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EXHIBIT 10.45
STOCK RESTRICTION AGREEMENT
THIS AGREEMENT is made as of the 7th day of April, 1999, between
AMERICAN COIN MERCHANDISING, INC., a Colorado corporation (the "Company"), and
XXXXXX X. XXXXX ("Shareholder").
In consideration of the mutual promises, covenants and conditions set
forth below, the parties mutually agree as follows:
1. Background. Shareholder is the owner of 465,932 shares of common
stock of the Company (the "Common Stock"). This Agreement shall govern the sale,
transfer or other disposition of all of Shareholder's shares of Common Stock,
now or hereafter acquired, including any shares received as a result of stock
dividends, stock splits or any other forms of recapitalization or otherwise
issued to Shareholder subsequent to the date of this Agreement (collectively,
the "Stock"). In order to facilitate continuity in the management of the Company
and to promote the long-term growth and success of the Company, the parties
desire to provide in this Agreement for all of the Stock to be subject to
certain restrictions provided herein.
2. Restrictions on Transfer.
(a) During the term of this Agreement, Shareholder hereby
agrees and covenants that he shall not sell, assign, transfer, pledge,
hypothecate, or otherwise dispose of, by operation of law or otherwise
(any of the foregoing, a "Transfer") any of the Stock, except after
compliance with the provisions of this paragraph. Prior to any proposed
Transfer of the Stock by Shareholder, Shareholder shall provide written
notice to the Company, including a representation that the proposed
transfer is not intended to benefit any competitor, potential
competitor, customer or vendor for the Company's existing or
contemplated businesses or an investor actively attempting to acquire
control of the Company. The Company shall have 15 days after receipt of
such written notice to notify Shareholder that the Board of Directors
of the Company has determined, in good faith and in the exercise of
their reasonable business judgment, not to consent to the proposed
transfer. In the absence of such a notice from the Company, Shareholder
may transfer the Stock subject to the remaining terms of this
Agreement. Shareholder acknowledges and agrees that the Company's
refusal to consent to a Transfer of the Stock in a directly negotiated
transaction to a competitor, potential competitor, customer or vendor
for the Company's existing or contemplated businesses, or to an
investor actively attempting to acquire control of the Company shall be
in good faith and within reasonable business judgment. The Company
acknowledges and agrees that the placement of Stock with a recognized
market maker in the Company's stock for an unsolicited market
transaction will be acceptable to the Company, provided that the
Shareholder is not proposing to Transfer five percent or more of the
Stock in one or a related series of Transfers or that the Board
reasonably determines that there is an investor actively attempting to
acquire control of the Company.
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(b) In addition to the limitation set forth in paragraph 2(a),
Shareholder shall not, during the term of this Agreement, Transfer any
of the Stock, or any interest therein, unless Shareholder shall have
procured an effective current registration statement relating to the
Stock under the Securities Act of 1933 (the "Act") or an opinion of
counsel, in form and substance satisfactory to the Company, to the
effect that registration is not required because Shareholder has
satisfied all of the requirements set forth under Rule 144 promulgated
under the Act by the Securities and Exchange Commission ("Rule 144").
Any attempted disposition of the Stock or any interest therein while it
is restricted shall be null and void and of no effect.
3. Termination. This Agreement shall terminate upon the earlier of the
mutual written agreement of the parties hereto or concurrently with the
termination of Shareholder's consulting relationship with the Company under the
terms of that certain Management Transition Agreement, dated as of the date
hereof, between the Company and Shareholder.
4. Restrictive Legends.The Company shall place legends on the
certificates evidencing the Stock bearing the following legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO RESTRICTIONS ON TRANSFER SET FORTH IN A CERTAIN
STOCK RESTRICTION AGREEMENT AND A CERTAIN VOTING AGREEMENT,
DATED AS OF _______________, 1999, BETWEEN THE CORPORATION AND
THE REGISTERED OWNER OF THIS CERTIFICATE (OR HIS PREDECESSOR
IN INTEREST), AND SUCH AGREEMENT IS AVAILABLE FOR INSPECTION
WITHOUT CHARGE AT THE PRINCIPAL OFFICE OF THE CORPORATION.
Stock transfer instructions shall be delivered by the Company to any transfer
agent for such Common Stock. At the time or times when the restrictions in
paragraph 2 of this Agreement are terminated with respect to the Stock, the
legends on the certificates evidencing such shares shall be appropriately
amended and the stop transfer instructions shall be appropriately modified.
5. Stock Certificates and Registration. During the term of this
Agreement, the Shareholder will retain possession of all stock certificates
evidencing the Stock. In the event the Company issues additional shares of Stock
in an underwritten public offering, the Company will, subject to the
determination of the underwriter in its sole discretion, permit the Shareholder
to participate in the registration and sale of his Stock on a pro rata basis and
on the same terms and conditions as any officers or directors of the Company who
are selling shareholders in such offering. The Shareholder also agrees to
execute any lock-up letters or other agreements required of officers, directors,
or other major shareholders in connection with such offering.
6. Shareholder Representations. Shareholder represents, warrants and
covenants that he understands that (a) the Stock has not been registered under
the Act and are "restricted securities" within the meaning of Rule 144, (b) the
Stock cannot be sold, transferred or otherwise disposed of unless it is
subsequently registered under the Act or an exemption from registration is then
available; and (c) he must comply with certain terms and conditions to sell,
transfer or otherwise dispose of the Stock under the exemption from registration
provided by Rule 144.
7. Waiver. Any provision contained in this Agreement may be waived,
either generally or in any particular instance, by the Board of Directors of the
Company.
8. Amendment. This Agreement may be amended or modified only by a
written instrument executed by both the Company and Shareholder.
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9. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns; provided, however, that Shareholder may not assign this Agreement or
any rights or obligations under this Agreement without the prior written consent
of the Company.
10. Governing Law. This Agreement shall be governed by the laws of the
State of Colorado.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
AMERICAN COIN MERCHANDISING, INC., a
Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Its: Chief Operating Officer
SHAREHOLDER:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
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