EXHIBIT A
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of April 16, 2003
(this "Agreement"), by and among Xxxxx Xxxxxxxx ("Xxxxx"), Xxxx Xxxxxxxx
("Oudi"), Xxxx Xxxxxxxx ("Xxxx"), Xxxxxx Xxxxx Recanati ("Xxxxxx"), Xxxxx
Xxxxxxxx ("Xxxxx"), Xxxx (Xxxxx) Recanati ("Lenny"), Xxxxx Xxxxxxxx ("Xxxxx"),
the SEAVIEW Trust ("SEAVIEW") and The Xxxxxxx Xxxxxxxx Trust (the "MR Trust")
(the "Stockholders").
WHEREAS, Diane, Oudi, Xxxx, Xxxxxx and Xxxxx entered into a
Stockholders Agreement, dated as of November 24, 1999 (the "Original
Stockholders Agreement");
WHEREAS, the Stockholders wish to amend and restate that certain
Original Stockholders Agreement pursuant to the terms of this Agreement;
WHEREAS, the Stockholders are the holders, both directly and
indirectly, of certain shares of common stock, $1.00 par value, of Overseas
Shipholding Group, Inc., a Delaware corporation (such corporation, together with
any "Successor Entity," being herein referred to as the "Company") (such shares
of common stock, together with (i) all shares of common stock or other equity
securities issued in exchange or substitution for or as a dividend or
distribution on such shares of common stock, including without limitation shares
of common stock or other equity securities of any Successor Entity referred to
in Paragraph 3 below and (ii) any additional shares hereinafter acquired,
whether held directly or indirectly, being herein referred to as the "Shares";
provided, however, that such term shall not include shares (a) received by a
Stockholder in his/her capacity as an officer, director, employee or consultant
of
the Company, (b) held indirectly through the Recanati Foundation or (c) held
indirectly through York Shipping Corporation); and
WHEREAS, the Stockholders desire to make provision for the voting,
transfer and possible sale of the Shares and for the other matters set forth
herein.
NOW, THEREFORE, in consideration of the mutual premises and of the
mutual covenants and obligations hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Restrictions on Transfer of Share; Etc.
(a) The Stockholders hereby agree that, except for
transfers to such permitted transferees as may be agreed to from time to time by
the Stockholders and as provided under Paragraph 3 below, no Shares shall be
directly or indirectly sold, assigned, transferred, pledged or otherwise
encumbered or disposed of, including without limitation as a result of the sale,
assignment, transfer, pledge or other encumbrance or disposition of any interest
in any entity directly or indirectly owning the Shares (any of the foregoing, a
"Prohibited Transfer").
(b) The Stockholders agree and acknowledge that any
attempted Prohibited Transfer in violation of the terms and conditions of this
Agreement shall be void ab initio, and that the Stockholders shall not engage in
a Prohibited Transfer or agree to engage in a Prohibited Transfer of any Shares
held by the Stockholders in violation of this Agreement.
(c) Except as specifically contemplated hereby, no
Stockholder shall directly or indirectly (i) grant any proxy or enter into or
agree to be bound by any voting trust or agreement with respect to any Shares,
or (ii) enter into any agreements or arrangements of any
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kind with any person or entity with respect to any Shares inconsistent with the
provisions of this Agreement.
(d) The Stockholders shall cause to be affixed to each
certificate evidencing their Shares a legend in substantially the following
form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN AN AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF APRIL 16, 2003, A COPY OF WHICH IS
ON FILE AT DISCOUNT BANK & TRUST CO. (OR AT ANY SUCCESSOR TO DISCOUNT
BANK & TRUST CO.), AT ITS PRINCIPAL OFFICE IN GENEVA, SWITZERLAND (OR
AT THE PRINCIPAL OFFICE OF ANY SUCH SUCCESSOR). THE HOLDER OF THESE
SECURITIES AGREES AND ACKNOWLEDGES THAT NO REGISTRATION OF THE TRANSFER
OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS AND
UNTIL SUCH RESTRICTION SHALL HAVE BEEN COMPLIED WITH.
2. Family Management Committee; Voting of Shares; Etc.
(a) The Stockholders hereby appoint Diane, Oudi, Leon,
Yudith, Ariel and Xxxxxxx Xxxxxxxx ("Xxxxxxx") as the members (the "Members") of
the family management committee (the "Family Management Committee").
(b) Other than in the case of any vote relating to a Sale
as contemplated in Paragraph 3(b) below (in which case all Shares shall be voted
in accordance with Paragraph 3 below), (i) each Stockholder hereby irrevocably
agrees to vote all Shares held by such Stockholder on all matters in accordance
with the recommendations (including nominees for directors of the Company), if
any, of the Company's management unless otherwise determined by the affirmative
vote or written consent of at least a majority of all the Shares owned by the
Members then serving on the Family Management Committee (the "Majority Vote of
the FMC") and (ii) in the absence any recommendation on any matter of the
Company's
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management as aforesaid, each Stockholder hereby irrevocably agrees to vote all
Shares held by such Stockholder on such matter in accordance with any
determination of the Majority Vote of the FMC. For the purpose of determining a
Majority Vote of the FMC, each Member shall vote the number of Shares such
Member owns; provided, however, that (i) with respect to Ariel, the Shares held
by Lenny, Xxxxx and SEAVIEW, or the permitted transferees of Lenny, Xxxxx and
SEAVIEW, shall be deemed to be Shares owned by Ariel for such voting purpose and
(ii) with respect to Xxxxxxx, the Shares held by the MR Trust, or the permitted
transferees of the MR Trust, shall be deemed to be Shares owned by Xxxxxxx for
such voting purpose.
(c) The Stockholders hereby agree that the Family
Management Committee shall have and may exercise the powers and authority set
forth in this Agreement.
3. Possible Sale of the Shares; Etc.
(a) In the event that the Members of the Family
Management Committee representing a Majority Vote of the FMC (the "Majority")
shall determine it to be in the best interests of the Stockholders, the
Stockholders shall take such action as shall be necessary and appropriate to
engage in a Sale (as such term is defined below) of all or part of the Shares of
the Stockholders, as shall be determined by the Majority. For purposes of this
Agreement, a "Sale" of Shares shall include any sale of the Shares or any other
transaction (such as a merger, consolidation, sale of assets or recapitalization
involving the Company, any other disposition of Shares by the Stockholders for
value, or any similar transaction) which the Majority determines to be a Sale
for purposes of this Paragraph 3.
(b) In the event the Majority determines that a Sale is
in the best interest of the Stockholders, the Stockholders shall take such
action as shall be necessary and appropriate to appoint one or more members of
the Majority, as the sole and exclusive agents of
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the Stockholders, to negotiate and consummate such Sale on the terms and
conditions and for such price as the Majority in the sole judgment thereof shall
determine to be in the best interests of the Stockholders. The decisions of the
Majority acting under this Paragraph 3 shall be final and binding upon the
Stockholders, and the authority hereunder of the Majority shall include the
power to execute and deliver all documents and instruments necessary and
appropriate to effect the aforesaid transaction and all matters related thereto.
The Stockholders shall execute and deliver such certificates and documents, and
take such actions as may be necessary and appropriate to facilitate and effect
such a Sale, including, in any case where the Sale is a merger or other
transaction involving the Company, voting their Shares in favor of the
transaction and otherwise cooperating in effectuating such transaction. Unless
the Stockholders shall otherwise unanimously agree, with respect to any Sale
under this Paragraph 3, in the event of a determination by the Majority to
dispose of pursuant to the Sale only a part of the Shares held by the
Stockholders, the number of Shares so disposed of by each Stockholder shall be
determined on a pro rata basis (in proportion to the number of Shares held by
the respective Stockholders immediately prior to such Sale).
(c) In the case of any Sale in which the Stockholders
receive as consideration or partial consideration for their Shares common stock
or other equity securities in the Company, the purchaser, any successor to the
Company or any other entity, the Majority may determine that such common stock
or other equity securities shall be deemed Shares for all purposes of this
Agreement and that any such purchaser or other entity (a "Successor Entity")
shall be deemed the Company for all purposes of this Agreement.
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4. Custodial Agreement and Deposit of Shares in Custody.
(a) Oudi, Xxxx, Xxxxxx and Xxxxx have executed and
delivered the Custody Agreement, dated as of November 24, 1999 (the "Custody
Agreement"), among Oudi, Leon, Yudith, Ariel and Discount Bank & Trust Co., a
Swiss corporation (the "Custodian"), and have assigned and delivered, or caused
to be assigned and delivered, to the Custodian all Shares owned by such parties
to the Custody Agreement. Promptly, upon execution of this Agreement, Lenny,
David, SEAVIEW and the MR Trust will take all necessary actions to cause their
Shares to be governed by such Custody Agreement with the Custodian or any
successor of such Custodian. The Stockholders will also assign and transfer, or
cause to be assigned and transferred, to the Custodian all Shares acquired by
the Stockholders during the term of this Agreement. The Stockholders shall
deposit with the Custodian the certificates representing such Shares, duly
endorsed in blank or accompanied by stock powers executed in blank, free and
clear of all liens, claims, encumbrances or other rights of third parties, other
than encumbrances or rights created by agreements among the Stockholders.
(b) Any cash dividends or cash distributions with respect
to the Shares held by the Custodian will be paid or distributed to the
respective Stockholders owning such Shares or as may otherwise be directed by
such respective Stockholders.
(c) The Stockholders hereby agree to irrevocably
authorize and direct the Custodian to vote all Shares held in custody in
accordance with the recommendations of the Company's management (with written
notice to the Custodian by the then President of the Company being conclusive
evidence for such purpose of any such recommendation) unless otherwise
determined by a Majority Vote of the FMC (with written notice to the Custodian
by the Majority being conclusive evidence for such purpose of any such
recommendation), all as
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contemplated by Paragraph 2 above; provided, however, that, notwithstanding the
foregoing, such Shares shall be voted in connection with any Sale in accordance
with the determination of the Majority (with written notice to the Custodian by
the Majority being conclusive evidence for such purpose of any such
determination), all as contemplated by Paragraph 3 above. In the case of any
vote not relating to a Sale and in which there has been no recommendation of the
Company's management as contemplated above, all Shares held in custody shall be
voted in accordance with any determination of the Majority Vote of the FMC (with
written notice to the Custodian by the Majority being conclusive evidence for
such purpose of such determination). The Stockholders hereby agree to
irrevocably authorize and direct the Custodian to take such actions as the
Majority may direct in writing to insure compliance with the provisions of
Paragraph 3 above. The Stockholders hereby agree to irrevocably authorize and
direct the Custodian to take such actions as may be appropriate to insure
compliance with the provisions of Paragraph 1 above.
5. Miscellaneous.
(a) Termination. This Agreement shall terminate only on
the Sale of all of the Shares under Paragraph 3 above (unless the Majority shall
determine under Paragraph 3(c) above that the common stock or other equity
securities received by the Stockholders as consideration or partial
consideration in such Sale shall continue to be deemed Shares for purposes of
this Agreement, in which case this Agreement shall remain in effect), provided
that, notwithstanding the foregoing, the provisions of Paragraph 1 above shall
terminate on the twentieth anniversary of the date of this Agreement.
(b) Further Assurances. Each Stockholder shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all
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such other agreements, certificates, instruments, and documents as any other
Stockholder hereto from time to time reasonably may request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
(c) Governing Law. This Agreement and the rights and
obligations of the parties hereunder shall be governed by, and construed and
interpreted in accordance with the laws of the State of New York without giving
effect to the choice of law principles thereof.
(d) Dispute Resolution. In the event of any dispute
arising out of or in connection with this Agreement, the parties agree to submit
the matter to Xxxxxxxxx Xxxxxxx-Xxxxx Xxxxxxx, in Geneva, acting as a mediator.
In case Xxxxxxxxx Xxxxxxx cannot exercise this function and, in the absence of
an agreement between the parties on the identity of the mediator, the mediator
shall be designated by the International Chamber of Commerce under the ICC ADR
Rules. If the dispute has not been settled within 30 days following the
submission of the matter to the mediator or within such other period as the
parties may agree in writing, such dispute shall be finally settled under the
Rules of Arbitration of the International Chamber of Commerce by one arbitrator
appointed in accordance with said Rules of Arbitration. The arbitration
proceedings shall be conducted in English and the place of arbitration shall be
Geneva.
(e) Binding Effect. This Agreement shall be binding on
and inure to the benefit of the parties hereto.
(f) Invalidity of Provision. If any provision of this
Agreement is invalid or unenforceable, the balance of this Agreement shall
remain in full force and effect and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision were omitted.
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(g) Notice. All notices, requests, claims, demands and
other communications under this Agreement shall be in writing (including
telecopy, but only if a telecopy number is specified for such party in this
Paragraph 5(g) below, or similar writing) and shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Paragraph 5(g) and the appropriate telecopy confirmation is received or
(ii) if given by any other means, when delivered at the address specified in
this Paragraph 5(g) (or at such other address for a Stockholder as shall be
specified by like notice):
If to Xxxxx: Xxxxx Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
If to Oudi: Oudi Recanati
0X xx. xx xx Xxxxxxxx
XX-0000 Xxxxxxx, Xxxxxxxxxxx
Fax No.: 00 00 000.00.00
If to Xxxx: Xxxx Xxxxxxxx
Xxxx 00 Xxxxxx
Xxx Xxxx 00000
Xxxxxx
Fax No.: 000 000 0 000 00 00
If to Xxxxxx: Xxxxxx Xxxxx Recanati
00 Xxxxxx Xxxxxx
Herzliah Pituah 46743
Israel
If to Ariel: Xxxxx Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax. No.: 000-000-0000
If to the MR Trust: The Xxxxxxx Xxxxxxxx Trust
c/o Xxxxxxx X. Xxxxxxxx and
Xxxxxx Xxxxxxx, as Investment Trustees
000 Xxxxx Xxxxxx
00xx xxxxx
Xxx Xxxx, XX 00000
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If to Lenny: Xxxx (Xxxxx) Recanati
00 Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxx 00000
Xxxxxx
Fax No.: 000 000 0 000 0000
If to Xxxxx: Xxxxx Xxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: 000-000-0000
If to SEAVIEW: SEAVIEW Trust
c/o Xxxxx Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax No.: 000-000-0000
(h) Indemnification. The Stockholders hereby jointly and
severally agree to indemnify and hold harmless the Members of the Family
Management Committee against and in respect of any liability, loss, damage or
expense incurred by the Members of the Family Management Committee in connection
with service on such Committee.
(i) Headings. The headings and captions contained herein
are for convenience of reference only and shall not control or affect the
meaning or construction of any provision hereof.
(j) Execution in counterparts. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original and all of which together shall constitute one and the same instrument.
(k) Application of this Agreement to Xxxxx.
Notwithstanding anything in this Agreement to the contrary, (i) the restrictions
on Transfer of Shares under Paragraph 1 shall not apply to Xxxxx; (ii) the
provisions of Paragraph 3(a) and (b) shall apply to Xxxxx only at her option;
and (iii) the provisions relating to the deposit in custody, voting and
restrictions on Transfer of Shares under Paragraph 4 shall not apply to Xxxxx.
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(l) Amendment. This Agreement may be amended,
supplemented or modified only by a written instrument duly executed by the
Majority; provided, however, (i) the definition of a "Majority Vote of the FMC"
in Paragraph 2(b) may be amended, supplemented or modified only by the written
unanimous consent of the Stockholders, (ii) the proviso in Paragraph 2(b)
relating to the Shares deemed to be owned by Ariel and Xxxxxxx xxx be amended,
supplemented or modified only by the written consent of Ariel or Xxxxxxx,
respectively, (iii) a Member of the Family Management Committee may be removed
only with his or her written consent and (iv) this Agreement may not be
otherwise amended, supplemented or modified in a manner that is adverse to a
party hereto without such party's written consent.
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IN WITNESS WHEREOF, this Agreement has been executed by each
of the Stockholders on the date first above written.
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
XXXXX XXXXXXXX
/s/ Oudi Recanati
--------------------------------------------
OUDI RECANATI
/s/ Xxxx Xxxxxxxx
--------------------------------------------
XXXX XXXXXXXX
/s/ Xxxxxx Xxxxx Recanati
--------------------------------------------
XXXXXX XXXXX RECANATI
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
XXXXX XXXXXXXX
/s/ Xxxx (Xxxxx) Recanati
--------------------------------------------
XXXX (LENNY) RECANATI
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
XXXXX XXXXXXXX
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THE XXXXXXX XXXXXXXX TRUST
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------------
By: Xxxxxxx Xxxxxxxx, as Investment Trustee
/s/ Xxxxxx Xxxxxxx
--------------------------------------------
By: Xxxxxx Xxxxxxx, as Investment Trustee
SEAVIEW TRUST
/s/ Xxxxx Xxxxxxxx
--------------------------------------------
By: Xxxxx Xxxxxxxx, as Trustee
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