STOCKHOLDERS AGREEMENT
BY AND AMONG
PATH 1 NETWORK TECHNOLOGIES INC.,
XXXXXX TECHNOLOGY CORPORATION,
XXXXXX X. XXXXXXX,
XXXXXXX X. XXXXXX
AND
XXXXXXX X. XXXXXXX
Dated as of April 10, 2000
TABLE OF CONTENTS
PAGE
1. Certain Definitions......................................................................................1
2. Composition of Board of Directors; Committees; Directors'Expenses........................................3
3. Right of First Refusal...................................................................................4
4. Purchasers or Transferees of Common Stock................................................................6
5. Xxxxxxx Put Option.......................................................................................7
6. Right of Subscription for New Securities.................................................................8
7. Registration of the Securities...........................................................................9
8. Standstill..............................................................................................16
9. Legend and Compliance with Securities Laws..............................................................17
10. Amendment to By-Laws....................................................................................17
11. Termination of this Agreement...........................................................................18
12. Notices.................................................................................................18
13. Counterparts............................................................................................20
14. Entire Agreement........................................................................................20
15. Governing Law...........................................................................................20
16. Jurisdiction; Waiver of Trial by Jury...................................................................20
17. Headings................................................................................................20
18. Severability............................................................................................20
19. Binding Effect..........................................................................................21
20. Construction............................................................................................21
21. Effectiveness...........................................................................................21
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated as of April 10, 2000 (this
"Agreement") among Path 1 Network Technologies Inc., a Delaware corporation
(the "Corporation"), Xxxxxx Technology Corporation, a corporation organized
under the laws of the Province of Ontario ("Xxxxxx"), Xxxxxxx X. Xxxxxxx
("Xxxxxxx"), Xxxxxx X. Xxxxxxx ("Xxxxxxx") and Xxxxxxx X. Xxxxxx ("Xxxxxx";
Xxxxxxx and Xxxxxx being hereinafter together referred to as the "Management
Stockholders", and together with Xxxxxx and Xxxxxxx, the "Stockholders").
W I T N E S S E T H:
WHEREAS, pursuant to and upon the closing of the
transactions contemplated by that certain Stock Purchase Agreement of even
date herewith (the "Purchase Agreement") by and among Xxxxxx and the
Corporation, Xxxxxx will acquire 1,250,000 shares of Class A Common Stock,
$.001 par value per share (the "Common Stock") of the Corporation (such
1,250,000 shares being hereinafter referred to as the "Purchased Shares")
(the date of the closing under the Purchase Agreement is hereinafter referred
to as the "Effective Date");
WHEREAS, Xxxxxxx and Xxxxxx beneficially own 1,148,720 and
224,000 shares of Common Stock of the Corporation, respectively (together
with any additional shares of Common Stock so held after the date hereof, the
"Management Shares");
WHEREAS, Xxxxxxx owns options to purchase 15,000 shares of
Class B Common Stock of the Corporation (together with any additional shares
of Common Stock and/or Class B Common Stock beneficially held after the date
hereof, the "Xxxxxxx Shares");
WHEREAS, on March 10, 2000, Xxxxxx entered into a Stock
Purchase Agreement, as amended (the "Xxxxx Agreement"), with Xxxxx Xxxxx and
Xxxx Xxxxx to acquire 1,655,000 shares of Common Stock (the "Xxxxx Shares,"
together with the Purchased Shares and any additional shares of Common Stock
so held after the date hereof, the "Xxxxxx Shares"); and
WHEREAS, from and after the Effective Date, the parties
hereto deem it in the best interests of the Corporation to provide for
continuity in the control and operation of the Corporation and to address
certain other matters, all as herein provided.
NOW, THEREFORE, in consideration of the mutual benefits to
be derived and the conditions and promises herein contained, and intending to
be legally bound hereby, the parties hereto agree as follows, which
agreements shall automatically become effective only in accordance with
Section 21 hereof:
1. CERTAIN DEFINITIONS. For purposes of this
Agreement, unless the context otherwise requires, the following terms shall
have the following respective meanings:
"Affiliate" shall mean any person or entity which directly
or indirectly controls, is controlled by or is under common control with such
person or entity. For purposes hereof, the terms "control" and "controlled
by" mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a person or
entity, whether through the ownership of voting securities, by contract
(written or oral) or otherwise.
"Xxxxx Agreement" shall have the meaning set forth in the
recitals to this Agreement.
"Board of Directors" or "Board" shall mean the board of
directors of the Corporation.
"By-laws" shall mean the by-laws of the Corporation.
"Certificate of Incorporation" shall mean the certificate
of incorporation of the Corporation.
"Class B Common Stock" shall mean the Corporation's Class B
Common Stock, par value $.001 per share.
"Corporation" shall have the meaning as set forth in the
recitals to this Agreement.
"Commission" shall mean the Securities and Exchange
Commission.
"Competing Offer" shall have the meaning as set forth in
Section 3(d) hereof.
"Dispose" or "Disposition" in connection with any Security
shall mean a sale, assignment, gift, pledge, mortgage, hypothecation or any
other transfer of, including, without limitation, the transfer by
testamentary gift, the imposition of any lien or encumbrance on or the grant
of any interest in or right to acquire any Securities or any interest
therein, whether occurring voluntarily or involuntarily, directly or
indirectly, or by operation of law or otherwise.
"Elliot Put Shares" shall mean the outstanding shares of
Common Stock held by Elliot from time to time.
"Xxxxxxx Shares" shall have the meaning as set forth in the
recitals to this Agreement.
"Management Stockholders" shall have the meaning set forth
in the recitals to this Agreement.
"New Securities" shall have the meaning as set forth in
Section 6(b) hereof.
"Public Transferee" shall have the meaning set forth in
Section 3(e) hereof.
"Registration Shares" shall have the meaning as set forth
in Section 7(a) hereof.
"Requested Registration Shares" shall have the meaning as set
forth in Section 7(a) hereof.
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"Rule 144" shall mean shall mean Rule 144 as promulgated by
the Commission under the Securities Act, as such Rule may be amended from
time to time, or any similar successor rule that may be promulgated by the
Commission.
"Securities" shall mean the shares of the Common Stock of
the Corporation from time to time held beneficially or owned of record by the
Stockholders and any additional "equity securities" (as such term is defined
under the Securities Exchange Act of 1934, as amended) of the Corporation or
any successor to the business and assets of the Corporation (by purchase,
merger or otherwise) at any time issued to or acquired by the Stockholders,
or any of them, including without limitation, in connection with any
reorganization, reclassification, stock split, stock dividend or stock
distribution, or upon exercise of any stock subscription, option, right or
warrant or of any conversion rights inherent in any securities, in any case,
whether owned on the date hereof or hereafter acquired by any Stockholder.
"Securities Act" shall have the meaning set forth in
Section 7(a) hereof.
"Securities Exchange Act" shall have the meaning set forth
in Section 7(k) hereof.
"Seller's Shares" shall have the meaning as set forth in
Section 3(a) hereof.
"Selling Stockholder" shall have the meaning as set forth
in Section 3(a) hereof.
"Stockholders" shall mean, without duplication, each
Management Stockholder, Xxxxxx, and Xxxxxxx.
"Strategic Entity" shall have the meaning set forth in
Section 6(b) hereof.
"Strategic Event" shall have the meaning set forth in
Section 6(d) hereof.
"Strategic Transaction" shall have the meaning set forth in
Section 6(b) hereof.
"Transferee" shall have the meaning set forth in Section 4
hereof.
2. COMPOSITION OF BOARD OF DIRECTORS; COMMITTEES;
DIRECTORS' EXPENSES.
(a) Each of the Management Stockholders,
Xxxxxxx and each Transferee (other than a Public Transferee) of any of such
persons, covenant and agree that in any election of directors of the
Corporation, including by written consent, they shall, for so long as Xxxxxx
or any Affiliate of Xxxxxx holds a number of the outstanding voting equity
securities and Class B Common Stock of the Corporation representing at least
20% of the number of all issued and outstanding voting equity securities and
Class B Common Stock of the Corporation (assuming the issuance of all voting
equity securities and Class B Common Stock of the Corporation issuable
pursuant to then outstanding warrants, options, convertible or exchangeable
securities and other rights to acquire voting equity securities and Class B
Common Stock of the Corporation from the Corporation), vote all voting
Securities of the Corporation owned or controlled by them in favor of a Board
of Directors of the Corporation whose members shall include designees of
Xxxxxx who constitute 2/7th of the entire Board of Directors (rounded up or
down to the nearest whole Board member (with 0.5 or greater being rounded
up)); it being
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understood and agreed that such Board of Directors shall consist initially of
seven (7) members, of which initially two (2) shall be designated by Xxxxxx;
it being further understood and agreed that, in the event that Xxxxxx or any
Affiliate of Xxxxxx acquires Management Shares pursuant to Section 3 hereof
and/or Xxxxxxx Put Shares pursuant to Section 5 hereof, Xxxxxx shall be
entitled to appoint, and such persons shall vote any and all voting
Securities of the Corporation owned or controlled by them for, that number of
directors which will result in Xxxxxx having Board representation which is
commensurate with the percentage ownership of the issued and outstanding
voting equity securities and Class B Common Stock of the Corporation owned by
Xxxxxx (rounded up or down to the nearest whole board member (with 0.5 or
greater being rounded up)).
(b) In the event of any vacancy in the Board
of Directors of the Corporation occurring for any reason, each of the
Management Stockholders, Xxxxxxx and each Transferee (other than a Public
Transferee) of such person covenant and agree to vote all voting Securities
of the Corporation owned or controlled by him or it and otherwise to use his
or its best efforts to fill the vacancy in such a manner that the Board of
Directors of the Corporation will consist of directors designated in
accordance with the provisions of subsection (a) above. In addition to the
foregoing, in the event that at any time Xxxxxx determines to replace or
remove any or all of its designees to the Board of Directors of the
Corporation, each of the Management Stockholders, Xxxxxxx and each Transferee
(other than a Public Transferee) of such person covenant and agree to vote
all voting Securities of the Corporation owned or controlled by him or it for
such replacement or removal and for the replacement designee(s) of Xxxxxx in
accordance with the terms of this Section 2 and otherwise to use his or its
best efforts to effect such a replacement or removal and replacement.
(c) The Corporation hereby agrees to use its
best efforts to cause such designated candidates, pursuant to subsection (a)
above, and replacements, pursuant to subsection (b) above, to be elected to
the Board of Directors of the Corporation and to recommend that the
stockholders of the Corporation approve and elect such designated candidates.
(d) The parties hereto agree to use their
respective best efforts to cause each committee formed by the Board of
Directors of the Corporation to include at least one (1) designee of Xxxxxx.
(e) For purposes of this Section 2, the
parties hereto agree that the initial Board of Directors of the Corporation
after the Effective Date shall be as follows:
Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx; Xxxxxxx X. Xxxxxx, Xxxxxx Xxxxx, and
Xxxx Xxxxxxxx and, as the nominees of Xxxxxx, Xxxx X. XxxXxxxxx and Reg X.
Xxxxxxx.
3. RIGHT OF FIRST REFUSAL.
(a) Until the occurrence of a Strategic
Event, whenever and as often as any of the Management Stockholders or any of
the Transferees (other than Public Transferees) of such persons (each, a
"Selling Stockholder") shall desire to Dispose of any Securities pursuant to
a bona fide offer for the purchase or other acquisition thereof in a private
transaction with a
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person or entity not an Affiliate of the Selling Stockholder, the Selling
Stockholder shall give written notice (the "Notice") to Xxxxxx and to the
secretary of the Corporation to such effect, enclosing a copy of such bona
fide offer (it being agreed that the Selling Stockholder shall cause any such
offer to be reduced to a writing between the Selling Stockholder and the
prospective acquirer) and specifying the number of Securities which the
Selling Stockholder desires to Dispose of (collectively, the "Seller's
Shares"), the name of the person or entity to whom the Selling Stockholder
desires to make such Disposition and the dollar value of the consideration
which has been offered in connection therewith. Upon receipt of the Notice,
Xxxxxx shall have the first right and option (the "Right of First Refusal")
to purchase all, but not less than all, of the Seller's Shares, at a purchase
price equal to the dollar value of such consideration (in the event such
consideration includes non-cash consideration, the dollar value of such
non-cash consideration shall be determined by an independent third-party who
shall be mutually agreed upon by Xxxxxx and the transferring Management
Stockholder, whose good faith determination shall be conclusive and whose
reasonable fees and expenses shall be paid by the Corporation) exercisable
for a period of ten (10) days from the later of the date of receipt by Xxxxxx
of the Notice or the date of receipt of the independent third-party
determination of value, if any, contemplated by this sentence (the "Notice
Period"). In the event that such offer includes consideration payable other
than in cash, in connection with the exercise of the Right of First Refusal
hereunder, Xxxxxx may pay the non-cash portion of the purchase price
hereunder by paying the cash equivalent of such non-cash consideration, as so
determined in good faith by such independent third-party. Failure of Xxxxxx
to respond to the Notice within the Notice Period shall constitute a
notification to the Selling Stockholder of Xxxxxx'x decision not to exercise
the Right of First Refusal under this Section 3(a).
(b) Xxxxxx shall exercise the Right of First
Refusal, if at all, by giving written notice to the Selling Stockholder and
the secretary of the Corporation not later than the close of business on the
final day of the Notice Period (or if such date is not a business day, then
on or before the close of business on the next succeeding business day),
advising of the election to exercise the same and the date (not later than
five (5) business days after the expiration of the Notice Period) upon which
payment of the purchase price for the Seller's Shares to be purchased by
Xxxxxx shall be made. The Selling Stockholder shall cause to be delivered to
Xxxxxx at Xxxxxx'x principal executive office, on the payment date specified
in such notice, the certificate or certificates representing the Seller's
Shares to be purchased by Xxxxxx, properly endorsed for transfer, together
with all necessary transfer and documentary stamps affixed thereto and
together with a certificate signed by the Selling Stockholder or the personal
representative or executor of the estate of the Selling Stockholder to the
effect that the Securities being transferred are free and clear of all liens,
encumbrances or rights of third parties of every nature whatsoever, against
payment of the purchase price therefor by Xxxxxx.
(c) If all the Seller's Shares are not
purchased by Xxxxxx in accordance with this Section 3, the Selling
Stockholder (i) shall not be required to sell any of the Seller's Shares to
Xxxxxx and (ii) may, during the 90-day period commencing on the expiration of
the Right of First Refusal, sell all (but not less than all) of the Seller's
Shares to the transferee named in the Notice for a consideration the dollar
value of which is equal to or greater than the dollar value of the
consideration specified in the Notice, free of the restrictions contained in
this Section 3 (but subject to the other terms and conditions hereof).
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(d) Any attempted Disposition or issuance of
securities other than in accordance with this Agreement (other than
involuntary transfers or transfers by operation of law), including, without
limitation, in violation of this Section 3 or Section 6 hereof, shall be null
and void and the Corporation shall refuse to recognize any such Disposition
or issuance and shall not reflect on its records any change in the record
ownership of any securities, as applicable, pursuant to any such Disposition
or issuance.
(e) Notwithstanding the foregoing, if a
Strategic Event has occurred, the Right of First Refusal shall cease.
However, if after the occurrence of a Strategic Event, a Selling Stockholder
desires to Dispose of Securities pursuant to a bona fide offer for the
purchase or other acquisition thereof in a private transaction with a person
or entity not an Affiliate of the Selling Stockholder, the Selling
Stockholder shall deliver the Notice containing the information prescribed by
Section 3(a) to Xxxxxx and the secretary of the Corporation. Upon receipt of
such Notice, Xxxxxx shall be given the opportunity for a period of ten (10)
days from the date of receipt of the Notice (the "Competing Offer Period"),
to make an offer (the "Competing Offer") to purchase the Seller's Shares.
Upon receipt by the Selling Stockholder of any Competing Offer, the Selling
Stockholder shall notify Xxxxxx, within five (5) business days after the
expiration of the Competing Offer Period, that the Selling Stockholder
intends to accept the Competing Offer. Failure of the Selling Stockholder to
respond to the Notice within the Notice Period shall constitute a rejection
of the Competing Offer. In the event that the Selling Stockholder accepts the
Competing Offer, Xxxxxx shall purchase the Seller's Shares in accordance with
the procedures set forth in Section 3(b) above. If Xxxxxx fails to make a
Competing Offer to the Selling Stockholder within the Competing Offer Period,
the Selling Stockholder may Dispose of the Seller's Shares, in accordance
with and subject to clause 3(b)(ii) above. For purposes of this Section 3, a
Strategic Event shall have occurred if (x) a Strategic Entity, in a single
transaction, purchases Common Stock or other equity securities of the
Corporation for at least U.S. $6,000,000 or (y) the Corporation shall have
achieved during any twelve-month trailing period at least U.S. $30,000,000 of
gross revenues as determined in accordance with generally accepted accounting
principles ("GAAP") and as reflected in the financial statements of the
Corporation.
(f) Notwithstanding the foregoing, the
provisions of this Section 3 shall not apply and Xxxxxx shall have no rights
under this Section 3, with respect to a sale of any Securities by any of the
Management Stockholders or any Transferees of any of them in a block trade,
to a market maker for the Securities or in an open market transaction,
whether such open market transaction is effected pursuant to Rule 144 of the
Securities Act or otherwise (the Transferee of Securities in a block trade,
sale to a market maker or an open market transaction, hereinafter, a "Public
Transferee").
4. PURCHASERS OR TRANSFEREES OF COMMON STOCK. Except
as otherwise specifically provided herein, and as a condition to the transfer
of any such Securities on the books and records of the Corporation, any
person or entity (other than a Public Transferee) who shall acquire (either
voluntarily or involuntarily, by operation of law or otherwise) any
Securities from (i) any of the Management Stockholders, Xxxxxx or Xxxxxxx or
(ii) any transferee of any of them (other than Public Transferees) (any such
transferee of any of them, a "Transferee"), shall execute an agreement
wherein such Transferee (other than a Public Transferee) shall agree to be
bound by, subject to and shall enjoy the rights and benefits of, this
Agreement to the same extent,
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and subject to the same covenants and agreements, as the party hereto
transferring such Securities to such Transferee.
5. XXXXXXX PUT OPTION.
(a) Xxxxxx shall, concurrently with the
purchase of any Seller's Shares pursuant to the Right of First Refusal or a
Competing Offer, deliver to Xxxxxxx written notice of such purchase (the "Put
Notice"). Upon receipt of the Put Notice, Xxxxxxx shall have the option (the
"Put Option"), exercisable by written notice to Xxxxxx given within five (5)
business days of receipt by Xxxxxxx of the Put Notice, to require that Xxxxxx
acquire a pro rata portion of the Xxxxxxx Put Shares. The pro rata portion of
the Xxxxxxx Put Shares for purposes of this Put Option is the ratio of the
total number of Seller's Shares purchased by Xxxxxx pursuant to Section 3
hereof to the total number of Management Shares beneficially owned by
Management Stockholders and their Transferees (other than Public Transferees)
immediately prior to the purchase by Xxxxxx pursuant to Section 3 hereof. For
example, if Xxxxxx purchases from the Management Stockholders, pursuant to
Section 3 above, 333,333 shares of Common Stock out of a total of 1,000,000
Management Shares, then the ratio would be 1/3 and Xxxxxxx would have the
right to require Xxxxxx to purchase 1/3 of the Xxxxxxx Put Shares.
(b) The purchase price to be paid by Xxxxxx
for the Xxxxxxx Put Shares shall be equal to the purchase price paid to the
Management Stockholders for the Seller's Shares and shall be payable in the
same form or forms of consideration paid to the Management Stockholders for
the Seller's Shares.
(c) The closing (a "Put Closing") of the
purchase and sale of the Xxxxxxx Put Shares shall take place no later than
five (5) business days following the exercise of the Put Option by written
notice to Xxxxxx pursuant to Section 5(a) above. The exercise of the Put
Option (which exercise is evidenced by the delivery of a Put Notice to
Xxxxxx) shall constitute an unconditional and irrevocable commitment by
Xxxxxxx, on the one hand, and Xxxxxx, on the other hand, to sell and purchase
the Xxxxxxx Put Shares in accordance with the provisions of this Section 5.
On the date of a Put Closing, Xxxxxxx shall deliver to Xxxxxx at the Xxxxxx'x
principal executive office set forth in Section 12 below, against receipt of
payment of the purchase price therefor, the certificate or certificates
representing the Xxxxxxx Put Shares being sold, properly endorsed for
transfer, signature guaranteed, with all necessary transfer and documentary
stamps affixed thereto, together with a certificate signed by Xxxxxxx to the
effect that the Xxxxxxx Put Shares being transferred are free and clear of
all liens, encumbrances or rights of third parties of any nature whatsoever.
(d) Notwithstanding Section 4 hereof, it is
understood and agreed by the parties hereto that a Put Option is not
transferable or otherwise assignable without the prior written consent of the
Management Stockholders and Xxxxxx, and any attempt to transfer or otherwise
assign the Put Option in violation of this Section 5(d) will render the Put
Option void and of no further force or effect.
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6. RIGHT OF SUBSCRIPTION FOR NEW SECURITIES.
(a) The Corporation hereby grants, on the terms
set forth in this Section 6, to Xxxxxx and to each Transferee of Xxxxxx (other
than Public Transferees), the right of first offer to purchase Xxxxxx'x or such
Transferee's, as applicable, pro rata share of the New Securities (as defined in
Section 6(b) below) which the Corporation may, from time to time, propose to
sell or issue. Xxxxxx and such Transferees shall have the right to purchase said
New Securities on the same terms and at the same price at which the Corporation
proposes to sell the New Securities. A person's or entity's pro rata share of
the New Securities, for purposes of this right of first offer, shall be the
ratio of the total number of voting equity securities and Class B Common Stock
of the Corporation held by Xxxxxx or by such Transferee(s), as applicable, to
the total number of voting equity securities and Class B Common Stock of the
Corporation issued and outstanding immediately prior to the issuance of the New
Securities (assuming the issuance of all voting equity securities and Class B
Common Stock of the Corporation issuable pursuant to then outstanding warrants,
options, convertible or exchangeable securities and other rights to acquire
voting equity securities and Class B Common Stock of the Corporation from the
Corporation).
(b) "New Securities" shall mean any capital
stock of the Corporation, whether now authorized or not, and any rights, options
or warrants to purchase said capital stock, and securities or debt of any type
whatsoever that are, or may become, convertible into or exchangeable for such
capital stock; provided that "New Securities" do not include (i) shares of
capital stock issued upon conversion of any convertible securities or exercise
of any options or warrants; (ii) securities issued pursuant to the bona fide
acquisition by the Corporation of another corporation or other entity, which
corporation or other entity would qualify as a Strategic Entity, by merger,
purchase of substantially all of the assets or stock of such corporation, or
other acquisition, reorganization or similar transaction; (iii) all shares of
capital stock or other securities, options or other rights to purchase capital
stock hereafter issued or issuable to officers, directors, employees or
consultants of the Corporation pursuant to any employee or consultant stock
offering, stock purchase or stock option plan or other arrangement approved by
the Board of Directors of the Corporation; (iv) any shares of capital stock
purchased from or issued by the Corporation by/to an entity which is a Strategic
Entity in a Strategic Transaction. For purposes hereof, a Strategic Transaction
shall mean a transaction with a Strategic Entity which is a "major player" in
the industry in which the Corporation operates (a "Strategic Entity") and which
Strategic Entity, as part of the transaction, enters into a licensing,
technology and distribution agreement with the Corporation.
(c) The Corporation shall give Xxxxxx and each
Transferee of Xxxxxx (other than Public Transferees) written notice prior to any
sale or issuance of New Securities (the "New Issuance Notice"), describing the
type of New Securities, the price and the terms upon which the Corporation
proposes to sell or issue the New Securities. If Xxxxxx or any such Transferee
determines to exercise its rights pursuant to this Section 6, Xxxxxx or such
Transferee, as applicable, shall, within ten (10) days from the date of receipt
of the New Issuance Notice (the "New Issuance Notice Period"), deliver written
notice to the Corporation of its election to purchase its pro rata share of the
New Securities and stating therein the quantity of New Securities to be
purchased. Upon exercise of its rights pursuant to this Section 6, Xxxxxx or
such
8
Transferee, as applicable, shall purchase, and the Corporation shall sell or
issue to Xxxxxx or such Transferee, as applicable, such person's or entity's
pro rata share of the New Securities simultaneously with the closing of the sale
or issuance of the other New Securities by the Corporation. In the event that
the consideration paid by an acquiror of New Securities includes non-cash
consideration, the dollar value of such non-cash consideration shall be
determined by an independent third party mutually agreed upon by Xxxxxx and the
Corporation, whose good faith determination shall be conclusive and whose
reasonable fees and expenses shall be paid by the Corporation, and Xxxxxx or
such Transferee, as applicable, may pay the non-cash portion of the purchase
price hereunder by paying the cash equivalent of such non-cash consideration, as
so determined by such independent third-party.
(d) In the event Xxxxxx or such Transferee, as
applicable, fails to exercise the right of first offer within the New Issuance
Notice Period, the Corporation shall have 90 days thereafter to sell or enter
into an agreement (pursuant to which the sale of New Securities covered thereby
shall be closed, if at all, within 90 days from date of said agreement) to sell
the New Securities otherwise purchasable by Xxxxxx or such Transferee, as
applicable, at a price and upon terms no more favorable to the purchasers
thereof than specified in the New Issuance Notice. In the event the Corporation
has not sold or entered into an agreement to sell the New Securities within said
90 day period (or sold and issued New Securities in accordance with the
foregoing within 90 days from the date of said agreement) the Corporation shall
not thereafter issue or sell any New Securities without first offering such
securities to Xxxxxx and such Transferees in the manner provided above.
(e) Notwithstanding the foregoing, the
Corporation shall have no obligation, pursuant to this Section 6, at the request
of Xxxxxx or otherwise, to issue, sell, or otherwise convey or enter into any
negotiation or transaction to issue, sell or convey New Securities.
7. REGISTRATION OF THE SECURITIES.
(a) At any time after the first anniversary date
of the earlier to occur of (i) the date of effectiveness of the Form 10 (as such
term is defined in the Purchase Agreement) and (ii) the date on which a class of
securities of the Corporation shall be registered under the Securities Exchange
Act, Xxxxxx and any Transferee of Xxxxxx (other than Public Transferees) shall
have the right to request that the Corporation effect the registration under the
Securities Act of 1933, as amended (the "Securities Act") of any or all shares
of Class A Common Stock of the Corporation (for purposes of this Section 7 only,
the "Securities") beneficially owned by Xxxxxx and/or such Transferee (the
Securities requested to be registered are hereinafter collectively referred to
as the "Requested Registration Shares"). In such event, the Corporation shall
use its reasonable best efforts to cause the Requested Registration Shares to be
registered under the Securities Act and to effect and to comply with all such
qualifications, compliances and requirements as may be necessary to permit the
sale or other transfer of such Requested Registration Shares in the manner
described in such request, including, without limitation, qualifications under
applicable blue sky or other state securities laws (provided that the
Corporation shall not be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process in any
state); provided, however, that (i) the Corporation shall not be obligated to
file and cause to become effective more than two registration statements in
which Requested Registration Shares are sold pursuant to this
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subsection (a), (ii) the Corporation shall not be obligated to file and cause to
become effective more than one such registration statement under this subsection
(a) in any six-month period and (iii) in the event that, for any reason (other
than as a result of a request made by Xxxxxx or any Transferee of Xxxxxx to
withdraw such person's or entity's Requested Registration Shares from such
registration), less than one-half of the number of Requested Registration Shares
shall be registered under the Securities Act in accordance with a request made
by Xxxxxx or any Transferee of Xxxxxx (other than Public Transferees) pursuant
to this subsection (a), then such registration shall not constitute one of the
registration statements referred to above. Xxxxxx'x and such Transferee's rights
under this subsection (a) shall terminate upon the earlier to occur of (1) the
seventh anniversary of the date hereof or (2) the date on which all of the
shares of Common Stock held by Xxxxxx and Transferees of Xxxxxx (other than
Public Transferees) may be sold pursuant to Rule 144 of the Securities Act
during a 90-day period. If Xxxxxx and any Transferees of Xxxxxx initiating a
registration request under this subsection (a) intend to distribute the
Requested Registration Shares covered by such request by means of an
underwriting and the managing underwriter of such underwriting advises Xxxxxx
and any such Transferees that marketing factors require a limitation of the
number of shares to be underwritten, then the number of Securities that may be
included in the underwriting shall be allocated among each of Xxxxxx and/or any
such Transferees desiring to include any Requested Registration Shares in
proportion to the amount of Securities owned by each such person or entity;
provided, however, that the number of shares of Requested Registration Shares to
be included in such offering shall not be reduced unless all other securities
are first entirely excluded from the underwriting.
(b) [Intentionally omitted].
(c) In the event that, at any time or from time
to time on or prior to the seventh anniversary of the date hereof, the
Corporation proposes to register on its behalf or on behalf of any selling
stockholder(s) of the Corporation any securities (the "Registration Shares"),
including shares of Common Stock, under the Securities Act, other than pursuant
to a registration statement on Forms S-4 or S-8, or any successor to such Forms
promulgated by the Securities Exchange Commission (the "Commission"), and other
than in an initial public offering of Securities, for the purpose of the sale or
other transfer of the Registration Shares, the Corporation shall mail or deliver
to Xxxxxx and to each Transferee of Xxxxxx (other than Public Transferees) at
least 30 days prior to the filing of the registration statement covering such
Registration Shares or securities, a written notice (a "Registration Notice") of
its intention so to register the Registration Shares.
(d) In the event that a Registration Notice
shall have been so mailed or delivered, Xxxxxx, at its election, may mail or
deliver to the Corporation a written notice (a "Supplemental Notice") (i)
specifying the number of shares of Common Stock ("Supplemental Registration
Shares") proposed to be sold or otherwise transferred and (ii) requesting the
registration thereof under the Securities Act; provided, however, that such
Supplemental Notice shall be so mailed or delivered by Xxxxxx not more than 15
days after the date of the Registration Notice.
(e) From and after receipt of a Supplemental
Notice, the Corporation shall, subject to the sale or other transfer of some or
all of such Registration Shares by means of the registration thereof and to the
provisions of subsection (a) above, use its reasonable best
10
efforts to cause the Supplemental Registration Shares specified in such
Supplemental Notice to be registered under the Securities Act and to effect and
to comply with all such qualifications, compliances and requirements as may be
necessary to permit the sale or other transfer of such Supplemental Registration
Shares in the manner described in such Supplemental Notice, including, without
limitation, qualifications under applicable blue sky or other state securities
laws (provided that the Corporation shall not be required in connection
therewith to qualify as a foreign corporation or to execute general consent to
service of process in any state); provided, however, that if (i) in the case of
an underwritten public offering of securities, the managing underwriter shall
advise the Corporation in writing that inclusion of some or all of such
Supplemental Registration Shares would, in such managing underwriter's opinion,
materially interfere with the proposed distribution of the securities to be
issued by the Corporation, then the Corporation may, upon written notice to
Xxxxxx and to each Transferee of Xxxxxx (other than Public Transferees) allocate
the Supplemental Registration Shares to be included in the registration
statement (if and to the extent such allocation is certified by such managing
underwriter as necessary to eliminate such interference) pro rata among Xxxxxx
and such Transferees, on the one hand, and other selling stockholders, on the
other hand, on the basis of the number of shares of Common Stock held by Xxxxxx
and held by such selling stockholders (assuming the issuance of Common Stock
issuable pursuant to all outstanding warrants, options, convertible and/or
exchangeable securities or other rights to acquire Common Stock, provided that
such securities are at the time exercisable, convertible or exchangeable),
provided that in no event shall the Supplemental Registration Shares be reduced
below 20% of the total amount of securities included in such offering, or (ii)
any firm of counsel representing the Corporation in connection with such
registration shall advise the Corporation, Xxxxxx and such Transferees, in
writing that in their opinion the steps contemplated hereby are not necessary to
permit the sale of the Supplemental Registration Shares in a transaction
constituting a public offering within the meaning of the Securities Act, then
the Corporation shall not be required to take any action with respect to such
step or steps.
(f) If and whenever the Corporation is required
by the provisions of this Section 7 to use its reasonable best efforts to effect
the registration under the Securities Act of any securities requested to be so
registered by Xxxxxx, the Corporation will, as promptly as possible:
(i) prepare and file with the
Commission a registration statement with respect to such securities and use its
reasonable best efforts to cause such registration statement to become
effective;
(ii) prepare and file with the
Commission such amendments and supplements to such registration statement and
the prospectus used in connection therewith as may be necessary to keep such
registration statement effective for a period from the date of the effectiveness
thereof through the earlier of (1) the date which is nine (9) months after the
date of effectiveness thereof and (2) the date on which all Requested
Registration Shares or Supplemental Registration Shares, as the case may be,
included in such registration statement shall have been sold pursuant to such
registration statement, and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all securities covered by such
registration statement whenever Xxxxxx or Transferees of Xxxxxx (other than
Public Transferees) shall desire to sell or otherwise dispose of the same within
such period;
11
(iii) furnish to Xxxxxx and such
Transferees such number of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and
such other documents as may reasonably be requested thereby in order to
facilitate the public sale or other disposition of such securities owned
thereby;
(iv) notify Xxxxxx and such
Transferees, in writing, at any time when a prospectus relating to such
securities is required to be delivered under the Securities Act within the
appropriate period mentioned in clause (ii) immediately preceding, of the
happening of any event as a result of which the prospectus included in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
circumstances then existing, and promptly prepare (and file with the
Commission) and furnish to Xxxxxx and such Transferees a reasonable number of
copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading in the light of
the circumstances then existing; and
(v) furnish, at the request of
Xxxxxx or such Transferees, on the date that its securities are delivered to
the underwriters for sale pursuant to a registration thereof pursuant hereto
or, if such securities are not being sold through underwriters, on the date
the registration statement with respect to such securities becomes effective
(x) an opinion (in the form customarily provided to underwriters in such
transactions) dated such date of the counsel representing the Corporation for
the purposes of such registration, addressed to the underwriters, if any, and
to Xxxxxx and such Transferees, and (y) a letter dated such date from the
independent public accountants of the Corporation addressed to the
underwriters, if any, in each case covering substantially the same matters
with respect to the issuer, such registration statement (and the prospectus
included therein) and, in the case of the accountants' letter, with respect
to the financial statements and financial information included in such
registration statement (and the prospectus included therein) and with respect
to events subsequent to the date of the financial statements included in such
registration statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities.
(g) Xxxxxx and such Transferees agree to
furnish the Corporation such information regarding Xxxxxx and the proposed
distribution of Requested Registration Shares or Supplemental Registration
Shares, as the case may be, by Xxxxxx and such Transferees as the Corporation
may from time to time reasonably request in writing in order to prepare a
registration statement and prospectus or any supplement or amendment thereto
pursuant to the Securities Act and the rules and regulations promulgated
thereunder.
(h) Xxxxxx and such Transferees agree that,
upon receipt of a written notice from the Corporation of the happening of any
event of the kind described in clause (iv) of Section 7(e) above, they will
forthwith discontinue their disposition of Requested Registration Shares or
Supplemental Registration Shares, as the case may be, pursuant to the
registration statement relating to such Requested Registration Shares or
Supplemental Registration Shares, as the case may be, until their receipt of
the copies of the supplemented or amended prospectus
12
contemplated by clause (iv) of Section 7(f) above and, if so requested by the
Corporation in writing, will deliver to the Corporation (at the Corporation's
expense) all copies then in their possession, other than permanent file copies,
of the prospectus relating to such Requested Registration Shares or Supplemental
Registration Shares, as the case may be.
(i) The Corporation shall pay all expenses
necessary to effect under the Securities Act any registration statements,
amendments or supplements filed pursuant to this Section 7 (other than
underwriters' discounts and commissions and brokerage commission and fees, if
any, payable with respect to securities sold by Xxxxxx or such Transferees),
including, without limitation, printing expenses, fees of the Commission and the
National Association of Securities Dealers, Inc., expenses of compliance with
blue sky and other state securities laws, and accounting and legal fees and
expenses (including the reasonable legal fees and expenses of one counsel to
Xxxxxx and such Transferees exercising their rights under this Section 7);
provided, however, that the Corporation shall not be required to pay for any
expenses of any registration proceeding begun pursuant to subsection (a) above
if the registration request is subsequently withdrawn at the request of Xxxxxx
and/or any such Transferee, unless Xxxxxx and/or any such Transferee agrees to
forfeit their right to one demand registration pursuant to subsection (a) above.
(j) Whenever a registration statement requested
pursuant to Section 7(a) covers an underwritten public offering, the Corporation
will have, subject to the reasonable approval of Xxxxxx, the right to select the
managing underwriter(s) to administer the offering; provided that the managing
underwriters shall be of nationally recognized standing. Other than pursuant to
a registration statement requested pursuant to Section 7(a), if the Corporation
at any time proposes to register any of its securities under the Securities Act
for sale for its own account and such securities are to be distributed by or
through one or more underwriter(s), the Corporation will have the right to
select the managing underwriter(s) to administer the offering.
(k) From and after such date as the Corporation
shall have filed a registration statement pursuant to the requirements of
Section 12 of the Securities Exchange Act of 1934 (the "Securities Exchange
Act") relating to any class of equity securities of the Corporation or a
registration statement pursuant to the requirements of the Securities Act, the
Corporation covenants that it will, so long as any Securities remain
outstanding, file all reports required to be filed by it under the Securities
Act or the Securities Exchange Act and the rules and regulations promulgated by
the Commission thereunder, and the Corporation will take such further reasonable
action as any Stockholder may reasonably request, all to the extent required
from time to time to enable such Stockholder to sell such restricted shares held
by them without registration within the limitations of the exemptions provided
by (i) Rule 144 of the Securities Act or (ii) any similar rule or regulation
hereafter promulgated by the Commission.
(l) In the event of any registration pursuant to
this Section 7 covering securities beneficially owned by Xxxxxx and any
Transferee of Xxxxxx (other than Public Transferees), the Corporation will
indemnify and hold harmless Xxxxxx and any such Transferee (if securities of
Xxxxxx or such Transferee are included in the subject registration statement)
(collectively, the "Indemnitees") against any losses, claims, damages, costs,
expenses (including reasonable attorneys' fees), or liabilities (or actions in
respect thereof) under the Securities Act or otherwise, which arise out of or
are based upon any untrue statement or alleged untrue
13
statement of any material fact contained in any such registration statement, any
preliminary prospectus or final prospectus contained therein, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Corporation will not be liable in any such case to an Indemnitee to the
extent that any such loss, claim, damage or liability arises out of or is based
upon (x) an untrue statement or alleged untrue statement or omission or alleged
omission made in said registration statement, said preliminary prospectus, said
prospectus, or any said amendment or supplement, in reliance upon and in
conformity with written information furnished by such Indemnitee, specifically
for use in the preparation thereof or (y) such Indemnitee's failure to deliver a
copy of the prospectus or any amendments or supplements thereto (if required by
applicable law) to the person asserting any loss, claim, damage or liability
after the Corporation has furnished such Indemnitee with the same. The
Corporation also agrees to reimburse each Indemnitee for any legal or other
expenses reasonably incurred by such Indemnitee in connection with investigating
or defending any such loss, claim, damage, liability or action. Notwithstanding
the foregoing, the indemnity agreement contained in this subsection (l) shall
not apply to amounts paid in settlement of any such loss, claim, damage, cost,
expense or liability if such settlement is effected without the consent of the
Corporation (which consent shall not be unreasonably withheld).
(m) In the event of any registration pursuant to
this Section 7 covering securities beneficially owned by Xxxxxx or any
Transferee of Xxxxxx (other than Public Transferees), Xxxxxx or such Transferee,
as applicable, (if securities of Xxxxxx or such Transferee are included in the
subject registration statement) shall severally (and not jointly) as to such
person in the instances and to the extent set forth in this subsection (m)
indemnify and hold harmless the Corporation, each of its directors and officers
who has signed any registration statement, and each person, if any, who controls
the Corporation within the meaning of the Securities Act, against any losses,
claims, damages, costs, expenses (including reasonable attorneys' fees), or
liabilities (or actions in respect thereof) to which the Corporation or any such
director, officer, or controlling person may become subject, under the
Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue or alleged untrue statement of any material fact contained in said
registration statement, said preliminary prospectus, said prospectus, or said
amendment or supplement thereto, or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in said registration
statement, said preliminary prospectus, said prospectus, or said amendment or
supplement, in reliance upon and in conformity with written information
furnished by such stockholder, as the case may be, specifically for use in the
preparation thereof. Such stockholder, as the case may be, shall severally (and
not jointly) reimburse any legal or other expenses reasonably incurred by the
Corporation or any such director, officer, or controlling person in connection
with investigating or defending any such loss, claim, damage, liability or
action.
14
(n) Promptly after receipt by an indemnified
party under this Section 7 of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against any
indemnifying party under this Section 7 notify the indemnifying party of the
commencement thereof; provided, however, that failure to so notify the
indemnifying party shall not affect an indemnifying party's obligations
hereunder, except to the extent that a party is actually prejudiced by such
failure. In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in the defense thereof, with counsel
reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party may retain its own counsel, who shall be
reasonably satisfactory to the indemnifying party. The reasonable fees and
expenses of such counsel shall be borne by the indemnifying party.
(o) With respect to any underwritten offering,
each stockholder (if securities of that person are included in the subject
registration statement) and the Corporation shall, in addition to the foregoing,
provide the underwriter of such offering with customary representations and
warranties, and indemnification, in each instance as shall be reasonably
requested by the underwriter, provided, however, that any such agreement to
indemnify an underwriter with respect to any preliminary prospectus shall not
inure to the benefit of any such underwriter to the extent that any loss, claim,
damage or liability of any such underwriter results solely from an untrue
statement of material fact contained in, or the omission of a material fact
from, such preliminary prospectus which untrue statement or omission was
corrected in the final prospectus, if such underwriter failed to send or give a
copy of the final prospectus to the person asserting such loss, claim, damage or
liability at or prior to the written confirmation of the sale of such securities
to such person, and provided further that any such agreement by any stockholder
to indemnify an underwriter shall be on a several (and not joint) basis in
proportion to the number of securities sold by such stockholder, as the case may
be, in such underwritten offering and shall be limited in amount to the net
proceeds received by such stockholder, as the case may be, in such underwritten
offering. To the extent that the provisions on indemnification and contribution
contained in the underwriting agreement entered into in connection with any
underwritten offering are in conflict with the provisions contained in this
Section 7, the provisions in the underwriting agreement shall control.
(p) Notwithstanding anything to the contrary in
this Section 7, if the Corporation shall furnish to Xxxxxx or any Transferee
requesting and/or participating in a registration statement pursuant to this
Section 7 a certificate signed by the Chief Executive Officer of the Corporation
stating that, in the good faith judgment of the Board of Directors of the
Corporation, it would be seriously detrimental to the Corporation and its
stockholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, the Corporation
shall have the right to defer taking action with respect to such filing for a
period of not more than 120 days; provided, however, that the Corporation may
not utilize this right more than once in any twelve-month period.
(q) Neither Xxxxxx nor any Transferee shall have
any right to obtain or seek an injunction restraining or otherwise delaying any
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 7.
15
(r) Each of Xxxxxx and any Transferee hereby
agrees that, during the period of duration specified by the Corporation and
an underwriter of Common Stock or other securities of the Corporation,
following the date of the first sale to the public pursuant to a registration
statement of the Corporation filed under the Securities Act, it shall not, to
the extent requested by the Corporation and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without
limitation, any short sale), grant any option to purchase or otherwise
transfer or dispose of (other than to donees who agree to be similarly bound)
any securities of the Corporation held by it at any time during such period
except Common Stock included in such registration; provided, however, that:
(i) such agreement shall be
applicable only to the first such registration statement of the Corporation
which covers Common Stock (or other securities) to be sold on its behalf to
the public in an underwritten offering;
(ii) all officers and directors of
the Corporation enter into similar agreements; and
(iii) such market stand-off time
period shall not exceed 180 days.
In order to enforce the foregoing covenant, the Corporation
may impose stop-transfer instructions with respect to the shares subject to
this subsection (r) until the end of such period. Notwithstanding the
foregoing, the obligations described in this subsection (r) shall not apply
to a registration relating solely to employee benefit plans on Form S-l or
Form S-8 or similar forms which may be promulgated in the future, or a
registration relating solely to a Rule 145 transaction on Form S-4 or similar
forms which may be promulgated in the future.
8. STANDSTILL. Xxxxxx and each Transferee of Xxxxxx
(other than Public Transferees) agree that from and after the date of this
Agreement, unless such shall have been specifically invited or approved in
writing by the Board of Directors of the Corporation, neither Xxxxxx nor any
Affiliate of Xxxxxx and neither a Transferee of Xxxxxx (other than Public
Transferees) nor any Affiliate of such Transferee will in any manner,
directly or indirectly, except as provided in this Agreement or in the
Corporation's By-laws, (a) effect or seek, offer or propose (whether publicly
or otherwise) to effect, or cause or participate in or in any way assist any
other person or entity to effect or seek, offer or propose (whether publicly
or otherwise) to effect or participate in, (i) any acquisition of any voting
equity securities of the Corporation and any shares of Class B Common Stock
(or beneficial ownership thereof) or all or substantially all of the assets
of the Corporation or any of its subsidiaries, (ii) any tender or exchange
offer (other than to tender or exchange securities of the Corporation in a
tender offer or exchange offer effected by another person or entity not an
Affiliate of Xxxxxx and not an Affiliate of such Transferee) or merger or
other business combination involving the Corporation or any of its
subsidiaries, (iii) any recapitalization, restructuring, liquidation,
dissolution or other extraordinary transaction with respect to the
Corporation or any of its subsidiaries, or (iv) any "solicitation" of
"proxies" (as such terms are used in the proxy rules of the Commission) or
consents to vote securities of the Corporation, (b) form, join or in any way
participate in a "group" (as defined under the Securities Exchange Act of
1934, as amended), (c) except as may result from Xxxxxx'x representation on
the Board of Directors of the Corporation, otherwise act,
16
alone or in concert with others, to seek to control or influence the
management, Board of Directors or policies of the Corporation, (d) take any
action which might force the Corporation to make a public announcement
regarding any of the types of maters set forth in (a) above, or (e) enter
into any discussions or arrangements with any third-party (other than the
directors of the Corporation) with respect to any of the foregoing. Xxxxxx
and each Transferee of Xxxxxx (other than Public Transferees) shall not
amend, waive, modify, or seek from the Corporation (acting through its
officers) the amendment, waiver or modification of, or act in contravention
of, directly or indirectly, the provisions of this Section 8 (including this
sentence) without the prior written consent of the Board of Directors of the
Corporation. Notwithstanding anything to the contrary set forth in this
Section 8, Xxxxxx and each Transferee of Xxxxxx shall be permitted to acquire
(x) any or all of the Management Shares and the Xxxxxxx Shares pursuant to
the terms of this Agreement, (y) New Securities pursuant to the terms of
Section 6 hereof or (z) any securities in connection with the consummation of
the transactions contemplated by the Xxxxx Agreement.
9. LEGEND AND COMPLIANCE WITH SECURITIES LAWS. The
stock certificates evidencing the Management Shares, the Xxxxxxx Shares and
the Xxxxxx Shares, including any additional shares acquired by any such party
to this Agreement pursuant to the terms of this Agreement or otherwise, shall
bear a legend reading substantially as follows:
"The securities represented by this certificate have
not been registered under the Securities Act of 1933, as
amended, or qualified under state securities laws and may not
be sold, pledged, or otherwise transferred unless (a) covered
by an effective registration statement under the Securities
Act of 1933, as amended, and qualified under applicable state
securities laws, or (b) Path 1 Network Technologies Inc. has
been furnished with a written opinion of counsel acceptable to
it or by its counsel to the effect that no registration or
qualification is legally required for such transfer.
The securities represented by this certificate are
subject to a Stockholders Agreement dated as of April 10,
2000, and any subsequent amendments or supplements thereto.
Any sale, transfer, pledge or other disposition of the
securities represented by this certificate is subject to the
provisions of said agreement, a copy of which is on file and
may be obtained at the offices of Path 1 Network Technologies
Inc."
Each of the Management Stockholders, Xxxxxxx and Xxxxxx
consent to the Corporation making a notation on its records and giving
instructions to any transfer agent of the Securities in order to implement any
restrictions on transfer established in this Agreement.
10. AMENDMENT TO BY-LAWS. On or prior to the Effective
Date, the Corporation shall cause the By-laws of the Corporation to be amended
to include the provisions set forth in Annex A attached hereto (the
"Amendment"). The parties hereto hereby covenant and agree that once the
provisions set forth in the Amendment have been adopted by the Board of
Directors, the parties hereto shall not, for so long as Xxxxxx and any Affiliate
of Xxxxxx own a
17
number of the outstanding voting equity securities and Class B Common Stock
of the Corporation representing at least 20% of the number of issued and
outstanding voting equity securities and Class B Common Stock of the
Corporation (assuming the issuance of all voting equity securities and Class
B Common Stock of the Corporation issuable pursuant to then outstanding
warrants, options, convertible or exchangeable securities and other rights to
acquire voting equity securities and Class B Common Stock of the Corporation
from the Corporation), without the prior written consent of Leitch, alter,
amend or repeal the Amendment or any other provision of the By-laws which
shall have the same effect as altering, amending or repealing the Amendment,
notwithstanding the fact that no vote of stockholders of the Corporation may
be required, or that a lesser percentage vote may be specified by law, by the
Certificate of Incorporation or the By-laws.
11. TERMINATION OF THIS AGREEMENT. All rights and
obligations created by this Agreement (other than as provided in Section 7
above, which Section 7 shall control) shall terminate upon the earlier to occur
of (a) the written agreement of the Corporation and all of such of Xxxxxx,
Xxxxxxx and the Management Stockholders who own Securities at the time, (b) the
acquisition by a single purchaser of all of the issued and outstanding shares of
Common Stock, (c) the close of business on the tenth anniversary of the date of
the execution and delivery of this Agreement, (d) the merger or consolidation of
the Corporation with or into another entity following which merger or
consolidation more than 50% of the then outstanding voting equity securities of
the Corporation are held by persons or entities different than immediately prior
to such merger or consolidation or (e) the closing of the Corporation's
underwritten public offering pursuant to an effective registration statement
under the Securities Act covering the offer and sale of shares of the
Corporation's voting equity securities in which not less than $25,000,000 of net
proceeds are received by the Corporation for the account of the Corporation.
12. NOTICES. Any notice or other communication under this
Agreement shall be in writing and sufficient if delivered personally or sent by
registered or certified mail, postage prepaid, by recognized overnight courier,
or by telecopy, addressed as follows:
If to the Corporation:
0000 Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: President
with copies to Xxxxxx (at the address provided below)
and to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
00000 Xx Xxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxx Xxxxxxx, Esq.
18
If to Xxxxxx:
00 Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxx
Xxxxxx X0X 0X0
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Mr. Reg X. Xxxxxxx
with a copy to:
Torys
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxx X. Cost, Esq.
If to Xxxxxxx:
00000 Xxxxxxxxx Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to Xxxxxx:
0000 Xxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
If to Xxxxxxx:
c/o the Corporation
0000 Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
All such notices and communications shall be deemed to have been duly given at
the time delivered by hand, if personally delivered, upon receipt, if sent by
telecopy, on the next business day, if sent by a nationally recognized courier,
or three (3) business days after being deposited in the mail, if sent by
registered or certified mail. Any party may, upon written notice to the other
19
parties hereto, change the address to which notices or other communications to
such party are to be delivered or mailed.
13. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, including by telecopy, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
14. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties hereto with respect to the subject matter hereof.
All of the parties hereto agree that this Agreement may be amended or modified
or any provision hereof may be waived by a written agreement among the parties;
provided that notwithstanding the foregoing, any amendment, modification or
waiver of Section 8 may be effected pursuant to the written agreement of Xxxxxx
and the Corporation only (acting through, and under written direction from, its
Board of Directors). This Agreement supersedes all prior understandings,
negotiations and agreements relating to the subject matter hereof.
15. GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such State, without regard
to the conflict of laws principles of such State.
16. JURISDICTION; WAIVER OF TRIAL BY JURY. THE PARTIES
HERETO HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE OR UNITED STATES FEDERAL COURT SITTING IN THE CITY OF NEW YORK OVER ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND HEREBY
IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING SHALL
BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. THE PARTIES
AGREE THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE
AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY
OTHER MANNER PROVIDED BY LAW. THE PARTIES FURTHER WAIVE TRIAL BY JURY, ANY
OBJECTION TO VENUE IN SUCH STATE AND ANY OBJECTION TO ANY ACTION OR PROCEEDING
IN SUCH STATE ON THE BASIS OF FORUM NON CONVENIENS. THE PARTIES FURTHER AGREE
THAT ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL
BE BROUGHT ONLY IN A NEW YORK STATE OR UNITED STATES FEDERAL COURT SITTING IN
NEW YORK COUNTY.
17. HEADINGS. The headings in this Agreement are solely
for convenience of reference and shall not affect the interpretation of any of
the provisions hereof.
18. SEVERABILITY. If any provision herein contained shall
be held to be illegal or unenforceable, such holding shall not affect the
validity or enforceability of the other provisions of this Agreement.
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19. BINDING EFFECT. This Agreement shall be binding upon
and inure to the benefit of the Corporation, each of the Stockholders, each of
their respective successors, permitted assigns, executors, administrators, legal
representatives and heirs, as applicable.
20. CONSTRUCTION.
(a) The parties hereto agree that this Agreement
is the product of negotiations between sophisticated parties and individuals,
all of whom were represented by counsel, and each of whom had an opportunity to
participate in, and did participate in, the drafting of each provision hereof.
Accordingly, ambiguities in this Agreement, if any, shall not be construed
strictly or in favor of or against any party hereto but rather shall be given a
fair and reasonable construction without regard to the rule of contra
proferentem.
(b) The provisions of this Agreement shall apply
MUTATIS MUTANDI to any shares or other securities resulting from any stock split
or reverse split, stock dividend, reclassification of the capital stock of the
Corporation, consolidation, merger or reorganization of the Corporation or of
any successor company which may be received by any of the Stockholders (and/or
their respective Transferees, successors, permitted assigns, legal
representatives and heirs) by virtue of such person's or entity's ownership of
Common Stock.
21. EFFECTIVENESS. Notwithstanding anything to the
contrary contained herein or otherwise, this Agreement automatically shall
become effective (without further act or deed by any party hereto or otherwise),
and shall thereafter be in full force and effect, on (and only on and after) the
Effective Date.
* * * *
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Stockholders' Agreement on the date first above written.
PATH 1 NETWORK TECHNOLOGIES INC.
By: /s/ Xxxx Xxxxx
------------------------------
Name: Xxxx Xxxxx
Title: Secretary
XXXXXX TECHNOLOGY CORPORATION
By: /s/ X. X. XxxXxxxxx
------------------------------
Name: Xxxx X. XxxXxxxxx
Title: President and Chief Executive
Officer
By: /s/ Reg X. Xxxxxxx
------------------------------
Name: Reg X. Xxxxxxx
Title: Chief Financial Officer
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Xxxxxxx X. Xxxxxxx
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ANNEX A
AMENDMENT TO BY-LAWS
1. Special meetings of the Board of Directors may be called by
any director of the Corporation upon written notice given, pursuant to the
requirements of the By-laws, to each of the other directors.
2. Directors and committee members, as the case may be, must be
given at least 48 hours' written notice of any Board of Directors meeting or
meeting of any committee of the Board of Directors. Any Director(s) shall be
allowed to participate in Board and committee meetings via telephone.
3. The Corporation shall reimburse each director of the
Corporation and each member of any committee established by the Board of
Directors for all reasonable out-of-pocket expenses incurred by such director or
member in connection with the attendance by such director or member at meetings
of the Board of Directors of the Corporation or at meetings of committees of the
Board of Directors, in any case, held in accordance with the By-laws.
4. Any stockholder or stockholder group holding at least 20% of
the issued and outstanding Common Stock of the Corporation (assuming the
issuance of all Common Stock issuable pursuant to then outstanding warrants,
options, convertible or exchangeable securities and other rights to acquire
Common Stock from the Corporation, provided such warrants, options, convertible
or exchangeable securities are at the time convertible or exchangeable) may call
a special meeting of the stockholders of the Corporation.
5. Notwithstanding the fact that no vote of the Board of
Directors may be required, or (in the specific instances requiring a
percentage vote) that a lesser percentage vote may be allowed by the Delaware
General Corporation Laws, by the Certificate of Incorporation or the By-laws
of the Corporation or otherwise, the Corporation shall submit to the Board of
Directors (and not to any committee thereof) for its review and prior
approval all of the following items and actions:
(i) the Corporation's consolidated annual operating
and capital budgets;
(ii) the Corporation's consolidated business plan;
(iii) the making, alteration, amendment or repeal of the
Certificate of Incorporation of the Corporation or any part thereof, or the
making, alteration, amendment or repeal of the By-laws or any part thereof,
of the Corporation;
(iv) the (a) incurrence of indebtedness for borrowed
money in the name, for the account or on behalf of the Corporation or any of
its subsidiaries in excess of an aggregate amount of $5,000,000 or (b)
investment in the Corporation or any of its subsidiaries by another person or
entity;
(v) the investment (exclusive of amounts on deposit
with banks or lending institutions and short term U.S. government
obligations) by the Corporation or any of its
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subsidiaries (whether by way of exchange, purchase, loan, advance, capital
contribution or otherwise) in any person or entity or affiliated person or
entity in excess of an aggregate amount of $1,000,000;
(vi) (a) any capital expenditures by the Corporation or
any of its subsidiaries in excess of $1,000,000, or (b) the Corporation or
any of its subsidiaries entering into any contract or other agreement
involving anticipated expenditures or otherwise having a total value over the
term of such contract or agreement greater than $1,000,000; and
(vii) (a) the sale of all or substantially all of the
assets of the Corporation or any of its subsidiaries in any one transaction
or a series of related transactions, or (b) the transfer or licensing of the
technology (or any part thereof) of the Corporation or any of its
subsidiaries other than in the ordinary course of business (including, on an
exclusive basis in terms of territory, field of use or otherwise).
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