Exhibit 10.5
EXECUTION COPY
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (the "Agreement"), made as of the 18th day of
February, 2005, by and among Gosling Partners Inc., a Delaware corporation (the
"Company") and the persons listed on Schedule I hereto (the "Stockholders" and,
individually, a "Stockholder").
WHEREAS, the Stockholders own all of the issued and outstanding stock of
the Company in the amount shown opposite their names on Schedule I; and
WHEREAS, the Company and Stockholders desire to agree to certain
restrictions and covenants in connection with the ownership of such stock in the
Company and the management of the Company.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, and in consideration of the mutual
promises set forth below, the parties hereto, intending to be legally bound,
agree as follows:
1. Definitions of Shares. As used in this Agreement, "Shares" shall mean
and include all common stock, $0.01 par value per share ("Common Stock") of the
Company, together with any shares of Common Stock and other capital stock of the
Company acquired as a result of any conversion, stock split, stock dividend,
recapitalization or the like.
2. Voluntary Transfers. Each Stockholder hereby agrees that he, she or it
will not sell, assign, encumber, transfer pursuant to any pledge, or make any
other disposition or transfer (each a "Transfer") of any Shares now or hereafter
owned by him, her or it unless all of the provisions of this Agreement that are
applicable to such Transfer have been complied with.
3. Prohibited and Permitted Transfers. From and after the date hereof,
except as permitted by this Section 3, no Stockholder shall sell, assign,
transfer, pledge, hypothecate, mortgage, encumber or dispose of all or any of
its Shares except pursuant to Section 4 hereof. Notwithstanding the foregoing, a
Stockholder may transfer all or any of his Shares without complying with this
Section 3: (i) if the Stockholder is an individual, by way of gift to his spouse
or to the siblings or lineal descendants or ancestors of such Stockholder or his
spouse, or to any trust for the benefit of any one or more of the foregoing;
provided, that any such transferee shall agree in writing, as a condition to
such transfer, to be bound by all of the provisions of this Agreement to the
same extent as if such transferee were the Stockholder transferring such Shares;
(ii) if the Stockholder is an individual, by will or the laws of descent and
distribution; provided, that such Shares shall thereafter remain subject to the
provisions of this Agreement to the same extent they would be if held by the
Stockholder; (iii) pursuant to a merger or consolidation of the Company with any
other entity in which all of the Stockholders are participating on a ratable
basis (based upon the number of Shares held); (iv) to another Stockholder
provided that such Shares as are transferred to a Stockholder shall thereafter
remain subject to the provisions of this Agreement; or (v) pursuant to a sale in
which Castle Brands Inc. (the "Majority Stockholder") is selling all of its
shares; provided that the purchaser of the Shares of the Majority Stockholder
shall have executed and delivered an agreement, in a form acceptable to the
Company, to be bound by the terms of this Agreement. Notwithstanding the
foregoing, borrowings with commercial banks or comparable financial
institutions, secured by
the Shares, are permitted, as long as the lending institution agrees to be bound
by the provisions of this Agreement, should it obtain title to the Shares.
4. Right of First Refusal. If any Stockholder shall at any time receive a
bona fide offer from a third party to purchase for cash all of his, her or its
Shares that the Stockholder wishes to accept, he or she shall give written
notice to the Company stating the price, terms and the potential purchaser of
the Shares. The Company shall have the option to purchase all, but not less than
all, of the offered Shares at the price and on the other terms stated in the
notice. The option to purchase the Shares shall be exercisable by notice given
to the applicable Stockholder at any time within 30 days of the receipt of the
notice given by such Stockholder. If the Company does not exercise its option
within 30 days after receipt of the notice given by any Stockholder, the
Stockholder shall give notice to the other Stockholders stating the price, terms
and the potential purchaser of the Shares. The Stockholders shall have the
option to purchase a number of the offered Shares equal to the same percentage
of shares then owned by the Stockholder (excluding the offered Shares) at the
price and on the other terms stated in the notice; provided that in order to
fully exercise their rights as set forth in this Section 4 the Stockholders must
collectively purchase all of the offered shares. If any Stockholder declines to
exercise his, her or its rights set forth in this Section 4, the Stockholders
exercising such rights shall be entitled to purchase the non-exercising
Stockholders' portion of the Shares equal to the same percentage of shares then
owned by the Stockholder (excluding the offered Shares and the shares of the
non-exercising Stockholder). If neither the Company nor any of the other
Stockholders exercises its option within 30 days after receipt of the notice
given by the Stockholder, such Stockholder may, at any time within 60 days
following the expiration of that 30-day option period, sell for value all, but
not less than all, of the offered Shares to the purchaser listed in the notice
at a cash price per share not less than the minimum price stated in the notice,
provided that (i) prior to any sale, counsel for such Stockholder shall have
delivered to the Company its opinion, in form and substance reasonably
acceptable to the Company, that the sale will not violate any applicable federal
or state securities law and (ii) the purchaser shall have executed and delivered
an agreement, in a form acceptable to the Company, to be bound by the terms of
this Agreement. If the offered Shares remain unsold at the end of such 60-day
period, such Shares may not thereafter be transferred (except as may be
permitted under another provision of this Agreement) unless the applicable
Stockholder again complies with this Section 4.
5. Preemptive Right. If the Company proposes to issue any shares of Common
Stock or securities convertible into or exchangeable or exercisable for shares
of Common Stock, other than securities issued as a result of any stock split,
stock dividend, reclassification, recapitalization or the like the Company will
deliver to each Stockholder a written notice (the "New Issuance Notice") not
less than thirty (30) days prior to the date of completion of such issuance (the
"New Issuance"). Each Stockholder shall have the right, exercisable within
fifteen (15) business days of the date of the New Issuance Notice, to purchase
all or any part of such Stockholder's Pro Rata Share (as defined below) of the
New Securities at the price and on the terms and conditions on which the Company
proposes to make the New Issuance, such price to be paid in full in cash or by
check against the issuance and delivery of the New Securities promptly after
notice from the Company. For purposes of this Section 5, a Stockholder's "Pro
Rata Share" means the product of (x) the number of New Securities and (y) a
fraction, the numerator of which is the number of shares of Common Stock
outstanding as of the date of (and
-2-
immediately prior to) the proposed New Issuance held by such Stockholder and the
denominator of which is the total number of shares of Common Stock outstanding
as of the date of (and immediately prior to) the proposed New Issuance.
6. Liquidation, Dissolution or Winding Up. In the event of any liquidation,
dissolution or winding up of the Company, whether voluntary or involuntary,
Castle shall be entitled to the greater of its pro rata share of ownership in
the Company or $5,000,000 of the assets of the Company available for
distribution to its stockholders.
7. Certain Covenants. The Company covenants and agrees that it will comply
with and observe the following covenants and provisions, unless with respect to
a specific transaction, event or action that is subject to the provisions of
this Section 7, it shall have been permitted to effect, participate in or
proceed with such transaction, event or action pursuant to the approval of the
members of the Board of Directors representing in the aggregate at least 80% of
the outstanding shares of the Company:
(a) The Company will not enter into or be a party to any material
transaction or arrangement with any director, officer, employee or Stockholder
of the Company, or any member of their respective immediate families or any
corporation or other entity directly or indirectly controlled by one or more of
such officers, employees, directors or Stockholders or members of their
immediate families, except in the ordinary course of business and on terms not
less favorable to the Company than it would obtain in a comparable arm's length
transaction with an unrelated third party.
(b) The Company will not increase the number of directors serving on
its Board of Directors to more than five (5).
8. Inspection Right. The Company shall permit each Stockholder and any
authorized representative thereof, at such Stockholder's expense, to visit and
inspect the properties of the Company, to examine its records, including its
corporate and financial records, and to discuss its affairs, finances and
accounts with its officers and certified public accountants, all at such
reasonable times upon reasonable prior written notice to the Company and in a
manner which does not unduly interfere with the business and operations of the
Company. The rights set forth in this Section 8 shall be exercised solely in
furtherance of the proper interests of such Stockholder as an investor in the
Company, and any Stockholder exercising its rights of inspection hereunder, and
its agents and representatives, shall maintain the confidentiality of all
financial and other confidential information of the Company acquired by them
except as and only to the extent required by applicable laws, regulations or
legal process. In addition, if requested by the Company, and as a condition to
each Stockholder exercising its rights hereunder, such Stockholder shall execute
a confidentiality agreement with the Company containing terms and conditions
reasonably satisfactory to the Company.
9. Specific Enforcement. The Company and each Stockholder expressly agree
that the Stockholders and the Company will be irreparably damaged if this
Agreement is not specifically enforced. Upon a breach or threatened breach of
the terms, covenants and/or conditions of this Agreement, the non-breaching
Stockholders and/or the Company, as applicable, shall, in addition to all other
remedies, each be entitled to a temporary or permanent
-3-
injunction, without showing any actual damage, and/or a decree for specific
performance, in accordance with the provisions hereof.
10. Failure to Deliver Shares. If a Stockholder becomes obligated to sell
any Shares pursuant to the terms of this Agreement and fails to deliver such
Shares in accordance with the terms of this Agreement, the Company or any of the
other Stockholders, as the case may be, may, at his, her or its option, in
addition to all other remedies he, she or it may have, send to such Stockholder
the applicable purchase price for such Shares as determined in accordance with
the terms of this Agreement. Thereupon, the Company upon written notice to such
Stockholder (a) shall cancel on its books the certificate or certificates
representing the Shares to be sold and (b) shall issue, in lieu thereof, in the
name of the appropriate transferee in accordance with the terms of this
Agreement, a new certificate or certificates representing such Shares, and
thereupon all of such Stockholder's rights in and to such Shares shall
terminate.
11. Management. The Company shall be managed and controlled by the Board of
Directors. The Board of Directors of the Company shall comprise of five (5)
directors, three (3) of whom shall be appointed by the Majority Stockholder, one
by Gosling's Export (Bermuda) Limited and one by E. Xxxxxxx X. Xxxxxxx (or his
designee). The Stockholders agree that, at the first Board of Directors meeting
held after the date hereof for the purpose of electing the officers of the
Company or in connection with the taking of any written consent to action in
respect thereto, each of the Stockholders shall direct his or its Board of
Director designee to vote in favor of the election of E. Xxxxxxx X. Xxxxxxx as
President and Chief Executive Officer, Xxxx XxxXxxxxxx as Chief Financial
Officer and Treasurer, Xxxxx Xxxxxxx as Secretary and Xxxxxx Xxxx as Assistant
Secretary of the Company, to ensure the election of such persons as such
officers of the Company. The Company plans to separately enter into a five-year
employment agreement with E. Xxxxxxx X. Xxxxxxx, which agreement shall contain
standard protective and non-compete provisions, and will endeavor to obtain at
least $5,000,000 of Key Man Insurance on the life of E. Xxxxxxx X. Xxxxxxx. The
obligations set forth in this Section 11 shall terminate effective, as to each
Stockholder, upon the sale of all of the Stockholder's Shares or upon the death
or permanent disability of such Stockholder. Notwithstanding the appointment of
Xxxx XxxXxxxxxx as Treasurer, the Stockholders hereby agree that all functions
normally performed by the treasurer of a corporation shall be performed by
Castle Brands Inc. which shall maintain the financial records on behalf of the
Company, unless otherwise mutually agreed in writing by the Stockholders. The
Company shall reimburse Castle Brands Inc. for its reasonable expenses in
connection with providing such accounting and financial reporting, such expenses
to be documented and subject to periodic review by the Chief Executive Officer
and the Board of Directors.
12. Notices. Notices given hereunder shall be in writing and shall be
deemed received (i) when delivered by hand or telecopy or other method of
facsimile, (ii) the next business day after sent by a nationally recognized
overnight delivery service, and (iii) five (5) business days after sent by
certified or registered mail, return receipt requested, postage prepaid, to the
party being notified as set forth below:
If to the Company, at c/o E. Xxxxxxx X. Xxxxxxx, 00 Xxx Xxxxxx, Xxxxxx, XX
00000, Fax: (000) 000-0000, Attention: President and Chief Executive Officer, or
at such other address
-4-
or addresses as may have been furnished in writing by the Company to the
Stockholder, with a copy to Castle Brands Inc., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, XX 00000.
If to a Stockholder, at the address set forth on the applicable schedule
hereto, or at such other address or addresses as may have been furnished in
writing by the Stockholders to the Company.
13. Invalidity of Transfer. No purported Transfer of any Shares by any of
the Stockholders in violation of any provision of this Agreement shall be valid,
and the Company shall not transfer any of said Shares on the books of the
Company, nor shall any of said Shares be entitled to vote, nor shall any
dividends be paid thereon during the period of any such violation. Such
disqualifications shall be in addition to and not in lieu of any other legal or
equitable right to enforce said provisions.
14. Extraordinary Events. If from time to time during the term hereof there
is any stock split, stock dividend, reclassification, recapitalization or
similar event, then, in such event, any and all new, substituted or additional
securities or other property (other than cash) to which a Stockholder is
entitled to receive by reason of his, her or its ownership of Shares shall be
immediately subject to the provisions of this Agreement and be included in the
term "Shares" for all purposes hereof.
15. Legend. All certificates representing any Shares held by any
Stockholder shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY APPLICABLE STATE OR FOREIGN SECURITIES LAWS. AND MAY NOT BE
SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER
THE ACT OR THE AVAILABILITY OF AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS AND IN ACCORDANCE WITH AND SUBJECT TO ALL THE TERMS AND
CONDITIONS OF A CERTAIN STOCKHOLDERS AGREEMENT DATED AS OF FEBRUARY
18, 2005 (AS THE SAME MAY THEREAFTER BE FURTHER AMENDED, RESTATED OR
MODIFIED), A COPY OF WHICH THE COMPANY WILL FURNISH TO THE HOLDER OF
THIS CERTIFICATE UPON REQUEST AND WITHOUT CHARGE.
Each Stockholder agrees that the Company may impose transfer
restrictions on the Shares represented by certificates bearing the legend
referred to in this Section 15 to enforce the provisions of this Agreement. The
legend may be removed upon termination of this Agreement.
-5-
16. Term; Termination of Agreement.
(a) The term of this Agreement shall be for the longer of twenty five (25)
years or ten (10) years past the expiration of the Export Agreement, dated as of
February 14, 2005, among the Company, Gosling's Export (Bermuda) Limited and
Gosling Brothers Limited (the "Export Agreement"), unless earlier terminated as
provided in subsection (b) or unless extended by mutual written agreement.
(b) This Agreement shall earlier terminate upon the occurrence of any of
the following events, provided that such termination shall not affect any right
or remedy existing hereunder prior to the effective date of such termination:
(i) mutual written agreement of the Stockholders;
(ii) a sale of all of the shares of Common Stock held by all of the
Stockholders (but nothing in this Agreement would preclude the Majority
Stockholder from issuing its own equity or entering into a merger with or a
sale to a third party);
(iii) a merger (in which the Company is not the surviving entity), a
consolidation or a sale of all or substantially all of the assets of the
Company;
(iv) the cessation of the Company's business;
(v) one of the Stockholders becoming the owner of all shares of the
capital stock of the Company.
17. Change of Control. In the event that the Majority Stockholder transfers
control of the Company, either directly (through the sale of substantially all
of its Shares) or indirectly (through the sale or merger of Castle Brands Inc.),
the new controlling person shall agree to be bound by the terms and conditions
of this Agreement as set forth in Section 3, and the Export Agreement shall
remain in full force and effect, provided that if the new controlling person
wishes to sell its interest in the Company, either directly or indirectly, the
approval of Gosling Brothers Limited and Gosling's Export (Bermuda) Limited
would be required to effectuate such a sale.
18. Entire Agreement and Amendments. This Agreement constitutes the entire
agreement of the parties hereto with respect to the subject matter hereof and
neither this Agreement nor any provision hereof may be waived, modified, amended
or terminated except by a written agreement signed by the stockholders
representing at least 80% of the outstanding shares. No waiver of any breach or
default hereunder shall be considered valid unless in writing, and no such
waiver shall be deemed a waiver of any subsequent breach or default of the same
or similar nature.
19. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the heirs, personal representatives, executors,
administrators, successors and permitted assigns and transferees of the Company
and each of the Stockholders.
-6-
20. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement shall be deemed prohibited, invalid
or unenforceable under such applicable law, such provision shall be ineffective
to the extent of such prohibition, invalidity or unenforceability, and such
prohibition, invalidity or unenforceability shall not invalidate the remainder
of such provision or the other provisions of this Agreement.
21. Section Headings. The descriptive headings in this Agreement have been
inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction of any provision hereof.
22. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and all of which together shall constitute one and the same
instrument.
23. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware without reference to its
principles of conflicts of law.
24. Interpretation. The parties acknowledge and agree that: (i) each party
and its counsel, if any, reviewed and negotiated the terms and provisions of
this Agreement and have contributed to its revision; (ii) the rule of
construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement;
and (iii) the terms and provisions of this Agreement shall be construed fairly
as to all parties hereto, regardless of which party was generally responsible
for the preparation of this Agreement.
25. Arbitration
In the event any disagreement or dispute among the parties arises
under or out of this Agreement, including termination issues, such disagreement
or dispute shall be submitted to Judicial Mediation Services, Inc., a
professional arbitration service consisting of retired Federal and State judges
("JAMS") for binding arbitration unless the parties mutually agree upon an
alternative dispute resolution service. The arbitration shall be conducted in
accordance with the rules of JAMS or such other dispute resolution service as
might be agreed upon and shall be held in New York, New York. Any award made by
JAMS or such other dispute resolution service as might be agreed upon shall be
binding upon the parties. Binding arbitration shall be the exclusive remedy for
breach of this Agreement by any party. The parties shall share equally all costs
of arbitration other than representation by counsel which shall be at each
party's own expense.
[remainder of page intentionally left blank]
-7-
EXECUTION COPY
STOCKHOLDERS AGREEMENT SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement or caused this Agreement to be duly executed and delivered by their
proper and duly authorized officers, as the case may be, as of the date first
above written.
GOSLING PARTNERS INC.
By: /s/ E. Xxxxxxx X. Xxxxxxx
------------------------------------
Name: E. Xxxxxxx X. Xxxxxxx
Title: President and Chief Executive
Officer
STOCKHOLDERS:
By: /s/ E. Xxxxxxx X. Xxxxxxx
------------------------------------
E. Xxxxxxx X. Xxxxxxx
GOSLING'S LIMITED
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
CASTLE BRANDS INC.
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Chairman and Chief Executive
Officer
SCHEDULE I
Stockholders
Name Number of Shares Owned
---- ----------------------
E. Xxxxxxx X. Xxxxxxx 200,000
00 Xxx Xxxxxx
Xxxxxx, XX 00000
Gosling's Limited 200,000
XX Xxx XX000,
Xxxxxxxx, XX CX
Bermuda
Castle Brands Inc. 600,000
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
