Exhibit 10.7
FORM OF STOCKHOLDERS' AGREEMENT
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THIS STOCKHOLDERS' AGREEMENT (the "Agreement") is made as of __________,
1999, by and among CenterPoint Advisors, Inc. (the "Corporation"), which is a
party hereto solely for the purpose of making the representations and warranties
set forth in Section 1, CPA Holdings, LLC ("Holdings"), BGL Capital Partners,
L.L.C. ("BGL"), Xxxxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxxxx, Xxxxxxx X. Xxxxxxxxx,
Xxxxxxx X. Xxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxx, MFSL Investments, L.P.
("MFSL"), Xxxxxxx, Xxxxxx & Xxxxxxxxx, C.P.A.s, L.L.C. ("Xxxxxxx"),Xxxxxxxx X.
Xxxxxxxxx, Xxxxxx X. Xxxxxx, Xxxxxx X. Eagle, De Xxx X. Xxxxxx, Xxxxxx X. Xxxxx,
[insert LLCs created by Founders to hold Common Stock, if applicable] and each
of the other persons which is a signatory hereto. Holdings, BGL, MFSL, Xxxxxxx
and Messrs. Rutenberg, Colmar, Crawford, Parkhouse, Xxxxxxx X. Xxxxx, Xxxxxx and
Xxxxx X. Xxxxx are collectively referred to herein as the "Sponsors"; Messrs.
Basten, Eagle, Xxxxxx and Bikun are collectively referred to herein as
"Management"; [Founders' LLC's] are collectively referred to herein as
"Founders' LLC's"; and each other person which is a signatory hereto is referred
to herein as a "Founding Company Owner."
WHEREAS, on the date hereof, the Sponsors and Management are the sole
owners of the common stock, par value $0.01 per share (the "Common Stock"), of
the Corporation; and
WHEREAS, it is anticipated that within 30 days after the consummation of
the Corporation's initial public offering (the "IPO"), Holdings will distribute
all of its shares of Common Stock among BGL, MFSL, Xxxxxxx, and Messrs. Colmar,
Crawford, Parkhouse, Xxxxxxx X. Xxxxx, Xxxxxx and Xxxxx X. Xxxxx, whereupon such
persons will become owners of Common Stock; and
WHEREAS, upon the consummation of each of the Merger Agreements dated
_______ __, 1999, by and among the Corporation, the Founders' LLCs, the Founding
Company Owners and the Founding Companies set forth on Schedule I hereto
(collectively, the "Merger Agreements"), the Founders' LLC's and/or Founding
Company Owners will become owners of Common Stock; and
WHEREAS, it is anticipated that during the term of this Agreement, the
Founders' LLCs may distribute some or all of their shares of Common Stock to the
Founding Company Owners who are their members, whereupon such persons will
become owners of Common Stock; and
WHEREAS, each of the undersigned parties believes that the continuity of
management is essential to the success of the business of the Corporation, and
that to preserve such continuity, it is essential for the undersigned parties to
vote for the election of the board of directors of the Corporation (the "Board")
as hereinafter provided; and
WHEREAS, pursuant to the Merger Agreements, the Common Stock owned by the
Founders' LLCs and the Founding Company Owners will be subject to certain
restrictions on transfer; and
WHEREAS, each of the undersigned parties believes that it is in the best
interests of the Corporation that the Sponsors and Management also agree to be
bound by restrictions on the transfer of their Common Stock.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the undersigned parties agree as
follows:
1. Representations and Warranties.
(a) Organization. The Corporation represents and warrants that it is
a corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware. Each of Holdings, BGL, Xxxxxxx and each
Founders' LLC severally represents and warrants that it is a limited
liability company duly organized, validly existing and in good standing
under the laws of its state of organization. MFSL represents and warrants
that it is a limited partnership validly existing under the laws of the
State of Texas.
(b) Authority. Each signatory hereto that is not a natural person
severally represents and warrants that it has full right, power and
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this
Agreement by such signatory has been duly authorized by all necessary
action on the part of such signatory and its shareholders, partners or
members, as the case may be.
(c) Enforceability. Each signatory hereto severally represents and
warrants that this Agreement has been duly executed and delivered by such
signatory and, assuming the due authorization, execution and delivery
hereof by each of the other signatories hereto, constitutes a valid and
legally binding agreement of such signatory, enforceable against such
signatory in accordance with its terms, except that such enforcement may be
subject to (i) bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting or relating to enforcement of creditors' rights
generally and (ii) general equitable principles.
(d) Non-Contravention. Each signatory hereto severally represents and
warrants that the execution and delivery of this Agreement by such
signatory does not violate, conflict with or result in a breach of any
provision of any of the terms, conditions or provisions of (i) the
organizational documents of any signatory hereto that is not a natural
person, (ii) any statute, law, ordinance, rule, regulation, judgment,
decree, order, injunction, writ, permit or license of any court or federal,
state, provincial, local or foreign government, or any subdivision, agency
or authority of any thereof ("Governmental Authority") applicable to such
signatory, or (iii) any note, bond, mortgage, indenture, deed of trust,
license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which such signatory is
a party.
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(e) Approvals. Each signatory hereto severally represents and
warrants that no declaration, filing or registration with, or notice to, or
authorization, consent or approval of, any Governmental Authority is
necessary for the execution and delivery of this Agreement by such
signatory or the consummation by such signatory of the transactions
contemplated hereby.
(f) Common Stock Issued to Holdings and Management. The Corporation
represents and warrants that the shares of Common Stock held by Holdings,
Xxxxxxx, Xxxxxxxxx and Management are validly issued, fully paid,
nonassessable and free of preemptive rights and that such shares were
issued by Cornerstone pursuant to a valid exemption from the registration
requirements of the Securities Act of 1933, as amended (the "Act"), and
applicable state securities or blue sky laws.
2. Composition of Board of Directors Immediately Following the Offering.
Immediately upon the closing of the Offering, the Board shall be composed of 17
members, consisting of (i) ten Founding Company Owners (or their selected
representatives), each designated by his or her respective Founding Company,
(ii) one director designated by BGL, (iii) Xx. Xxxxxx, (iv) Xx. Xxxxxx and (v)
four independent directors, not employed by the Corporation or its subsidiaries
or affiliates, the Founding Companies or their respective subsidiaries or
affiliates or BGL. The directors shall initially be elected for a term expiring
at the Annual Meeting of the Corporation's stockholders relating to the fiscal
year ending December 31, 1999 but currently expected to be held in 2000 (the
"2000 Annual Meeting"). The initial members of the Board and the persons by
whom they are designated, if applicable, are set forth on Schedule II hereto.
3. Nominations for Annual Meetings. With respect to each Annual Meeting
of the Corporation's stockholders beginning with the 2000 Annual Meeting up to
and including the Annual Meeting relating to the fiscal year ending December 31,
2003 but currently expected to be held in 2004 (the "2004 Annual Meeting"), and
in each case at any adjournment thereof, each of the undersigned parties shall
take any and all action necessary as a stockholder and/or director or officer of
the Corporation (in each case, subject to applicable fiduciary duties) to cause
those directors listed on Schedule II attached hereto whose terms are then
expiring, or their designated successors as provided in Section 5 herein, to be
nominated for election to the Board and included as nominees in the
Corporation's proxy statement prepared and distributed in connection with the
Annual Meeting.
4. Election of Directors at the Annual Meetings. Each of the undersigned
parties shall vote the shares of Common Stock which it owns or hereafter
acquires, or over which it has voting control or hereafter acquires voting
control, in any manner necessary to cause all nominees nominated pursuant to
Section 2 herein to be elected to the Board at each Annual Meeting of the
Corporation's stockholders beginning with the 2000 Annual Meeting and up to and
including the 2004 Annual Meeting.
5. Successors. In the event that the Board determines (in its reasonable
discretion) that a member of the Board is unable for any protracted period to
discharge his/her duties to the
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Corporation, or such member resigns or is removed from the Board or declines to
stand for re-election to the Board, each of the undersigned parties shall take
any and all action necessary (subject to applicable fiduciary duties) as a
stockholder and/or director or officer of the Corporation to cause the then-
incumbent Board to nominate as a successor director (i) if the director being
replaced was designated by the former owners of a Founding Company or by BGL,
such individual as shall be designated by the persons who originally designated
such director or their permitted transferees who execute this Agreement in
accordance with Section 7 hereof and (ii) in all other cases, such individual as
shall be approved by a majority of the then-incumbent Board, and each of the
undersigned parties shall take any and all action necessary as a stockholder
and/or director or officer of the Corporation (in each case, subject to
applicable fiduciary duties) to elect such successor director to the Board.
6. Term. Notwithstanding the earlier termination or dissolution of
Holdings, BGL, MFSL, Xxxxxxx and/or any Founders' LLC, the term of this
Agreement shall run from the date hereof until immediately following the final
adjournment of the 2004 Annual Meeting.
7. Assignment. Except with respect to the assignment of this Agreement
to a transferee of Common Stock owned by one or more of the parties hereto, this
Agreement shall only be assignable by the written consent of all of the parties
hereto. This Agreement shall be assigned to and binding on all transferees of
the Common Stock owned by the parties hereto (unless such transfer is made
pursuant to (i) a registered public securities offering or (ii) Rule 144 under
the Act (either such transfer a "Public Sale")) and no transfer other than a
Public Sale shall be of any force or effect whatsoever, unless and until the
transferee executes a counterpart of this Agreement.
8. Expansion of Board of Directors. This Agreement is not intended to
limit in any respect the Board's authority to increase from time to time the
size of the Board in accordance with Article V of the Corporation's Amended and
Restated Certificate of Incorporation.
9. Transfer Restrictions. Except as provided below, for a period of
forty-two (42) months from the closing of the IPO (the "Closing"), the Sponsors
and Management shall not (a) sell, assign, exchange, transfer, encumber, pledge,
distribute or otherwise dispose of, in whole or in part, (i) any shares of the
Corporation's Common Stock held by the Sponsors or Management as of the date of
this Agreement (the "Restricted Shares"), or (ii) any interest (including,
without limitation, an option to buy or sell) in any such Restricted Shares; or
(b) engage in any transaction, whether or not with respect to any Restricted
Shares or any interest therein, the intent or effect of which is to reduce the
risk of owning the Restricted Shares (including, without limitation, engaging in
put, call, short-sale, straddle or similar market transactions). Effective
eighteen (18) months following the Closing, and every six (6) months thereafter,
until all Restricted Shares shall have been released from such restrictions,
one-fifth (1/5th) of the original Restricted Shares held by each Sponsor and
member of Management shall be released from the restrictions set forth in the
preceding sentence. Notwithstanding the foregoing, (A) Each of Holdings, BGL,
MFSL and Xxxxxxx may distribute Restricted Shares to persons who are its members
or partners as of the date of this Agreement; (B) any Sponsor, permitted
distributee of a Sponsor or member of Management who is a natural person
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may transfer Restricted Shares to immediate family members (or trusts or other
estate planning entities for the benefit of such person or family members); (C)
Messrs. Colmar, Crawford, Parkhouse, Xxxxxxx X. Xxxxx, Potter and Xxxxx X. Xxxxx
may transfer Restricted Shares to the persons named on Schedule III hereto (or
trusts or other estate planning entities for the benefit of such named persons);
(D) any Sponsor, permitted distributee of a Sponsor or member of Management who
is a natural person may transfer or cause to be transferred Restricted Shares
upon the death or Permanent Disability of such person; and (E) the Sponsors and
Management may pledge or encumber Restricted Shares; provided, however, that
with respect to distributions, transfers or pledges pursuant to clauses (A),
(B), (C) and (E) above, the distributee, transferee or pledgee must agree in
writing to be bound by the restrictions set forth in this Section 9. The term
"Permanent Disability" as used in the preceding sentence shall be as defined in
the disability plan of the Corporation, or if not defined therein, Permanent
Disability shall mean the incapacity of the subject person, due to injury,
illness, disease, or bodily or mental infirmity, to engage in the performance of
substantially all of such member's usual duties of employment with the
Corporation, for a period of 60 consecutive days or for a period of 90 days
during any 12-month period (whether or not consecutive). Such disability shall
be determined by the Board of Directors of the Corporation in good faith based
in part upon the receipt and in reliance on competent medical advice from one or
more individuals, selected by the Board of Directors of the Corporation in good
faith, who are qualified to give such professional medical advice.
10. Amendment. This Agreement may be amended from time to time by an
instrument in writing signed by the holders of 66 2/3% of the shares of Common
Stock then held by the parties hereto and their permitted assignees; provided,
however, that (i) no amendment shall be made which would materially adversely
affect the rights of any such signatory without the consent of the persons so
affected and (ii) no waiver of any restriction set forth in Section 9 shall be
of any effect unless consented to by a majority of the members of the
Corporation's Board of Directors who do not at the time of such proposed waiver
hold Restricted Shares within the meaning of this Agreement or any Merger
Agreement.
11. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original.
12. Governing Law. This Agreement shall be governed by and enforced in
accordance with the laws and decisions of the State of Delaware, without regard
to the choice of law provisions thereof.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed, and has entered into this Agreement effective the date and year
first above written.
CENTERPOINT ADVISORS, INC.
By: ____________________________________
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
CPA HOLDINGS, LLC
By: BGL Capital Partners, L.L.C.
By: BGL Management Company, L.L.C.
By: ____________________________________
Xxxxx X. Xxxx
Managing Member
BGL CAPITAL PARTNERS, L.L.C.
By: BGL Management Company, L.L.C.
By: ____________________________________
Xxxxx X. Xxxx
Managing Member
MFSL INVESTMENTS, L.P.
By: MFSL GP, L.L.C., its general partner
By: ____________________________________
Xxxxxxx Xxxxx
Manager
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XXXXXXX, XXXXXX & XXXXXXXXX, C.P.A.s, L.L.C.
By:
______________________________
[Name]
[Title]
(Additional Signatures Follow)
___________________________________
Xxxxxxxx X. Xxxxxxxxx
___________________________________
Xxxxxx X. Xxxxxx
___________________________________
Xxxxxxxx X. Xxxxxxxx
___________________________________
Xxxxxxx X. Xxxxxxxxx
___________________________________
Xxxxxxx X. Xxxxx
___________________________________
Xxxxxxx X. Xxxxxx
___________________________________
Xxxxx X. Xxxxx
___________________________________
Xxxxxx X. Xxxxxx
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___________________________________
Xxxxxx X. Eagle
___________________________________
XxXxx Xxxxxx
___________________________________
Xxxxxx X. Xxxxx
(Additional Signatures Follow)
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OWNERS OF XXXXXXX, XXXXXX & XXXXXXXXX, P.C.
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF XXXXXX X. DRIVER COMPANY, INC.
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF XXXXXXX, RUDZEWICZ & COMPANY, P.C.
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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XXXXXX XX XXXX XXXXXXXXX XXXXX & XXXX, X.X.
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF BERRY, DUNN, XXXXXX & XXXXXX, CHARTERED
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF XXXXXX XXXX & XXXXXX, PC
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF SELF FUNDED BENEFITS, INC.
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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XXXXXX XX XXXXXXXXX XXXXXX & VAN TRIGT LLP
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF GRACE & COMPANY, P.C.
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF SIMIONE, SCILLIA, XXXXXX & XXXXXXX, LLC
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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OWNERS OF THE XXXXXXX COMPANY, INC.,
XXXXXXX ADMINISTRATORS, L.L.C. AND
VERASOURCE EXCESS RISK LTD.
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
___________________________________
(Additional Signatures Follow)
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SCHEDULE I
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NAME OF FOUNDING COMPANY
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Xxxxxx X. Driver Co., Inc.
Xxxxxxx, Rudzewicz & Company, P.C.
Xxxx Frankfort Xxxxx & Xxxx, P.C.
Berry, Dunn, XxXxxx & Xxxxxx, Chartered
Xxxxxx Xxxx & Xxxxxx, PC
Self Funded Benefits, Inc.
Xxxxxxxxx Xxxxxx & Van Trigt LLP
Grace & Company, P.C.
Simione, Scillia, Xxxxxx & Xxxxxxx, LLC
The Xxxxxxx Company, Inc., Xxxxxxx Administrators, L.L.C. and VeraSource Excess
Risk Ltd.
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SCHEDULE II
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BOARD OF DIRECTORS
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NAME DESIGNATED BY
------------------------ ---------------------------------------
Xxxxxx X. Xxxxxx N/A
XxXxx X. Xxxxxx N/A
Xxxxx X. Xxxx BGL
Xxxxx Xxxxxxx Xxxxxxx, Xxxxxx & Xxxxxxxxx, P.C.
Xxxxxx X. Xxxxxxx Xxxxxx X. Driver Co., Inc.
Xxxx Xxxxxxxx Xxxxxxx, Rudzewicz & Company, P.C.
Xxxxxxx X. Xxxxx Xxxx Frankfort Xxxxx & Xxxx, P.C.
Xxxxxxx X. Xxxxxx Berry, Dunn, XxXxxx & Xxxxxx, Chartered
Xxxxxx X. Xxxxxxx Xxxxxx Xxxx & Xxxxxx, PC
Xxxxxx X. Xxxxx Self Funded Benefits, Inc.
Xxxxxx X. Xxxxxxxxx Xxxxxxxxx Xxxxxx & Van Trigt LLP
Xxxxx X. Xxxxx Xxxxx & Company, P.C.
Xxxxxxx Xxxxxxx Simione, Scillia, Xxxxxx & Xxxxxxx, LLC
Xxxxxxx X. Xxxxx N/A
Xxxxx X. Xxxxxxxx N/A
[INDEPENDENT DIRECTOR] N/A
[INDEPENDENT DIRECTOR] N/A
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SCHEDULE III
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Xxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxx
Xxxx Ferry
Xxx Xxxxxxx
Xxxxxxxxx Xxxxxxx
Xxxx Xxxxx
Xxxxxx Xxxx
Xxxx Xx Xxxxx
Xxx Xxxxxx
Xxxx Xxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xx. Xxxxxxx Xxxxxxxxx
Xxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxx Xxxx
Xxxxxx Xxxxxx
Xx. Xxxxx
Xx. XxXxxxx
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