Class B Stockholders Agreement

Exhibit 10.3

CLASS B STOCKHOLDERS AGREEMENT

THIS CLASS B STOCKHOLDERS AGREEMENT (this “Agreement”) dated as of August 15, 2000, is entered into among ClientLogic Corporation, a Delaware corporation (including its successors, the “Company”), Onex Holding Property Management Ltd., a Hungarian offshore company (“Onex HOC”), Onex Corporation, a corporation organized under the laws of the Province of Ontario, Canada (“Onex”), and Ontario Municipal Employees Retirement Board, a corporation continued under the Ontario Municipal Employees Retirement System Act (“OMERS”).

WHEREAS, the Company and OMERS are executing and delivering this Agreement in connection with the closing (the “Closing”) of the transactions contemplated by the Stock Purchase Agreement dated as of August 15,2000, between the Company and OMERS (the “Purchase Agreement”);

WHEREAS, as of the date hereof, the Stockholders (as defined below) own the shares of capital stock of the Company set forth opposite their respective names on Schedule A;

WHEREAS, as of the date hereof, the Stockholders collectively own all of the outstanding shares of Class B Voting Common Stock (as defined below); and

WHEREAS, concurrently herewith, the Company, Onex HOC, Onex, and OMERS are executing and delivering an Amended and Restated Stockholders Agreement among the Company, Onex HOC, Onex, OMERS, and certain other stockholders of the Company who are parties thereto (the “Stockholders Agreement”).

NOW, THEREFORE, in consideration of the premises, the mutual covenants and agreements contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE 1

Definitions

1.1 Definitions. As used in this Agreement, the following terms shall have the following meanings:

Affiliate” means, in respect of any specified Person, any other Person who, directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such specified Person. For purposes of this definition, “control” (including the terms “controlled by” and “under common control with”) when used in respect of any specified Person means the power to direct the management and policies of such specified Person, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise.

Agreement” means this Class B Stockholders Agreement as amended from time to time.

Board of Directors” means the Board of Directors of the Company.

Business” means the marketing, customer contact and relationship management and fulfillment services of the Company and its Subsidiaries, taken as a whole, including, without limitation; (i) contact center management, (ii) development and maintenance of customer databases; (iii) development of customized customer marketing programs; (iv) customer contact management by e-mail, online chat, fax, phone, and mail; (v) order and payment processing; (vi) warehousing; (vii) inventory management; (viii) picking, packing, and shipping merchandise and returns processing; (ix) list management and brokerage services; and (x) customer loyalty programs.


“Bylaws” means the Bylaws of the Company as in effect from time to time.

Certificate” means the Certificate of Incorporation of the Company as the same may be amended from time to time.

Class A Nonvoting Common Stock” means shares of Class A Nonvoting Common Stock, $0.01 par value per share, of the Company, and any capital stock into which such Class A Nonvoting Common Stock thereafter may be changed due to a reclassification, exchange, or other change in such class of stock.

Class A Voting Common Stock” means shares of Class A Common Stock, $0.01 par value per share, of the Company, and any capital stock into which such Class A Common Stock thereafter may be changed due to a reclassification, exchange, or other change in such class of stock.

“Class B Nonvoting Common Stock” means shares of Class B Nonvoting Common Stock, $0.01 par value per share, of the Company, and any capital stock into which such Class B Nonvoting Common Stock thereafter may be changed due to a reclassification, exchange, or other change in such class of stock.

Class B Voting Common Stock” means shares of Class B Common Stock, $0.01 par value per share, of the Company, and any capital stock into which such Class B Common Stock thereafter may be changed due to a reclassification, exchange, or other change in such class of stock.

Closing” has the meaning set forth in the recitals hereto.

Closing Date” means the date of the Closing,

Common Stock” means the Class A Voting Common Stock, the Class B Voting Common Stock, the Class A Nonvoting Common Stock, and the Class B Nonvoting Common Stock.

Common Stock Equivalents” means, without duplication with any other Common Stock or Common Stock Equivalents, any rights, warrants, options, convertible securities or indebtedness, exchangeable securities or indebtedness, or other rights, exercisable for or convertible or exchangeable into, directly or indirectly, Common Stock and securities convertible or exchangeable into Common Stock, whether at the time of issuance, upon the passage of time, or upon the occurrence of some future event.

Company” has the meaning set forth in the introductory paragraph.

DGCL” means the General Corporation Law of the State of Delaware as amended from time to time, or any successor statute.

Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated by the SEC thereunder.

 

2


Fully-Diluted Common Stock” means, at any time, the then-outstanding Common Stock plus (without duplication) all shares of Common Stock issuable, whether at such time or upon the passage of time or the occurrence of future events, upon the exercise, conversion, or exchange of all then-outstanding’Common Stock Equivalents.

GAAP” has the meaning set forth in Section 2.1(b).

“IPO Shares” has the meaning set forth in Section 3.1(a).

OMERS” has the meaning set forth in the introductory paragraph.

OMERS Group” means OMERS and its Affiliates and its and their respective officers and directors.

Onex” has the meaning set forth in the introductory paragraph.

Onex HOC” has the meaning set forth in the introductory paragraph.

Person” means any individual, corporation, partnership, limited partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, or other legal entity or government or political subdivision thereof.

Pre-IPO Private Placement” has the meaning set forth in Section 3.1(b).

Purchase Agreement” has the meaning set forth in the recitals hereto.

Qualified IPO” means a firm commitment underwritten public offering of Common Stock or other equity securities pursuant to a prospectus, registration statement, or similar document under the Securities Act or equivalent laws of appropriate jurisdictions where both (i) the proceeds (prior to deducting any underwriters’ discounts and commissions) equal or exceed Fifty Million Dollars ($50,000,000) and (ii) such shares of Common Stock or equity securities are listed on at least one of The Toronto Stock Exchange, The Montreal Exchange, the New York Stock Exchange, or the American Stock Exchange or authorized to be quoted and/or listed on the Nasdaq Stock Market, together with such other stock exchange or exchanges as may be approved by the Board of Directors.

SEC” means the Securities and Exchange Commission.

Security” or “Securities” means the Common Stock and any other securities governed by the provisions of this Agreement.

Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder.

Stockholder(s)” means (i) a securityholder listed on the signature page hereof and (ii) any direct or indirect transferee of any such securityholder who becomes a party to this Agreement pursuant to a Joinder Agreement in substantially the form of Schedule B.

Stockholders Agreement” has the meaning set forth in the recitals hereto.

 

3


Subsidiary” of any Person means (i) a corporation a majority of whose outstanding shares of capital stock or other equity interests with voting power, under ordinary circumstances, to elect a majority of such corporation’s directors, is at the time, directly or indirectly, owned by such Person, by one or more subsidiaries of such Person, or by such Person and one or more subsidiaries of such Person, and (ii) any other Person (other than a corporation) in which such Person, one or more subsidiaries of such Person, or such Person and one or more subsidiaries of such Person, directly or indirectly, at the date of determination thereof, has (x) at least a majority ownership interest or (y) the power to elect or direct the election of a majority of the directors or other governing body of such Person.

1.2 Rules of Construction. Unless the context otherwise requires: (i) a term has the meaning assigned to it; (ii) words in the singular include the plural, and words in the plural include the singular, (iii) words in masculine, feminine, or neuter gender, include each other gender; (iv) references to Articles, Sections, Schedules, or other subdivisions shall refer to Articles, Sections, Schedules, and other subdivisions of or to this Agreement; (v) provisions apply to successive events and transactions; and (vi) “herein,” “hereof,” “hereunder,” and other words of similar import refer to this Agreement as a whole and not to any particular Article, Section, or other subdivision.

ARTICLE II

Information Rights

2.1 Information Rights. Subject to Section 2.3, for so long as the OMERS Group owns at least 15% of the number of shares of Common Stock owned by OMERS on the Closing Date (as adjusted for stock splits, stock dividends, stock combinations, reclassifications, recapitalizations, and other similar events), the Company shall deliver to OMERS:

(a) at least 30 days prior to the end of each fiscal year of the Company, a budget for the next fiscal year, and

(b) within 90 days after the end of each fiscal year of the Company, a consolidated statement of operations and comprehensive loss (gain) for such fiscal year, a consolidated balance sheet of the Company and statement of stockholder’s equity as of the end of such fiscal year, and a statement of cash flows for such fiscal year, such year-end financial reports to be in reasonable detail, prepared in accordance with U.S. generally accepted accounting principles consistently applied (“GAAP”) and audited by an accounting firm of national reputation selected by the Company;

(c) within 45 days after the end of each fiscal quarter of each fiscal year of the Company, an unaudited consolidated statement of operations and comprehensive loss (gain) and statement of cash flows for such fiscal quarter and an unaudited consolidated balance sheet and a statement of stockholder’s equity as of the end of such fiscal quarter;

(d) within 30 days after the end of each month of the Company’s fiscal year, an unaudited consolidated statement of operations and comprehensive loss (gain) and statement of cash flows and an unaudited consolidated balance sheet for and as of the end of such month; and

(e) such other financial information as OMERS may reasonably request in writing to the Company.

2.2 Officer’s Certificate. In respect of the financial statements called for in Sections 2.1(c) and 2.1(d), the Company shall deliver an instrument executed by the chief financial officer of the Company certifying that such financial statements were prepared in accordance with GAAP (with the exception of footnotes that may be required by GAAP) and fairly present the financial condition of the Company and its results of operation for the period specified, subject to year-end audit adjustments.

 

4


2.3 Termination of Rights. Notwithstanding any other provision of this Article II to the contrary, the provisions of this Article II shall terminate and be of no further force or effect upon the earlier of the consummation of a Qualified IPO or such time as the Company becomes subject to the periodic reporting requirements of Section 13(a) or 15(d) of the Exchange Act.

ARTICLE III

Covenants

3.1 Participation Right.

(a) Subject to Sections 3.1(b), 3.1(c), and 3.1(d), in connection with the Company’s Qualified IPO, the Company shall use its commercially reasonable efforts to cause the managing underwriter of such Qualified IPO to offer to OMERS the right to purchase (at the Qualified IPO price) such number of additional shares of capital stock of the Company, which would provide the OMERS Group (together with all direct or indirect transferees of the OMERS Group) with an aggregate of up to 10.6% (or, if less, its percentage interest in the number of shares of Fully-Diluted Common Stock immediately prior to the Qualified IPO) of the shares (the “IPO Shares”) of Fully-Diluted Common Stock immediately after the Qualified IPO. Notwithstanding the foregoing provisions of this Section 3.1(a) (i) the managing underwriter may, in its sole discretion, modify or limit OMERS’ participation right under this Section 3-1(a), by providing written notice to the Company setting forth such underwriter’s reasons for such limitation or modification, including that such limitation or modification is necessary, because of marketing factors, for the success of the Qualified IPO, (ii) the provisions of Section 3.3(d) of the Stockholders Agreement shall not under any circumstances apply to the participation right provided in this Section 3.1(a), and (iii) the number of IPO Shares that OMERS would otherwise have the right to purchase under this Section 3.1(a) will be reduced on a share-for-share basis to the extent that the per share offering price of the IPO Shares is less than the Antidilution Price (as defined in the Purchase Agreement), and, as a result thereof, OMERS receives shares from the Company pursuant to the application of the antidilution provisions of Section 6.3 of the Purchase Agreement.

(b) The participation right provided in Section 3.1(a) shall be subject to (i) the modification and approval right described in Section 3.1(a), and (ii) the clearance by the SEC or the staff of the SEC of such arrangement without the need to maintain a resale prospectus in effect. If such approval or clearance is not received, or is reasonably unlikely to be received as a result of decisions, declarations, or policy statements released by the SEC or the staff of the SEC, then the participation right provided in Section 3.1(a) shall be substituted with a right to purchase a pro rata portion of the Common Stock scheduled to be sold in the Qualified IPO, where the number of shares to be offered hereunder shall not exceed, in the aggregate, the lesser of (i) up to 10.6% of the shares of Fully-Diluted Common Stock immediately after the Qualified IPO, (ii) OMERS’ percentage interest in the number of shares of Fully-Diluted Common Stock immediately prior to the Qualified IPO, and (iii) such amount as the managing underwriter shall approve in accordance with Section 3.1(a), in a private placement (the “Pre-IPO Private Placement”); provided, however, the number of shares that OMERS would otherwise have the right to purchase under this Section 3.1(b) will be reduced on a share-for-share basis to the extent that the per share offering price of such shares is less than the Antidilution Price, and, as a result thereof, OMERS receives shares from the Company pursuant to the application of the antidilution provisions of Section 6.3 of the Purchase Agreement. The Company shall use its commercially

 

5


reasonable efforts to close the Pre-IPO Private Placement immediately before or contemporaneously with the Qualified IPO. It shall be a condition to the Company’s obligation to issue and sell shares to OMERS in the Pre-IPO Private Placement that, if in the opinion of counsel for the Company or the managing underwriter it is necessary, OMERS execute and deliver to the Company, prior to the initial filing of the registration statement for the Qualified IPO, a binding subscription agreement to purchase shares in the Pre-IPO Private Placement at a price per share equal to the price at which the Common Stock will be initially offered and sold to the public, less the amount of the underwriting discount/commission that is paid to the underwriters for each:share of Common Stock sold in the Qualified IPO.

(c) The Pre-IPO Private Placement and any offer to be made to OMERS shall be conducted in compliance with all applicable federal and state securities laws and regulations, including, without limitation, the Securities Act, and all applicable rules and regulations promulgated by the National Association of Securities Dealers, Inc. and other such self-regulating or quasi-public regulatory organizations. If OMERS elects to participate in the Pre-IPO Private Placement, it shall comply with all reasonable requirements and procedures required by the Company of OMERS, if any.

(d) Notwithstanding the foregoing provisions of this Section 3.1, in the event that (i) regulatory authorities continue to object to this arrangement after full discussion and negotiation with the Company and its legal counsel (with the participation of one legal counsel representing OMERS, if desired by OMERS); (ii) regulatory authorities allow the Company to fulfill its obligations under this arrangement only on the condition that rescission rights or other specific liability will be assumed by the Company or the underwriters or that special risks related to the Pre-IPO Private Placement be included in the prospectus filed in connection with the Qualified IPO; (iii) the resolution with regulatory authorities relating to this arrangement would delay the Qualified IPO beyond delays caused by comments from regulatory authorities in respect of other issues (provided, however, that the Company has used its good faith efforts (with the participation of one legal counsel representing OMERS, if desired by OMERS) to timely resolve any regulatory issues that arise in connection with this arrangement); or (iv) regulatory authorities do not allow the Company to issue securities of the Company to OMERS at the time of the Qualified IPO, then the Company and OMERS agree to negotiate in good faith to enter into an alternative transaction that as closely as practicable approximates the economic benefit of the Pre- IPO Private Placement.

3.2 Stock Options. For so long as the OMERS Group continues to own at least 33.3% of the number of shares of Common Stock owned by OMERS on the Closing Date (as adjusted for stock splits, stock dividends, stock combinations, reclassifications, recapitalizations, and other similar events), the Company shall not, without the prior written consent of the Board of Directors (including the OMERS Designee (as defined in the Stockholders Agreement)), (i) increase the aggregate number of shares of Common Stock reserved for issuance under the ClientLogic Corporation 1998 Stock Option Plan, as amended, and any similar plan or agreement to greater than 15% of the shares of Fully-Diluted Common Stock as of the date hereof, or (ii) issue any Common Stock Equivalents that when combined with all then-outstanding Common Stock Equivalents would, in the aggregate, be exercisable for or convertible or exchangeable into more than 10% of the Company’s then-outstanding shares of Common Stock; provided, however, that the 10% limitation set forth in clause (ii) above shall not apply to any Common Stock Equivalents that are issued as consideration in connection with any merger, acquisition, consolidation, share exchange, or other similar transaction or in exchange for options, stock, awards, or similar rights under any stock option plan or similar plan or arrangement of any Person or business acquired by the Company. The Company shall not issue or grant any option or similar right to purchase shares of Class B Voting Common Stock.

 

6


3.3 Approval Rights. For so long as the OMERS Group continues to own at least 33.3% of the number of shares of Common Stock owned by OMERS on the Closing Date (as adjusted for stock splits, stock dividends, stock combinations, rectifications, recapitalizations, and other similar events), the Company shall not, and shall cause its Subsidiaries not to, without the affirmative vote or prior written consent of OMERS:

(a) at any time within 36 months after the Closing Date, issue (i) any shares of capital stock of the Company that rank senior to the Common Stock in respect of dividends and/or distributions upon dissolution, liquidation, and winding up of the Company or (ii) any Common Stock Equivalents that are convertible or exchangeable into, or exercisable for, capital stock of the Company that ranks senior to the Common Stock in respect of dividends and/or distributions upon dissolution, liquidation, and winding up of the Company;

(b) at any time within 18 months after the Closing Date, repurchase, redeem, or otherwise acquire any outstanding shares of capital stock of the Company or any of its Subsidiaries, other than (i) the redemption of Common Stock and/or Common Stock Equivalents for an aggregate amount not to exceed $5,000,000, (ii) the issuance of 1,963,321 shares of Class A Voting Common Stock issuable upon exchange of non-voting exchangeable shares in the capital of 1293220 Ontario Inc., a corporation organized under the laws of the Province of Ontario, Canada and an indirect subsidiary of the Company, subject to adjustment in accordance with the terms thereof; (iii) to effect the purchase of fractional shares, (iv) to repurchase shares of capital stock of the Company or any of its Subsidiaries or Common Stock Equivalents from employees, officers, directors, or consultants of the Company or any of its Subsidiaries upon termination of their employment or services, or (v) to repurchase shares of capital stock of the Company in accordance with Section 4.11(c) of the Stockholders Agreement (other than from Onex);

(c) materially change the nature of the Company’s or any Subsidiary’s Business;

(d) assign, sell, transfer, or otherwise dispose of, any material technology of the Company or any of its Subsidiaries other than (i) the licensing of such technology to third Persons on a non-exclusive basis pursuant to commercially reasonable terms or in the ordinary course of business consistent with past practice and/or (ii) the spinoff by dividend of the stock of Portal 360 Corporation (containing the Portal 360 technology) to the stockholders of the Company on a pro- rata basis at any time after the Closing Date;

(e) enter into or amend, renew, or voluntarily waive any right under any contract or transaction with an Affiliate of the Company (including, without limitation, any issuance of securities) other than the payment of fees to, and reimbursement or advancement of expenses of, directors of the Company and/or its Subsidiaries and the payment of compensation to, and reimbursement of expenses of, officers and employees of the Company and/or its Subsidiaries in a manner consistent with past practice (provided, however, that with respect to the Financial Advisory Agreement dated as of May 1, 1999, among the Company, the Clients (as defined therein), and Onex Service Partners and the Monitoring and Oversight Agreement dated as of January 1, 1999, among the Company, the Clients (as defined therein), and Onex Service Partners, OMERS hereby agrees that such agreements may remain in effect in accordance with their terms until the first anniversary of the Closing Date, after which time OMERS will have the right to require the Company and Onex to modify or terminate such agreements and each of the Company and Onex agree to comply with any such requirement and waive any other rights that would otherwise exist under such agreements);

 

7


(f) amend the Certificate or Bylaws except as requested by the lead underwriter for the Qualified IPO in connection with the Qualified IPO;

(g) (i) enter into any merger, consolidation, recapitalization, or share exchange with or into any one or more other Persons if immediately after any such merger, consolidation, recapitalization, or share exchange the stockholders of the Company immediately prior to such merger, consolidation, recapitalization, or share exchange would own, immediately after such merger, consolidation, recapitalization, or share exchange, less than 50% of the voting securities of the surviving Person in such merger, consolidation, recapitalization, or share exchange, (ii) sell all or substantially all of the Company’s assets in one transaction or a series of related transactions, or (iii) dissolve, liquidate, or wind up the Company (other than as a result of the filing of an involuntary petition in bankruptcy or insolvency proceeding brought against the Company); provided, however, that notwithstanding the foregoing provisions of this clause (g), OMERS shall not have any right to approve any such transaction (A) that would result in OMERS receiving $8 or more per share (as adjusted for stock splits, stock dividends, stock combinations, reclassifications, recapitalizations, and other similar events) (1) in cash, (2) in the form of equity securities of a publicly-traded class that are freely marketable immediately following such transaction other than any restrictions under Rule 145 under the Securities Act (or any successor rule) or pursuant to customary lock-up agreements entered into with underwriters or investment bankers, and/or (3) in the form of any debt security if such security has a maturity of one year or less and is rated B1 or better by Moody”s Investors Services, Inc. or is rated B+ or better by Standard and Poor’s Corporation, and (B) at any time after the fourth anniversary of the Closing Date;

(h) (i) file any voluntary petition in bankruptcy, (ii) file a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, dissolution, liquidation, or similar relief under any bankruptcy or debtor relief law, (iii) file an answer or other pleading admitting to or failing to contest the material allegations of petition filed against it in any bankruptcy or insolvency proceeding brought against the Company or any of its Subsidiaries, (iv) seek, consent to, or acquiesce in the appointment of a trustee, receiver, or liquidator of the Company, any of its Subsidiaries, or all or any substantial portion of their respective assets or properties, or (v) make a general assignment for the benefit of creditors;

(i) materially change the accounting policies followed by the Company or any of its Subsidiaries, except as required by GAAP or applicable law;

(j) change the auditors of the Company or any of its Subsidiaries;

(k) issue any shares of capital stock of any Subsidiary other than directors’ qualifying shares or as may otherwise be required by applicable law; or

(m) change the size of the Board of Directors, other than in accordance with Section 2.5 of the Stockholders Agreement.

ARTICLE IV

Miscellaneous

4.1 Implementation. Each Stockholder shall vote its shares of Common Stock, and all other securities of the Company entitled to vote on a particular matter, at all times, to cause its nominees to the Board of Directors (if any) to act at all times and otherwise to exercise its influence in respect of the Company, the Company shall exercise its influence in respect of its Subsidiaries, and the Company and

 

8


each Stockholder shall sign all such documents and to do and perform all such other acts or things as may be necessary or desirable from time to time in order to give full effect to the provisions and intent of this Agreement and to ensure that the provisions of this Agreement shall govern the affairs of the Company and its Subsidiaries to the maximum extent permitted by law, notwithstanding any conflicting provision in the Certificate, the Bylaws, or any conflicting resolutions of the directors or stockholders of the Company. In the case of any conflict between the provisions of this Agreement and the Certificate, the Bylaws, or any such resolutions, each Stockholder shall take all such action as may be required under the DGCL or otherwise to amend the Certificate, the Bylaws, or such resolutions, as the case may be, to resolve such conflict so that the provisions of this Agreement shall, to the maximum extent permitted by law, at all times prevail.

4.2 Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by facsimile, or by registered or certified mail, postage prepaid, return receipt requested, addressed as follows (or at such other address or facsimile number as may be substituted by notice given as herein provided):

If to the Company

ClientLogic Corporation

Two American Center

3120 West End Avenue, Suite 1000

Nashville, Tennessee 37203

Facsimile: (615)301-7196

Attention: Chief Financial Officer

-and-

ClientLogic Corporation

Two American Center

3120 West End Avenue, Suite 1000

Nashville, Tennessee 37203

Facsimile: (615)301-7225

Attention: General Counsel

with a copy to (which shall not constitute notice):

Weil, Gotshal & Manges LLP

100 Crescent Court, Suite 1300

Dallas, Texas 75201

Facsimile: (214) 746-7777

Attention: Mary R. Korby

If to any Stockholder, at its address or facsimile number listed on the signature pages hereof.

Any notice or communication hereunder shall be deemed to have been given or made as of the date so delivered if personally delivered; when answered back, if telexed; when receipt is acknowledged, if faxed; and five calendar days after mailing if sent by registered or certified mail (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee). Failure to mail a notice or communication to a Stockholder or any defect in it shall not affect its sufficiency in respect of any other Stockholder. If a notice or communication is mailed in the manner provided above, it is duly given,’ whether or not the addressee receives it

 

9


4.3 Successors and Assigns. Whether or not an express assignment has teen made pursuant to the provisions of this Agreement, provisions of this Agreement that are for the Stockholders’ benefit as the holders of any Securities are also for the benefit of, and enforceable by, all subsequent holders of Securities; provided, however, that OMERS shall not assign, delegate, or otherwise transfer (whether by operation of law, by contract, or otherwise) any rights and/or obligations of OMERS under Article II, Section 3.1, and/or Section 3.3, except to one or more members of the OMERS Group. Each Stockholder will cause any transferee of any Security (or any interest therein held by it) or of any rights and/or obligations hereunder to execute and deliver a Joinder Agreement in substantially the form attached hereto as Schedule B. This Agreement shall be binding upon the Company, each Stockholder, and their respective successors and permitted assigns.

4.4 Remedies. The Stockholders agree and acknowledge that money damages may not be an adequate remedy for any breach of the provisions of this Agreement and that any Stockholder may in its sole discretion apply to any court of competent jurisdiction for specific performance and/or injunctive relief in order to enforce or prevent any violation of the provisions of this Agreement.

4.5 Termination. The provisions of this Agreement shall terminate upon the consummation of a Qualified IPO and may be terminated at any time by agreement in writing of Onex, Onex HOC, and OMERS at the time of such agreement.

4.6 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

4.7 Severability. In the event any provision of this Agreement shall be held invalid, illegal, or unenforceable in any respect for any reason by a court of competent jurisdiction, the validity, legality, and enforceability of any such provision in every other respect and the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.

4.8 No Waivers; Amendments

(a) No Waivers. No failure or delay on the part of the Company or any Stockholder in exercising any right, power, or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. The remedies provided for herein are cumulative and are not exclusive of any remedies that may be available to the Company or any Stockholder whether at law, in equity, or otherwise.

(b) Amendment and Waiver. Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed by the Company, Onex, Onex HOC, and OMERS, and such amendment or waiver shall be binding on all of the Stockholders and the Company.

4.9 Currency. Unless otherwise indicated, all dollar amounts referred to in this Agreement are expressed in United States dollars.

 

10


4.10 Headings. The section and article headings in this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof.

4.11 Entire Agreement. This Agreement (together with the Stockholders Agreement) constitutes the entire agreement, and supersedes all prior agreements, understandings, negotiations, and discussions (whether written or oral), among the parties hereto in respect of the subject matter hereof. There are no conditions, covenants, agreements, representations, warranties, or other provisions, express or implied, collateral, statutory, or otherwise, relating to the subject matter hereof except as expressly provided in this Agreement and the Stockholders Agreement.

4.12 Counterparts. This Agreement may be executed in two or more counterparts, all of which shall constitute one and the same instrument.

4.13 Time of Essence. Time shall be of the essence of this Agreement.

4.14 Ceasing to Be a Party. Except as otherwise provided in this Agreement, a Stockholder shall cease to be a party to this Agreement in the event that such Stockholder and every Affiliate thereof no longer holds or has any interest in the Common Stock. Any Stockholder that ceases to be a party to this Agreement shall have no further rights or obligations under this Agreement, other than rights and obligations that may have arisen or accrued before such Stockholder ceased to be a party hereto.

4.15 Change in Securities. The provisions of this Agreement relating to Securities of any class or series shall apply, mutatis mutandis, to any Securities into which such Securities may be converted, reclassified, redesignated, subdivided, consolidated, or otherwise changed from time to time and to any Securities of any successor or continuing corporation to the Company that may be received in respect of any Securities on a reorganization, amalgamation, consolidation, or merger, statutory or otherwise.

4.16 Securities Subsequently Acquired. Each Stockholder agrees that, in addition to the shares of Common Stock now owned by it as set out opposite its name in Schedule A, all Common Stock or Common Stock Equivalents hereafter acquired by such Stockholder shall be subject in all respects to the provisions of this Agreement.

* * * * *

[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]

 

11


IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

 

CLIENTLOGIC CORPORATION
By:   /s/ illigible
Name:   illigible
Title:   Assistant Secretary
ONEX CORPORATION
By:   /s/ Thomas P. Dea
Name   Thomas P. Dea
Title:   Vice President
Address:   161 Bay Street, 49th Floor
  P.O. Box 700
  Toronto, Ontario, MSJ 2S1
Facsimile:   (416) 362-5765
Attention:   Thomas P. Dea
ONEX HOLDING PROPERTY MANAGEMENT, LTD.
By:   /s/ Donald F. West
Name:   Donald F. West
Title:   Director
Address:   161 Bay Street, 49th Floor
  P.O. Box 700
  Toronto, Ontario, MSJ 2S1
Facsimile:   (416) 362-5765
Attention:   Thomas P. Dea

 

12


ONTARIO MUNICIPAL EMPLOYEES RETIREMENT BOARD
By:   /s/ Ian D. Collier
Name   Ian D. Collier
Title:   Vice President
By:   /s/ Lisa A. Melchior
Name:   Lisa A. Melchior
Title:   Portfolio Manager
Address:   One University Avenue, Suit 1100
  Toronto, Ontario, M5J 2P1
Facsimile:   (416) 369-0675
Attention:   Lisa A. Mclehior

 


SCHEDULE A

 

Name of Stockholder

  

Type of Security

  

No. of Shares

 
Onex Corporation    Class B Voting Common Stock      3,125,000   
Onex Holding Property Management Ltd.    Class B Voting Common Stock      66,451,221   
Ontario Municipal Employees Retirement Board   

Class B Voting Common Stock

Class B Nonvoting Common Stock

    
 
1,750,000
8,250,000
  
  

 

14


SCHEDULE A

 

Stockholder

   Shares Owned       

Arraiz, Maria

     193      

Bailey, Melissa

     3,312      

Baskin, Steven

     193      

Berdych, Nancy

     49      

Berger, Michael

     242      

Biltekoff, Joanne

     40,358      

Boffa, Tony

     61      

Bookmiller, Brian

     193      

Brege, Tracy

     193      

Brevda, Evelyn

     242      

Brleteneder, Lill

     121      

Briggs, Mark R.

     128,572      

Broome, Aaron

     61      

Bubak, Jeff

     1,206      

Bush, Nora

     129      

Bush, Sandra

     34,329      

Byrnes, Christine

     193      

Callahan, Elynn

     33      

Capato, Anthony

     16,554      

Casteel, Julie

     82,143      

Christopher, Gena

     49      

Coia, Ralph

     33      

Dekker, Peter E.

     77,541      

Digiore, Jim

     804      

DiPale, Grace

     61      

Doherty, Christine

     33      

Donnelly, Kate

     61      

Downs, Kim

     193      

Drake, Mike

     49      

Duffy, Mickle (Michele A.)

     1,206      

Dunne, Carleen

     804      

Duryea, Joseph

     34,093      

Dzierba, Kathryn S

     193      

Edwards, Jim (Alfred J.)

     279      

Egleston, Christopher

     1,206      

Eiler, Robert

     49      

Engler, Bill (William G.)

     33      

Erickson, Ole Sommer

     22,585      

Faddoul, Mike

     61      

Fanson, Sandra

     343      

Faruqui, Ghazala

     61      

Ferraracccio, Lori

     1,929      

Fetter, Robert

     32,143      


Fischer, Charles

     193      

Fishman, Michael

     804      

Fontana, Margret

     242      

Fraass, David

     1,286      

Franko, MaryRose

     33      

Goguen, Mark

     61      

Grattan, James

     49      

Gray, Lorin

     61      

Greer, Annmarie

     483      

Hartnet, Paul

     279      

Henchbarger, Bill (William A.)

     33      

Herman, Mike (Michael E.)

     193      

Hipshman, Philip

     161      

Horvath, John

     129      

Huber, Ethan

     33      

Garton-Hudspeth, Paula

     61      

Humphries, Sarah Jane

     161      

Iyer, Bhuvaneshwari

     61      

Jackson, Ermina

     33      

Jauch, Eric

     193      

Jones, Caroline

     193      

Jones, Karen

     61      

Kaplan, Gloria

     33      

Karbowniczek, Aleksandra

     33      

Kawalick, Steve

     17,665      

Keans, Jacky

     3,215      

Keklak, Jason

     33      

Ko, Glenn

     61      

Koopmans, Sytze

     13,913      

Kortenhorst, Jules T.

     352,260      

Lees, Jeffery

     804      

Leheta, Yasser

     61      

Litvack, Richard

     322      

Loubaresse, Frank

     230,982      

Loubaresse, Frank

     21,901      

Loubaresse, Jacques

     2,396      

Loubaresse, Laurent

     116,594      

Loubaresse, Laurent

     10,462      

Mahon, Monica

     402      

Malacrino, Giuseppe

     161      

Mandel, Lon

     128,572      

Marnfredo, Joanne

     33      

Maraszek, Chris

     193      

Marino, Paul

     1,206      

Mathews, Erin

     33      

McGill, Greg

     49      

McPeek, Scot

     33      

McQueary, Denise

     33      

Miller, Brian

     33      


Molland, Bill (Frederick W.)

     402      

Moore, Terry

     322      

Mulligan, Lisa

     1,206      

Muscato, Greg

     3,215      

Nagel, Ronald

     33      

Naik, Vijay

     61      

Nance, Teresa

     33      

Nicosla, James

     33      

O’Neill, Mark

     61      

Online Services SARL

     117,758      

Online Services SARL

     11,776      

Painter, Julle

     804      

Palmatier, Jo Ann

     804      

Parsons, John

     121      

Petrosian, Claudia

     4,500      

Piekos, Fran

     129      

Pilsbury, Daniel

     33      

Pinnock, Richard

     1,608      

Podgorny, Keith

     193      

Procknal, Christine

     483      

Pyne, Andrew

     1,206      

Redman, John

     33      

Reisman, David

     33      

Rella, Bill (William)

     305,151      

Ricchiazzi, Julie

     193      

Roberts, Charles

     193      

Romito, Maureen

     193      

Root, Greg

     2,138      

Roselli, Paris

     193      

Rott, Elizabeth

     88      

Ruden, Cliff

     3,215      

Sanchez, Jeffrey

     33      

Sandler, Lauren

     49      

Sarna, Howard

     81,274      

Schaer, Maimu

     1,608      

Schemm, Jamie

     193      

Schiltz, Cherly

     804      

Scholl, Lisa

     33      

Schraufstetter, Shara

     33      

Schwelzer, Robert

     81      

Sentman, Charles

     193      

Sfeir, Josett

     193      

Shear, Bonnie

     33      

Singleton, June

     33      

Sklad, Saundra

     1,608      

Small, Ken

     121      

Smith, Mike

     322      

Smith, Oral

     61      

Snary, Cathey

     2,942      


Solomon, Jeffrey

     193     

Spragge, Debra

     33     

Stewart, Charles

     33     

Sullivan, Mike

     49     

Taffner, Kimberly A

     33     

Temple, Joseph L

     257,143     

Thompson, S. Dianne

     257,143     

Tran, Tuoc

     61     

Tredo, Don

     193     

Trifiletti, Paul

     33     

van der Lann, Carien C.

     76,512     

van Gaal, Joost A. J.

     81,306     

VanSant, Doug

     279     

Vullevic, Natasha

     61     

Wachowicz, Deborah

     33     

Walsh, Thomas

     483     

Waters, Lee

     3,810     

Waugh, Michele

     61     

Weinbrecht, Peter

     804     

Weist, Jack

     61     

Williams, Gavin

     242     

Winder, Victor

     33     

Wright, Stacy

     49     

Yacnyowych, Andrew

     61     

Young, Patrick

     193     

Zuhr, Kristen

     193     

Ontario Municipal Employees Retirement Board

     1,750,000      (class B voting shares)
     8,250,000      (class B nonvoting shares)

Onex Holding Property Management Ltd.

     66,451,221      (class B voting shares)
     79,064,613      (Total shares O/S)


SCHEDULE B

JOINDER AGREEMENT

[DATE]

Reference is made to that certain Class B Stockholders Agreement, dated as of August 15, 2000, a copy of which is attached hereto (as amended and in effect from time to time, the “Class B Stockholders Agreement”), among ClientLogic Corporation a Delaware corporation (the “Company”) and the securityholders of the Company parties thereto.

The undersigned signatory, in order to become the owner or holder of shares of any class of the common stock of the Company, by virtue of the issuance by the Company of shares of Common Stock to such signatory and/or the transfer of shares of Common Stock to such signatory, hereby agrees that by the undersigned’s execution hereof, the undersigned is a party to the Class B Stockholders Agreement subject to (i) all of the rights, restrictions, conditions, and obligations applicable to the Stockholders (as that term is defined in Class B Stockholders Agreement) set forth in the Class B Stockholders Agreement and (ii) if the undersigned constitutes a member of the OMERS Group (as defined in the Class B Stockholders Agreement), all of the rights, restrictions, conditions, and obligations applicable to members of the OMERS Group. This Joinder Agreement shall take effect and shall become a part of the Class B Stockholders Agreement as of the date first written above (or, if earlier, the effective date of the relevant issuance or transfer of the shares of Common Stock to the undersigned).

 

 
[please print name of transferee]
By:    
Name:    
Title:    
 

ACCEPTED:

CLIENTLOGIC CORPORATION

 

By:    
Name:    
Title:    

 

15