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Exhibit 10.30
STOCKHOLDERS' AGREEMENT
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STOCKHOLDERS' AGREEMENT, dated as of March 20, 1992, among
▇▇▇▇▇ Associates, Inc., a Delaware corporation ("▇▇▇▇▇ Associates"), ▇▇▇▇▇
Associates U.K. Limited, a corporation organized under the laws of England,
▇▇▇▇▇▇▇▇/Kroll Environmental Services, Inc., a Louisiana corporation, Public
Advisory Services, Inc., a Delaware corporation and ▇▇▇▇▇▇▇ Partners, Inc., a
Delaware corporation (each of the above corporate parties hereto is referred to
herein severally as a "Company" and jointly as the "Companies"), ▇▇▇▇▇ ▇. ▇▇▇▇▇,
an individual stockholder (the "Individual Stockholder"), and the management
stockholders listed on the signature pages hereof (the "Management
Stockholders", collectively with the Individual Stockholder, the
"Stockholders"):
W I T N E S S E T H
WHEREAS, the parties hereto want to set forth certain matters
regarding the investment by the Stockholders and the conduct of the Companies;
WHEREAS, the Stockholders are the record and beneficial owners
of all of the shares of common stock (the "Common Stock") of the Companies;
WHEREAS, the Stockholders and the Companies believe that they
can best ensure the continued success of the Companies by entering into this
Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
AFFILIATE: with respect to any Person, a spouse of such
Person, any relative (by blood, adoption or marriage) of such Person, any
director, officer or employee of such Person, any trust formed by such Person,
any other Person of which such Person is a director, officer or employee, and
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such Person.
APPRAISER: FIRST, Price Waterhouse & Company ("PW") so long as
PW is not disqualified ("Disqualified") because it (x) is not available or (y)
has at that time a significant business relationship with any of the parties to
this Agreement, SECOND, if
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PW is Disqualified, Deloitte & Touche ("DT") so long as DT is not Disqualified,
THIRD, if DT is Disqualified, Coopers & ▇▇▇▇▇▇▇ ("CL") so long as CL is not
Disqualified, and FOURTH, if CL is Disqualified another "Big 6" or comparable
accounting firm mutually agreed upon by the parties hereto.
CAUSE: (A) the commission in the course of his employment of
any dishonest or fraudulent act, (B) the commission of a felony, (C) willful
refusal to carry out reasonable instructions of the Chairman which has a
material adverse affect upon any of the Companies, and (D) the willful
disclosure of any trade secrets or confidential information of any of the
Companies to persons not authorized to know same.
CHAIRMAN: ▇▇▇▇▇ ▇. ▇▇▇▇▇ or a successor chairman of Kroll
Associates.
COMMISSION: the U.S. Securities and Exchange Commission.
COMMON STOCK: as defined in the second recital hereof.
COMPANY OR COMPANIES: as defined in the introductory paragraph
hereof.
COMPANY NOTICE: as defined in section 8.
DISABILITY: as defined in ▇▇▇▇▇ Associates' long-term
disability plan.
FAIR VALUE: as defined in section 7.
INDIVIDUAL STOCKHOLDER: as defined in the introductory
paragraph hereof.
KROLL ASSOCIATES: as defined in the introductory paragraph
hereof.
MANAGEMENT STOCKHOLDERS: as defined in the introductory
paragraph hereof.
PERMITTED TRANSFEREE: if any Stockholder Transfers shares of
Common Stock and such Transfer is in accordance with the terms of this
Agreement, PROVIDED that the Transferee becomes a party to this Agreement as
provided in section 2, PROVIDED FURTHER that any such Transfer by Management
Stockholders shall not adversely affect the Company's election as a Subchapter S
Corporation under the Internal Revenue Code, as amended so long as Kroll
Associates shall make such election, and PROVIDED FURTHER that any Transfer
shall be subject to the terms of that certain Note Purchase Agreement, dated as
of December 15, 1989, among the Company and certain of its Affiliates and
Teachers Insurance and Annuity Association of America, as amended.
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PERMITTED DISPOSITION: as defined in section 3.
PERSON: an individual, a partnership, a joint venture, a
corporation, a trust, an unincorporated organization or a government or any
department or agency thereof.
PUBLIC OFFERING: an offer for sale of shares of Common Stock
pursuant to an effective registration statement filed by the Company which
issued such shares on Form S-1 or a successor form thereto pursuant to the
Securities Act.
PUT DATE: as defined in section 7.
PUT NOTICE: as defined in section 7.
SECURITIES ACT: the Securities Act of 1933, as amended.
SELLING STOCKHOLDER: as defined in section 8.
STOCKHOLDER: as defined in the introductory paragraph hereof.
STOCKHOLDER NOTICE: as defined in section 8.
TRANSFER: any transfer, sale, assignment, gift, testamentary
transfer, pledge, hypothecation or other disposition of any interest.
"TRANSFEREE" and "TRANSFEROR" shall have correlative meanings.
TRUSTEE: in the case of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and, in the case of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, and in both such cases, such other trustees consented to by the
Individual Stockholder, such consent not to be unreasonably withheld.
2. LIMITATIONS ON TRANSFER. No Stockholder shall Transfer any
shares of Common Stock except as provided in this Agreement. It shall be a
condition precedent to any Transfer of shares of Common Stock (but excluding
Transfers referred to in section 6 (public offerings) hereof) that the
Transferee (if not already a party to this Agreement), shall agree prior to the
Transfer in writing with the Companies and the other parties hereto to be bound
by the terms of this Agreement as if it had been an original signatory hereto.
3. PERMITTED DISPOSITION. Each Management Stockholder shall be
entitled to Transfer shares of Common Stock, at any time and from time to time,
(A) if such Transfer is a testamentary transfer effected by operation of law or
by will, (B) to a trust for the benefit of such Management Stockholder or such
Management Stockholder's spouse, issue or siblings, (C) with the consent in
writing of all of the Stockholders, (D) pursuant to and in
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accordance with sections 6 (public offering), 7 (puts), 9 (right of first
refusal), 10 (tag-alongs) and 11 (drag alongs). The Individual Stockholder shall
be entitled to Transfer shares of Common Stock at any time and from time to time
(I) if such Transfer is a testamentary transfer effected by operation of law or
by will, (II) to an affiliate of the Individual Stockholder, (III) in a public
offering pursuant to section 6, (IV) to a trust for the benefit of the
Individual Stockholder or a member of his family and (V) subject to the
provisions of section 10 (tag alongs), to any Person.
4. EFFECT OF VOID TRANSFERS. In the event of any purported
Transfer of any shares of Common Stock in violation of the provisions of this
Agreement, such purported Transfer shall, to the extent permitted by applicable
law, be void and of no effect, and, until such time as a Transfer in compliance
with this Agreement shall have occurred, (I) no dividend of any kind whatsoever
nor any distribution pursuant to liquidation or otherwise shall be paid to the
purported Transferee in respect of such shares, (II) the voting rights of such
shares, if any, on any matter whatsoever shall remain vested in the Transferor,
(III) the Transferor shall continue to be bound with respect to its obligations
hereunder as the holder of such shares and (IV) no such purported Transfer in
violation of this Agreement shall be registered by the Company which issued such
shares on its books of registry.
5. SECURITIES ACT; LEGENDS ON STOCK. (A) Each stock
certificate representing shares of Common Stock (prior to a
public offering pursuant to section 6) shall bear a legend in
substantially the following form:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or under any
state securities or blue sky laws and may not be transferred in the
absence of such registration or any exception therefrom under such Act
or under such state securities or blue sky laws.
The shares represented by this certificate may not be sold,
assigned, transferred, exchanged, mortgaged, pledged or otherwise
disposed of or encumbered except in compliance with the provisions of
that certain Stockholders' Agreement, dated as of March 20, 1992, as it
may be amended, among ▇▇▇▇▇ Associates, Inc., ▇▇▇▇▇ Associates U.K.
Limited, ▇▇▇▇▇▇▇▇/Kroll Environmental Services, Inc., ▇▇▇▇▇, Inc.,
▇▇▇▇▇ ▇. ▇▇▇▇▇, and the other stockholders listed on the signature
pages thereof. A copy of such Stockholders' Agreement, and any
amendments thereto, is on file and available for inspection at the
principal offices of ▇▇▇▇▇ Associates, Inc."
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(B) Prior to any Transfer of shares of Common Stock, the
holder thereof will give written notice to the Company which issued such shares
of such holder's intention to effect such Transfer. The following provisions
shall then apply:
(X) If in the opinion of such Company's counsel the
proposed Transfer may be effected without registration of
such shares under the Securities Act, such Company shall, as promptly
as practicable, so notify the holder of such shares and such holder
shall thereupon be entitled, subject to the other provisions of this
Agreement, to Transfer such shares in accordance with the terms of the
notice delivered by such holder to such Company.
(Y) If such counsel is unable to conclude that the proposed
Transfer may be effected without registration of such shares under the
Securities Act, such Company will, as promptly as practicable, so
notify the holder thereof and thereafter such holder shall not be
entitled to Transfer such shares until either such shares have been
effectively registered under the Securities Act or the provisions of
this subdivision (b) of this section 5 have otherwise been complied
with.
6. PUBLIC OFFERINGS, ETC. Each Stockholder shall be entitled,
without the consent of any other Stockholder, to Transfer any or all of the
shares of Common Stock owned by it, at any time and from time to time, in a
Public Offering. None of the Companies has made any commitment to effect a
Public Offering of their respective shares or otherwise register such shares for
resale.
7. MANAGEMENT STOCKHOLDERS' RIGHT TO PUT SHARES TO THE
COMPANY. 7.1 Following the fifth anniversary of the date hereof, a Management
Stockholder and all of his Permitted Transferees collectively shall have the
right on three different dates (each a "Put Date") to sell shares of Common
Stock to the Companies which issued such shares, and such Companies shall have
the obligation to purchase from such holder(s) of shares, the number of shares
of Common Stock specified in accordance with section 7.3 by such holder(s),
PROVIDED that such Management Stockholder and all of his Permitted Transferees
collectively shall not have such right prior to the sixth anniversary of the
date hereof unless (A) such Management Stockholder shall have continued to be
employed by one or more of the Companies through the third anniversary of the
date hereof or (B) if his employment shall have ceased before the third
anniversary of the date hereof due to his (1) death, (2) Disability or (3)
termination by a Company other than for Cause.
7.2 PUT NOTICE. The right of each Management Stockholder and
all of his Permitted Transferees collectively to sell shares of Common Stock to
the Companies shall be exercised on three dates only by the delivery of written
notices (each a "Put
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Notice") to the Company, specifying the Put Date, which date shall be not less
than 60 and no more than 90 days after the date of such notice, on which the
Companies shall be required to close for cash, payable by wire transfer or other
immediately available funds, the purchase of such shares of Common Stock, and
specifying the number of shares the Companies shall be required to purchase
pursuant to section 7.3. Each Put Notice must include an equal proportion of all
the shares of Common Stock of all the Companies.
7.3 NUMBER AND PRICE OF SHARES. Each Company shall be
obligated to purchase no more than (1) 50% of the total number of shares of
Common Stock of such Companies held by each such Management Stockholder and all
of his Permitted Transferees collectively pursuant to the first Put Notice
delivered by such holder(s), (2) 25% of the shares of Common Stock of such
holder(s) (held immediately prior to the put pursuant to clause (1) above)
pursuant to the second Put Notice delivered by such holder(s), and (3) 25% of
the shares of such holder(s) (held immediately prior to the put pursuant to
clause (1) above) pursuant to the third Put Notice delivered by such holder(s).
A Management Stockholder and all of his Permitted Transferees collectively may
only deliver one Put Notice within any 12-month period. The price payable to
such holder(s) for such shares put to the Company shall be the Fair Value ("Fair
Value") of such shares on the Put Date. The Fair Value of such shares shall be
determined by the Appraiser. Such appraisal shall be paid for by the Companies.
The Appraiser shall determine the Fair Value of such shares as the product
obtained by multiplying the fair value of the Companies (collectively determined
in accordance with the considerations listed below) times the percentage
obtained by dividing the number of shares of Common Stock specified in the Put
Notice divided by the total number of shares of Common Stock issued and
outstanding at the time. The fair value of the Companies shall be the price at
which the Companies collectively would change hands between a willing buyer and
a willing seller when the former is not under any compulsion to buy and the
latter is not under any compulsion to sell, both parties having reasonable
knowledge of relevant facts. In determining the fair value of the Companies
collectively, the Appraiser will consider the financial condition and operating
results and prospects of the Companies, including: balance sheets, historical
and at the valuation date, assets, liabilities, and book value, historical
operating results, particularly profits generated and factors affecting profits,
dividends paid historically and dividend-paying capacity, budgets, plans, and
projections of future performance, and prospects at the valuation date.
8. COMPANIES AND INDIVIDUAL STOCKHOLDER'S RIGHT TO CALL SHARES
FROM MANAGEMENT STOCKHOLDERS 8.1 In the event that a Management Stockholder
ceases to be employed by at least one of the Companies for any reason other than
(1) death, (2) Disability or (3) termination by the Companies for any reason
other than for Cause, the Companies and, if the Companies elect not to exercise
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fully their rights pursuant to this section 8.1, the Individual Stockholder
shall have the right to purchase from such Management Stockholder and all of his
Permitted Transferees, and such Management Stockholder and all of his Permitted
Transferees collectively shall have the obligation to sell to the Companies
and/or the Individual Stockholder all (but not less than all) of such Management
Stockholder's and all of his Permitted Transferee's shares of Common Stock at a
price equal to the Fair Value of such shares.
8.2 CALL NOTICE. The Company's and the Individual
Stockholder's right to purchase shares shall be exercised by the delivery of a
written notice (the "Call Notice") to such Management Stockholder, specifying
the Call Date, which date shall be not less than 60 and no more than 90 days
after the date of such notice, on which the Company and/or the Individual
Stockholder shall purchase all (but not less than all) of such shares of Common
Stock held by such Management Stockholder and all of his Permitted Transferees.
The Call Notice shall specify the relative number of shares to be purchased by
the Company and/or the Individual Stockholder.
8.3 PAYMENT FOR SHARES. The amount payable to such Management
Stockholder and any of his Permitted Transferees for such shares purchased
pursuant to this section 8 shall be an amount equal to the Fair Value of such
shares.
9. MANAGEMENT STOCKHOLDER RIGHT TO TRANSFER AND COMPANIES'
RIGHT OF FIRST REFUSAL. Following the fifth anniversary of the date hereof, a
Management Stockholder and all of his Permitted Transferees collectively shall
have the right (subject to the other terms of this Agreement) to Transfer any
shares of Common Stock held by such holder(s) in accordance with the terms of
this section 9; any such Transfer must include an equal proportion of all the
shares of Common Stock of all the Companies held by each such holder. In the
event that such holder(s) obtains from an independent purchaser a good ▇▇▇▇▇
▇▇▇▇ FIDE offer to purchase shares of Common Stock held by such holder, he shall
promptly notify the Companies in writing of the name and address of such
independent purchaser and inform the Companies of the status of such
negotiations. When and if such holder, a ("Selling Stockholder"), decides to
Transfer any such shares of Common Stock, such Selling Stockholder shall
promptly deliver to the Companies a copy of such good ▇▇▇▇▇ ▇▇▇▇ FIDE offer and
a written notice that, unless the Companies exercise their rights granted in
this section 9, such Selling Stockholder will Transfer his shares of Common
Stock in accordance therewith (the "Stockholder Notice"). At any time during the
ten business days following receipt of the Stockholder Notice, the Companies may
give such Selling Stockholder notice of exercise of its right to purchase all,
but not less than all, of the shares of Common Stock which the Selling
Stockholder has given notice of his intention to Transfer, on the same terms and
conditions specified in the Stockholder Notice (the "Company
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Notice"). Upon receipt of the Company Notice, the Selling Stockholder shall sell
the shares of Common Stock described in the Stockholder Notice to the Companies
at a price equal to the Fair Value of such shares. If the Selling Stockholder
shall not receive the Company Notice as provided in the foregoing sentence, he
shall have the right to Transfer all, but not less than all, of the shares
offered for Transfer in the Stockholder Notice to the independent purchaser
specified in the Stockholder Notice, for the consideration and in accordance
with the terms and conditions set out in such Stockholder Notice and in
compliance with the terms of this Agreement, PROVIDED that such Selling
Stockholder shall not Transfer any such shares to (I) any Person, or Affiliate
of such Person, which competes, or is expected to compete, with the Companies or
any of their Affiliates, (II) any Person, or Affiliate of such Person, who the
Companies determine (in their sole discretion) might cause harm to the Companies
by virtue of becoming a stockholder of the Companies, (III) any bank or other
financial institution for the purpose of pledging or granting a security
interest in such shares in order to secure indebtedness of such Selling
Stockholder, (IV) any other stockholder of the Companies without the written
consent of the Individual Stockholder, or (V) any Person, or Affiliate of such
Person, which has a material adverse interest to, or is involved in a pending or
threatened litigation or legal proceeding with, the Companies, the Individual
Stockholder or any of their Affiliates.
10. MANAGEMENT STOCKHOLDERS' TAG-ALONG RIGHTS. In the
event that the Individual Stockholder or any of his Permitted Transferees
agrees to sell, other than a Permitted Disposition pursuant to section 3(I),
(II), (III) or (IV), any or all of the shares of Common Stock owned by such
holder, he shall promptly so notify the Management Stockholders and shall
provide in such notice the terms and conditions of the proposed sale. Each
Management Stockholder and all of his Permitted Transferees collectively shall
have the right, but not the obligation, to sell to the proposed purchaser, and
the Individual Stockholder and any such Permitted Transferees shall cause the
proposed purchaser to purchase, under the same terms and conditions that are
applicable to the sale by the Individual Stockholder and any of such Permitted
Transferees, and at the same time as such sale, up to that number of shares of
Common Stock (of the Company which issued such shares) owned by each such
Management Stockholder and all of his Permitted Transferees obtained by
multiplying (A) the total number of shares of Common Stock of such Company
that are proposed to be sold (before giving effect to this provision) by the
Individual Stockholder and all of his Permitted Transferees to the proposed
purchaser by (B) a fraction, the numerator of which is the total number of
shares of Common Stock of such Company owned by such Management Stockholder and
all of his Permitted Transferees and the denominator of which is the total
number of shares of Common Stock of such Company owned by the Individual
Stockholder and all of his Permitted Transferees. Each Management Stockholder
shall give the
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Individual Stockholder and any of his Permitted Transferees written notice of
how many shares of such Common Stock he and all of his Permitted Transferees
desire to sell to the proposed purchaser within ten (10) days of receiving
notice of the proposed sale, such number of shares shall be allocated among such
Management Stockholder and all of his Permitted Transferees on a pro rata basis.
To the extent that any right granted to a Management Stockholder hereunder is
not exercised in full, the Management Stockholders who exercised their rights
hereunder may sell to the proposed purchaser all or any part of that number of
additional shares owned by them equal to the number of shares as to which the
right granted to such Management Stockholder was not exercised; such number of
shares shall be allocated among such Management Stockholders and their Permitted
Transferees on a pro rata basis.
11. INDIVIDUAL STOCKHOLDER'S DRAG-ALONG RIGHT. In the
event that the Individual Stockholder or any of his Permitted Transferees agrees
to sell, other than a Permitted Disposition pursuant to section 3(i), (ii),
(iii), or (iv), any or all of the shares of Common Stock owned by such holder,
such holder shall have the right, but not the obligation, to require each
Management Stockholder and all of his Permitted Transferees, and such Management
Stockholder and all of his Permitted Transferees shall have the obligation, to
sell, under the same terms and conditions that are applicable to the sale by the
Individual Stockholder or any of his Permitted Transferees, as the case may be,
and at the same time as such sale, up to that total number of shares of Common
Stock of such Company which issued such shares owned by each such Management
Stockholder and any of his Permitted Transferees obtained by multiplying (A) the
total number of shares of Common Stock of such Company that are proposed to be
sold (before giving effect to this provision) by the Individual Stockholder and
any of his Permitted Transferees, to the proposed purchaser by (B) a fraction,
the numerator of which is the total number of shares of Common Stock of such
Company owned by such Management Stockholder and any of his Permitted
Transferees and the denominator of which is the total number of shares of Common
Stock of such Company owned by the Individual Stockholder and any of his
Permitted Transferees.
12. CERTAIN VOTING AGREEMENTS. 12.1 OBLIGATION TO BE
COUNTED FOR A QUORUM. Each Management Stockholder agrees to be present in person
or represented by proxy at all meetings of the stockholders of each of the
Companies, so that all shares owned by such Management Stockholder or his
Permitted Transferees may be counted for the purposes of determining the
presence of a quorum at such meetings.
12.2 VOTING BY STOCKHOLDERS. (a) Each Management Stockholder
agrees to vote any shares of Common Stock owned by such Management Stockholder,
and to cause any of his Permitted Transferees to vote any shares of Common Stock
owned by such
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Permitted Transferees, whether by vote, ballot, proxy or written consent, in any
vote of the stockholders of each of the Companies in the same manner as the
Individual Stockholder, or upon the death of the Individual Stockholder, in the
same manner as the holders of a majority of the shares held by the Permitted
Transferees of the Individual Stockholder.
13. MISCELLANEOUS. (A) OTHER STOCKHOLDERS AGREEMENTS. None of
the Stockholders or their respective Permitted Transferees shall enter into any
stockholder agreement or arrangement of any kind with any person with respect to
the Common Stock inconsistent with the provisions of this Agreement (whether or
not such agreement or arrangement is with other stockholders that are not
parties to this Agreement).
(B) AMENDMENTS. This Agreement may be amended only by a
written instrument signed by the holders of all of the shares of Common Stock.
(C) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and each of
their respective successors, assigns and Transferees, PROVIDED that no
Stockholder may assign to any Person any of its rights hereunder other than in
connection with a Transfer to such Person of shares in accordance with the
provisions hereof.
(D) DELAYS OR OMISSIONS. No delay or omission to exercise any
right, power or remedy accruing to any party hereto upon any breach or default
of any party under this Agreement, shall impair any such right, power or remedy
of such party nor shall it be construed to be a waiver of any such breach or
default, or an acquiescence therein, or of or in any similar breach or default
thereafter occurring; nor shall any waiver of any single breach of default be
deemed a waiver of any other breach or default theretofore or thereafter
occurring. Any waiver, permit, consent or approval of any kind of character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, shall be in writing and shall be effective only to the extent
specifically set forth in such writing.
(E) INTEGRATION. This Agreement and the documents referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter.
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(F) NOTICES. All notices and other communications provided for
hereunder shall be in writing and shall be sent by first-class mail, overnight
courier, telex, telecopier or hand delivery:
(I) if to one of the Companies, to:
▇▇▇▇▇ Associates, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman
(II) if to the Individual Stockholder, to:
▇▇▇▇▇ Associates, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman
(III) if to any of the Management Stockholders, to:
▇▇▇▇▇ Associates, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: the name of such Management
Stockholder
or, in each case, to such other address as shall have been furnished to each
other party hereto in accordance with the provisions of this section 12. All
such notices and communications shall be deemed to have been given or made (I)
when delivered, if by hand or by overnight courier on the first business day
thereafter if such date of delivery is not a business day, (II) on the fifth
business day after being deposited in the mail, postage prepaid, if sent by
mail, (III) if sent by telex, when telex answer back is received or (IV) if
telecopied, when telecopy receipt is acknowledged.
(G) DESCRIPTIVE HEADINGS. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of the terms contained herein.
(H) SEVERABILITY. In the event that any one or more of the
provisions, subdivisions, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, subdivision, word, clause, phrase or
sentence in every
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other respect and of the remaining provisions, subdivisions,
words, clauses, phrases or sentences hereof shall not be in any way impaired, it
being intended that all rights, powers and privileges of the parties hereto
shall be enforceable to the fullest extent permitted by law.
(I) COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
(J) GOVERNING LAW. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York,
including the rules governing conflict of laws.
(K) INJUNCTIVE RELIEF. The Stockholders acknowledge and agree
that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to an injunction, restraining order or other equitable relief from any
court of competent jurisdiction, restraining any Stockholder from committing any
violations of the provisions of this Agreement.
IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first written above.
▇▇▇▇▇ ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title:
▇▇▇▇▇ ASSOCIATES U.K. LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Title:
▇▇▇▇▇▇▇▇/KROLL ENVIRONMENTAL
SERVICES INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title:
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PUBLIC ADVISORY SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title:
▇▇▇▇▇▇▇ PARTNERS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Title:
INDIVIDUAL STOCKHOLDER:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
MANAGEMENT STOCKHOLDERS:
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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CONSENT AND AMENDMENT NO. 1 TO THE MARCH STOCKHOLDERS' AGREEMENT
----------------------------------------------------------------
Consent and Amendment No. 1, dated as of June 15, 1993 (this
"Amendment"), to Stockholders' Agreement, dated as of March 20, 1992 (the "March
Stockholders' Agreement"), among ▇▇▇▇▇ Associates, Inc., a Delaware corporation,
Kroll Associates U.K. Limited, a corporation organized under the laws of
England, ▇▇▇▇▇▇▇▇/Kroll Environmental Services, Inc., a Louisiana corporation
and ▇▇▇▇▇▇▇ Partners, Inc., a Delaware corporation (each of the above corporate
parties is referred to herein jointly as the "Companies"), Public Advisory
Services, Inc., a Delaware corporation, ▇▇▇▇▇ ▇. ▇▇▇▇▇, and the management
stockholders listed on the signature pages thereof (the "Management
Stockholders" and, together with ▇▇. ▇▇▇▇▇, the "Stockholders").
WHEREAS, the parties hereto wish to take certain actions and make
certain amendments to the March Stockholders' Agreement in order to effect the
transactions contemplated hereby and by the Plan of Reorganization and
Stockholders' Agreement dated as of June 15, 1993 (the "Reorganization
Agreement") by and among American International Group, Inc. ("AIG"), ▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇ Holdings, Inc. ("Holdings"); and
WHEREAS, pursuant to this Amendment and the Reorganization Agreement,
the Stockholders and AIG will effect a reorganization of the Companies in which,
among other things, the Stockholders
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will contribute to Holdings all of the capital stock of the Companies held by
them (the "Outstanding Stock") and will receive, in exchange therefor, shares of
Common Stock, par value $.01 per share ("Common Stock"), of Holdings, as a
result of which Holdings shall become a holding company of the Companies and
their subsidiaries;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto hereby agree as follows:
1. All capitalized terms shall have the respective meanings ascribed to
them in the March Stockholders' Agreement unless otherwise defined herein.
2. The amendments set forth in, and effected by, paragraphs 4 through
20 of this Amendment are conditioned upon the consummation of the transactions
contemplated by this Amendment and the Reorganization Agreement and shall become
effective only upon the consummation of such transactions.
3. Each Stockholder hereby agrees that, at the Closing (as defined in
the Reorganization Agreement), he shall contribute to Holdings all of the shares
of outstanding Stock then held by him, free and clear of all Encumbrances (as
defined in the Reorganization Agreement), and together with all rights now and
hereafter attaching thereto, and in consideration therefor, Holding will issue
and deliver to each of the Stockholders the number of shares of Common Stock set
forth opposite his name on Schedule 1.2 to the Reorganization Agreement. To the
extent
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required by the March Stockholders' Agreement, each Stockholder consents to the
transfers contemplated by the preceding sentence in accordance with Section 3(c)
of the March Stockholders' Agreement.
4. The first paragraph of the March Stockholders' Agreement is hereby
amended by deleting the words "Public Advisory Services, Inc., a Delaware
corporation" from the fifth and sixth lines thereof and by inserting the words
"Kroll Holdings, Inc., a Delaware corporation ("Holdings")," on the ninth line
thereof before the words "▇▇▇▇▇ ▇. ▇▇▇▇▇".
5. The second recital of the March Stockholders' Agreement is hereby
amended by deleting the words "(the "Common Stock")" from the fourth line
thereof and the definition of "Common Stock" in Section 1 of the March
Stockholders' Agreement is hereby amended by deleting the words "as defined in
the second recital hereof" and by inserting in lieu thereof the words "the
Common Stock, par value $.01 per share, of Holdings."
6. Section 1 of the March Stockholders' Agreement is hereby further
amended in the following ways:
(i) by adding the following definition: "HOLDINGS" as
defined in the introductory paragraph hereof;
(ii) by deleting from the definition of "Permitted
Transferee" the second proviso thereof in its entirety; and
(iii) by deleting from the definition of "Public Offering" the
words "the Company which issued such shares" and inserting in lieu thereof the
word "Holdings".
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7. Section 4 of the March Stockholders' Agreement is hereby amended by
deleting the words "the Company which issued such shares" from the penultimate
line thereof and inserting in lieu thereof the word "Holdings".
8. Section 5 of the March Stockholders' Agreement is hereby amended in
the following ways:
(i) by deleting, in the second paragraph of the legend,
provided in subsection (a), at the end of the seventh line thereof, the words
"▇▇▇▇▇, Inc.," and inserting in lieu thereof the words "▇▇▇▇▇▇▇ Partners, Inc.,
▇▇▇▇▇ Holdings, Inc.,"; and
(ii) by deleting the words "the Company which issued such
shares" from the second and third lines of subsection (b), and the words "such
Company" from each of the first, third and last lines of subparagraph (x) and
the third line of paragraph (y), and, in each case, inserting in lieu thereof
the word "Holdings".
9. Section 6 of the March Stockholders' Agreement is hereby amended by
deleting from the fourth and fifth lines thereof the words "None of the
Companies has" and inserting in lieu thereof the words "Holdings has not", and
by deleting from the fifth and sixth lines thereof the words "their respective"
and inserting in lieu thereof the word "its".
10. Section 7.1 of the March Stockholders' Agreement is hereby amended
by deleting the words "the Companies which issued such shares on the date
hereof" from the sixth and seventh lines
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thereof, and the words "such Companies" from the tenth line thereof, and, in
each case, inserting in lieu thereof the word "Holdings".
12. Section 7.2 of the March Stockholders' Agreement is hereby amended
(i) by deleting the words "the Companies" from each of the third, seventh and
tenth lines thereof, and the words "the Company" from the fifth line thereof,
and, in each case, inserting in lieu thereof the word "Holdings" and (ii) by
deleting the second sentence thereof in its entirety.
13. Section 7.3 of the March Stockholders' Agreement is hereby amended
(i) by deleting the words "Each Company" from the first line thereof, the words
"the Company" from the fourteenth line thereof, and the words "the Companies"
from the seventeenth line thereof, and, in each case, inserting in lieu thereof
the word "Holdings", (ii) by inserting the words "Holdings and" before the words
"the Companies" in each of the nineteenth, twenty-fourth, twenty-fifth,
twenty-ninth and thirty-first lines thereof and (iii) by deleting the words
"Common Stock" in the twenty-third line thereof and inserting in lieu thereof
the words "capital stock of Holdings".
14. Section 8.1 of March Stockholders' Agreement is hereby amended (i)
by deleting the words "the Companies" from each of the sixth line (both times)
and eleventh line thereof, and, in each case, inserting in lieu thereof the word
"Holdings", (ii) by deleting the word "Companies" from the first line thereof
and inserting in lieu thereof the word "Holdings", (iii) by deleting
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the word "their" from the seventh line thereof and inserting in lieu thereof the
word "its" and (iv) by deleting the word "elect" from the sixth line thereof and
inserting in lieu thereof "elects".
15. Section 8.2 of the March Stockholders' Agreement is hereby amended
(i) by deleting the words "The Company" from the first line thereof and
inserting in lieu thereof the word "Holdings" and (ii) by deleting the words
"the Company" from each of the sixth and tenth lines thereof and inserting in
lieu thereof the word "Holdings".
16. Section 9 of the March Stockholders' Agreement is hereby amended
(i) by deleting the word "Companies" from the second line thereof, and the words
"the Companies" from each of the tenth/eleventh, twelfth, fifteenth, sixteenth,
twentieth, twenty-seventh, thirty-ninth, forty-first and forty-fifth lines
thereof, and, in each case, inserting in lieu thereof the word "Holdings", (ii)
by deleting from the sixth through eighth lines thereof the words "; any such
Transfer must include an equal proportion of all the Vested Shares of all the
Companies held by each such holder", (iii) by deleting the words "exercise
their" from the seventeenth line thereof and inserting in lieu thereof the words
"exercises its", (iv) by deleting the word "determine" from the thirty-ninth
line thereof and inserting in lieu thereof the word "determines" and (v) by
deleting the word "their" from the fortieth line thereof and inserting in lieu
thereof the word "its".
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17. Section 10 of the March Stockholders' Agreement is hereby amended
(i) by deleting the words "(of the Company which issued such shares)" from the
fifteenth line thereof and (ii) by deleting all the words following "Common
Stock" on the eighteenth line thereof through the period at the end of such
second sentence on the twenty-sixth line thereof and inserting in lieu thereof
the following:
"then owned by such Management Stockholder and all of his Permitted
Transferees by (b) a fraction, the numerator of which equals the number
of shares of Common Stock to be purchased from the Individual
Stockholder and all of his Permitted Transferees and the denominator of
which equals the sum of the total number of shares of Common Stock then
owned by the Individual Stockholder and any of his Permitted
Transferees plus the number of shares of capital stock of Holdings then
owned by any other stockholder of Holdings entitled to participate in
such sale."
18. Section 11 of the March Stockholders' Agreement is hereby amended
(i) by deleting the words "of such company which issued such shares" from the
thirteenth line thereof and (ii) by deleting all the words following "Stock"
on the sixteenth line thereof through the period at the end of such Section 11
and inserting in lieu thereof the following:
"then owned by such Management Stockholder and all of his Permitted
Transferees by (b) a fraction, the numerator of which equals the number
of shares of Common Stock to be
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purchased from the Individual Stockholder and all of his Permitted
Transferees and the denominator of which equals the total number of
shares of Common Stock then owned by the Individual Stockholder and any
of his Permitted Transferees."
19. Section 12.1 of the March Stockholders' Agreement is hereby amended
by deleting the words "each of the Companies" from the fourth line thereof, and
Section 12.2 of the March Stockholders' Agreement is hereby amended by deleting
the words "each of the Companies" from the sixth line thereof, and, in each
case, inserting in lieu thereof the word "Holdings".
20. Section 13 of the March Stockholders' Agreement is hereby amended
in the following ways:
(i) by deleting the words "the holders of all of the shares of
Common Stock" from the second and third lines of subsection (b) thereof and
inserting in lieu thereof the words "all of the parties hereto";
(ii) by adding the words "Holdings or" before the word
"one" in the first line of subsection (f) (i) thereof; and
(iii) by adding the words "Holdings and" after the word "that"
at the end of the fourth line of subsection (k) thereof.
21. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
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IN WITNESS WHEREOF, this Amendment has been executed and
delivered as of the date first written above.
KROLL HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ASSOCIATES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ASSOCIATES U.K. LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇/KROLL ENVIRONMENTAL
SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
PUBLIC ADVISORY SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ PARTNERS, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
INDIVIDUAL STOCKHOLDER
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
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MANAGEMENT STOCKHOLDERS
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
