Exhibit 10 (xxxvii)
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (the "Agreement") dated as of December 15, 1998
between Xxxxx Technologies, Inc. a Delaware corporation (the "Company") and RCBA
Strategic Partners, L.P., a Delaware limited partnership (the "Stockholder").
WHEREAS, the Stockholder and its affiliates are the largest shareholder of
the Company; and
WHEREAS, N. Xxxxx Xxxx and Xxxxxxx X. Xxxxx are Managing Members of the
Stockholder;
NOW, THEREFORE, in consideration of the covenants and agreements set forth
herein, the parties hereto agree as follows:
1. Appointment of N. Xxxxx Xxxx as Director. The Stockholder shall
designate N. Xxxxx Xxxx as its representative on the Board of Directors of the
Company ("Board"), and the Company shall appoint Xx. Xxxx to the Board.
2. Nomination of N. Xxxxx Xxxx as Director. The Company shall, for
so long as the Stockholder and its Affiliates (as defined below) own or control
at least 8% of the outstanding shares of common stock of the Company, use its
best efforts to ensure that, following any vote for the election of directors of
the Company at a stockholders' meeting or otherwise, N. Xxxxx Xxxx, or, if he is
not available, Xxxxxxx X. Xxxxx, a managing member of the Stockholder, is a
member of the Board. "Affiliate" means a person that directly, or indirectly
through one or more intermediaries, controls, is controlled by, or is under
common control with, the person specified. The term "control" means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise. Notwithstanding the foregoing, the
Company shall have the right to terminate its obligations under this Section 2
at any time beginning one year after the effective date of this Agreement.
3. Observer Rights for Xxxxxxx X. Xxxxx. The Company shall, for so
long as the Stockholder and its Affiliates (as defined above) own or control at
least 5% of the outstanding shares of common stock of the Company, permit
Xxxxxxx X. Xxxxx to attend and observe meetings of the Board, and Xx. Xxxxx
shall receive all written information provided by the Company to the Board.
Unless he becomes a Director, Xx. Xxxxx shall have no right to vote on any
matter presented to the Board, but Xx. Xxxxx shall have the right to examine
books and records of the Company and the right to review and participate in all
discussions of the Board including, without limitation, capital or equity
programs. Notwithstanding the foregoing, the Company shall have the right to
terminate its obligations
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under this Section 3 at any time beginning one year after the effective date of
this Agreement.
4. Amendment. This Agreement may be altered or amended only with the
written consent of the parties hereto.
5. Assignment. The terms and conditions of this Agreement shall
inure to the benefit of and be binding upon the respective successors of the
parties hereto, and this Agreement may not be assigned by any party without the
prior written consent of the other party.
6. Notices. Any and all communications provided for herein shall be
given in writing and deemed received when delivered by overnight courier or hand
delivery, or when sent by facsimile transmission which shall be addressed, or
sent, as follows:
If to the Company, to it at:
Xxxxx Technologies, Inc.
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telecopier: 000-000-0000
If to the Stockholder, to it at:
RCBA Strategic Partners, L.P.
c/o Xxxxxxx X. Xxxx & Associates, L.P.
000 Xxxxxxxxxx Xxxxxx,
Xxxxx 000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telecopier: 000-000-0000
7. Counterparts. This Agreement may be executed in one or more
counterparts, and each counterpart shall be deemed to be an original and which
counterparts together shall constitute one and the same agreement of the parties
hereto.
8. Choice of Law. This Agreement shall be governed by the laws of
the State of California, without regard to principles of conflict of laws.
9. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto respecting the subject matter hereof and
supersedes any prior
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agreements, discussions, and understanding with respect to such subject matters.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
XXXXX TECHNOLOGIES, INC.
By: /s/ Xxxx X. Xxxxxxxxx
Its: President and Chief Executive Officer
RCBA STRATEGIC PARTNERS, L.P.
By: RCBA GP, L.L.C.
Its General Partner
By: /s/ N. Xxxxx Xxxx
A Managing Member
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