STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT (this "Agreement") entered into on this 27th day of
December 1999, among and Xxxxxx Technologies, Inc., a Delaware Corporation
("Xxxxxx"), Xxxxx Xxxxxx and Xxxxx Xxxxxx (the "Stockholders") and Greystone
Funding Corporation ("Greystone").
W I T N E S S E T H:
WHEREAS, concurrently with the execution and delivery hereof, Xxxxxx
Technologies, Inc., a New York Corporation ("Xxxxxx New York") and Xxxxxx
(collectively, the "Debtors"), and Greystone are entering into a Loan Agreement
of even date herewith (the "Loan Agreement"), pursuant to which the Greystone
has agreed, subject to the terms and conditions thereof, to extend a line of
credit to the Debtors not to exceed $7,500,000 in principal amount outstanding
at any time, with all loans and advances thereunder (the "Advances") and
interest thereon to be evidenced by that certain line of credit promissory note
of the Debtors of even date herewith in such maximum principal amount payable to
the order of Greystone (the "Note"); and
WHEREAS, in order to induce Greystone to make the Advances pursuant to the
Loan Agreement and to be evidenced by the Note, the Debtors have agreed to take
all requisite corporate action to cause (i) a certain number of individuals
designated by Greystone (the "Greystone Designees") to be elected or reelected
to the Board of Directors of both Xxxxxx and Xxxxxx New York (the "Boards")
pursuant to the terms and conditions of the Loan Agreement, (ii) that such
Greystone Designees shall not be removed from the Boards, (iii) an individual
appointed by Greystone to be appointed to serve on the Compensation Committee
and the Audit Committee and (iv) to cause Xxxxxxx Xxxxxx to be appointed to the
office of President of Xxxxxx and shall not vote to remove him from such
position;
WHEREAS, Xxxxx Xxxxxx and Xxxxx Xxxxxx each individually own certain shares
of Common Stock of Xxxxxx and Xxxxxx owns all of the shares of Common Stock of
Xxxxxx New York; and
WHEREAS, Xxxxx Xxxxxx and Xxxxx Xxxxxx are directors of Xxxxxx and Xxxxxx
New York.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
SECTION 1. Definitions. In addition to the terms defined elsewhere herein,
when used herein the following terms shall have the meanings indicated:
(a) "Affiliate" means with respect to the Stockholder, any Person who,
directly, or indirectly through one or more intermediaries, is in control
of, is controlled by, or is under common control with, the Stockholder.
(b) "Beneficially Owned" means Stock owned by a Stockholder, or an
Affiliate or Family Member of that Stockholder.
(c) "Family Member" means a parent, child, descendant or sibling of
the Stockholder, the spouse of any of the foregoing or the Stockholder, or
the estate, any guardian, custodian, conservator or committee of, or any
trust for the benefit of, the Stockholder or any of the foregoing.
(d) "Stock" means shares of Xxxxxx or Xxxxxx New York Common Stock.
(e) Unless otherwise separately defined in this Agreement, all
capitalized terms when used herein, shall have the same meaning and
definition as is set forth in the Loan Agreement.
SECTION 2. Termination.
(a) This Agreement may be terminated by written consent of Greystone.
(b) This agreement will automatically be terminated when all
Obligations of Xxxxxx (whether now existing or hereafter arising) under the
Loan Agreement have been paid in full and the Debtors shall have no further
right to extension or funding under the Loan Agreement.
SECTION 3. Election of Directors and Officers; Authority of Officers.
(a) Number of Directors. Each of the Stockholders agrees to take all
such lawful action, including affirmatively voting the shares of Stock
Beneficially Owned or controlled by such Stockholder, as necessary to cause
the Board of Directors of both Xxxxxx and Xxxxxx New York to consist of
such number of directors as required in order to elect the Greystone
Designees required by the provisions of Section 5.14 of the Loan Agreement.
(b) Covenant to Vote. Each of the Stockholders shall vote all of the
shares of the Stock Beneficially Owned or controlled by such Stockholder
(i) at each annual or special meeting of the Corporation's stockholders
called for the purpose of electing Directors or (ii) by written consent (in
lieu of an annual or special meeting) of the Corporation's stockholders for
the purpose of electing directors, in favor of the election or reelection
of the Greystone Designees as provided for in Section 5.14 of the Loan
Agreement.
(c) Filling Vacancies. If at any time there shall exist a vacancy on
the Corporation's Board of Directors by reason of the death, resignation or
removal of any Greystone Designee, unless the Board of Directors appoints a
Greystone designee to fill such vacancy, the Stockholders agree to promptly
take all such lawful action as reasonably within their power to duly call
and convene a special meeting (or by written consent in lieu of a special
meeting) of the Corporation's stockholders as soon as reasonably
practicable to appoint a Greystone Designee to fill such vacancy, and
thereafter each of the Stockholders shall affirmatively vote their Stock to
duly elect such director.
(d) Removal of Greystone Designees. Each of the Stockholders agrees
not to vote the Shares of Stock Beneficially Owned or controlled by such
Stockholder to remove a Greystone Designee.
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(e) Officers. Each Stockholder, who is a director of the Debtors,
shall in his capacity as director (subject to his fiduciary duties to
Xxxxxx) cause the following persons to hold such office with each of the
Debtors as hereafter designated:
Xxxxxxx Xxxxxx - President
(f) Each Stockholder, who is a director of one of the Debtors, shall
in his capacity as director (subject to his fiduciary duties to Xxxxxx) (i)
cause the board of directors of the Debtors to be expanded as provided in
Section 5.14 of the Loan Agreement; (ii) vote to elect or reelect Greystone
Designees as provided in Section 5.14 of the Loan Agreement; (iii) not vote
to remove a Greystone Designee from the Board of Directors; (iv) vote to
elect or reelect individuals appointed by Greystone to the audit committee
and compensation committee as provided in Section 5.14 of the Loan
Agreement; and (v) not vote to remove an individual appointed by Greystone
to the audit committee and compensation committee.
(g) Each of the Stockholders shall vote all of the shares of the Stock
Beneficially Owned or controlled by such Stockholder (i) at the next annual
or special meeting of the Corporation's stockholders called for the purpose
of increasing the number of Xxxxxx'x authorized shares and/or increasing
the number of stock options authorized under Xxxxxx'x Employee Stock Option
Plan, or (ii) by written consent (in lieu of an annual or special meeting)
of the Corporation's stockholders for the purpose of increasing the number
of Xxxxxx'x authorized shares and/or increasing the number of stock options
authorized under Xxxxxx'x Employee Stock Option Plan, in favor of
increasing the number of Xxxxxx'x authorized shares and/or increasing the
number of stock options authorized under Xxxxxx'x Employee Stock Option
Plan.
SECTION 4. Severability: Governing Law. If any provision of this Agreement
shall be determined to be illegal and unenforceable by any court of law, the
remaining provisions shall be severable and enforceable in accordance with their
terms. To the extent a provision in this Agreement is unenforceable as to time,
duration or geographic scope, the parties hereby stipulate that such court of
law is authorized to reduce such scope and enforce said provision to the fullest
extent permitted by law. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of New York, applicable to
instruments made and performed entirely in such state.
SECTION 5. Benefits of Agreement. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective successors and
permitted assigns, legal representatives and heirs and this Agreement does not
create, and shall not be construed as creating, any rights enforceable by any
other Person.
SECTION 6. Notices. All notices and communications to be given or to
otherwise be made to any party to this Agreement shall be deemed to be
sufficient if contained in a written instrument delivered in person or duly sent
by first class registered or certified mail or by a recognized national courier
service, postage or charges prepaid, addressed to such party at such address as
appears above or on the stock books of the Corporation or such other address as
may be designated in writing by the addressee to the addressor. All such notices
and communications shall be deemed to have been received: (i) in the case of
personal delivery, on the date of such delivery, (ii) in the case of mailing, on
the fifth business day following such mailing, or (iii) in
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the case of delivery by a courier service, on the date of confirmation of
delivery of such notice, except notices of change of address which shall be
effective upon receipt.
SECTION 7. Modification. Except as otherwise provided herein, neither this
Agreement nor any provision hereof can be modified, changed, discharged or
terminated except by an instrument in writing signed by Greystone and each of
the Stockholders.
SECTION 8. Captions and References to Sections. The captions herein are
inserted for convenience only and shall not define, limit, extend or describe
the scope of this Agreement or affect the construction hereof. Sections
mentioned by number only are the respective sections of this Agreement.
SECTION 9. Availability of Equitable Remedies. Greystone and the
Stockholders acknowledge that a breach of the provisions of this Agreement will
not be adequately compensated by money damages. Accordingly, any party shall be
entitled, in addition to any other right or remedy available to it, to an
injunction restraining such breach or a threatened breach and to specific
performance of any such provision of this Agreement, and in either case no bond
or other security shall be required in connection therewith, and the parties
hereby consent to such injunction and to the ordering of specific performance.
SECTION 10. Entire Agreement. This Agreement sets forth the entire
understanding of the parties with respect to the subject matter hereof and
supersedes all existing agreements among them concerning such subject matter.
SECTION 11. Waiver. Any waiver by any party of a breach of any provision of
this Agreement shall not operate as or be construed to be a waiver of any other
breach of that provision or of any breach of any other provision of this
Agreement. The failure of a party to insist upon strict adherence to any term of
this Agreement on one or more occasions shall not be considered a waiver or
deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement. Any waiver must be evidenced by a
writing signed by the party against whom the waiver is sought to be enforced.
SECTION 12. Pronouns. Any masculine personal pronoun shall be considered to
mean the corresponding feminine or neuter personal pronoun, and vice versa, as
the context requires.
SECTION 13. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument. This Agreement
shall become effective and binding upon each proposed party hereto upon the
execution and delivery of a counterpart hereof by such party.
SECTION 14. Sale of Stock. Nothing herein shall act to prohibit or prevent
the Stockholders from transferring, by sale, gift, bequest or in any other
manner, any or all of the Stock Beneficially Owned or controlled by such
Stockholder. Notwithstanding the foregoing, however, the Stockholder may not
transfer any of such Stock to a Director, Officer or 10% shareholder of Xxxxxx
or to an Affiliate or Family Member of such Stockholder unless said transferee
has agreed, in writing, to be bound by the applicable terms of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first above written.
GREYSTONE FUNDING CORPORATION
By:
-------------------------------------
Name:
Title:
XXXXXX TECHNOLOGIES, INC., a
Delaware Corporation
By:
-------------------------------------
Name:
Title:
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Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Exhibit A
Stockholder Names Number of Shares, $.01 Par Value,
and Addresses Common Stock Owned of Xxxxxx
Technologies Inc., a Delaware
Corporation
----------------- ---------------------------------
Xxxxx Xxxxxx,
000-00 00xx Xxxx 2,183,300
Flushing, N.Y. 11367
Xxxxx Xxxxxx, 0000 Xxxxxxxx 000,000
Xxxxxxx, Xxxxxx Xxxxxx, XX
00000
Stockholder Names Number of Shares, $.01 Par Value,
and Addresses Common Stock Owned
of Xxxxxx Technologies Inc.,
a New York Corporation
----------------- ---------------------------------
Xxxxxx Technologies, Inc. 100
00-00 00xx Xxxxxx
Xxxx Xxxxxx Xxxx, X.X. 00000
