EX-4.4
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of January 28, 1994 and entered into by and among
XXXX X. XXXX of 0000 Xxxxxxxx Xxxxx, Xx. Xxxxx, Xxx Xxxx 00000 ("West"), The
Trust Under Article 16 of the Will of X. Xxxxxx Xxxxx, for the Benefit of
Xxxxxx Xxxxx and The Trust Under Article 16 of the Will of X. Xxxxxx Xxxxx,
for the Benefit of Xxxxx X. Xxxxx (collectively "Xxxxx") and XXXXX and XXXX
XXXX of (collectively "Levy") (West,
Xxxxx and Xxxx are hereinafter collectively referred to as the
"Stockholders"), and PURO CORPORATION OF AMERICA, a Delaware corporation
(hereinafter the "Company").
WITNESSETH:
WHEREAS, the Company was incorporated under the laws of the State of
Delaware on January 28, 1994; and
WHEREAS, the total number of authorized shares of capital stock of the
Company (hereinafter referred to as the "Stock") consists of two million
(2,000,000) shares of common voting stock, $.01 par value (the "Common Stock"
or the "Stock") and
WHEREAS, two hundred fifty thousand (250,000) shares of the Company's
Common Stock have been issued to West; and
WHEREAS, four hundred eighty thousand (480,000) shares of the Company's
Common Stock have been issued to Xxxxx; and
WHEREAS, Xxxxx has acquired that certain Warrant to Purchase the
Company's Common Stock dated January 28, 1994 (the "Warrant"); and
WHEREAS, two hundred seventy thousand (270,000) shares of the Common
Stock have been issued to Levy; and
WHEREAS, the parties hereto desire to provide for the composition of the
Board of Directors of the Company and certain other corporate matters
concerning the orderly operation and management of the Company, and to set
forth their respective rights and obligations in connection therewith; and
WHEREAS, the parties agree that it is in the best interest of the
Company that certain restrictions be imposed upon the Stockholders in the
disposition of their respective stock holdings in the Company.
NOW THEREFORE, in consideration of the mutual promises contained herein
and of the mutual benefits to be gained by the performance thereof, the
parties hereto do hereby agree as follows:
ARTICLE I
MANAGEMENT
A. During the term of this Agreement and for so long as they shall be
Stockholders of any of the capital stock or options, warrants or other
instruments granting the right to purchase any of the capital stock of the
Company, the Stockholders agree that there shall be at lease four (4) members
of the Board of Directors of the Company. The initial number of
2
directors shall be four (4) with one (1) of the four (4) being Xxxxx X. Xxxxx
of New York, New York or his designee, one (1) of the four (4) being West and
the remaining two (2) directors being Levy and/or his designees. If the
number of directors is increased, the additional directors shall be allocated
Pro Rata.
B. The officers of the Company shall, as of the date hereof, be as
follows:
Chairman Xxxxx X. Xxxxx
Co-President and Co-Chief
Executive Officer Xxxx X. Xxxx
Co-President and Co-Chief
Executive Officer Xxxxx Xxxx
C. During the term of this Agreement, the Stockholders agree to vote
their shares in accordance with the terms of this Article and to likewise use
their best efforts to cause the Board of Directors to act in accordance with
this Article.
D. During the term of this Agreement, the Stockholders agree that any
action to be taken by the Board of Directors shall require a unanimous vote
of the Directors.
E. The Stockholders represent and warrant that they are not under any
constraints, contractual or otherwise, against entering into this Agreement
or performing or fulfilling the obligations and services contemplated
hereunder.
3
ARTICLE II
TRANSFER OF STOCKHOLDER'S STOCK DURING LIFE
A. No Stockholder's Stock shall, either voluntarily or involuntarily,
be sold, assigned, transferred, pledged, encumbered or otherwise disposed of,
except in the manner and upon the terms provided in this Agreement, and any
transfer not in compliance with the terms herewith shall be void and shall not
be recognized by this Company or its transfer agent.
B. Subject to any restrictions imposed by the Securities Act of 1933,
as amended, and the regulations promulgated thereunder (hereinafter the
"Act"), the Shares and such shares hereafter acquired by Xxxxx pursuant to
the Warrant shall be freely transferable in whole or in part.
C. (1) No Stockholder shall sell, assign, transfer, mortgage, alienate
or in any way encumber or dispose of any of the shares of Stock which he or
it now owns or which he or it may hereafter acquire nor attempt to so
transfer or encumber such Stock in any manner whatsoever, without first
giving the other Stockholders thirty (30) days notice in writing of the
proposed transfer (hereinafter the "Transfer Notice"). Such Transfer Notice
shall contain the name of the proposed recipient, the number and class of
shares involved and the proposed purchase price and terms.
(2) The non-selling Stockholder (the "Optionee") shall have an
option to purchase any part or all of the Stock proposed for transfer, which
option shall continue for a period of thirty (30) days after receipt of the
Transfer Notice pursuant to
4
subsection (1) of this paragraph. The exercise of such option shall be in
writing. The purchase price and terms of such option shall be no less
favorable than those set forth in the Transfer Notice.
(3) If the Optionee has not exercised its own option as set forth
hereinabove, then the transfer as contemplated in subsection (1) may proceed
in whole and not in part, provided that it shall be consummated to the same
proposed purchaser, on the same terms and at the same price stated in the
Transfer Notice, and that prior to the effectiveness of such transfer, the
transferee shall sign an agreement in form acceptable to the attorneys for
the selling Stockholder, the Optionee and the Company, agreeing to be bound
by the terms of this Agreement. If said transfer is not completed within
thirty (30) days of the expiration of the Optionee's option or the
declination by the Optionee to exercise said option, whichever is earlier,
then the Optionee shall have a second option to purchase any or all of the
Stock proposed for transfer, which option shall continue for a period of
thirty (30) days. The exercise, purchase price and transfer of said second
option shall be as set forth in paragraph C (2) hereinabove.
5
ARTICLE III
TRANSFER IN THE EVENT OF DEATH, PERMANENT DISABILITY
OR CESSATION OF EMPLOYMENT
In the event of the death, dissolution or permanent disability of any
Stockholder, or in the event of the cessation of the employment of West or
Levy by the Company, then the other Stockholders shall have an option to
purchase, pro rata, all of the Stock owned by said Stockholder and the
purchase price shall be as set forth in Article V. Said option shall be
exercised in writing within a period of thirty (30) days after such other
Stockholders receive written notice of such death, permanent disability or
cessation or employment. In the event that either optionee elects not to
purchase any or all of the Stock available pursuant to his or its option, then
the other optionee shall have an option to purchase such Stock upon the same
terms and conditions as in the original option, said option to be exercised
within fifteen (15) days of the expiry of the original option.
ARTICLE IV
INVOLUNTARY TRANSFER
In the event of the voluntary or involuntary bankruptcy or insolvency of
any Stockholder, or the attachment of or execution or levy against any
Stockholder's Stock, or the sale of pledged stock, or in the event that said
Stock is subject to a judicial sale under the laws of any local, state or
federal government, or in the event that the Stock standing in the name of any
6
Stockholder, or any part thereof, is to be transferred out of the name of
such Stockholder by any legal action brought by such Stockholder's spouse,
then in any such event, the Company shall give written notice to the other
Stockholders (the "Optionees") immediately after the Company is made aware of
such actual, pending or threatened action and, the Optionees shall have an
option to purchase, pro rata, said Stock or the part thereof that is subject
to any such transfer or legal action. Said option shall be exercised in
writing within a period of thirty (30) days after the Optionees have received
written notice of the transfer or legal action. Upon exercise of the option,
the purchase price and terms of payment shall be as set forth in Article V.
In the event that either Optionee elects not to exercise all or any portion
of his or its Option, then the other Optionee shall have an option to
purchase the Stock not purchased by the other Optionee, upon the same terms
and conditions as in the Original Option, said option to be exercised within
fifteen (15) days of the expiry of the previous option.
ARTICLE V
PURCHASE PRICE
For purposes of Articles III an IV hereof, the Optionees shall pay to
the selling stockholder, his personal representatives or transferees a
purchase price determined as follows:
(1) The Optionees or their estate or personal representatives as
the case may be, and the other
7
Stockholder shall each select an appraiser within 30 days of the date of
death, cessation of employment or involuntary transfer, each of whom
shall be a member or employee of a certified public accounting or
securities brokerage firm of national reputation, in order to determine a
purchase price for the Stock.
(2) If the two appraisers cannot agree upon a purchase price
for the Stock within 90 days, then the two appraisers shall, as soon as
practicable thereafter, select a third appraiser, who shall have the
same qualifications as above stated. The third appraiser shall confer
with the two other appraisers and a decision of two of the three of them
with respect to said purchase price shall be made within a 30 day period
after designation of the third appraiser. The decision shall be final,
binding and non-appealable and shall be enforceable by either party in
any court of competent jurisdiction.
ARTICLE VI
ENDORSEMENT OF STOCK CERTIFICATES
All of the stock certificates owned by the Stockholders and any
additional stock certificates hereafter issued shall be submitted to the
Secretary of the Company to be endorsed substantially in the following form:
"Any sale, assignment, transfer, pledge, encumbrance or other
disposition of the shares of stock represented by this certificate is
restricted by, and subject to, the terms of a Stockholders Agreement
dated January , 1994 and entered into by and among Xxxx X. Xxxx, The
Trust Under Article 16 of the Will of X. Xxxxxx Xxxxx, for the Benefit
of Xxxxxx Xxxxx and The Trust Under Article 16 of the Will of X. Xxxxxx
Xxxxx, for the Benefit of Xxxxx X. Xxxxx, Xxxxx and Xxxx Xxxx and Puro
Corporation of America. A copy of said agreement is on file with the
Secretary of the Company. By acceptance of this certificate, the holder
hereof agrees to be bound by the terms, including those relating to
transferability, of said agreement."
8
ARTICLE VII
FINANCIAL RECORDS
The Company's books shall be kept at the principal office of the
Company, and the said books shall, during normal business hours, be open to
inspection and copying by any Stockholder a party hereto, or his or its duly
appointed agent.
ARTICLE VIII
PUBLIC OFFERING
Notwithstanding anything contained herein to the contrary, this
Agreement shall be null, void and of no further effect if and when a
registration statement seeking registration of any of the securities of the
Company for an initial public offering thereof pursuant to the Act is filed
with the United States Securities and Exchange Commission and becomes
effective.
ARTICLE IX
AMENDMENT OR ALTERATION
No amendment or alteration of the terms of this agreement shall be valid
unless made in writing and signed by all of the parties hereto.
ARTICLE X
CHOICE OF LAW; JURISDICTION
This agreement shall be governed by the laws of the State of Delaware
without giving effect to principles of conflicts of law.
9
The Stockholders hereby consent to submit themselves to the jurisdiction
of the United States District Court for the Southern District of New York and
the Courts of the State of New York in connection with any disputes which
may arise hereunder. The Company hereby consents to service of process in the
State of New York by naming the Secretary of State of the State of New York
as agent for service of process. Such submission to jurisdiction and consent
to service of process is nonexclusive of any other jurisdiction or manner of
service in which or by which personal jurisdiction over the Original
Stockholder may be obtained.
ARTICLE XI
BINDING EFFECT
The terms of this agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, administrators,
personal representatives, successors and assigns and the holders from time to
time of any of the Stock.
ARTICLE XII
NOTICES
All notices, elections, demands or other communications required or
permitted to be made or given pursuant to this Agreement shall be in writing
and shall be considered as properly given or made if sent prepaid and
actually received by telecopier, certified mail, overnight delivery service
or courier service addressed to the respective parties as indicated below.
10
Any party may change its notice instructions by giving notice thereof, in
writing, to the other parties.
To the Company: Puro Corporation of America
00-00 00xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxx,
President
With a copy to: Xxxxxxx, Xxxxxx & Green
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esquire
To Xxxx X. Xxxx: Xx. Xxxx X. Xxxx
0000 Xxxxxxxx Xxxxx
Xx. Xxxxx, XX 00000
To Xxxxx: c/o Xxxxx X. Xxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
With a copy to: Xxxxx X. Xxx, Esquire
Lev, Xxxxxxx & Berlin, P.C.
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
To Levy: Xxxxx and Xxxx Xxxx
With a copy to: Xxxxxxxxx X. Xxxxxxxx, Esquire
Segan, Culhane, Xxxxxxx & Singer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
or the residence of the legal representative of the estate of a deceased
Stockholder.
11
ARTICLE XIII
PARTIES RIGHTS ARE CUMULATIVE
The rights and remedies granted hereunder to each party are cumulative
and in addition to any rights and remedies granted to said party under any
other agreement to which they are parties.
ARTICLE XIV
WAIVER OF BREACH
No failure on the part of any party hereto to enforce the breach of any
of the obligations, agreements or conditions hereunder shall be construed as
a waiver of such breach or any subsequent performance hereunder unless such
waiver shall be in writing signed by the party to whom such obligation or
compliance is owed.
ARTICLE XV
USAGE
Any term used in the singular or plural, or masculine, feminine or
neuter forms shall be singular or plural, and masculine, feminine or neuter
as proper reading requires.
12
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
WITNESSES:
Attest: PURO CORPORATION OF AMERICA
a Delaware Corporation
By: /s/ Xxxxx Xxxx & Xxxx X. Xxxx
---------------------------------- -----------------------------------
Its Secretary Its Co-Presidents
Hereunto Duly Authorized Hereunto Duly Authorized
/s/ Xxxx X. Xxxx
---------------------------------- -----------------------------------
Xxxx X. Xxxx
----------------------------------
The Trust Under Article 16 of the
Will of X. Xxxxxx Xxxxx, for the
Benefit of Xxxxxx Xxxxx and The Trust
Under Article 16 of the Will of X.
Xxxxxx Xxxxx, for the Benefit of
Xxxxx X. Xxxxx
By: /s/ Xxxxx X. Xxxxx Trustee
---------------------------------- -----------------------------------
Xxxxx X. Xxxxx,
Hereunto Duly Authorized
----------------------------------
/s/ Xxxxx Xxxx
---------------------------------- ---------------------------------------
Xxxxx Xxxx
/s/ Xxxx Xxxx
---------------------------------- ---------------------------------------
Xxxx Xxxx
13
FIRST AMENDMENT TO
STOCKHOLDERS AGREEMENT
FIRST AMENDMENT TO STOCKHOLDERS AGREEMENT dated as of October 16, 1995
and entered into by and among XXXX X. XXXX of 0000 Xxxxxxxx Xxxxx, Xx. Xxxxx,
Xxx Xxxx 00000 ("West"), THE TRUST UNDER ARTICLE 16 OF THE WILL OF X. XXXXXX
XXXXX, FOR THE BENEFIT OF XXXXXX XXXXX (the "Xxxxxx Trust"), THE TRUST UNDER
ARTICLE 16 OF THE WILL OF X. XXXXXX XXXXX, FOR THE BENEFIT OF XXXXX X. XXXXX
(the "Xxxxx Trust"), XXXXX X. XXXXX, individually ("Xxxxx"), of 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 and XXXXX and XXXX XXXX of Morewood
Oaks, Port Xxxxxxxxxx, Xxx Xxxx 00000 (together "Levy", along with West, the
Xxxxxx Trust, the Xxxxx Trust and Xxxxx are hereinafter collectively referred
to as the "Stockholders") and THE PURO CORPORATION OF AMERICA, a Delaware
corporation (hereinafter the "Company").
W I T N E S S E T H :
WHEREAS, the Company was incorporated under the laws of the State of
Delaware on January 7, 1994; and
WHEREAS, the total number of authorized shares of capital stock of the
Company consists of two million (2,000,000) shares of common voting stock,
$.01 par value (the "Common Stock" or the "Stock"); and
WHEREAS, the Stockholders and the Company entered into that certain
Stockholders Agreement dated as of January 28, 1994; and
WHEREAS, pursuant to that certain Stock Purchase Agreement between the
Xxxxxx Trust, the Xxxxx Trust, Xxxxx and the Company of even date, the Xxxxxx
Trust, the Xxxxx Trust and Xxxxx purchased an aggregate of one hundred twenty
five thousand (125,000) shares of Common Stock as set forth below; and
WHEREAS, the Stockholders and the Company desire to amend said
Stockholders Agreement pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and of the mutual benefits to be gained by the performance thereof, the
parties hereto do hereby agree as follows:
1. The Stockholders of the Company and their respective holdings are as
follows:
Shareholders Number of Shares
------------ ----------------
Xxxxx X. Xxxxx Trust 302,500
X. Xxxxxx Xxxxx Trust 252,500
Xxxxx X. Xxxxx, Individually 50,000
Xxxxx & Xxxx Xxxx 270,000
Xxxx X. Xxxx 250,000
---------
Total Issued Shares 1,125,000
---------
---------
2. Xxxxx hereby agrees to be bound by and to comply with the terms and
conditions of the Stockholders Agreement as same may be amended from time to
time for so long as he shall own Stock.
2
3. All other terms set forth in the Stockholders Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
WITNESSES:
Attest: PURO CORPORATION OF AMERICA,
a Delaware Corporation
By:/s/ Xxxx X. Xxxx
------------------------ -------------------------
Xxxx X. Xxxx
Its Secretary Its Co-President
Hereunto Duly Authorized Hereunto Duly Authorized
By:/s/ Xxxxx Xxxx
------------------------ -------------------------
Xxxxx Xxxx
Its Secretary Its Co-President
Hereunto Duly Authorized Hereunto Duly Authorized
/s/ Xxxx X. Xxxx
------------------------ ----------------------------
Xxxx X. Xxxx
------------------------ The Trust Under Article 16 of
the Will of X. Xxxxxx Xxxxx,
for the Benefit of Xxxxxx
Xxxxx and The Trust Under
Article 16 of the Will of X.
Xxxxxx Xxxxx, for the Benefit
of Xxxxx X. Xxxxx
By:/s/ Xxxxx X. Xxxxx
------------------------ -------------------------
Xxxxx X. Xxxxx
Hereunto Duly Authorized
------------------------
/s/ Xxxxx X. Xxxxx
------------------------- ----------------------------
Xxxxx X. Xxxxx
-------------------------
/s/ Xxxxx Xxxx
------------------------- ----------------------------
Xxxxx Xxxx
-------------------------
/s/ Xxxx Xxxx
------------------------- ----------------------------
Xxxx Xxxx
3
SECOND AMENDMENT TO
STOCKHOLDERS AGREEMENT
----------------------
SECOND AMENDMENT TO STOCKHOLDERS AGREEMENT dated as of December 29, 1995
and entered into by and among XXXX X. XXXX of 0000 Xxxxxxxx Xxxxx, Xx. Xxxxx,
Xxx Xxxx 00000 ("West"), THE TRUST UNDER ARTICLE 16 OF THE WILL OF X. XXXXXX
XXXXX, FOR THE BENEFIT OF XXXXXX XXXXX (the "Xxxxxx Trust"), THE TRUST UNDER
ARTICLE 16 OF THE WILL OF X. XXXXXX XXXXX, FOR THE BENEFIT OF XXXXX X. XXXXX
(the "Xxxxx Trust"), XXXXX X. XXXXX, individually ("Xxxxx"), of 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, XXXXX and XXXX XXXX of 00 Xxxxxxxx Xxxx,
Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (together "Levy"), and XXXXXX XXXXXX of
000 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxx", along with
West, the Xxxxxx Trust, the Xxxxx Trust, Xxxxx and Levy are hereinafter
collectively referred to as the "Stockholders") and THE PURO CORPORATION OF
AMERICA, a Delaware corporation (hereinafter the "Company").
WITNESSETH:
WHEREAS, the Company was incorporated under the laws of the State of
Delaware on January 7, 1994; and
WHEREAS, the total number of authorized shares of capital stock of the
Company consists of two million (2,000,000) shares of common voting stock,
$.01 par value (the "Common Stock" or the "Stock"); and
WHEREAS, the Stockholders (other than Xxxxxx and Xxxxx) and the Company
entered into that certain Stockholders Agreement dated as of January 28,
1994; and
WHEREAS, the Stockholders (other than Xxxxxx) and the Company entered
into that certain First Amendment to Stockholders Agreement dated as of
October 16, 1995; and
WHEREAS, pursuant to that certain Stock Purchase Agreement between Xxxxxx
and the Company of even date, Xxxxxx purchased an aggregate of one hundred
twenty five thousand (125,000) shares of Common Stock; and
WHEREAS, the Stockholders and the Company desire to amend said
Stockholders Agreement pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual premises contained herein
and of the mutual benefits to be gained by the performance thereof, the
parties hereto do hereby agree as follows:
1. The Stockholders of the Company and their respective holdings are as
follows:
SHAREHOLDERS NUMBER OF SHARES
------------ ----------------
Xxxxx X. Xxxxx Trust 302,500
X. Xxxxxx Xxxxx Trust 252,500
Xxxxx X. Xxxxx, Individually 50,000
Xxxxx & Xxxx Xxxx 270,000
Xxxx X. Xxxx 250,000
Xxxxxx Xxxxxx 125,000
-------
Total Issued Shares 1,250,000
=========
2. Xxxxxx hereby agrees to be bound by and to comply with the terms and
conditions of the Stockholders Agreement as same has been and may be amended
from time to time for so long as he shall own stock.
2
3. In the event that a registration statement filed with the United
States Securities and Exchange Commission seeking registration of any of the
securities of the Company for an initial public offering thereof pursuant to
the Securities Act of 1933, as amended, does not become effective on or
before December 31, 1996, then Paragraph A of Article I of the Stockholders
Agreement shall terminate and be of no further effect.
4. All other terms set forth in the Stockholders Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
WITNESSES:
Attest: PURO CORPORATION OF AMERICA,
a Delaware Corporation
By: /s/ XXXX X. XXXX
------------------------ -------------------------
Xxxx X. Xxxx
Its Secretary Its Co-President
Hereunto Duly Authorized Hereunto Duly Authorized
By: /s/ XXXXX XXXX
------------------------ -------------------------
Xxxxx Xxxx
Its Secretary Its Co-President
Hereunto Duly Authorized Hereunto Duly Authorized
/s/ XXXX X. XXXX
------------------------ -----------------------------
Xxxx X. Xxxx
------------------------
The Trust Under Article 16 of
the Will of X. Xxxxxx Xxxxx,
for the Benefit of Xxxxxx
Xxxxx and The Trust Under
Article 16 of the Will of X. Xxxxxx
Xxxxx, for the Benefit
of Xxxxx X. Xxxxx
By: /s/ XXXXX X. XXXXX
------------------------ -------------------------
Xxxxx X. Xxxxx
Hereunto Duly Authorized
------------------------
/s/ XXXXX X. XXXXX
------------------------ -----------------------------
Xxxxx X. Xxxxx
------------------------
3
THIRD AMENDMENT TO
STOCKHOLDERS AGREEMENT
(AMENDMENT RE: XXXXXX STOCK PURCHASE)
THIRD AMENDMENT TO STOCKHOLDERS AGREEMENT dated as of May 1, 1996 and
entered into by and among Xxxx X. Xxxx of 0000 Xxxxxxxx Xxxxx, Xx. Xxxxx, Xxx
Xxxx 00000 ("West"), The Trust Under Article 16 of the Will of X. Xxxxxx
Xxxxx, for the Benefit of Xxxxxx Xxxxx (the "Xxxxxx Trust"), The Trust Under
Article 16 of the Will of X. Xxxxxx Xxxxx, for the Benefit of Xxxxx X. Xxxxx
(the "Xxxxx Trust"), Xxxxx X. Xxxxx, individually ("Xxxxx"), of 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 and XXXXX and XXXX XXXX of 00 Xxxxxxxx
Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (together "Levy"), Xxxxxx Limited
Partnership of 000 Xxxxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000
("Xxxxxx") and Xxxxxx Associates Limited Partnership, a Connecticut Limited
Partnership with an address of 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000
("Xxxxxx", along with West, the Xxxxxx Trust, the Xxxxx Trust, Xxxxx, Levy
and Xxxxxx are hereinafter collectively referred to as the "Stockholders"),
and PURO WATER GROUP, INC., formerly known as PURO CORPORATION OF AMERICA, a
Delaware corporation (hereinafter the "Company").
W I T N E S S E T H:
WHEREAS, the Company was incorporated under the laws of the State of
Delaware on January 7, 1994; and
WHEREAS, the total number of authorized shares of capital stock of the
Company consists of ten million (10,000,000) shares of common voting stock,
$0.01 par value (the "Common Stock" or the "Stock"); and
WHEREAS, the Stockholders other than (Xxxxxx) and the Company entered
into that certain Stockholders Agreement dated as of January 28, 1994, as
amended by that certain First Amendment to Stockholders Agreement dated as of
October 16, 1995 and that certain Second Amendment to Stockholders Agreement
dated as of December 29, 1995 (the "Stockholders Agreement"),
WHEREAS, pursuant to that certain Stock Purchase Agreement between
Xxxxxx and the Company of even date, Xxxxxx purchased an aggregate of Two
Hundred Thousand (200,000) shares of Common Stock as set forth below; and
WHEREAS, the Stockholders and the Company desire to amend said
Stockholders Agreement pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and of the mutual benefits to be gained by the
2
performance thereof, the parties hereto do hereby agree as follows:
1. The Stockholders of the Company and their respective holdings are as
follows:
Shareholders Number of Shares
------------ ----------------
Xxxxx X. Xxxxx Trust 968,000
X. Xxxxxx Xxxxx Trust 808,000
Xxxxx X. Xxxxx, Individually 160,000
Xxxxx & Xxxx Xxxx 864,000
Xxxx X. Xxxx 800,000
Xxxxxx Limited Partnership 400,000
Xxxxxx Associates Limited Partnership 200,000
---------
Total Issued Shares 4,200,000
---------
---------
2. Xxxxxx individually hereby agrees to be bound by and to comply with
the terms and conditions of the Stockholders Agreement as same has been and
may be amended from time to time for so long as it shall own stock.
3. Paragraph I.A. of the Stockholders Agreement is hereby amended by
deleting the last sentence thereof.
3
4. TAG-ALONG RIGHTS
4.1 TAG-ALONG RIGHTS
(a) If at any time prior to three years after the completion of
a public offering of its shares a Shareholder (or Shareholders), (the
"Selling Shareholder"), receives a bona fide third party offer (including,
without limitation, any such offer from another Shareholder) in writing (a
"Bona Fide Offer") which the Selling Shareholder desires to accept, to
purchase any or all of the Shares owned by the Selling Shareholder (the
"Offered Shares"), then the Selling Shareholder shall give the Company and
the other Shareholders (each other Shareholder, an "Offeree") written notice
(the "Selling Shareholder Notice") of (i) the name and address of the person
who made the Bona Fide Offer (the "Proposed Transferee"), (ii) the number of
shares of Common Stock to be purchased, (iii) the price per share of Common
Stock to be paid, (iv) the terms and conditions of payment
offered by the Proposed Transferee, (v) the date and location of, and
procedures for selling Shares to the Proposed Transferee and (vi) a
representation that the Proposed Transferee has been informed of the
Tag-Along Right provided for in this Section 4.1 and has agreed to purchase
shares of Common Stock in accordance with the terms hereof.
4
(b) Each Offeree shall have the right (the "Tag-Along Right") to
require the Proposed Transferee to purchase from him up to the number derived
by multiplying (i) the aggregate number of shares of Common Stock the
Proposed Transferee is willing to acquire by (ii) a fraction, the numerator
of which is the aggregate number of shares of Common Stock owned by such
Offeree, and the denominator of which is the aggregate number of shares of
Common Stock owned by the Selling Shareholder plus the aggregate number of
shares of Common Stock owned by all Offerees who validly exercise their
respective Tag-Along Rights. Any shares of Common Stock purchased from an
Offeree pursuant to this Section 4.1 shall be paid for at the same price
per Share and upon the same terms and conditions as are received by the Selling
Shareholder for his Shares. The number of Shares to be Transferred by the
Selling Shareholder to the Proposed Transferee shall be reduced by the number
of Shares to be sold by the Offerees pursuant to this Section 4.1
(c) The Tag-Along Right shall be exercised by delivery of a written
notice to the Selling Shareholder (the "Tag-Along Acceptance Notice") within
15 days following receipt of the Selling Shareholder Notice. The Tag-Along
Acceptance Notice shall state (i) the number of shares of Common Stock that
5
the Offeree proposed to include in such Transfer to the Proposed Transferee,
which number shall not exceed the maximum number of shares of Common Stock
which such Offeree would be entitled to include if all Offerees elected to
participate in the Transfer to the fullest extent possible, determined as
aforesaid, and (ii) whether the Offeree would prefer to include additional
shares of Common Stock in the Transfer in the event that some Offerees choose
not to so participate and, if so, the aggregate number of such additional
Shares.
(d) Within 45 days of the dispatch of the Selling Shareholder
Notice to the Offerees, the Selling Shareholder shall deliver to each Offeree
who validly exercises his Tag-Along Right a notice setting forth the number
of shares of Common Stock that such Offeree will be entitled to include and
the delivery instructions and procedures required to effectuate the Transfer.
In the event that any Offeree does not choose to participate in the Transfer
to the fullest extent possible, the right to include Shares that such Offeree
would have been entitled to include but chose to exclude shall be apportioned
among the Selling Shareholder and the other participating Offerees ratably on
the basis of (A) in the case of the Selling Shareholder, the amount by which
the total number of Shares to be included in the Transfer exceeds the number
the Selling Shareholder would have
6
been entitled to include had all Offerees chosen to participate to the
fullest extent possible, and (B) in the case of the participating Offerees,
the amounts designated by them in the Tag-Along Acceptance Notice as
described in clause (ii) of Section 4.1(c) hereof.
(e) If the Proposed Transferee does not purchase shares of Common
Stock from the Offerees who validly exercise their respective Tag-Along
Rights at the same price and on the same terms and conditions as the Proposed
Transferee purchases from the Selling Shareholder, then the Selling
Shareholder shall not be permitted to Transfer any shares of Common Stock to
the Proposed Transferee in the proposed Transfer. The Selling Shareholder and
the Offerees who validly exercise their respective Tag-Along Rights shall
have the right, for a 150 day period following the dispatch of the Selling
Shareholder Notice, to Transfer to the Proposed Transferee the shares of
Common Stock proposed to be transferred on terms and conditions no more
favorable to the Selling Shareholder and such Offerees than those stated in
the Selling Shareholder Notice. Any shares of Common Stock which continue to
be held by the Selling Shareholder or any such Offerees after the earlier of
the consummation of the proposed Transfer or the expiration of such 150-day
period shall again be subject to the provisions of this Section 4.1.
7
4.2. COSTS.
All reasonable costs and expenses incurred by any seller in
connection with a Transfer under Section 4.1 hereof, including without
limitation all reasonable attorneys' fees, costs and disbursements and any
reasonable finders' fees or brokerage commissions, shall be allocated PRO
RATA among the Shareholders transferring Shares in such Transfer, with each
bearing that portion of such costs and expenses equal to the aggregate of
such costs and expenses multiplied by a fraction, the numerator of which is
the amount of the gross proceeds received by such Shareholder from such
Transfer, and the denominator of which is the total amount of the gross
proceeds received by all Shareholders from such Transfer.
5. PREEMPTIVE RIGHTS.
5.1. GRANT AND EXERCISE OF PREEMPTIVE RIGHT.
(a) The Company will not issue or sell to the Shareholders or
any third party, any shares of Common Stock or any options, warrants or other
rights to purchase or subscribe for such shares of Common Stock or any
securities convertible into or exchangeable for such shares of Common Stock
("Newly Issued Shares") unless prior to the issuance or sale of such Newly
Issued Shares each Shareholder shall have been given the opportunity (such
opportunity being herein referred to as the
8
"Preemptive Right") to purchase (on the same terms as such Newly Issued
Shares are proposed to be sold) the same proportion of such Newly Issued
Shares being issued or offered for sale by the Company as (x) the number of
Shares of Common Stock (calculated on a fully diluted basis) held by such
Shareholder on the day preceding the date of the Preemptive Notice (as
defined herein), bears to (y) the total number of Shares of Common Stock
(calculated on a fully diluted basis) outstanding on that day.
(b) Prior to the issuance or sale by the Company of any Newly
Issued Shares, the Company shall give written notice thereof (the "Preemptive
Notice") to each Shareholder. The Preemptive Notice shall specify (i) the
name and address of the bona fide investor to whom the Company proposes to
issue or sell Newly Issued Shares, (ii) the total amount of capital to be
raised by the Company pursuant to the issuance or sale of Newly Issued
Shares, (iii) the number of shares of such Newly Issued Shares proposed to be
issued or sold, (iv) the price and other terms of their proposed issuance or
sale, (v) the number of such Newly Issued Shares which such Shareholder is
entitled to purchase (determined as provided in subsection (a) above), and
(vi) the period during which such Shareholder may elect to purchase such
Newly Issued Shares, which period shall extend for at least thirty (30) days
following the receipt by such
9
Shareholder of the Preemptive Notice (the "Preemptive Acceptance Period").
Each Shareholder who desires to purchase Newly Issued Shares shall notify the
Company within the Preemptive Acceptance Period of the number of Newly Issued
Shares he wishes to purchase, as well as the number, if any, of additional
Newly Issued Shares he would be willing to purchase in the event that all of
the Newly Issued Shares subject to the Preemptive Right are not subscribed
for by the other Shareholders.
(c) In the event a Shareholder declines to subscribe for all or
any part of his pro rata portion of any Newly Issued Shares which are subject
to the Preemptive Right (the "Declining Preemptive Purchaser), then the other
Shareholders shall have the right to subscribe for all (or any declined part)
of the Declining Preemptive Purchaser's pro rata portion of such Newly Issued
Shares (to be divided among the other Shareholders desiring to exercise such
right on a ratable basis).
(d) Any such Newly Issued Shares which none of the Shareholders
elect to purchase in accordance with the provisions of this Article 5 may be
sold by the Company within a period of three (3) months after the expiration
of the Preemptive Acceptance Period to any other person or persons at not
less than
10
the price and upon other terms and conditions not less favorable to the
Company than those set forth in the Preemptive Notice.
5.2 CERTAIN EXEMPTIONS: TERMINATION
The Preemptive Right shall not apply to the issuance or sale of
any Newly Issued Shares (a) pursuant to stock option or stock purchase plans
or agreements or other similar plans or agreements approved by the Board of
Directors of the Company, (b) pursuant to the acquisition assets other than
cash or marketable securities in consideration of the issuance of shares of
Common Stock by the Company, or (c) pursuant to a public offering.
6. AMENDMENT TO ARTICLE VIII
Article VIII of the Agreement shall be amended to read as follows:
The provisions of Article II, Article III, Article IV, and Article V
shall become null, void, and of no further effect upon the effectiveness of a
registration statement seeking registration of any of the securities of the
Company for an initial public offering. However, the other provisions shall
remain in full, force, and effect.
11
7. This agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8. All other terms set forth in the Stockholders Agreement shall remain
in full force and effect.
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
WITNESSES
Attest: PURO WATER GROUP, INC.,
a Delaware Corporation
By: /s/ XXXX X. XXXX
------------------------------- -----------------------------
Xxxx X. Xxxx
Its Secretary Its Co-President
Hereunto Duly Authorized Hereunto Duly Authorized
By: /s/ XXXXX XXXX
------------------------------- -----------------------------
Xxxxx Xxxx
Its Secretary Its Co-President
Hereunto Duly Authorized Hereunto Duly Authorized
/s/ XXXX X. XXXX
------------------------------- --------------------------------
Xxxx X. Xxxx
-------------------------------
12
The Trust Under Article 16 of
the Will of X. Xxxxxx Xxxxx,
for the Benefit of Xxxxxx
Xxxxx and The Trust Under
Article 16 of the Will of X.
Xxxxxx Xxxxx, for the Benefit
of Xxxxx X. Xxxxx
By: /s/ XXXXX X. XXXXX
------------------------------- -----------------------------
Xxxxx X. Xxxxx,
Hereunto Duly Authorized
-------------------------------
/s/ XXXXX X. XXXXX
------------------------------- --------------------------------
Xxxxx X. Xxxxx
-------------------------------
/s/ XXXXX XXXX
------------------------------- --------------------------------
Xxxxx Xxxx
-------------------------------
/s/ XXXX XXXX
------------------------------- --------------------------------
Xxxx Xxxx
-------------------------------
XXXXXX LIMITED PARTNERSHIP
By: /s/ XXXXXX X. XXXXXX Xx.
------------------------------- -----------------------------
Xxxxxx Xxxxxx
Hereunto Duly Authorized
-------------------------------
XXXXXX ASSOCIATES LIMITED PARTNERSHIP
By: /S/ Xxxxxxx X. Xxxxxx
------------------------------- --------------------------------
Xxxxxxx X. Xxxxxx
-------------------------------
13
FOURTH AMENDMENT TO
STOCKHOLDERS AGREEMENT
(AMENDMENT RE: INITIAL PUBLIC OFFERING)
FOURTH AMENDMENT TO STOCKHOLDERS AGREEMENT dated as of November 11, 1996
and entered into by and among Xxxx X. Xxxx of 0000 Xxxxxxxx Xxxxx, Xx. Xxxxx,
Xxx Xxxx 00000 ("West"), The Trust Under Article 16 of the Will of X. Xxxxxx
Xxxxx, for the Benefit of Xxxxxx Xxxxx (the "Xxxxxx Trust"), The Trust Under
Article 16 of the Will of X. Xxxxxx Xxxxx, for the Benefit of Xxxxx X. Xxxxx
(the "Xxxxx Trust"), Xxxxx X. Xxxxx, individually ("Xxxxx"), of 00 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000 and Xxxxx and Xxxx Xxxx of 00 Xxxxxxxx
Xxxx, Xxxx Xxxxxxxxxx, Xxx Xxxx 00000 (together "Levy"), Xxxxxx Xxxxxx of 000
Xxxxxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxx") and Xxxxxx
Associates Limited Partnership, a Connecticut Limited Partnership with an
address of 000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxxx 00000 ("Xxxxxx", along with
West, the Xxxxxx Trust, the Xxxxx Trust, Xxxxx, Levy and Xxxxxx are
hereinafter collectively referred to as the "Stockholders"), and PURO WATER
GROUP, INC., formerly known as PURO CORPORATION OF AMERICA, a Delaware
corporation (hereinafter the "Company").
W I T N E S S E T H:
WHEREAS, the Company was incorporated under the laws of the State of
Delaware on January 7, 1994; and
WHEREAS, the total number of authorized shares of capital stock of the
Company consists of ten million (10,000,000) shares of common voting stock,
$.003125 par value (the "Common Stock" or the "Stock"); and
WHEREAS, the Stockholders and the Company entered into that certain
Stockholders Agreement dated as of January 28, 1994, as amended by that
certain First Amendment to Stockholders Agreement dated as of October 16,
1995, that certain Second Amendment to Stockholders Agreement dated as of
December 29, 1995 and that certain Third Amendment to Stockholders Agreement
dated as of May 1, 1996 (the "Stockholders Agreement"); and
WHEREAS, the Company intends to complete a public offering of some of
the Stock; and
WHEREAS, the Stockholders and the Company desire to amend said
Stockholders Agreement pursuant to the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein
and of the mutual benefits to be gained by the performance thereof, the
parties hereto do hereby agree as follows:
1. Upon the effectiveness of a Registration Statement filed by the
Company with the Securities and Exchange Commission registering shares of the
Company's Stock, this Agreement shall terminate and shall be of no further
force and effect.
2. This agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2
IN WITNESS WHEREOF, the parties have executed this agreement as of the
day and year first above written.
PURO WATER GROUP, INC.,
a Delaware Corporation Xxxxxx Limited Partnership
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxx Xxxxxx
--------------------------- ---------------------------
Xxxx X. Xxxx Xxxxxx Xxxxxx
Its President Hereunto Duly Authorized
Hereunto Duly Authorized
By: /s/ Xxxxx Xxxx /s/ Xxxx X. Xxxx
--------------------------- -------------------------------
Xxxxx Xxxx Xxxx X. Xxxx
Its Chief Executive Officer
Hereunto Duly Authorized
The Trust Under Article 16 of /s/ Xxxxx Xxxx
the Will of X. Xxxxxx Xxxxx, -------------------------------
for the Benefit of Xxxxxx Xxxxx Xxxx
Xxxxx and The Trust Under
Article 16 of the Will of X.
Xxxxxx Xxxxx, for the Benefit /s/ Xxxx Xxxx
of Xxxxx X. Xxxxx -------------------------------
Xxxx Xxxx
By: /s/ Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx
Hereunto Duly Authorized
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
Xxxxxx Associates Limited Partnership
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------
Xxxxxxx X. Xxxxxx
3
