EXHIBIT 10.47
RESTATED SHAREHOLDERS AGREEMENT
OF
ENDEAVOR TECHNOLOGIES INC.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
1.1 "Affiliate"....................................................... 2
1.2 "Agreement"....................................................... 2
1.3 "Appraised Value"................................................. 2
1.4 "Board of Directors".............................................. 2
1.5 "Articles of Amendment"........................................... 2
1.6 "Business"........................................................ 2
1.7 "Business Plan"................................................... 3
1.8 "Bylaws".......................................................... 3
1.9 "CEO"............................................................. 3
1.10 "COO"............................................................. 3
1.11 "Confidential Information"........................................ 3
1.12 "Consultant"...................................................... 4
1.13 "Corporation"..................................................... 4
1.14 "Corporation Notice".............................................. 4
1.15 "Directors"....................................................... 4
1.16 "Distributor"..................................................... 4
1.17 "Equity Securities"............................................... 4
1.18 "Exchange Act".................................................... 4
1.19 "First Refusal Offer Fraction".................................... 4
1.20 "Fully Diluted Basis"............................................. 4
1.21 "Fundamental Issues".............................................. 5
1.22 "Individual Shareholders"......................................... 5
1.23 "Initial Public Offering"......................................... 5
1.24 "Non-competition Period".......................................... 5
1.25 "Non-Selling Shareholders"........................................ 5
1.26 "Offer Notice".................................................... 5
1.27 "Offer Percentage"................................................ 5
1.28 "Offer Period".................................................... 5
1.29 "Participating Securities"........................................ 5
1.30 "Participating Shareholders"...................................... 6
1.31 "Person".......................................................... 6
1.32 "Personnel"....................................................... 6
1.33 "Repurchase Note"................................................. 6
1.34 "Sale of the Corporation"......................................... 6
1.35 "SEC"............................................................. 6
1.36 "Securities Act".................................................. 6
1.37 "Selling Shareholder"............................................. 6
1.38 "Series A Common Stock"........................................... 7
1.39 "Series B Common Stock"........................................... 7
1.40 "Series C Common Stock"........................................... 7
1.41 "Series D Common Stock"........................................... 7
1.42 "Shareholders".................................................... 7
1.43 "Stock Dividend".................................................. 7
1.44 "Transfer"........................................................ 7
1.45 "Transfer Date"................................................... 7
1.46 "Voting Securities"............................................... 7
2
ARTICLE II
CAPITALIZATION
ARTICLE III
CORPORATE GOVERNANCE
3.1 Board of Directors................................................ 8
3.2 Voting............................................................ 9
3.3 Vacancies......................................................... 9
3.4 Fundamental Corporate Transactions................................ 10
3.5 Management of the Corporation..................................... 11
ARTICLE IV
CERTAIN COVENANTS
4.1 Community Property Matters........................................ 12
4.2 Competition....................................................... 13
4.3 Confidential Information.......................................... 14
4.4 Accounts and Reports.............................................. 16
ARTICLE V
CERTAIN RIGHTS
5.1 Transfers Generally............................................... 17
5.2 Legend............................................................ 19
5.3 Right of First Refusal............................................ 20
5.4 Involuntary Transfers............................................. 23
5.5 Repurchase Rights................................................. 24
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 Representations and Warranties.................................... 27
(a) Investment Matters........................................... 27
(b) Authority.................................................... 28
(c) Consents and Approvals....................................... 28
(d) No Violations................................................ 29
(e) Corporate Opportunity........................................ 30
ARTICLE VII
MISCELLANEOUS
7.1 Termination....................................................... 31
7.2 Waivers........................................................... 32
7.3 Assignability..................................................... 32
7.4 Notices........................................................... 32
7.5 Third Party Rights................................................ 33
7.6 Choice of Law..................................................... 33
7.7 Interpretation.................................................... 34
3
7.8 Severability...................................................... 34
7.9 Enforcement of Agreement.......................................... 34
7.10 References to Money............................................... 35
7.11 References to Agreement........................................... 35
7.12 Entire Agreement.................................................. 36
7.13 Headings, etc..................................................... 36
7.14 Counterparts...................................................... 36
7.15 Survival.......................................................... 36
7.16 Amendments........................................................ 36
4
RESTATED SHAREHOLDERS AGREEMENT
OF
ENDEAVOR TECHNOLOGIES INC.
THIS RESTATED SHAREHOLDERS AGREEMENT (this "Agreement"), dated as of the
18th day of October, 1996, made and entered into by and among Endeavor
Technologies Inc., a Georgia corporation (the "Corporation"), Xxxxxxx X. Xxxxxx
("Xxxxxx"), Xxxxx X. Xxxxxxxx ("Xxxxxxxx"), Xxxxxx X. Xxxxx, III ("Xxxxx"),
Xxxxxx X. Xxxxx ("Xxxxx") and the parties named or to be named on the signature
pages hereto (collectively with Arnold, Rissanen, Xxxxx and Xxxxx, the
"Shareholders").
W I T N E S S E T H :
--------------------
WHEREAS, the Shareholders believe that it would be in the best
interests of the Shareholders and the Corporation that provision be made for the
continuity and stability of the ownership of the Corporation, and the
Shareholders desire to enter into this Agreement to set forth the terms and
conditions pursuant to which the Corporation will be organized and the business
of the Corporation will be operated.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, the parties hereto, subject to the terms and conditions set forth
below, hereby agree as follows:
ARTICLE I
DEFINITIONS
Unless the context otherwise requires, as used in this Agreement, the
following terms shall have the following meanings:
1.1 "AFFILIATE" shall mean any Person that, directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with, the Person specified. As used in this definition,
"control" shall mean the power through the ownership of voting securities,
contract, or otherwise to direct the affairs of another Person.
1.2 "AGREEMENT" shall mean this Agreement as originally executed or, as
the context or subject matter otherwise requires, as amended, modified,
supplemented or restated from time to time.
1.3 "APPRAISED VALUE" shall mean, with respect to any class or series of
Equity Securities, the value per share of such class or series most recently
determined by a recognized independent valuation firm retained by the
Corporation for the purpose of preparing an annual valuation of the Corporation.
1.4 "BOARD OF DIRECTORS" shall mean the Board of Directors of the
Corporation.
1.5 "ARTICLES OF AMENDMENT" shall have the meaning ascribed to such term
in Section 2.1.
1.6 "BUSINESS" shall mean (a) cardiac care services, including without
limitation, cardiac event monitoring, transtelephonic pacemaker follow up and
xxxxxx monitoring; (b) mobile and fixed site ultrasound and nuclear diagnostic
testing services; and (c) the distribution of products and systems related
6
to arrhythmia management and ultrasound.
1.7 "BUSINESS PLAN" shall mean the strategic plan for the Corporation,
including the annual operating and capital budgets of the Corporation prepared
annually by the Corporation.
1.8 "BYLAWS" shall have the meaning ascribed to such term in Section 3.1.
1.9 "CEO" shall mean the Chief Executive Officer of the Corporation, who
shall also be the Chairman of the Board of Directors of the Corporation, as
elected by the Board of Directors of the Corporation from time to time.
1.10 "COO" shall mean the Chief Operating Officer of the Corporation, as
elected by the Board of Directors of the Corporation from time to time.
1.11 "CONFIDENTIAL INFORMATION" shall mean (a) information in written form
that the Corporation clearly labels as confidential and (b) information which is
orally disclosed by representatives of the Corporation where such disclosure is
preceded by written notification that such information is confidential.
Confidential Information shall not include any information that: (a) is or
subsequently becomes publicly available without the receiving party's breach of
any obligation owed to the Corporation; (b) became known to the receiving party
from a third party prior to the Corporation's disclosure of such information to
the receiving party other than as a result of the breach of an obligation of
confidentiality owed to the Corporation by such third party; (c) becomes known
to the receiving party from a third party other than as a result of the breach
of an obligation of confidentiality owed
7
to the Corporation by such third party; or (d) is independently developed by the
receiving party.
1.12 "CONSULTANT" shall mean any person who shall have entered into a
consulting agreement with the Corporation pursuant to which such person provides
consulting services to the Corporation.
1.13 "CORPORATION" shall have the meaning ascribed to such term in the
recitals to this Agreement.
1.14 "CORPORATION NOTICE" shall have the meaning ascribed to such term in
Section 5.3.
1.15 "DIRECTORS" shall mean the persons elected to the Board of Directors
in accordance with this Agreement.
1.16 "DISTRIBUTOR" shall mean any person who shall have entered into a
representative principal agreement with the Corporation pursuant to which such
person distributes the products or services of the Corporation.
1.17 "EQUITY SECURITIES" shall mean any capital stock of the Corporation or
any securities convertible into, or exercisable or exchangeable for, capital
stock of the Corporation, including, without limitation, the Series A, Series B,
Series C and Series D Common Stock of the Corporation.
1.18 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended.
1.19 "FIRST REFUSAL OFFER FRACTION" shall have the meaning ascribed to such
term in Section 5.3.
1.20 "FULLY DILUTED BASIS" shall mean, for purposes of any calculation
pursuant to this Agreement that is to be done on a "Fully Diluted Basis," the
sum of all of the issued and outstanding
8
shares of Voting Securities of the Corporation plus all shares of Voting
Securities that may be issuable upon the conversion, exchange or exercise of any
then outstanding Equity Securities (other than Voting Securities).
1.21 "FUNDAMENTAL ISSUES" shall have the meaning ascribed to such term in
Section 3.4.
1.22 "INDIVIDUAL SHAREHOLDERS" shall mean any Shareholder which is a
natural person.
1.23 "INITIAL PUBLIC OFFERING" shall mean the offer and sale by the
Corporation of any of its Equity Securities in a transaction underwritten by an
investment banking firm, following the completion of which (i) such Equity
Securities are listed for trading on any national securities exchange or (ii)
there are at least two market makers who are making a market in such Equity
Securities through the Nasdaq National Market.
1.24 "NON-COMPETITION PERIOD" shall have the meaning ascribed to such term
in Section 4.2.
1.25 "NON-SELLING SHAREHOLDERS" shall have the meaning ascribed to such
term in Section 5.3.
1.26 "OFFER NOTICE" shall have the meaning ascribed to such term in Section
5.3.
1.27 "OFFER PERCENTAGE" shall have the meaning ascribed to such term in
Section 5.3.
1.28 "OFFER PERIOD" shall have the meaning ascribed to such term in Section
5.3.
1.29 "PARTICIPATING SECURITIES" shall mean Equity Securities other than
Series D Common Stock, including without limitation,
9
Series A, B and C Common Stock.
1.30 "PARTICIPATING SHAREHOLDERS" shall mean the holders of Participating
Securities.
1.31 "PERSON" shall mean an individual, firm, trust, association,
corporation, partnership, government (whether federal, state, local or other
political subdivision, or any agency or bureau of any of them) or other entity.
1.32 "PERSONNEL" shall have the meaning ascribed to such term in Section
4.3.
1.33 "REPURCHASE NOTE" shall have the meaning ascribed to such term in
Section 5.5.
1.34 "SALE OF THE CORPORATION" shall mean either (a) a sale of all or
substantially all of the assets of the Corporation, or the sale of all of the
capital stock of the Corporation followed by a liquidation of the Corporation or
(b) a merger, consolidation or other business combination involving the
Corporation with or into another corporation or a partnership in which (i) the
Shareholders receive cash, securities or other consideration in exchange for a
majority of their capital stock of the Corporation or (ii) the Corporation is
not the surviving entity.
1.35 "SEC" shall mean the United States Securities and Exchange Commission
or any other Federal agency at the time administering the Securities Act.
1.36 "SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
1.37 "SELLING SHAREHOLDER" shall have the meaning ascribed to such term in
Section 5.3.
10
1.38 "SERIES A COMMON STOCK" shall mean the Common Stock, Series A of the
Corporation.
1.39 "SERIES B COMMON STOCK" shall mean he Common Stock, Series B of the
Corporation.
1.40 "SERIES C COMMON STOCK" shall mean the Common Stock, Series C of the
Corporation.
1.41 "SERIES D COMMON STOCK" shall mean the Common Stock, Series D of the
Corporation.
1.42 "SHAREHOLDERS" shall have the meaning ascribed to such term in the
recitals to this Agreement.
1.43 "STOCK DIVIDEND" shall have the meaning ascribed to such term in
Section 2.1.
1.44 "TRANSFER" shall mean any offer, transfer, sale, exchange, assignment,
mortgage, pledge, grant of lien or security interest in, gift or other
disposition or encumbrance of any nature, whether voluntary, involuntary or by
operation of law; provided, however, that any sale of Equity Securities to the
Corporation shall not be deemed to involve any Transfer.
1.45 "TRANSFER DATE" shall have the meaning ascribed to such term in
Section 5.4.
1.46 "VOTING SECURITIES" shall mean all of the issued and outstanding
shares of Series A Common Stock of the Corporation taken as a whole.
ARTICLE II
CAPITALIZATION
The relative equity interests of the Shareholders in the Corporation prior
to and after the contemplated one share for two
11
shares reverse split of the Corporation's shares shall be as set forth on
EXHIBIT A hereto.
------- -
ARTICLE III
CORPORATE GOVERNANCE
3.1 BOARD OF DIRECTORS. Subject to the terms of this Agreement and the
------------------
Articles of Incorporation ("Articles"), and Bylaws ("Bylaws") of the Corporation
attached hereto as EXHIBITS B and C, respectively, the business and affairs of
-------- - -
the Corporation shall be managed by the Board of Directors, which will consist
of seven Directors certain of whom shall be designated as follows:
(a) For so long as Xxxxxx holds (directly or indirectly) at least 5%
of the Corporation's Equity Securities on a Fully Diluted Basis, Xxxxxx shall be
entitled to designate three Directors;
(b) For so long as Rissanen owns at least 5% of the Corporation's
Equity Securities on a Fully Diluted Basis, Rissanen shall be entitled to
designate one Director;
(c) For so long as Xxxxx owns at least 3% of the Corporation's Voting
Securities on a Fully Diluted Basis, Xxxxx shall be entitled to designate one
Director; and
(d) For so long as Xxxxx owns at least 3% of the Corporation's Equity
Securities on a Fully Diluted Basis, Xxxxx shall be entitled to designate one
Director.
The right to designate Directors is non-transferrable and any attempted
sale, assignment or transfer of such right shall be void, regardless of whether
any such sale, assignment or transfer is attempted in connection with or
separate and apart from a Transfer
12
of any Equity Securities.
3.2 VOTING. During the term of this Agreement, each of the Shareholders
------
shall cause the Voting Securities beneficially owned by such Shareholder, if
any, to be voted at all meetings of Shareholders of the Corporation at which
Directors are to be elected in favor of (or shall consent in writing to) the
election of the representatives of Arnold, Rissanen, Xxxxx and Xxxxx as may,
from time to time, be designated by each such party in accordance with Section
3.1 above and shall otherwise take such action as may be necessary to give
effect to the purposes of this Agreement with regard to ensuring that Arnold,
Rissanen, Xxxxx and Xxxxx shall be afforded such representation on the Board of
Directors as is contemplated by this Agreement. During the term of this
Agreement, each of the Shareholders shall cause the Equity Securities entitled
to vote on any matter submitted for Shareholder approval beneficially owned by
such Shareholder to be voted at all meetings of Shareholders of the Corporation
(or shall consent in writing) in accordance with the recommendation of the Board
of Directors with respect to such matter. The voting obligations created hereby
shall survive and continue with respect to such Shareholder notwithstanding the
fact any such Shareholder may not be entitled to designate a member of the Board
of Directors or may subsequently forfeit such right.
3.3 VACANCIES. In the event there should be a vacancy in the Board of
---------
Directors, each of the Shareholders shall cause all Voting Securities
beneficially owned by such Shareholder, if any, to be voted (or shall cause
their respective Director designees to vote)
13
so as to fill any such vacancy with the new designee of the Shareholder whose
previous designee is no longer serving and is the subject of such vacancy. In
the event the person no longer serving as a Director and who is the subject of
the vacancy (a) was designated by a Shareholder who is no longer entitled to
designate an additional Director, or (b) was not designated by a Shareholder,
each Shareholder shall cause all Voting Securities beneficially owned by such
Shareholder to be voted so as to fill any such vacancy with a nominee
recommended by a majority of the remaining Directors; provided, however, that in
the event of a tie vote, the nominee chosen by Xxxxxx shall prevail.
3.4 FUNDAMENTAL CORPORATE TRANSACTIONS. Each of the following actions or
----------------------------------
transactions (the "Fundamental Issues") shall require, and shall not be taken or
consummated without, the consent of at least five Directors:
(a) the approval of the Business Plan;
(b) the filing of a registration statement with respect to an Initial
Public Offering;
(c) the amendment of the Articles or Bylaws;
(d) the redemption or repurchase of any Equity Securities;
(e) Capital expenditures not contemplated in the Business Plan in
excess of 20% of the capital expenditures contemplated in the Business Plan
(f) the incurrence of indebtedness not contemplated in the Business
Plan, in excess of 20% of the incurrence of indebtedness contemplated in the
Business Plan;
14
(g) removal of any Director; or
(h) the sale of the Corporation.
3.5 MANAGEMENT OF THE CORPORATION. (a) The management of the day-to-day
-----------------------------
operations of the Corporation shall be under the direction of the CEO, who shall
have such power, authority and duties as are set forth in the Bylaws. The CEO
shall report directly to the Board of Directors. The CEO will be responsible
for providing appropriate reports regarding the Corporation's progress with
respect to the implementation of the Business Plan and the operations and
condition of the Corporation. The Corporation shall also have such other
officers as may be required by law or as the Board of Directors may deem
appropriate. The Directors designated by Xxxxxx will nominate individuals to
serve in such positions and the approval of such nominees shall not be
unreasonably withheld by the Directors designated by Rissanen, Xxxxx and Xxxxx.
(b) At least 60 days prior to the end of each fiscal year, the CEO and
COO shall cause to be prepared and submitted to the Board of Directors for
approval the Business Plan for the ensuing fiscal year. The Business Plan, as
approved by the Board of Directors, shall provide the basis for the operation of
the Corporation during the fiscal year covered thereby, and the CEO and/ or COO
shall report to the Board of Directors on a quarterly basis as to the
Corporation's achievement of the objectives set forth in such Business Plan, as
well as any material deviations from, or trends affecting, such objectives.
(c) The parties hereto expressly acknowledge and agree
15
that an important component of the compensation of the officers, directors,
certain key employees and certain Distributors of the Corporation will consist
of the opportunity to acquire over time an equity interest in the Corporation
and, in connection therewith, each Shareholder shall cause their respective
Director designees to approve and, if deemed necessary, shall cause all Equity
Securities beneficially owned by such Shareholder to be voted in favor of the
implementation of an appropriate stock option plan(s) pursuant to which
officers, Directors, certain key employees and certain Distributors of the
Corporation may receive options to purchase Equity Securities on such terms and
conditions as the Board of Directors may deem appropriate; provided, however,
-------- -------
that in no event shall the total number of shares of Equity Securities that may
be issuable pursuant to such stock option plan(s) exceed in the aggregate 20.6%
of the total number of shares of Equity Securities that are issued and
outstanding on the date hereof.
ARTICLE IV
CERTAIN COVENANTS
4.1 COMMUNITY PROPERTY MATTERS. Each Individual Shareholder to become a
--------------------------
party hereto whose Equity Securities are now or become community property, shall
at the later of the date of this Agreement or the time when his or her spouse
first has a community property interest in any of such Equity Securities, cause
such spouse to execute a counterpart of this Agreement and any amendment hereto
executed by such Shareholder, or another writing in form and substance
satisfactory to the Corporation, subjecting such spouse and the spouse's
community property interest in such Equity
16
Securities to the applicable provisions of this Agreement. No spouse executing
this Agreement or any such writing solely by reason of his or her community
property interest in Equity Securities and the immediately preceding sentence,
shall be considered to be a Shareholder under this Agreement.
4.2 COMPETITION. None of the Shareholders shall, while they are
-----------
Shareholders and for 2 years thereafter (the "Non-competition Period") invest or
otherwise acquire a financial interest in, or in any way participate in the
management of, or direct the business or policies of, directly or indirectly,
whether alone or in conjunction with any Person, any Person which is involved in
providing the Business, and each Shareholder will take such action as may be
appropriate to ensure that each Affiliate of such Shareholder will not violate
the provisions of this Section 4.2. Notwithstanding the foregoing sentence, (a)
J. Xxx Xxxxx'x direct or beneficial ownership of any or all of the shares of
Xxxxx Enterprises, Inc. or any of its successors (including any entity which may
acquire Xxxxx Enterprises or into which Xxxxx Enterprises may merge) and his
service as a director and executive officer of Xxxxx Enterprises, Inc., (b) Xxx
Xxxxxx' direct or beneficial ownership of any or all of the shares of Cardiology
Partners of America, LLC ("CPA") or any of its successors (including any entity
which may acquire CPA or into which CPA may merge) and his service as a director
and executive officer of CPA, (c) Xxxx Xxxxxx or The Xxxx Company's direct or
beneficial ownership of any or all of the shares of CPA (as defined above) or
any of its successors (including any entity which may acquire CPA or into which
CPA may merge) and Xxxx Xxxxxx'x service as a director and executive
17
officer of CPA, (d) any Shareholder's ownership of five percent or less (on a
fully diluted basis) of any class of the equity securities of a Person, or (e)
any Shareholder's serving as a director of any public company whose shares are
traded on a national stock exchange or quoted on the Nasdaq national market
system shall not be a violation of the provisions of this Section 4.2.
4.3 CONFIDENTIAL INFORMATION. (a) The Shareholders acknowledge that the
------------------------
Corporation derives and will continue to derive significant economic and
competitive value from the Confidential Information that it has developed and
that the Confidential Information is not generally known to and is not readily
available to or ascertainable by others. The Shareholders shall maintain secret
and confidential the Confidential Information and shall take all reasonable
precautions against the disclosure of the Confidential Information to third
parties. The Shareholders shall not circulate or otherwise disclose the
Confidential Information within their own organizations except to personnel
(including, without limitation, such Shareholder's employees, officers,
directors, representatives, agents or Affiliates) directly involved in the
Business ("Personnel") on a need-to-know basis and, prior to any such
circulation or disclosure of the Confidential Information, shall require such
Personnel to have executed a non-disclosure agreement which covers the
Confidential Information (e.g., a Shareholder's standard form of non-disclosure
agreement which by its terms covers third party confidential information) or be
otherwise bound to hold the Confidential Information in confidence (e.g.,
pursuant to professional rules of
18
conduct). The Shareholders acknowledge that a breach of the confidentiality
provisions of this Agreement would cause irreparable injury to the Corporation
for which no remedy at law would be adequate. It is the understanding of the
Shareholders that the obligations relating to Confidential Information may be
enforced to the fullest extent permissible under the laws and public policies of
the State of Georgia. If there is a breach or threatened breach of the
confidentiality provisions of this Agreement, the Corporation shall be entitled
to injunctive relief or the equivalent mandatory relief under the laws of the
State of Georgia restraining any Shareholder from such breach or threatened
breach. The Shareholders acknowledge and agree that the prohibition against
disclosure of Confidential Information is in addition to, and not in lieu of,
any other or additional rights or remedies which may be available to the
Corporation pursuant to the laws of the State of Georgia and that the
enforcement by the Corporation of its rights and remedies pursuant to this
Agreement shall not be construed as a waiver of any rights or remedies which it
may possess in law or at equity absent this Agreement.
(b) Upon the written request of the Corporation, the Shareholders
shall return to the Corporation or destroy (subject to the right to retain, for
archival purposes only, a single copy, which single copy may be used solely by
attorneys representing such Shareholder for reference purposes only and may not
be used for any commercial or competitive purposes whatsoever) all copies of
Confidential Information held by the Shareholders or any Personnel within each
Shareholder's organization, regardless of the form in which such Confidential
Information is held including, without
19
limitation, Confidential Information held in written, graphic, pictorial or
recorded form (including any working papers prepared by each Shareholder or such
Shareholder's Personnel that contain or are derived from any Confidential
Information), or stored on computer discs, hard drives, magnetic tape or any
other electronic medium, together with a certificate of each Shareholder (if
requested by the Corporation) certifying to the same. The foregoing provision
shall not apply to Confidential Information which is rightfully held by a
Shareholder in connection with its performance under an agreement or agreements
between such Shareholder and the Corporation which has not expired or been
properly terminated.
(c) No Shareholder shall be subject to the provisions contained in
Section 4.3(a) hereof to the extent that the Shareholder or any of its
Affiliates is, based on the advice of its counsel, required by law to make
disclosure of any Confidential Information relating to the Corporation.
4.4 ACCOUNTS AND REPORTS. The Corporation will maintain a proper system
--------------------
of accounts in accordance with generally accepted accounting principles
consistently applied, will keep full and complete financial records in which
complete entries will be made in accordance with generally accepted accounting
principles, reflecting all financial transactions of the Corporation and in
which, for each fiscal year, all proper reserves for depreciation, obsolescence,
amortization, taxes, bad debts and other purposes in connection with its
business shall be made, and will, except as hereinafter set forth, furnish to
each Shareholder, so long as such Shareholder shall own at least 2% of the
Corporation's Voting
20
Securities, the following reports:
(a) within 90 days after the end of each fiscal year a copy of the
balance sheet of the Corporation as at the end of such year, together with
statements of operations, stockholders' equity and changes in financial position
of the Corporation for such year, all in reasonable detail, prepared in
accordance with generally accepted accounting principles and practices
consistently applied and certified by independent public accountants;
(b) within 45 days after the end of each fiscal quarter (except for
the fiscal quarter which is also the end of a fiscal year) a copy of the balance
sheet of the Corporation as of the end of such quarter and statements of
operations, stockholders' equity and changes in financial position of the
Corporation for such fiscal quarters and for the portion of the fiscal year
ending on the last day of such quarter, each of the foregoing financial
statements to set forth in comparative form the corresponding figures for the
corresponding fiscal period in the prior fiscal year, to be in reasonable detail
and to be certified, subject to year-end audit adjustments, by the Corporation's
chief financial officer or the CEO; and
(c) within 30 days after the end of each month (except for those
months which are the end of the first three fiscal quarters of the fiscal year
and of the fiscal year) a copy of the statements of operations of the
Corporation for such month.
ARTICLE V
CERTAIN RIGHTS
5.1 TRANSFERS GENERALLY. (a) No Shareholder shall make or
-------------------
21
permit to be made any Transfer of Equity Securities except in compliance with
the terms and conditions of this Agreement and with then applicable laws, rules
and regulations. Any purported Transfer of Equity Securities other than in
compliance with the terms and conditions of this Agreement shall be void and of
no force and effect and the Corporation shall be entitled to recognize the last
Shareholder of record who acquired such Equity Securities in a manner not
contrary to this Agreement as the holder of such Equity Securities for all
purposes.
(b) The effectiveness of any Transfer of Equity Securities by any
Shareholder to any Person, and any issuance by the Corporation of any Equity
Securities, shall be conditioned upon the receipt by the Corporation of an
instrument in form and substance satisfactory to the Corporation and the
Shareholders by which the transferee of such Equity Securities accepts and
agrees to be bound as a Shareholder by the terms and conditions of this
Agreement. The Corporation shall not issue any certificates representing Equity
Securities without receipt of such an instrument in accordance with the
preceding sentence. If the Corporation so requests, each request for Transfer of
Equity Securities shall be accompanied by an opinion of counsel obtained by the
transferor reasonably satisfactory to the Corporation to the effect that the
Transfer complies with the applicable provisions of the Securities Act and the
rules and regulations thereunder.
(c) No Shareholder shall be permitted to Transfer any Equity
Securities to a person engaged in the Business in competition with the
Corporation unless such Transfer has received
22
the prior approval of all of the members of the Board of Directors as
constituted at the time of such Transfer.
(d) No holder of Series D Common Stock shall be permitted to Transfer
any shares of Series D Common Stock until the first to occur of the following:
(i) the third anniversary of this Agreement, (ii) an Initial Public Offering,
(iii) Sale of the Corporation, or (iv) approval by the holders of not less than
two thirds (2/3) of the Participating Securities.
(e) Notwithstanding Section 5.3 or part (d) of this Section 5.1, any
Shareholder may Transfer all or any portion of any Equity Securities owned by
such Shareholder to any other corporation or partnership, all of the issued and
outstanding Voting Securities or voting interests of which are owned directly by
the transferring Shareholder, as long as the other requirements for an effective
Transfer, as set forth in parts (a), (b) and (c) of this Section 5.1, are
fulfilled in connection with such Transfer to such corporation or partnership.
5.2 LEGEND. Each Shareholder acknowledges and agrees that each
------
certificate representing Equity Securities whether presently owned or hereafter
acquired shall bear a legend reading substantially as follows:
"The securities evidenced by this certificate are
subject to restrictions on transferability and resale
contained in that certain Restated Shareholders Agreement,
dated as of October 18, 1996, among the Corporation
and the stockholders named therein, and may not be
transferred or resold except in compliance with such
restrictions. Such securities have not been registered
under the Securities Act of 1933, as amended, or any state
securities laws and may not be transferred or resold
unless so registered or an exemption from
23
registration is available."
5.3 RIGHT OF FIRST REFUSAL. (a) In the event that any Shareholder has a
----------------------
binding, written offer for the Transfer of any Equity Securities, such
Shareholder (the "Selling Shareholder")shall provide to the Corporation and the
other Participating Shareholders (the "Non-Selling Shareholders") written notice
of the material terms of such offer, including the number and type of Equity
Securities subject to such offer, the proposed purchaser thereof, the
consideration to be received, the conditions, if any, associated therewith and
any other material terms of such offer (an "Offer Notice"), except as provided
in paragraph (d) below. Following receipt of the Offer Notice, the Corporation
shall have a period of 30 days to purchase such Equity Securities for such
consideration and upon such terms and conditions as are described in the Offer
Notice. In the event the Corporation does not elect to purchase all of such
Equity Securities, the Corporation shall promptly so notify the Non-Selling
Shareholders (the "Corporation Notice"). Following receipt of the Corporation
Notice, each Non-Selling Shareholder shall have a period of 30 days to elect to
purchase a portion of such Equity Securities which the Corporation has not
elected to purchase equal to the product of (i) the number of Equity Securities
subject to such Offer Notice multiplied by (ii) a fraction (the "First Refusal
Offer Fraction"), the numerator of which is the total number of Equity
Securities held by such Non-Selling Shareholder on the date of the Offer Notice
and the denominator of which is the total number of Equity Securities held by
all Non-Selling Shareholders on
24
such date (the "Offer Percentage"), for such consideration and upon such terms
and conditions as are described in the Offer Notice. Provided, however, that any
-------- -------
Offer Notice issued with respect to Series C Common Stock prior to the second
anniversary of the date hereof shall be governed by paragraph (c) below.
(b) The Non-Selling Shareholders may elect to purchase the Equity
Securities that are the subject of any Offer Notice by delivering written notice
thereof to the Corporation and the Selling Shareholder within 30 days after
receipt of the Corporation Notice (or the Offer Notice in the case of an Offer
Notice governed by paragraph (c)) with respect to such Transfer (the "Offer
Period"). In the event that any Non-Selling Shareholder accepts the Selling
Shareholder's offer, the purchase and sale of the Selling Shareholder's Equity
Securities shall be consummated at a closing that shall occur within 30 days
after the termination of the Offer Period or within such longer period as the
parties shall agree upon. To the extent that any Shareholder does not elect to
purchase all of its or his pro rata portion of the Equity Securities of the
Selling Shareholder that are the subject of any Offer Notice, any portion of the
Selling Shareholder's Equity Securities that remains available shall be offered
to those Shareholders (if any) that have elected to purchase all of such Equity
Securities that were covered by their Offer Percentage. Such Shareholders may
purchase all or part of the remaining portion of the Selling Shareholder's
Equity Securities in proportion to their relative Offer Percentages (adjusted to
exclude from the denominator of the First Refusal Offer Fraction, the Equity
25
Securities attributable to any Shareholders not electing to purchase all of the
Equity Securities that are the subject of such Shareholder's Offer Percentages).
At the closing of the purchase and sale of such Equity Securities, each Non-
Selling Shareholder electing to purchase such Equity Securities shall pay for
the Equity Securities elected to be purchased by delivering the purchase price
therefor in immediately available funds or such other consideration as may have
been described in the Offer Notice against delivery of certificates representing
such Equity Securities duly endorsed for transfer.
(c) Notwithstanding paragraphs (a) and (b) above, in the event an
Offer Notice issued prior to the second anniversary of the date hereof relates
to Series C Common Stock, then such Series C Common Stock shall not be offered
to the Corporation as described in paragraph (a), but rather shall be offered to
the Non-Selling Shareholders at a price of $2.00 per share of Series C Common
Stock and otherwise upon the terms, conditions and procedures set forth in
paragraphs (a) and (b) above.
(d) Notwithstanding paragraphs (a) and (b) above, Xxxxxxx X. Xxxxxx
may transfer to third parties an aggregate of 1,000,000 shares of his shares of
Common Stock in one or more transactions without providing any Offer Notice or
other notice regarding such proposed or actual transactions involving up to
1,000,000 shares of such stock, and neither the Corporation nor the Non-Selling
Shareholders shall have any right to purchase any of such shares offered and
sold by Xxxxxx.
(e) In the event that the Non-Selling Shareholders do
26
not elect to purchase all of the Equity Securities that are the subject of an
Offer Notice, the Selling Shareholder may, during the 90-day period immediately
following the Offer Period, subject to the other terms of this Agreement,
Transfer the remaining Equity Securities covered by the Offer Notice that were
not purchased by the Non-Selling Shareholders for such consideration and on such
other terms and conditions as were contained in the Offer Notice. Any such
Equity Securities not transferred within such 90-day period shall again become
subject to the provisions of this Section 5.3.
5.4 INVOLUNTARY TRANSFERS. In the event that the Equity Securities owned
---------------------
by any Shareholder shall be subject to Transfer (the date of such Transfer shall
hereinafter be referred to as the "Transfer Date") by reason of (a) bankruptcy
or insolvency proceedings, whether voluntary or involuntary, (b) distraint,
levy, execution or other involuntary Transfer (including, in the case of an
Individual Shareholder, a Transfer in connection with a divorce proceeding) or
(c) death, then such Shareholder or the personal representative thereof shall
give the Corporation written notice thereof promptly upon the occurrence of such
event stating the terms of such proposed Transfer, the identity of the proposed
transferee and the price or other consideration, if readily determinable, for
which the subject Equity Securities are to be receipt, after the Corporation
otherwise obtains actual knowledge of such a proposed Transfer, the Corporation
will have the right to purchase (or to assign to the other Participating
Shareholders, pro rate, the right to purchase) all, but not less than all such
Equity
27
Securities at the price and on the terms applicable to such proposed Transfer,
which right shall be exercised by written notice given by the Corporation to
such proposed transferror within 60 days following the Corporation's receipt of
such notice or, failing such receipt, the Corporation's obtaining actual
knowledge of such proposed Transfer. The closing of the purchase and sale of
such Equity Securities shall be held at the principal office of the Corporation
on a date to be established by the Corporation, which date shall in no event
shall be less than 10 nor more than 30 days from the date on which the
Corporation gives notice of its election to purchase the subject Equity
Securities. If the nature of the event giving rise to such involuntary Transfer
is such that no readily determinable consideration is to be paid for the
Transfer of such Equity Securities, the price to be paid by the Corporation (or
its assignees) shall be the then current Appraised Value.
5.5 REPURCHASE RIGHTS. (a) In the event any employee or officer of the
-----------------
Corporation ceases to be an employee, officer or Director of the Corporation,
the Corporation may elect to repurchase all the Equity Securities held by such
person at the Appraised Value of such Equity Securities by delivering written
notice of the election to purchase such Equity Securities within 30 days
following the termination of such Person's status as an employee or officer of
the Corporation; provided, however, that if such employee or officer is a party
to a written agreement with the Corporation at the time of such termination, and
such agreement contains provisions regarding repurchase of securities, such
provisions of such agreement shall govern the parties' rights and
28
duties with respect to repurchase of securities of the Corporation. In the event
the agreement of any Consultant or Distributor with the Corporation is
terminated for Cause (as defined in the relevant agreement) or any Director of
the Corporation is removed for cause as determined by the Board of Directors,
the Corporation may elect to repurchase all the Equity Securities held by such
person at the Appraised Value of such Equity Securities by delivering written
notice of the election to purchase to such person within 30 days following the
termination of such agreement or the removal of such Director. The closing of
the purchase and sale of any Equity Securities pursuant to this provision shall
be held at the principal office of the Corporation on a date to be established
by the Corporation, which date shall be no more than 30 days from the date the
Corporation gives notice of its election to purchase the Equity Securities in
question. The Corporation may elect to pay the Appraised Value of the Equity
Securities to be repurchased in accordance with this provision in cash in whole
or in part, or by executing and delivering to the appropriate Shareholder a
promissory note dated as of the closing date for the repurchase in a principal
amount equal to the aggregate Appraised Value for the Equity Securities being
repurchased, minus the amount of any cash paid to the Shareholder in question on
the applicable closing date (the "Repurchase Note"). The Repurchase Note shall
bear interest at the minimum rate of interest required by the applicable
provisions of the Internal Revenue Code of 1986, as amended, in effect at the
time the Repurchase Note is executed. Principal and interest on the Repurchase
Note shall be payable in three
29
installments, as follows: (i) the first installment shall be due upon the first
anniversary of the date of the Repurchase Note in an amount equal to 50% of the
then outstanding principal and interest payable in connection with such note;
(ii) the second installment shall be due 18 months following the date of the
Repurchase Note in an amount equal to 50% of the then outstanding principal and
interest payable with respect to the such note; and (iii) the third installment
shall be due on the second anniversary of the date of the Repurchase Note in an
amount equal to the remaining outstanding principal and interest payable in
connection with such note; provided, however, that payments of principal due
-------- -------
under the Repurchase Note shall be repayable only out of such percentage of the
Corporation's net cash flow equal to the percentage of Equity Securities of the
Corporation being purchased; provided, further, that such restriction shall not
-------- -------
apply to the final payment of principal due under the Repurchase Note. The
Corporation's obligations under the Repurchase Note shall be secured by the
Equity Securities being purchased. For purposes of this Agreement, the term "net
cash flow" for any period shall mean the amount equal to the net income after
income taxes as shown on a statement of income for such period, plus any
depreciation deducted in determining net income for such period and any net loan
proceeds during such period, less any capital expenditures and payments of
principal under any indebtedness or other cash expenditures or payments not
deducted in computing net income during such period.
30
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES. The Shareholders hereby represent and
------------------------------
warrant with respect to themselves, both as of the date hereof and as of the
Closing Date, as follows:
(a) Investment Matters. Each Shareholder owns or is purchasing the
------------------
Common Stock solely for such Shareholder's own account, for investment, and not
with a view to any distribution thereof, and that such Shareholder will not
distribute such Common Stock (or any Equity Securities subsequently acquired by
such Shareholder that become subject to this Agreement) in violation of the
Securities Act or the applicable securities laws of any state. Each Shareholder
understands that the Common Stock has not been registered under the Securities
Act or the securities laws of any state and is being offered and sold pursuant
to an exemption from the registration requirements contained in the Securities
Act and, as a result, the Common Stock to be acquired by each Shareholder in
connection with the execution and delivery of this Agreement must be held
indefinitely unless subsequently registered under the Securities Act and any
applicable state securities laws or unless an exemption from such registration
becomes or is available. Each Shareholder is financially able to hold the
Common Stock being purchased by such Shareholder for long-term investment,
believes that the nature and amount of the Common Stock being purchased by him
or it is consistent with such Shareholder's overall investment program and
financial position, recognizes that there are substantial risks involved in the
ownership of the Common Stock,
31
and can afford a complete loss of such investment. Each Shareholder has had the
opportunity to ask questions of management and to review such information as
such Shareholder may deem necessary or appropriate in connection with
formulating an informed decision regarding its or his investment in the Common
Stock.
(b) Authority. The boards of directors of any Shareholders that are
---------
corporations have duly authorized the execution and delivery of this Agreement
and the transactions contemplated hereby. Any Shareholder that is a corporation
has full power and authority to execute and deliver, and to perform its
obligations under, this Agreement. Any Shareholder that is a Partnership has
full partnership power and authority to execute and deliver, and to perform its
obligations under, this Agreement. The Individual Shareholders have reviewed
the terms of this Agreement, understand the intention of the parties in entering
into this Agreement and the scope and nature of their respective obligations
hereunder and have had the opportunity to review the terms of this Agreement and
any other agreements, documents and instruments to be executed and delivered in
connection herewith with their respective attorneys, accountants and investment
advisors to the extent deemed appropriate. This Agreement constitutes a valid
and binding obligation of the Shareholders, enforceable against them in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other laws affecting
the rights of creditors generally.
(c) Consents and Approvals. All authorizations, approvals and
----------------------
consents, if any, required to be obtained from, and
32
all registrations, declarations and filings, if any, required to be made with,
all governmental authorities and regulatory bodies to permit each Shareholder to
execute and deliver, and to perform its obligations under, this Agreement have
been obtained or made, as the case may be, and all such authorizations,
approvals, consents, registrations, declarations and filings are in full force
and effect. All terms and conditions contained in, or existing in respect of,
such authorizations, approvals, consents, registrations, declarations and
filings have been, to the extent necessary prior to the date of execution and
delivery hereof, fully satisfied and performed.
(d) No Violations. Neither the execution or delivery by each
-------------
Shareholder of this Agreement, nor the consummation by each Shareholder of the
transactions herein contemplated, nor the fulfillment by each Shareholder of the
terms and provisions hereof (i) will conflict with, violate or result in a
breach of, any of the terms, conditions or provisions of any law, regulation,
order, writ, injunction, decree, determination or award of any court,
governmental department, board, agency or instrumentality or any arbitrator,
applicable to each Shareholder, (ii) will conflict with, violate or result in a
breach of, or constitute a default under, any of the terms, conditions or
provisions of the constituent documents of Shareholders that are corporations or
partnerships, (iii) will conflict with, violate or result in a breach of, or
constitute a default under, any of the terms, conditions or provisions of any
loan agreement, indenture, trust, deed or other agreement or instrument to which
each Shareholder is
33
a party or by which it is bound or (iv) except as provided herein, result in the
creation or imposition of any lien, charge, security interest or encumbrance of
any nature whatsoever upon any of each Shareholder's property or assets
(including, without limitation, the Common Stock owned or to be acquired by each
Shareholder in connection with this Agreement). Each Shareholder is not in
default under any agreement to which it is a party which default could impair
its ability to perform its obligations under this Agreement.
(e) Corporate Opportunity. The Individual Shareholders have made
---------------------
appropriate disclosure of their investment in the Corporation to any
corporation, trust, partnership or other entity to which they owe any fiduciary
duties. Such corporations, trusts, partnerships or other entities do not view
the Individual Shareholder's activities as usurping any opportunity to which
such corporations, partnerships, trusts or other entities may be entitled or as
otherwise providing the basis for the assertion of any claim that the purchase
of the Common Stock by each Individual Shareholder or the completion of the
transactions and agreements contemplated by this Agreement constitutes a breach
of any duty, statutory or otherwise, owned by each Individual Shareholder to any
such corporation, trust, partnership or other entity. To the extent that it is
required under any applicable laws or is customary under prevailing business
practices that formal action be taken by any such corporation, partnership,
trust or other entity to evidence or otherwise establish that the purchase by
each Individual Shareholder of the Common Stock does not constitute an
34
opportunity which must first be offered to and rejected by any such corporation,
partnership, trust or other entity, all such formal action has been taken in
consultation with such entity's legal counsel, is in full force and effect as of
the date of this Agreement and has not been amended or modified in any material
respect.
ARTICLE VII
MISCELLANEOUS
7.1 TERMINATION. This Agreement shall terminate upon the earlier to occur
-----------
of (i) the written agreement of all of the undersigned holders of Equity
Securities, (ii) a Sale of the Corporation, (iii) an Initial Public Offering of
the Corporation's Common Stock, provided, however, that as a condition to the
-------- -------
Corporation's obligation to execute and deliver an underwriting agreement in
connection with any such Initial Public Offering, the Shareholders shall execute
and cause to be filed with the Secretary of State of the State of Georgia an
amendment to the Certificate to change all authorized shares (including shares
of unissued stock subject to unexercised or unvested options) and all issued or
outstanding shares of each series of Common Stock into one class of common stock
having the rights of the Series A Common Stock with each Shareholder receiving
one share of the new class of common stock for each share of Common Stock held
by each Shareholder as of the effective date of such amendment and by their
execution and delivery hereof, each Shareholder hereby appoints the then CEO of
the Corporation as such Shareholder's attorney-in-fact solely for the purpose of
executing and delivering any written consent of the
35
Shareholder's necessary to approve such amendments to the Certificate or (iv)
the acquisition by a single purchaser of all of the issued and outstanding
Voting Securities.
7.2 WAIVERS. The failure at any time of any Shareholder to require
-------
performance by any other Shareholder of any responsibility or obligation
required by this Agreement shall in no way effect a Shareholder's right to
require such performance at any time thereafter, nor shall the waiver by the
Shareholders or the Board of Directors of a breach of any provision of this
Agreement by any Shareholder constitute a waiver of any other breach of the same
or any other provision of this Agreement nor constitute a waiver of the
responsibility or obligation itself.
7.3 ASSIGNABILITY. This Agreement shall be binding upon and inure to the
-------------
benefit of the successors and assigns of each party hereto. Neither this
Agreement nor any right (other than a right to receive the payment of the money)
or obligation hereunder may be assigned or delegated in whole or in part to any
other Person without the prior written consent of each Participating
Shareholder.
7.4 NOTICES. In any case where any notice or other communication is
-------
required or permitted to be given hereunder (including, without limitation, any
change in the information set forth in this Section 7.4) such notice or
communication shall be in writing and (a) personally delivered, (b) sent by
registered United States mail, postage prepaid, return receipt requested, (c)
transmitted by telecopy, confirmed by telephone or (d) sent by way of a
recognized overnight courier service, postage prepaid, return
36
receipt requested with instructions to deliver on the next business day, in each
case as follows:
(a) If to the Corporation, to:
Endeavor Technologies Inc.
000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx, L.L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
(b) If to any Shareholder, to the address set forth below such
Shareholder's name on the signature pages hereto.
All such notices or other communications shall be deemed to have been
given or received (i) upon receipt if personally delivered, (ii) on the fifth
business day following posting if by registered United States mail, (iii) when
sent if by confirmed telecopy or (iv) on the next business day following deposit
with an overnight courier.
7.5 THIRD PARTY RIGHTS. Nothing in this Agreement, whether express or
------------------
implied, is intended or shall be construed to confer, directly or indirectly,
upon or give to any Person other than the Corporation, the Shareholders and
their respective Affiliates, any legal or equitable right, remedy or claim under
or in respect of this Agreement or any covenant, condition or other provision
contained herein.
7.6 CHOICE OF LAW. This Agreement shall be construed and enforced in
-------------
accordance with and governed by the laws of the State of Georgia without giving
effect to the principles of conflict of
37
laws thereof.
7.7 INTERPRETATION. Should a provision of this Agreement require judicial
--------------
interpretation, it is agreed that the judicial body interpreting or construing
the same shall not apply the assumption that the terms hereof shall be more
strictly construed against one party by reason of the rule of construction that
any instrument is to be construed more strictly against the party which itself
or through its agent prepared the same, it being agreed that the agents of all
the parties have participated in the preparation hereof equally.
7.8 SEVERABILITY. Should any provision of this Agreement be deemed in
------------
contradiction with the laws of any jurisdiction in which it is to be performed
or unenforceability for any reason, such provision shall be deemed null and
void, but this Agreement shall remain in force in all other respects. Should
any provision of this Agreement be or become ineffective because of changes in
applicable laws or interpretation thereof or should this Agreement fail to
include a provision that is required as a matter of law, the validity of the
other provisions of this Agreement shall not be affected thereby. If such
circumstances arise, the parties hereto shall negotiate in good faith
appropriate modifications to this Agreement to reflect those changes that are
required by law.
7.9 ENFORCEMENT OF AGREEMENT. The parties agree that the Equity
------------------------
Securities are unique and that any failure to perform the obligations under this
Agreement will result in irreparable damage to the other parties and that in
addition, and not in lieu of any other legal or equitable remedies available,
specific performance
38
of the obligations of the Shareholders hereunder may be enforced by a suit in
equity. Any action or proceeding brought by any party to this Agreement on its
own behalf, or on behalf of the Corporation, in connection with or relating to
this Agreement or any provision hereof shall be brought only in a federal or
state court of competent jurisdiction in the State of Georgia. Each of the
parties here, solely in connection with any such action or proceeding, does
hereby (a) submit to the jurisdiction of any such court, (b) waive any defense
of or relating to lack of jurisdiction with respect to any such action or
proceeding in any such court, (c) waive any defense of or relating to service of
process in any such action or proceeding in any such court and (d) irrevocably
appoints the Corporation as its agent to accept service of process in such
action, provided that if the Corporation is the party commencing such action or
proceeding, it shall give reasonably prompt notice thereof of the other party
named in such action or proceeding.
7.10 REFERENCES TO MONEY. References to "cash," "$," "Dollars" or other
-------------------
money amounts refer to currency of the United States.
7.11 REFERENCES TO AGREEMENT. Any reference herein to this Agreement shall
-----------------------
be deemed to be a reference to such Agreement as the same may be modified,
varied, amended or supplemented from time to time by the Shareholders in
accordance with the provisions hereof. Unless the context otherwise expressly
requires, the words "herein," "hereof" and "hereunder" and other words of
similar importance refer to this Agreement as a whole and not to any
39
particular Article, Section or other subdivision.
7.12 ENTIRE AGREEMENT. This Agreement and the other agreements and
----------------
documents contemplated herein, constitute the entire agreement between the
parties hereto and supersede any prior agreement or understanding between the
parties hereto whether oral or written, with respect to the matters contemplated
hereby.
7.13 HEADINGS, ETC. The Article and Section headings in this Agreement,
--------------
and the table of contents included herein, are inserted for convenience of
reference only and shall not affect the interpretation of this Agreement.
Whenever the context shall require, each terms stated in either the singular or
plural shall include the singular and the plural. References herein to
masculine, feminine or neuter pronouns shall be construed to refer to another
gender when the context may require.
7.14 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
7.15 SURVIVAL. The provisions of Sections 4.2 and 4.3 and all
--------
representations and warranties made herein shall survive the execution and
delivery of this Agreement and any termination of this Agreement for a period of
two years following the effective date of any such termination.
7.16 AMENDMENTS. This Agreement may be amended or modified only by a
----------
written instrument executed by Shareholders holding both (i) a majority of the
issued and outstanding Series A Common Stock and (ii) a majority of issued and
outstanding Participating Securities, without prior notice to the other
Shareholders. Upon
40
delivery to the Corporation of an instrument amending the Agreement executed by
the requisite number of Shareholders in accordance with the preceding sentence,
the Corporation shall execute such instrument and all Shareholders shall be
bound thereby. The Corporation shall promptly provide a copy of such instrument
to each Shareholder.
[BALANCE OF PAGE INTENTIONALLY BLANK.]
41
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as of
the day and year first above written.
ENDEAVOR TECHNOLOGIES INC.
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------
Xxxxxxx X. Xxxxxx
Chief Executive Officer
SHAREHOLDERS:
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxxxx
--------------------------- ------------------------------
Xxxxxxx X. Xxxxxx Xxxxx X. Xxxxxxxx
Address: Address:
___________________________ ______________________________
___________________________ ______________________________
/s/ Xxxxxx X. Xxxxx, III /s/ Xxxxxx X. Xxxxx, M.D.
--------------------------- ------------------------------
Xxxxxx X. Xxxxx, III Xxxxxx X. Xxxxx, M.D.
Address: Address:
___________________________ ______________________________
___________________________ ______________________________
Pursuant to Section 4.1 of this Agreement each undersigned has executed
this Agreement for the limited purpose of subjecting herself and her community
property interest in Equity Securities to the applicable provisions of this
Agreement.
___________________________ ______________________________
___________________________ ______________________________
___________________________ ______________________________
___________________________ ______________________________
___________________________ ______________________________
42
SCHEDULE
TO
RESTATED SHAREHOLDERS AGREEMENT, AS AMENDED
PARTIES TO RESTATED SHAREHOLDERS AGREEMENT TECHNOLOGIES INC.
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx, III
Xxxxxx X. Xxxxx
J. Xxx Xxxxx
Xxxxx Holdings I, L.P.
K. Xxxxxx Xxxxxxxx
U. Xxxxxxx Xxxxx
The Xxxx Company
Xxxxxx Partners, Ltd.
X. Xxxxxx Xxxxxx
Woodlane L.L.C.
R. Xxxxxx Xxxxx
Xxxxx X. Xxxxxxx
Xxxxxxxx, Inc., Custodian for
Xxxxx X. Xxxxxxxx XXX
Xxxx X. Xxxx
Xxx X. Xxxxx Annuity Trust II
Peachtree Allergy and Asthma Clinic Profit Sharing Plan
Xxxxxx X. XxXxxx, M.D.
Xxxxxx X. Xxxxx
X. Xxxxxxx Xxxxxxx
XXX FBO J. Xxxxxxx Xxxxxxx, Xxxxx Xxxxxx as Rollover Custodian
Xxxxxx X. Xxxxx U/A DTD. 2/29/96
Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx Born
Xxxxxxx X. Xxxxx
B.T. Xxxx. Xxxxx Incorporated, as Custodian for
XXX FBO Xxxxxxx Xxxx Xxxxxx
B.T. Xxxx. Xxxxx Incorporated, as Custodian for
XXX FBO Xxxxxxx X. Xxxxx
GFKK Partnership
Xxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxx
Cam Xxxxxx
Xxxxxx X. Xxxxx, Xx.
Xxx Xxxx
Xxxxxx Xxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx XX
Apex Ventures, L.P.
xxxxxxxxxxxxxx.xxx, Inc.
Premiere Technologies, Inc.
HBO & Company of Georgia
Matria Healthcare, Inc.
43
