EXHIBIT 2(b)
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the "Agreement") is dated as of January 31,
2002 and is by and among SWWT, INC., a Delaware corporation (the "Company"), and
the parties identified in Annex A hereto as stockholders of the Company (each a
"Stockholder" and collectively, the "Stockholders").
RECITALS
WHEREAS, the Company, E-Newco, Inc., a Delaware corporation and
wholly-owned subsidiary of the Company ("E-Newco") and SanVision Technology
Inc., a New Jersey corporation ("SVT"), have entered into that certain Second
Amended and Restated Agreement and Plan of Merger, dated as of December 18, 2001
(the "Merger Agreement"), pursuant to which E-Newco is being merged with and
into SVT, with SVT being the surviving entity and a wholly-owned subsidiary of
the Company (the "Merger");
WHEREAS, the Company, E-Newco and SVT have agreed that entering into a
stockholders agreement is a condition precedent to consummating the Merger;
WHEREAS, each of the Stockholders is, or as a result of the Merger will
become, the owner of such Company Securities (as hereinafter defined) as is
indicated on Annex A;
WHEREAS, the Company and the Stockholders wish to enter into this Agreement
for the purpose of setting forth certain rights and obligations relating to the
ownership of Company Securities and regulating certain other aspects of their
relationship hereunder;
WHEREAS, the board of directors of the Company (the "Board of Directors")
has determined that it is in the best interest of the Company that such matters
be so regulated; and
WHEREAS, concurrently with the execution of this Agreement, the Company and
the Stockholders are entering into that certain Registration Rights Agreement
(as such term is defined in the Merger Agreement) relating to Company Securities
of the Stockholders.
NOW, THEREFORE, with reference to the foregoing recitals, which are by this
reference incorporated herein, and in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
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Section 1.1 Definitions. (a) The following terms when used in this
Agreement shall have the meanings ascribed thereto:
"Affiliate" of any Person shall mean any other Person that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under direct or indirect common control with, such first Person. For purposes
of this definition, the term "control" (including the correlative meanings of
the terms "controls," "controlled by," and "under direct or indirect control
with") as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
policies of such Person, whether through the ownership of voting securities, by
contract, or otherwise.
"Business Day" shall mean any day on which commercial banks are not
authorized or required to be closed in New York City.
"Common Stock" shall mean the authorized Common Stock, par value $.001 per
share of the Company, irrespective of class unless otherwise specified, as
constituted on the date hereof, and any stock into which such Common Stock may
thereafter be changed, and also shall include stock of the Company of any other
class, which is not preferred as to dividends or assets over any class of stock
of the Company and which is not subject to redemption, issued to the holders of
shares of Common Stock upon any reclassification thereof.
"Company Securities" shall mean Common Stock, any rights, options or
warrants to purchase Common Stock, or any securities of any type whatsoever that
shall be (or may become) exchangeable for, or exercisable or convertible into,
Common Stock.
"Drag-Along Notice" shall have the meaning set forth in Section 4.1.
"Drag-Along Notice Date" shall have the meaning set forth in Section 4.2.
"Drag-Along Right" shall have the meaning set forth in Section 4.1.
"Drag-Along Sale" shall have the meaning set forth in Section 4.2.
"Drag-Along Shares" shall have the meaning assigned to such term in Section
4.1.
"ERV" shall mean East River Ventures II LP.
"Fair Market Value" shall mean, as of the date of any Drag-Along Sale, the
highest price for which all the issued and outstanding shares of Common Stock on
a fully diluted basis could be sold in an arm's length transaction to an
independent third party, without regard to (i) the lack of liquidity of the
Common Stock due to any restrictions or other limitations contained in this
Agreement, the Registration Rights Agreement, or otherwise, (ii) any discount
for minority interests, or (iii) the time required to obtain regulatory
approvals, consents or notifications in connection with such sale, and assuming
that, in such arm's length transaction, neither the purchaser would be under any
compulsion to purchase nor the seller would be under any compulsion to sell, but
taking into account the value of a third party's bona fide offer and the current
price of the Common Stock if traded on an exchange or listed on a automated
quotation system. The Fair Market Value shall be determined by agreement or
appraisal in accordance with the procedures described below.
Within 10 days after a Drag-Along Notice Date, the holders of a majority of
the shares of Common Stock (including all shares issuable upon exercise,
conversion or exchange of Company Securities) owned by the Selling Group (the
"Majority Selling Holders") and the holders of a majority of the shares of
Common Stock (including all shares issuable upon exercise, conversion or
exchange of Company Securities) owned by the Non-Selling Stockholders (the
"Majority Non-Selling Holders") shall each designate a representative and such
representatives will meet and use their best efforts to reach an agreement on
the Fair Market Value.
If the representatives designated by the Majority Selling Holders and the
Majority Non-Selling Holders have been unable to reach such agreement within 15
days after the Drag-Along Notice Date, then the Majority Selling Holders and the
Majority Non-Selling Holders will use best efforts to agree upon the selection
of an independent appraiser experienced in valuing businesses similar to the
principal business of the Company and its Subsidiaries within 55 days after the
Drag-Along Notice Date. If the Majority Selling Holders and the Majority
Non-Selling Holders so select an appraiser, such appraiser will have 15 days
after such selection in which to determine the Fair Market Value pursuant to the
guidelines set forth in the definition, and its determination thereof will be
final and binding on all parties concerned.
If the Majority Selling Holders and the Majority Non-Selling Holders are
unable so to reach an agreement as to an independent appraiser, then the
Majority Selling Holders and the Majority Non-Selling Holders will each select
one independent appraiser experienced in valuing businesses similar to the
principal
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business of the Company and its Subsidiaries within 20 days after the Drag-Along
Notice Date. The Majority Selling Holders and the Majority Non-Selling Holders
will each cause the appraiser selected by them to determine independently the
Fair Market Value within 15 days after their respective appointments. If either
the Majority Selling Holders or the Majority Non-Selling Holders fails to select
an appraiser in accordance herewith, the Fair Market Value will be the value
determined by the appraiser selected by the Majority Selling Holders or the
Majority Non-Selling Holders, as the case may be. If the lower of the two
appraised values of such appraisers (the "Low Value") exceeds or is equal to 90%
of the higher of the two appraised values (the "High Value"), the Fair Market
Value will be the average of the two appraisals. If the Low Value is less than
90% of the High Value, the two appraisers will themselves appoint a third
independent appraiser experienced in valuing businesses similar to the principal
business of the Company and its Subsidiaries within 5 days after the two
appraisals have been rendered. Such third appraiser will have 10 days after its
appointment in which to determine independently the Fair Market Value. The Fair
Market Value in such case will be the average of the two appraised values which
are the closest to each other, but not in any event less than the Low Value or
greater than the High Value.
The Company will provide each independent appraiser with all information
about the Company and its Subsidiaries which any such appraiser reasonable deems
necessary for determining the Fair Market Value. The expenses of the appraisal
process will be paid by the Company.
"Governmental Authority" shall have the meaning set forth in the Merger
Agreement.
"Joinder Agreement" shall mean the agreement required to be executed by
certain transferees of Stockholders pursuant to Section 7.1(b) hereof.
"MCG" shall mean MCG-SVT LLC, a Delaware limited liability company.
"New Securities" shall mean any capital stock of the Company (including any
Common Stock or preferred stock), all rights, options, or warrants to purchase
such capital stock, and any securities of any type whatsoever that shall be (or
may become) exchangeable for, or exercisable or convertible into, such capital
stock; provided, however, that the term "New Securities" shall not include (i)
Common Stock issued as a stock dividend to holders of Common Stock or upon any
stock split, subdivision or combination of shares of Common Stock, (ii) up to
_____ shares of Common Stock issuable upon exercise of options issuable pursuant
to the Company's stock option plans, (iii) Common Stock issued in connection
with a Qualified Public Offering, (iv) Common Stock issued in connection with an
acquisition or merger transaction that has been approved by the Board of
Directors, (v) Common Stock issued upon the conversion, exchange or exercise of
any preferred stock, warrants, or options outstanding as of the date hereof, or
(vi) capital stock issued in exchange for any of the foregoing.
"Non-Selling Stockholders" shall mean (i) in the case of a Tag-Along Sale,
the Stockholders who are not Selling Stockholders, and (ii) in the case of a
Drag-Along Sale, the Stockholders not included in the Selling Group.
"Notice of Change" shall have the meaning set forth in Section 5.1(e).
"Offer" shall have the meaning set forth in Section 2.2.
"Offer Notice" shall have the meaning set forth in Section 5.1(a).
"Offer Period" shall have the meaning set forth in Section 5.1(b).
"Offeree" shall have the meaning set forth in Section 5.1(a).
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"Person" shall mean any individual, corporation, association, partnership,
joint venture, trust, business or other entity or organization of any kind or
Governmental Authority.
"Proposed Purchaser" shall have the meaning set forth in Section 3.2.
"Proposed Sale" shall have the meaning set forth in Section 5.1(a).
"Qualified Public Offering" shall mean a firm underwritten offering or
offerings of Common Stock under one or more effective registration statements
under the Securities Act such that, after giving effect thereto, (i)(x) at least
10% of the number of shares of Common Stock on a fully diluted basis has been
publicly distributed and sold pursuant to such offerings, and (y) such offerings
result in aggregate cash proceeds being received by the Company of at least
$20,000,000 exclusive of underwriter's discounts and other expenses or (ii) such
other public offering or offerings of Common Stock as shall be designated as
such by a majority of the Board of Directors.
"Restricted Securities" shall have the meaning set forth in Rule 144 of the
Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Securities and
Exchange Commission thereunder, all as the same shall be in effect at the time.
"Selling Group" shall mean any combination of Stockholders who own, in the
aggregate, at least 85% of the Common Stock at the time outstanding on a fully
diluted basis.
"Selling Stockholder" shall mean, individually or collectively, any
Stockholder or group of Stockholders that proposes to Transfer Company
Securities in a Tag-Along Sale.
"Stockholders" shall have the meaning set forth in the Preamble.
"Subsidiary" or Subsidiaries" shall mean as to any Person, any other Person
of which at least 50% or more of the voting power of the voting equity
securities or equity interest is owned, directly or indirectly, by such first
Person.
"SWWT Stockholders" shall mean those Stockholders who were equity holders
of the Company immediately prior to the consummation of the Merger.
"SVT Stockholders" shall mean Xxxxxx Xxxxx, Xxxx Xxxxxx, and Xxx
Xxxxxxxxxxx.
"Tag-Along Notice" shall have the meaning set forth in Section 3.2.
"Tag-Along Purchase Offer" shall have the meaning set forth in Section 3.2.
"Tag-Along Sale" shall have the meaning set forth in Section 3.1.
"Target Shares" shall have the meaning set forth in Section 3.2.
"Transfer" shall have the meaning set forth in Section 2.1.
"VAW" shall mean Xxxxxxx X. Xxxxx.
(b) References herein to the Common Stock outstanding "on a fully diluted
basis" at any time shall mean the number of shares of Common Stock then issued
and outstanding, assuming full conversion, exercise, and exchange of all
outstanding Company Securities.
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ARTICLE II
RESTRICTIONS ON TRANSFER
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Section 2.1 General Restriction on Transfer. (a) Subject to Section 2.5,
each of the Stockholders agrees that he, she or it will not in any way sell,
transfer, pledge, encumber, mortgage, hypothecate, assign, or otherwise dispose
of any Company Securities or any right or interest therein, whether voluntarily
or involuntarily, or by operation of law (each of the foregoing transactions is
hereinafter referred to as a "Transfer"), except that any such Stockholder may
effect a Transfer in a transaction otherwise permitted by and in compliance with
the terms of this Agreement. Notwithstanding the foregoing, (x) the terms of
this Section 2.1 shall not preclude or prevent Xxxxxx Xxxxx from pledging or
encumbering Company Securities or any right or interest therein, and (y) no
Stockholder shall be permitted to Transfer more than 20% of Company
Securitiesheld by such Stockholder as of the date hereof except pursuant to
Articles III and IV.
Section 2.2 Transfer Restriction; First Offer Rights. If any Stockholder
desires to dispose of any shares of Company Securities prior to the termination
of Section 2.1 or this Section 2.2, such Stockholder shall first deliver to the
Company and the other Stockholders a written notice (the "Offer") offering to
sell such shares to the other Stockholders and specifying the price and terms
upon which the Stockholder proposes to sell. The other Stockholders shall have
20 days after the date of the delivery of such notice to accept such Offer, as
they agree, or if they cannot agree, pro rata, by giving written notice of
acceptance to the offering Stockholder and the Company. If such Offer is not
accepted in full by the other Stockholders prior to the expiration of such
20-day period, the Company may accept the Offer as to those shares not accepted
by the other Stockholders. Acceptance by the Company shall be by written notice
to the Stockholders within 20 days after the expiration of the Offer to the
other Stockholders. If the Offer is accepted as to all shares offered, then as
soon as practicable but in any event within 20 days after acceptance is
complete, the accepting Stockholders, and the Company, if applicable, shall pay
the purchase price to such offering Stockholder against delivery of certificates
for the shares of Common Stock, each duly endorsed to the purchaser thereof, or
accompanied by a duly executed instrument of transfer to the purchaser thereof.
If such Offer is not accepted in full by the Stockholders or the Company prior
to the expiration of the applicable 20-day period, the offered shares may not be
sold. Notwithstanding the foregoing, the provisions of this Section 2.2 shall
not apply to any transfer by any Stockholder pursuant to Section 2.4 nor to any
transfer to the Company, which transfers may be made without restriction.
Section 2.3 Sales by the Company. Anything contained in this Agreement to
the contrary notwithstanding, any shares of Company Securities purchased by the
Company pursuant to this Agreement, may be reissued or sold by the Company,
provided that (a) the Board of Directors shall have approved such reissue or
sale as may be required hereunder, (b) any Person who purchases such Common
Stock shall agree to be bound by the terms and provisions of this Agreement and
execute the Joinder referenced in Section 7.1, and (c) any such reissue or sale
shall be made in compliance with all Federal and state securities laws in effect
at the time.
Section 2.4 Permitted Transfers. (a) Notwithstanding the general
restriction on Transfers contained in Section 2.1, any Stockholder who is a
natural person may transfer any Common Stock (a) by will or intestacy to any
member of the family of such Stockholder upon the death of such Stockholder
(provided that this exception shall not apply to any subsequent transfers by the
transferee of such Common Stock), (b) to a trust created for the benefit of one
or more members of the family of such Stockholder or (c) to any other initial
Stockholder already a party to this Agreement. For purposes of this Section 2.4,
the term "family" shall mean any parents, spouses, descendants (including
adopted children) and spouses of descendants.
(b) Notwithstanding the general restriction on Transfers contained in
Section 2.1, any Stockholder that is a corporation, partnership, limited
liability company or other business entity may transfer any Common Stock (i) to
a subsidiary or parent of such Stockholder, (ii) to directors, officers or
employees of such Stockholder, or (iii) to any other initial Stockholder already
a party to this Agreement.
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(c) Any transferee of Common Stock pursuant to this Section 2.4 shall be
required to acknowledge in writing, as a condition to such transfer, that such
transferee is familiar with the provisions of this Agreement and agrees to be
bound thereby and executes a Joinder Agreement referenced in Section 7.1.
Section 2.5 Termination of Effectiveness of Article. The provisions of
Sections 2.1 and 2.2 shall terminate and cease to be applicable immediately
following the earlier to occur of (a) a Qualified Public Offering, and (b) the
date which is 18 months after the effective date of the Shelf Registration
Statement contemplated by the Registration Rights Agreement executed pursuant to
the terms of the Merger Agreement; provided, however, that upon the affirmative
vote of a majority of the Class A Directors, the Class B Director and the Class
C Director (as defined herein), the Company may accelerate or extend the date
upon which Sections 2.1 or 2.2 shall terminate; provided, further, that under no
circumstances shall such provisions terminate earlier than September 30, 2002.
Section 2.6 Legend. (a) Each certificate of Company Securities held by any
Stockholder representing Restricted Securities shall bear the following legend:
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT
BE SOLD OR TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT
COVERING SUCH SECURITIES OR SUCH SALE OR TRANSFER IS EXEMPT FROM THE
REGISTRATION AND PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT AND ANY SIMILAR
REQUIREMENTS OF ANY APPLICABLE STATE SECURITIES LAW."
(b) Each certificate of Company Securities held by any Stockholder whether
representing Restricted Securities or not shall bear the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS SET FORTH IN A STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY __,
2002, A COPY OF WHICH IS AVAILABLE UPON REQUEST FROM THE SECRETARY OF THE
COMPANY."
(c) If any Company Securities becomes eligible for sale pursuant to Rule
144(k) promulgated under the Securities Act, which sale is otherwise permitted
by the terms of this Agreement, the Company shall, subject to applicable law and
upon the request of any holder of such securities eligible for sale, remove the
legend set forth in Section 2.6(a) from the certificates evidencing the shares
of any such securities held by such holder. In addition, in connection with any
Transfer of shares of any Company Securities pursuant to any public offering
registered under the Securities Act or pursuant to Rule 144 (or any similar rule
or rules then in effect promulgated under the Securities Act) if such rule is
available, the Company shall promptly upon such Transfer deliver new
certificates for such securities which do not bear the legend set forth in
Section 2.6(a). In order to remove the legend if requested hereunder, the
Company may require such Stockholder to provide the Company with an opinion of
counsel, in form and by counsel satisfactory to the Company, that removal of
such legend complies with the Securities Act.
Section 2.7 After-Acquired Securities. If, after the date hereof, any
Stockholder acquires additional Company Securities, such securities so acquired
shall be subject to all the terms and provisions of this Agreement.
ARTICLE III
RIGHT TO JOIN IN SALE
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Section 3.1 Tag-Along Rights. (a) Subject to the provisions of Section 3.2
hereof, if at any time any Stockholder or group of Stockholders proposes, in a
single transaction or a series of related transactions, to
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Transfer Company Securities representing in excess of 30% of the Common Stock
outstanding on a fully diluted basis to any Person or group of Persons
(including the Company or any of its Subsidiaries), no such Selling Stockholder
shall effect such Transfer unless, prior to the consummation thereof, the
Non-Selling Stockholders shall have been afforded the opportunity to join in
such Transfer as provided in Section 3.2 hereof. Any such proposed Transfer
described in the previous sentence is referred to herein as a "Tag-Along Sale."
Section 3.2 Procedures. No less than 20 days prior to the consummation of
any Transfer subject to Section 3.1 hereof, the Selling Stockholders shall
provide written notice (the "Tag-Along Notice") of the Tag-Along Sale to each
Non-Selling Stockholder and to the Company, which notice shall specify the
number of shares proposed to be acquired in the Tag-Along Sale, the
consideration per share, the identities of the Person or group of Persons (the
"Proposed Purchaser") that proposes to acquire Company Securities in such a
Transfer, and all other material terms and conditions of the Tag-Along Sale. The
Tag-Along Notice shall also include a written offer from the Proposed Purchasers
(the Tag-Along Purchase Offer") to each Non-Selling Stockholder to acquire out
of the total number of shares of Common Stock (assuming full conversion,
exercise or exchange of all such Company Securities immediately prior to such
Tag-Along Sale) proposed to be acquired in the Tag-Along Sale (the "Target
Shares") such number of shares equal to the product obtained by multiplying (x)
the total number of Target Shares by (y) a fraction, the numerator of which is
the total number of shares of Common Stock (including shares of Common Stock
issuable upon exercise, conversion or exchange of Company Securities) owned by
such Non-Selling Stockholders on the date that the Tag-Along Purchase Offer is
made and the denominator of which is the total number of shares of Common Stock
(including shares of Common Stock issuable upon exercise, conversion or exchange
of any Company Securities) owned on such date by all the Non-Selling
Stockholders and the Selling Stockholders on such date. Such offer by the
Proposed Purchaser shall be made at the same price and on the same terms and
conditions as the offer by the Proposed Purchaser to the Selling Stockholders.
Each Non-Selling Stockholder shall have 15 days from its receipt of the
Tag-Along Notice and Tag-Along Purchase Offer in which to accept the Tag-Along
Purchase Offer.
ARTICLE IV
DRAG-ALONG RIGHTS
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Section 4.1 Drag-Along Rights. Without limiting the right of any
Non-Selling Stockholder to exercise its rights under Article III hereof in
respect of a Tag-Along Sale, in the event that a Selling Group proposes to enter
into a Drag-Along Sale, the Selling Group shall have the right (the "Drag-Along
Right"), exercisable by delivery of 20 day's prior written notice to the
Non-Selling Stockholders (the "Drag-Along Notice"), to compel each of the
Non-Selling Stockholders to sell all, but not less than all, of their Company
Securities (the "Drag-Along Shares"), on the same terms and for the same price
as are being offered in such Drag-Along Sale. The Drag-Along Notice shall
specify the terms of the Drag-Along Sale, including the consideration per share
to be paid, the identities of the proposed acquirer(s), the calculation of the
Fair Market Value (subject to Section 4.2 below), the anticipated closing date
and all other material terms and conditions.
Section 4.2 Drag-Along Sale. The term "Drag-Along Sale" shall mean a
transaction that meets all of the following requirements: (i) a proposed sale,
transfer or other disposition of 100% of the Company Securities outstanding by
way of merger, consolidation or otherwise, (ii) to a Person or group of Persons,
in a single or related series of transactions, who are not individually or
collectively Affiliates of the Company or any Stockholder, and (iii) at an
aggregate purchase price (net of transaction expenses and of liabilities of the
Company and its Subsidiaries required to be paid from the proceeds of such
purchase price) that is not less than Fair Market Value as of the date of the
receipt of such written notice by the Non-Selling Stockholders (the "Drag-Along
Notice Date"); provided, however, that if the members of the Selling Group own,
in the aggregate, at least 85% of the Common Stock at the time outstanding on a
fully diluted basis, the proposed transaction shall be deemed for purposes of
this Section 4.2 to have an aggregate purchase price not less than Fair Market
Value. The purchase from and sale by the Non-Selling Stockholders of the
Drag-Along Shares
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shall be consummated simultaneously with the consummation of, and shall be on
the same terms and for the same price as, the Drag-Along Sale, and the Selling
Group shall give the Non-Selling Stockholders at least 20 days written prior
notice of the date of the Drag-Along Sale.
ARTICLE V
PREEMPTIVE RIGHTS
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Section 5.1 Preemptive Rights. (a) If, at any time on or after the date
hereof and prior to the consummation of a Qualified Public Offering, the Company
shall propose to sell or issue any New Securities to any Person (a "Proposed
Sale"), then the Company shall, at least 30 days prior to the Proposed Sale,
give each Stockholder (an "Offeree") a notice (the "Offer Notice") of the
Proposed Sale (it being understood that the Offer Notice also shall contain full
particulars of the Proposed Sale, including the identity of the proposed
beneficial and record owners of the New Securities and the purchase price per
New Security).
(b) In the Offer Notice, the Company shall offer to each Offeree, subject
to consummation of the Proposed Sale, for 15 Business Days commencing on the
date of receipt by such Offeree of the Offer Notice (the "Offer Period"), the
opportunity to purchase from the Company on the same terms and conditions as the
Proposed Sale as specified in the Offer Notice up to that number of the New
Securities equal to the product of (i) the quotient determined by dividing the
number of shares of Common Stock held by such Offeree (assuming full conversion,
exercise and exchange of all Company Securities owned by it) by the number of
shares of Common Stock outstanding on a fully diluted basis, and (ii) the number
of New Securities to be sold or issued in the Proposed Sale.
(c) If any Offeree elects to accept the offer to purchase any New
Securities pursuant to paragraph (b) above, the purchase price and material
terms for the New Securities shall be the same purchase price per share and
material terms of such New Securities as are issued under the Proposed Sale.
(d) If any Offeree elects to accept the offer to purchase any New
Securities, such Offeree shall: (i) so signify within the Offer Period by notice
to the Company, which notice shall indicate the number of the New Securities
that such Offeree elects to purchase, and (ii) deliver the purchase price to the
Company on the date of the Proposed Sale.
(e) If the number of New Securities proposed to be sold or issued in the
Proposed Sale is increased or any of the price, terms or conditions is changed
in a manner more favorable to the proposed purchaser under the Proposed Sale,
then, whether or not such Offeree previously has accepted the offer to purchase
contained in the Offer Notice, the Company shall notify each Offeree of any such
change (a "Notice of Change"). Each Offeree thereupon shall have the later of
(A) 10 Business Days after receipt of such Notice of Change and (B) 15 Business
Days after receipt of the original Offer Notice within which to accept the
initial offer as so changed. Any New Securities so offered that are not
purchased by the Offerees pursuant to such offer may be sold by the Company, but
only on the terms and conditions set forth in the Offer Notice, at any time
within one hundred twenty (120) days following the termination of the
above-referenced fifteen (15)-business day period.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
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Section 6.1 Corporate Stockholders' Representations and Warranties. (i) The
Company represents and warrants to the Stockholders, and (ii) the Stockholders
(other than the individual Stockholders) represent and warrant, severally and
not jointly, to the Company and the other Stockholders, in each case as to
itself, that:
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(a) Organization and Corporate Power. Such corporation or other legal
entity is a corporation or legal entity duly organized, validly existing and in
good standing under the laws of its respective jurisdiction of incorporation or
organization.
(b) No Breach. None of the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and compliance with the
terms and provisions hereof by such corporation or legal entity will conflict
with or result in a breach of, or require any consent under, the certificate of
incorporation or by-laws of such corporation or other organizational documents,
or any applicable law or regulation, or any order, writ, injunction or decree of
any court or Governmental Authority binding on such corporation or legal entity,
or any agreement or instrument to which such corporation is a party or by which
it is bound or to which it is subject, or constitute a default under any such
agreement or instrument.
(c) Corporate Action. Such corporation or legal entity has all necessary
power and authority to execute, deliver and perform its obligations under this
Agreement; the execution, delivery and performance by such corporate or legal
entity of this Agreement have been duly authorized by all necessary action
(including all stockholder or comparable action) on the part of such party; and
this Agreement has been duly executed and delivered by such corporation or legal
entity and constitutes the legal, valid and binding obligation of such
corporation or legal entity, enforceable against it in accordance with its
terms, except as limited by bankruptcy, insolvency or other similar laws
effecting the enforcement of creditors' rights in general and subject to general
principles of equity.
(d) Approvals. No authorizations, approvals or consents of, and no filings
or registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by such corporation or legal entity of this
Agreement or for the validity or enforceability hereof.
Section 6.2 Individual Stockholders' Representations and Warranties. Each
of the individual Stockholders represents and warrants to the Company and the
other Stockholders, as to himself or herself, that:
(a) Legal Capacity and Authority. Each such individual has full legal
capacity and authority to execute, deliver and perform such individual's
obligations under this Agreement, and this Agreement has been duly executed and
delivered by such individual and constitutes a legal, valid and binding
obligation of such individual, enforceable against such individual in accordance
with its terms, except as limited by bankruptcy, insolvency or other similar
laws effecting the enforcement of creditors' rights in general and subject to
general principles of equity.
(b) No Breach. None of the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated and compliance with the
terms and provisions hereof by such individual Stockholder will conflict with or
result in a breach of any applicable law or regulation, or any order, writ,
binding on such individual, or any agreement or instrument to which such
individual is a party or by which it is bound or to which he or she is subject
or constitute a default under any such agreement or instrument.
(c) Approvals. No authorizations, approvals or consents of, and no filings
or registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by such individual of this Agreement.
ARTICLE VII
ADDITIONAL COVENANTS
--------------------
Section 7.1 Stockholder Covenants. (a) The Selling Stockholder shall use
commercially reasonable efforts to obtain the agreement of the Proposed
Purchaser to the participation of each Non-Selling Stockholder in any Tag-Along
Sale in accordance with and to the extent provided in Article III, and the
Selling
9
Stockholder shall not Transfer any Company Securities to a Proposed Purchaser in
such a transaction if any such transferee declines to allow such participation
by such Non-Selling Stockholders.
(b) Without limiting the provisions of Section 7.1(a), with the exception
of Transfers pursuant to the drag-along provisions of Article IV, no Stockholder
shall Transfer any Company Securities to any transferee that has not signed and
delivered to the Company a Joinder Agreement substantially in the form of
Schedule A hereto.
Section 7.2 Company Covenants. (a) The Company will not deliver a
certificate evidencing any Company Security being sold in a transaction (i)
requiring that a Tag-Along Purchase Offer be made unless the Proposed Purchaser
shall have in fact made a Tag-Along Purchase Offer in accordance with the
provisions of Section 3.2 hereof, (ii) requiring that any transferee of a
Stockholder execute a Joinder Agreement unless such transferee shall have in
fact executed and delivered to the Company the appropriate Joinder Agreement as
provided in Section 7.1 (b) hereof.
ARTICLE VIII
ORGANIZATIONAL MATTERS; CORPORATE GOVERNANCE
--------------------------------------------
Section 8.1 Board of Directors. (a) The Stockholders hereby agree that,
from and after the Effective Time (as such term is defined in the Merger
Agreement), the Board of Directors shall consist of seven (7) directors, which
directors shall be designated and elected as follows: (i) the SVT Stockholders
shall have the right to designate and submit to the stockholders or the Board of
Directors, as applicable, for election five of such directors (the "Class A
Directors"); (ii) ERV shall have the right to designate and submit to the
stockholders or the Board of Directors, as applicable, for election one of such
directors (the "Class B Director"); and (iii) MCG shall have the right to
designate and submit to the stockholders or the Board of Directors, as
applicable, for election one of such directors (the "Class C Director"). The
initial Class A Directors shall be Xxxxxx Xxxxx, Xxxx Xxxxxx, and Xxx
Xxxxxxxxxxx; the initial Class B Director shall be Xxxxxx Xxxxxxx; the initial
Class C Director shall be VAW; and the remainder of the Class A Directors shall
be designated and elected after the Effective Time.
(b) Each Stockholder hereby agrees that, during the term of this Agreement,
he, she or it each shall take all such actions to effect the election at any
regular or special meeting of Stockholders called for the purpose of electing
directors of the Company, or in any written consent in lieu of such a meeting,
of the designees duly designated by the parties referenced in Section 8.1(a),
including, but not limited to, the voting of all of their stock for such
purpose. Notwithstanding any other provision of the Agreement to the contrary,
the Company and the Board of Directors of the Company hereby agrees to take any
and all such actions required, permitted, or necessary to cause such designees
to be elected or appointed to the Board of Directors, including calling, or
causing the appropriate officers or directors of the Company to call, a regular
or special meeting of stockholders of the Company to ensure the election to or
removal from the Board of Directors of any person or persons so designated to be
so elected or to be so removed therefrom in accordance with the terms of this
Agreement and soliciting proxies in favor of the election of such person.
(c) If a Class A Director, Class B Director or Class C Director shall die,
resign or be removed prior to the expiration of his term as a director, the
party or parties that had the right to designate and have elected such director
shall promptly elect a replacement director, and the Stockholders shall effect
the election to the Board of Directors of such replacement designee to fill the
unexpired term of the director whom such new designee is replacing. The rights
of the SVT Stockholders, MCG and ERV hereunder to designate and elect directors
are not assignable.
(d) The Stockholders hereby agree that, at any regular or special meeting
called for the purpose of removing directors of the Board of Directors, or in
any written consent executed in lieu of such a meeting of Stockholders (i)(A)
the SVT Stockholders shall have the right to remove any Class A Director with
10
or without cause, (B) ERV shall have the right to remove a Class B Director with
or without cause; and (C) MCG shall have the right to remove a Class C Director
with or without cause; and (ii) none of the SVT Stockholders, MCG or ERV shall
have any right to remove or cause to be removed any director designated by any
such other party, except that any director may be removed (x) by the affirmative
vote of at least a majority of the other directors of the Board of Directors,
but only for cause, or (y) by the affirmative vote of all the other directors
(not just a quorum) of the Board of Directors. For the purposes of this Section
8.1(d), the term "cause" shall mean the commission by a director of an act of
fraud or embezzlement against the Company or any of its Subsidiaries, or a
conviction of a felony (or a guilty plea or a plea of nolo contendere related
thereto). Each Stockholder agrees to vote all of his, her or its shares of
Company securities having voting power (and any other shares over which he, she
or it exercises voting control) for the removal of any Director upon the request
of the party nominating such Director and for the election to the Board of
Directors of a substitute nominated by such party in accordance with the
provisions of Section 8.1(a) hereof.
(e) The Stockholders agree that in the event that the size of the Board of
Directors shall be increased at any time, the parties referenced in Section 8.1
shall have the right to at least proportionate representation on the Board of
Directors following such increase based on the composition of the Board of
Directors as between such parties immediately prior to such increase; provided,
however, that in no event shall the Board of Directors consist of more than
eleven directors.
(f) The Company hereby agrees that, from and after the Effective Time, and
subject to this Section 8.1, the Company shall cause (i) each person designated
by the parties referenced in this Section 8.1 to be included (consistent with
applicable law and the Restated Certificate of Incorporation and Bylaws) in the
group of nominees who are recommended for election as directors by the Company
to the stockholders following the date on which such person is so designated by
such party, and at each succeeding meeting of stockholders of the Company when
directors are to be elected, and (ii) at a special meeting of the Board of
Directors held as soon as practicable after the creation of any vacancy as a
result of the death, resignation or removal of Director, the appointment of such
person as is designated by such party to fill any such vacancy if a special
meeting is required to effect such appointment.
(g) Neither the Company nor any Stockholder shall and neither shall permit
its Affiliates to, solicit proxies (as such terms are used in the proxy rules of
the Securities and Exchange Commission) of the stockholders of the Company to
vote against any of the designees so designated in accordance with Section 8.1
or for the approval of any stockholder or other proposals that are inconsistent
with the rights afforded the parties pursuant to this Agreement.
(h) In addition to any compensation to which the members of the Board of
Directors may be entitled, the Company shall reimburse each Director for the
reasonable out-of-pocket expenses incurred by such Director. In addition, the
Company shall obtain and maintain at all times during which this Agreement
remains in effect, at the cost and expense of the Company, director liability
insurance policies covering each member of the Board of Directors.
Section 8.2 Committees. Subject to any law or stock exchange rule
prohibiting committee membership by Affiliates of the Company, each of the
parties referenced in Section 8.1 shall be entitled to at least proportionate
representation (and in any event not less than one) on any committee of the
Board of Directors based on the composition of the Board of Directors.
Section 8.3 Voting Matters. (A) In addition to any vote or consent of the
Board of Directors or its stockholders required by law or the Restated
Certificate of Incorporation, the affirmative vote of either the Class B
Director and the Class C Director, which affirmative vote shall not be
unreasonably or improperly withheld by such directors, shall be necessary for
authorizing, effecting or validating any of the following actions; provided,
however, that such necessary approval shall not relieve any such director from
his or her fiduciary duties to the Company:
11
(a) the Company or any Subsidiary (A) increasing or decreasing the
authorized capital, including the splitting, combination, or subdivision of any
capital stock, (B) creating or authorizing any class of capital stock, (C)
issuing any additional shares of capital stock or rights to acquire capital
stock, or (D) repurchasing or redeeming any shares of capital stock, or (E)
declaring or paying any dividend in respect of such capital stock, whether such
dividend is payable in cash, shares of capital stock or other property;
(b) the hiring by the Company or any Subsidiary of the Company of any Chief
Executive Officer, Chief Financial Officer, Chief Operating Officer, or Chief
Technology Officer or the entering into of any new or amendment of any existing
employment or severance agreement or any change of control agreement with any
such party;
(c) (A) the sale, lease, transfer or other conveyance (including pledging
or allowing a lien to exist), or permitting any Subsidiary to sell, lease,
transfer or otherwise convey (including pledging or allowing a lien to exist),
in a single transaction or related series of transactions, all or substantially
all assets of the consolidated assets of the Company and its Subsidiaries, (B)
the consolidation or merger with, or permitting any Subsidiary to consolidate or
merge with, any Person, or (C) the taking or instituting of any proceedings
relating to bankruptcy, or the dissolution, liquidation or winding-up of the
Company or permitting any Subsidiary to take or institute any proceedings
relating to bankruptcy, or dissolving, liquidating or winding-up such
Subsidiary;
(d) the entering into by the Company, or the Company permitting any
Subsidiary to enter into, any material transaction with any of their officers,
directors or Affiliates, except transactions (x) entered into in the ordinary
course of business in good faith, (y) on fair and reasonable terms no less
favorable to the Company or its Subsidiary than it would obtain in a comparable
arm's length transaction with a Person not an Affiliate and (z) the terms of
which have been previously disclosed to the Class B Director;
(e) the acquisition of, or permitting any Subsidiary to acquire, in one
transaction or a series of related transactions, and by means of merger,
consolidation, or otherwise, any capital stock, other equity interest (with
economic, voting, or other beneficial interests) or assets of, or any direct or
indirect ownership of, any Person or the making of any investments, loans,
advances or extensions of credit to any Person, or the creation of any
Subsidiary in which the Company has an economic interest;
(f) except as expressly contemplated by this Agreement, amending the
Restated Certificate of Incorporation, or the Company's Bylaws, or filing any
resolution of the Board of Directors with the Secretary of State of the State of
Delaware containing any provisions that would, adversely affect or otherwise
impair the rights of the holders of the Common Stock or would be inconsistent
with the provisions of this Agreement;
(g) directly or indirectly borrow or incur or agree to borrow or incur any
indebtedness or liability for borrowed money or guarantee such indebtedness or
enter into any agreement to become contingently liable, by guaranty or
otherwise, for the obligations or indebtedness of any Person or make or commit
to make any loans, advances or capital contributions to, or investments in, any
Person or to any other Person, or refinance or restructure any existing loan;
provided, however, that this clause (vii) shall exclude (i) the incurrence of
trade indebtedness or contingent liabilities in the ordinary course of business,
and (ii) the making of bank deposits and other investments in marketable
securities and cash equivalents made in the ordinary course of business and
consistent with past practice;
(h) the entering into, or permitting of any Subsidiary to enter into, any
agreement to do or effect any of the foregoing.
(B) Effective upon the Closing of the Merger Agreement, Xxxxxx Xxxxx will
be appointed President and Chief Executive Officer of the Company and Xxxx
Xxxxxx will be appointed Chief Operating Officer of the Company. Promptly after
the Closing of the Merger, the Company will commence a search
12
process to identify candidates for the positions of Chief Financial Officer and
Chief Technology Officer of the Company.
Section 8.4 Board Meetings. The Board shall hold, during the term of this
Agreement, regularly scheduled, in-person meetings no less frequently than six
times per year.
Section 8.5 Certificate of Incorporation; Bylaws. After the date hereof,
the Company and the Stockholders shall take or cause to be taken all lawful
action necessary to ensure at all times as of and following the Effective Time
that the Restated Certificate of Incorporation and Bylaws of the Company are not
inconsistent with the provisions of this Agreement or the transactions
contemplated hereby, including the provisions of this Article VIII.
Section 8.6 Miscellaneous. To effectuate the provisions of this Article
VIII, each Stockholder hereby agrees that when any action or vote is required to
be taken by such Stockholder, such Stockholder shall use his or her best efforts
to call, or cause the appropriate officers and directors of the Company to call,
a special or annual meeting of stockholders of the Company, as the case may be,
or execute or cause to be executed a consent in writing in lieu of any such
meetings to effectuate such stockholder action. The Company shall provide to
each party entitled to designate directors hereunder prior written notice of any
intended mailing of notice to stockholders for a meeting at which action
regarding directors is to be taken, and any party entitled to designate
directors pursuant hereto shall notify the Company in writing, prior to such
mailing, of the person(s) designated by it or them as its or their nominee(s)
for election as director(s). If any party entitled to designate directors
hereunder fails to give notice to the Company as provided above, it shall be
deemed that the designee of such party then serving as director shall be its
designee for reelection.
ARTICLE IX
MISCELLANEOUS
-------------
Section 9.1 Duration of Agreement. Subject to Section 2.5, the rights and
obligations of the Company and each Stockholder under this Agreement shall
terminate on the earliest to occur of the following: (a) the bankruptcy or
dissolution of the Company, (b) in connection with and immediately prior to the
consummation of a merger, consolidation, reorganization or other business
combination of the Company which results in the transfer of more than 50% of the
voting securities of the Company or the sale of all or substantially all of the
assets of the Company, (c) any single Stockholder becoming the owner of all the
Common Stock, or (d) the tenth anniversary hereof.
Section 9.2 Assignment. Except for the transfers permitted by Sections 2.1
through 2.4, this Agreement shall not be assigned by the Company or any
Stockholder by operation of law or otherwise without the prior written consent
of the other parties; provided, however, that the transfers permitted by
Sections 2.1 through 2.4 shall not be precluded by this Section 9.2.
Section 9.3 Specific Performance, Etc. The Company and each Stockholder, in
addition to being entitled to exercise all rights provided herein, in the
Company's Restated Certificate of Incorporation, or granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The Company and each Stockholder agree that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by it of the provisions of this Agreement and hereby agree to waive the
defense in any action for specific performance that a remedy at law would be
adequate.
Section 9.4 Governing Law. This Agreement shall be governed by and
construed in accordance with the internal law of the State of Delaware without
giving effect to the conflict of laws provisions thereof.
13
Section 9.5 Interpretation. The headings of the sections contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement. The words "herein," "hereunder" and words of similar import shall be
deemed to refer to this Agreement as a whole and not to individual paragraphs,
subparagraphs, sections or subsections hereof.
Section 9.6 Notices. Any notice or other communication required or
permitted hereunder shall be in writing and shall be delivered personally, sent
by facsimile transmission or sent by certified, registered or express mail,
postage prepaid, or by overnight delivery service. Any such notice shall be
deemed given when so delivered personally, sent by facsimile transmission or
overnight mail or, if mailed, three (3) business days after the date of deposit
in the United States mail, by certified mail return receipt requested, as
follows:
(a) If to the Company to:
SVT, Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxx & Xxxxxxx
0 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx
(b) If to any Stockholder, to the address indicated on Annex A.
Any party may change its address for notice by written notice to the other
parties in accordance with this provision.
Section 9.7 Inspection and Compliance With Law. Copies of this Agreement
will be available for inspection or copying by any Stockholder at the offices of
the Company through the Secretary of the Company.
Section 9.8 Amendments and Waivers. This Agreement may not be amended, and
no provision hereof may be waived, orally. This Agreement may be amended, and
the taking of any act required hereunder may be waived, by the prior written
consent of the Company and Stockholders holding 80% or more of the shares of
Common Stock held by all Stockholders at the time; provided, however, that any
amendment or waiver of this Section 9.8 shall require the prior written consent
of the Company and each Stockholder at the time such amendment or waiver is
sought. No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as waiver of any preceding or succeeding breach and no failure by any
party to exercise any right or privilege hereunder shall be deemed a waiver of
such party's rights or privileges hereunder or shall be deemed a waiver of such
party's rights to exercise the same at any subsequent time or times hereunder.
Section 9.9 Transfer Void. Any Transfer of any security of the Company in
violation of the terms of this Agreement shall be null and void and the Company
covenants and agrees that it will not register or otherwise recognize a Transfer
(whether for the purposes of shareholder voting or in connection with the
14
distribution of dividends or other corporate assets, or for any other purpose)
of any Company Securities that it has reason to believe was effected in
violation of this Agreement.
Section 9.10 Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
Section 9.11 Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
Section 9.12 Binding Effect; No Third Party Beneficiaries. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and permitted assignees, legal representatives
and heirs. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations, or liabilities under or by reason of
this Agreement, except as expressly provided in this Agreement. The
administrator, executor or legal representative of any deceased, juvenile or
incapacitated Stockholder shall have the right to execute and deliver all
documents and perform all acts necessary to exercise and perform the rights and
obligations of such Stockholder under the terms of this Agreement.
Section 9.13 Confidentiality. Each of the Stockholders hereby agrees that
he, she or it shall hold in confidence all financial, business and other
confidential information that he, she or it obtains from the Company (excluding
information which is a matter of general public data or knowledge which has
heretofore been or is hereafter published for public distribution or filed with
any Governmental Authority, in each case other than in violation of this Section
9.13), and will not disclose such information to others without the prior
written consent of the Company, except as may be required by law and then only
after having notified the Company of the planned disclosure.
Section 9.14 Entire Agreement. This Agreement constitutes the entire
Agreement between the parties with respect to the subject matter hereof, and
shall supersede all previous oral and written (and all contemporaneous oral)
negotiations, commitments, agreements and understandings relating hereto.
Section 9.15 Counterparts. This Agreement may be executed in two or more
counterparts each of which shall be deemed to be an original and all of which
when taken together shall be deemed to constitute one and the same agreement.
Section 9.16 No Other Agreements. Each Stockholder represents that it has
not granted and is not a party to any proxy, voting, voting trust, or other
agreement that is inconsistent with or in any way conflicts with the provisions
of this Agreement, and no holder of Securities shall grant any proxy or become
party to any such other agreement that is inconsistent with or conflicts with
the provisions of this Agreement.
Section 9.17 Indemnification. (a) ERV hereby agrees to indemnify, defend
and hold harmless the SVT Stockholders and the Company from and against all
claims, demands, suits, liabilities, losses, damages and proceedings
(collectively, "Claims") arising from the existence on the Closing Date of any
outstanding shares of capital stock, options, warrants or convertible securities
of the Company not fully disclosed in the Certificates delivered at Closing
pursuant to Section 6.3(o) of the Merger Agreement; provided, that the liability
of ERV under this Section 9.17(a) shall be limited to an amount equal to the
fair market value of the common stock of the Company held by ERV as of the
Closing Date; provided, further, that the provisions of this Section 9.17(a)
shall terminate on the first anniversary of the date hereof;
15
(b) The Company hereby agrees to indemnify, defend and hold harmless the
SWWT Stockholders from and against all Claims arising from the existence on the
Closing Date of any outstanding shares of capital stock, options, warrants or
convertible securities of SVT not fully disclosed in the Certificates delivered
at Closing pursuant to Section 6.2(e) of the Merger Agreement; provided, that
the provisions of this Section 9.17(b) shall terminate on the first anniversary
of the date hereof.
[Signature Pages Follow]
16
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SWWT, INC.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx Xxxxxxxx
Title: President
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
----------------
Xxxxxx Xxxxx
XXX XXXXXXXXXXX
/s/ Xxx Xxxxxxxxxxx
-------------------
Xxx Xxxxxxxxxxx
XXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx
---------------------
Xxxx X. Xxxxxxxxx
17
XXXXXX X. XXXXXXXXX XX.
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
----------------------------
Xxxxxx X Xxxxxxxxx, Xx.
XXXXXXX XXXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxxx
----------------------
Xxxxxxx Xxxxxxxxxx
EAST RIVER VENTURES II, L.P.
By: /s/Xxxxxx X. Xxxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
ERV ASSOCIATES II, LLC
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Manager
CJM Associates, LLC
By: /s/ Xxxxxxx X. Xxxxx
---------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
MSD VENTURES, L.P.
By: /s/ Xxxx X. Xxxxxx
------------------
Name: Xxxx X. Xxxxxx
Title: General Counsel
VBM EQUITIES, LLC
By: /s/ J. Xxxxxxx Xxxxx
--------------------
Name: J. Xxxxxxx Xxxxx
Title: Manager
18
XXXXXXXX INVESTMENTS
LIMITED PARTNERS
By: /s/Xxxx X. Xxxxxxx
------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
MCG-SVT, LLC
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
FUNDUS INC.
By: /s/ Xxx Xxxxxxxxxxx
-------------------
Name: Xxx Xxxxxxxxxxx
Title: President
JNA Holdings Ltd.
By: /s/ Xxxxxx Xxxxxxxxxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxxxxxxxxx
Title: Authorized Signatory
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
------------------
Xxxxxxx Xxxxxx
19
ANNEX A
Name/Address
------------
(a) Xxxxxx Xxxxx
Xxxx Xxxxxx
Xxx Xxxxxxxxxxx
SVT, Inc.
00 Xxxx Xxxxxx
0xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
20
(b) Oscar Capital Management,LLC
Address
000 Xxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
(c) Xxxxxx X. Xxxxxxxxx, Xx.
Address
Oscar Capital Management
000 Xxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx, Xx.
Telecopy: (000) 000-0000
(d) Xxxxxxx Xxxxxxxxxx
Address
Oscar Capital Management
000 Xxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxxx
Telecopy: (000) 000-0000
(e) East River Ventures II, L.P.
Address
East River Ventures
000 Xxxxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
(f) ERV Associates II, LLC
Address
East River Ventures
000 Xxxxxxx Xxx.
00xx. Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Telecopy: (000) 000-0000
21
(g) CJM Associates, LLC
Address
New Economy Group, LLC
Xxx Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
(h) MSD Ventures, L.P.
Address
MSD Capital, LP
000 Xxxxx Xxxxxx
00xx. Xxxxx
Xxx Xxxx, XX 00000-0000
(i) VBM Equities, LLC
Address
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxx Xxxxx
(j) Huizenga Investments Limited Partners
Address
c/o Xxxxx Xxxxxxx
000 X. Xxx Xxxx Xxxx.
Xxxxx 0000
Xx. Xxxxxxxxxx, XX 00000
(k) MCG-SVT, LLC
Address
New Economy Group, LLC
Xxx Xxxxxxxxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telecopy: (000) 000-0000
22
(l) Fundus Inc.
Address
Caledonian House
GeorgeTown
Grand Cayman, Cayman Islands
(m) JNA Holdings Ltd.
Address
17 Gr. Xxxxxxxxxx Xxxxxx
X.X. Xxx 00000
0000 Xxxxxxxx, Xxxxxx
(x) Xxxx X. Xxxxxxxxx
Address
c/o Allen & Co.
000 0xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
(o) Xxxxxxx Xxxxxx
Address
23
Schedule A to
Stockholders Agreement
JOINDER AGREEMENT
JOINDER AGREEMENT, dated the date set forth below, by the transferee named
below (the "Transferee") of certain securities described below of SWWT, Inc., a
Delaware corporation (the "Company").
(A) Reference is made to that certain Stockholders Agreement, dated as
of ________ ____, 2002 (the "Stockholders Agreement"), among the Company
and certain of its stockholders. Each capitalized term used but not defined
herein shall have the meaning assigned to such term in the Stockholders
Agreement.
(B) Section 7.1(b) of the Stockholders Agreement requires that certain
transferees of Company Securities execute and deliver to the Company a
Joinder Agreement substantially in the form hereof as a condition to the
transfer of such Company Securities by an Stockholder to such transferees.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Transferee agrees that:
(C) The undersigned is a transferee of Company Securities transferred
by the Stockholder named below in accordance with the terms of the
Stockholders Agreement and acknowledges receipt of a copy of the
Stockholder Agreement.
(D) The undersigned accepts the transfer of Company Securities
described herein, makes the representations, warranties and covenants made
by Stockholders in the Stockholders Agreement and agrees to be a
Stockholder for all purposes of the Stockholders Agreement with respect to
such Company Securities, entitled to the rights and benefits and subject to
the duties and obligations of a Stockholder thereunder, as fully as if the
undersigned had been an original signatory thereto in such capacity.
IN WITNESS WHEREOF, the Transferee has signed this Joinder Agreement on the
date set forth below
[TRANSFEREE]
Date: ___________ __, 200_ _______________________________
Description of transferred
securities and name of transferor:
_______________________________
_______________________________
_______________________________
_______________________________
24
