PENSON WORLDWIDE, INC. STOCKHOLDER’S AGREEMENT
Exhibit 10.2
Execution Copy
XXXXXX WORLDWIDE, INC.
STOCKHOLDER’S AGREEMENT
STOCKHOLDER’S AGREEMENT
THIS STOCKHOLDER’S AGREEMENT is made effective as of the 20th day of November, 2006 (the
“Effective Date”), between Xxxxxx Worldwide, Inc., a Delaware corporation (the “Company”), and the
Stockholder listed on the signature page hereto. All capitalized terms used in this Agreement
shall have the meaning assigned to them in this Agreement or in the attached Appendix.
RECITALS
WHEREAS, the Company and the Stockholder believe that it is in their respective best interests
to limit Transfers of the Shares with a view to, with certain exceptions, restricting ownership of
the Shares as set forth herein in order, among other things, to increase the value of the Common
Stock for all holders thereof and their respective transferees.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing premises and certain other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as
follows:
A. TRANSFER RESTRICTIONS
1. Restrictions on Transfer. Except for any Permitted Transfer or as otherwise
permitted pursuant to Section A.2 below, the Stockholder shall not Transfer any of the Shares.
2. Disposition of the Shares. In addition to the restrictions set forth in Section A.1
above, the Stockholder shall not Transfer any of the Shares unless and until there is compliance
with all of the following requirements:
(i) with the exception of a Transfer of the Shares to the public
pursuant to an offering registered under the 1933 Act or to the public
through a broker, dealer or market maker pursuant to the provisions of Rule
144 adopted under the 1933 Act, the Stockholder shall have provided the
Company with a written summary of the terms and conditions of the proposed
Transfer;
(ii) the Stockholder shall have complied with all requirements of this
Agreement applicable to the Transfer of the Shares;
(iii) the Stockholder shall have provided the Company with written
assurances, in form and substance satisfactory to the Company in its
reasonable discretion, that (a) the proposed Transfer does not require
registration of the Shares under the 1933 Act, (b) all appropriate
action necessary for compliance with the registration requirements of the
1933 Act or any exemption from registration available under the 1933 Act
(including Rule 144) has been taken, or (c) all appropriate action has been
taken with respect to any requirements of any foreign laws and/or
regulations, including, without limitation, any rules or regulations of any
self-regulatory organizations; and
(iv) if and when applicable, the Stockholder shall have provided the
Company with written assurances, in form and substance satisfactory to the
Company in its reasonable discretion, that all appropriate action has been
taken with respect to any requirements of any domestic laws and/or
regulations, including, without limitation, any rules or regulations of any
self-regulatory organizations.
The Company shall not be required (i) to transfer on its books any Shares which have been sold
or transferred in violation of the provisions of this Agreement, or (ii) to treat as the owner of
the Shares, or otherwise to accord voting, dividend or liquidation rights to, any transferee to
whom the Shares have been transferred in contravention of this Agreement.
B. RIGHT OF FIRST REFUSAL
1. Grant. Subject to the terms hereof, the Company is hereby granted a first priority
right of first refusal (the “First Refusal Right”) with respect to any proposed Transfer of the
Shares, specifically excluding a Transfer of the Shares to the public pursuant to an offering
registered under the 1933 Act or to the public through a broker, dealer or market maker pursuant
to the provisions of Rule 144 adopted under the 1933 Act.
2. Notice of Intended Disposition. In the event the Stockholder desires to accept a
bona fide third-party offer for the Transfer of any or all of the Shares (specifically excluding
a Transfer of the Shares to the public pursuant to an offering registered under the 1933 Act or
to the public through a broker, dealer or market maker pursuant to the provisions of Rule 144
adopted under the 1933 Act) (the Shares subject to such offer to be hereafter called the “Target
Shares”), the Stockholder shall promptly (i) deliver to the Company written notice of the
intended disposition (“Disposition Notice”) and the basic terms and conditions thereof,
including the identity of the proposed purchaser, (ii) provide satisfactory proof that the
disposition of the Target Shares to such third-party offeror would not be in contravention of
the provisions set forth in Article A, and (iii) provide a written representation to the Company
stating that the Stockholder is not knowingly facilitating, directly or indirectly, a Transfer
of the Target Shares to an entity that engages in the business of being a broker-dealer that
provides clearing, carrying and financing services to correspondents; provided, however, that
the business of conduit securities lending shall not be considered to be such a business.
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3. Exercise of Right by the Company. The Company shall, for a period of twenty (20)
days following receipt of the Disposition Notice, have the right to repurchase all or any
portion of the Target Shares at a purchase price per Share equal to the purchase price
determined as of the date of the Disposition Notice, subject to the following conditions. Such
right shall be exercisable by written notice (the “Exercise Notice”) delivered to the
Stockholder prior to the expiration of the fifteen (15) day exercise period. If such right is
exercised with respect to all of the Target Shares specified in the Disposition Notice, then the
Company shall effect the repurchase of such Target Shares, including payment of the purchase
price, not more than five (5) business days after the delivery of the Exercise Notice. At such
time, the Stockholder shall deliver to the Company the certificates representing the Target
Shares to be repurchased, each certificate to be properly endorsed for transfer. The Company’s
ability to exercise its First Refusal Right shall be limited to instances where, in the
Company’s good faith belief, such proposed Transfer (i) violates the provisions of Section A.2,
or (ii) may disrupt the orderly trading of the Common Stock.
4. Non-Exercise of Right. In the event the Exercise Notice is not given by the Company
to the Selling Stockholder within fifteen (15) days following the date of the Company’s receipt
of the Disposition Notice, the Company shall be deemed to have waived its First Refusal Right
with respect to such proposed disposition.
5. Recapitalization/Reorganization.
(i) Any new, substituted or additional securities or other property
which is by reason of any Recapitalization distributed with respect to the
Shares shall be immediately subject to the First Refusal Right, but only to
the extent the Shares are at the time covered by such right.
(ii) In the event of a Reorganization, the First Refusal Right shall
remain in full force and effect and shall apply to the new capital stock or
other property received in exchange for the Shares in consummation of the
Reorganization, but only to the extent the Shares are at the time covered
by such right.
C. LEGEND REQUIREMENTS
1. Restrictive Legends. The stock certificates for the Shares shall be endorsed with
the following restrictive legends:
(i) “The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or any state’s
securities laws and may not be offered, sold or otherwise transferred,
pledged or hypothecated unless and until such shares are registered under
such laws or an opinion of counsel satisfactory to the Company is obtained
to the effect that such registration is not required.”
(ii) “The securities represented by this certificate are subject to
certain restrictions and agreements contained in a Stockholders’
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Agreement with the Company dated effective as of November 20, 2006. A
copy of the Stockholders’ Agreement and all applicable amendments thereto
will be furnished by the Company to the record holder of this certificate
without charge upon written request to the Company at its principal place
of business or registered office.”
D. GENERAL PROVISIONS
1. Assignment. The Company may assign the First Refusal Right as well as its other
rights and obligations hereunder, to any person or entity selected by the Board. The Stockholder
may not assign any of its rights or obligations hereunder except as expressly permitted by this
Agreement.
2. Notice. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial delivery service, or mailed by
registered or certified mail (return receipt requested):
(i) If to the Company:
Xxxxxx Worldwide, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Chief Executive Officer
With a copy to:
Xxxxxx Worldwide, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: General Counsel
(ii) If to Stockholder, at the address for Stockholder set forth below
his signature hereto.
Any party may change any address to which notice is to be given to it by giving notice as
provided above of such change of address.
3. No Waiver. The failure of the Company in any instance to exercise the First Refusal
Right shall not constitute a waiver of any other repurchase rights that may subsequently arise
under the provisions of this Agreement or any other agreement between the Company and the
Stockholder. No waiver of any breach or condition of this Agreement shall be deemed to be a
waiver of any other or subsequent breach or condition, whether of like or different nature.
4. Cancellation of Shares. If the Company shall make available, at the time and place
and in the amount and form provided in this Agreement, the consideration for the Shares to be
repurchased in accordance with the provisions of this Agreement, then from
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and after such time, the person from whom such Shares are to be repurchased shall no longer
have any rights as a holder of such Shares (other than the right to receive payment of such
consideration in accordance with this Agreement). Such Shares shall be deemed purchased in
accordance with the applicable provisions hereof, and the Company (or its assignee) shall be
deemed the Stockholder and holder of such Shares, whether or not the certificates therefor have
been delivered as required by this Agreement.
5. Stockholder Undertaking. The Stockholder hereby agrees to take whatever additional
action and execute whatever additional documents the Company may deem necessary or advisable in
order to carry out or effect one or more of the obligations or restrictions imposed on the
Stockholder or the Shares pursuant to the provisions of this Agreement.
6. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without resort to that state’s
conflict-of-laws rules. To the fullest extent permitted by applicable law, each party hereto (i)
agrees that any claim, action or proceeding by such party seeking any relief whatsoever arising
out of, or in connection with, this Agreement shall be brought in any state or federal court of
competent jurisdiction sitting in New York County in the State of New York or Dallas County in
the State of Texas, depending upon the location of the principal office of the initial
defendant, and not in any other state or federal court in the United States of America or any
court in any other country, (ii) agrees to submit to the exclusive jurisdiction of such courts
described in clause (i) for purposes of all legal proceedings arising out of, or in connection
with, this Agreement, (iii) waives and agrees not to assert any objection that it may now or
hereafter have to the laying of the venue of any such proceeding brought in such a court or any
claim that any such proceeding brought in such a court has been brought in an inconvenient
forum, and (iv) agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by applicable law.
7. Successors and Assigns. The provisions of this Agreement shall inure to the benefit
of, and be binding upon, the Company and its successors and assigns and upon the Stockholder’s
successors and assigns, whether or not any such person shall have become a party to this
Agreement and have agreed in writing to join herein and be bound by the terms hereof.
8. Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written consent of the
Company and the Stockholder. Any amendment or waiver effected in accordance with this Section
D.8 shall be binding upon the Stockholder, each future holder of the Shares and the Company.
9. Severability. In the event one or more of the provisions of this Agreement should,
for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of
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this Agreement, and this Agreement shall be construed and interpreted in such manner as to
be effective and valid under applicable law.
10. Value of Consideration. In the event the Stockholder is offered any consideration
by a third party in respect of the Shares that is in a form other than U.S. dollars, the Company
shall have the right to determine in good faith the fair market value of such consideration.
IN WITNESS WHEREOF, the parties have executed this Stockholder’s Agreement on the day and year
first indicated above.
XXXXXX WORLDWIDE, INC. |
||||
By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxxxxxx | |||
Title: | Chief Executive Officer | |||
XXXXXXXXX SECURITIES, LLC |
||||
By: | XXXXXXXXX GROUP HOLDINGS LLC | |||
Manager |
By: | /s/ Xxxxxx X. Xxxxxxxxx | |||
Xxxxxx X. Xxxxxxxxx | ||||
Chief Executive Officer | ||||
Address: | 000 Xxxx Xxxxxx – 00xx Xxxxx | |||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Attn.: Xxxx X. Xxxxxxx, Esq. | ||||||
with a copy to: | ||||||
Xxxxxxxxx, Xxxxxx & Xxxxxx, LLC | ||||||
000 Xxxxxxx Xxxxxx – 00xx Xxxxx | ||||||
Xxx Xxxx, Xxx Xxxx 00000 | ||||||
Attn.: Xxxxxx X. Xxxxx, Esq. |
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APPENDIX OF DEFINITIONS
The following definitions shall be in effect under the Agreement:
A. “Agreement” shall mean this Stockholder’s Agreement.
B. “Board” shall mean the Company’s Board of Directors.
C. “Common Stock” shall mean the Company’s common stock, $0.01 par value per share.
D. “1933 Act” shall mean the Securities Act of 1933, as amended.
E. “Permitted Transfer” shall mean (i) a gratuitous Transfer of Shares and/or a Transfer
to an affiliate of the Stockholder (i.e., a person directly or indirectly controlling, controlled
by or under common control with the Stockholder), provided that the Stockholder provides the
Company with prior written notice of such Transfer, or (ii) any Transfer with the prior consent of
the Company.
F. “Recapitalization” shall mean any stock split, stock dividend, recapitalization,
combination of shares, exchange of shares or other change affecting the outstanding Common Stock as
a class without the Company’s receipt of consideration.
G. “Reorganization” shall mean any of the following transactions:
(i) a merger or consolidation in which the Company is not the
surviving entity,
(ii) a sale, transfer or other disposition of all or substantially all
of the Company’s assets,
(iii) a reverse merger in which the Company is the surviving entity
but in which more than a majority of the Company’s outstanding voting
securities are transferred to a person or persons different from the
persons holding those securities immediately prior to the merger, or
(iv) any transaction effected primarily to change the state in which
the Company is incorporated or to create a holding company structure.
H. “SEC” shall mean the Securities and Exchange Commission.
I. “Shares” shall mean (a) all Common Stock issued to the Stockholder pursuant to the
terms of the Asset Purchase Agreement dated as of the date hereof between SAI Holdings, Inc. and
the Stockholder; and (b)all shares of Common Stock and other capital stock, equity security or debt
security exercisable or convertible into capital stock of the Company hereafter issued by the
Company to the Stockholder, whether in connection with a issuance, grant, stock
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split, stock dividend, reorganization, warrant, option, convertible security, right to acquire
or otherwise. All references herein to Shares owned by the Stockholder shall include: (i) the
community interest or similar marital property interest, if any, of the spouse of the Stockholder
in such Shares; and (ii) all of the equity interests and voting rights in the Company which are
reflected by Share ownership. For purposes of clarification, the term “Shares” shall expressly
exclude shares of capital stock of the Company owned or acquired by the Stockholder other than
directly from the Company.
J. “Stockholder” shall mean the Stockholder and all subsequent holders of Shares who
derive their ownership of Shares through a Permitted Transfer from the Stockholder.
K. “Transfer” shall mean any direct or indirect transfer, assignment, sale, gift, pledge,
hypothecation, encumbrance or other disposition of Shares (or any interest therein) or of all or
part of the voting power (other than the granting of a revocable proxy) associated with the Shares
(or any interest therein) whatsoever, or any other transfer of beneficial ownership of Shares,
whether voluntary or involuntary, including, without limitation, any such disposition or transfer
as a part of any liquidation of the Stockholder’s assets or any reorganization of the Stockholder
pursuant to the United States or any other bankruptcy law or other similar debtor relief laws.
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