STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT, dated as of August 13, 1997, is made and
entered into by COMFORCE Corporation, a Delaware corporation ("Parent"),
COMFORCE Columbus, Inc., a New York corporation and wholly-owned subsidiary of
Parent ("Sub"), and the other parties signatory hereto (each a "Stockholder",
and collectively, the "Stockholders").
WITNESSETH:
WHEREAS, concurrently herewith, Parent, Sub and Uniforce Services, Inc., a
New York corporation (the "Company"), are entering into an Agreement and Plan of
Merger (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"; capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement), pursuant to which
Sub will be merged with and into the Company (the "Merger"); and
WHEREAS, in furtherance of the Merger, Parent and the Company desire that
Sub commence a tender offer to purchase all outstanding shares of Company Common
Stock (as defined in Section 1), including all of the Shares (as defined in
Section 2) owned beneficially by the Stockholders; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholders agree, and the Stockholders
have agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements contained herein, the parties hereto,
intending to be legally bound, hereby agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended [the "Exchange Act"]), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned
by all other Persons with whom such Person would constitute a "group" as
within the meanings of Section 13(d)(3) of the Exchange Act.
(b) "Company Common Stock" shall mean at any time the common
stock, $.01 par value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
2. Tender of Shares.
(a) Each Stockholder hereby agrees to validly tender (and not to
withdraw) pursuant to and in accordance with the terms of the Offer, not
later than the fifth business day after commencement of the Offer pursuant
to Section 1.1 of the Merger Agreement and Rule 14d-2 under the Exchange
Act, the number of shares of Company Common Stock set forth opposite such
Stockholder's name on Schedule I hereto (the "Existing Shares", and
together with any shares of Company Common Stock acquired by such
Stockholder after the date hereof and prior to the termination of this
Agreement whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by
means of purchase, dividend, distribution or otherwise, the "Shares"),
Beneficially Owned by him or it. Each Stockholder hereby acknowledges and
agrees that the Parent's obligation to accept for payment and pay for
Shares in the Offer, including the Shares Beneficially Owned by such
Stockholder, is subject to the terms and conditions of the Offer.
(b) The transfer by each Stockholder of his or its Shares to Sub in
the Offer shall pass to and unconditionally vest in Sub good and valid
title to the number of Shares set forth opposite such Stockholder's name on
Schedule I hereto, free and clear of all claims, liens, restrictions,
security interests, pledges, limitations and encumbrances whatsoever.
(c) Each Stockholder hereby agrees to permit Parent and Sub to publish
and disclose in the Offer Documents and, if Company Stockholder Approval is
required under applicable law, the Proxy Statement (including all documents
and schedules filed with the SEC) his or its identity and ownership of
Company Common Stock and the nature of his or its commitments, arrangements
and understandings under this Agreement.
3. Provisions Concerning Company Common Stock.
(a) Each Stockholder hereby agrees that during the period commencing
on the date hereof and continuing until the first to occur of the Effective
Time or termination of the Merger Agreement in accordance with its terms,
at any meeting of the holders of Company Common Stock, however called, or
in connection with any written consent of the holders of Company Common
Stock, such Stockholder shall vote (or cause to be voted) the Shares hold
of record or Beneficially Owned by such Stockholder, whether issued,
heretofore owned or hereafter acquired, (i) in favor of the merger, the
execution and delivery by the Company of the Merger Agreement and the
approval of the terms thereof and each of the other actions contemplated by
the Merger Agreement and this Agreement and any actions required in
furtherance thereof and
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hereof; (ii) against any action or agreement that would result in a breach
in any respect of any covenant, representation or warranty or any other
obligation or agreement of the Company under the Merger Agreement or this
Agreement; and (iii) except as otherwise agreed to in writing in advance by
Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its Subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its Subsidiaries,
or a reorganization, recapitalization, dissolution or liquidation of the
Company or its Subsidiaries; (C) (1) any change in a majority of the
persons who constitute the board of directors of the Company (2) any change
in the present capitalization of the Company or any amendment of the
Company's Certificate of Incorporation or By-laws); (3) any other material
change in the Company's corporate structure or business; or (4) any other
action which, in the case of each of the matters referred to in clauses C
(1), (2), (3) or (4), is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or materially adversely affect the
Offer or the Merger and the transactions contemplated by this Agreement and
the Merger Agreement. Such Stockholder shall not enter into any agreement
or understanding with any person or entity the effect of which would be
inconsistent or violative of the provisions and agreements contained in
this Section 3.
(b) Each Stockholder hereby grants to Parent a proxy to vote the
Shares of such Stockholder as indicated in Section 3(a). Each Stockholder
intends such proxy to be irrevocable and coupled with an interest and will
take such further action or execute such other instruments as may be
necessary to effectuate the intent of this proxy and hereby revokes any
proxy previously granted by Stockholder with respect to such Shares.
4. Other Covenants, Representations and Warranties. Each Stockholder hereby
represents and warrants to Parent as follows:
(a) Ownership of Shares. Such Stockholder is either (i) the record and
Beneficial Owner of, or (ii) the Beneficial Owner but not the record holder
of, the number of Shares set forth opposite such Stockholder's name on
Schedule I hereto. On the date hereof, the Existing Shares set forth
opposite such Stockholder's name on Schedule I hereto constitute all of the
Shares owned of record or Beneficially Owned by such Stockholder. Such
Stockholder has sole voting power and sole power to issue instructions with
respect to the matters set forth in Sections 2 and 3 hereof, sole power of
disposition, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Shares set
forth opposite such Stockholder's name on Schedule I hereto, with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. Such Stockholder has the legal capacity,
power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and performance
of this Agreement by such Stockholder will
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not violate any other agreement to which such Stockholder is a party
including, without limitation, any voting agreement, stockholders agreement
or voting trust. This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and binding agreement
of such Stockholder, enforceable against such Stockholder in accordance
with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which such Stockholder is
trustee whose consent is required for the execution and delivery of this
Agreement or the consummation by such stockholder of the transactions
contemplated hereby. If such Stockholder is married and such Stockholder's
Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Stockholder's spouse, enforceable against such person in
accordance with its terms.
(c) No Conflicts. Except for (i) filings under the HSR Act, if
applicable, (A) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for
the execution of this Agreement by such Stockholder and the consummation by
such Stockholder of the transactions contemplated hereby and (B) none of
the execution and delivery of this Agreement by such Stockholder, the
consummation by such Stockholder of the transactions contemplated hereby or
compliance by such Stockholder with any of the provisions hereof shall (1)
conflict with or result in any breach of any applicable organization
documents applicable to such Stockholder, (2) result in a violation or
breach of, or constitute (with or without notice or lapse of time or both)
a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of the
terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which such Stockholder is a
party or by which such Stockholder or any of such Stockholder's properties
or assets may be bound, or (3) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to such Stockholder
or any of such Stockholder's properties or assets.
(d) No Encumbrances. Except as required by Section 2 and for the proxy
granted under Section 3(b), such Stockholder's Shares and the certificates
representing such Shares are now, and at all times during the term hereof
will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever.
(e) No Finder's Fees. No broker, investment banker, financial adviser
or other person is entitled to any broker's, finder's, financial adviser's
or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of such
Stockholder.
(f) No Solicitation. No Stockholder shall, in his or its capacity as
such, directly or indirectly, solicit (including by way of furnishing
information) or respond to any
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inquiries or the making of any proposal by any Potential Acquirer with
respect to the Company that constitutes a proposed Acquisition Transaction.
If any Stockholder receives any such inquiry or proposal, then such
Stockholder shall promptly inform Parent of the terms and conditions, if
any, of such inquiry or proposal and the identity of the person making such
proposal. Each Stockholder will immediately cease and cause to be
terminated any existing activities, discussions or negotiations with any
parties conducted heretofore with respect to any of the foregoing.
(g) Restrictions on Transfer, Proxies and Non-Interference. Except as
required by Section 2 or Section 3(b), no Stockholder shall, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of such Stockholder's Shares or any interest
therein; (ii) grant any proxies or powers of attorney, deposit any Shares
into a voting trust or enter into a voting agreement with respect to any
Shares; or (iii) take any action that would make any representation or
warranty of such Stockholder contained herein untrue or incorrect or have
the effect of preventing or disabling such Stockholder from performing such
Stockholder's obligations under this Agreement.
(h) Waiver of Appraisal Rights. Each Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(i) Reliance by Parent. Such Stockholder understands and acknowledges
that Parent and Sub are entering into the Merger Agreement in reliance upon
such Stockholder's execution and delivery of this Agreement.
(j) Further Assurances. From time to time, at the other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further action as
may be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this
Agreement.
5. Stop Transfer. Each Stockholder agrees with, and covenants to, Parent
that such Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Stockholder's Shares, unless such transfer is made in
compliance with this Agreement (including the provisions of Section 2 hereof).
In the event of a stock dividend or distribution, or any change in the Company
Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
may be changed or exchange.
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6. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
termination of the Merger Agreement in accordance with its terms.
7. Stockholder Capacity. No person executing this Agreement who is or
becomes during the term hereof a director of the Company makes any agreement or
understanding herein in his or her capacity as such director. Each Stockholder
signs solely in his or her capacity as the record and beneficial owner ow, or
the trustee of a trust whose beneficiaries are the beneficial owners of, such
Stockholder's Shares.
8. Confidentiality. The Stockholders recognize that successful consummation
of the transactions contemplated by this Agreement may be dependent upon
confidentiality with respect to the matters referred to herein. In this
connection, pending public disclosure thereof, each Stockholder hereby agrees
not to disclose or discuss such matters with anyone not a party to this
Agreement (other than such Stockholder's counsel and advisors, if any) without
the prior written consent of Parent, except for filings required pursuant to the
Exchange Act and the rules and regulations thereunder or disclosures such
Stockholder's counsel advises are necessary in order to fulfill such
Stockholder's obligations imposed by law, in which event such Stockholder shall
give notice of such disclosure to Parent as promptly as practicable so as to
enable Parent to seek a protective order from a court of competent jurisdiction
with respect thereto.
9. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(b) Certain Events. Each Stockholder agrees that this Agreement and
the obligations hereunder shall attach to such Stockholder's Shares and
shall be binding upon any person or entity to which legal or beneficial
ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, such Stockholder's heirs,
guardians, administrators or successors. Notwithstanding any transfer of
Shares, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of
law or otherwise without the prior written consent of the other party,
provided that Parent may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent, but no such assignment shall relieve Parent of its obligations
hereunder if such assignee does not perform such obligations.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or
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more Stockholders, except upon the execution and delivery of a written
agreement executed by the relevant parties hereto; provided that Schedule I
hereto may be supplemented by Parent by adding the name and other relevant
information concerning any stockholder of the Company who agrees to be
bound by the terms of this Agreement without the agreement of any other
party hereto, and thereafter such added stockholder shall be treated as a
"Stockholder" for all purposes of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall
be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail,
postage prepaid, return receipt requested) or by any courier service, such
as Federal Express, providing proof of delivery. All communications
hereunder shall be delivered to the respective parties at the following
addresses:
If to Stockholder: At the addresses set forth on Schedule I hereto.
If to Parent or Sub: COMFORCE Corporation
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, XX 00000
Phone No. (000) 000-0000
Fax No. (000) 000-0000
Attention: Chief Executive Officer
with a copy to: Doepken Keevican & Xxxxx Professional Corporation
58th Floor, USX Tower
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Phone No. (000) 000-0000
Fax No. (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esquire
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth
above.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not
affect any other provision or portion of any provision in such
jurisdiction, and this Agreement will be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
or portion of any provision had never been contained herein.
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(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained
in this Agreement will cause the other party to sustain damages for which
it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such
breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and no alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise
of any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, shall not constitute a
waiver by any such party of its right to exercise any such or other right,
power or remedy or to demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to be
for the benefit of, and shall not be enforceable by, any person or entity
who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to
the principles of conflicts of law thereof.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
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(m) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
COMFORCE CORPORATION
By: s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
COMFORCE COLUMBUS, INC.
By: s/ Xxxx X. Xxxxxxx
--------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
STOCKHOLDERS:
s/ Xxxx Xxxxxxx
--------------------------
Xxxx Xxxxxxx
Fanning Limited Partnership, L.P., a Georgia
limited partnership
By: s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
Title: General Partner
AGREED TO AND ACKNOWLEDGED (with respect to Section 5):
UNIFORCE SERVICES, INC.
By s/ Xxxxxxxx Xxxxxxxxxx
------------------------------
Name Xxxxxxxx Xxxxxxxxxx
Title Chief Operating Officer
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SCHEDULE 1 TO
STOCKHOLDERS AGREEMENT
================================================================================
Name and Address of Stockholder Number of Shares Owned
================================================================================
Xxxx Xxxxxxx 1,447,517
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
Fanning Limited Partnership, L.P. 361,513
0000 Xxxxx Xxxxx Xxxxxxxxx
Xxxxxxxx Xxxxx, XX 00000
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