Exhibit 2.1
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT NO. 1 (the "AMENDMENT") to the Agreement and
Plan of Merger dated as of July 19, 2004 (the "Agreement"), is made as of
September 3, 2004, by and among COMSYS Holding, Inc., a Delaware corporation
("HOLDING"), COMSYS Information Technology Services, Inc., a Delaware
corporation and wholly-owned subsidiary of Holding ("COMSYS"), Venturi Partners,
Inc., a Delaware corporation (the "COMPANY"), Venturi Technology Partners, LLC,
a North Carolina limited liability company and indirect, wholly-owned subsidiary
of the Company ("PARTNERS"), VTP, Inc., a Delaware corporation and wholly-owned
subsidiary of the Company ("MERGER SUB") and each of the stockholders of Holding
party hereto (the "HOLDING STOCKHOLDERS" and, together with Holding, Comsys, the
Company, Partners and Merger Sub, the "PARTIES").
Introduction
On July 19, 2004, the Parties entered into the Agreement, and
the Parties now wish to enter into this Amendment to effect certain
modifications to the Agreement and certain exhibits thereto in accordance with
the provisions of Section 8.4 of the Agreement.
In consideration of the foregoing and of the mutual covenants
contained in this Amendment, and for other valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
1. Undefined capitalized terms used herein shall have the
meanings ascribed to them in the Agreement. 2. Section 7.1(i)
of the Merger Agreement is hereby deleted in its entirety and
replaced with the following:
(i) Voting Agreement. Each of the Company and each
"Significant Holder" (as such term is defined in the Company
Charter, but excluding MatlinPatterson Global Opportunities
Partners, L.P.) of the Company immediately prior to the
Effective Time shall have executed and delivered, and the
Company shall use commercially reasonable efforts to seek the
execution and delivery by each "Five Percent Holder" (as such
term is defined in the Company Charter, but excluding
MatlinPatterson Global Opportunities Partners, L.P.) of the
Company immediately prior to the Effective Time, and Comsys
and Holding shall use commercially reasonable efforts to seek
the execution and delivery by each of the Holding Stockholders
listed as signatories thereto, a counterpart copy of an
agreement substantially in the form of Exhibit O attached
hereto with respect to voting for nominees for the Board of
Directors of the Company for a specified
period of time following the Effective Time, all as more fully
set forth in such agreement (the "VOTING AGREEMENT").
3. Section 6.14(f) of the Merger Agreement is hereby amended by
inserting ", officer or director" immediately after "Any
Indemnified Party" on the first line thereof.
4. Each party hereby agrees each reference in the Agreement to
the "Letter Agreement" shall henceforth refer to the letter
agreement dated September 3, 2004, by and between the Company
and each of Inland Partners, L.P. and Links Partners, L.P.
attached hereto.
5. Exhibit L to the Agreement is hereby deleted in its entirety
and replaced with the attached Exhibit L, Form of Amended and
Restated Bylaws of the Company.
6. Exhibit O to the Agreement is hereby deleted in its entirety
and replaced with the attached Exhibit O, Voting Agreement.
7. Section 7.2 to the Merger Agreement is hereby amended by
adding the following at the end thereof:
(j) Additional Agreement. The Company and
MatlinPatterson Global Opportunities Partners, L.P. shall each
have executed and delivered a counterparty copy of the
agreement attached hereto as Exhibit S.
8. Section 9.7(b) of the Merger Agreement is hereby amended by
deleting "and (iii)" appearing on the seventh line thereof and
replacing it with the following: ", (iii) each officer and
director of the Company immediately prior to the Effective
Time is and is intended to be a third party beneficiary of
Section 6.14(c)(ii) and may enforce the terms of such
provision and (iv)".
9. Except as specifically set forth herein, all terms, provisions
and conditions of the Agreement remain in full force and
effect. This Amendment shall be attached to and become a part
of the Agreement, and from and after the date hereof
references to the Agreement shall mean such Agreement as
amended hereby.
10. Each party to this Amendment that is not a natural person
represents and warrants that: (a) it is duly authorized to
execute and deliver this Amendment and to perform its
obligations hereunder and has taken all necessary action to
authorize such execution, delivery and performance; (b) the
person signing this Amendment on its behalf is duly authorized
to do so on its behalf; (c) it has obtained all authorizations
of any governmental body required in connection with this
Amendment and the transactions contemplated hereby and such
authorizations are in full force and effect; and (d) the
execution, delivery and performance of this Amendment and the
transactions contemplated hereby will not violate any law,
ordinance, charter, bylaw or rule applicable to it or any
other agreement by which it is bound or by which any of its
assets are affected.
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11. Each party to this Amendment that is a natural person
represents and warrants that he or she has (a) the requisite
competence, power and authority to execute and deliver this
Amendment and to perform its obligations hereunder and (b)
obtained all authorizations of any governmental body required
in connection with this Amendment and the transactions
contemplated hereby and such authorizations are in full force
and effect.
12. The terms of Sections 8.4 and 8.5 and Article IX of the
Agreement are incorporated by reference into this Amendment as
if they were set out in extenso herein.
[SIGNATURES BEGIN ON NEXT PAGE]
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IN WITNESS WHEREOF, Holding, Comsys, Merger Sub, Partners, the
Company and the Holding Stockholders have caused this Amendment to be executed
as of the date first written above.
VENTURI PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
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Title: Chairman and Chief Executive Officer
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VENTURI TECHNOLOGY PARTNERS, LLC
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
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Title: Senior Vice President
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VTP, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
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Title: Chief Executive Officer and President
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[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]
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COMSYS HOLDING, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: Senior Vice President
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COMSYS INFORMATION TECHNOLOGY SERVICES, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
-------------------------------------
Title: Senior Vice President
-------------------------------------
[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]
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HOLDING STOCKHOLDERS:
GTCR FUND VI, L.P.
By: /s/ Xxxxxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
-------------------------------------
Title:
-------------------------------------
GTCR VI EXECUTIVE FUND, L.P.
By: /s/ Xxxxxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
-------------------------------------
Title:
-------------------------------------
GTCR ASSOCIATES VI
By: /s/ Xxxxxx X. Xxx
----------------------------------------
Name: Xxxxxx X. Xxx
-------------------------------------
Title:
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[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]
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HOLDING STOCKHOLDERS:
X. X. XXXXXX DIRECT CORPORATE FINANCE
INSTITUTIONAL INVESTORS LLC
XX Xxxxxx Chase Bank, as Investment Advisor
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------------
Title: Managing Director
-------------------------------------
X. X. XXXXXX DIRECT CORPORATE FINANCE
PRIVATE INVESTORS LLC
XX Xxxxxx Chase Bank, as Investment Advisor
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------------
Title: Managing Director
-------------------------------------
000 XXXXX XXXXXX FUND, L.P.
XX Xxxxxx Xxxxx Bank, as Investment Advisor
By: /s/ Xxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxx
-------------------------------------
Title: Managing Director
-------------------------------------
[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]
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HOLDING STOCKHOLDERS:
WACHOVIA INVESTORS, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
-------------------------------------
Title: Vice President
-------------------------------------
OLD TRAFFORD INVESTMENT PTE LTD.
By: /s/ Lim Xxxx Xxx
----------------------------------------
Name: Lim Xxxx Xxx
-------------------------------------
Title: Director
-------------------------------------
[Signature Page to Amendment No. 1 to Agreement and Plan of Xxxxxx]
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XXXXXXX XXXXXXXXXXXX:
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, individually
/s/ Xxxxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx, individually
/s/ Xxxxxxxx X. Xxxx
-------------------------------------------
Xxxxxxxx X. Xxxx, individually
/s/ Xxxxxx X. Xxxx, Xx.
-------------------------------------------
Xxxxxx X. Xxxx, Xx., individually
/s/ Xxxxxx X. Xxxxxx, XX
-------------------------------------------
Xxxxxx X. Xxxxxx XX, individually
/s/ Xxxxxxx X. Xxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxx, individually
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx, individually
[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]
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/s/ Xxxx X. Xxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxx, individually
[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]
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EXHIBIT L
Form of Amended and Restated Bylaws of the Company
[ATTACHED]
AMENDED AND RESTATED
BY-LAWS
OF
VENTURI PARTNERS, INC.,
a Delaware corporation
(the "CORPORATION")
(Adopted as of__________, 2004)
AMENDED AND RESTATED
BY-LAWS
OF
VENTURI PARTNERS, INC.
ARTICLE I
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of the Corporation
within the State of Delaware shall be located at either (a) the principal place
of business of the Corporation in the State of Delaware or (b) the office of the
corporation or individual acting as the Corporation's registered agent in
Delaware.
SECTION 1.2 ADDITIONAL OFFICES. The Corporation may, in addition to its
registered office in the State of Delaware, have such other offices and places
of business, both within and outside the State of Delaware, as the Board of
Directors of the Corporation (the "BOARD") may from time to time determine or as
the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
SECTION 2.1 ANNUAL MEETINGS. The annual meeting of stockholders shall
be held at such place and time and on such date as shall be determined by the
Board and stated in the notice of the meeting, provided that the Board may in
its sole discretion determine that the meeting shall not be held at any place,
but may instead be held solely by means of remote communication pursuant to
Section 9.5(a). At each annual meeting, the stockholders shall elect directors
of the Corporation and may transact any other business as may properly be
brought before the meeting.
SECTION 2.2 SPECIAL MEETINGS. Except as otherwise required by
applicable law or provided in the Corporation's Amended and Restated Certificate
of Incorporation, as the same may be amended or restated from time to time (the
"CERTIFICATE OF INCORPORATION"), special meetings of stockholders, for any
purpose or purposes, may be called only by (a) the Chairman of the Board, (b)
the Chief Executive Officer, (c) the Board pursuant to a resolution adopted by a
majority of the Whole Board (as defined below) or (d) the Secretary at the
request in writing of stockholders holding shares representing a majority of the
voting power of the outstanding shares entitled to vote on the matter for which
such meeting is to be called. The Secretary shall call such a meeting upon
receiving such a request. Special meetings of stockholders shall be held at such
place and time and on such date as shall be determined by the Board and stated
in the Corporation's notice of the meeting, provided that the Board may in its
sole discretion determine that the meeting shall not be held at any place, but
may instead be held solely by means of
remote communication pursuant to Section 9.5(a). "WHOLE BOARD" shall mean the
total number of directors the Corporation would have if there were no vacancies.
SECTION 2.3 NOTICES. Notice of each stockholders meeting stating the
place, if any, date, and time of the meeting, and the means of remote
communication, if any, by which stockholders and proxyholders may be deemed to
be present in person and vote at such meeting, shall be given in the manner
permitted by Section 9.3 to each stockholder entitled to vote thereat by the
Corporation not less than 10 nor more than 60 days before the date of the
meeting. If said notice is for a stockholders meeting other than an annual
meeting, it shall in addition state the purpose or purposes for which the
meeting is called, and the business transacted at such meeting shall be limited
to the matters so stated in the Corporation's notice of meeting (or any
supplement thereto). Any meeting of stockholders as to which notice has been
given may be postponed, and any special meeting of stockholders as to which
notice has been given may be cancelled, by the Board upon public announcement
(as defined in Section 2.7(c)) given before the date previously scheduled for
such meeting.
SECTION 2.4 QUORUM. Except as otherwise provided by applicable law, the
Certificate of Incorporation or these By-Laws, the presence, in person or by
proxy, at a stockholders meeting of the holders of shares of outstanding capital
stock of the Corporation representing a majority of the voting power of all
outstanding shares of capital stock of the Corporation entitled to vote at such
meeting shall constitute a quorum for the transaction of business at such
meeting, except that when specified business is to be voted on by a class or
series of stock voting as a class, the holders of shares representing a majority
of the voting power of the outstanding shares of such class or series shall
constitute a quorum of such class or series for the transaction of such
business. If a quorum shall not be present or represented by proxy at any
meeting of the stockholders, the chairman of the meeting may adjourn the meeting
from time to time in the manner provided in Section 2.6 until a quorum shall
attend. The stockholders present at a duly convened meeting may continue to
transact business until adjournment, notwithstanding the withdrawal of enough
stockholders to leave less than a quorum. Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the voting power of
the shares entitled to vote in the election of directors of such other
corporation is held, directly or indirectly, by the Corporation, shall neither
be entitled to vote nor be counted for quorum purposes; provided, however, that
the foregoing shall not limit the right of the Corporation or any such other
corporation to vote shares held by it in a fiduciary capacity.
SECTION 2.5 VOTING OF SHARES.
(a) Voting Lists. The Secretary shall prepare, or shall cause the
officer or agent who has charge of the stock ledger of the Corporation to
prepare, at least 10 days before every meeting of stockholders, a complete list
of the stockholders of record entitled to vote thereat arranged in alphabetical
order and showing the address and the number of shares registered in the name of
each stockholder. Nothing contained in this Section 2.5(a) shall require the
Corporation to include electronic mail addresses or other electronic contact
information on such list. Such list shall be open to the examination of any
stockholder, for any purpose germane to the meeting, during ordinary business
hours for a period of at least 10 days prior to the meeting: (i) on a reasonably
accessible electronic network, provided that the information required to gain
access to such list is provided with the notice of the meeting, or (ii) during
ordinary business hours, at the principal place of business of the Corporation.
In the event that
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the Corporation determines to make the list available on an electronic network,
the Corporation may take reasonable steps to ensure that such information is
available only to stockholders of the Corporation. If the meeting is to be held
at a place, then the list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and may be inspected by any
stockholder who is present. If a meeting of stockholders is to be held solely by
means of remote communication as permitted by Section 9.5(a), the list shall be
open to the examination of any stockholder during the whole time of the meeting
on a reasonably accessible electronic network, and the information required to
access such list shall be provided with the notice of meeting. The stock ledger
shall be the only evidence as to who are the stockholders entitled to examine
the list required by this Section 2.5(a) or to vote in person or by proxy at any
meeting of stockholders.
(b) Manner of Voting. At any stockholders meeting, every stockholder
entitled to vote may vote in person or by proxy. If authorized by the Board, the
voting by stockholders or proxyholders at any meeting conducted by remote
communication may be effected by a ballot submitted by electronic transmission
(as defined in Section 9.3), provided that any such electronic transmission must
either set forth or be submitted with information from which the Corporation can
determine that the electronic transmission was authorized by the stockholder or
proxyholder. The Board, in its discretion, or the chairman of the meeting of
stockholders, in such person's discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
(c) Proxies. Each stockholder entitled to vote at a meeting of
stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted upon after three
years from its date, unless the proxy provides for a longer period. Proxies need
not be filed with the Secretary of the Corporation until the meeting is called
to order, but shall be filed with the Secretary before being voted. Without
limiting the manner in which a stockholder may authorize another person or
persons to act for such stockholder as proxy, either of the following shall
constitute a valid means by which a stockholder may grant such authority.
(i) A stockholder may execute a writing authorizing another
person or persons to act for such stockholder as proxy. Execution may
be accomplished by the stockholder or such stockholder's authorized
officer, director, employee or agent signing such writing or causing
such person's signature to be affixed to such writing by any reasonable
means, including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to
act for such stockholder as proxy by transmitting or authorizing the
transmission of an electronic transmission to the person who will be
the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who
will be the holder of the proxy to receive such transmission, provided
that any such electronic transmission must either set forth or be
submitted with information from which it can be determined that the
electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the
writing or transmission authorizing another person or persons to act as proxy
for a stockholder may be
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substituted or used in lieu of the original writing or transmission for any and
all purposes for which the original writing or transmission could be used;
provided that such copy, facsimile telecommunication or other reproduction shall
be a complete reproduction of the entire original writing or transmission.
(d) Required Vote. Subject to the rights of the holders of one or more
series of preferred stock of the Corporation ("PREFERRED STOCK"), voting
separately by class or series, to elect directors pursuant to the terms of one
or more series of Preferred Stock, the election of directors shall be determined
by a plurality of the votes cast by the stockholders present in person or
represented by proxy at the meeting and entitled to vote thereon. All other
matters shall be determined by the vote of a majority of the votes cast by the
stockholders present in person or represented by proxy at the meeting and
entitled to vote thereon, unless the matter is one upon which, by applicable
law, the Certificate of Incorporation, these By-Laws or applicable stock
exchange rules, a different vote is required, in which case such provision shall
govern and control the decision of such matter.
(e) Inspectors of Election. The Board may appoint one or more persons
as inspectors of election, who may be employees of the Corporation or otherwise
serve the Corporation in other capacities, to act at any meeting of stockholders
or any adjournment thereof and to make a written report thereof. The Board may
appoint one or more persons as alternate inspectors to replace any inspector who
fails to act. If no inspectors of election or alternates are appointed by the
Board, the chairman of the meeting shall appoint one or more inspectors to act
at the meeting. Each inspector, before discharging his or her duties, shall take
and sign an oath faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The inspectors
shall ascertain and report the number of outstanding shares and the voting power
of each; determine the number of shares present in person or represented by
proxy at the meeting and the validity of proxies and ballots; count all votes
and ballots and report the results; determine and retain for a reasonable period
a record of the disposition of any challenges made to any determination by the
inspectors; and certify their determination of the number of shares represented
at the meeting and their count of all votes and ballots. No person who is a
candidate for an office at an election may serve as an inspector at such
election. Each report of an inspector shall be in writing and signed by the
inspector or by a majority of them if there is more than one inspector acting at
such meeting. If there is more than one inspector, the report of a majority
shall be the report of the inspectors.
SECTION 2.6 ADJOURNMENTS. Any meeting of stockholders, annual or
special, may be adjourned by the chairman of the meeting, from time to time,
whether or not there is a quorum, to reconvene at the same or some other place.
Notice need not be given of any such adjourned meeting if the date, time, place,
if any, thereof, and the means of remote communication, if any, by which
stockholders and proxyholders may be deemed to be present in person and vote at
such adjourned meeting are announced at the meeting at which the adjournment is
taken. At the adjourned meeting the stockholders, or the holders of any class or
series of stock entitled to vote separately as a class, as the case may be, may
transact any business which might have been transacted at the original meeting.
If the adjournment is for more than 30 days, or if after the adjournment a new
record date is fixed for the adjourned meeting, notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the meeting.
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SECTION 2.7 ADVANCE NOTICE FOR BUSINESS.
(a) Annual Meetings of Stockholders. No business may be transacted at
an annual meeting of stockholders, other than business that is either (i)
specified in the Corporation's notice of meeting (or any supplement thereto)
given by or at the direction of the Board, (ii) otherwise properly brought
before the annual meeting by or at the direction of the Board or (iii) otherwise
properly brought before the annual meeting by any stockholder of the Corporation
(x) who is a stockholder of record on the date of the giving of the notice
provided for in this Section 2.7(a) and on the record date for the determination
of stockholders entitled to vote at such annual meeting and (y) who complies
with the notice procedures set forth in this Section 2.7(a). Notwithstanding
anything in this Section 2.7(a) to the contrary, only persons nominated for
election as a director at an annual meeting pursuant to Section 3.2 will be
considered for election at such meeting.
(i) In addition to any other applicable requirements, for
business (other than nominations) to be properly brought before an
annual meeting by a stockholder, such stockholder must have given
timely notice thereof in proper written form to the Secretary of the
Corporation and such business must otherwise be a proper matter for
stockholder action. Subject to Section 2.7(a)(iii), a stockholder's
notice to the Secretary with respect to such business, to be timely,
must be received by the Secretary at the principal executive offices of
the Corporation not later than the close of business on the 90th day
nor earlier than the opening of business on the 120th day before the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 45 days before or after
such anniversary date, notice by the stockholder to be timely must be
so received not earlier than the opening of business on the 120th day
before the meeting and not later than the later of (x) the close of
business on the 90th day before the meeting or (y) the close of
business on the 10th day following the day on which public announcement
of the date of the annual meeting is first made by the Corporation. In
no event shall the public announcement of an adjournment of an annual
meeting commence a new time period for the giving of a stockholder's
notice as described in this Section 2.7(a).
(ii) To be in proper written form, a stockholder's notice to
the Secretary with respect to any business (other than nominations)
must set forth as to each such matter such stockholder proposes to
bring before the annual meeting (A) a brief description of the business
desired to be brought before the annual meeting, the text of the
proposal or business (including the text of any resolutions proposed
for consideration and in the event such business includes a proposal to
amend these By-Laws, the language of the proposed amendment) and the
reasons for conducting such business at the annual meeting, (B) the
name and record address of such stockholder and the name and address of
the beneficial owner, if any, on whose behalf the proposal is made, (C)
the class or series and number of shares of capital stock of the
Corporation that are owned beneficially and of record by such
stockholder and by the beneficial owner, if any, on whose behalf the
proposal is made, (D) a description of all arrangements or
understandings between such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made and any other person or
persons (including their names) in connection with the proposal of such
business by such stockholder, (E) any material
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interest of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made in such business, and (F) a representation
that such stockholder intends to appear in person or by proxy at the
annual meeting to bring such business before the meeting.
(iii) The foregoing notice requirements of this Section 2.7(a)
shall be deemed satisfied by a stockholder as to any proposal (other
than nominations) if the stockholder has notified the Corporation of
such stockholder's intention to present such proposal at an annual
meeting in compliance with Rule 14a-8 (or any successor thereof) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), and
such stockholder has complied with the requirements of such Rule for
inclusion of such proposal in a proxy statement prepared by the
Corporation to solicit proxies for such annual meeting. No business
shall be conducted at the annual meeting of stockholders except
business brought before the annual meeting in accordance with the
procedures set forth in this Section 2.7(a), provided, however, that
once business has been properly brought before the annual meeting in
accordance with such procedures, nothing in this Section 2.7(a) shall
be deemed to preclude discussion by any stockholder of any such
business. If the Board or the chairman of the annual meeting determines
that any stockholder proposal was not made in accordance with the
provisions of this Section 2.7(a) or that the information provided in a
stockholder's notice does not satisfy the information requirements of
this Section 2.7(a), such proposal shall not be presented for action at
the annual meeting. Notwithstanding the foregoing provisions of this
Section 2.7(a), if the stockholder (or a qualified representative of
the stockholder) does not appear at the annual meeting of stockholders
of the Corporation to present the proposed business, such proposed
business shall not be transacted, notwithstanding that proxies in
respect of such matter may have been received by the Corporation.
(iv) In addition to the provisions of this Section 2.7(a), a
stockholder shall also comply with all applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to
the matters set forth herein. Nothing in this Section 2.7(a) shall be
deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation's proxy statement pursuant to Rule 14a-8
under the Exchange Act.
(b) Special Meetings of Stockholders. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board may be made at a special meeting of
stockholders at which directors are to be elected pursuant to the Corporation's
notice of meeting only pursuant to Section 3.2.
(c) Public Announcement. For purposes of these By-Laws, "PUBLIC
ANNOUNCEMENT" shall mean disclosure in a press release reported by the Dow Xxxxx
News Service, Associated Press or comparable national news service or in a
document publicly filed by the Corporation with the Securities and Exchange
Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act.
SECTION 2.8 CONDUCT OF MEETINGS. The chairman of each annual and
special meeting of stockholders shall be the Chairman of the Board or, in the
absence (or
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inability or refusal to act) of the Chairman of the Board, the Chief Executive
Officer (if he or she shall be a director) or, in the absence (or inability or
refusal to act) of the Chief Executive Officer or if the Chief Executive Officer
is not a director, the President (if he or she shall be a director) or, in the
absence (or inability or refusal to act) of the President or if the President is
not a director, such other person as shall be appointed by the Board. The date
and time of the opening and the closing of the polls for each matter upon which
the stockholders will vote at a meeting shall be announced at the meeting by the
chairman of the meeting. The Board may adopt such rules and regulations for the
conduct of the meeting of stockholders as it shall deem appropriate. Except to
the extent inconsistent with these By-Laws or such rules and regulations as
adopted by the Board, the chairman of any meeting of stockholders shall have the
right and authority to convene and to adjourn the meeting, to prescribe such
rules, regulations and procedures and to do all such acts as, in the judgment of
such chairman, are appropriate for the proper conduct of the meeting. Such
rules, regulations or procedures, whether adopted by the Board or prescribed by
the chairman of the meeting, may include, without limitation, the following: (a)
the establishment of an agenda or order of business for the meeting; (b) rules
and procedures for maintaining order at the meeting and the safety of those
present; (c) limitations on attendance at or participation in the meeting to
stockholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(d) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (e) limitations on the time allotted to questions or
comments by participants. Unless and to the extent determined by the Board or
the chairman of the meeting, meetings of stockholders shall not be required to
be held in accordance with the rules of parliamentary procedure. The secretary
of each annual and special meeting of stockholders shall be the Secretary or, in
the absence (or inability or refusal to act) of the Secretary, an Assistant
Secretary so appointed to act by the chairman of the meeting. In the absence (or
inability or refusal to act) of the Secretary and all Assistant Secretaries, the
chairman of the meeting may appoint any person to act as secretary of the
meeting.
SECTION 2.9 Consents in Lieu of Meeting. Unless otherwise provided in
the Certificate of Incorporation, any action required or permitted to be taken
at any annual or special meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent or consents in writing,
setting forth the action so taken, shall be signed by the holders of outstanding
capital stock of the Corporation having not less than the minimum voting power
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted and shall be
delivered to the Corporation to its registered office in the State of Delaware,
the Corporation's principal place of business, or the Secretary of the
Corporation. Every written consent shall bear the date of signature of each
stockholder who signs the consent and no written consent shall be effective to
take the corporate action referred to therein unless, within 60 days of the date
the earliest dated consent is delivered to the Corporation, a written consent or
consents signed by a sufficient number of holders to take such action are
delivered to the Corporation by delivery to the Corporation's registered office
in the State of Delaware, the Corporation's principal place of business, or the
Secretary. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. An electronic
transmission consenting to the action to be taken and transmitted by a
stockholder, proxyholder or a person or persons authorized to act for a
stockholder or proxyholder shall be deemed to be written, signed and dated for
purposes hereof if such electronic transmission sets forth or is delivered with
information from which the Corporation can determine that such transmission was
transmitted by
7
a stockholder or proxyholder (or by a person authorized to act for a stockholder
or proxyholder) and the date on which such stockholder, proxyholder or
authorized person transmitted such transmission. The date on which such
electronic transmission is transmitted shall be deemed to be the date on which
such consent was signed. No consent given by electronic transmission shall be
deemed to have been delivered until such consent is reproduced in paper form and
delivered to the Corporation by delivery either to the Corporation's registered
office in the State of Delaware, the Corporation's principal place of business,
or the Secretary of the Corporation. Delivery made to the Corporation's
registered office shall be made by hand or by certified or registered mail,
return receipt requested. Notwithstanding the limitations on delivery in the
previous sentence, consents given by electronic transmission may be otherwise
delivered to the Corporation's principal place of business or to the Secretary
if, to the extent, and in the manner provided by resolution of the Board. Any
copy, facsimile or other reliable reproduction of a consent in writing may be
substituted or used in lieu of the original writing for any and all purposes for
which the original writing could be used; provided that such copy, facsimile or
other reproduction shall be a complete reproduction of the entire original
writing. Prompt notice of the taking of the corporate action without a meeting
by less than unanimous written consent shall be given to those stockholders who
have not consented in writing and who, if the action had been taken at a
meeting, would have been entitled to notice of the meeting if the record date
for such meeting had been the date that written consents signed by a sufficient
number of holders were delivered to the Corporation as provided in this Section
2.9.
ARTICLE III
DIRECTORS
SECTION 3.1 POWERS. The business and affairs of the Corporation shall
be managed by or under the direction of the Board, which may exercise all such
powers of the Corporation and do all such lawful acts and things as are not by
statute or by the Certificate of Incorporation or by these By-Laws required to
be exercised or done by the stockholders. Directors need not be stockholders or
residents of the State of Delaware.
SECTION 3.2 ADVANCE NOTICE FOR NOMINATION OF DIRECTORS.
(a) Only persons who are nominated in accordance with the following
procedures shall be eligible for election as directors of the Corporation,
except as may be otherwise provided by (x) the terms of one or more series of
Preferred Stock with respect to the rights of holders of one or more series of
Preferred Stock to elect directors or (y) the terms of any agreement between the
Corporation and another party or parties pursuant to which such party or parties
are given the contractual right to nominate persons for election as directors of
the Corporation (a "CONTRACTUAL NOMINATION RIGHT"). Nominations of persons for
election to the Board at any annual meeting of stockholders, or at any special
meeting of stockholders called for the purpose of electing directors as set
forth in the Corporation's notice of such special meeting, may be made (i) on
behalf of the Board, by the Nominating Committee of the Board in accordance with
this Section 3.2 and Article Fifth of the Certificate of Incorporation, (ii)
pursuant to a Contractual Nomination Right or (iii) by any stockholder of the
Corporation (x) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 3.2 and on the record date for the
determination of stockholders entitled to vote at such meeting and (y) who
complies with the notice procedures set forth in this Section 3.2.
8
(b) Nominations by Nominating Committee.
(i) Definitions. The following definitions shall apply for
purposes of this Section 3.2:
"AUDIT COMMITTEE INDEPENDENT DIRECTOR" means a
director of the Corporation who (x) meets the definition of
"independent director" under Nasdaq rules, or if the
Corporation's Common Stock is not then traded on the Nasdaq
National Market, the comparable requirements of the principal
securities exchange or market on which the Corporation's
Common Stock is then listed or approved for trading, (y) meets
the criteria under Nasdaq rule 4350(d)(2)(A)(i)-(iv) (or any
successor rule) for service on the Audit Committee of the
Board or, if the Corporation's Common Stock is not then traded
on the Nasdaq National Market, the comparable requirements of
the principal securities exchange or market on which the
Corporation's Common Stock is listed or approved for trading,
and (z) is willing to serve on the Audit Committee if
requested to do so by the Board.
"AUDIT COMMITTEE FINANCIAL EXPERT" means a director
of the Corporation who meets the definition of "audit
committee financial expert" set forth in Item 401 of
Regulation S-K (or any successor rule or regulation).
"GROUP A DIRECTOR" means a director of the
Corporation who was specified as such in paragraph (b) of
Article Fifth of the Certificate of Incorporation or any
director of the Corporation who was recommended for nomination
as a director of the Corporation by the Group A Subcommittee
or was selected by the Group A Subcommittee to fill a vacancy
or newly created directorship on the Board pursuant to this
Section 3.2(b).
"GROUP B DIRECTOR" means a director of the
Corporation who was specified as such in paragraph (b) of
Article Fifth of the Certificate of Incorporation, any
director of the Corporation who was designated as a nominee
for director pursuant to the Voting Agreement, any director of
the Corporation who was recommended for nomination as a
director of the Corporation by the Group B Subcommittee, or
any director of the Corporation selected by the Group B
Subcommittee to fill a vacancy or newly created directorship
on the Board pursuant to this Section 3.2(b).
"INDEPENDENT GROUP A DIRECTOR" means any Group A
Director who meets the definition of "independent director"
under applicable rules and listing standards of the principal
securities exchange or market on which the Common Stock is
listed or approved for trading.
"INDEPENDENT GROUP B DIRECTOR" means any Group B
Director who meets the definition of "independent director"
under applicable rules and listing standards of the principal
securities exchange or market on which the Common Stock is
listed or approved for trading.
9
"SPECIAL VOTING PERIOD" means the period commencing
immediately after the Effective Time (as defined in the
Certificate of Incorporation) and ending on the third
anniversary of the Effective Time.
"VOTING AGREEMENT" means the Voting Agreement dated
as of ____________, 2004 by and among the Corporation and the
stockholders party thereto, as the same may be amended from
time to time.
(ii) Special Voting Period Provisions. The following
provisions shall apply during the Special Voting Period and in each
case to the extent permitted by applicable law and by applicable rules
and listing standards of the principal securities exchange or market on
which the Corporation's Common Stock is listed or approved for trading:
(A) Nominating Committee. The Nominating Committee of the
Board shall be composed of five members, (x) three of
whom shall be Independent Group B Directors if there
are three or more Independent Group B Directors on
the Board, two of whom shall be Independent B
Directors if there are only two Independent B
Directors on the Board, and one of whom shall be an
Independent Group B Director if there is only one
Independent Group B Director on the Board, and (y)
two of whom shall be Independent Group A Directors if
there are two or more Independent Group A Directors
on the Board and one of whom shall be an Independent
Group A Director if there is only one Independent
Group A Director on the Board.
(B) Authority. The Nominating Committee shall have the
exclusive delegated authority of the Board to
nominate, on behalf of the Board, nominees for
election as directors, other than those nominees of
the Board designated pursuant to a Contractual
Nomination Right.
(C) Nominations. Group A Directors. Prior to each annual
meeting of stockholders of the Corporation during the
Special Voting Period, a subcommittee of the
Nominating Committee comprised solely of the
Independent Group A Directors serving on the
Nominating Committee (the "GROUP A SUBCOMMITTEE")
shall, subject to the procedures and qualification
requirements set forth in this Section 3.2(b), have
the right to recommend to the Nominating Committee
nominees for directors to be elected by the
stockholders at such annual meeting as follows:
(x) if the size of the Whole Board is nine (9)
or ten (10), the Group A Subcommittee shall
have the right to recommend four (4)
nominees;
10
(y) if the size of the Whole Board is eleven
(11) or twelve (12), the Group A
Subcommittee shall have the right to
recommend five (5) nominees;
(z) if the size of the Whole Board is thirteen
(13), the Group A Subcommittee shall have
the right to recommend six (6) nominees.
Subject to their fiduciary duties, the Nominating
Committee shall recommend to the stockholders the
nominees recommended to the Nominating Committee by
the Group A Subcommittee. In the event the Group A
Subcommittee shall not recommend a nominee in
accordance with the procedures and qualification
requirements of this Section 3.2(b), (i) the
Nominating Committee shall proceed to select such
nominee and (ii) such nominee shall not be considered
a Group A Director and shall not be required to meet
the qualification requirements of paragraph (E)
below.
Group B Directors. Prior to each annual meeting of
stockholders of the Corporation during the Special
Voting Period, a subcommittee of the Nominating
Committee comprised solely of the Independent Group B
Directors serving on the Nominating Committee (the
"GROUP B SUBCOMMITTEE") shall, subject to the
procedures and qualification requirements set forth
in this Section 3.2(b) and the Voting Agreement, have
the right to recommend to the Nominating Committee
nominees for directors which the Nominating
Committee, subject to its fiduciary duties, shall
recommend to the stockholders to be elected by the
stockholders at such annual meeting as follows:
Size of Whole Board Number of Nominees
------------------- ------------------
9 5
10 6
11 6
12 7
13 7
Notwithstanding the foregoing, the number of nominees
the Group B Subcommittee shall have the right to
recommend for election as directors at any particular
annual meeting shall be reduced by the number of
nominees who are designated as nominees for election
at such annual meeting pursuant to the Voting
Agreement (including Xxxx Xxxxxx). In the event the
Group B Subcommittee shall not recommend a nominee in
accordance with the procedures and qualification
requirements of this Section 3.2(b), (i) the
Nominating Committee shall proceed to select such
nominee and (ii) such nominee shall not be considered
11
a Group B Director and shall not be required to meet
the qualification requirements of paragraph (E)
below.
(D) Vacancies and Newly Created Directorships. Group A
Directors. Subject to the procedures and
qualification requirements of this Section 3.2, the
Group A Subcommittee shall have the exclusive
delegated authority of the Board to fill any vacancy
on the Board, or any committee thereof, that was held
immediately prior to such vacancy by a Group A
Director, and to fill any newly created directorship
for which the Group A Subcommittee would have the
right to recommend an additional nominee pursuant to
paragraph (C) above; provided, however, in the event
the Group A Subcommittee shall not fill any such
vacancy or newly created directorship pursuant to the
procedures and qualification requirements of this
Section 3.2(b), (i) the Nominating Committee shall
then have the exclusive delegated authority of the
Board to fill such vacancy or newly created
directorship and (ii) the person so chosen shall not
be considered a Group A Director and shall not be
required to meet the qualification requirements of
paragraph (E) below.
Group B Directors. Subject to the procedures and
qualification requirements of this Section 3.2, the
Group B Subcommittee shall have the exclusive
delegated authority of the Board to fill any vacancy
on the Board, or any committee thereof, that was held
immediately prior to such vacancy by a Group B
Director, and to fill any newly created directorship
for which the Group B Subcommittee would have the
right to recommend an additional nominee pursuant to
paragraph (C) above; provided, however, in the event
the Group B Subcommittee shall not fill any such
vacancy or newly created directorship pursuant to the
procedures and qualification requirements of this
Section 3.2, (i) the Nominating Committee shall then
have the exclusive delegated authority of the Board
to fill such vacancy or newly created directorship
and (ii) the person so chosen shall not be considered
a Group B Director and shall not be required to meet
the qualification requirements of paragraph (E)
below.
(E) Qualification Requirements. Group A Directors. The
Group A Subcommittee shall not have the right to
recommend nominees for election as directors or to
fill a vacancy or newly created directorship unless,
after giving effect to the election of such nominees
or the filling of such vacancies or newly created
directorships, (i) there would be at least three
Independent Group A Directors, (ii) there would be at
least two (2) Group A Directors who meet the
definition of Audit Committee Independent Director,
and (iii) there would be at least one Group A
Director specified in (ii) who meets the definition
of Audit Committee
12
Financial Expert; provided, however, if the size of
the Whole Board is 10, 11, 12 or 13, then there must
be at least three Independent Group A Directors.
Group B Directors. The Group B Subcommittee shall not
have the right to recommend nominees for election as
directors or to fill a vacancy or newly created
directorship, unless, after giving effect to the
election of such nominees or the filling of such
vacancies or newly created directorships, there would
be at least three (3) Independent Group B Directors,
one of whom meets the definition of Audit Committee
Independent Director; provided, however, if the size
of the Whole Board is 11, 12 or 13, then there must
be at least four (4), rather than three (3),
Independent Group B Directors.
(F) Procedures. The Corporation shall give the Group A
Subcommittee and the Group B Subcommittee not less
than 60 days prior notice of the proposed mailing
date of the Corporation's proxy statement in
connection with the annual meeting of stockholders.
The Group A Subcommittee or Group B Subcommittee, as
the case may be, shall inform the Nominating
Committee of its recommended nominees for election of
directors to the Board of Directors by delivering
written notice thereof not less than thirty (30) days
prior to the mailing of the Corporation's proxy
statement to be distributed to stockholders in
connection with the annual meeting of stockholders.
The notice shall also contain such information
relating to such nominees as is required to be
disclosed in a proxy statement or other filings
required to be made by the Corporation in connection
with the solicitation of proxies for election of
directors pursuant to Section 14 of the Exchange Act
and the rules and regulations promulgated thereunder,
and from which the Board can determine that the
qualification requirements set forth in paragraph (E)
above have been satisfied. The Group A Subcommittee
or Group B Subcommittee, as the case may be, shall
inform the Nominating Committee of the person
selected by such Subcommittee to fill a vacancy or
newly created directorship not later than thirty (30)
days following written notice to such Subcommittee of
the occurrence of such vacancy or creation of such
newly created directorship. The notice shall also
contain such information relating to such individual
as is required to be disclosed in a proxy statement
or other filings required to be made by the
Corporation in connection with the solicitation of
proxies for election of directors pursuant to Section
14 of the Exchange Act and the rules and regulations
promulgated thereunder, and from which the Board can
determine that the qualification requirements set
forth in paragraph (E) above have been satisfied. The
Group A Subcommittee and Group B Subcommittee, as the
case may be,
13
shall be afforded reasonable opportunity to provide
any supplemental information requested by the
Nominating Committee.
(G) Dissolution. If there ceases to be for a period of
not less than 30 days, at least one Independent Group
A Director on the Board, the Group A Subcommittee
shall be dissolved. If there ceases to be for a
period of not less than 30 days, at least one
Independent Group B Director on the Board, the Group
B Subcommittee shall be dissolved. Except as
otherwise provided by the terms of a Contractual
Nomination Right, after dissolution of a
Subcommittee, the Nominating Committee shall have the
exclusive delegated authority of the Board to
nominate directors and fill any vacancy or newly
created directorship that such Subcommittee had the
right to nominate or fill at the time of its
dissolution.
(H) Certain Incentive Compensation Awards. The unanimous
approval of the Compensation Committee of the Board
shall be required to approve any incentive
compensation awards to be granted to senior
management of the Corporation.
(c) Nominations by Stockholders.
(i) In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have
given timely notice thereof in proper written form to the Secretary of
the Corporation. To be timely, a stockholder's notice to the Secretary
must be received by the Secretary at the principal executive offices of
the Corporation (A) in the case of an annual meeting, not later than
the close of business on the 90th day nor earlier than the opening of
business on the 120th day before the anniversary date of the
immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a date
that is not within 45 days before or after such anniversary date,
notice by the stockholder to be timely must be so received not earlier
than the opening of business on the 120th day before the meeting and
not later than the later of (x) the close of business on the 90th day
before the meeting or (y) the close of business on the 10th day
following the day on which public announcement of the date of the
annual meeting was first made by the Corporation; and (B) in the case
of a special meeting of stockholders called for the purpose of electing
directors, not later than the close of business on the 10th day
following the day on which public announcement of the date of the
special meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting or special
meeting commence a new time period for the giving of a stockholder's
notice as described in this Section 3.2.
(ii) Notwithstanding anything in paragraph (c)(i) to the
contrary, in the event that the number of directors to be elected to
the Board at an annual meeting is greater than the number of directors
whose terms expire on the date of the annual meeting and there is no
public announcement by the Corporation naming all of the nominees for
the additional directors to be elected or specifying the size of the
increased Board before
14
the close of business on the 90th day prior to the anniversary date of
the immediately preceding annual meeting of stockholders, a
stockholder's notice required by this Section 3.2 shall also be
considered timely, but only with respect to nominees for the additional
directorships created by such increase that are to be filled by
election at such annual meeting, if it shall be received by the
Secretary at the principal executive offices of the Corporation not
later than the close of business on the 10th day following the date on
which such public announcement was first made by the Corporation.
(iii) To be in proper written form, a stockholder's notice to
the Secretary must set forth (A) as to each person whom the stockholder
proposes to nominate for election as a director (w) the name, age,
business address and residence address of the person, (x) the principal
occupation or employment of the person, (y) the class or series and
number of shares of capital stock of the Corporation that are owned
beneficially or of record by the person and (z) any other information
relating to the person that would be required to be disclosed in a
proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section
14 of the Exchange Act and the rules and regulations promulgated
thereunder; and (B) as to the stockholder giving the notice (v) the
name and record address of such stockholder and the name and address of
the beneficial owner, if any, on whose behalf the nomination is made,
(w) the class or series and number of shares of capital stock of the
Corporation that are owned beneficially and of record by such
stockholder and the beneficial owner, if any, on whose behalf the
nomination is made, (x) a description of all arrangements or
understandings relating to the nomination to be made by such
stockholder among such stockholder, the beneficial owner, if any, on
whose behalf the nomination is made, each proposed nominee and any
other person or persons (including their names), (y) a representation
that such stockholder intends to appear in person or by proxy at the
meeting to nominate the persons named in its notice and (z) any other
information relating to such stockholder and the beneficial owner, if
any, on whose behalf the nomination is made that would be required to
be disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and
regulations promulgated thereunder. Such notice must be accompanied by
a written consent of each proposed nominee to being named as a nominee
and to serve as a director if elected.
(iv) In addition to the provisions of this Section 3.2, a
stockholder shall also comply with all of the applicable requirements
of the Exchange Act and the rules and regulations thereunder with
respect to the matters set forth herein. Nothing in this Section 3.2
shall be deemed to affect any rights of the holders of Preferred Stock
to elect directors pursuant to the Certificate of Incorporation.
(d) Except as otherwise provided by the terms of one or more series of
Preferred Stock with respect to the rights of one or more series of Preferred
Stock to nominate and elect directors or the terms of any Contractual Nomination
Right, no person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section
3.2. If the Board or the chairman of the meeting of stockholders determines that
any nomination was not made in accordance with the provisions of this Section
3.2, then such nomination shall not be considered at the meeting in question.
Notwithstanding
15
the foregoing provisions of this Section 3.2, if a stockholder complying with
Section 3.2(c) (or a qualified representative of such stockholder) does not
appear at the meeting of stockholders of the Corporation to present the
nomination, such nomination shall be disregarded, notwithstanding that proxies
in respect of such nomination may have been received by the Corporation.
SECTION 3.3 COMPENSATION. Unless otherwise restricted by the
Certificate of Incorporation or these By-Laws, the Board shall have the
authority to fix the compensation of directors. The directors may be reimbursed
their expenses, if any, of attendance at each meeting of the Board and may be
paid either a fixed sum for attendance at each meeting of the Board or other
compensation as director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of committees of the Board may be allowed like compensation
and reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
SECTION 4.1 ANNUAL MEETINGS. The Board shall meet as soon as
practicable after the adjournment of each annual stockholders meeting at the
place of the annual stockholders meeting unless the Board shall fix another time
and place and give notice thereof in the manner required herein for special
meetings of the Board. No notice to the directors shall be necessary to legally
convene this meeting, except as provided in this Section 4.1.
SECTION 4.2 REGULAR MEETINGS. Regularly scheduled, periodic meetings of
the Board may be held without notice at such times, dates and places as shall
from time to time be determined by the Board.
SECTION 4.3 SPECIAL MEETINGS. Special meetings of the Board (a) may be
called by (i) the Chairman of the Board, (ii) Chief Executive Officer, (iii) a
majority of the Group A Directors, (iv) a majority of the Group B Directors or
(v) a majority of the all of the Directors comprising the Board and (b) shall be
called by the Chairman of the Board, Chief Executive Officer or Secretary on the
written request of at least a majority of directors then in office, or the sole
director, as the case may be, and shall be held at such time, date and place as
may be determined by the person calling the meeting or, if called upon the
request of directors or the sole director, as specified in such written request.
Notice of each special meeting of the Board shall be given, as provided in
Section 9.3, to each director (i) at least 24 hours before the meeting if such
notice is oral notice given personally or by telephone or written notice given
by hand delivery or by means of a form of electronic transmission and delivery;
(ii) at least two days before the meeting if such notice is sent by a nationally
recognized overnight delivery service; and (iii) at least five days before the
meeting if such notice is sent through the United States mail. If the Secretary
shall fail or refuse to give such notice, then the notice may be given by the
officer who called the meeting or the directors who requested the meeting. Any
and all business that may be transacted at a regular meeting of the Board may be
transacted at a special meeting. Except as may be otherwise expressly provided
by applicable law, the Certificate of Incorporation, or these By-Laws, neither
the business to be transacted at, nor the purpose of, any special meeting need
be specified in the notice or waiver of notice of such meeting. A special
16
meeting may be held at any time without notice if all the directors are present
or if those not present waive notice of the meeting in accordance with Section
9.4.
SECTION 4.4 QUORUM; REQUIRED VOTE. A majority of the Whole Board shall
constitute a quorum for the transaction of business at any meeting of the Board,
and the act of a majority of the directors present at any meeting at which there
is a quorum shall be the act of the Board, except as may be otherwise
specifically provided by applicable law, the Certificate of Incorporation or
these By-Laws. If a quorum shall not be present at any meeting, a majority of
the directors present may adjourn the meeting from time to time, without notice
other than announcement at the meeting, until a quorum is present.
SECTION 4.5 CONSENT IN LIEU OF MEETING. Unless otherwise restricted by
the Certificate of Incorporation or these By-Laws, any action required or
permitted to be taken at any meeting of the Board or any committee thereof may
be taken without a meeting if all members of the Board or committee, as the case
may be, consent thereto in writing or by electronic transmission, and the
writing or writings or electronic transmission or transmissions (or paper
reproductions thereof) are filed with the minutes of proceedings of the Board or
committee. Such filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are maintained in
electronic form.
SECTION 4.6 ORGANIZATION. The chairman of each meeting of the Board
shall be the Chairman of the Board or, in the absence (or inability or refusal
to act) of the Chairman of the Board, the Chief Executive Officer (if he or she
shall be a director) or, in the absence (or inability or refusal to act) of the
Chief Executive Officer or if the Chief Executive Officer is not a director, the
President (if he or she shall be a director) or in the absence (or inability or
refusal to act) of the President or if the President is not a director, a
chairman elected from the directors present. The Secretary shall act as
secretary of all meetings of the Board. In the absence (or inability or refusal
to act) of the Secretary, an Assistant Secretary shall perform the duties of the
Secretary at such meeting. In the absence (or inability or refusal to act) of
the Secretary and all Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
SECTION 5.1 ESTABLISHMENT. The Board may designate one or more
committees, each committee to consist of one or more of the directors. During
the Special Voting Period, (a) Group B Directors shall constitute a majority of
the Compensation Committee and such committee shall have at least one Group A
Director and (b) the Audit Committee shall have at least one Group A Director.
During the Special Voting Period, the Board shall have a Nominating Committee as
set forth in Section 3.2 of these By-Laws. Each committee shall keep regular
minutes of its meetings and report the same to the Board when required. Subject
to this Section 5.1, The Board shall have the power at any time to fill
vacancies in, to change the membership of, or to dissolve any such committee,
except as otherwise provided in Section 3.2 with respect to the Nominating
Committee, the Group A Subcommittee and the Group B Subcommittee during the
Special Voting Period.
17
SECTION 5.2 AVAILABLE POWERS. Any committee established pursuant to
Section 5.1 hereof, to the extent permitted by applicable law and by resolution
of the Board, shall have and may exercise all of the powers and authority of the
Board in the management of the business and affairs of the Corporation, and may
authorize the seal of the Corporation to be affixed to all papers that may
require it.
SECTION 5.3 ALTERNATE MEMBERS. Subject to Section 5.1, the Board may
designate one or more directors as alternate members of any committee, who may
replace any absent or disqualified member at any meeting of such committee.
SECTION 5.4 PROCEDURES. Unless the Board otherwise provides, the time,
date, place, if any, and notice of meetings of a committee and the means of
remote communication, if any, shall be determined by such committee. At meetings
of a committee, a majority of the number of members of the committee (but not
including any alternate member, unless such alternate member has replaced any
absent or disqualified member at the time of, or in connection with, such
meeting) shall constitute a quorum for the transaction of business. The act of a
majority of the members present at any meeting at which a quorum is present
shall be the act of the committee, except as otherwise specifically provided by
applicable law, the Certificate of Incorporation, these By-Laws or the Board. If
a quorum is not present at a meeting of a committee, the members present may
adjourn the meeting from time to time, without notice other than an announcement
at the meeting, until a quorum is present. Unless the Board otherwise provides
and except as provided in these By-Laws, each committee designated by the Board
may make, alter, amend and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same
manner as the Board is authorized to conduct its business pursuant to Article
III and Article IV of these By-Laws.
ARTICLE VI
OFFICERS
SECTION 6.1 OFFICERS. The officers of the Corporation elected by the
Board shall be a Chairman of the Board, a Chief Executive Officer, a President,
a Treasurer, a Secretary and such other officers (including without limitation a
Chief Financial Officer, Vice Presidents, Assistant Secretaries and Assistant
Treasurers) as the Board from time to time may determine. Officers elected by
the Board shall each have such powers and duties as generally pertain to their
respective offices, subject to the specific provisions of this Article VI. Such
officers shall also have such powers and duties as from time to time may be
conferred by the Board. The Chairman of the Board, Chief Executive Officer or
President may also appoint such other officers (including without limitation one
or more Vice Presidents and Controllers) as may be necessary or desirable for
the conduct of the business of the Corporation. Such other officers shall have
such powers and duties and shall hold their offices for such terms as may be
provided in these By-Laws or as may be prescribed by the Board or, if such
officer has been appointed by the Chairman of the Board, Chief Executive Officer
or President, as may be prescribed by the appointing officer.
(a) Chairman of the Board. The Chairman of the Board shall preside when
present at all meetings of the stockholders and the Board. The Chairman of the
Board shall advise and counsel the Chief Executive Officer and other officers
and shall exercise such powers
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and perform such duties as shall be assigned to or required of the Chairman of
the Board from time to time by the Board or these By-Laws.
(b) Chief Executive Officer. The Chief Executive Officer shall be the
chief executive officer of the Corporation, shall have general supervision of
the affairs of the Corporation and general control of all of its business
subject to the ultimate authority of the Board, and shall be responsible for the
execution of the policies of the Board. In the absence (or inability or refusal
to act) of the Chairman of the Board, the Chief Executive Officer (if he or she
shall be a director) shall preside when present at all meetings of the
stockholders and the Board.
(c) President. The President shall be the chief operating officer of
the Corporation and shall, subject to the authority of the Chief Executive
Officer and the Board, have general management and control of the day-to-day
business operations of the Corporation and shall consult with and report to the
Chief Executive Officer. The President shall put into operation the business
policies of the Corporation as determined by the Chief Executive Officer and the
Board and as communicated to the President by the Chief Executive Officer and
the Board. The President shall make recommendations to the Chief Executive
Officer on all operational matters that would normally be reserved for the final
executive responsibility of the Chief Executive Officer. In the absence (or
inability or refusal to act) of the Chairman of the Board and Chief Executive
Officer, the President (if he or she shall be a director) shall preside when
present at all meetings of the stockholders and the Board.
(d) Vice Presidents. In the absence (or inability or refusal to act) of
the President, the Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the Board) shall
perform the duties and have the powers of the President. Any one or more of the
Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall attend all meetings of the
stockholders, the Board and (as required) committees of the Board and
shall record the proceedings of such meetings in books to be kept for
that purpose. The Secretary shall give, or cause to be given, notice of
all meetings of the stockholders and special meetings of the Board and
shall perform such other duties as may be prescribed by the Board, the
Chairman of the Board, Chief Executive Officer or the President. The
Secretary shall have custody of the corporate seal of the Corporation
and the Secretary, or any Assistant Secretary, shall have authority to
affix the same to any instrument requiring it, and when so affixed, it
may be attested by his or her signature or by the signature of such
Assistant Secretary. The Board may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing
thereof by his or her signature.
(ii) The Secretary shall keep, or cause to be kept, at the
principal executive office of the Corporation or at the office of the
Corporation's transfer agent or registrar, if one has been appointed, a
stock ledger, or duplicate stock ledger, showing the names of the
stockholders and their addresses, the number and classes of shares held
by each and, with respect to certificated shares, the number and date
of certificates issued for the same and the number and date of
certificates cancelled.
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(f) Assistant Secretaries. The Assistant Secretary or, if there be more
than one, the Assistant Secretaries in the order determined by the Board shall,
in the absence (or inability or refusal to act) of the Secretary, perform the
duties and have the powers of the Secretary.
(g) Treasurer. The Treasurer shall perform all duties commonly incident
to that office (including, without limitation, the care and custody of the funds
and securities of the Corporation which from time to time may come into the
Treasurer's hands and the deposit of the funds of the Corporation in such banks
or trust companies as the Board, the Chief Executive Officer or the President
may authorize).
(h) Assistant Treasurers. The Assistant Treasurer or, if there shall be
more than one, the Assistant Treasurers in the order determined by the Board
shall, in the absence (or inability or refusal to act) of the Treasurer, perform
the duties and exercise the powers of the Treasurer.
SECTION 6.2 TERM OF OFFICE. The elected officers of the Corporation
shall be elected annually by the Board at its first meeting held after each
annual meeting of stockholders. All officers elected by the Board shall hold
office until the next annual meeting of the Board and until their successors are
duly elected and qualified or until their earlier death, resignation,
retirement, disqualification, or removal from office. Any officer may be
removed, with or without cause, at any time by the Board. Any officer appointed
by the Chairman of the Board, Chief Executive Officer or President may also be
removed, with or without cause, by the Chairman of the Board, Chief Executive
Officer or President, as the case may be, unless the Board otherwise provides.
Any vacancy occurring in any elected office of the Corporation may be filled by
the Board. Any vacancy occurring in any office appointed by the Chairman of the
Board, Chief Executive Officer or President may be filled by the Chairman of the
Board, Chief Executive Officer or President, as the case may be, unless the
Board then determines that such office shall thereupon be elected by the Board,
in which case the Board shall elect such officer.
SECTION 6.3 OTHER OFFICERS. The Board may delegate the power to appoint
such other officers and agents, and may also remove such officers and agents or
delegate the power to remove same, as it shall from time to time deem necessary
or desirable.
SECTION 6.4 MULTIPLE OFFICEHOLDERS; STOCKHOLDER AND DIRECTOR OFFICERS.
Any number of offices may be held by the same person, unless the Certificate of
Incorporation or these By-Laws otherwise provide. Officers need not be
stockholders or residents of the State of Delaware.
ARTICLE VII
SHARE CERTIFICATES
SECTION 7.1 ENTITLEMENT TO CERTIFICATES. The shares of the Corporation
shall be represented by certificates, provided that the Board may provide by
resolution or resolutions that some or all of any or all classes or series of
its stock shall be uncertificated shares. Any such resolution shall not apply to
shares represented by a certificate until such certificate is surrendered to the
Corporation. Notwithstanding the adoption of such a resolution by the Board,
every holder of stock represented by certificates and upon request every holder
of
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uncertificated shares shall be entitled to have a certificate signed in
accordance with Section 7.3 representing the number of shares registered in
certificate form.
SECTION 7.2 MULTIPLE CLASSES OF STOCK. If the Corporation shall be
authorized to issue more than one class of stock or more than one series of any
class, the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and
the qualification, limitations or restrictions of such preferences and/or rights
shall, unless and to the extent (and subject to applicable law) the Board shall
by resolution provide that such class or series of stock shall be
uncertificated, be set forth in full or summarized on the face or back of any
certificate that the Corporation shall issue to represent such class or series
of stock; provided that, in lieu of the foregoing requirements, there may be set
forth on the face or back of such certificate a statement that the Corporation
will furnish without charge to each stockholder who so requests the powers,
designations, preferences and relative, participating, optional, or other
special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights.
SECTION 7.3 SIGNATURES. Each certificate representing capital stock of
the Corporation shall be signed by or in the name of the Corporation by (a) the
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President; and (b) the Treasurer, an Assistant Treasurer, the Secretary, or an
Assistant Secretary of the Corporation. Any or all the signatures on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar on the date of
issue.
SECTION 7.4 ISSUANCE AND PAYMENT. Subject to applicable law, the
Certificate of Incorporation or these By-Laws, shares may be issued for such
consideration and to such persons as the Board may determine from time to time.
Shares may not be issued until the full amount of the consideration has been
paid, unless upon the face or back of each certificate issued to represent any
partly paid shares of capital stock there shall have been set forth the total
amount of the consideration to be paid therefor and the amount paid thereon up
to and including the time said certificate is issued.
SECTION 7.5 LOST CERTIFICATES. The Corporation may issue a new
certificate of stock or uncertificated shares in place of any certificate
theretofore issued by it alleged to have been lost, stolen or destroyed upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue, the
Corporation may require the owner of such lost, stolen or destroyed certificate,
or such owner's legal representative, to give the Corporation a bond sufficient
to indemnify it against any claim that may be made against it on account of the
alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate or uncertificated shares.
SECTION 7.6 TRANSFER OF STOCK. Stock of the Corporation shall be
transferable in the manner prescribed by applicable law and in these By-Laws.
Transfers of stock shall be made on the stock ledger of the Corporation only by
the person named as the holder thereof on the stock ledger of the Corporation or
by such person's duly constituted attorney or legal representative, and in the
case of shares represented by a certificate, upon the
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surrender of the certificate therefor, which shall be canceled before a new
certificate shall be issued. No transfer of stock shall be valid as against the
Corporation for any purpose until it shall have been entered in the stock ledger
of the Corporation by an entry showing from and to whom transferred.
SECTION 7.7 REGISTERED STOCKHOLDERS. Except as otherwise required by
applicable law (a) the Corporation shall be entitled to recognize the exclusive
right of a person registered on its stock ledger as the owner of shares for all
purposes, including, without limitation, as the owner of such shares to receive
dividends, vote such shares, examine the stock ledger and the books of the
Corporation and be held liable for calls and assessments and (b) the Corporation
shall not be bound to recognize any equitable or other claim to or interest in
such share or shares on the part of any person other than such registered owner,
whether or not it shall have express or other notice thereof.
ARTICLE VIII
INDEMNIFICATION
SECTION 8.1 RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (hereinafter a "PROCEEDING"), by
reason of the fact that he or she is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(hereinafter a "COVERED PERSON"), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent, or in any other capacity while serving as a director, officer, employee
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent authorized or permitted by applicable law, as the same exists or
may hereafter be amended, against all expense, liability and loss (including,
without limitation, attorneys' fees, judgments, fines, ERISA excise taxes and
penalties and amounts paid in settlement) reasonably incurred or suffered by
such Covered Person in connection with such proceeding; provided, however, that,
except as provided in Section 8.3 with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify a Covered Person in
connection with a proceeding (or part thereof) initiated by such Covered Person
only if such proceeding (or part thereof) was authorized by the Board.
SECTION 8.2 RIGHT TO ADVANCEMENT OF EXPENSES. In addition to the right
to indemnification conferred in Section 8.1, a Covered Person shall also have
the right to be paid by the Corporation the expenses (including, without
limitation, attorneys' fees) incurred in defending, testifying, or otherwise
participating in any such proceeding in advance of its final disposition
(hereinafter an "ADVANCEMENT OF EXPENSES"); provided, however, that, if the
Delaware General Corporation Law ("DGCL") requires, an advancement of expenses
incurred by a Covered Person in his or her capacity as a director or officer of
the Corporation (and not in any other capacity in which service was or is
rendered by such Covered Person, including, without limitation, service to an
employee benefit plan) shall be made only upon delivery to the Corporation of an
undertaking (hereinafter an "UNDERTAKING"), by or on behalf of such Covered
Person, to repay all amounts so advanced if it shall ultimately be determined by
final judicial
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decision from which there is no further right to appeal (hereinafter a "FINAL
ADJUDICATION") that such Covered Person is not entitled to be indemnified for
such expenses under this Article VIII or otherwise.
SECTION 8.3 RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section
8.1 or Section 8.2 is not paid in full by the Corporation within 60 days after a
written claim therefor has been received by the Corporation, except in the case
of a claim for an advancement of expenses, in which case the applicable period
shall be 20 days, the Covered Person may at any time thereafter bring suit
against the Corporation to recover the unpaid amount of the claim. If successful
in whole or in part in any such suit, or in a suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the
Covered Person shall also be entitled to be paid the expense of prosecuting or
defending such suit. In (a) any suit brought by the Covered Person to enforce a
right to indemnification hereunder (but not in a suit brought by a Covered
Person to enforce a right to an advancement of expenses) it shall be a defense
that, and (b) in any suit brought by the Corporation to recover an advancement
of expenses pursuant to the terms of an undertaking, the Corporation shall be
entitled to recover such expenses upon a final adjudication that, the Covered
Person has not met any applicable standard for indemnification set forth in the
DGCL. Neither the failure of the Corporation (including its directors who are
not parties to such action, a committee of such directors, independent legal
counsel, or its stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Covered Person is proper
in the circumstances because the Covered Person has met the applicable standard
of conduct set forth in the DGCL, nor an actual determination by the Corporation
(including a determination by its directors who are not parties to such action,
a committee of such directors, independent legal counsel, or its stockholders)
that the Covered Person has not met such applicable standard of conduct, shall
create a presumption that the Covered Person has not met the applicable standard
of conduct or, in the case of such a suit brought by the Covered Person, shall
be a defense to such suit. In any suit brought by the Covered Person to enforce
a right to indemnification or to an advancement of expenses hereunder, or by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the Covered Person is not entitled to be
indemnified, or to such advancement of expenses, under this Article VIII or
otherwise shall be on the Corporation.
SECTION 8.4 NON-EXCLUSIVITY OF RIGHTS. The rights provided to Covered
Persons pursuant to this Article VIII shall not be exclusive of any other right
which any Covered Person may have or hereafter acquire under applicable law, the
Certificate of Incorporation, these By-Laws, an agreement, a vote of
stockholders or disinterested directors, or otherwise.
SECTION 8.5 INSURANCE. The Corporation may maintain insurance, at its
expense, to protect itself and/or any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
SECTION 8.6 INDEMNIFICATION OF OTHER PERSONS. This Article VIII shall
not limit the right of the Corporation to the extent and in the manner
authorized or permitted by law to indemnify and to advance expenses to persons
other than Covered Persons. Without limiting the foregoing, the Corporation may,
to the extent authorized from time to time by the Board,
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grant rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation and to any other person who is or was
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan, to the
fullest extent of the provisions of this Article VIII with respect to the
indemnification and advancement of expenses of Covered Persons under this
Article VIII.
SECTION 8.7 AMENDMENTS. Any repeal or amendment of this Article VIII by
the Board or the stockholders of the Corporation or by changes in applicable
law, or the adoption of any other provision of these By-Laws inconsistent with
this Article VIII, will, to the extent permitted by applicable law, be
prospective only (except to the extent such amendment or change in applicable
law permits the Corporation to provide broader indemnification rights to Covered
Persons on a retroactive basis than permitted prior thereto), and will not in
any way diminish or adversely affect any right or protection existing hereunder
in respect of any act or omission occurring prior to such repeal or amendment or
adoption of such inconsistent provision.
SECTION 8.8 CERTAIN DEFINITIONS. For purposes of this Article VIII, (a)
references to "other enterprise" shall include any employee benefit plan; (b)
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; (c) references to "serving at the request
of the Corporation" shall include any service that imposes duties on, or
involves services by, a person with respect to any employee benefit plan, its
participants, or beneficiaries; and (d) a person who acted in good faith and in
a manner such person reasonably believed to be in the interest of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interest of the Corporation" for
purposes of Section 145 of the DGCL.
SECTION 8.9 CONTRACT RIGHTS. The rights provided to Covered Persons
pursuant to this Article VIII shall be contract rights and such rights shall
continue as to a Covered Person who has ceased to be a director, officer, agent
or employee and shall inure to the benefit of the Covered Person's heirs,
executors and administrators.
SECTION 8.10 SEVERABILITY. If any provision or provisions of this
Article VIII shall be held to be invalid, illegal or unenforceable for any
reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Article VIII shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the provisions of this
Article VIII (including, without limitation, each such portion of this Article
VIII containing any such provision held to be invalid, illegal or unenforceable)
shall be construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 PLACE OF MEETINGS. If the place of any meeting of
stockholders, the Board or committee of the Board for which notice is required
under these By-Laws is not designated in the notice of such meeting, such
meeting shall be held at the principal business office of the Corporation;
provided, however, if the Board has, in its sole discretion, determined
24
that a meeting shall not be held at any place, but instead shall be held by
means of remote communication pursuant to Section 9.5 hereof, then such meeting
shall not be held at any place.
SECTION 9.2 FIXING RECORD DATES.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board may fix a record date, which shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board, and which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If no record date is fixed by the Board, the
record date for determining stockholders entitled to notice of or to vote at a
meeting of stockholders shall be at the close of business on the business day
next preceding the day on which notice is given, or, if notice is waived, at the
close of business on the business day next preceding the day on which the
meeting is held. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for the
adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of
any change, conversion or exchange of stock, or for the purpose of any other
lawful action, the Board may fix a record date, which record date shall not
precede the date upon which the resolution fixing the record date is adopted,
and which record date shall be not more than 60 days prior to such action. If no
record date is fixed, the record date for determining stockholders for any such
purpose shall be at the close of business on the day on which the Board adopts
the resolution relating thereto.
(c) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the Board
may fix a record date, which record date shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board. If no record date has been fixed by the
Board, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
is otherwise required, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office in the State of Delaware, its
principal place of business, or the Secretary of the Corporation. Delivery made
to the Corporation's registered office shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board and prior action by the Board is otherwise required, the record date
for determining stockholders entitled to consent to corporate action in writing
without a meeting shall be at the close of business on the day on which the
Board adopts the resolution taking such prior action.
SECTION 9.3 MEANS OF GIVING NOTICE.
(a) Notice to Directors. Whenever under applicable law, the Certificate
of Incorporation or these By-Laws notice is required to be given to any
director, such notice shall be given either (i) in writing and sent by hand
delivery, through the United States mail, or by a nationally recognized
overnight delivery service for next day delivery, (ii) by means of facsimile
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telecommunication or other form of electronic transmission, or (iii) by oral
notice given personally or by telephone. A notice to a director will be deemed
given as follows: (i) if given by hand delivery, orally, or by telephone, when
actually received by the director, (ii) if sent through the United States mail,
when deposited in the United States mail, with postage and fees thereon prepaid,
addressed to the director at the director's address appearing on the records of
the Corporation, (iii) if sent for next day delivery by a nationally recognized
overnight delivery service, when deposited with such service, with fees thereon
prepaid, addressed to the director at the director's address appearing on the
records of the Corporation, (iv) if sent by facsimile telecommunication, when
sent to the facsimile transmission number for such director appearing on the
records of the Corporation, (v) if sent by electronic mail, when sent to the
electronic mail address for such director appearing on the records of the
Corporation, or (vi) if sent by any other form of electronic transmission, when
sent to the address, location or number (as applicable) for such director
appearing on the records of the Corporation.
(b) Notice to Stockholders. Whenever under applicable law, the
Certificate of Incorporation or these By-Laws notice is required to be given to
any stockholder, such notice may be given (i) in writing and sent either by hand
delivery, through the United States mail, or by a nationally recognized
overnight delivery service for next day delivery, or (ii) by means of a form of
electronic transmission consented to by the stockholder, to the extent permitted
by, and subject to the conditions set forth in Section 232 of the DGCL. A notice
to a stockholder shall be deemed given as follows: (i) if given by hand
delivery, when actually received by the stockholder, (ii) if sent through the
United States mail, when deposited in the United States mail, with postage and
fees thereon prepaid, addressed to the stockholder at the stockholder's address
appearing on the stock ledger of the Corporation, (iii) if sent for next day
delivery by a nationally recognized overnight delivery service, when deposited
with such service, with fees thereon prepaid, addressed to the stockholder at
the stockholder's address appearing on the stock ledger of the Corporation, and
(iv) if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given and otherwise meeting the requirements
set forth above, (A) if by facsimile transmission, when directed to a number at
which the stockholder has consented to receive notice, (B) if by electronic
mail, when directed to an electronic mail address at which the stockholder has
consented to receive notice, (C) if by a posting on an electronic network
together with separate notice to the stockholder of such specified posting, upon
the later of (1) such posting and (2) the giving of such separate notice, and
(D) if by any other form of electronic transmission, when directed to the
stockholder. A stockholder may revoke such stockholder's consent to receiving
notice by means of electronic communication by giving written notice of such
revocation to the Corporation. Any such consent shall be deemed revoked if (1)
the Corporation is unable to deliver by electronic transmission two consecutive
notices given by the Corporation in accordance with such consent and (2) such
inability becomes known to the Secretary or an Assistant Secretary or to the
Corporation's transfer agent, or other person responsible for the giving of
notice; provided, however, the inadvertent failure to treat such inability as a
revocation shall not invalidate any meeting or other action.
(c) Electronic Transmission. "ELECTRONIC TRANSMISSION" means any form
of communication, not directly involving the physical transmission of paper,
that creates a record that may be retained, retrieved and reviewed by a
recipient thereof, and that may be directly reproduced in paper form by such a
recipient through an automated process, including but not limited to
transmission by telex, facsimile telecommunication, electronic mail, telegram
and cablegram.
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SECTION 9.4 WAIVER OF NOTICE. Whenever any notice is required to be
given under applicable law, the Certificate of Incorporation, or these By-Laws,
a written waiver of such notice, signed before or after the date of such meeting
by the person or persons entitled to said notice, or a waiver by electronic
transmission by the person entitled to said notice, shall be deemed equivalent
to such required notice. All such waivers shall be kept with the books of the
Corporation. Attendance at a meeting shall constitute a waiver of notice of such
meeting, except where a person attends for the express purpose of objecting to
the transaction of any business on the ground that the meeting was not lawfully
called or convened.
SECTION 9.5 MEETING ATTENDANCE VIA REMOTE COMMUNICATION EQUIPMENT.
(a) Stockholder Meetings. If authorized by the Board in its sole
discretion, and subject to such guidelines and procedures as the Board may
adopt, stockholders and proxyholders not physically present at a meeting of
stockholders may, by means of remote communication:
(i) participate in a meeting of stockholders; and
(ii) be deemed present in person and vote at a meeting of
stockholders, whether such meeting is to be held at a designated place
or solely by means of remote communication, provided that (A) the
Corporation shall implement reasonable measures to verify that each
person deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxyholder, (B) the
Corporation shall implement reasonable measures to provide such
stockholders and proxyholders a reasonable opportunity to participate
in the meeting and to vote on matters submitted to the stockholders,
including an opportunity to read or hear the proceedings of the meeting
substantially concurrently with such proceedings, and (C) if any
stockholder or proxyholder votes or takes other action at the meeting
by means of remote communication, a record of such votes or other
action shall be maintained by the Corporation.
(b) Board Meetings. Unless otherwise restricted by applicable law, the
Certificate of Incorporation, or these By-Laws, members of the Board or any
committee thereof may participate in a meeting of the Board or any committee
thereof by means of conference telephone or other communications equipment by
means of which all persons participating in the meeting can hear each other.
Such participation in a meeting shall constitute presence in person at the
meeting, except where a person participates in the meeting for the express
purpose of objecting to the transaction of any business on the ground that the
meeting was not lawfully called or convened.
SECTION 9.6 DIVIDENDS. The Board may from time to time declare, and the
Corporation may pay, dividends (payable in cash, property or shares of the
Corporation's capital stock) on the Corporation's outstanding shares of capital
stock, subject to applicable law and the Certificate of Incorporation.
27
SECTION 9.7 RESERVES. The Board may set apart out of the funds of the
Corporation available for dividends a reserve or reserves for any proper purpose
and may abolish any such reserve.
SECTION 9.8 CONTRACTS AND NEGOTIABLE INSTRUMENTS. Except as otherwise
provided by applicable law, the Certificate of Incorporation or these By-Laws,
any contract, bond, deed, lease, mortgage or other instrument may be executed
and delivered in the name and on behalf of the Corporation by such officer or
officers or other employee or employees of the Corporation as the Board may from
time to time authorize. Such authority may be general or confined to specific
instances as the Board may determine. The Chairman of the Board, the Chief
Executive Officer, the President or any Vice President may execute and deliver
any contract, bond, deed, lease, mortgage or other instrument in the name and on
behalf of the Corporation. Subject to any restrictions imposed by the Board, the
Chairman of the Board. Chief Executive Officer, President or any Vice President
may delegate powers to execute and deliver any contract, bond, deed, lease,
mortgage or other instrument in the name and on behalf of the Corporation to
other officers or employees of the Corporation under such person's supervision
and authority, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of
such delegated power.
SECTION 9.9 FISCAL YEAR. The fiscal year of the Corporation shall be
fixed by the Board.
SECTION 9.10 SEAL. The seal of the Corporation shall be in such form as
shall from time to time be adopted by the Board. The seal may be used by causing
it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
SECTION 9.11 BOOKS AND RECORDS. The books and records of the
Corporation may be kept within or outside the State of Delaware at such place or
places as may from time to time be designated by the Board.
SECTION 9.12 RESIGNATION. Any director, committee member or officer may
resign by giving notice thereof in writing or by electronic transmission to the
Chairman of the Board, the Chief Executive Officer, the President or the
Secretary. The resignation shall take effect at the time specified therein, or
at the time of receipt of such notice if no time is specified or the specified
time is earlier than the time of such receipt. Unless otherwise specified
therein, the acceptance of such resignation shall not be necessary to make it
effective.
SECTION 9.13 SURETY BONDS. Such officers, employees and agents of the
Corporation (if any) as the Chairman of the Board, Chief Executive Officer,
President or the Board may direct, from time to time, shall be bonded for the
faithful performance of their duties and for the restoration to the Corporation,
in case of their death, resignation, retirement, disqualification or removal
from office, of all books, papers, vouchers, money and other property of
whatever kind in their possession or under their control belonging to the
Corporation, in such amounts and by such surety companies as the Chairman of the
Board, Chief Executive Officer, President or the Board may determine. The
premiums on such bonds shall be paid by the Corporation and the bonds so
furnished shall be in the custody of the Secretary.
28
SECTION 9.14 SECURITIES OF OTHER CORPORATIONS. Powers of attorney,
proxies, waivers of notice of meeting, consents in writing and other instruments
relating to securities owned by the Corporation may be executed in the name of
and on behalf of the Corporation by the Chairman of the Board, Chief Executive
Officer, President or any Vice President. Any such officer, may, in the name of
and on behalf of the Corporation, take all such action as any such officer may
deem advisable to vote in person or by proxy at any meeting of security holders
of any corporation in which the Corporation may own securities, or to consent in
writing, in the name of the Corporation as such holder, to any action by such
corporation, and at any such meeting or with respect to any such consent shall
possess and may exercise any and all rights and power incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have
exercised and possessed. The Board may from time to time confer like powers upon
any other person or persons.
SECTION 9.15 AMENDMENTS. The Board shall have the power to adopt,
amend, alter or repeal the By-Laws. Except as provided in the Certificate of
Incorporation, the affirmative vote of a majority of the Whole Board shall be
required to adopt, amend, alter or repeal the Bylaws. The By-Laws also may be
adopted, amended, altered or repealed by the stockholders.
29
EXHIBIT O
Form of Voting Agreement
[ATTACHED]
================================================================================
VOTING AGREEMENT
BY AND AMONG
VENTURI PARTNERS, INC.
AND
THE STOCKHOLDERS NAMED HEREIN
DATED AS OF [*], 2004
================================================================================
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of
[*], 2004 by and among VENTURI PARTNERS, INC., a Delaware corporation (the
"COMPANY"), and the parties identified as "Stockholders" on the signature pages
hereto.
PRELIMINARY STATEMENTS
The Company, VTP, Inc., Venturi Technology Partners, LLC, Comsys
Information Technology Services, Inc., Comsys Holding, Inc. and certain
stockholders of Holding have entered into an Agreement and Plan of Merger dated
as of July [*], 2004 (as the same may be amended from time to time, the "MERGER
AGREEMENT"), pursuant to which, upon the terms and subject to the conditions
thereof, VTP, Inc. will be merged with and into Comsys Holding, Inc. and Comsys
Holding, Inc. will be the surviving entity (the "MERGER").
As a condition to the consummation of the transactions contemplated by
the Merger Agreement, various stockholders of the Company and of Holding have
required that the Company and certain parties who are, or who as a result of the
Merger will become, stockholders of the Company, and the Company and such
parties are willing to, enter into a voting agreement with respect to
nominations to the board of directors of the Company at and after the
effectiveness of the Merger.
Capitalized terms used but not defined herein have the meanings given
in the Merger Agreement.
Now, therefore, for good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Exchange Act.
"AGREEMENT" has the meaning given in the preamble to this Agreement.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"BYLAWS" means the Bylaws of the Company as in effect from time to
time.
"CLOSING" has the meaning given in the Merger Agreement.
"COMMISSION" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"COMMON STOCK" means the common stock of the Company now or hereafter
authorized to be issued.
"COMPANY" has the meaning given in the preamble to this Agreement.
"DIRECTOR" means a member of the Board of Directors.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder, all as the same
shall be in effect at the time.
"GROUP B DIRECTOR" means Xxxxxx, a Wachovia Director or a director who
was selected by the Group B Subcommittee of the Nominating Committee of the
Board of Directors for election to, or to fill a vacancy or newly created
directorship on, the Board of Directors pursuant to this Agreement or Section
3.2 of the Bylaws.
"GROUP B SUBCOMMITTEE" means a subcommittee of the Nominating Committee
of the Board of Directors comprised solely of the Independent Wachovia Directors
serving on the Nominating Committee.
"HOLDING" means Comsys Holding, Inc., a Delaware corporation.
"INDEPENDENT WACHOVIA DIRECTOR" means any Wachovia Director who meets
the definition of independent director under applicable rules and listing
standards of the principal securities exchange or market on which the Common
Stock is listed or approved for trading.
"HORNETS STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the title "Hornets Stockholders".
"JUNIOR STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the title "Junior Stockholders" and any
Affiliate thereof to which a Junior Stockholder transfers any shares of Common
Stock and which has agreed in writing to be bound by the terms of this
Agreement.
"MAJOR STOCKHOLDER" means any Wachovia Stockholder or Hornets
Stockholder that owned, at the Effective Time, directly or beneficially as part
of the Stockholder Group of which it is a part, greater than 10% of the then
outstanding Common Stock, as such ownership is reflected on the applicable
Schedules to this Agreement.
"MERGER" has the meaning given in the preliminary statements to this
Agreement.
"MERGER AGREEMENT" has the meaning given in the preliminary statements
to this Agreement.
2
"NOMINATING COMMITTEE" means the Nominating Committee of the Board of
Directors established pursuant to and in accordance with the Bylaws.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder, as the same shall be in
effect at the time.
"SHARES" means shares of Common Stock.
"SPECIAL VOTING PERIOD" means the period commencing immediately after
the Effective Time (as defined in the Certificate of Incorporation) and ending
on the third anniversary of the Effective Time.
"STOCKHOLDER" means Xxxxxx or any Wachovia Stockholder, Junior
Stockholder or Hornets Stockholder.
"STOCKHOLDER GROUP" means each of the following three groups of
Stockholders: (a) the Stockholders comprising the Wachovia Stockholders shall be
one Stockholder Group, (b) the Stockholders comprising the Junior Stockholders
shall be one Stockholder Group and (c) the Stockholders comprising the Hornets
Stockholders shall be one Stockholder Group.
"STOCKHOLDER REPRESENTATIVE" has the meaning given in Section 4.18.
"STOCKHOLDERS" means, collectively, Xxxxxx, the Wachovia Stockholders,
the Junior Stockholders and the Hornets Stockholders.
"WACHOVIA DIRECTOR" means (a) a director of the Company who was so
designated as a Wachovia Designee by Holding to serve on the Board of Directors
pursuant to Section 6.15(a) of the Merger Agreement, (b) any director of the
Company who was nominated for election as a director of the Company by the
Wachovia Stockholders or (c) any director who was nominated by the Wachovia
Stockholders to fill a vacancy that was held immediately prior to such vacancy
by a Wachovia Director or a newly created directorship on the Board of Directors
for which the Wachovia Stockholders would have the right to recommend an
additional nominee pursuant to this Agreement or Section 3.2 of the Bylaws.
"WACHOVIA STOCKHOLDERS" means the holders of Common Stock listed on the
signature pages of this Agreement under the title "Wachovia Stockholders" and
any Affiliate thereof to which a Wachovia Stockholder transfers any shares of
Common Stock and which has agreed in writing to be bound by the terms of this
Agreement.
"XXXXXX" means Xxxxxxx X. Xxxxxx.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The Company
hereby represents and warrants to the other parties hereto as follows: The
Company has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions
3
contemplated hereby. The execution and delivery by the Company of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of the Company. This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms. No consent,
approval, order or authorization of, or registration, declaration or filing
with, any court, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign, is required by, or with
respect to, the Company in connection with the execution and delivery of this
Agreement by the Company or the consummation by the Company of the transactions
contemplated hereby. The execution and delivery of this Agreement by the Company
and the consummation of the transactions contemplated hereby by the Company does
not conflict with, or result in a breach of, any law or regulation of any
governmental authority applicable to the Company or any material agreement to
which the Company is a party.
Section 2.2. Representations and Warranties of the Stockholders.
(a) Each Stockholder that is not a natural person, severally
and not jointly, hereby represents and warrants, as to itself only and not as to
any other Stockholder, to the other parties hereto as follows:
(i) Authority. The Stockholder has all requisite
corporate, partnership or limited liability company power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery by the Stockholder of this Agreement, and the
consummation by the Stockholder of the transactions contemplated hereby, have
been duly authorized by all necessary corporate, partnership or limited
liability company action on the part of the Stockholder. This Agreement has been
duly executed and delivered by the Stockholder and constitutes a valid and
binding obligation of the Stockholder, enforceable against the Stockholder in
accordance with its terms. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, is required by, or with respect to, the Stockholder in connection with
the execution and delivery of this Agreement by the Stockholder or the
consummation by the Stockholder of the transactions contemplated hereby. The
execution and delivery of this Agreement by the Stockholder and the consummation
of the transactions contemplated hereby by the Stockholder does not conflict
with, or result in a breach of, any law or regulation of any governmental
authority applicable to the Stockholder or any material agreement to which the
Stockholder is a party.
(ii) Shares. As of the Effective Time, the
Stockholder is the record and beneficial owner of the number of Shares set forth
across from such Stockholder's name on Schedule 2.2(a)(ii).
(b) Each Stockholder that is a natural person, severally and
not jointly, hereby represents and warrants, as to itself only and not as to any
other Stockholder, to the other parties hereto as follows:
4
(i) Authority. The Stockholder has all requisite
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery by the Stockholder
of this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of the Stockholder
and does not conflict with, or result in a breach of, any law or regulation of
any governmental authority applicable to any the Stockholder or any material
agreement to which such the Stockholder is a party. This Agreement has been duly
executed and delivered by the Stockholder and constitutes a valid and binding
obligation, enforceable against the Stockholder in accordance with its terms.
(ii) Shares. As of the Effective Time, the
Stockholder is the record and beneficial owner of the number of Shares set forth
across from such Stockholder's name on Schedule 2.2(b)(ii).
ARTICLE III
CORPORATE GOVERNANCE; CERTAIN CORPORATE ACTIONS
Section 3.1. Voting of Shares; Company Actions.
(a) From and after the date hereof and until the termination
of the Special Voting Period, each Stockholder shall vote all Shares owned or
controlled by such Stockholder, and shall take all other necessary or desirable
actions within such Stockholder's control (including, if permitted, attendance
at meetings in person or by proxy for purposes of obtaining a quorum and, if
permitted, execution of written consents in lieu of meetings), so that the
composition of the Board of Directors and the manner of selecting members
thereof shall be as set forth in Article Fifth of the Company's Certificate of
Incorporation, Section 3.2 of the Bylaws and this Article III, and to otherwise
effectuate the provisions of this Agreement.
(b) From and after the date hereof, the Company shall take all
necessary or desirable actions within its control (including calling special
board and stockholder meetings) to effectuate the provisions of this Agreement.
Section 3.2. Composition of the Board of Directors.
(a) Election of Xxxxxxx Xxxxxx. During the Special Voting
Period, for so long as he is the Chief Executive Officer of the Company, the
Company shall nominate Xxxxxxx Xxxxxx to serve as a Director of the Company, and
include Xx. Xxxxxx as a nominee in its proxy statement to be distributed to
stockholders in connection with the annual meeting of stockholders. In the event
the nomination rights set forth in this provision are not permitted by
applicable Nasdaq rules, or if the Company's Common Stock is not then traded on
the Nasdaq National Market, the comparable requirements of the principal
securities exchange or market on which the Company's Common Stock is then listed
or approved for trading, the Nominating Committee will then have the exclusive
delegated authority of the Board to fill the directorship contemplated hereby.
5
(b) Nomination Rights. The following provisions shall apply
during the Special Voting Period and in each case to the extent permitted by
applicable law and by applicable rules and listing standards of the principal
securities exchange or market on which the Common Stock is listed or approved
for trading:
Prior to each annual meeting of stockholders of the Company during the Special
Voting Period, the Wachovia Stockholders and, if they fail to do so, the Group B
Subcommittee will, subject to the procedures and qualification requirements set
forth in this Agreement, have the right to designate nominees for directors to
be elected by the stockholders at such annual meeting as follows:
------------------------------------------------------------------------
NUMBER OF DIRECTOR DESIGNEES
WACHOVIA STOCKHOLDERS HAVE
SIZE OF WHOLE BOARD THE RIGHT TO DESIGNATE
------------------------------------------------------------------------
9 4
------------------------------------------------------------------------
10 5
------------------------------------------------------------------------
11 5
------------------------------------------------------------------------
12 6
------------------------------------------------------------------------
13 6
------------------------------------------------------------------------
(c) Vacancies and Newly Created Directorships. Subject to the
procedures and qualification requirements of Section 3.2 of the Bylaws, the
Wachovia Stockholders shall have the right to recommend to the Group B
Subcommittee nominees to fill any vacancy on the Board, or any committee
thereof, that was held immediately prior to such vacancy by a Wachovia Director,
and to fill any newly created directorship for which the Wachovia Stockholders
would have the right to recommend an additional nominee pursuant to paragraph
(b) above. The Group B Subcommittee shall have the exclusive delegated authority
of the Board to fill any such vacancy. Subject to its fiduciary duties, the
Group B Subcommittee shall fill such vacancy with the Wachovia Stockholder
nominee and absent a recommendation from the Wachovia Stockholders, the Group B
Subcommittee shall fill any such vacancy with a nominee of its choosing. In the
event the Group B Subcommittee fails to fill any such vacancy or newly created
directorship pursuant to the procedures and qualification requirements of
Section 3.2 of the Bylaws, the Nominating Committee will then have the exclusive
delegated authority of the Board to fill such vacancy or newly created
directorship until the next annual meeting of stockholders, and the person so
chosen will not be considered a Wachovia Director, and will not be required to
meet the qualification requirements of paragraph (d) below.
(d) Qualification Requirements. The Wachovia Stockholders will
not have the right to designate nominees for election as directors and the Group
B Subcommittee will not have the right to fill a vacancy or newly created
directorship for a Wachovia Director unless, after giving effect to the election
of such nominees or the filling of such vacancies or newly
6
created directorships, there would be at least three (3) Independent Wachovia
Directors, one of whom meets the definition of Audit Committee Independent
Director set forth in the Bylaws; provided, however, that if the size of the
Board is 12 or 13, there must be at least four (4) Independent Wachovia
Directors.
(e) Procedures. The Wachovia Stockholders shall inform the
Company in writing of its recommended nominees for election of directors to the
Board of Directors by delivering written notice thereof not less than forty (40)
days prior to the mailing of the Company's proxy statement to be distributed to
stockholders in connection with the annual meeting of stockholders; provided,
that the Company shall give the Wachovia Stockholders at least sixty (60) days
prior written notice of such mailing date. The notice to the Company shall also
contain such information relating to such nominees as is required to be
disclosed in a proxy statement or other filings required to be made by the
Company in connection with the solicitation of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder, and from which the Board can determine that the
qualification requirements set forth in paragraph (d) above have been satisfied;
provided, however, that if any such notice does not contain such information,
the Wachovia Stockholders shall provide such information within five business
days after written request therefor.
(f) Dissolution. The Group B Subcommittee shall be dissolved,
if at all, in accordance with Section 3.2(b)(ii)(G) of the Bylaws.
Section 3.3. Nomination Rights Following Expiration of the Special
Voting Period. Upon expiration of the Special Voting Period, a Major Stockholder
will have the right to designate nominees for Directors to be elected by the
stockholders at such annual meeting as set forth in the table below, in each
case to the extent permitted by applicable law and by applicable rules and
listing standards of the principal securities exchange or market on which the
Common Stock is listed or approved for trading; provided, however, that:
(a) such Major Stockholder has continuously held shares of the
Common Stock from the date of this Agreement through and including the time the
nomination right, if any, available to such Major Stockholder is exercised;
(b) only shares of Common Stock held (i) directly by such
Major Stockholder or (ii) by other Stockholders in such Major Stockholder's
Stockholder Group and beneficially owned by such Major Stockholder will be
counted for purposes of determining the percentage of outstanding shares of
Common Stock held by such Major Stockholder;
(c) only one Major Stockholder from each Stockholder Group
shall have nomination rights pursuant to this Section 3.3; and
(d) if after the expiration of the Special Voting Period the
percentage of outstanding Common Stock owned by a Major Stockholder is reduced
so as to cause the number of Director Designees such Major Stockholder would
have the right to designate pursuant to this Section 3.3 to be reduced, then the
maximum number of Director Designees such Major
7
Stockholder will have the right to designate pursuant to this Section 3.3 shall
be permanently reduced to such number of Director Designees.
--------------------------------------------------------------------------------
PERCENTAGE OF OUTSTANDING NUMBER OF DIRECTOR DESIGNEES
COMMON STOCK STOCKHOLDER HAS THE RIGHT
HELD BY STOCKHOLDER TO DESIGNATE
--------------------------------------------------------------------------------
30% or greater 3
--------------------------------------------------------------------------------
greater than or = 20% and less than 30% 2
--------------------------------------------------------------------------------
greater than or = 10% and less than 20% 1
--------------------------------------------------------------------------------
less than 10% 0
--------------------------------------------------------------------------------
Section 3.4. Termination of Voting Obligations. From and after the
termination of the Special Voting Period, the provisions of Section 3.1(a) shall
terminate and be of no further force or effect, and the Stockholders shall
thereafter have no obligation under this Agreement with respect to (i) the
voting of any of their respective shares of Common Stock, including any
obligation to vote for nominees nominated pursuant to Section 3.3, or (ii) the
taking of any actions described in Section 3.1 with respect to the composition
of the Board of Directors.
Section 3.5. Observer Rights.
(a) During the Special Voting Period, so long as the Junior
Stockholders continue to hold at least 50% of the shares of Common Stock they
held as of the Effective Time, the Company shall (i) give the Junior
Stockholders written notice of each meeting of its Board of Directors and (ii)
permit two representatives of the Junior Stockholders, in each case designated
by their Stockholder Representative, to attend as an observer all meetings of
its Board of Directors.
(b) During the Special Voting Period, so long as the Hornets
Stockholders continue to hold at least 50% of the shares of Common Stock they
held as of the Effective Time, the Company shall (i) give the Hornets
Stockholders written notice of each meeting of its Board of Directors and (ii)
permit one representative of the Hornets Stockholders, designated by the Hornets
Stockholder Representative, to attend as an observer all meetings of its Board
of Directors.
(c) Each representative appointed pursuant to Section 3.5(a)
and 3.5(b) shall be entitled to (i) receive all written materials and other
information (including, without limitation, copies of meeting minutes) given to
Directors in connection with such meetings at the same time such materials and
information are given to the Directors, and, upon reasonable notice and during
normal business hours (ii) visit and inspect any of the properties of the
Company and its Subsidiaries and (iii) discuss the affairs, finances and
accounts of any such entities with the Directors, officers and key employees of
the Company and its Subsidiaries. All travel and other expenses incurred by a
representative in connection with attending any meeting of the Board of
Directors or otherwise in connection with the rights granted in this Section 3.5
shall be the
8
responsibility of such representative and/or the Stockholder Group by which such
representative was designated. The Company shall have no liability or obligation
with respect to such expenses.
(d) As a condition to attending any meetings of the Board of
Directors and receiving the written materials and other information contemplated
in Section 3.5(c), each representative must enter into a confidentiality and
non-use agreement, in form satisfactory to the Company, pursuant to which such
representative agrees not to, without the prior written consent of the Company,
disclose to any third party any information obtained about the Company or its
operations or business which it may have acquired pursuant to this Agreement and
the observer rights granted hereunder; provided, however, that any information
that is otherwise publicly available, without breach of this provision, or has
been obtained from a third party without a breach of such third party's duties,
shall not be deemed confidential information. Notwithstanding anything to the
contrary set forth in this Section 3.5, the Company reserves the right to
exclude any representative from access to any material or meeting or portion
thereof if the Company believes (i) upon advice of counsel that such exclusion
is reasonably necessary to preserve the attorney-client privilege, to protect
highly confidential proprietary information, to satisfy the fiduciary duties of
the Board of Directors or for other similar reasons or (ii) that such
representative has or intends to use information obtained about the Company or
its operations or business which it may have acquired pursuant to this Agreement
or the observer rights granted hereunder for unlawful or improper purposes. Each
representative shall be subject to recusal in any circumstance in which a
Director would be subject to recusal.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Entire Agreement. This Agreement, together with the
Schedules hereto, constitutes the entire agreement and understanding of the
parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations by or among the parties, written
or oral, to the extent they relate in any way to the subject matter hereof.
There are no third party beneficiaries having rights under or with respect to
this Agreement.
Section 4.2. Assignment. Except as provided in this Section 4.2 and in
Section 4.3, no party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the
other parties. All of the terms, agreements, covenants, representations,
warranties and conditions of this Agreement are binding upon, and inure to the
benefit of and are enforceable by, the parties and their respective successors
and permitted assigns. Notwithstanding the foregoing, a Stockholder may, without
the consent of any of the parties hereto, assign its rights and obligations
hereunder to an Affiliate in connection with the sale or other transfer to such
Affiliate of shares of such Stockholder's Common Stock
Section 4.3. Transfers of Shares. Except as set forth in Section 4.2,
any transfer of shares of Common Stock by a Stockholder (other than to an
Affiliate of such Stockholder or to a party to this Agreement) will be free and
clear of any and all rights and obligations under this Agreement; provided,
however, that any purported sale or other transfer by a Stockholder of 30% or
more of the outstanding Common Stock (other than to an Affiliate of such
Stockholder or to a
9
party to this Agreement) shall be void and have no effect unless the party to
whom such shares are transferred has agreed in writing to be bound by the terms
and conditions of this Agreement.
Section 4.4. Notices. All notices, requests and other communications
provided for or permitted to be given under this Agreement must be in writing
and shall be given by personal delivery, by certified or registered United
States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a
notice given in accordance with the provisions hereof):
If to a Stockholder: To the address given under such
Stockholder's name on the Signature Pages.
If to the Company:
Venturi Partners, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: 000-000-0000
with a copy (which will not constitute notice) to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, P.C.
Facsimile: 214-969-4343
All notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such personal delivery,
(ii) if sent by certified or registered mail, on the fifth business day after
being deposited in the United States mail, (iii) if sent for next day delivery
by overnight delivery service, on the date of delivery as confirmed by written
confirmation of delivery, (iv) if sent by facsimile, upon the transmitter's
confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipient's time zone) on a
business day, or is received on a day that is not a business day, then such
notice, request or communication will not be deemed effective or given until the
next succeeding business day. Notices, requests and other communications sent in
any other manner, including by electronic mail, will not be effective.
Section 4.5. Specific Performance; Remedies. Each party acknowledges
and agrees that the other parties would be damaged irreparably if any provision
of this Agreement were not performed in accordance with its specific terms or
were otherwise breached. Accordingly, the parties will be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and its provisions in any
action or proceeding instituted in any state or federal court sitting in the
State of Delaware having
10
jurisdiction over the parties and the matter, in addition to any other remedy to
which they may be entitled, at law or in equity. Except as expressly provided
herein, the rights, obligations and remedies created by this Agreement are
cumulative and in addition to any other rights, obligations or remedies
otherwise available at law or in equity. Except as expressly provided herein,
nothing herein will be considered an election of remedies.
Section 4.6. Submission to Jurisdiction; No Jury Trial.
(a) Submission to Jurisdiction. Any action, suit or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall
only be brought in any federal court located in the State of Delaware or any
Delaware state court, and each party consents to the exclusive jurisdiction and
venue of such courts (and of the appropriate appellate courts therefrom) in any
such action, suit or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such, action, suit or proceeding in any such court or that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, service of
process on such party as provided in Section 4.4 shall be deemed effective
service of process on such party.
(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY
DISPUTE THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY
WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS
INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO
THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF
COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS
SECTION 4.6(b).
Section 4.7. Headings. The article and section headings contained in
this Agreement are inserted for convenience only and will not affect in any way
the meaning or interpretation of this Agreement.
11
Section 4.8. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to any choice of law principles or conflicts of law rules (whether of the
State of Delaware or any other jurisdiction) that would result in the
application of the substantive or procedural laws of any other jurisdiction and,
as applicable the federal laws of the United States.
Section 4.9. Amendment. This Agreement may not be amended or modified
except by a writing signed by all of the parties.
Section 4.10. Extensions; Waivers. Any party may, for itself only, (a)
extend the time for the performance of any of the obligations of any other party
under this Agreement, (b) waive any inaccuracies in the representations and
warranties of any other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or
waiver will be valid only if set forth in a writing signed by the party to be
bound thereby. No waiver by any party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, may be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence. Neither the failure nor any
delay on the part of any party to exercise any right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy
Section 4.11. Severability. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision will
not affect the validity or enforceability of the other provisions hereof;
provided that if any provision of this Agreement, as applied to any party or to
any circumstance, is judicially determined not to be enforceable in accordance
with its terms, the parties agree that the court judicially making such
determination may modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its modified form, such provision will then be enforceable and
will be enforced.
Section 4.12. Expenses. Except as otherwise expressly provided in this
Agreement, each party will bear its own costs and expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including all fees and expenses of agents,
representatives, financial advisors, legal counsel and accountants.
Section 4.13. Counterparts; Effectiveness. This Agreement may be
executed in two or more counterparts, each of which will be deemed an original
but all of which together will constitute one and the same instrument. This
Agreement will become effective when one or more counterparts have been signed
by each of the parties and delivered to the other parties. For purposes of
determining whether a party has signed this Agreement or any document
contemplated hereby or any amendment or waiver hereof, only a handwritten
original signature on a paper document or a facsimile copy of such a handwritten
original signature shall constitute
12
a signature, notwithstanding any law relating to or enabling the creation,
execution or delivery of any contract or signature by electronic means.
Section 4.14. Construction. This Agreement has been freely and fairly
negotiated among the parties. If an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the parties and no presumption or burden of proof will arise favoring or
disfavoring any party because of the authorship of any provision of this
Agreement. Any reference to any law will be deemed also to refer to such law as
amended and all rules and regulations promulgated thereunder, unless the context
requires otherwise. The words "include," "includes," and "including" will be
deemed to be followed by "without limitation." Pronouns in masculine, feminine,
and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless
the context otherwise requires. The words "this Agreement," "herein," "hereof,"
"hereby," "hereunder," and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
parties intend that each representation, warranty, and covenant contained herein
will have independent significance. If any party has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
party has not breached will not detract from or mitigate the fact that the party
is in breach of the first representation, warranty, or covenant.
Section 4.15. Confidentiality. No party to this Agreement, nor any of
their respective Affiliates, employees, agents or representatives, shall
disclose to any third party any information obtained about the Company or its
operations or business which it may have acquired pursuant to this Agreement
without the prior written consent of the Company; provided, that any information
that is otherwise publicly available, without breach of this provision, or has
been obtained from a third party without a breach of such third party's duties,
shall not be deemed confidential information.
Section 4.16. Termination.
(a) The rights and obligations specified in Sections 3.1 and
3.2 shall terminate automatically at the end of the Special Voting Period.
(b) The rights and obligations specified in Section 3.3 shall
terminate automatically on the date on which no Major Stockholder owns more than
10% of the issued and outstanding shares of Common Stock..
(c) The rights and obligations specified in Section 3.5 shall
terminate automatically on the earlier of (A) the end of the Special Voting
Period and (B) (i) as to the Hornets Stockholders, the date on which the Hornets
Stockholders and (ii) as to the Junior Stockholders, the date on which the
Junior Stockholders, hold less than 50% of the shares of Common Stock they held
as of the Effective Time.
13
(d) This Agreement shall terminate and cease to be binding on
any particular Stockholder on the date on which such Stockholder ceases to own
any shares of Common Stock.
Section 4.17. Effective Time. Notwithstanding anything herein to the
contrary, this Agreement shall become effective at the Effective Time of the
Merger, and the representations and warranties contained herein shall be deemed
made as of the Effective Time.
Section 4.18. Stockholder Representative. For administrative
convenience, each Stockholder Group shall designate an individual to serve as
such group's representative (each a "STOCKHOLDER REPRESENTATIVE") for purposes
of this Agreement to take action on behalf of such Stockholder group in
connection with this Agreement. The initial Stockholder Representative of each
Stockholder Group is identified on Schedule 4.18 and may be changed from time to
time by the applicable Stockholder Group upon notice given to the other parties
pursuant to Section 4.4 and executed by each member of such Stockholder Group.
Each Wachovia Stockholder, Junior Stockholder and Hornets Stockholder hereby
appoints the initial Stockholder Representative and each person or entity who
is, from time to time, duly appointed under this Section 4.18 as the Stockholder
Representative of the Stockholder Group to which such Stockholder is a member to
give any consent or approval, exercise any right or take any action contemplated
under this Agreement on behalf of such Stockholder. The members of each
Stockholder Group shall be bound by such Stockholder Group's Stockholder
Representative and the parties to this Agreement shall be entitled to rely on
the actions taken by the any Stockholder Representative under this Agreement.
[SIGNATURE PAGES FOLLOW]
14
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their authorized representatives as of the date stated in the
introductory paragraph of this Agreement.
VENTURI PARTNERS, INC.
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
-----------------------------------------
Xxxxxxx X. Xxxxxx, Individually
THE WACHOVIA STOCKHOLDERS:
-------------------------
WACHOVIA INVESTORS, INC.
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address: Wachovia Capital Partners
One Wachovia Center, 12th Floor
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Principal
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attn: T. Xxxxxxx Xxxxxxxxxxx
Fax: (000) 000-0000
[Signature Page to Voting Agreement]
THE JUNIOR STOCKHOLDERS:
-----------------------
X.X. XXXXXX DIRECT CORPORATE FINANCE
INSTITUTIONAL INVESTORS LLC
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
X.X. XXXXXX DIRECT CORPORATE FINANCE
PRIVATE INVESTORS LLC
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
OLD TRAFFORD INVESTMENT PTE LTD.
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
[Signature Page to Voting Agreement]
GTCR FUND IV, L.P.
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
THE HORNETS STOCKHOLDERS:
------------------------
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
[Signature Page to Voting Agreement]
Address:
------------------------------------------
------------------------------------------
------------------------------------------
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
By:
-----------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
Address:
------------------------------------------
------------------------------------------
------------------------------------------
[Signature Page to Voting Agreement]
SCHEDULE 2.2(a)(ii)
Stockholder Shares (non-natural person)
--------------------------------------------------------------------------------
STOCKHOLDER SHARES
--------------------------------------------------------------------------------
Wachovia Investors, Inc. [*]
--------------------------------------------------------------------------------
X.X. Xxxxxx Direct Corporate Finance Institutional Investors LLC [*]
--------------------------------------------------------------------------------
X.X. Xxxxxx Direct Corporate Finance Private Investors LLC [*]
--------------------------------------------------------------------------------
Old Trafford Investment Pte Ltd. [*]
--------------------------------------------------------------------------------
GTCR Fund IV, L.P. [*]
--------------------------------------------------------------------------------
SCHEDULE 2.2(b)(ii)
Stockholder Shares (natural person)
--------------------------------------------------------------------------------
STOCKHOLDER SHARES
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
[*] [*]
--------------------------------------------------------------------------------
Schedule 4.18
Initial Stockholder Representatives
--------------------------------------------------------------------------------
STOCKHOLDER GROUP INITIAL STOCKHOLDER REPRESENTATIVE
--------------------------------------------------------------------------------
Wachovia Stockholder Group [*]
--------------------------------------------------------------------------------
Junior Stockholder Group [*]
--------------------------------------------------------------------------------
Hornets Stockholder Group [*]
--------------------------------------------------------------------------------
EXHIBIT S
Form of Voting Agreement
[ATTACHED]
VOTING AGREEMENT
This Voting Agreement (this "AGREEMENT") is made and entered into as of
[*], 2004 by and among VENTURI PARTNERS, INC., a Delaware corporation (the
"COMPANY"), and MatlinPatterson Global Opportunities Partners, L.P.
(the "Stockholder")
PRELIMINARY STATEMENTS
The Company, VTP, Inc., Venturi Technology Partners, LLC, Comsys
Information Technology Services, Inc., Comsys Holding, Inc. and certain
stockholders of Comsys Holding, Inc. have entered into an Agreement and Plan of
Merger dated as of July 19, 2004 (as the same may be amended from time to time,
the "MERGER AGREEMENT"), pursuant to which, upon the terms and subject to the
conditions thereof, VTP, Inc. will be merged with and into Comsys Holding, Inc.
and Comsys Holding, Inc. will be the surviving entity (the "MERGER").
As a condition to the consummation of the transactions contemplated by
the Merger Agreement, Comsys Holding, Inc. has required that the Company and the
Stockholder, and the Company and the Stockholder are willing to, enter into this
voting agreement with respect to nominations to the board of directors of the
Company at and after the effectiveness of the Merger.
Capitalized terms used but not defined herein have the meanings given
in the Merger Agreement.
Now, therefore, for good, valuable and binding consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
STATEMENT OF AGREEMENT
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Securities and Exchange Commission thereunder, all as the
same shall be in effect at the time.
"AGREEMENT" has the meaning given in the preamble to this Agreement.
"BOARD OF DIRECTORS" means the board of directors of the Company.
"COMMON STOCK" means the common stock of the Company now or hereafter
authorized to be issued.
"COMPANY" has the meaning given in the preamble to this Agreement.
"DIRECTOR" means a member of the Board of Directors.
"MERGER" has the meaning given in the preliminary statements to this
Agreement.
"MERGER AGREEMENT" has the meaning given in the preliminary statements
to this Agreement.
"NOMINATING COMMITTEE" means the Nominating Committee of the Board of
Directors established pursuant to and in accordance with the Bylaws of the
Company as in effect from time to time.
"SHARES" means shares of Common Stock.
"SPECIAL VOTING PERIOD" means the period commencing immediately after
the Effective Time (as defined in the Certificate of Incorporation) and ending
on the third anniversary of the Effective Time.
"STOCKHOLDER" means MatlinPatterson Global Opportunities Partners, L.P.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1. Representations and Warranties of the Company. The Company
hereby represents and warrants to the other parties hereto as follows: The
Company has all requisite corporate power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Company of this Agreement, and the consummation by the
Company of the transactions contemplated hereby, have been duly authorized by
all necessary corporate action on the part of the Company. This Agreement has
been duly executed and delivered by the Company and constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic or
foreign, is required by, or with respect to, the Company in connection with the
execution and delivery of this Agreement by the Company or the consummation by
the Company of the transactions contemplated hereby. The execution and delivery
of this Agreement by the Company and the consummation of the transactions
contemplated hereby by the Company does not conflict with, or result in a breach
of, any law or regulation of any governmental authority applicable to the
Company or any material agreement to which the Company is a party.
Section 2.2. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to the Company as follows:
(a) Authority. The Stockholder has all requisite corporate,
partnership or limited liability company power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by the Stockholder of this Agreement, and the consummation by the
Stockholder of the transactions contemplated hereby, have been duly authorized
by all necessary corporate, partnership or limited liability company action on
the part of the Stockholder. This Agreement has been duly executed and delivered
by
2
the Stockholder and constitutes a valid and binding obligation of the
Stockholder, enforceable against the Stockholder in accordance with its terms.
No consent, approval, order or authorization of, or registration, declaration or
filing with, any court, administrative agency or commission or other
governmental authority or instrumentality, domestic or foreign, is required by,
or with respect to, the Stockholder in connection with the execution and
delivery of this Agreement by the Stockholder or the consummation by the
Stockholder of the transactions contemplated hereby. The execution and delivery
of this Agreement by the Stockholder and the consummation of the transactions
contemplated hereby by the Stockholder does not conflict with, or result in a
breach of, any law or regulation of any governmental authority applicable to the
Stockholder or any material agreement to which the Stockholder is a party.
(b) Shares. As of the Effective Time, the Stockholder is the
record and beneficial owner of the number of Shares set forth across from such
Stockholder's name on Schedule 2.2(b).
ARTICLE III
VOTING OF SHARES; CERTAIN COMPANY ACTIONS
Section 3.1. Voting of Shares; Company Actions.
(a) From and after the date hereof and until the termination
of the Special Voting Period, the Stockholder shall vote all Shares owned or
controlled by such Stockholder, and shall take all other necessary or desirable
actions within such Stockholder's control (including, if permitted, attendance
at meetings in person or by proxy for purposes of obtaining a quorum and, if
permitted, execution of written consents in lieu of meetings), so that the
nominees recommended by the Nominating Committee for election to the Board of
Directors are elected to serve on the Board of Directors, and to otherwise
effectuate the provisions of this Agreement.
(b) From and after the date hereof, the Company shall take all
necessary or desirable actions within its control (including calling special
board and stockholder meetings) to effectuate the provisions of this Agreement.
Section 3.2. Termination of Voting Obligations. From and after the
termination of the Special Voting Period, the provisions of Section 3.1 shall
terminate and be of no further force or effect, and the Stockholder shall
thereafter have no obligation under this Agreement with respect to (i) the
voting of any of its shares of Common Stock or (ii) the taking of any actions
described in Section 3.1 with respect to the composition of the Board of
Directors.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.1. Entire Agreement. This Agreement, together with the
Schedule hereto, constitutes the entire agreement and understanding of the
parties in respect of the subject matter hereof and supersedes all prior
understandings, agreements or representations by or among the parties, written
or oral, to the extent they relate in any way to the subject matter hereof.
There are no third party beneficiaries having rights under or with respect to
this Agreement.
3
Section 4.2. Assignment. Except as provided in this Section 4.2 and in
Section 4.3, no party may assign either this Agreement or any of its rights,
interests or obligations hereunder without the prior written approval of the
other parties. All of the terms, agreements, covenants, representations,
warranties and conditions of this Agreement are binding upon, and inure to the
benefit of and are enforceable by, the parties and their respective successors
and permitted assigns. Notwithstanding the foregoing, the Stockholder may,
without the consent of the Company, assign its rights and obligations hereunder
to an Affiliate in connection with the sale or other transfer to such Affiliate
of shares of such Stockholder's Common Stock.
Section 4.3. Transfers of Shares. Except as set forth in Section 4.2,
any transfer of shares of Common Stock by the Stockholder (other than to an
Affiliate of such Stockholder or to a party to this Agreement) will be free and
clear of any and all rights and obligations under this Agreement.
Section 4.4. Notices. All notices, requests and other communications
provided for or permitted to be given under this Agreement must be in writing
and shall be given by personal delivery, by certified or registered United
States mail (postage prepaid, return receipt requested), by a nationally
recognized overnight delivery service for next day delivery, or by facsimile
transmission, as follows (or to such other address as any party may give in a
notice given in accordance with the provisions hereof):
If to the Stockholder:
----------------------
MatlinPatterson Global Opportunities Partners, L.P.
c/o MatlinPatterson Global Advisors
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX00000-0000
Att'n: Xxxxxxxxxxx Xxxxxxx
Facsimile: 000-000-0000
If to the Company:
-----------------
COMSYS IT Partners, Inc.
0000 Xxxx Xxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Facsimile: 000-000-0000
4
with a copy (which will not constitute notice) to:
Akin Gump Xxxxxxx Xxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxx. 0000
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, P.C.
Facsimile: 214-969-4343
All notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such personal delivery,
(ii) if sent by certified or registered mail, on the fifth business day after
being deposited in the United States mail, (iii) if sent for next day delivery
by overnight delivery service, on the date of delivery as confirmed by written
confirmation of delivery, (iv) if sent by facsimile, upon the transmitter's
confirmation of receipt of such facsimile transmission, except that if such
confirmation is received after 5:00 p.m. (in the recipient's time zone) on a
business day, or is received on a day that is not a business day, then such
notice, request or communication will not be deemed effective or given until the
next succeeding business day. Notices, requests and other communications sent in
any other manner, including by electronic mail, will not be effective.
Section 4.5. Specific Performance; Remedies. Each party acknowledges
and agrees that the other parties would be damaged irreparably if any provision
of this Agreement were not performed in accordance with its specific terms or
were otherwise breached. Accordingly, the parties will be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and its provisions in any
action or proceeding instituted in any state or federal court sitting in the
State of Delaware having jurisdiction over the parties and the matter, in
addition to any other remedy to which they may be entitled, at law or in equity.
Except as expressly provided herein, the rights, obligations and remedies
created by this Agreement are cumulative and in addition to any other rights,
obligations or remedies otherwise available at law or in equity. Except as
expressly provided herein, nothing herein will be considered an election of
remedies.
Section 4.6. Submission to Jurisdiction; No Jury Trial.
(a) Submission to Jurisdiction. Any action, suit or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby shall
only be brought in any federal court located in the State of Delaware or any
Delaware state court, and each party consents to the exclusive jurisdiction and
venue of such courts (and of the appropriate appellate courts therefrom) in any
such action, suit or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of the venue of any such, action, suit or proceeding in any such court or that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum. Process in any such action, suit or proceeding may be
served on any party anywhere in the world, whether within or without the
jurisdiction of any such court. Without limiting the foregoing, service of
process on such party as provided in Section 4.4 shall be deemed effective
service of process on such party.
5
(b) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES THAT ANY
DISPUTE THAT MAY ARISE OUT OF OR RELATING TO THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE SUCH PARTY HEREBY EXPRESSLY
WAIVES ITS RIGHT TO JURY TRIAL OF ANY DISPUTE BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OTHER AGREEMENTS RELATING HERETO OR ANY DEALINGS AMONG THEM
RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY. THE SCOPE OF THIS WAIVER IS
INTENDED TO ENCOMPASS ANY AND ALL ACTIONS, SUITS AND PROCEEDINGS THAT RELATE TO
THE SUBJECT MATTER OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND
STATUTORY CLAIMS. EACH PARTY REPRESENTS THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO
ENFORCE THE FOREGOING WAIVER, (ii) SUCH PARTY UNDERSTANDS AND WITH THE ADVICE OF
COUNSEL HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) SUCH PARTY MAKES
THIS WAIVER VOLUNTARILY, AND (iv) SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND REPRESENTATIONS IN THIS
SECTION 4.6(b).
Section 4.7. Headings. The article and section headings contained in
this Agreement are inserted for convenience only and will not affect in any way
the meaning or interpretation of this Agreement.
Section 4.8. Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware, without giving
effect to any choice of law principles or conflicts of law rules (whether of the
State of Delaware or any other jurisdiction) that would result in the
application of the substantive or procedural laws of any other jurisdiction and,
as applicable the federal laws of the United States.
Section 4.9. Amendment. This Agreement may not be amended or modified
except by a writing signed by all of the parties.
Section 4.10. Extensions; Waivers. Any party may, for itself only, (a)
extend the time for the performance of any of the obligations of any other party
under this Agreement, (b) waive any inaccuracies in the representations and
warranties of any other party contained herein or in any document delivered
pursuant hereto and (c) waive compliance with any of the agreements or
conditions for the benefit of such party contained herein. Any such extension or
waiver will be valid only if set forth in a writing signed by the party to be
bound thereby. No waiver by any party of any default, misrepresentation or
breach of warranty or covenant hereunder, whether intentional or not, may be
deemed to extend to any prior or subsequent default, misrepresentation or breach
of warranty or covenant hereunder or affect in any way any rights arising
because of any prior or subsequent such occurrence. Neither the failure nor any
delay on the part of any party to exercise any right or remedy under this
Agreement shall operate as a waiver thereof, nor shall any single or partial
exercise of any right or remedy preclude any other or further exercise of the
same or of any other right or remedy.
6
Section 4.11. Severability. The provisions of this Agreement will be
deemed severable and the invalidity or unenforceability of any provision will
not affect the validity or enforceability of the other provisions hereof;
provided that if any provision of this Agreement, as applied to any party or to
any circumstance, is judicially determined not to be enforceable in accordance
with its terms, the parties agree that the court judicially making such
determination may modify the provision in a manner consistent with its
objectives such that it is enforceable, and/or to delete specific words or
phrases, and in its modified form, such provision will then be enforceable and
will be enforced.
Section 4.12. Expenses. Except as otherwise expressly provided in this
Agreement, each party will bear its own costs and expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the transactions contemplated hereby, including all fees and expenses of agents,
representatives, financial advisors, legal counsel and accountants.
Section 4.13. Counterparts; Effectiveness. This Agreement may be
executed in two counterparts, each of which will be deemed an original but all
of which together will constitute one and the same instrument. This Agreement
will become effective when one or more counterparts have been signed by each of
the parties and delivered to the other. For purposes of determining whether a
party has signed this Agreement or any document contemplated hereby or any
amendment or waiver hereof, only a handwritten original signature on a paper
document or a facsimile copy of such a handwritten original signature shall
constitute a signature, notwithstanding any law relating to or enabling the
creation, execution or delivery of any contract or signature by electronic
means.
Section 4.14. Construction. This Agreement has been freely and fairly
negotiated among the parties. If an ambiguity or question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the parties and no presumption or burden of proof will arise favoring or
disfavoring any party because of the authorship of any provision of this
Agreement. Any reference to any law will be deemed also to refer to such law as
amended and all rules and regulations promulgated thereunder, unless the context
requires otherwise. The words "include," "includes," and "including" will be
deemed to be followed by "without limitation." Pronouns in masculine, feminine,
and neuter genders will be construed to include any other gender, and words in
the singular form will be construed to include the plural and vice versa, unless
the context otherwise requires. The words "this Agreement," "herein," "hereof,"
"hereby," "hereunder," and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so limited. The
parties intend that each representation, warranty, and covenant contained herein
will have independent significance. If any party has breached any
representation, warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant relating to the
same subject matter (regardless of the relative levels of specificity) which the
party has not breached will not detract from or mitigate the fact that the party
is in breach of the first representation, warranty, or covenant.
Section 4.15. Confidentiality. No party to this Agreement, nor any of
their respective Affiliates, employees, agents or representatives, shall
disclose to any third party any information obtained about the Company or its
operations or business which it may have acquired pursuant to
7
this Agreement without the prior written consent of the Company; provided, that
any information that is otherwise publicly available, without breach of this
provision, or has been obtained from a third party without a breach of such
third party's duties, shall not be deemed confidential information.
Section 4.16. Termination. This Agreement shall terminate at the end of
the Special Voting Period.
Section 4.17. Effective Time. Notwithstanding anything herein to the
contrary, this Agreement shall become effective at the Effective Time of the
Merger, and the representations and warranties contained herein shall be deemed
made as of the Effective Time.
[SIGNATURE PAGES FOLLOW]
8
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their authorized representatives as of the date stated in the
introductory paragraph of this Agreement.
VENTURI PARTNERS, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
THE STOCKHOLDER:
---------------
MATLINPATTERSON GLOBAL
OPPORTUNITIES PARTNERS, L.P.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Address:
-------------------------
-------------------------
-------------------------
[Signature Page to Voting Agreement]
SCHEDULE 2.2(b)
Stockholder Shares
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STOCKHOLDER SHARES
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MATLINPATTERSON GLOBAL OPPORTUNITIES PARTNERS, L.P. [*]
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September 3, 2004
Xx. Xxxxx Xxxxxxxxx
President and CEO
Venturi Partners, Inc.
0000 Xxxxx Xxxxx Xxxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
RE: PREFERRED STOCK LETTER AGREEMENT
Dear Xxxxx:
In connection with the merger transaction contemplated by that certain
Agreement and Plan of Merger dated as of July 19, 2004 among Venturi Partners,
Inc. (the "Company"), VTP, Inc., Venturi Technology Partners, LLC, COMSYS
Information Technology Services, Inc., COMSYS Holding, Inc. ("Holding") and
certain stockholders of Holding, the Company requires the binding commitment of
a party or parties to purchase up to seven million dollars ($7,000,000) worth of
a new issue of preferred stock with the designations and preferences set forth
in Exhibit A hereto (the "Preferred Stock"), such purchase to be according to
the terms and conditions set forth in the Subscription Agreement set forth in
Exhibit B hereto (the "Subscription Agreement").
Pursuant to the terms and conditions set forth herein, Inland Partners,
L.P. ("Inland Partners") and Links Partners, L.P. ("Links Partners;" and
collectively with Inland Partners, the "Purchasers") jointly and severally agree
to purchase up to seven million dollars ($7,000,000) in liquidation value of
Preferred Stock promptly upon receipt of written notice from the Company in
accordance with the terms and conditions set forth in the Subscription
Agreement. In the event that the Company exercises this option to put to the
Purchasers any or all of the Preferred Stock which the Purchasers hereby commit
to purchase, and in consideration of such purchase of Preferred Stock, the
Purchasers shall be entitled to a warrant to purchase, at a price of one cent
($.01) per share, that number of shares of Company common stock corresponding to
the number of shares of Preferred Stock put to the Purchasers hereunder, at a
ratio of 16,000 shares of Company common stock for each one million dollars
($1,000,000) of Preferred Stock purchased, with appropriate interpolation
adjustments for purchases of Preferred Stock in increments less than $1,000,000.
The Company's option to compel us to purchase Preferred Stock may be exercised
only upon completion of the merger transaction described in the first paragraph
above and will expire on October 31, 2004.
This Letter Agreement supersedes that certain Letter Agreement dated as
of July 19, 2004 between the Company and MatlinPatterson Global Opportunities
Partners, L.P., MatlinPatterson Global Opportunities Partners (Bermuda), L.P.,
and the Purchasers (the "Original Letter Agreement"), which Original Letter
Agreement shall, upon execution by the Company of the acknowledgement and
agreement set forth below, no longer have any force or effect. However, the
parties agree and acknowledge that the Company may offer the lenders under that
certain
Second Amended and Restated Credit Agreement dated as of April 14, 2003 (the
"Restated Credit Agreement") among the Company, as borrower, certain
subsidiaries of the Company, the several lenders from time to time party thereto
and Bank of America, N.A., as Agent, the option to purchase a pro rata portion
of such Preferred Stock, determined on the basis of their outstanding
commitments pursuant to the Restated Credit Agreement, on the same terms as
those set forth herein.
This letter agreement shall be governed by the laws of the State of
New York without regard to any otherwise applicable conflict of laws rules.
Sincerely yours,
INLAND PARTNERS, L.P. LINKS PARTNERS, L.P.
/s/ Xxxxx X. Xxxx /s/ Xxxxx X. Xxxx
------------------------------------ ------------------------------------
Name: Xxxxx X. Xxxx Name: Xxxxx X. Xxxx
Title: Attorney-in-fact Title: Attorney-in-fact
ACKNOWLEDGED AND AGREED:
-----------------------
Venturi Partners, Inc.
/s/ Xxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President and CEO
Date: September 7, 2004
