SHAREHOLDERS’ AGREEMENT
Exhibit
10.14
SHAREHOLDERS’
AGREEMENT
THIS
SHAREHOLDERS’ AGREEMENT is entered into this 28th day of September, 2006, 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,
the Investors are purchasing on the date hereof 500,000 shares of the Company’s
Series A Convertible Preferred Stock (the “Preferred
Stock”) and
an
aggregate principal amount of $7,000,000 of the Company’s senior subordinated
notes (the “Notes”)
and
have agreed to purchase from the Company up to an additional $7,000,000
principal amount of the Notes in the future from time to time; and
WHEREAS,
the Company expects to receive substantial benefits as a result of the purchase
by the Investors of the Preferred Stock and the Notes; and
WHEREAS,
the execution of this shareholders’ agreement relating to the election of
members to the Company’s board of directors (the “Board”)
is a
condition to the purchase of the Preferred Stock and Notes by the
Investors;
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)); and
(ii) against
the election or continued service of any director (other than the Investor
Directors) who is an Affiliate of either of the Investors.
(b) Promptly
after execution of this Agreement, but in any event within five (5) days
hereof,
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
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directors
on the Board of Directors shall be increased to five directors and the Initial
BOCO Director (as defined in Section 1(c)) shall be named to fill the vacancy
created by reason of such increase in the number of 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).
(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”).
The
Initial GDBA Director was previously appointed to and is currently serving
on
the Board of Directors. 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 as set forth in Section 1(b).
(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 five directors without the unanimous approval of the Board of
Directors, including the BOCO Director.
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 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.
3. Transfer
of Stock.
GDBA
shall not to sell, convey, assign or otherwise transfer any of its shares
of
capital stock of the Company (including any shares of Preferred Stock) 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,
GDBA
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
GDBA will hold at least forty percent in voting power of the issued and
outstanding shares of capital stock of the Company, including for the purpose
of
this
2
calculation
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 BOCO shall terminate on the earlier of (i) the
fifth
anniversary of the date on which the Preferred Stock held by BOCO is fully
converted into shares of common stock of the Company, or (ii) the date on
which
BOCO no longer own shares of common stock or shares of Preferred Stock (the
“BOCO
Termination Date”).
Following the BOCO Termination Date, the rights and obligations of BOCO under
this Agreement shall cease but this Agreement shall remain in effect as between
the Company and GDBA, provided that,
the
restrictions on transfer set forth in Section 3 hereof shall be terminated.
The
rights and obligations of GDBA shall terminate on the earlier of (i) the
fifth
anniversary of the date on which the Preferred Stock held by GDBA is fully
converted into shares of common stock of the Company, or (ii) the date on
which
GDBA no longer own shares of common stock or shares of Preferred Stock (the
“GDBA
Termination Date”).
Following the GDBA Termination Date, the rights and obligations of GDBA under
this Agreement shall cease but this Agreement shall remain in effect as between
the Company and BOCO. The rights and obligations of the Company under this
Agreement shall terminate on the later of the BOCO Termination Date or the
GDBA
Termination Date.
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, each Series A Holder shall 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:
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If
to the Company:
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Across
America Real Estate Corp.
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0000
Xxxxxxxxxxx Xxxxxx, Xxxxx 000
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Xxxxxx,
Xxxxxxxx 00000
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Attention:
Chief Executive Officer
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxxxx
Xxxxxx & Associates, P.C.
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0000
Xxxx Xxxxxxxx Xxx.
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Xxxxxxxxx
Xxxxx
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Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
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Attention:
Xxxxx X. Xxxxxx, Esq.
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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The
Series A Holders:
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BOCO
Investments, LLC
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000
Xxxx Xxxxxxxx Xxx.
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Xxxx
Xxxxxxx, Xxxxxxxx 00000
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Facsimile:
(000) 000-0000
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Attention:
Chief Executive Officer
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a copy to:
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Xxxxx
Xxxxxx & Xxxxxx LLP
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0000
00xx
Xxxxxx, Xxxxx 000
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Xxxxxx,
Xxxxxxxx 00000
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Attention:
Xxxxxx X. Xxxxxx XX and Xxxxx X. Xxxxxxxx
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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GDBA
Investments, LLLP
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0000
Xxxxx Xxxxxx, Xxxxx 000
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Xxxxxx,
XX 00000
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Facsimile:
(000) 000-0000
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Attention:
Chief Executive Officer
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a copy to
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Xxxxx
& Xxxxxxx X.X.
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Xxxxx
000, Xxxxxx Xxxxxx
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0000
Xxxxxxxxxxx Xxxxxx
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Xxxxxx,
XX 00000
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Facsimile:
(000) 000-0000
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Attention:
Xxxxxxx X. Xxxxxxx
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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.
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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.
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.
/s/
Xxx X. Xxxxxxx
Name:
Xxx
X. Xxxxxxx
Title:
Chief Executive Officer
INVESTORS:
BOCO
INVESTMENTS, LLC
/s/
Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title:
CEO
GDBA
INVESTMENTS, LLLP
/s/
G.
Xxxxx Xxxxxxx
Name:
G.
Xxxxx Xxxxxxx
Title:
Manager
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