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Exhibit 10.13
EXECUTION COPY
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SHAREHOLDERS AGREEMENT
Dated as of August 13, 1999
By and Among
DYNACS ENGINEERING COMPANY, INC.
("COMPANY"),
XXXXXXXX X. XXXXX
XXXXX XXXXXX
XXXXXX XXXXXXX
XXXXX X. XXXXXXXXX
XXXXXX XXXXXXXXXXXX
XXXXX X. XXXXXXXX
XXXX XXXXXXXXX
XXXXXX XXXXXXXXX
("EXISTING SHAREHOLDERS"),
And
XXXXXXX XXXXX
XXXXXXX DALLAS
XXX XXXXXXXXXX
OFFENSE GROUP ASSOCIATES, LP
("INVESTORS")
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TABLE OF CONTENTS
PAGE
1. Definitions ......................................................... 2
2. Restrictions on Transfer ............................................ 4
(a) General Restrictions .......................................... 4
(b) Closing of Permitted Transfers ................................ 4
3. Permitted Transfers of Shares ....................................... 5
(a) Shareholder Transfers ......................................... 5
(b) Transfers to Family Members, Trusts or Other Legal Entities ... 5
(c) Qualified Transferees ......................................... 5
4. Right of First Refusal .............................................. 6
(a) Transfer Notice ............................................... 6
(b) Acceptance .................................................... 7
(c) Allocation of Offered Shares .................................. 7
(d) Transfer to Subscribing Shareholders .......................... 7
(e) Transfer to Transferee ........................................ 8
CoSale Right in Sale of Voting Control .............................. 8
(a) Rights of CoSale .............................................. 8
(b) Exercise of CoSale Right ...................................... 8
6. Other Transfers of Shares ........................................... 9
(a) Involuntary Transfers ........................................ 9
(b) Purchase Rights .............................................. 10
(c) Purchase Procedures .......................................... 10
(d) Determination of Fair Market Value of Shares Procedures ...... 10
7. Restrictive Endorsement on Share Certificates ....................... 11
8. Agreements of Certain Spouses ....................................... 11
9. Termination of Existing Agreements .................................. 11
10. Board of Directors .................................................. 11
11. Miscellaneous ....................................................... 12
(a) Notices ....................................................... 12
(b) Amendment ..................................................... 12
(c) Termination ................................................... 12
(d) Waiver ........................................................ 12
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(e) Equitable Relief ............................................. 13
(f) Counterparts ................................................. 13
(g) Construction ................................................. 13
(h) Governing Law ................................................ 13
(i) Benefit and Binding Effect ................................... 13
(j) Future Spousal Consents ...................................... 13
(k) Further Assurances ........................................... 13
Exhibits:
Exhibit A -- Existing Shareholders and Outstanding Shares
Exhibit B -- Investors
Exhibit C -- Spousal Consent
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SHAREHOLDERS AGREEMENT
THIS SHAREHOLDERS AGREEMENT (this "Agreement"), is made and entered into
as of August 13, 1999, by and among DYNACS ENGINEERING COMPANY, INC., a Florida
corporation (the "Company"), the shareholders of the Company whose names appear
on Exhibit A to this Agreement (collectively referred to in this Agreement as
the "Existing Shareholders" and each as an "Existing Shareholder"), and those
persons whose names appear on Exhibit B to this Agreement (collectively referred
to in this Agreement as the "Investors" and each as an "Investor"). The Existing
Shareholders and the Investors are collectively referred to in this Agreement,
together with all other persons who may hereafter become parties to this
Agreement, as the "Shareholders".
RECITALS
A. As of the date of this Agreement, the Existing Shareholders own of
record and beneficially the number of shares of common stock, par value $.001
per share, of the Company (the "Common Stock") set forth opposite their
respective names on Exhibit A, constituting 100% of the outstanding equity
securities of the Company.
B. Upon consummation of the transactions contemplated by that certain
Contribution and Exchange Agreement, dated as of August 12, 1999, by and among
the Company, Cerulean FXs, Inc., a Florida corporation ("FX"), Cerulean
Colorization, L.L.C., a Delaware limited liability company ("Cerulean"), and the
Investors (the "Contribution Agreement"), Cerulean will become a wholly-owned
subsidiary of FX, the Company will acquire 80,000 shares of common stock, par
value $0.01 per share, of FX (the "FX Common Stock"), and the Investors will
acquire an aggregate of 20,000 shares of FX Common Stock.
C. Concurrently with or prior to the execution of this Agreement, the
Company, Xxxxxxxx X. Xxxxx and the Investors have executed that certain Exchange
Agreement (the "Exchange Agreement") which provides, among other things, for the
issuance to the Investors of shares of Common Stock in exchange for the shares
of FX Common Stock held by the Investors upon the occurrence of certain events.
D. It is a condition to the consummation of the transactions contemplated
by the Contribution Agreement that this Agreement be entered into by the
Company, the Existing Shareholders and the Investors.
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A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual covenants and agreements contained in this Agreement, on the terms and
subject to the conditions set forth in this Agreement, the parties to this
Agreement agree as follows:
1. Definitions Capitalized terms used in this Agreement and not defined in
this Agreement shall have the meanings given those terms in the Contribution
Agreement. Otherwise, the following terms have the following meanings, unless
the context otherwise requires:
"1998 Shareholders' Agreement" means that certain Shareholders'
Agreement, dated October 21, 1998, among the Company, Xxxxxxxx X. Xxxxx, Xxxxxx
X. Xxxxxxx, Xxxxx Xxxxxx, Xxxxxx X. Xxxxxxxxx, Xxxxxx Xxxxxxxxxxxx, Xxxxx X.
Xxxxxxxx III and Xxxx Xxxxxxxxx.
"Affiliate" means, with respect to a specified Person, any Person
that directly or indirectly through one or more intermediaries controls or is
controlled by, or is under common control with, the specified Person.
"Business day" means a day other than Saturday, Sunday or other day
on which commercial banks in New York, New York, are authorized or required by
law to close.
"Buy-Sell Agreement" means that certain Buy-Sell Agreement, dated
March, 1996, among the Company, Xxxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx and Xxxxx
Xxxxxx.
"CoSale Period" and "CoSale Right" have the respective meanings set
forth in Section 6 of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Shares" means the shares of Common Stock that may be
issued by the Company to the Investors pursuant to the terms of the Exchange
Agreement.
"Fair Market Value" means (i) with respect to the Shares, the price
determined pursuant to Section 6(d) of this Agreement; and (ii) with respect to
any property other than the Shares with respect to which the fair market value
is to be determined, the price of the property that a willing buyer would pay in
an all-cash transaction with an equally willing seller in the event of a
disagreement regarding the Fair Market Value of property other than the Shares,
the resolution procedures of Section 6(d) shall apply.
"Family Member" means, with respect to any Person, any descendant of
the grandfather of the Person, the Person's spouse or any descendant of the
grandfather of the Person's spouse.
"FGCA" means the Florida General Corporation Act.
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"Involuntary Transfer" and "Involuntary Transfer Event" shall have
the respective meanings set forth in Section 6 of this Agreement.
"Member Representative" shall have the meaning given such term in
Section 2.2 of the Contribution Agreement.
"Offered Price", "Offered Shares", "Offered Terms and Conditions"
and "Other Shareholders" have the respective meanings set forth in Section 4 of
this Agreement.
"Person" means any individual, corporation, partnership, firm,
joint venture, association, joint-stock company, trust, incorporated
organization or other entity.
"pro rata" means, with respect to any determination, that the
determination is based on the relative percentages of Shares then held by all of
the Shareholders after giving pro forma effect to the issuance by the Company,
and the ownership by the Investors, of all of the Exchange Shares at the time
the determination is made, as if all of the Exchange Shares had been then
issued.
"Proposed Transferee" has the meaning set forth in Section 3(c) of
this Agreement.
"Qualified Public Offering" means the closing of (i) an underwritten
public offering of the Common Stock pursuant to an effective registration
statement filed with the Securities and Exchange Commission under the Securities
Act, or (ii) a merger of the Company with and into another entity pursuant to
which the shareholders of the Company immediately prior to the effective date of
the merger receive, upon consummation of the merger, shares of voting securities
of the surviving entity or its parent that are registered under Section 12 of
the Exchange Act and trade on the New York Stock Exchange, the American Stock
Exchange, the Nasdaq National Market or the Nasdaq SmallCap Market.
"Sale of Voting Control" means any transfer, or series of related
transfers, of Shares to any Person who, in the aggregate with all Family Members
and Affiliates of such Person, and any other Persons who are part of a syndicate
or group (as defined in Section 13(d)(3) of the Exchange Act) with such Person,
would (after giving effect to the transfer but disregarding any Shares held by
the Person, his or her Family Members and Affiliates, and syndicate or group
prior to the transfer) own Shares constituting more than 50% of the voting power
of the then issued and outstanding Shares (after giving pro forma effect to the
issuance by the Company, and the ownership by the Investors, of all of the
Exchange Shares at the time the determination is made, as if all of the Exchange
Shares had been then issued).
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means any shares of Common Stock subject to this Agreement.
"Stock Subscription Agreements" means, collectively, (i) that
certain Stock Subscription Agreement, dated February 3, 1996, between the
Company and Xxxx Xxxxxxxxx, (ii) that certain Stock Subscription Agreement,
dated February 3, 1996, between the Company and Xxxxxx Xxxxxxxxxxxx, (iii) that
certain Stock Subscription Agreement, dated February 3, between the
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Company and Xxxxx X. Xxxxxxxx, and (iv) that certain Stock Subscription
Agreement, dated February 3, 1996, between the Company and Xxxxxx Xxxxxxxxx.
"transfer" means any sale, assignment, transfer, pledge,
hypothecation, gift, encumbrance or other disposition of Shares.
"Transferee", "Transferor" and "Transfer Notice" have the
respective meanings set forth in Section 4 of this Agreement.
2. Restrictions on Transfer.
(a) General Restrictions. During the term of this Agreement, none of
the Shares now owned or acquired after the date of this Agreement by any of the
Shareholders may be transferred unless and until:
(i) the transfer of Shares shall be made in accordance with
the provisions of this Agreement;
(ii) the proposed recipient of the Shares shall have delivered
to the Company a signed counterpart of this Agreement or a written
acknowledgment for the benefit of the parties to this Agreement, that the Shares
to be received in the proposed transfer are subject to this Agreement and that
the proposed recipient and his successors in interest are and will be bound by
this Agreement and agree to comply with the provisions of this Agreement
relating to the transferred Shares; and
(iii) the transfer shall have been made pursuant to an
effective registration under the Securities Act and any applicable state
securities laws, or an exemption from registration, and prior to any transfer
the Shareholder proposing to transfer Shares shall have delivered to the Company
(A) notice describing the manner and circumstances of the proposed transfer
(copies of which the Company shall furnish to each Shareholder following receipt
of the notice by the Company) and (B) if requested by the Company, a written
opinion of legal counsel, which shall be reasonably satisfactory to the Company
and its counsel, to the effect that the proposed transfer of Shares may be
effected without registration under the Securities Act and any applicable state
securities laws.
ANY ATTEMPTED TRANSFER OF SHARES OTHER THAN IN ACCORDANCE WITH THIS AGREEMENT
SHALL BE NULL AND VOID AND THE COMPANY MAY REFUSE TO (i) RECOGNIZE THE TRANSFER
AND NOT REFLECT IN ITS RECORDS ANY CHANGE IN RECORD OWNERSHIP OF SHARES PURSUANT
TO THE TRANSFER AND (ii) TREAT AS OWNER OF THE SHARES OR TO ACCORD THE RIGHT TO
VOTE AS THE OWNER OF THE SHARES OR TO PAY DIVIDENDS TO ANY TRANSFEREE TO WHOM
THE SHARES SHALL HAVE BEEN TRANSFERRED.
(b) Closing of Permitted Transfers. The closing of any transfer of
Shares permitted pursuant to this Agreement shall take place at the principal
executive offices of the Company unless otherwise agreed by the parties involved
in the transfer. Any Shareholder which
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transfers Shares shall (i) do all things and execute and deliver all papers as
may be necessary or reasonably requested by the Company in order to consummate
the transfer of the Shares, (ii) pay all amounts as may be required for any
applicable stock transfer taxes, and (iii) pay to the Company any expenses
reasonably incurred by the Company in connection with the transfer (including
reasonable attorneys' fees).
3. Permitted Transfers of Shares. Subject to Section 2 of this Agreement,
any Shareholder may transfer Shares in accordance with the terms and conditions
of this Section 3.
(a) Shareholder Transfers. Any Shareholder may transfer any or all
of his Shares as follows:
(i) to any third party, provided that (A) the transferee
satisfies the requirements of Section 3(c) of this Agreement, (B) the Shares are
first offered for sale to the Company and all other Shareholders in accordance
with the procedures in Section 4 of this Agreement, and (C) if the transfer
involves a Sale of Voting Control, it shall be made subject to the provisions of
Section 5 of this Agreement; except that the foregoing provisos shall not apply
to a transfer to the Family Members of a Shareholder or a trust, investment fund
or other legal entity pursuant to Section 3(b); or
(ii) to the Company.
(b) Transfers to Family Members, Trusts or Other Legal Entities. Any
Shareholder may transfer all or a portion of their respective Shares, by death
or inter vivos, (i) to any of the Shareholder's Family Members, (ii) to any
trust established solely for the benefit of the Shareholder or one or more of
the Shareholder's Family Members, or to any legal entity in which the
Shareholder or any of these Persons are the sole beneficial owners, or (iii) if
the Shareholder is an investment fund, to any other investment fund in which the
general partner or investment advisor of the Shareholder is the general partner
or investment advisor of the other investment fund. Any Shares transferred to
the executor of an estate, in the case of death, to any Family Member, or to any
trust, investment fund or other legal entity described above in subsection
(ii) or (iii) of this paragraph, shall be subject to the provisions of this
Agreement. No transfer of Shares may be made to any of the foregoing Persons
unless and until the Person delivers to the Company a signed counterpart of this
Agreement or a written acknowledgment that the Shares to be received in the
proposed transfer are subject to this Agreement and that the Person and his
successors in interest are bound by this Agreement and agree to comply with its
terms. Any attempted transfer of Shares to any of the foregoing Persons other
than in accordance with this Section 3(b) shall be null and void and the Company
will refuse to recognize the transfer and not reflect in its records any change
in record ownership of Shares pursuant to the transfer, and the Company will
refuse to treat as owner of the Shares or to accord the right to vote as the
owner or to pay dividends to any transferee to whom the shares shall have been
transferred.
(c) Qualified Transferees. Except as provided in Section 3(a)(ii)
and/or Section 3(b), no Shareholder shall transfer any Shares pursuant to the
provisions of this Agreement unless the person or group of related persons who
collectively are the proposed transferee (the "Proposed
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Transferee") meets each of the following criteria and delivers a certificate
executed by the Proposed Transferee and addressed to the Company and each of the
Shareholders certifying that:
(i) the Proposed Transferee is not acting in concert with or
on behalf of the transferor or any affiliate of the transferor with the purpose
of evading, avoiding or impairing any of the Shareholders' rights of first
refusal under Section 4 of this Agreement, co-sale rights under Section 5 of
this Agreement or purchase rights under Section 6 of this Agreement.
(ii) the Proposed Transferee is acquiring the Shares for his
own account and not as an agent, bailee or nominee or on behalf of any person or
with a view toward resale of the Shares;
(iii) the Proposed Transferee is not engaged in a business
substantially similar to or which is otherwise in competition with the
then-existing businesses of the Company, nor serving as an employee, officer,
director or stockholder, directly or indirectly and whether as principal, agent
or employee or otherwise, of any entity engaged in such business, or acting
alone or in association with any individual or any other entity carrying on,
engaging in, employed by or taking part in, consulting or advising or owning,
sharing in the earnings of, or financing, whether as lender, investor or
otherwise, any entity engaged in such business; provided, that it shall be
permissible for the Proposed Transferee to invest in stock, bonds or other
securities of an entity competing with the Company if (A) the stock, bonds or
other securities are listed on any national securities exchange or have been
registered under Section 12(g) of the Exchange Act, and (B) the investment does
not equal or exceed, in the case of any class of capital stock of any one
issuer, 1% of the issued and outstanding shares of the capital stock, or, in the
case of bonds or other securities, 1% of the aggregate principal amount thereof
issued and outstanding; and
(iv) the Proposed Transferee has reviewed the Transfer Notice
delivered to the Shareholders pursuant to Section 4(a) of this Agreement and
represents that (A) the Transaction Notice is true and correct, (B) the offer
referred to in the Transaction Notice constitutes a bona-fide offer to purchase
the referenced shares, (C) the Proposed Transferee is ready, willing and able to
consummate the transaction described in the Transaction Notice; and (D) the
Transfer Notice contains a true and complete description of the material terms
of all material contracts, agreements, understandings and other arrangements,
oral or written, relating to the purchase of securities.
4. Right of First Refusal. Other than (i) a transfer under Section
3(a)(ii) to the Company, or (ii) a transfer under Section 3(b) to the Family
Members of a Shareholder or a trust, investment fund or other legal entity
described in Section 3(b), Shares may be sold to any person or group of related
persons (collectively, the "Transferee") only after compliance with the
provisions of this Section 4 and in accordance with the other provisions of this
Agreement.
(a) Transfer Notice. Any Shareholder proposing to make a transfer of
Shares (the "Transferor") shall deliver a written notice of the proposed
transfer (the "Transfer Notice") to the Company and to each of the other
Shareholders entitled to receive an offer to purchase under the provisions of
this Agreement (the "Other Shareholders"). The Transfer Notice shall contain a
description of the proposed transaction and the terms of the proposed
transaction, including (i) the number of Shares to be transferred (the "Offered
Shares"), (ii) the name of the Transferee, including,
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specifically, the name of each person to whom or in favor of whom the proposed
transfer is to be made, (iii) the per share price at which the Offered Shares
are proposed to be sold to the Transferee (the "Offered Price"), (iv) the terms
of payment of the Offered Price and the other terms and conditions to the
proposed sale to the Transferee (the "Offered Terms and Conditions"), and (iv)
an offer to the Company and the Other Shareholders to sell to them the Offered
Shares on the same terms and conditions as contained in the Transfer Notice.
Notwithstanding the foregoing, if the proposed sale of the Offered Shares to the
Transferee provides for consideration other than solely cash and/or promissory
notes, the Company and the Other Shareholders shall have the right to purchase
the Shares for, in lieu of the consideration, cash in an amount equal to the
Fair Market Value of the consideration and in such case, the Transfer Notice
shall state the Transferor's estimate of the Fair Market Value of the
consideration, which shall be binding upon the Transferee (but not the Company
or the Other Shareholders).
(b) Acceptance. The offer may be accepted only by giving written
notice of acceptance to the Transferor within 30 days of receipt of the Transfer
Notice. Each of the Other Shareholders who accept the offer (the "Subscribing
Shareholders") shall also deliver a copy of their notice of acceptance to the
Company. A Subscribing Shareholder may subscribe in its acceptance for any
portion or all of the Offered Shares.
(c) Allocation of Offered Shares. The number of Offered Shares
purchased by the Company and each Subscribing Shareholder shall be determined as
follows:
(i) the Company shall have the right to purchase all or any
portion of the Offered Shares;
(ii) each Other Shareholder shall have the right to purchase
his pro rata share of an amount of Shares equal to the Offered Shares minus the
number of Shares purchased by the Company;
(iii) if any Offered Shares remain unallocated and all
subscriptions from Subscribing Shareholders have not been filled, the balance of
the unallocated Offered Shares shall be iteratively offered and allocated pro
rata by the Company among the Subscribing Shareholders whose subscriptions have
not been filled until either all the Offered Shares have been allocated or all
subscriptions have been filled.
(d) Transfer to Subscribing Shareholders. If the Offered Shares have
been fully subscribed for, the Company shall give written notice to that effect
to the Transferor and all Subscribing Shareholders, stating the number of
Offered Shares allocated to the Company and each Subscribing Shareholder, and
the transfer of the Offered Shares shall thereafter be effected between the
Transferor, the Company and the Subscribing Shareholders upon all of the
applicable terms and conditions set forth in the Transfer Notice.
(e) Transfer to Transferee. If the Company and the Subscribing
Shareholders, in the aggregate, have not elected to purchase all of the Offered
Shares, the Company shall give written notice to that effect to the Transferor
and all Subscribing Shareholders, the subscriptions of the Company and each of
the Subscribing Shareholders shall automatically be void, and, subject to the
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provisions of Section 5 of this Agreement, the Transferor may sell the Offered
Shares to the Transferee, provided, that the sale is consummated within 60 days
of the date the Transfer Notice was received by the Company, and provided,
further, that the sale is in accordance with all the Offered Terms and
Conditions (or otherwise on terms and conditions of the transaction no more
favorable to the Transferee than the terms and conditions on which the Offered
Shares were proposed to be sold to the Company or the Other Shareholders, as set
forth in the Transfer Notice) and upon the terms and conditions set forth in
this Agreement. If the Transferor does not consummate the sale of the Offered
Shares to the Transferee within said 60 day period, the Offered Shares will
thereafter again be subject to this Section 4.
5. CoSale Right in Sale of Voting Control
(a) Rights of CoSale. If at any time a Transferor, acting alone or
with his Family Members or Affiliates, proposes to transfer Shares in a Sale of
Voting Control to a Transferee, and the Company and the Other Shareholders are
not purchasing the Shares pursuant to the provisions of Section 4 above, each
Other Shareholder which notifies the Transferor in writing within 20 days (the
"CoSale Period") after receipt of the notice from the Company described in
Section 4(e) above, shall have the right (the "CoSale Right") to sell to the
Transferee at the Offered Price and upon the Offered Terms and Conditions a
portion of the number of Shares the Transferor proposes to sell to the
Transferee that is equal to (i) the number of Shares owned by the Other
Shareholder and any of his or its Family Members and Affiliates, multiplied by
(ii) a fraction equal to (x) the number of Shares proposed to be sold to the
Transferee by the Transferor and any of his Family Members and Affiliates,
divided by (y) the total number Shares owned by the Transferor and any of his
Family Members and Affiliates; whereupon the Transferor will assign so much of
its interest in the agreement of sale as each Other Shareholder shall be
entitled to and shall request pursuant to this Section 5(a), the number of
Shares to be sold by the Transferor will be reduced by the aggregate number of
Shares to be sold by each Other Shareholder, each Other Shareholder will assume
the part of the obligations of the Transferor under the agreement of sale as
shall relate to the sale of securities by the Other Shareholder and the
Transferor shall not sell any Shares to the Transferee unless the Transferee
concurrently purchases the appropriate number of Shares from each Other
Shareholder who has exercised his or its right to sell under this Section 5(a).
(b) Exercise of CoSale Right. Each of the Other Shareholders who
exercises his or its CoSale Right by delivering to the Transferor during the
CoSale Period notice of intent to exercise shall include in the notice the
number of Shares that the Other Shareholder elects to transfer, which number may
not, without the consent of the Transferor, exceed the number of Shares the
Other Shareholder is permitted to sell pursuant to the CoSale Right. At the
closing of the transfer, each Other Shareholder must provide for sale to the
Transferee, free and clear of all liens and rights of third parties, the one or
more certificates, properly endorsed for transfer or accompanied by stock powers
duly executed in blank, which represent the number of Shares which the Other
Shareholder elects to transfer pursuant to the exercise of his or its CoSale
Right. In the event the certificate or certificates representing the Shares
evidences a greater number of Shares than that elected to be transferred, the
Other Shareholder shall deliver the certificate or certificates to the Company
prior to the closing of the transfer with instructions for the Company to
promptly re-issue new certificates in proper denominations to effect the
transfer. Each Other Shareholder agrees to make the representations and
warranties regarding the Company and its Subsidiaries and his or its ownership
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of the Shares as the Transferor may be required to make to the Transferee,
provided, such representations and warranties shall be reasonably acceptable to
the Other Shareholder and provided, further, that the Other Shareholder's
liabilities for breach of the representations and warranties shall be limited to
the Other Shareholder's proceeds of the sale of his or its Shares pursuant to
the exercise of the CoSale Right, and provided, further, that if any Other
Shareholder is not involved in the business of the Company, any representations
or warranties that the Other Shareholder is required to make to the Transferee
with respect to the business of the Company shall be limited to the best
knowledge of the Other Shareholder.
6. Other Transfers of Shares.
(a) Involuntary Transfers. Any one or more of the following events
or conditions ("Involuntary Transfers") shall be deemed to constitute an offer
to transfer Shares held by any Shareholder:
(i) the event that (A) the Shareholder is adjudicated a
bankrupt, or (B) any action of any nature whatsoever (whether voluntary or
involuntary) is taken for the Shareholder's relief under any bankruptcy,
reorganization, receivership, liquidation, insolvency, compromise, arrangement
or moratorium statute, law or regulation, whether now in force or hereafter
enacted, or (C) any assignment is made for the benefit of the Shareholder's
creditors, or (D) any petition (whether voluntary or involuntary) is made or
filed for the appointment of a receiver, liquidator, trustee or custodian for
any of the Shareholder's assets, or if any receiver, liquidator, trustee or
custodian for any of the Shareholder's assets is appointed, and the petition or
the receiver, liquidator, trustee or custodian is not withdrawn or discharged
within 30 days from the date of filing, making or appointment, or (E) the
Shareholder acknowledges in writing that he or it has become unable to pay its
debts as they become due, or (F) the Shareholder is dissolved or its business is
substantially terminated for any reason whatsoever;
(ii) a determination that the Shareholder is incompetent, and
for this purpose an individual shall be deemed to be incompetent one year
following the occurrence, without subsequent revocation or annulment within the
one year period, of any of the following actions: (a) a conservator of the
person or estate has been appointed for the individual, (b) a court with
jurisdiction has determined that the individual is incompetent or lacks
capacity, or (c) two licensed physicians have certified in writing that in their
opinion the individual is substantially unable to manage his or her financial
resources or resist fraud or undue influence; or
(iii) any other event which, were it not for the provisions of
this Agreement, would cause any Shares, or any interest therein, to be
transferred, for consideration or otherwise, to any person, whether voluntarily,
involuntarily, or by operation of law under circumstances not constituting
approved means of transfer under this Agreement.
Nothing in this Section 6(a) shall be deemed to authorize any transfer not
expressly permitted under Section 3 of this Agreement. Any purported transfer of
any Shares in violation of any of the provisions of this Agreement shall be void
and shall not be recognized by the Company and the purported transferee shall
not be entitled to vote or receive any dividends on or distributions or payments
with respect to the Shares.
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(b) Purchase Rights. Upon the occurrence of any event specified in
Section 6(a) (an "Involuntary Transfer Event"), first the Company and then the
other Shareholders pro rata shall have the right to purchase the Shares as if
the Shareholder had made an offer to sell the Shares.
(c) Purchase Procedures. Within 90 days after the occurrence of an
Involuntary Transfer Event, the Shareholder or his trustee in bankruptcy,
personal representative, conservator, or guardian (as appropriate) shall give
notice to the Company of the Involuntary Transfer Event, specifying the date of
the event and describing in reasonable detail the nature of the Involuntary
Transfer Event and the number of Shares affected. The notice shall be deemed to
be an offer to sell the Shares affected by the Involuntary Transfer Event first
to the Company and then the Other Shareholders pro rata at a price, in cash,
equal to the Fair Market Value of the Shares. If the Company has not received
the notice required by this Section 6(c), upon the expiration of the 90-day
period, any shareholder, director or officer of the Company who has knowledge of
the event may give notice to the Company at any time, and each Shareholder
hereby agrees that any such notice shall be deemed to be an offer on behalf of
the Shareholder or his estate to sell the Shares affected by the event delivered
as required by the first sentence of this Section 6(c). The offer to sell the
Shares affected by the event may be accepted by the Company at any time within
30 days after receipt of the offer by the Company. If the Company does not elect
to purchase all of the Shares, any remaining Shares affected by the event shall
be offered to the other Shareholders in accordance with the allocation
procedures set forth in Section 4(c) of this Agreement. The Company and, if the
Company declines to purchase all of the Shares, the other Shareholders shall
have the right to purchase all or any portion of the Shares offered for sale
pursuant to this Section 6(c).
(d) Determination of Fair Market Value of Shares Procedures. At the
time the Company or, if the Company declines to exercise the option for any
reason, a Shareholder (in either case, a "Purchaser") first exercises its option
to purchase Shares from a Shareholder under this Section 6, the Purchaser shall
submit to the Shareholder or his estate a written estimate of the per share Fair
Market Value of the Common Stock. The valuation shall be conclusive on the
Shareholder unless the Shareholder responds in a like manner within 30 days
following receipt of the Purchaser's estimate. If the Shareholder and the
Purchaser do not reach agreement as to the per Share Fair Market Value within 45
days following the Purchaser's exercise of its option to purchase, the
determination of the per share Fair Market Value shall be made by arbitration.
Only one arbitration proceeding may be conducted pursuant to this Section 6(d)
in connection with each sale of Shares upon an Involuntary Transfer Event. Once
arbitration proceedings have been commenced under this Section 6(d), no other
Purchaser may bring arbitration proceedings in connection with the same
transaction unless the arbitration proceedings are terminated without a
determination of Fair Market Value. To institute arbitration proceedings, the
Purchaser shall appoint an independent qualified appraiser, and notify the
Shareholder and the other Shareholders of his or its election. If the
Shareholder does not deliver written notice of appointment of another
independent qualified appraiser within 10 days after receipt of the Purchaser's
notice, the Purchaser's appraiser shall determine Fair Market Value. If the
Shareholder delivers the notice, the two appraisers shall appoint a third
independent qualified appraiser who shall determine the Fair Market Value. The
determination of the Fair Market Value completed in the manner provided in this
Section 6(d) shall be conclusive and binding upon the Shareholder and the
Purchaser, and all other parties to this Agreement. In no event, however, shall
the Fair Market Value determined by the arbitrator or arbitrators be outside of
the range of estimates of the Fair Market Value submitted by the Purchaser and
the Shareholder. The
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cost of the appraisal shall be paid by the party whose estimate of Fair Market
Value most varies from the value determined by the arbitrator (or if the
parties' estimates vary equally, the cost of the appraisal share be borne
equally between them). In connection with these valuations, the Company will, on
a confidential basis, deliver or provide access to each appraiser of all
information reasonably requested by the appraiser in order to determine the Fair
Market Value.
7. Restrictive Endorsement on Share Certificates. The face of each
certificate representing Shares now or hereafter held by a Shareholder shall be
stamped with a legend in substantially the following form:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY STATE
SECURITIES LAWS, HAVE BEEN TAKEN FOR INVESTMENT, AND MAY NOT BE SOLD OR
OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT REGISTRATION IS NOT REQUIRED."
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A SHAREHOLDERS
AGREEMENT DATED AS OF AUGUST 13, 1999, AS AMENDED FROM TIME TO TIME, A
COPY OF WHICH IS ON FILE AT THE OFFICE OF THE COMPANY AND WILL BE
FURNISHED TO ANY PROSPECTIVE PURCHASERS ON REQUEST. THE SHAREHOLDERS
AGREEMENT PROVIDES, AMONG OTHER THINGS, FOR CERTAIN RESTRICTIONS ON THE
SALE, TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SHARES
REPRESENTED BY THIS CERTIFICATE."
8. Agreements of Certain Spouses. This Agreement has been executed by the
respective spouses (the "Spouses") of the married Shareholders who are residents
of the State of California, each of whom may claim a community property or other
interest in the Shares from time to time held by his spouse (the "Community
Shares"). Each Spouse hereby represents and agrees that he or she has read and
understands the provisions of this Agreement and the effect of the provisions on
any community property or other interest he or she may have in the Community
Shares, including, among other things, the options of the Company and the
Shareholders other than his or her spouse to purchase the Shares pursuant to
this Agreement and the restrictions on Transfer of the Shares pursuant to
Section 2 of this Agreement.
9. Termination of Existing Agreements. Effective as of the date of this
Agreement, each and every provision of the 1998 Shareholders' Agreement and the
Buy-Sell Agreement, and Sections 6 through 19 of each of the Stock Subscription
Agreements, shall terminate and be of no further force or effect.
10. Board of Directors. The Company and the Existing Shareholders agree to
use their best efforts to cause two nominees designated by the Member
Representative to be elected and
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continued in office as directors of each of the Company and FX until a Qualified
Public Offering and for so long as the Holders own in the aggregate at least 5%
of the outstanding shares of Company Common Stock assuming (if the Exchange has
not previously occurred) the issuance by the Company of the Exchange Shares to
the Holders effective as of the record date established by the Board of
Directors of the Company for determining the shares of Company Common Stock
entitled to vote for the election of directors. The Company and the Existing
Stockholder will use their best efforts to cause the two nominees to be elected
or appointed to the Board of Directors of each of the Company and FX within 30
days following the date of this Agreement.
11. Miscellaneous
(a) Notices. Any and all notices, designations, consents, offers,
acceptances, or any other communications provided for in this Agreement shall be
given in writing by hand delivery or registered or certified mail which shall be
addressed, (i) in the case of the Company, to 0000 X.X. Xxxxxxx 00 Xxxxx, Xxxxx
000, Xxxx Xxxxxx, Xxxxxxx 00000, Attn: President, and (ii) in the case of any
Shareholder, to the address of the party in records of the Company (or to such
other addresses as may be designated by the party). Except as otherwise provided
in this Agreement, each notice shall be deemed given at the time it is received.
(b) Amendment. Except as hereinafter provided no change or
modification of this Agreement shall be valid unless the same shall have been in
writing and signed by (i) all of the Shareholders and (ii) the Company. This
Agreement shall be automatically amended to include any additional Shareholders
who execute a counterpart of this Agreement.
(c) Termination. This Agreement shall terminate and expire on the
earliest to occur of (i) a Qualified Public Offering, and (ii) January 15, 2029;
provided, however, that this Agreement may be terminated at any time by an
instrument in writing signed by (x) all of the Shareholders and (y) the Company;
and provided, further, however, that the term of this Agreement may be extended
beyond January 15, 2029 if, at any time prior to such date, all of the parties
extend its duration for as many additional periods as they may desire. Whenever
the restrictions imposed hereby shall terminate, as hereinabove provided, the
holder of the Shares as to which such restrictions shall have terminated shall
be entitled to receive from the Company, without expense, a new stock
certificate or certificates not bearing the restrictive legend set forth in this
Agreement, and not containing any other reference to the restrictions imposed
hereby.
(d) Waiver. No failure or delay on the part of the Shareholders or
any of them in exercising any right, power or privilege hereunder, and no course
of dealing between the Company and the Shareholders or any of them shall operate
as a waiver thereof nor shall any single or partial exercise of any right, power
or privilege hereunder preclude the simultaneous or later exercise of any other
right, power or privilege. The rights and remedies in this Agreement expressly
provided are cumulative and not exclusive of any rights or remedies which the
Shareholders or any of them would otherwise have. No notice to or demand on the
Company in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the rights of
the Shareholders or any of them to take any other or further action in any
circumstances without notice or demand.
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(e) Equitable Relief. The parties to this Agreement agree and
declare that legal remedies may be inadequate to enforce the provisions of this
Agreement and that equitable relief including specific performance and
injunctive relief, may be used to enforce the provisions of this Agreement.
(f) Counterparts. This Agreement maybe executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(g) Construction. When necessary, the masculine shall include the
feminine or neuter and the singular shall include the plural and vice versa.
(h) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California, without regard to conflicts
of law principles thereof.
(i) Benefit and Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the Company, its successors and assigns, and
each of the Shareholders and their respective executors, administrators and
personal representatives and heirs and their successors and assigns. In the
event that any part of this Agreement shall be held to be invalid or
unenforceable, the remaining parts thereof shall nevertheless continue to be
valid and enforceable as though the invalid portions were not a part of this
Agreement. Except as expressly provided above, this Agreement does not create,
and shall not be construed to create, any rights enforceable by any person not a
party to this Agreement.
(j) Future Spousal Consents. Each Shareholder who is a resident of
the State of California and is not presently married agrees to use his best
efforts to cause any future spouse to execute and deliver to the Company a
signed counterpart of the spousal consent attached to this Agreement as Exhibit
C.
(k) Further Assurances. Each party to this Agreement agrees to
perform any further acts and to execute and deliver any further documents that
may be reasonably necessary to carry out the provisions of this Agreement,
including without limitation any voting trust agreement or irrevocable proxy,
that may be required to secure performance of any Shareholder's duties under
this Agreement or assure the legal, binding effect of the provisions of this
Agreement under the Florida General Corporation Act in each case as the same may
from time to time be amended.
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IN WITNESS WHEREOF, the parties to this Agreement have signed this
Agreement as of the day and year first above written.
DYNACS ENGINEERING COMPANY INC.,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxxx X. Xxxxx
Its: President
THE EXISTING SHAREHOLDERS
/s/ Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxxxxx
/s/ Xxxxx X. Shubele III
----------------------------------------
Xxxxx X. Shubele III
/s/ Xxxx Xxxxxxxxx
----------------------------------------
Xxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties to this Agreement have signed this
Agreement as of the day and year first above written.
DYNACS ENGINEERING COMPANY INC.,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxxx X. Xxxxx
Its: President
THE EXISTING SHAREHOLDERS
----------------------------------------
Xxxxxxxx X. Xxxxx
/s/ Xxxxx Xxxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxxxxx
----------------------------------------
Xxxxx X. Shubele
----------------------------------------
Xxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties to this Agreement have signed this
Agreement as of the day and year first above written.
DYNACS ENGINEERING COMPANY INC.,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxxx X. Xxxxx
Its: President
THE EXISTING SHAREHOLDERS
----------------------------------------
Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxxxxx
----------------------------------------
Xxxxx X. Shubele
----------------------------------------
Xxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties to this Agreement have signed this
Agreement as of the day and year first above written.
DYNACS ENGINEERING COMPANY INC.,
a Florida corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Xxxxxxxx X. Xxxxx
Its: President
THE EXISTING SHAREHOLDERS
----------------------------------------
Xxxxxxxx X. Xxxxx
----------------------------------------
Xxxxx Xxxxxx
----------------------------------------
Xxxxxx Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxxxxx
----------------------------------------
Xxxxx X. Shubele
----------------------------------------
Xxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
----------------------------------------
Xxxxxx Xxxxxxxxx
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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[SIGNATURES CONTINUED]
INVESTORS
/s/ Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Dallas
----------------------------------------
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By: ____________________________________
Its: ___________________________________
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[SIGNATURES CONTINUED]
INVESTORS
----------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Dallas
----------------------------------------
Xxxxxxx Dallas
----------------------------------------
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By: ____________________________________
Its: ___________________________________
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23
[SIGNATURES CONTINUED]
INVESTORS
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Dallas
/s/ Xxx Xxxxxxxxxx
----------------------------------------
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By: ____________________________________
Its: ___________________________________
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[SIGNATURES CONTINUED]
INVESTORS
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Dallas
----------------------------------------
Xxx Xxxxxxxxxx
OFFENSE GROUP ASSOCIATES, LP
By: Kaim NT, LP
Its: General Partner
By: /s/
-------------------------------------
Its: ___________________________________
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SPOUSAL CONSENT
The undersigned, Xxxxxx Xxxxxxxx, acknowledges that she has read the
foregoing dated as of August 13, 1999 (the "Agreement"), and she knows the
contents thereof. The undersigned is aware that by the provisions of the
Agreement she agrees to sell a portion or all shares of Common Stock of Dynacs
Engineering Company, Inc., a Florida corporation (referred to in the Agreement
as the "Company"), including any interest she may have in such shares (marital
or otherwise), if any, which would be equivalent to a spousal interest by virtue
of her relationship with Xxx Xxxxxxxxxx, upon the occurrence of certain events,
and the undersigned hereby consents to such sale and agrees to be bound by each
and every provision of the Agreement.
/s/ Xxxxxx Xxxxxxxx
----------------------------------------
Name:
26
SPOUSAL CONSENT
The undersigned, BJ. Dallas acknowledges that she has read the foregoing
dated as of August 13, 1999 (the "Agreement"), and she knows the contents
thereof. The undersigned is aware that by the provisions of the Agreement she
agrees to sell a portion or all shares of Common Stock of Dynacs Engineering
Company, Inc., a Florida corporation (referred to in the Agreement as the
"Company"), including any interest she may have in such shares (marital or
otherwise), if any, which would be equivalent to a spousal interest by virtue of
her relationship with Xxxxxxx Dallas, upon the occurrence of certain events, and
the undersigned hereby consents to such sale and agrees to be bound by each and
every provision of the Agreement.
/s/ Xxxxxxx X. Dallas
----------------------------------------
Name:
27
EXHIBIT B
INVESTORS
----------------------------------------
Xxxxxxx Xxxxx
----------------------------------------
Xxxxxxx Dallas
----------------------------------------
Xxx Xxxxxxxxxx
----------------------------------------
Offense Group Associates, LP
----------------------------------------
Exhibit B
28
EXHIBIT C
SPOUSAL CONSENT
The undersigned, ______________________ acknowledges that she has read the
foregoing Shareholders Agreement, dated as of________________ 1999 (the
"Agreement"), and she knows the contents thereof. The undersigned is aware that
by the provisions of the Agreement she agrees to sell a portion or all shares of
Common Stock of Dynacs Engineering Company, Inc., a Florida corporation
(referred to in the Agreement as the "Company"), including any interest she may
have in such shares (marital or otherwise), if any, which would be equivalent to
a spousal interest by virtue of her relationship with _____________, upon the
occurrence of certain events, and the undersigned hereby consents to such sale
and agrees to be bound by each and every provision of the Agreement.
----------------------------------------
Name:
Exhibit C
