EXHIBIT 02.5
--------------------------------------------------------------------------------
FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇ FAMILY INVESTORS, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, JOINT TENANTS
▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ CHARITABLE REMAINDER UNITRUST
AND
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
--------------------------------------------------------------------------------
FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇ FAMILY INVESTORS, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, JOINT TENANTS
▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ CHARITABLE REMAINDER UNITRUST
AND
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
TABLE OF CONTENTS
DESCRIPTION PAGE
----------- ----
1. Definitions 1
2. First Right of Offer 3
3. Purchase Option of Corporation 4
4. Purchase Option of Remaining Shareholders 4
5. Purchase Price 4
6. Payment of Purchase Price 4
7. Promissory Note and Guarantee 5
8. Transfer of Shares to Purchaser 6
9. Endorsement of Stock 8
10. Covenants of the Corporation 8
11. Securities Law Compliance 8
12. Stock Splits, Dividends, Etc. 9
FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
BY AND BETWEEN
▇▇▇▇▇▇▇ FAMILY INVESTORS, LLC
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, JOINT TENANTS
▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ CHARITABLE REMAINDER UNITRUST
AND
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC.
DESCRIPTION PAGE
----------- ----
13. Rights, Obligations and Remedies 9
14. Notices, Offers, Acceptances and Rejections 9
15. Benefit 10
16. Entire Agreement; Amendment, Modification and Termination 10
17. Execution in Counterparts 11
18. Governing Law 11
19. Miscellaneous 11
(a) Indulgences, Etc.
(b) Provisions Separable
(c) Paragraph Headings
(d) Gender, Etc.
(e) Number of Days
FIRST AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
FIRST AMENDED AND RESTATED SHAREHOLDERS AGREEMENT made as of this
31/st/ day of July 2002 by and between ▇▇▇▇▇▇▇ Family Investors, LLC ("▇▇▇▇▇▇▇")
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, husband and wife as joint tenants
("▇▇▇▇▇▇"), ▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇ Charitable Remainder Unitrust ("Unitrust")
(▇▇▇▇▇▇▇, ▇▇▇▇▇▇ and Unitrust are hereinafter referred to individually as
"Shareholder" and jointly as "Shareholders") and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc., a
Delaware corporation (hereinafter referred to as "Corporation").
W I T N E S S E T H :
WHEREAS, Shareholders are the owners of the majority of the outstanding
stock of Corporation; and
WHEREAS, Shareholders desire to promote their mutual interests and the
interests of Corporation by imposing certain restrictions and obligations on
themselves, on Corporation and on their shares of stock of Corporation; and
WHEREAS, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("▇▇▇▇") and
Corporation entered into a Shareholders Agreement dated the 11/th/ day of August
1988, which is to be superseded by this First Amended and Restated Shareholders
Agreement.
NOW, THEREFORE, the parties intending to be legally bound, agree as
follows:
1. Definitions. The following terms as used in this Agreement shall
be deemed to have the following definitions:
1.01 "Act" - The Securities Act of 1933.
1.02 "Board of Directors" - The Board of Directors of Corporation.
1.03 "Certificates" - The stock certificates representing Shares.
1.04 "Escrow Agent" - The attorney, bank or trust company
designated to act as an escrow agent in accordance with this Agreement.
1.05 "Offer" - An offer to sell Shares made in accordance with
Paragraph 2 of this Agreement.
1.06 "Offering Shareholder" - A Shareholder or his/her or its
personal representative who offers to sell his/her or its Shares in accordance
with Paragraph 2 of this Agreement.
1.07 "Permitted Transferee" - The spouse and issue of ▇▇▇▇▇▇▇
or ▇▇▇▇ or a trust established for the benefit of such spouse or issue, and a
private foundation formed by ▇▇▇▇▇▇▇ or ▇▇▇▇ which qualifies as charitable
organization as defined in Section 501(c)(3) of the Internal Revenue Code of
1986 and a partnership or limited liability company controlled by ▇▇▇▇▇▇▇ or
▇▇▇▇.
5
1.08 "Promissory Note" - The promissory note to be executed by
Purchaser in accordance with this Agreement.
1.09 "Purchase Price" - The purchase price set forth in Paragraph 5
of this Agreement.
1.10 "Purchaser" - The Corporation or a Shareholder who purchases
Shares pursuant to the terms of this Agreement.
1.11 "Rejected Offer" - An offer made in accordance with Paragraph
2 of this Agreement which is rejected by the Corporation and the Remaining
Shareholder in accordance with Paragraph 3 and 4 of this Agreement.
1.12 "Remaining Shareholders" - The Shareholders, other than
the Offering Shareholder, at the time an offer to sell Shares is made in
accordance with Paragraph 2 of this Agreement.
1.13 "Seller" - A Shareholder who sells Shares in accordance with
the terms of this Agreement.
1.14 "Shares" - Shares of outstanding stock of Corporation.
2. First Right of Offer. A Shareholder or a Permitted Transferee who
wishes to sell, give, contribute, assign, transfer, encumber or otherwise in any
manner whatsoever dispose of any of the Shares which he/she or it now owns or
hereafter at any time shall acquire, may only do so after first offering all
such Shares for sale to Corporation and then to the Remaining Shareholders upon
the terms and conditions set forth herein. Every such Offer shall be made in
writing and shall state the number of the Shares which the Offering Shareholder
desires to sell, give, contribute, assign, transfer, encumber or otherwise
dispose. A written copy of such Offer shall be given simultaneously to
Corporation and to the Remaining Shareholders. Only in the event that both
Corporation and the Remaining Shareholders reject the Offer may the Offering
Shareholder, and then only during the period of ninety (90) days following the
latter of such rejections, sell, give, contribute, assign, transfer, encumber or
otherwise in any manner whatsoever dispose of such Shares. The foregoing
provision shall not apply to an inter vivos gift or other transfer of Shares by
a Shareholder to a Permitted Transferee, provided such Permitted Transferee
agrees in writing to be bound by the terms of this Agreement to the same extent
as the Shareholders are bound hereby. An involuntary seizure of Shares owned by
a Shareholder shall be deemed to constitute an offer by such Shareholder to sell
his/her/its Shares.
3. Purchase Option of Corporation. Corporation shall have a period of
thirty (30) days after receipt by it of an Offer within which to accept or
reject such Offer. The Offering Shareholder, and any Permitted Transferee of the
Offering Shareholder, shall not participate in any way in the making of the
decision as the whether Corporation shall accept or reject such Offer. In order
to accept such Offer, Corporation must, in writing, unconditionally accept all
of the Shares so offered. Any attempted conditional or partial acceptance of the
Offer shall constitute a rejection. Failure on the part of Corporation to take
action within such period shall constitute a rejection of the Offer.
4. Purchase Option of Remaining Shareholders. Should Corporation
reject an Offer, the Remaining Shareholders shall have an additional period of
thirty (30) days within which to accept or reject such Offer. In order to
exercise its
6
or their option, the Remaining Shareholders must, in writing, accept all of the
Shares so offered. Any attempted conditional or partial acceptance of the Offer
shall constitute a rejection. Failure on the part of the Remaining Shareholders
to take action within the period specified shall constitute a rejection of the
Offer. In the event that more than one of the Remaining Shareholders wish to
exercise its or their option, they shall do so in proportion to their ownership
of Shares.
5. Purchase Price. The Purchase Price of all Shares either sold or
redeemed pursuant to this Agreement, shall be an amount equal to the mean of the
bid and asked price as quoted in the Washington Post or as otherwise quoted on
the NASD Bulletin Board, averaged over the forty (40) business days immediately
prior to the date on which the offer is first made.
6. Payment of Purchase Price.The Purchase Price determined under
Paragraph 5 of this Agreement shall be paid in sixty (60) equal monthly
payments, the first one of which shall be due on the first day of the second
month after the month in which the Offer is accepted.
7. Promissory Note and Guarantee.
A. Promissory Note Each Purchaser shall execute and deliver to the
Seller a separate Promissory Note in usual form for his/her or its Share of the
Purchase Price providing for payment in accordance with Paragraph 6 of this
Agreement. Each such Promissory Note shall be dated as of the date the Offer is
accepted and shall contain the following provisions:
(1) Interest shall be paid on the unpaid balance computed on a
daily basis at a rate equal to the prime rate in effect from time to time as
quoted in the Wall Street Journal, eastern edition;
(2) A fee of ten percent (10%) for collection shall be added to
the principal balance upon default;
(3) The full amount of accrued interest shall be paid with each
installment payment of principal;
(4) The entire unpaid principal balance and all accrued interest
shall, at the option of Seller, become due thirty (30) days after the giving of
written notice of default in the event such default is not cured within the said
thirty (30) days after the giving of such notice of default; provided, however,
Purchase shall only have the right to cure a payment default twice during any 12
month period; and
(e) Purchaser shall have the right at any time to prepay the
entire unpaid balance, or any part thereof without discount or penalty.
B. Guarantee In the event the Purchaser is ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ shall
guarantee the payment of the Promissory Note executed by ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇'
estate.
8. Transfer of Shares to Purchaser.
(a) Upon the receipt of a Promissory Note referred to in Paragraph
7, the Seller shall deposit the Certificates in escrow with the attorney-at-law,
bank or trust company designated by the Seller. The Certificates shall be duly
endorsed in blank for transfer and shall be accompanied by all documents
necessary to effect transfer. The Escrow Agent shall cause the ownership of the
Shares to be recorded in his/her or its name. So long as the Purchaser is not in
default in making any
7
payment due under the Promissory Note executed by such Purchaser, the Shares of
such Purchaser so held by the Escrow Agent may be voted only by such Purchaser
unless the Purchaser is the Corporation in which event such Shares shall either
be voted or treated as treasury shares as the Board of Directors shall determine
by appropriate resolution. Pending final payment of a Promissory Note, all
dividends on the Shares held in escrow to secure such Promissory Note shall be
received by the Escrow Agent and paid by him or it to the Seller and applied to
the last payment due under the Promissory Note. Simultaneously with final
payment of a Promissory Note, the Escrow Agent shall deliver to the Purchaser
who was the maker of such Promissory Note, duly endorsed for transfer, all such
Certificates and all other documents necessary to effectively transfer such
Shares. In the event that a Purchaser defaults in the payment of any installment
of principal or interest due under a Promissory Note, and such default continues
for a period in excess of thirty (30) days, the Escrow Agent shall, ten (10)
days after the receipt of a written certification of default from the holder of
the Promissory Note together with evidence that a copy of such certification has
been given to the maker of the Promissory Note, deliver to the Seller or his
assignee the Certificate being held by the Escrow Agent to secure the defaulted
Promissory Note. Such Certificate shall be duly endorsed for transfer and
thereafter the Purchaser shall have no rights whatsoever in such Shares. In such
event the Seller may, subject to the limitations of the District of Columbia
Uniform Commercial Code, elect to:
(i) Retain the Shares being held as security for the defaulted
Promissory Note in full satisfaction of the then unpaid balance of the said
defaulted Promissory Note; or
(ii) Cause said Shares to be sold at public or private sale and, if
the proceeds of such sale are less than the total of all amounts due under the
said defaulted Promissory Note, enforce immediate payment of such deficiency by
the maker of such Promissory Note.
(b) Any holder of a Promissory Note shall be entitled to purchase any
part or all of the Shares being sold at such public or private sale, provided
that, if a holder desires to purchase such Shares at a private sale, such holder
shall notify the maker of such defaulted Promissory Note at least thirty (30)
days prior to such sale, setting forth the time, place, minimum price to be paid
and the terms of payment, and if the maker fails to purchase, or obtain a third
party to purchase at such sale, such sale shall be final and shall be deemed to
have been conducted in a commercially reasonable manner.
(c) The Escrow Agent shall be entitled to rely upon the written
certification of the holder of the Promissory Note to the effect that the maker
thereof has defaulted; provided, however, if the maker of the Promissory Note
gives notice to the Escrow Agent that they or it disputes the existence of a
default, Escrow Agent shall retain the Certificates until such dispute is
adjudicated or settled.
(d) Escrow Agent shall not be liable for any actions or failures to act
hereunder, except in the event of fraud or willful misconduct. The Seller and
the Purchaser shall pay in equal proportion all fees and costs of the Escrow
Agent.
8
9. Endorsement of Stock. All Certificates owned by the Shareholders shall
have endorsed thereon the following statement:
"The shares of stock represented by this certificate are held subject
to the terms and conditions of an Agreement dated as of the 31st day
of July, 2002 by and among the Corporation and certain of its
Shareholders, which Agreement contains provisions restricting the
Shareholder's right to transfer the shares of stock represented by
this certificate. A copy of the Agreement is on file at the office of
the Corporation."
All Certificates representing additional Shares of stock of Corporation
acquired by any of the Shareholders shall be similarly endorsed
10. Covenants of the Corporation. Corporation shall use its best efforts
to cause the legend specified in Paragraph 9 hereof to be placed on all
Certificates in respect of Shares which are subject to the provisions of this
Agreement and shall also institute a stop transfer order with the transfer agent
for such Shares. Corporation shall retain a copy of this Agreement and copies of
all amendments thereto which it receives on file at the office of Corporation.
Corporation shall have no liability as a result of its failure to perform its
obligations under this Paragraph 10, unless such failure is willful. In carrying
out its obligations hereunder, Corporation shall be entitled to rely
conclusively on any notice believed by Corporation to have been signed by the
Shareholders or their authorized representatives.
11. Securities Law Compliance. Corporation shall have no obligation to
issue Certificates in connection with any transfer of Shares unless satisfied
that there has been compliance with the requirements of the Securities Act of
1933 and applicable state securities laws and all rules and regulations
promulgated under the Securities Act of 1933 and such state securities laws.
12. Stock Splits, Dividends, Etc. Whenever a specific number of Shares or
the Purchase Price is to be computed hereunder such number or amount shall be
adjusted for subsequent stock splits, stock dividends or other capital
adjustments of the Corporation.
13. Rights, Obligations and Remedies. Shareholders agree that their rights
and obligations under, and the remedies to enforce, this Agreement are joint and
several and each Shareholder shall be completely free to enforce any or all of
the rights or obligations under this Agreement against the other Shareholder
with or without the concurrence or joinder of the other Shareholder or
Corporation. The Shares are unique, and recognizing that the remedy at law for
any breach or threatened breach by a Shareholder of the covenants and agreements
set froth in this Agreement would be inadequate and that any such beach or
threatened breach would cause such immediate and permanent damage as would be
irreparable and the exact amount of which would be impossible to ascertain, the
Shareholders agree that in the event of any breach or threatened breach of nay
such covenant or agreement, in addition to any and all other legal and equitable
remedies which may be available, any Shareholder may specifically enforce the
terms of this Agreement and may obtain temporary and/or permanent injunctive
relief without the necessity of proving actual damage by reason of any breach or
threatened breach hereof and, to the extent permissible under the
9
applicable statutes and rules of procedure, a temporary injunction may be
granted immediately upon the commencement of any such suit and without notice.
14. Notices, Offers, Acceptances and Rejections.
(a) Any notice required to be given, or Offer, acceptance or
rejection made pursuant to the provisions of this Agreement shall be given in
writing and sent by certified mail, postage prepaid, simultaneously to
Corporation at its principal office, and to all of the Shareholders, or their
personal representatives, as the case may be, at their respective last known
residences.
(b) Whenever a period of time is to be computed from the date of
receipt of an item of certified mail, such period shall be computed from the
fifth (5th) day following the date of mailing if delivery of the certified mail
item is refused by the party to who it was directed.
(c) Whenever a notice, Offer, acceptance or rejection or a copy is
required to be sent to more than one person, all such communications should,
whenever reasonably possible, be mailed within a single twenty-four (24) hour
period.
15. Benefit. Except as herein otherwise provided, this Agreement shall
inure to the benefit of and shall be binding upon the parties hereto and their
personal representatives, heirs, successors and assigns.
16. Entire Agreement; Amendment, Modification and Termination.
(a) The Shareholders Agreement dated the 11/th/ day of August 1988 by
and between ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and Corporation is hereby made
null and void and superseded by this First Amended and Restated Shareholders
Agreement. Corporation shall authorize its Transfer Agent to remove all
endorsements currently on outstanding Certificates which refer to said August
11, 1988 agreement.
(b) This Agreement contains the entire understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein contained. The
express terms hereof control and supersede any course of performance and/or
usage inconsistent with any of the terms hereof. This Agreement may be amended,
modified or terminated at any time or times by the unanimous agreement in
writing of Corporation and the Shareholders, provided, however, no such
amendment, modification or termination, shall affect the right of any person or
entity to receive, or the obligation of any person or entity to pay, on the
terms and conditions of this Agreement, the Purchase Price for Shares sold
pursuant to this Agreement prior to such amendment, modification or termination,
or the right or obligation of any person or entity to sell or purchase Shares,
on the terms and conditions of this Agreement, if the offer giving rise to such
right or obligation to sell or purchase Shares has in fact been made prior to
such amendment, modification or termination.
17. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one
10
and the same instrument. This Agreement shall become binding when one or more
counterparts hereof, individually or taken together, shall bear the signatures
of all of the parties reflected hereon as the signatories.
18. Governing Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Delaware.
19. Miscellaneous.
(a) Indulgences, Etc. Neither the failure nor any delay on the part
of any party to exercise any right, remedy, power or privilege under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other or further
exercise of the same or of any right, remedy, power or privilege with respect to
any concurrence be construed as a waiver of such right, remedy, power or
privilege with respect to any other occurrence.
(b) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(c) Paragraph Headings. The paragraph headings in this Agreement are
for convenience only; they form no part of this Agreement and shall not affect
its interpretation.
(d) Gender, Etc. Words used herein, regardless of the number and
gender specifically used, shall be deemed and construed to include any other
number, singular or plural, and any other gender, masculine, feminine or neuter,
as the context indicates is appropriate.
(e) Counterparts. This Agreement may be executed in counterparts and
when each party has executed a counterpart this Agreement shall be deemed to be
in full force and effect and binding upon all parties.
(f) Number of Days. In computing the number of days for purposes of
this Agreement, all days shall be counted, including Saturdays, Sundays and
holidays; provided, however, that if the final day of any time period falls on a
Saturday, Sunday or holiday on which Federal banks are or may elect to be
closed, then the final day shall be deemed to be the next day which is not a
Saturday, Sunday or such holiday.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day
and year first above written.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Inc. ▇▇▇▇▇▇▇ Family Investors, LLC
By:_________________________ By: ___________________________
Manager
Attest:
____________________________ _______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Joint Tenant
____________________________ _______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Joint Tenant
▇▇▇▇▇▇ & ▇▇▇▇▇
Charitable Remainder Unitrust
By:____________________________
12
