Exhibit (b)(7)
SHAREHOLDERS AGREEMENT
AMONG
ENTERO B.V.
AND
VEDIOR HOLDING B.V.
CONTENTS
Clause 1 Definitions
Clause 2 General
Clause 3 Permitted transfers of shares
Clause 4 Prohibited transfers of shares
Clause 5 Company Equity
Clause 6 Shareholder voting deadlock
Clause 7 No binding effect
Clause 8 Governing law; competent court
Clause 9 Notices
Clause 10 Duration and termination
Clause 11 Assignment
Clause 12 Confidentiality
SHAREHOLDERS AGREEMENT
▇▇▇▇▇▇▇ B.V.
THIS SHAREHOLDERS AGREEMENT is made and entered into on this day of May,
2000, by:
1. ENTERO B.V., a private company with limited liability under the laws of
the Netherlands, with corporate seat in Amsterdam, and having its
address at 1102 MG Amsterdam, the Netherlands, Bijlmerplein 888 HG
04.06, ("ENTERO").
and
2. VEDIOR HOLDING B.V., a private company with limited liability under the
laws of the Netherlands, with corporate seat in Amsterdam, and having
its address at 1076 DC Amsterdam, the Netherlands, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇,
("▇▇▇▇").
WHEREAS:
(i) VHBV and Entero are each a shareholder in ▇▇▇▇▇▇▇ B.V., a private
company with limited liability under the laws of the Netherlands, with
corporate seat in Amsterdam, the Netherlands and having its address at
PRESENT: 1012 MG Amstetrdam, Bijlmerplein 888 HG 04.06 (the "COMPANY");
(ii) VHBV is a wholly owned subsidiary of VEDIOR N.V., a limited liability
company under the laws of the Netherlands, with its corporate seat in
Amsterdam, the Netherlands and having its address at 1076 DC Amsterdam,
the Netherlands, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ("▇▇▇") and Entero is a wholly owned
subsidiary of ING BANK CORPORATE INVESTMENTS B.V., a private company
with limited liability under the laws of the Netherlands, with its
corporate seat in Amsterdam, the Netherlands and having its address at
1102 MG Amsterdam, the Netherlands, Bijlmerplein 888 ("CI"), which in
turn is a direct subsidiary of ING BANK N.V., a limited liability
company under the laws of the Netherlands, with its corporate seat in
Amsterdam, the Netherlands and having its address at 1077 ZZ Amsterdam,
the ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇");
(iii) CI, VNV and VHBV have entered into an agreement in principle on April
13, 2000, as amended on the date hereof (the "AGREEMENT IN PRINCIPLE"),
pursuant whereto CI has agreed to cause Entero to provide financing in
the form of equity and loans to the Company and Platform Purchaser,
Inc., a corporation organized and existing under the laws of the state
of Georgia, United States of America, ("PLATFORM"), in order to enable
Platform to acquire shares of common stock in ACSYS, INC., a
corporation organized and existing under the laws of the state of
Georgia, United States of America ("ACSYS") pursuant to a tender offer
dated April 27, 2000 (the "OFFER") and upon the Offer having been
consumated, pursuant to the merger of Platform into Acsys in accordance
with and subject to the terms and conditions of an agreement and plan
of merger, dated as of April 16, 2000, to which they each are a party;
(iv) VHBV holds xx shares of common stock in the Company and Entero holds xx
shares of cumulative preferred stock in the Company, each share of
common stock and each share of cumulative preferred stock with a par
value of [EURO]1 and entitling its holder to the rights, benefits and
obligations under applicable Dutch law and the Articles of Association;
(v) Article 21.1 of the Articles of Association provides that each share of
common stock and each share of cumulative preferred stock in the
Company, entitles its holder to one vote in the Company's general
meeting of shareholders, provided that each shareholder shall have a
maximum of 1,000 votes.
(vi) the Parties wish to enter into this Shareholders Agreement in order to
agree on certain matters regarding (a) the transfer of shares in the
capital of the Company and (b) the voting of their shares in the
Company's general meeting of shareholders with respect to certain
subjects.
IN CONSIDERATION WHEREOF, THE PARTIES AGREE AS FOLLOWS
CLAUSE 1
DEFINITIONS
Capitalised terms used herein and not otherwise defined in this Shareholders
Agreement, shall have the meaning ascribed thereto below, while references to
the singular shall include the plural and vice versa.
AFFILIATED COMPANY
With respect to a Party, a company, other legal entity, partnership or other
enterprise in which that Party or any of its Affiliated Companies has a direct
or indirect interest and over whose operating and financial policies it
exercises a dominant or decisive influence, as well as any company, other legal
entity, partnership or other enterprise holding a direct or indirect decisive
influence in that Party, and any other company, other legal entity, partnership
or other enterprise in which it holds direct or indirect decisive influence or
over which it exercises such influence.
ARTICLES OF ASSOCIATION
The Company's articles of association last amended on the date hereof by deed of
amendment executed before [**] notaris at Amsterdam, as the same may be amended
from time to time hereafter by a valid resolution by the Company's general
meeting of shareholders with due observance of all other requirements of
applicable Dutch law.
BUSINESS DAY
A day on which commercial banks are generally open for business to the public in
the Netherlands.
PARTIES
Entero and VHBV and their permitted assigns, transferees and successors
hereunder.
FINANCING AGREEMENTS
The US$ 40 million exchangeable loan agreement between Entero, ▇▇▇▇▇▇▇ and VNV,
the US$ 40 million loan agreement between ▇▇▇▇▇▇▇ and Platform and the share
exchange agreement between Entero and VNV, all dated the date hereof.
SHAREHOLDERS AGREEMENT
This agreement together with all schedules and attachments hereto, as the same
shall read at any time and from time to time.
CLAUSE 2
GENERAL
2.1 Each of the Parties shall, whenever acting in its capacity of
shareholder of the Company, and as long as the Financing Agreements,
or any one of them, are in force, act in accordance with the
provisions of the Financing Agreements, including but not limited to,
when voting its respective shares in the share capital of the Company
and when exercising any right to which it is or shall at any time and
from time to time be entitled by virtue thereof and pursuant thereto,
the Articles of Association, Dutch law and applicable regulatory
provisions, or any other applicable law or regulatory provisions.
2.2. In the event of inconsistencies between this Shareholders Agreement
and the Articles of Association, this Shareholders Agreement shall
prevail, to the extent permitted by Dutch law.
2.3. Each of the Parties shall refrain from taking any actions which could
cause the Company to act or be in breach of any of its obligations
under or pursuant to the Financing Agreements, to which it is a
party.
CLAUSE 3
PERMITTED TRANSFERS OF SHARES
3.1. Each of the Parties shall at any time and from time to time during the
term of this Shareholders Agreement be permitted to transfer all (but
only all) of its shares in the Company to one of its Affiliated
Companies, provided however that such Affiliated Company shall (i) at
the occasion of such transfer become a party to this Shareholders
Agreement and (ii) such Affiliated Company shall be able to comply with
and perform all of its obligations hereunder, (the burden of proof of
which vests in the transferring Party). In such event the transferring
Party shall notify the other Party of its wish in accordance with
clause 9 of this Shareholders Agreement, observing at least a notice
period of ten (10) Business Days.
3.2 Provided a proposed transfer of shares in the Company by a Party shall
be effected in accordance with clause 3.1, the other Party shall be
under the obligation towards the Party which has notified such other
Party pursuant to and in accordance with clause 3.1, to vote its shares
in the Company in the general meeting of shareholders of the Company
which must be held pursuant to article 14 of Articles of Association,
in favour of the proposal to approve such transfer.
CLAUSE 4
PROHIBITED TRANSFERS OF SHARES
Neither Party shall at any time during the existence of this Shareholders
Agreement transfer one or more of its shares in the capital of the Company to a
third party which is not an Affiliated Party or to more than one of its
Affiliated Companies, nor shall it cooperate in any way in any change of
ownership over its shares in a manner other than transfer.
CLAUSE 5
COMPANY EQUITY
As long as this Shareholders Agreement is in force, the Parties shall vote their
respective shares in the share capital of the Company in such a way that in any
year in which the profits made by the Company are in excess of the amounts
(which must be), paid on the cumulative preferred shares in accordance with
article 25.2 of the Articles of Association, such excess amounts shall be
carried to reserves and that subsequently no payments shall be declared out of
such reserves.
CLAUSE 6
SHAREHOLDER VOTING DEADLOCK
6.1. In the event of a deadlock with respect to any vote taken in a general
meeting of shareholders of the Company, such deadlock shall constitute
a dispute between the shareholders. Such dispute shall be finally
settled in accordance with the Arbitration Rules of the Netherlands
Arbitration Institute ("Netherlands Arbitrage Instituut").
6.2. The arbitral tribunal shall consist of three members. Each Party shall
appoint one member within ten (10) Business Days after the date of the
general meeting of shareholders referred to in clause 6.1. The third
member shall be jointly appointed by the members so appointed. In the
event a Party has not appointed its member in time, such member shall
be appointed with due observance of and in accordance with article 14
of the Arbitration Rules of the Netherlands Arbitration Institute. The
place of arbitration will be Amsterdam, the Netherlands.
CLAUSE 7
NO BINDING EFFECT
7.1. If part of this Shareholders Agreement is or becomes invalid or
non-binding, the Parties shall remain bound to the remaining part. The
Parties shall replace the invalid or non-binding part by provisions
which are valid and binding and the legal effect of which, given the
contents and purpose of this Shareholders Agreement, is, to the
greatest extent possible, similar to that of the invalid or non-binding
part.
7.2. This Shareholders Agreement may not be rescinded in whole or in part.
ARTICLE 8
GOVERNING LAW; COMPETENT COURT
8.1. This Shareholders Agreement shall be governed exclusively by Dutch law.
8.2 Disputes arising in connection with this Shareholders Agreement,
including disputes concerning the existence and validity thereof, shall
be resolved exclusively by arbitration, mutatis mutandis with due
observance of clause 6 hereof. It is expressly understood that the
foregoing will not preclude the parties from instituting a summary
proceeding ("kort geding").
8.3 Clauses 8.1 and 8.2 shall also apply to disputes arising in connection
with agreements which are made pursuant to this Shareholders Agreement,
unless the relevant agreement expressly provides otherwise.
CLAUSE 9
NOTICES
9.1. Notices and other statements in connection with this Shareholders
Agreement may only be given by way of a registered letter with
acknowledgement of receipt, and at the recipient's place of residence as
most recently nominated in accordance with Clauses 9.2 and 9.3. A
statement which does not comply with this subclause shall have no effect,
except that writs may be served at a place of residence of the recipient
which is different from the nominated place of residence.
9.2. For all matters relating to this Shareholders Agreement, each party
nominates the address referred to below as its place of residence:
ENTERO
address: ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇ 04.06
PO box: 1800
postal code and town: ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
country: The Netherlands
for the attention of: J.P.A.M. Vogels
fax: 020 652 39 73
VHBV
address: Jachthavenweg 112
PO box: 75173
postal code and town: 1070 AN Amsterdam
country: The Netherlands
for the attention of: chairman of the board of management
fax: **
9.3. A Party may nominate a different place of residence from that referred to
in Clause 9.2 by notifying the other Party of that new place. Nominating
a place of residence outside the Netherlands shall have no effect if the
nominating Party does not simultaneously nominate a place of residence in
the Netherlands at which writs may be served.
9.4. Clauses 9.1 to 9.3 (inclusive) shall also apply to notices given in
connection with agreements which are made pursuant to this Shareholders
Agreement, unless the relevant agreement expressly provides otherwise.
CLAUSE 10
DURATION AND TERMINATION
The Shareholders Agreement has been entered into for the period so long as
Entero and VHBV or their permitted successors are a shareholder of the Company
and so long as the Financing Documents, or any one of them, continue(s) to
exist.
CLAUSE 11
ASSIGNMENT
11.1. Neither Party may assign, transfer or otherwise alienate its rights and
obligations under this Shareholders Agreement other than in accordance
with the provisions of this Shareholders Agreement.
11.2. The Party wishing to assign, transfer or otherwise alienate its rights
and obligations under this Shareholders Agreement to an Affiliated
Company, undertakes with the other Parties to cause such Affiliated
Company to become a party to this Shareholders Agreement.
11.3. Neither Party may assign, transfer or otherwise alienate its rights and
obligations under this Shareholders Agreement, in the event the same
would constitute a default by the Company under any Financing Agreement
to which the Company is a party.
CLAUSE 12
CONFIDENTIALITY
12.1. Each Party undertakes to the other Party not to disclose the provisions
of this Shareholders Agreement unless with the express written consent of
the other Party.
12.2. Each Party undertakes not to use or disclose any information - except for
information which can be obtained from publicly available sources -
relating to the other Party the Company and their respective Affiliated
Parties or their activities or products, including information concerning
suppliers and customers and other relationships, ("CONFIDENTIAL
INFORMATION"), unless the performance or enforcement of this agreement so
requires.
12.3. Each Party undertakes to disclose Confidential Information to a third
party under Clause 12.2 only if the third party has committed itself in
writing to use or disclose the Confidential Information only in
accordance with this clause. Each Party shall store Confidential
Information, or procure its storage, in a prudent manner, and shall
ensure that no third party obtains knowledge of it in violation of this
clause.
12.4. This clause shall not apply to the extent that the Party in question is
under an obligation to use or disclose information pursuant to the law,
arbitral decision a binding decision of a court or another government
authority or any stock exchange. Where possible, however, the disclosing
Party shall consult with the other Party prior to disclosure about the
form and contents of the disclosure.
12.5. If the Shareholders Agreement ends the obligations of each Party under
this clause shall, however, continue to exist.
IN EVIDENCE WHEREOF: this agreement was signed in two counterparts, together
constituting one and the same document on the date first written above.
VEDIOR HOLDING B.V. ENTERO B.V.
By: ________________ By: ________________
Name: ________________ Name: ________________
Title: ________________ Title: ________________
By: ________________
Name: ________________
Title: ________________
