AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT
Exhibit 2
AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT is entered into June 30, 2008, by and among
Across America Real Estate Corp., a Colorado corporation (the “Company”), BOCO Investments, LLC, a
Colorado limited liability company (“BOCO”) and GDBA Investments, LLLP, a Colorado limited
liability limited partnership (“GDBA”). BOCO and GDBA are referred to herein as an “Investor” and
together, the “Investors”.
Recitals
WHEREAS, on September 28, 2006 the Investors purchased Series A Convertible Preferred Stock
(the “Preferred Stock”) and senior subordinated notes of the Company, and at that time entered into
a Shareholders Agreement (the “Original Shareholders Agreement”);
WHEREAS, the Investors are exchanging on the date hereof 500,000 shares of Preferred Stock and
an aggregate principal amount of $6,000,000 of the Company’s Revolving Notes (the “Notes) for a
total of 29,094,828 common shares (the “Common Shares”); and
WHEREAS, the Company expects to receive substantial benefits as a result of the exchange by
the Investors of the Preferred Stock and the Notes for the Common Shares; and
WHEREAS, the execution of this Amended and Restated Shareholders Agreement relating to the
election of members to the Company’s Board of Directors (the “Board”) is a condition to the
exchange of the Preferred Stock and Notes for the Common Shares by the Investors and supersedes in
its entirety the Original Shareholders Agreement;
NOW, THEREFORE, in consideration of the mutual promises and covenants contained herein, and
for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Election of Directors.
(a) Until the termination of this Agreement in accordance with Section 4 hereof, at each
annual meeting of the shareholders of the Company and at each special meeting of the shareholders
of the Company called for the purpose of the election of directors of the Company, and at any other
time at which shareholders of the Company will have the right to or will vote for or consent in
writing to the election of directors of the Company, then each of the Investors hereby covenants
and agrees to vote all shares of capital stock (including shares of Preferred Stock) of the Company
now or hereafter owned or controlled by it and otherwise use its respective best efforts as a
shareholder of the Company as follows:
(i) in favor of causing and maintaining the election to the Board of Directors of the
two (2) designated Investor Directors (as provided in Section 1(c) and 1(d));
(ii) in favor of causing and maintaining the election to the Board of Directors the
incumbent Chief Executive Officer of the Company and of up to four (4) additional outside
Directors as may mutually be agreed to by the Investors; and
(iii) against the election or continued service of any director (other than the
Investor Directors) who is an Affiliate of either of the Investors.
(b) From time to time after the execution of this Agreement as additional outside directors
are approved by the Investors, the Company shall take all necessary and desirable actions within
its control (including, without limitation, calling special board meetings), so that the authorized
number of directors on the Board of Directors shall be increased to up to seven directors. At each
annual meeting of shareholders, the Company shall nominate for election to the Board of Directors
the individuals designated to be Investor Directors as provided in Section 1(c) and 1(d), the Chief
Executive Officer, and the outside Directors as may be mutually agreed to by the Investors.
(c) BOCO shall be entitled to designate one individual to be nominated for election to Board
of Directors (the “BOCO Director”). The initial BOCO Director shall be Xxxxxx X. Xxxxxxx (the
“Initial BOCO Director”). Unless and until the Company receives written notice from BOCO to the
contrary, the Initial BOCO Director shall be nominated by the Company for election to the Board of
Directors at each annual meeting of shareholders.
(d) GDBA shall be entitled to designate one individual to be nominated for election to Board
of Directors (the “GDBA Director” and together with the BOCO Director, the “Investor Directors”).
The initial GDBA Director shall be G. Xxxxx Xxxxxxx (the “Initial
GDBA Director”). Unless and until the Company receives written notice from GDBA to the contrary,
the Initial GDBA Director shall be nominated by the Company for election to the Board of Directors
at each annual meeting of shareholders.
(e) “Affiliate” for the purposes of this Agreement shall mean a person or entity controlling,
controlled by or under common control with the Investors, including, without limitation, any
officer, employee or principal of an Investor.
(f) The authorized number of directors on the Board of Directors shall not be increased to
more than seven directors without the unanimous approval of the Board of Directors, including the
Investor Directors.
2. Vacancies and Removal. A director designated above in Section 1 shall be elected
at any annual or special meeting of shareholders and shall serve until his or her successor is
elected and qualified or until his or her earlier resignation or removal. Any director may be
removed during his term of office in accordance with the bylaws of the Company and the Colorado
Business Corporation Act. Any vacancy in the office of a director may be filled in accordance with
the bylaws of the Company and the Colorado Business Corporation Act, provided,
however, that (i) in the event the BOCO Director or the GDBA Director is removed, resigns
or ceases to serve as a director for any reason, BOCO or GDBA, as applicable, shall be entitled to
name the replacement for such director in accordance with Section 1 hereof, and (ii) in the event
any outside director is removed, resigns or ceases to serve as a director for any reason, BOCO or GDBA, jointly, shall be entitled to name the replacement for such director in
accordance with Section 1 hereof.
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3. Transfer of Stock. Neither BOCO or GDBA shall sell, convey, assign or otherwise
transfer any of its shares of capital stock of the Company unless the transferee agrees in writing
to be bound by the terms and conditions of this Agreement and executes a counterpart of this
Agreement, provided, that, either Investor may transfer shares of capital stock of
the Company to a transferee who does not agree to be bound by this Agreement so long as immediately
after such transfer such Investor continues to hold at least twenty-six percent in voting power of
the issued and outstanding shares of capital stock of the Company, including for this purpose only
those shares of capital stock having a right to vote with respect to the election of directors.
4. Duration of Agreement. The rights and obligations of the Investors shall terminate
on the earlier of the fifth anniversary of the date hereof.
5. Severability. The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision of this Agreement.
6. Specific Performance. In addition to any and all other remedies that may be
available at law in the event of any breach of this Agreement, the Investors shall each be entitled
to specific performance of the agreements and obligations of the Company hereunder and to such
other injunctive or other equitable relief as may be granted by a court of competent jurisdiction.
7. Governing Law. This Agreement shall be governed by and construed in accordance
with the internal laws of the State of Colorado (without giving effect to the conflicts of law
provisions thereof).
8. Notices. All notices to be given or otherwise made to any party to this Agreement
shall be in writing and shall be hand delivered, sent by facsimile, or mailed, postage prepaid to
the Company, at the address listed below, or to the Investors at the following addresses, which
shall be the same addresses reflected on the records of the Company until such time as the Company
receives notice of a change:
The Company:
|
Across America Real Estate Corp. | |
| 0000 00xx Xxxxxx, Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
| Facsimile: 000-000-0000 | ||
| Attention: Chief Executive Officer | ||
| with a copy to: | ||
| Xxxxx Xxxxxx & Associates, P.C. | ||
| 0000 Xxxx Xxxxxxxx Xxx. | ||
| Xxxxxxxxx Xxxxx | ||
| Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000 | ||
| Attention: Xxxxx X. Xxxxxx, Esq. | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 |
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BOCO:
|
BOCO Investments, LLC | |
| 000 Xxxx Xxxxxxxx Xxx. | ||
| Xxxx Xxxxxxx, Xxxxxxxx 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Chief Executive Officer | ||
| with copy to: | ||
| Xxxxx Xxxxxx & Xxxxxx LLP | ||
| 0000 00xx Xxxxxx, Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
| Facsimile: 000-000-0000 | ||
| Attention: Xxxxx X. Xxxxxxxx | ||
GDBA:
|
GDBA Investments, LLLP | |
| 0000 Xxxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Chief Executive Officer | ||
| with copy to: | ||
| Xxxxx & Xxxxxxx X.X. | ||
| Xxxxx 000, Xxxxxx Xxxxxx | ||
| 0000 Xxxxxxxxxxx Xxxxxx | ||
| Xxxxxx, XX 00000 | ||
| Facsimile: (000) 000-0000 | ||
| Attention: Xxxxxxx X. Xxxxxxx |
Each such notice, report or other communication shall, for all purposes hereof, be treated as
effective or having been given when delivered if delivered personally or, if sent by mail, at the
earlier of its receipt or 72 hours after the same has been deposited in a regularly maintained
receptacle for the deposit of the United States mail, addressed and mailed as aforesaid, or, if
sent by facsimile with written confirmation, at the earlier of (i) 24 hours after confirmation of
transmission by the sending facsimile machine or (ii) delivery of written confirmation.
9. Complete Agreement. This Agreement constitutes the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings relating to such subject matter, whether oral or written,
including the Original Shareholders Agreement.
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10. Modification or Amendment. Neither this Agreement nor any provision hereof can be
modified or changed, except by an instrument in writing, signed by the Company and the Investors.
11. Pronouns. Whenever the context may require, any pronouns used in this Agreement
shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns
and pronouns shall include the plural, and vice versa.
12. Counterparts; Facsimile Signatures. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original, and all of which together shall
constitute one and the same document. This Agreement may be executed by facsimile signatures.
13. Section Headings. The section headings are for the convenience of the parties and
in no way alter, modify, amend, limit or restrict the contractual obligations of the parties.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Shareholders’ Agreement to be executed
as of the date first above written.
ACROSS AMERICA REAL ESTATE CORP.
|
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/s/ |
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Name: Xxxxx Xxxxxxx |
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Title: Chief Executive Officer |
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INVESTORS: |
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BOCO INVESTMENTS, LLC |
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/s/ |
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Name: Xxxxxx X. Xxxxxxx |
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Title: CEO |
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GDBA INVESTMENTS, LLLP |
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/s/ |
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Name: G. Xxxxx Xxxxxxx |
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Title: Manager |
