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STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is entered into
as of the 2nd day of May, 1997, among the stockholders listed on Exhibit A
hereto (each such stockholder individually a "Stockholder" and collectively the
"Stockholders").
WITNESSETH:
WHEREAS, each Stockholder owns the number of shares of the
common stock of Advanced Communication Systems, Inc. (the "Company") (the common
stock of the Company referred to herein as the "Stock" or "Shares"), in such
number as is listed on Exhibit A;
WHEREAS, the Stockholders desire to promote their mutual
interests and the interests of the Company by imposing certain restrictions and
obligations on themselves with respect to the Stock; and
WHEREAS, the Stockholders hereto believe that it is in their
mutual best interests to provide for continuity and harmony in the management
and policies of the Company;
NOW THEREFORE, in consideration of the mutual agreements and
covenants contained herein, the Stockholders hereby agree as follows:
1. Voting of Shares.
(a) Board of Directors.
(i) In any and all elections of directors of
the Company (whether at a meeting or by written action in lieu of a meeting),
each Stockholder shall vote or cause to be voted all Shares owned by him, her or
it, or over which he, she or it has voting control, and otherwise use his, her
or its best efforts to cause the Board of Directors to fix the number of
directors of the Company at five and to elect (y) Xxxxxx X. Xxxxxxxx
("Xxxxxxxx"), Xxxxxxx X. Xxxxxxxxxx ("Xxxxxxxxxx") and Xxxxxx X. Xxxxxxxx
(together with Xxxxxxxx and Martinache, the "Principals") as members of the
Board of Directors and (z) two Outside Directors as required for listing the
Stock on the Nasdaq National Market, which Outside Directors shall be designated
by a majority of the Principals. "Outside Directors" shall mean persons other
than officers or employees of the Company or its subsidiaries or any other
individuals having a relationship which, in the opinion of the Company's Board
of Directors, would interfere with the exercise of independent judgment in
carrying out the responsibilities of a director.
Notwithstanding the foregoing, until such time as the
Principals give notice of their desire to appoint additional directors, the
number of directors shall be three (the number of directors authorized as of the
date hereof by the Company's bylaws).
(ii) No Stockholder shall vote to remove any
of the Principals, except for bad faith or willful misconduct. The seat of any
director who resigns, is removed or dies while serving in such capacity, shall
be filled by a designee of the remaining Stockholders.
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(b) Other Matters.
(i) In any and all other matters of the
Company which are submitted to a vote by the Company's stockholders (whether at
a meeting or by written action in lieu of a meeting), each Stockholder shall
vote or cause to be voted all Shares owned by him, her or it, or over which he,
she or it has voting control, and otherwise use his, her or its best efforts to
approve that action upon which a majority of the Stockholders shall have agreed
in accordance with clause (ii) below.
(ii) Prior to the date of any meeting at
which a stockholder vote is permitted or required, the Stockholders shall
separately vote upon each and every action which will be submitted to the vote
of the Company's stockholders. The number of votes to which each Stockholder is
entitled shall be equal to the number of votes to which he, she or it is
entitled under the Company's Certificate of Incorporation or Bylaws, as amended
from time to time.
2. Applicability to Stock Splits, Stock Dividends, etc. If
from time to time there is a stock split-up, stock dividend, stock distribution
or other reclassification of the Stock, any and all new, substituted or
additional securities to which each Stockholder is entitled by reason of his,
her or its ownership of Shares shall be immediately subject to the provisions of
this Agreement in the same manner and to the same extent as the Shares.
3. Representations and Warranties. Each Stockholder represents
and warrants that (a) such Stockholder is the record owner of the number of
Shares set forth opposite his, her or its name on Exhibit A hereto, (b) this
Agreement has been duly authorized, executed and delivered by such Stockholder
and constitutes the valid and binding obligation of such Stockholder,
enforceable in accordance with its terms, and (c) such Stockholder has not
granted and is not a party to any proxy, voting trust or other arrangement which
is inconsistent with, conflicts with or violates any provision of this
Agreement. In addition, no Stockholder shall grant any proxy or become party to
any voting trust or other arrangement which is inconsistent with, conflicts with
or violates any provision of this Agreement.
4. Termination
(a) Termination. This Agreement may be terminated at
any time by the mutual consent of the parties hereto, and shall be terminated
upon the earliest date upon which (i) only one of the three Principals shall
own, either individually or beneficially, any Stock or (ii) the Stockholders as
a group own less than forty percent (40%) of the outstanding Stock of the
Company.
(b) Effect of Termination and Abandonment. In the
event of termination of this Agreement pursuant to Section 4(a), no party hereto
(or any of its directors or officers) shall have any liability or further
obligation to another party to this Agreement, except that nothing herein will
relieve any party from liability for any breach of this Agreement.
5. Legend. The Stockholders shall encourage the Company to
place on the face of each certificate representing Shares owned by them the
following legend:
"The Shares represented by this certificate are subject to a
Stockholders Agreement dated as of April __, 1997, among
certain of the Company's stockholders, as amended and modified
from time to time. A copy of
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such Stockholders Agreement shall be furnished without charge
by the Company to the holder hereof upon written request."
Such legend shall be removed upon a sale or transfer of Shares to a person not a
party to this Agreement.
6. Miscellaneous.
(a) Notices. Any notice or other communication
required or permitted in connection with this Agreement shall be deemed to be
delivered if in writing (or in the form of a telecopy) to the parties at the
addresses listed on Exhibit A (i) when actually delivered, or telecopied to said
address, (ii) when, in the case of a letter, five (5) business days shall have
elapsed after the same shall have been deposited in the United States mails,
postage prepaid, registered or certified, return receipt requested, and, (iii)
in the case of a notice sent via an established commercial overnight delivery
service, at the close of business on the next business day following the date on
which the same shall have been delivered to such service.
(b) Amendments. This Agreement may not be amended
except by an instrument in writing signed by all the Stockholders.
(c) Entire Agreement. This instrument embodies the
entire agreement and understanding among the parties hereto with respect to the
subject matter hereof and supersedes and preempts any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
(d) Severability. Whenever possible, each provision
of this Agreement shall be interpreted in such manner as to be effective and
valid under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect the validity, legality or enforceability of any other provision of
this Agreement in such jurisdiction or affect the validity, legality or
enforceability of any provision in any other jurisdiction, and this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained herein.
(e) Assignment. Except as provided herein, this
Agreement shall not be assigned by any party without the written consent of the
other parties. Any attempted assignment without such written consent shall be
null and void and without legal effect.
(f) Binding. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto and their successors,
permitted assigns, heirs, executors, administrators and personal
representatives.
(g) Counterparts. This Agreement may be executed in
two or more partially or fully executed counterparts each of which shall be
deemed an original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument.
(h) Headings. The headings in the Sections of this
Agreement are inserted for convenience only and shall not constitute a part
hereof.
(i) Law Governing. ALL ISSUES AND QUESTIONS
CONCERNING THE CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEABILITY OF THIS
AGREEMENT AND THE EXHIBITS HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE
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STATE OF DELAWARE, WITHOUT REGARD TO THE CHOICE OF LAW OR CONFLICT OF LAW
PROVISIONS THEREOF.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed all as of the day and year first above written.
The Stockholders:
/s/ XXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ XXXXXXX XXXXXXXX
----------------------------------------
Xxxxxxx Xxxxxxxx
/s/ XXXXXX X. XXXXXXXX
/s/ XXXXXX X. XXXXXXXX ----------------------------------------
------------------------------------ Xxxxxx X. Xxxxxxxx as Trustee for
Xxxxxx X. Xxxxxxxx Xxxxxxxx 1997 Trust No. 1
/s/ XXXXXX X. XXXXXXXX
/s/ XXXXXXXX X. XXXXXXXX ----------------------------------------
--------------------------------- Xxxxxx X. Xxxxxxxx as Trustee for
Xxxxxxxx X. Xxxxxxxx Xxxxxxxx 1997 Trust No. 2
/s/ XXXXXX X. XXXXXXXX /s/ XXXXXXX X. XXXXXXXXXX
------------------------------------ ----------------------------------------
Xxxxxx X. Xxxxxxxx as Trustee for Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxx 1997 Trust No. 1
/s/ XXXXXXXX X. XXXXXXXX /s/ XXXXX XXXXXXXXXX
------------------------------------ ----------------------------------------
Xxxxxxxx X. Xxxxxxxx as Trustee for Xxxxx Xxxxxxxxxx
Xxxxxxxx 1997 Trust No. 1
/s/ XXXXXX X. XXXXXXXX /s/ XXXXXXX X. XXXXXXXXXX
------------------------------------ ----------------------------------------
Xxxxxx X. Xxxxxxxx as Trustee for Xxxxxxx X. Xxxxxxxxxx as Trustee for
Xxxxxxxx 1997 Trust No. 2 Martinache 1997 Trust No. 1
/s/ XXXXXXXX X. XXXXXXXX /s/ XXXXXXX X. XXXXXXXXXX
------------------------------------ ----------------------------------------
Xxxxxxxx X. Xxxxxxxx as Trustee for Xxxxxxx X. Xxxxxxxxxx as Trustee for
Xxxxxxxx 1997 Trust No. 2 Martinache 1997 Trust No. 2
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EXHIBIT A
STOCKHOLDERS
Name No. Shares
---- ----------
Xxxxxx X. and Xxxxxxx Xxxxxxxx 200,000
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxxx 1997 Trust No. 1 473,750
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxxx 1997 Trust No. 2 473,750
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxx X. and Xxxxx Xxxxxxxxxx 715,500
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Martinache 1997 Trust No. 1 216,000
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Martinache 1997 Trust No. 2 216,000
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
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Name No. Shares
---- ----------
Xxxxxx X. and Xxxxxxxx X. Xxxxxxxx 547,500
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxxx 1997 Trust No. 1 300,000
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Xxxxxxxx 1997 Trust No. 2 300,000
c/o Advanced Communication Systems, Inc.
00000 Xxx Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
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