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EXHIBIT 10.10
_______________________________________________________________________________
NDE ENVIRONMENTAL CORPORATION
SHAREHOLDER AGREEMENT
_______________________________________________________________________________
DATED AS OF OCTOBER 25, 1996
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. BOARD OF DIRECTORS. . . . . . . . . . . . . . . . . . . . 2
SECTION 3. MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . 2
3.1 TERMINATION OF CO-SALE RIGHTS . . . . . . . . . . 2
3.2 NOTICES . . . . . . . . . . . . . . . . . . . . . 3
3.3 SUCCESSORS AND ASSIGNS . . . . . . . . . . . . . . 5
3.4 SEVERABILITY . . . . . . . . . . . . . . . . . . . 5
3.5 AMENDMENTS . . . . . . . . . . . . . . . . . . . . 5
3.6 GOVERNING LAW . . . . . . . . . . . . . . . . . . 5
3.7 OTHER OBLIGATIONS OF COMPANY . . . . . . . . . . . 5
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SHAREHOLDER AGREEMENT
This is a Shareholder Agreement dated as of October 25, 1996
("Agreement") by and among PROACTIVE PARTNERS, L.P., a California limited
partnership ("Proactive"), LAGUNITAS PARTNERS, L.P., a California limited
partnership ("Lagunitas"), XXX XXXXX XXXXXXX, A. XXXXXX XXXXXXXX and BANC ONE
CAPITAL PARTNERS, L.P. ("BOCP"), an Ohio limited partnership, entered into in
connection with the NOTE AND WARRANT PURCHASE AGREEMENT , as amended, restated,
supplemented or otherwise modified from time to time ("Purchase Agreement") by
and among BOCP, as purchaser, and NDE ENVIRONMENTAL CORPORATION ("NDE"),
TANKNOLOGY/NDE CORPORATION, USTMAN INDUSTRIES, INC., PROECO, INC., and
TANKNOLOGY CANADA (1988), INC.
NDE, together with its successors and assigns, is referred to as the
"Company," Proactive, Lagunitas, and Messrs. Xxxxxxx and Shamplin together with
their respective successors and assigns, are referred to collectively as the
"Shareholders" and individually as a "Shareholder," and BOCP, together with its
successors and assigns, is referred to as the "Holder." The Company, the
Shareholders and the Holder are referred to collectively as the "Parties" and
individually as a "Party."
THIS AGREEMENT IS NOT ONE OF THE "RELATED DOCUMENTS" REFERRED TO IN
THE PURCHASE AGREEMENT.
In consideration of their mutual promises set forth in this Agreement
and the Purchase Agreement, the Parties hereby agree as follows.
SECTION 1. DEFINITIONS
All capitalized terms not otherwise defined in this Agreement shall have the
definitions set forth in the Purchase Agreement. The terms defined in the
Purchase Agreement that are used with such definitions in this Agreement
include:
"Closing Date"
"Common Shares"
"Notice"
"Qualified Public Offering"
"Warrant Shares"
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SECTION 2. BOARD OF DIRECTORS.
The Shareholders shall use all reasonable efforts and shall vote all
Common Shares held by each of them to:
(a) cause the maximum number of directors constituting the
Board of Directors of NDE to be fixed at six directors or, at the
request of BOCP, to be fixed at seven directors;
(b) if the maximum number of directors is fixed at six, cause
one director nominated by BOCP to be elected as a director, or, if the
maximum number of directors is fixed at seven, cause two directors
nominated by BOCP to be elected as directors;
(c) cause the Board of Directors to establish and maintain an
Audit Committee, Compensation Committee and an Executive Committee,
each such committee having three director members, one of whom, in
each case, shall be a director nominated by BOCP; and
(d) permit a representative designated by BOCP to attend as an
observer any meeting of the Board of Directors and any committee
thereof, and furnish to BOCP copies of all notices, agendas,
materials and minutes with respect to such meetings.
SECTION 3. MISCELLANEOUS PROVISIONS.
3.1 TERMINATION OF RIGHTS. The rights of the Holder
under this Agreement and the obligations of the Shareholder with respect to the
Holder shall terminate at such time as the Warrants have expired in accordance
with their terms and the Holder does not own any Warrant Shares. Unless sooner
terminated in accordance with the preceding sentence, this Agreement shall
terminate upon the occurrence of any one of the following events:
(a) The liquidation, dissolution or indefinite cessation
of the business operations of the Company;
(b) The execution by the Company of a general assignment
for the benefit of creditors or the appointment of a receiver or trustee to
take possession of the property and assets of the Company;
(c) The consummation of an Qualified Public Offering; or
(d) The sixth anniversary of the Closing Date.
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3.2 NOTICES. Any notice or other communication required
or permitted to be made or given under this Agreement, shall be in writing and
shall be deemed to have been received by the Party to whom it is addressed:
(i) on the date indicated on the certified mail return receipt if sent by
certified mail return receipt requested; (ii) on the date actually received if
hand delivered or if transmitted by telefax (receipt of which is confirmed to
sender); or (iii) one business day after such notice was delivered to an
overnight delivery service, addressed, delivered or transmitted in each case as
follows:
IF TO THE HOLDER:
Banc One Capital Partners, L.P.
000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxx 00000
ATTENTION: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
WITH A COPY TO:
Banc One Capital Corporation
000 Xxxx Xxx Xxxxxx, 00xx Xxxxx
Xxxxxxxx, Xxxx 00000
ATTENTION: Legal Department
Telephone: (000) 000-0000
Telefax: (000) 000-0000
IF TO THE COMPANY:
NDE Environmental Corporation
0000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx 000
Xxxxxx, XX 00000
ATTENTION: President
Telephone: (000) 000-0000
Telefax: (000) 000-0000
WITH COPY TO:
NDE Environmental Corporation
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
ATTENTION: Xxx Xxxxx Xxxxxxx
Telephone:
Telefax:
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IF TO PROACTIVE:
Proactive Partners, L.P.
00 Xxxxxx Xxxxx, Xxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
ATTENTION: Xxxxxxx XxXxxxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
IF TO LAGUNITAS:
Lagunitas Partners, L.P.
00 Xxxxxx Xxxxx, Xxxxxxxxx
Xxx Xxxxxxxxx, XX 00000
ATTENTION: Xxx X. Xxxxxx
Telephone: (000) 000-0000
Telefax: (000) 000-0000
IF TO XX. XXXXXXX:
Xxx Xxxxx Xxxxxxx
NDE Environmental Corporation
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
IF TO XX. XXXXXXXX:
A. Xxxxxx Xxxxxxxx
NDE Environmental Corporation
0000 Xxxxx Xxxxx Xxxx.
Xxxxxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telefax: (000) 000-0000
A Party's address for notice may be changed from time-to-time only by
written notice given to each of the other Parties in accordance with this
Section.
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3.3 SUCCESSORS AND ASSIGNS. This Agreement and the
rights and obligations of the parties hereunder shall inure to the benefit of,
and be binding upon, their respective successors, assigns and legal
representatives. The participation rights of the Holder hereunder may not be
assigned or otherwise transferred without the express written consent of the
Company and the Shareholders, which shall not be unreasonably withheld.
3.4 SEVERABILITY. In the event one or more of the
provisions of this Agreement should, for any reason, be held to be invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
3.5 AMENDMENTS. Any amendment or modification of this
Agreement shall be effective only if evidenced by a written instrument executed
by duly authorized representatives of the Parties hereto. Any waiver by a
Party of its rights hereunder shall be effective only if evidenced by a written
instrument executed by a duly authorized representative of such Party. In no
event shall such waiver of any rights hereunder constitute the waiver of such
rights in any future instance unless the waiver so specifies in writing.
3.6 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of Ohio.
3.7 OTHER OBLIGATIONS OF COMPANY. The Company agrees to
use all reasonable efforts to enforce the terms of this Agreement, to inform
the Holder of any breach hereof and to assist the Holder in the exercise of its
rights and performance of its obligations under Section 3 hereof.
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The parties have executed and delivered this Agreement effective as of
the day and year first above written.
SHAREHOLDERS: HOLDER:
PROACTIVE PARTNERS, L.P.
BANC ONE CAPITAL PARTNERS, L.P.
By: /s/ XXXXXXX XXXXXXXXXX By: BOCP Corporation,
----------------------- General Partner
By: /s/ XXXXX X. XXXXX
LAGUNITAS PARTNERS, L.P. -----------------------------------
Its: Xxxxx X. Xxxxx, Authorized Signer
By: /s/ XXX X. XXXXXX ----------------------------------
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XXX XXXXX XXXXXXX
/s/ XXX XXXXX XXXXXXX
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A. XXXXXX XXXXXXXX
/s/ A. XXXXXX XXXXXXXX
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