EXHIBIT 4.6
SECURITYHOLDERS AGREEMENT
AGREEMENT, dated as of January 17, 1997, among Litigation Resources of
America, Inc., a Texas corporation (the "Company"), the investors listed on
Exhibit I.A hereto (the "Investors") and the shareholders of the Company listed
on Exhibit I.B hereto (the "Shareholder").
RECITALS
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WHEREAS, the Company is concurrently herewith entering into a
Securities Purchase Agreement with the Investors, and Looney & Company and
Xxxxx, Bury and Associates, Inc., as Guarantors, both wholly owned subsidiaries
of the Company, dated as of the date hereof (the "Securities Purchase
Agreement"), authorizing the issuance and delivery of (i) $9,000,000 of 12%
Senior Subordinated Notes (the "Notes") and (ii) 1,000,000 shares of the
Company's Series A Convertible Preferred Stock, par value $1.00 per share (the
"Convertible Preferred Stock").
WHEREAS, it is a condition to the execution of the Securities Purchase
Agreement that the parties hereto enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and mutual
covenants and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used but not defined
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herein shall have the meaning ascribed to them in the Securities Purchase
Agreement. As used herein, the following terms shall have the following
meanings:
"AFFILIATE" shall mean, with respect to any person or entity, (i) any
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other person or entity which, directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with such
person or entity, (ii) any other person or entity which, directly or indirectly,
beneficially owns or holds 5% or more of any class of voting stock of such
person or entity, or (iii) any person or entity of which, directly or
indirectly, such person or entity owns or holds 5% or more of any equity
security (as defined in the Securities Act). The term "control" means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether by
virtue of the ownership of voting stock, by contract or otherwise.
"COMPANY" shall have the meaning set forth in the preamble.
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"CONVERTIBLE PREFERRED STOCK" shall have the meaning set forth in the
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first recital.
"INITIATING SHAREHOLDER" shall have the meaning specified in Section
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2.4 (a).
"INVESTORS" shall have the meaning set forth in the preamble.
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"NOTES" shall have the meaning set forth in the first recital.
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"OTHER PERMITTED TRANSFEREE" shall mean with respect to any
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Shareholder who is a natural person:
(i) Any person related by lineal or collateral consanguinity to
such Shareholder or to the spouse of such Shareholder;
(ii) the spouse of such Shareholder or of any person described
in clause (i) above; and
(iii) all persons related to those persons described in clause
(i) or clause (ii) by lineal or collateral consanguinity.
For purposes of this definition of Other Permitted Transferee (i) adopted
persons shall be considered the natural born child of their adoptive parents;
(ii) lineal consanguinity is that relationship that exists between persons of
whom one is descended (or ascended) in a direct line from the other, as between
son, father, grandfather, great-grandfather; and (iii) collateral consanguinity
is that relationship that exists between persons who have the same ancestors,
but who do not descend (or ascend) from the other, as between uncle and nephew,
or cousin and cousin.
"OWNED" as to any Shares shall mean all Shares as to which any Person
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would be deemed to be a beneficial owner, within the meaning of Rule 13d-3 of
the Exchange Act.
"PARTICIPATING OFFEREE" shall have the meaning specified in Section
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2.4 (a).
"PARTICIPATION NOTICE" shall have the meaning specified in Section 2.4
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(a).
"PARTICIPATION SECURITIES" shall have the meaning specified in Section
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2.4 (a).
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"PARTICIPATION TRANSFER" shall have the meaning specified in Section
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2.4 (a).
"SECURITIES" shall mean the Notes and the Convertible Preferred Stock.
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"SECURITIES PURCHASE AGREEMENT" shall have the meaning set forth in
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the first recital.
"SHAREHOLDER" shall have the meaning set forth in the preamble.
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"SHAREHOLDER RELATION" shall mean (i) any Other Permitted Transferee
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of an individual Shareholder, (ii) any inter-vivos trust whose principal
beneficiary is such individual Shareholder or any Other Permitted Transferee of
such individual Shareholder created during their respective lifetimes and not as
a result of death, (iii) any family limited partnership in which an individual
Shareholder is a general or limited partner, and (iv) the legal representative
or guardian of such individual Shareholder or any Other Permitted Transferee of
such individual Shareholder appointed during their respective lifetimes and not
as a result of death.
"SHARES" shall mean the shares of Common Stock and any other shares of
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capital stock of the Company.
"TRANSFER" shall have the meaning set forth in Section 2.1 hereof.
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"TRANSFEREE" shall mean any Person acquiring Shares from the
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Shareholder and any subsequent transferee of any such Person herein referred to
as a "Transferee" of such Person.
ARTICLE II
RESTRICTIONS ON TRANSFER
Section 2.1 Transfer of Shares. During the term of this Agreement, the
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Shareholder shall not, directly or indirectly, offer, sell, assign, transfer,
grant a participation interest in, pledge (excluding any pledge pursuant to the
Stock Pledge Agreement by and between the Company and the Shareholder), encumber
or otherwise dispose of, or place in trust (voting or otherwise) (each such
transaction being herein called a "Transfer") any Shares Owned by the
Shareholder unless such transfer is in accordance with the provisions of this
Agreement.
Section 2.2 Agreement to be Bound. No Transfer of Shares by the
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Shareholder shall be effective unless (i) the certificates representing such
Shares issued to the Transferee shall bear the legend provided in Section 2.3
and (ii) the Transferee (if not already a party hereto) shall have executed and
delivered to each Investor and Shareholder, as a condition
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precedent to such Transfer, an instrument or instruments reasonably satisfactory
to such parties confirming that the Transferee agrees to be bound by the terms
of this Agreement in the same manner as such Transferee's transferor, except as
otherwise provide in this Agreement.
Section 2.3 Restrictive Legend. Each certificate evidencing Shares
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Owned by the Shareholder shall be conspicuously stamped or otherwise imprinted
with a legend in substantially the following form:
THE SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND CAN
BE TRANSFERRED ONLY PURSUANT TO THE TERMS OF A
SECURITYHOLDERS AGREEMENT DATED AS OF JANUARY 17, 1997 AMONG
THE COMPANY AND CERTAIN HOLDERS OF ITS SECURITIES. A COPY OF
SUCH AGREEMENT WILL BE FURNISHED WITHOUT CHARGE BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.
Section 2.4 Participation Rights. As long as any Notes remain
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outstanding, the Shareholder shall not Transfer any Shares Owned by such
Shareholder (including any Shares which may be acquired after the date hereof).
The provisions of the preceding sentence of this Section 2.4 shall not apply to
a transfer of any Shares owned by the Shareholder, either during his lifetime or
on death by will or intestacy to a Shareholder Relation, provided, in each such
case, a transferee shall receive and hold such Shares subject to the provisions
of this Article II, including Section 2.2, and there shall be no further
transfer of such Shares in accordance herewith. Thereafter and until such time
as the Company has made a Qualifying Public Offering, the Shareholder hereto
shall not Transfer any shares of Common Stock Owned by such Shareholder (except
pursuant to Rule 144) unless the following terms and conditions have been
satisfied:
(a) The Shareholder (the "Initiating Shareholder") shall give notice
of any intended Transfer (each, a "Participation Transfer") to each Investor
(each, a "Participating Offeree"). Such notice (the "Participation Notice")
shall set forth the terms and conditions of such proposed Participation
Transfer, including the name of the prospective transferee, the number of Shares
proposed to be Transferred (the "Participation Securities"), the purchase price
per share proposed to be paid therefor, the payment terms and type of
Participation Transfer to be effectuated, and any other material terms and
conditions of such proposed Participation Transfer. Within 20 days following the
delivery of the Participation Notice by the Initiating Shareholder, each
Participating Offeree shall have the right, but not the obligation, to
participate in such Participation Transfer by Transferring (up to the number of
shares of Common Stock Owned by such Participating Offeree), that number of
shares equal to the product obtained by multiplying (i) the total number of
shares of
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Common Stock proposed to be Transferred in the Participation Transfer times (ii)
a fraction, the numerator of which shall be equal to the aggregate number of
shares of Common Stock Owned by such Participating Offeree (or issuable upon
conversion in full of any Convertible Preferred Stock held thereby) immediately
prior to the Participation Transfer and the denominator of which is equal to the
sum of (x) the aggregate number of shares of Common Stock Owned by the
Initiating Shareholder immediately prior to the Participation Transfer plus (y)
the aggregate number of shares of Common Stock Owned by all other Participating
Offerees (or issuable upon conversion in full of any Convertible Preferred Stock
held thereby) immediately prior to the participation Transfer and (z) the
aggregate number of shares of Common Stock comprising the numerator. In the
event that a participating Offeree elects not to participate in the
participation Transfer, then the other Participating Offerees may sell
additional shares pro rata to the extent of such Participating Offeree's
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non-participation. Any such Participation Transfers shall be on the same terms
and conditions as the proposed Participation Transfer by the Initiating
Shareholder.
(b) The closing of any proposed Participating Transfer in respect of
which a Participation Notice has been delivered shall occur not earlier than 30
days nor more than 90 days after the date the last Participation Notice has been
given. The closing shall be held at 10.00 a.m., local time, on the date of
closing at the principal office of the Company, or at such other time or place
as the parties to such transaction mutually agree. At the closing, the
Initiating Shareholder, together with all Participating Offerees electing to
transfer shares of Common Stock, shall deliver to the proposed Transferee (i)
certificates evidencing the shares of Common Stock to be transferred pursuant
thereto, free and clear of any lien, claim or encumbrance and (ii) such other
documents, including, without limitation, executed stock powers and evidence of
ownership and authority, as the Transferees shall reasonably request, and shall
receive in exchange therefor the consideration to be paid or delivered by the
proposed Transferee in respect of such shares as described in the Participation
Notice.
(c) Notwithstanding anything contained in this Section 2.4, the
Transfers permitted by this Section 2.4 shall not include pledges or
encumbrances of Shares.
Section 2.5 Improper Transfer. Any attempt to Transfer any Shares not
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in compliance with this Agreement shall be null and void and neither the Company
nor any transfer agent shall give any effect in the Company's stock records to
such attempted Transfer.
Section 2.6 Adjustment of Time Periods. The closing referred to in
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Section 2.4(b) shall be extended for such amount of time as is necessary for
expiration of all regulatory holding
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periods and to obtain any governmental and regulatory consents and approvals
necessary in respect of the purchase or sale of Shares to take place at such
closing.
ARTICLE III
MISCELLANEOUS
Section 3.1 Board of Directors. (a) As long as (i) any of the Notes
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are outstanding or (ii) the Investors hold at least 10% of the Convertible
Preferred Stock held by them on the date hereof or at least 10% of the Common
Stock obtained through conversion of the Convertible Preferred Stock held by
them on date hereof, the Company and the Shareholder shall take all action
within their respective power, including, but not limited to, the voting of
capital stock of the Company Owned by them, required to (i) cause the Board of
Directors of the Company to at all times consist of that number of nominees
designated by the Investors elected to the Board of Directors of the Company
that would constitute a majority of the Board of Directors of the Company (the
"Designees") and (ii) cause the number and composition of directors of the Board
of Directors of any Subsidiary to be identical to the number of directors of the
Board of Directors of the Company; provided, however, that if the number of
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directors or the composition of the Board of Directors of any Subsidiary differs
from the number of directors or the composition of the Board of Directors of the
Company, then and in addition to the requirement of clause (i) above, the
Company and the Shareholder shall, and shall cause such Subsidiary to, use its
best efforts to, have that number of nominees designated by the Investors
elected to the Board of Directors of such Subsidiary as the Investors request.
The Shareholder and the Company agree to vote any of their Shares which are
outstanding at all meetings of stockholders of the Company (or any written
consents in lieu thereof) in which directors are elected in favor of the
Designees.
(b) In the event that any Designee (the "Withdrawing Director"),
designated in the manner set forth in Section 3.1(a) above is unable to serve,
or once having commenced to serve, is removed or withdraws from the Board of
Directors of the Company such Withdrawing Director's replacement (the
"Substitute Director") on the Board of Directors of the Company will be
designated by the Investors. The Company and the Shareholder agree to take all
action within their respective power, including, but not limited to, the voting
of outstanding capital stock of the Company to cause the election of such
Substitute Director as soon as practicable following his designation.
(c) In the event the Investors entitled to designate a Director
pursuant to this Agreement cease to be entitled, the vacancy resulting therefrom
shall be filled by the remaining directors or by the stockholders in the manner
provided by applicable law or the number of directors constituting the Board
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shall be reduced. In the event the Investors entitled to designate a Director
pursuant to this Agreement choose not to designate a Director such directorship
shall remain vacant.
Section 3.2 Termination of Agreement. This Agreement shall terminate
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as follows:
(a) upon the agreement of the Company, the Shareholders and the
Investors;
(b) on such date as there are no longer any Notes or Convertible
Preferred Stock (or any securities issued upon conversion of the
Convertible Preferred Stock) outstanding and all shares of Common
Stock which may be issued upon conversion of the Convertible Preferred
Stock shall be free of any volume restrictions on transfer, including,
but not limited to, any restrictions pursuant to Rule 144 (other than
as a result of the shareholder's affiliation with a director of the
Company), as such rule may be amended from time to time; or
(c) after ten (10) years from the date hereof; provided,
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however, that if this Agreement is terminated pursuant to this Section
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3.2(c) the parties agree to use their respective best efforts to enter
into a new agreement containing the same terms as set forth herein.
Section 3.3 Representations. Each party hereto represents that (i)
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the execution and delivery of this Agreement and the performance of such party's
obligations hereunder will not violate or conflict with any material agreement
to which such party is a party or any law, rule, license, regulation, judgment,
order, ruling or decree governing or affecting such party; (ii) no consents or
filings with any governmental authority or any other person are required to be
obtained or made in connection with such party's execution, delivery and
performance of this Agreement; and (iii) this Agreement constitutes the valid
and binding obligation of such party, enforceable against such party in
accordance with its terms.
Section 3.4 Representations, Warranties and Covenants of the
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Shareholder. The Shareholder represents and warrants to the Investors that all
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the shareholders of the Company who are Affiliates of such Shareholder are
parties to this Agreement. The Shareholder represents and warrants that this
Agreement does not violate any material agreement, instrument, order, writ,
judgment or decree to which it is a party, or by which any of his properties or
assets are bound. The Shareholder covenants that if after the date hereof any
person or entity who is or becomes a shareholder of the Company is or becomes
an Affiliate of such Shareholder, then such Shareholder shall use all reasonable
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efforts to cause such person or entity to become a party to this Agreement.
Section 3.5 Company Covenant. The Company covenants and agrees that
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it will promptly cause the Notes to be fully paid at such time as the Company
has sufficient funds to fully pay the Notes, to the extent such funds (i) are
permitted to be used to pay the Notes under applicable law and are not otherwise
legally or contractually restricted (e.g. because they are restricted under bank
loan covenants or because they are proceeds of a public offering the use of
which proceeds has otherwise been designated in the offering) and (ii) are not
reasonably needed or better utilized for other proper corporate purposes as
determined by the Board of Directors of the Company.
Section 3.6 Successors and Assigns. All agreements contained herein
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by or on behalf of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto whether so expressed or
not, including, without limitation, any Person who acquires any Securities (or
any securities issued in exchange for any of the Notes or upon conversion of any
Convertible Preferred Stock) from any party.
Section 3.7 Notices. All communications provided for hereunder shall
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be sent by first class mail or overnight courier and, if to any Investor,
addressed to the Investor in the manner in which its address appears on Exhibit
I.A hereto, with a copy to Xxxxxxx X. Xxxxx, Xx., Esq., at Xxxxxxx Xxxx &
Xxxxxxxxx, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000; if to the
Shareholder, addressed to the Shareholder at the address set forth below such
Shareholder's name on Exhibit I.B hereto; and if to the Company, addressed to it
at Litigation Resources of America, Inc., 3850 Nationsbank Center, 000 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxx 00000-0000, Attn: G. Xxxx Xxxxx, President, Attention:
Office of the President, or to such other address with respect to any party as
such party shall notify the other in writing.
Section 3.8 Descriptive Headings. The descriptive headings of the
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several paragraphs of this Agreement are inserted for convenience only and do
not constitute a part of this Agreement.
Section 3.9 Governing Law. The corporate law of the State of New York
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will govern all issues concerning the relative rights of the Company, on the one
hand, and the Shareholder and the Investors, on the other hand. All other
questions concerning the construction, validity and interpretation of this
Agreement will be governed by, and construed and enforced in accordance with,
the law of the State of New York without regard to the conflicts of laws
principals thereof.
Section 3.10 Remedies. In case any one or more of the provisions set
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forth in this Agreement shall have been breached
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by the Company or the Shareholder or Investor, the Company or the Shareholder or
Investors (or any of them), as applicable, may proceed to protect and enforce
its or their rights either by suit in equity and/or by action at law
including, but not limited to, an action for damages as a result of any such
breach and/or an action for specific performance of any such provision contained
in this Agreement. The Company, or any Investor acting pursuant to this Section
3.10 shall be indemnified against all liability, loss or damage, together with
all reasonable costs and expenses related thereto (including reasonable legal
and accounting fees and expenses) in accordance with paragraph 12B of the
Securities Purchase Agreement.
Section 3.11 Entire Agreement. This Agreement, the Securities
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Purchase Agreement, the Registration Rights Agreement, the Subsidiary Guarantee
and the other writings referred to herein or therein or delivered pursuant
hereto or thereto contain the entire agreement among the parties with respect to
the subject matter hereof and supersede all prior and contemporaneous
arrangements or understandings with respect thereto. This Agreement shall not
constitute a valid and binding agreement, enforceable in accordance with its
terms, until it has been executed and delivered by duly authorized
representatives of each party hereto.
Section 3.12 Severability. Any provision of this Agreement that is
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prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provision hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdicition.
Section 3.13 Amendments. This Agreement may not be changed orally,
but
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only by an agreement in writing signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
Section 3.14 Counterparts. This Agreement may be executed in any
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number of counterparts, each of which shall be deemed an original, but all such
counterparts shall together constitute, one and the same instrument, and it
shall not be necessary in making proof of this Agreement to produce or account
for more than one such counterpart.
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IN WITNESS WHEREOF the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly authorized as
of the date first above written.
LITIGATION RESOURCES OF AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: CEO
SHAREHOLDER:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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INVESTORS:
DELAWARE STATE EMPLOYEES'
RETIREMENT FUND
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR DEFINED BENEFIT
PLAN OF ICI AMERICAN HOLDING INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
DECLARATION OF TRUST FOR DEFINED BENEFIT
PLAN OF ZENECA HOLDING INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
Managing Director
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EXHIBIT I.A (INVESTORS)
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DELAWARE STATE EMPLOYEES'
RETIREMENT FUND
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLAN OF ICI
AMERICAN HOLDINGS INC.
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
DECLARATION OF TRUST FOR
DEFINED BENEFIT PLAN OF
ZENECA HOLDINGS INC.
c/o Pecks Management Partners Ltd.
Xxx Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
EXHIBIT I.B (SHAREHOLDER)
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Name and Addresses Shares Owned of Record
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Xxxxxxx X. Xxxxxx
AMENDMENT TO SECURITYHOLDERS AGREEMENT
This Amendment to the Securityholders Agreement is made and entered into as
of the 24th day of September, 1997.
The Securityholders Agreement dated as of January 17, 1997 (the
"Securityholders Agreement"), among Litigation Resources of America, Inc., a
Texas corporation (the "Company"), Delaware State Employees' Retirement Fund,
Declaration of Trust for Defined Benefit Plan of ICI American Holding Inc. and
Declaration of Trust for Defined Benefit Plan of Zeneca Holding Inc.
(collectively, the "Investors"), and Xxxxxxx X. Xxxxxx (the "Shareholders") is
hereby amended as follows:
1. Section 3.2 of the Securityholders Agreement is amended to read in its
entirety as follows:
Section 3.2 Termination of Agreement. This Agreement shall
terminate as follows:
(a) Upon the agreement of the Company, the Shareholders and the
Investors;
(b) Immediately prior to the closing of a firm commitment
initial public offering of equity securities of the Company
that generates net proceeds to the Company of not less than
$15 million; or
(c) After ten (10) years from the date hereof; provided,
however, that if this Agreement is terminated pursuant to
this Section 3.2(c) the parties agree to use their
respective best efforts to enter into a new agreement
containing the same terms as set forth herein.
Dated as of this 24th day of September, 1997.
LITIGATION RESOURCES OF AMERICA, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
President
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
DELAWARE STATE EMPLOYEES' RETIREMENT FUND
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Director,
Pecks Management Partners, Ltd.,
Investment Advisor
DECLARATION OF TRUST FOR DEFINED BENEFIT
PLAN OF ICI AMERICAN HOLDINGS INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Managing Director,
Pecks Management Partners, Ltd.,
Investment Advisor
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DECLARATION OF TRUST FOR DEFINED BENEFIT
PLAN OF ZENECA HOLDINGS INC.
By: Pecks Management Partners Ltd.
Its Investment Advisor
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Director,
Pecks Management Partners, Ltd.,
Investment Advisor
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