Exhibit 10.30
XXX TOKYO CO., LTD.
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "AGREEMENT") is made as of this 18
day of March, 2004, among Xxx Tokyo Co., Ltd., a corporation formed and existing
under the laws of Japan (the "COMPANY"), and IA Global, Inc., a Delaware
corporation ("IAO"). The Company, Xx. Xxxxxxxx Xxxxx and IAO, and all holders of
common stock of the Company as listed in Schedule 1 of this agreement, are
referred to collectively as the "STOCKHOLDERS".
BACKGROUND
A. In connection with the transactions described in the Share Purchase
Agreement by and among the Company and IAO (the "PURCHASE AGREEMENT"), the
Company has agreed to issue an additional 1,000 shares of its common stock
("COMMON STOCK").
B. In connection with the transactions described in the Share Exchange
Agreement by and among Xx. Xxxxxxxx Xxxxx and IAO of the Company's Common Stock
(the "EXCHANGE AGREEMENT"), IAO will acquire additional shares of Common Stock.
C. The Company and the Stockholders desire to enter into this Agreement
for the purposes, among others, of (i) limiting the manner and terms by which
the Stockholders' shares of Common Stock and any other debt or equity securities
convertible into or exercisable for Common Stock (together with the Common
Stock, the "SHARES") may be transferred, (ii) assuring continuity in the
management and ownership of the Company and (iii) establishing the composition
of the Company's board of directors (the "BOARD"). The execution and delivery of
this Agreement is a condition to the Closing under the Purchase Agreement.
In consideration of the premises and the covenants and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. CAPITALIZATION. Set forth on SCHEDULE 1 attached hereto is a list of
all the Stockholders of the Company and their respective ownership of Shares.
2. TRANSFER RESTRICTIONS ON SHARES.
(a) GENERAL. IAO shall not sell, offer, assign, pledge or otherwise
dispose of any interest in any Shares except pursuant to the terms of this
Section 2.
(b) PERMITTED TRANSFERS. IAO may transfer all or a portion of its
Shares, to or among its Affiliates (a "PERMITTED TRANSFEREES"). As a condition
to any transfer pursuant to this Section 2(b), the transferee must agree in
writing that it and its Affiliates shall be subject to and bound by the
provisions of this Agreement. Notwithstanding the foregoing, no party hereto
shall avoid the provisions of this Agreement by making one or more transfers to
Permitted Transferees and then disposing of all or any portion of such party's
interest in any such Permitted Transferee. For
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purposes of this Agreement, an "AFFILIATE" of a Person means any Stockholder,
partner, member or other equity owner of such Person or any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. "PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
(c) RIGHT OF FIRST REFUSAL.
(i) NOTICE OF OFFER TO SELL SHARES. Except as provided in
Sections 2(a) and 2(b) above, if IAO (such Stockholder being
hereinafter referred to as the "SELLING STOCKHOLDER") shall desire to
sell, exchange or in any other manner dispose of all or any of the
Shares now owned or hereafter acquired by it, it must first receive a
bona fide written offer from a third-party prospective purchaser to
purchase such Shares, and then deliver to the Company, a written notice
("NOTICE") containing the following information:
(A) The name and address of the prospective purchaser of
such Shares;
(B) The number of Shares that the Selling Stockholder
desires to sell;
(C) The price being offered to the Selling Stockholder
and, in reasonable detail, the terms of payment and
any other terms and conditions of such offer,
including but not limited to the fair market value
(as hereinafter defined) of any non-cash
consideration; and
(D) The proposed closing date for the transaction, which
shall be not less than sixty (60) or more than ninety
(90) days after the date of delivery of the Notice.
(ii) FIRST OFFER TO THE COMPANY. For a period of fifteen (15)
days after the giving of the Notice by IAO, the Company shall have the
option to purchase the Shares that are proposed to be sold at the price
and upon the terms and conditions set forth in the Notice. Such option
shall be exercisable by notice in writing to IAO within such fifteen
(15) day period. A failure by the Company to give written notice of
exercise within such fifteen (15) day period shall be deemed a
rejection by the Company of its option to purchase.
(iii) SECOND OFFER TO XX. XXXXXXXX XXXXX. If the Company does
not exercise its option to purchase all the Shares that IAO desires to
sell hereunder, for a period of fifteen (15) days after the date of
express rejection by the Company or the expiration of the option to the
Company, whichever is earlier, Xx. Xxxxxxxx Xxxxx shall have the option
to purchase the Shares that are proposed to be sold at the price and
upon the terms and conditions set forth in the Notice. Such option
shall be exercisable by notice in writing to the IAO within such
fifteen (15) day period. A failure by Xx. Xxxxxxxx Xxxxx to give
written notice of exercise within such fifteen (15) day period shall be
deemed a rejection by Xx. Xxxxxxxx Xxxxx of his option to purchase.
(iv) THIRD OFFER TO STOCKHOLDERS. If Xx. Xxxxxxxx Xxxxx does
not exercise its option to purchase all the Shares that IAO desires to
sell hereunder, for a period of fifteen
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(15) days after the date of express rejection by the Company or the
expiration of the option to the Company, whichever is earlier, the
Stockholders shall have the option to purchase their pro rata portion
of any remaining Shares that are proposed to be sold, at the price and
upon the terms and conditions set forth in the Notice. Such option
shall be exercisable by written notice to IAO and the Company within
such fifteen (15) day period. If not all of the Stockholders purchase
their pro rata portion, those Stockholders who have agreed to purchase
their pro rata portion shall also be entitled to purchase any remaining
Shares offered by IAO, either on a pro rata basis or as they together
otherwise agree. IAO shall have no right to vote as a Stockholder or
director of the Company on the decision to exercise such option, and
action on such option may be taken by the majority of the members of
the Board (exclusive of IAO and its Affiliates, and any member or
members of the Board nominated by IAO and its Affiliates), at a duly
called and held meeting of the Board at which a quorum is present.
(v) CLOSINGS. If the Company or Xx. Xxxxxxxx Xxxxx or any
Stockholder shall exercise an option to purchase granted to such
parties in this Section 2, the closing of the purchase and sale
transaction shall be held at the principal office of the Company on a
date designated by the purchaser or purchasers, which date in no event
shall be later than 90 days after IAO gives the Notice. If there is
more than one purchaser of the Shares being sold, IAO may require that
all purchases close concurrently on the same date.
(vi) RIGHT TO TRANSFER. If the Company and Xx. Xxxxxxxx Xxxxx
and the Stockholders who have options to purchase Shares do not elect
to purchase all the Shares that IAO desires to sell, for a period of
sixty (60) days from the earlier of the date of any closing pursuant to
Section 2(c)(v) or the expiration of the last option provided for in
this Section 2(c) (the "OPTION PERIOD"), subject to Section 2(d) below,
IAO shall have the right to sell the Shares covered by the bona fide
offer that the Stockholders and the Company have not elected to
purchase, if any, to the prospective purchaser named in the Notice;
PROVIDED, HOWEVER, that the sale is made in strict accordance with the
terms of sale set forth in the Notice and this Section 2. In addition,
as a condition to any such sale, the purchaser of the Shares must agree
in writing that it and its heirs, successors and assigns, shall be
subject to and bound by the provisions of this Agreement.
(d) PROHIBITED TRANSFERS VOID. Any purported transfer of Shares in
violation of this Agreement shall be void and shall not transfer any interest or
title to any Shares to the purported transferee. The Company shall not be
required to transfer on its books any Shares sold or transferred in violation of
any of the provisions set forth in this Agreement or to treat as owner of those
Shares or to pay dividends to any transferee to whom any of those Shares shall
have been so sold or transferred.
3. SALE OF THE COMPANY; PUBLIC OFFERING.
(a) If at any time (i) the Board and (ii) Stockholders holding at least
sixty seven percent (67%) of the capital stock of the Company approve a sale of
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all or substantially all the Company's assets (determined on a consolidated
basis) or a sale or exchange of all or substantially all the Company's
outstanding capital stock (whether by merger, sale, recapitalization,
consolidation, reorganization, combination or otherwise) to any unaffiliated
third party in an arm's-length transaction (an "APPROVED Sale"), each holder of
Shares shall vote for, consent to and raise no objections against such Approved
Sale and shall waive any dissenters' rights, appraisal rights or similar rights
in connection therewith. If the Approved Sale is structured as a sale of stock,
each holder of Shares shall agree to sell all his, her or its Shares and rights
to acquire Shares on the terms and conditions approved by the Board. Each holder
of Shares shall take all necessary and desirable actions in his, her or its
capacity as a Stockholder in connection with the consummation of the Approved
Sale as requested by the Company (including attendance at meetings in person or
by proxy for purposes of obtaining a quorum and execution of written consents in
lieu of meetings).
(b) If at any time (i) the Board and (ii) Stockholders holding at least
fifty percent (50%) of the Shares approve a Qualified Public Offering (as
defined below), then each Stockholder shall vote for, consent and raise no
objections against such Public Offering, and agrees to cooperate in complying
with any rules or regulations related to such Qualified Public Offering. For
purposes of this Agreement, a "QUALIFIED PUBLIC OFFERING" means a firm
commitment underwritten Public Offering (as defined below) of shares of the
Company's Common Stock at a public offering price of not less than $2,000 per
share, in which the net proceeds payable to the Company shall be at least
$5,000,000 (before payment of underwriters' discounts and commissions). "PUBLIC
OFFERING" means any offering by the Company of its equity or debt securities to
the public pursuant to an effective registration statement under the laws of
Japan, as then in effect, or any comparable statement under any similar federal
statute then in force.
(c) The provisions of this Section 4 shall terminate upon the
consummation of a Qualified Public Offering.
5. REPRESENTATIONS AND WARRANTIES. Each Stockholder represents and
warrants that (a) 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 (b) such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement which is inconsistent with, conflicts with or violates any
provision of this Agreement. No holder of Shares shall grant any proxy or become
party to any voting trust or other agreement that is inconsistent with,
conflicts with or violates any provision of this Agreement.
6. TRANSFERS; FUTURE SALES. Prior to (i) the Company issuing shares to
any Person, or (ii) any holder of Shares transferring any Shares (other than
pursuant to a Qualified Public Offering) to any Person, the Company or such
holder shall cause the prospective stockholder or transferee to be bound by this
Agreement.
7. TERMINATION OF AGREEMENT. This Agreement shall terminate upon the
earlier of (a) the consummation of a Qualified Public Offering (as defined
below) of any of its Shares, or (b) the liquidation or sale of the Company
(whether by sale or transfer of more than 50% of its stock through a sale or
merger, or a sale of all or substantially all of its assets).
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8. AGREEMENT BINDING. This Agreement shall inure to the benefit of and
be binding upon the Stockholders and each of their heirs, successors and
permitted assigns. It shall also be binding upon any transferee and their heirs,
successors and permitted assigns of such transferee who has received any Shares.
9. ENTIRE AGREEMENT. This Agreement and the Purchase Agreement
constitute the entire agreement of the parties as to the subject matter herein
contained, superseding any and all prior or contemporaneous oral and prior
written agreements, understandings, letters of intent or commitment letters.
10. AMENDMENT OR WAIVER OF AGREEMENT. Except as otherwise expressly
provided herein, any term of this Agreement may be amended and the observance of
any term of this Agreement may be waived (either generally or in a particular
instance, either retroactively or prospectively and either for a specified
period of time or indefinitely) with the written consent of (a) the Company and
(b) Stockholders holding at least sixty seven percent (67%) of the capital stock
of the Company; PROVIDED, HOWEVER, that no such amendment or waiver shall reduce
the percentage of Shares, the holders of which are required to consent to any
waiver or supplemental agreement, without the consent of the holders of all of
such Shares. Any amendment or waiver effected in accordance with this Section 10
shall be binding upon each Stockholder and each transferee of the Shares. Upon
the effectuation of each such amendment or waiver, the Company shall promptly
give written notice thereof to the Stockholders who have not previously
consented thereto in writing. Notwithstanding anything to the contrary in this
Section 10, subject to compliance with the terms of this Agreement, the Company
shall be entitled to include additional Stockholders as parties to this
Agreement in accordance with the provisions of Section 6 above, and to treat
such purchasers as Stockholders hereunder, by amending SCHEDULE 1 attached
hereto and providing such SCHEDULE 1, as amended, to the other parties to this
Agreement.
11. NOTICES. All communications and notices provided for hereunder
shall be sent by personal delivery, nationally recognized overnight courier,
facsimile or registered or certified mail, to the Stockholders and the Company
at their respective addresses set forth on the signature pages hereto, or to
such other address with respect to any party as such party shall notify the
other parties hereto in writing. Any notice required to be given hereunder by
one party to another shall be deemed to have been received (i) when delivered,
if personally delivered or sent via confirmed facsimile delivery; or (ii) one
day following delivery to a nationally recognized overnight courier; or (iii) on
the third business day following the date on which the piece of mail containing
such communication is posted, if sent by certified or registered mail.
12. GOVERNING LAW. This Agreement is made pursuant to, and will be
governed by and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed and to be performed wholly within such state.
13. INVALIDITY. If any portion or portions of this Agreement shall be
adjudged, declared, held, or ruled to be invalid for any reason, such invalidity
shall not be deemed to impair the validity of any other provision of this
Agreement.
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14. REMEDIES. The parties hereto shall be entitled to enforce their
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages would not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and any Stockholder may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other security)
in order to enforce or prevent any violation of the provisions of this
Agreement.
15. COUNTERPARTS. This Agreement may be executed in multiple
counterparts (including by means of telecopied signature pages), each of which
shall be an original and all which taken together shall constitute one and the
same agreement.
[Signature Pages to Follow]
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SIGNATURE PAGE TO THE STOCKHOLDERS AGREEMENT
DATED AS OF MARCH 18, 2004 AMONG XXX TOKYO CO., LTD.
AND ITS STOCKHOLDERS
IN WITNESS WHEREOF, the Stockholders and the Company have signed this
Agreement as of the day and year first above written.
XXX TOKYO CO., LTD.
By: /s/ Xxxxxxxx Xxxxx /s/
Name: Xxxxxxxx Xxxxx
Title: President, CEO
XX. XXXXXXXX XXXXX
/S/ XXXXXXXX XXXXX /S/
Address: 0-00-0 Xxxxxxxxxxx, Xxxxx-xx, Xxxxx, Xxxxx
IAO
IA GLOBAL, INC.
/S/ XXXX XXXXXXXXXX /S/
Name: Xxxx Xxxxxxxxxx
Title: President, CEO
Address: 000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, XX 00000 XXX
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SCHEDULE 1
CAPITALIZATION OF THE COMPANY
March 18, 2004
STOCKHOLDER SHARES OF COMMON STOCK
Xx. Xxxxxxxx Xxxxx 330
LUCK (Tokyo) 100
Xxxxxxxx Xxxxxxxx 00
Xxxxxxxxx Xxxxxxxx 00
Shogen Hirano 30
Xxxxxxxx Xxxxxxxx 10
Masao Nirasawa 10
Employees Pool 20
Japan Cash Machine Co. 78
Koretsugu Dogama 40
Japan Cash Machine Service 40
LUCK (Nagoya) 32
IA GLOBAL INC 1,150
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