Exhibit 2
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (this "Agreement") is made and entered into
as of July 19, 2000, by and among XXXXXXXXXX.XXX, INC., a Georgia corporation
(the "Company"), OMNICOM GROUP INC., a New York corporation ("Omnicom"), XXXXXXX
XXXXX GROUP INC., a Delaware corporation and wholly owned subsidiary of Omnicom
("BHA"), and ITC HOLDING COMPANY, INC., a Delaware corporation ("ITC") (Each of
Omnicom, BHA and ITC may be referred to individually as a "Shareholder" and
collectively as "Shareholders").
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger, dated
as of April 15, 2000 (as the same may be amended, the "Acquisition Agreement"),
by and among the Company, Resume Acquisition Corporation, a Delaware corporation
and wholly owned subsidiary of the Company ("Merger Sub"), Omnicom, BHA and
Career Mosaic, Inc., a wholly owned subsidiary of BHA ("Career Mosaic"), Career
Mosaic will merge with and into Merger Sub (the "Acquisition"), with the result
that each of outstanding shares of common stock of Career Mosaic will be
converted into the right to receive shares of common stock of the Company (the
"Company Common Stock"); and
WHEREAS, the parties have reached certain agreements with respect to their
beneficial ownership of Company Common Stock after consummation of the
Acquisition;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is
acknowledged, the parties hereby agree as follows:
1. Definitions.
(a) "Affiliate" shall have the meaning assigned thereto in Rule 405,
as presently promulgated under the Securities Act.
(b) "beneficially owns" (or comparable variations thereof) has the
meaning set forth in Rule 13d-3 as presently promulgated under the Exchange Act.
(c) "BHA Slate" shall mean the two persons named as members of the
BHA Slate in Section 3(b) hereof, as may be changed by BHA from time to time in
accordance with Section 3.
(d) "Equity Securities" means Voting Securities, Convertible
Securities and Rights to Purchase Voting Securities.
(e) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(f) "Independent Slate" shall mean the three persons named as
members of the Independent Slate in Section 3(b) hereof, as may be changed by
mutual agreement of ITC and BHA from time to time in accordance with Section
3(d) hereof.
(g) "ITC Slate" shall mean the two persons named as members of the
ITC Slate in Section 3(b) hereof, as may be changed by ITC from time to time in
accordance with Section 3.
(h) "Maximum Voting Percentage" shall mean 30% of the Voting Power
of the Company.
(i) "Person" means any individual, corporation, partnership, trust,
other entity or group (within the meaning of Section 13(d)(3) of the Exchange
Act).
(j) "Restricted Group" means (i) any Shareholder, (ii) any and all
Persons directly or indirectly controlled by any Shareholder, (iii) if such
Shareholder is an individual, (a) any member of such Shareholder's family
(including any spouse, parent, sibling, child, grandchild or other lineal
descendant, including adoptive children), (b) the heirs, executors, personal
representatives and administrators of any of the foregoing Persons, (c) any
trust established for the benefit of any of the foregoing Persons and (d) any
charitable foundations established by any of the foregoing Persons, and (iv) any
and all groups (within the meaning of Section 13(d)(3) of the Exchange Act) of
which any Shareholder or any Person directly or indirectly controlled by such
Shareholder is a member, other than any such group not acting for the purpose of
acquiring, holding or beneficially owning Equity Securities.
(k) "Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
(l) "Standstill Period" means the period beginning on the date of
this Agreement and ending on a date five years from the date of this Agreement.
(m) "Voting Power" means, with respect to any Outstanding Voting
Securities, the highest number of votes that the holders of all such Outstanding
Voting Securities would be entitled to cast for the election of directors or on
any other matter (except to the extent such voting rights are dependent upon
events or default or bankruptcy), assuming, for purposes of this computation,
the conversion or exchange into Voting Securities of Convertible Securities
(whether presently convertible or exchangeable or not) and the exercise of
Rights to Purchase Voting Securities (whether presently exercisable or not), in
either case to the extent that any such action would increase the number of such
votes.
(n) "Voting Securities" means the Company Common Stock and any other
securities of the Company of any kind or class having power generally to vote
for the election of directors; "Convertible Securities" means securities of the
Company
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which are convertible or exchangeable (whether presently convertible or
exchangeable or not) into Voting Securities; "Rights to Purchase Voting
Securities" means options, warrants and rights issued by the Company (whether
presently exercisable or not) to purchase Voting Securities or Convertible
Securities; and "Outstanding Voting Securities" means at any time the then
issued and outstanding Voting Securities, Convertible Securities (which shall be
counted at the maximum number of Voting Securities for which they can be
converted or exchanged) and Rights to Purchase Voting Securities (which shall be
counted at the maximum number of Voting Securities for which they can be
exercised).
2. Standstill Agreement. Each Restricted Group agrees, during the
Standstill Period, unless specifically invited in writing by the Board of
Directors of the Company, that such Restricted Group will not, either directly
or indirectly through a representative or otherwise, (a) effect or seek, offer
or propose (whether publicly or otherwise) to effect, or cause or participate in
or in any way assist any other person to effect or seek, offer or propose
(whether publicly or otherwise) to effect or participate in (i) any acquisition
of any securities (or beneficial ownership thereof) or assets of the Company or
any of its subsidiaries; (ii) any tender or exchange offer or merger or other
business combination involving the Company or any of its subsidiaries; (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the Company or any of its subsidiaries; or (iv) any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
Exchange Act) or consents to vote any Voting Securities of the Company, (b)
form, join or in any way participate in a "group" (as defined under the Exchange
Act), (c) except by reason of an Affiliate serving on the Board of Directors of
the Company, otherwise act, alone or in concert with others, to seek to control
or influence the management, Board of Directors or policies of the Company, (d)
take any action which might force the Company to make a public announcement
regarding any of the types of matters set forth in (a) above, or (e) enter into
any discussions or arrangements with any third party with respect to any of the
foregoing. Each Restricted Group also agrees during any such period not to
request the Company (or its directors, officers, employees or agents), directly
or indirectly, to amend or waive any provision of this paragraph (including this
sentence); provided, however, that nothing will prohibit a Restricted Group or
member thereof from making a confidential proposal to the Board of Directors
with respect to any of the foregoing provided that the terms thereof are
conditioned upon the maintenance of such confidentiality by the Company.
3. Voting.
(a) Until such time as a Restricted Group beneficially owns Outstanding
Voting Securities representing less than the lower of (1) 10% of the Voting
Power of all Outstanding Voting Securities or (2) 50% of the Voting Power
beneficially owned by such Restricted Group on the date hereof, at each meeting
of shareholders of the Company, each Restricted Group shall vote the Voting
Securities held by such Restricted Group (x) with respect to the election of
directors, in favor of the persons named in the ITC Slate, the BHA Slate and the
Independent Slate, (y) on all proposals of any other
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shareholder of the Company, in accordance with the recommendation of the Board
of Directors of the Company, and (z) on all other matters that shall come before
the shareholders of the Company for a vote, in its discretion up to the Maximum
Voting Percentage and, with respect to any Voting Securities held in excess of
the Maximum Voting Percentage, in proportion to how all other Voting Securities
which are not held by such Restricted Group are voted.
(b) For purposes of this Section 3, until subsequently changed as provided
herein, the ITC Slate shall be Xxxxxxxxx X. Xxxxxxxx as a Class II director and
Xxxxxxx X. Xxxxx, III as a Class III director; the BHA Slate shall be an
individual designated by BHA, who may be any officer or director of BHA or
Omnicom or any other person designated by BHA if such person is approved by the
Company (such approval no to be unreasonably withheld or delayed) as a Class II
director and an individual designated by BHA, who may be any officer or director
of BHA or Omnicom or any other person designated by BHA if such person is
approved by the Company (such approval no to be unreasonably withheld or
delayed) as a Class III director; and the Independent Slate shall be Xxxxxx X.
Xxxxxxxxxx, Xx. as a Class I director, Xxxxxx X. Xxxxxxxxx, Xx. as a Class I
director and an individual designated by BHA (who shall have been approved by
the Company, such approval not to be unreasonably withheld or delayed) as a
Class I director;
(c) Each of ITC and BHA may change the ITC Slate and the BHA Slate,
respectively, by written notice to the Board of Directors of the Company not
later than the end of any fiscal year of the Company immediately preceding the
next annual meeting of shareholders at which such director to be replaced would
otherwise stand for election. ITC and BHA jointly may change any member of the
Independent Slate by written notice to the Board of Directors of the Company not
later than the end of any fiscal year of the Company immediately preceding the
next annual meeting of shareholders at which such director to be replaced would
otherwise stand for election.
(d) In the event of any termination, death, disability, removal or
resignation of any director or in the event that either ITC or BHA elects to
change a member of its slate and causes its designee to resign as a director (a
"Former Director"), such vacancy shall be filled as follows: (i) If the Former
Director is a member of the ITC Slate or the BHA Slate, then ITC or BHA, as the
case may be, shall nominate a person to replace the Former Director (a
"Replacement Director") in writing to the Board of Directors; and (ii) if the
Former Director is a member of the Independent Slate, then ITC and BHA jointly
shall agree on a Replacement Director and nominate such Replacement Director to
the Board of Directors. If the Board of Directors shall fail to appoint any such
Replacement Director selected as set forth above to fill the unexpired term of a
Former Director, then such vacancy on the Board of Directors of the Company
shall remain until the next annual meeting of shareholders at which time such
Replacement Director shall be elected to the Board of Directors as a member of
the ITC Slate, the BHA Slate or the Independent Slate, as the case may be.
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(e) ITC's right to designate the members of the ITC Slate and the
Independent Slate in Sections 3(b) and 3(d) will terminate on the date the
Restricted Group that includes ITC beneficially owns Outstanding Voting
Securities representing less than the lower of (i) 10% of the Voting Power of
all Outstanding Voting Securities or (ii) 50% of the Voting Power beneficially
owned by such Restricted Group on the date hereof. BHA's right to designate the
members of the BHA Slate and the Independent Slate in Sections 3(b) and 3(d)
will terminate on the date that Restricted Group that includes BHA beneficially
owns Outstanding Voting Securities representing less than the lower of (i) 10%
of the Voting Power of all Outstanding Voting Securities or (ii) 50% of the
Voting Power beneficially owned by such Restricted Group on the date hereof.
4. Miscellaneous.
(a) Notices.
(i) All notices or other communications which are required or
permitted hereunder shall be in writing and sufficient if delivered by hand, by
facsimile transmission, by courier or overnight carrier or by registered or
certified mail, postage prepaid to the parties as follows:
(A) if to the Company, to XxxxXxxxxx.XXX, Inc., 000 Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, (000) 000-0000, Attention: Chief
Executive Officer, or at such other address as it may have furnished in writing
to the parties;
(B) if to the Shareholders, at the addresses listed on
Schedule I hereto, or at such other addresses as may have been furnished the
Company in writing.
(ii) Any notice shall be deemed to have been delivered as of the
date so delivered.
(b) Reproduction of Documents. This Agreement and all documents relating
thereto, including, without limitation, any consents, waivers and modifications
which may hereafter be executed may be reproduced by the parties by any
photographic, photostatic, microfilm, microcard, miniature photographic or other
similar process and the parties may destroy any original document so reproduced.
The parties hereto agree and stipulate that any such reproduction shall be
admissible in evidence as the original itself in any judicial or administrative
proceeding (whether or not the original is in existence and whether or not such
reproduction was made in the regular course of business) and that any
enlargement, facsimile or further reproduction of such reproduction shall
likewise be admissible in evidence.
(c) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties.
(d) Entire Agreement; Amendment and Waiver. This Agreement constitutes the
entire understanding of the parties hereto and supersedes all prior
understandings
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among such parties with respect to the subject matter hereof. This Agreement may
be amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of the parties.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
(f) Remedies. Each party, in addition to being entitled to exercise all
rights granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. Each party agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(h) Severability. In the event that any one or more of the provisions
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 in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby, it being intended and understood that all of the rights and privileges
of each party shall be enforceable to the fullest extent permitted by law.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
XXXXXXXXXX.XXX, INC.
By: /s/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Chief Financial Officer
OMNICOM GROUP INC.
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
XXXXXXX XXXXX GROUP INC.
By: /s/ XXXXXX X. XXXXXXXX
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Authorized Officer
ITC HOLDING COMPANY, INC.
By: /s/ XXXXXXXXX XXXXXXXX
---------------------------------
Name: Xxxxxxxxx Xxxxxxxx
Title: Senior Vice President
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