AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT, entered into as of
November 3, 2003, amends and restates in its entirety the Shareholders'
Agreement made as of the 18th day of November, 2002 ("Original Shareholders'
Agreement"), by and among RICHARD BERMAN ("Richard"), STEVEN BERMAN ("Steven"),
JORDAN BERMAN ("Jordan"), MARC BERMAN ("Marc") and FRED BERMAN ("Fred"), all of
whom are shareholders of R & B, Inc., a Pennsylvania corporation (the "Company")
and joins as a party to this Agreement Deanna Berman ("Deanna"), (Richard,
Steven, Jordan, Marc, Fred and Deanna, so long as they are shareholders of the
Company, are sometimes collectively called the "Shareholders" or individually
called "Shareholder").
BACKGROUND
A. As of the date of this Agreement, Richard, Steven, Jordan, Marc, Fred and
Deanna own 1,136,064, 1,181,704, 610,076, 381,136, 381,136 and 200,000 shares,
respectively, of the Company's Common Stock, par value $.01 per share (these
shares now owned, together with any other shares of the Company's capital stock
which hereafter may be issued to or acquired by the Shareholders, are
collectively referred to in this Agreement as the "Shares").
B. The Shareholders desire for the Original Shareholders' Agreement to be
terminated, and to be replaced in its entirety by this Amended and Restated
Shareholders' Agreement.
C. The Shareholders desire to make certain provisions relating to the rights of
the Shareholders to dispose of their Shares.
NOW, THEREFORE, incorporating the foregoing herein, in consideration of
the premises and of the mutual covenants, conditions and agreements contained
herein, the parties hereto, each intending to be legally bound hereby, agree as
follows: 1. Restrictions on Transfer and Issuance.
(a) Except as set forth in Section 1(b) herein, no Shareholder shall sell,
assign, transfer, give, bequeath or donate (other than gifts, bequests or
donations by a Shareholder which do not, in the aggregate, exceed 5% of the
Shares owned by that Shareholder on the date of this Agreement) or otherwise
dispose of, or pledge, deposit or otherwise encumber, in any way or manner
whatsoever, whether voluntary or involuntary, any of the Shares now or hereafter
owned (of record or beneficially) by him except in accordance with the terms and
conditions of this Agreement.
(b) Notwithstanding anything herein to the contrary, Jordan and Deanna may each
transfer their respective Shares (the "Transfer Shares"), in whole or in part,
and in all cases as they shall determine in their sole discretion, to (i) their
lineal descendants (including, but not limited to, their children and their
children's children (including but not limited to their children's adopted
children); (ii) the spouses or partners of their lineal descendants; and/or
(iii) a trust for the benefit of themselves, a lineal descendant and/or the
spouse or partner of a lineal descendant. The Transfer Shares shall not be
subject to the terms of this Agreement.
2. Shareholder's Limited Right to Dispose of Shares During His Lifetime.
(a) If any Shareholder during his lifetime proposes to sell all or any of his
Shares, then that Shareholder (the "Selling Shareholder") shall first provide
written notice (the "Notice") to the other Shareholders setting forth the number
of Shares which the Selling Shareholder proposes to sell (the "Offered Shares").
(b) The Notice shall be deemed to be the Selling Shareholder's offer to sell any
and all of his Offered Shares to the other Shareholders ("Offeree Shareholders")
at the price set forth in subparagraph 4(a) of this Agreement and upon the terms
set forth in subparagraph 4(b) of this Agreement. For a period of 30 days after
the effective date of the Notice, the Offeree Shareholders shall have options,
exercisable by written notice to the Selling Shareholder with a copy to each of
the other Offeree Shareholders, to accept the Selling Shareholder's offer as to
the Offered Shares. Each Offeree Shareholder who exercises this option agrees,
by so doing, to purchase all or that portion of the Offered Shares which he
specifies in his written notice of exercise. If the aggregate number of Offered
Shares as to which the Offeree Shareholders exercise their options exceeds the
total number of Offered Shares, then each Offeree Shareholder who exercised his
option shall be entitled to purchase that proportionate part of the Offered
Shares which the number of Shares owned by that Offeree Shareholder bears to the
total number of Shares owned by all Offeree Shareholders exercising their
options under this subparagraph 2(b) (or any other proportionate part as those
Offeree Shareholders may agree among themselves).
(c) Sale to Third Parties. If, at the end of the 30-day period described in
subparagraph 2(b) of this Agreement, options have not been exercised by the
Offeree Shareholders to purchase all of the Offered Shares, then the Selling
Shareholder will be free for a period of 90 days thereafter to sell those of the
Offered Shares which the Offeree Shareholders have not agreed to purchase to any
prospective purchasers at any price and upon any terms and conditions. If all of
the Offered Shares are not sold within this 90-day period, then the Selling
Shareholder may not sell any of his Shares thereafter without again complying
with this Paragraph 2.
3. Death of a Shareholder.
(a) Options of Surviving Shareholders. Upon the death of a Shareholder, the
surviving Shareholders shall have options, exercisable by written notice to the
personal representatives of the deceased Shareholder (or, if no personal
representative of the deceased Shareholder has been duly qualified at the time
of exercise, then to the Company, which will provide the notice to the personal
representative first appointed immediately after appointment) within 30 days
after the date of the deceased Shareholder's death, to purchase from the
personal representatives of the deceased Shareholder, and the personal
representatives of the deceased Shareholder shall sell to each surviving
Shareholder who exercises this option, all or that portion of the deceased
Shareholder's Shares which that surviving Shareholder specifies in his written
notice of exercise. If the aggregate number of the deceased Shareholder's Shares
as to which the surviving Shareholders exercise their options exceeds the number
of the deceased Shareholder's Shares, then each surviving Shareholder who
exercised his option shall be entitled to purchase that proportionate part of
the Shares of the deceased Shareholder which the number of Shares owned by that
surviving Shareholder bears to the total number of Shares owned by all surviving
Shareholders who have exercised their options under this subparagraph 3(a) (or
any other proportionate part as those surviving Shareholders may agree among
themselves). Purchases made under this Paragraph 3 shall be at the price set
forth in subparagraph 4(a) of this Agreement and upon the terms set forth in
subparagraph 4(c) of this Agreement.
(b) Sale to Third Parties. If the surviving Shareholders purchase less than all
of the remaining Shares of the deceased Shareholder pursuant to the exercise of
the options granted in subparagraph 3(a) of this Agreement, then the personal
representatives of the deceased Shareholder shall be free to see all of the
deceased Shareholder's then remaining Shares to any or all of the surviving
Shareholders or to third parties, provided that any sales to third parties may
only be made (i) in unsoliciated broker's transactions from time to time on any
exchange or in the over-the-counter market, if the Shares to be sold in any such
transaction may be sold without registration pursuant to the Securities Act of
1933 (the "1933 Act"), or (ii) in an offering of Shares to be sold pursuant to a
registration statement under the 1933 Act, in which Shares may only be sold in
blocks of not more than 25,000 Shares.
4. Purchase Price; Terms; Settlement.
(a) The purchase price ("Purchase Price") per share for any Share to be sold
pursuant to the exercise of an option or options under this Agreement will be
determined in the following manner:
(i) If the total number of votes which may be cast in the election of the
Company's Directors by holders of the Shares to be purchased pursuant to the
exercise of options granted under this Agreement is greater than or equal to 5%
of the number of votes which may be cast in the election of Directors by those
holders of all of the issued and outstanding voting securities of the Company
(including all votes which might be cast after conversion by the holders of
securities convertible into voting securities) at the time those options first
become exercisable who are not Shareholders, or if the class of securities to be
sold is neither listed on a national securities exchange at the time of sale nor
regularly traded in the over-the-counter market, then the Purchase Price per
share shall be the value of the entire block of Shares to be so purchased
(taking into account any possible impact of the sale of a block of Shares of
that size upon the market for the Company's securities generally), as determined
by a recognized investment banking firm (the expenses of which shall be borne
per capita by the seller and the purchasers) selected by the Company, divided by
the number of Shares to be so purchased;
(ii) If the total number of votes which may be cast in the election of the
Company's Directors by holders of the Shares to be purchased pursuant to the
exercise of options granted under this Agreement is less than 5% of the number
of votes which may be cast in the election of Directors by those holders of all
of the issued and outstanding voting securities of the Company (including all
votes which might be cast after conversion by the holders of securities
convertible into voting securities) at the time those options first become
exercisable who are not Shareholders, and if the class of securities to be sold
is either listed on a national securities exchange at the time of sale or
regularly traded in the over-the-counter market, then the Purchase Price per
Share shall be 95% (in order to take into account the absence of transaction
costs which would otherwise be incurred in open market transactions) of the
average closing market price per share of the class of securities to be so
purchased over the 30 days preceding the date on which the options first become
exercisable, or over any shorter time within that 30-day period during which the
securities have been listed on a national securities exchange or regularly
traded in the over-the counter market.
(b) Settlement for the purchase of Shares by a Shareholder pursuant to the
options granted in Paragraph 2 of this Agreement shall be made within 30 days
following the effective date of the applicable notice giving rise to the
exercisability of the options. The Purchase Price per Share shall be payable in
full at settlement in immediately available funds; provided, however, that if
the total price to be paid by any purchaser of Shares exceeds $500,000, then
payment for any purchase of those Shares by that Purchaser may be made with not
less than $500,000 of the total Purchase Price paid in immediately available
funds at settlement, and the balance by the execution and delivery by that
purchaser of his promissory note in the form of Exhibit A in the amount of the
balance.
(c) Settlement for the purchase of Shares by Shareholder pursuant to the options
granted in Paragraph 3 of this Agreement shall be made within 60 days following
the date of the deceased Shareholder's death. The Purchase Price shall be
payable in full at settlement in immediately available funds.
(d) Unless otherwise agreed by all of the purchasers and sellers, all
settlements for the purchase and sale of Shares will be held at the principal
executive offices of the Company during regular business hours. The precise date
and hour of settlement must be fixed by the purchaser or purchasers (within the
time limits allowed by the provisions of this Agreement) by notice in writing to
the seller given at least five days in advance of the settlement date specified.
In the event that more than one purchaser is involved in a settlement and the
purchasers cannot agree on a precise time of settlement, the precise time of
settlement shall be 2:00 p.m. (local time at the principal executive offices of
the Company) on the 30th day following the date of exercise of the last option
exercised.
(e) At settlement, the stock certificate or certificates representing the Shares
being sold shall be delivered by the seller to the purchaser or purchasers, duly
endorsed for transfer or with executed stock powers attached, with signatures
guaranteed by a bank or member firm of the New York Stock Exchange, and with any
necessary documentary and transfer tax stamps affixed by the seller.
5. Copy of Agreement to be Kept on File. The Company will keep on file at its
principal executive offices, and will exhibit to any Shareholder or his duly
authorized representative at any and all reasonable times, an executed copy of
this Agreement and all amendments thereto and a copy of its most recent fiscal
year end financial statements.
6. Stock Certificates to be Marked with Legend. All certificates representing
Shares now outstanding or hereafter issued by the Company to the Shareholders
will be marked with the following legend:
"This certificate and the shares represented hereby are held
subject to the terms, covenants and conditions of an agreement
(the "Agreement") dated as of November 3, 2003, by and among
certain of the Company's shareholders, as it may be amended
from time to time, and may not be transferred or disposed of
except in accordance with the terms and provisions of the
Agreement. A copy of the Agreement and all amendments thereto
is on file and may be inspected at the principal executive
offices of the Company."
The Company will issue replacement stock certificates without the foregoing
legend to any Shareholder upon request following termination of this Agreement.
7. Effective Date; Term of Agreement.
(a) This Agreement shall become effective immediately upon the Company becoming
subject to the periodic reporting requirements of Section 13 of the Securities
Exchange Act of 1934, as amended, with respect to any class of its capital stock
and, unless terminated sooner by unanimous agreement in writing of the then
Shareholders, this Agreement will terminate on the earlier of (i): 10 business
days after the Company first becomes subject to the periodic reporting
requirements of Section 13 of the Securities Exchange Act of 1934, as amended
(the "1934 Act"), by reason of the effectiveness of a registration statement
("Registration Statement") referred to in Section 15(d) of the 1934 Act, if the
sale of the shares offered pursuant to the Registration Statement has not been
consummated by that 10th business day; and (ii) the death of the second-to-last
of the then Shareholders (but Paragraph 3 of this Agreement will apply to the
death of that second-to-last Shareholder).
(b) Notwithstanding anything to the contrary contained in this Agreement, if all
of the Shareholders die within 30 days of each other, then the provisions of
this Agreement will not pertain with respect to the deaths of those Shareholders
and this Agreement will terminate in all respects effective as of the first of
those deaths. Any and all transfers, payments or other actions made or taken
with respect to a sale of Shares made during that 30-day period will be deemed
rescinded by the parties or their respective personal representatives.
8. Rights, Obligations and Remedies. The rights and obligations under, and the
remedies to enforce, this Agreement are joint and several as to the Shareholders
with each being completely free to enforce any or all of the rights or
obligations under this Agreement against any of the others with or without the
concurrence or joinder of any of the others. The Shares are unique, and
recognizing that the remedy at law for any breach or threatened breach by a
party hereto of the covenants and agreements set forth in this Agreement would
be inadequate and that any such breach or threatened breach would cause
immediate and permanent damage which would be irreparable and the exact amount
of which would be impossible to ascertain, the parties hereto agree that in the
event of any breach or threatened breach of any covenant or agreement set forth
in this Agreement, in addition to any and all other legal and equitable remedies
which may be available, any party hereto may specifically enforce the terms of
this Agreement and may obtain temporary and/or permanent injunctive relief
without the necessity of proving actual damage by reason of any breach or
threatened breach hereof and, to the extent permissible under the applicable
statutes and rules of procedure, a temporary injunction may be granted
immediately upon the commencement of any such suit and without notice.
9. Entire Agreement. This Agreement and the Exhibit hereto contain the entire
understanding among the parties hereto with respect to the subject matter of
this Agreement, and supersede all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
with respect to the subject matter of this Agreement, including but not limited
to, the Original Shareholders' Agreement (which such prior agreement is
expressly terminated as of the date hereof).
10. Amendment, Modification and Termination. This Agreement may be amended,
modified or terminated at any time or times by the unanimous agreement in
writing of the then Shareholders. Subject to the provisions of subparagraph 7(b)
of this Agreement, no amendment, modification or termination, nor any
termination pursuant to Paragraph 7 of this Agreement, shall affect the right of
any person or entity to receive, or the obligation of any person or entity to
pay, on the terms and conditions of this Agreement, the Purchase Price for
Shares sold pursuant to this Agreement prior to that amendment, modification or
termination, or the right or obligation of any person or entity to sell or
purchase Shares on the terms and conditions of this Agreement, if the event
giving rise to that right or obligation to sell or purchase Shares has in fact
taken place prior to that amendment, modification or termination.
11. Miscellaneous.
(a) Indulgences, Etc. Any failure or delay on the part of any party to exercise
any right, remedy, power or privilege under this Agreement will not operate as a
waiver thereof, nor will any single or partial exercise of any right, remedy,
power or privilege preclude any other or further exercise of the same or of any
other right, remedy, power or privilege, nor will any waiver of any right,
remedy, power or privilege with respect to any occurrence be construed as a
waiver of that right, remedy, power or privilege with respect to any other
occurrence.
(b) Controlling Law. This Agreement and all questions relating to its validity,
interpretation, performance and enforcement (including, without limitation,
provisions concerning limitations of actions), shall be governed by and
construed in accordance with the laws of the Commonwealth of Pennsylvania,
notwithstanding any conflict-of-laws doctrines of that Commonwealth or any other
jurisdiction to the contrary, and without the aid of any canon, custom or rule
of law requiring construction against the draftsman.
(c) Notices. All notices, requests, demands and other communications required or
permitted under this Agreement must be in writing and will be deemed to have
been duly given, made and received only when delivered (personally, by facsimile
transmission or by courier service such as Federal Express, or by other
messenger) or when deposited in the United States mails, registered or certified
mail, postage prepaid, return receipt requested, addressed to the Shareholders
and the Company at their respective addresses set forth in the Company's
records. In addition, notice by mail must be by airmail if posted outside of the
continental United States. Any Shareholder may alter the address to which
communications or copies are to be sent by giving notice of any change of
address to the Company and to the other Shareholders in conformity with the
provisions of this paragraph for the giving of notice.
(d) Binding Nature of Agreement; No Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their representative
heirs, personal representatives, successors and assigns, except that no party
may assign or transfer its rights or obligations under this Agreement, except
for the right to receive payments pursuant to a settlement under Paragraph 4 of
this Agreement, without the prior written consent of the other parties hereto.
(e) Execution in Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed to be an original and all of which
will together constitute one and the same instrument.
(f) Provisions Separable. The provisions of this Agreement are independent of
and separable from each other, and no provision will be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other or
others of them may be invalid or unenforceable in whole or in part.
(g) Paragraph Headings. The paragraph headings in this Agreement are for
convenience only; they form no part of this Agreement and will not affect its
interpretation.
(h) Gender, Etc. Words used herein, regardless of the number and gender
specifically used, will be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or neuter, as the
context indicates is appropriate.
(i) Number of Days. In computing the number of days for purposes of this
Agreement, all days will be counted, including Saturdays, Sundays and holidays;
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or holiday on which Federal banks are or may elect to be closed, then the
final day will be deemed to be the next day which is not a Saturday, Sunday or
such holiday.
(j) Exhibit. The Exhibit attached to this Agreement is hereby incorporated by
reference into, and made a part of, this Agreement.
* * * * *
Intending to be legally bound, the parties hereto have hereby
executed and delivered this Agreement as of the date first above written.
\s\ Richard Berman
Richard Berman
\s\ Steven Berman
Steven Berman
\s\ Deanna Berman
Deanna Berman
\s\ Jordan Berman
Jordan Berman
\s\ Marc Berman
Marc Berman
\s\ Fred Berman
Fred Berman
FOR VALUE RECEIVED, and in order to induce the Shareholders to enter
into the foregoing Agreement, the Company hereby covenants and agrees that, upon
the death of any Shareholder, to the extent that any of that deceased
Shareholder's Shares are not purchased by the surviving Shareholders and may not
be sold without registration pursuant to the 1933 Act, the Company will use its
best efforts to:
(a) Prepare and file with the Securities and Exchange Commission (the
"Commission"), within 60 days after the request of the personal representatives
of the deceased Shareholder, a registration statement (the "Registration
Statement") with respect to all of the deceased Shareholder's Shares (the
"Registrable Shares"), and cause the Registration Statement to become effective;
(b) Prepare and file with the Commission any amendments and supplements to the
Registration Statement and the prospectus used in connection with the
Registration Statement (the "Prospectus") as may be necessary to keep the
Registration Statement effective for a period for not less than 120 days;
(c) Furnish to the personal representatives of the deceased Shareholder that
number of copies of the Registration Statement and the Prospectus (including
each preliminary Prospectus), each amendment and supplement thereto and any
other documents as those personal representatives may reasonably request, in
order to facilitate the disposition of the Registrable Shares;
(d) Register or qualify the Registrable Shares under the securities or blue sky
laws of any jurisdictions which the personal representatives of the deceased
Shareholder reasonably request, and do any and all other acts and things which
may be reasonably necessary or advisable to enable those personal
representatives to consummate the disposition in those jurisdictions of the
Registrable Shares (provided that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it would not be
required so to qualify but for this subparagraph (d), (ii) subject itself to
taxation in any jurisdiction where it would not be so subject but for this
subparagraph (d), or (iii) consent to general service of process in any
jurisdiction where it would not be required so to consent but for this
subparagraph (d));
(e) Notify the personal representatives of the deceased Shareholder, at any time
when a Prospectus is required to be delivered under the 1933 Act within the
period during which the Company is required to keep the Registration Statement
effective, of the happening of any event as a result of which the Prospectus
contains an untrue statement of a material fact or omits any fact necessary to
make a statement not misleading, and if that event occurs within 120 days after
the effective date of the Registration Statement, the Company will, at the
request of the personal representatives of the deceased Shareholder, prepare a
supplement or amendment to the Prospectus so that, as thereafter delivered to
purchasers of the Registrable Shares, the Prospectus will not contain an untrue
statement of a material fact or omit to state any fact necessary to make a
statement not misleading;
(f) Cause the Registrable Shares to be listed on the securities exchanges on
which securities of the same class and series issued by the Company are then
listed; and
(g) Provide a transfer agent and registrar for all of the Registrable Shares not
later than the effective date of the Registration Statement.
All of the expenses incident to the Company's registration of the Registrable
Shares will be borne by the estate of the deceased Shareholder.
R & B, Inc.
By: \s\ Richard Berman
-----------------------------------
Name: Richard Berman
Title: President
Attest:
By: \s\ Barry Myers
-----------------------------------
Name: Barry D. Myers
Title: Assistant Secretary
Exhibit A
PROMISSORY NOTE
$ , 20
----------------- ------------------ -----
FOR VALUE RECEIVED, ("Maker") promises to pay to ("Payee") the
principal sum of $ (the "Principal Sum"), together with interest from the date
of this Note on the unpaid balance of the Principal Sum at the "prime rate" per
annum as published from time to time in The Wall Street Journal, plus 1/4 % per
annum, as follows:
1. Payment. The Principal Sum shall be payable in consecutive, equal monthly
installments, without set-off or deduction, commencing on the first day of the
first month after the date hereof and on the first day of each month thereafter
until the entire Principal Sum has been paid. Each monthly installment o the
Principal Sum shall be accompanied by accrued interest on the unpaid balance of
the Principal Sum.
2. Place of Payment. The principal and interest shall be payable at , or at such
other place as Payee, from time to time, may designate in writing.
3. Prepayment. Maker shall have the right to prepay, without notice and without
prepayment penalty or premium, on the first day of any month, the entire unpaid
balance of the Principal Sum or any part thereof. Each prepayment of the
Principal Sum or any part thereof shall be accompanied by accrued interest on
the amount prepaid to the date of prepayment. Prepayments applied to
installments of principal shall be applied in inverse order of maturity.
4. Acceleration. If Maker should fail to pay any installment of the Principal
Sum or interest on the date fixed for payment, Payee, at its option and without
notice to Maker, may declare due and payable immediately the entire unpaid
balance of the Principal Sum and all accrued interest. From and after the date
of default, the applicable rate of interest shall be 18%, but not more than the
highest rate allowable by law.
5. Costs and Expenses. In addition to all other sums payable under this Note,
Maker also agrees to pay to Payee, on demand, all reasonable costs and expenses
(including reasonable attorneys' fees and legal expenses) incurred by Payee in
the enforcement of Maker's obligations under this Note.
6. Severability. If any provision of this Note is held to be invalid or
unenforceable by court of competent jurisdiction, the other provisions of this
Note shall remain in full force and effect and shall be construed liberally in
favor of Payee in order to effectuate the provisions of this Note.
7. Governing Law. This instrument shall be governed by and construed according
to the laws of the Commonwealth of Pennsylvania.
8. Successors and Assigns. The provisions of this Note shall be binding upon and
inure to the benefit of Maker and Payee and their respective heirs, executors or
administrators and assigns.
9. Shareholders' Agreement. This Note is the Note referred to in subparagraph
4(b) of that certain Amended and Restated Shareholders' Agreement dated as of
November 3, 2003, by and among Maker, Payee and certain other shareholders of R
& B, Inc., a Pennsylvania corporation.
Witness: Maker
- ---------------------------- ------------------------------------------