENTS INC., a
Massachussetts corporation
By: /s/ X. X. Xxxxxx
----------------------------
Name: XXXXXXX X. XXXXXX
----------------------------
Title: Vice President
----------------------------
