EXHIBIT 10.9
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is entered into as of the
30th day of April, 1993, by and among Aegis Financial Corporation, a Delaware
corporation (the "Company"), and the stockholders of the Company (collectively,
the "Stockholders").
BACKGROUND
A. The Company and Grant Financial Group, Inc., a California corporation
and a Stockholder ("GFG"), have entered into an Asset Purchase Agreement dated
as of April 30, 1993 pursuant to which the Company will acquire substantially
all of the assets of GFG (the "Acquisition"). Following the Acquisition, the
Stockholders will own all of the outstanding shares of capital stock of the
Company (which shares, together with any shares of capital stock of the Company
subsequently acquired by the Stockholders or issued upon conversion of such
shares, shall be referred to as the "Shares").
B. As a condition to the consummation of the Acquisition, the Company and
the Stockholders are entering into this Agreement. This Agreement shall only be
effective upon the effectiveness of the Acquisition and shall be of no effect if
the Acquisition does not occur.
AGREEMENT
THE COMPANY AND THE STOCKHOLDERS HEREBY AGREE AS FOLLOWS:
1. Election of Directors. Each Stockholder hereby agrees to vote such
Stockholder's Shares for the election as director of any person nominated by the
Board of Directors of the Company and agrees not to vote for the removal of any
such person as a director unless so recommended by the Board of Directors.
2. Transfer of Shares
2.1. Right of First Refusal Upon Transfer. If a Stockholder wishes to
transfer any or all of such Stockholder's Shares or any interest therein (a
"Selling Stockholder"), the Selling Stockholder shall first offer such Shares to
the Company by providing it with a notice (the "Transfer Notice") naming the
proposed transferee, specifying the number of Shares to be transferred, the
price per Share and all other terms of the transfer and offering to sell such
Shares to the Company at the same price and upon the same terms and conditions.
The Company shall have 15 days from the receipt of the Transfer Notice within
which to give the Selling Stockholder written notice (the "Purchase Notice")
that it agrees to purchase all such Shares at the price and on the terms and
conditions set forth in the Transfer Notice, and if such Purchase Notice is
given
within such 15-day period, the Company shall have 45 days from receipt of the
Transfer Notice within which to complete the purchase of such Shares at the
price and on the terms set forth in the Transfer Notice. If the Company does not
deliver a Purchase Notice to the Selling Stockholder within 20 days after
receipt of a Transfer Notice from such Stockholder, such Stockholder shall have
the right (subject to compliance with Section 2.2), for a period of 60 days from
the day upon-which the-Company received the Transfer Notice, to transfer such
Shares to the transferee named in the Transfer Notice; provided, however, that
such transfer must be at a price not less than the price offered to the Company
in the Transfer Notice, for the number of Shares specified in the Transfer
Notice and on terms and conditions no more favorable than those specified in the
Transfer Notice. The Company may assign its right under this Section 2.1 to any
other person or entity, including other Stockholders.
2.2. Co-Sale Right. If the Company does not elect to purchase all of
the Shares specified in the Transfer Notice pursuant to Section 2.1, the Selling
Stockholder shall disclose to the other Stockholders (the "Other Stockholders")
at least 20 days prior to consummation of the transfer the same information
provided to the Company in the Transfer Notice (the "Sale Notice"). Each Other
Stockholder may elect to join the Selling Stockholder as a seller in such sale
by delivering written notice of such election to the Selling Stockholder within
10 days after receipt of the Sale Notice. Each Other Stockholder choosing to do
so may participate in the sale by selling to the proposed purchaser at the price
and terms specified in the Sales Notice an aggregate number of Shares equal to
or less than the product of (a) the total number of Shares to be acquired by the
purchaser in such sale, multiplied by (b) a fraction, (i) the numerator of which
is the number of Shares held by such Other Stockholder, and (ii) the denominator
of which is the aggregate number of Shares held by the Selling Stockholder and
all Other Stockholders that have elected to participate in such transaction.
Failure of an Other Stockholder to give timely notice of its election to
participate as a seller will be deemed conclusively to constitute an election
not to participate. The Selling Stockholder shall conclude the proposed sale at
a price and on terms no more favorable to the Selling Stockholder than the price
and terms specified in the Sale Notice within 50 days of the date of the Sale
Notice.
2.3. Permitted Transfers. A Stockholder may transfer any or all of
such Stockholder's Shares without complying with Sections 2.1 and 2.2 if (a)
such transfer is made either (i) to such Stockholder's spouse or children, or to
a trust for the benefit of any of the foregoing or such Stockholder, or (ii) if
such Stockholder is an entity, to the shareholders or partners of such
Stockholder or to any parent or subsidiary of such Stockholder or other entity
affiliated with such Stockholder, and (b) the transferee acknowledges in writing
that the Shares so transferred are subject to the terms and conditions of this
Agreement and agrees to be bound by this Agreement.
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2.4. Restriction on Transfer by GFG. GFG shall not transfer any
shares of Class B Common Stock of the Company until such time as GFG has
satisfied all obligations owed to GFG's creditors.
2.5. Effect of Noncompliance. Any transfer made without complying
with this Section 2 shall be void and of no effect.
3. Bring-Along Provision. If Stockholders holding 66-2/3% or more of the
outstanding Shares (the "Majority Stockholders") find an investor to acquire all
outstanding shares of capital stock of the Company, the Majority Stockholders
have the right, upon giving 30-days written notice thereof to the other
Stockholders, to require the other Stockholders to participate in such
transaction; provided that the disposition of Shares by the Majority
Stockholders is at the same consideration per share and on the same terms and
conditions as the disposition of the other Stockholders' Shares, and the other
Stockholders shall receive their pro rata portion of any other consideration
received by the Majority Stockholders in respect of such transaction. Each
Stockholder hereby agrees to deliver such Stockholder's Shares free and clear of
all liens or encumbrances in connection with a disposition pursuant to this
Section.
4. Representations and Warranties
4.1. Representations and Warranties of Stockholders. Each Stockholder
hereby represents and warrants to the other Stockholders and to the Company
that:
4.1.1 No Conflicts. The execution, delivery and performance of
this Agreement by such Stockholder will not result in a violation of, be in
conflict with, or constitute a default under, with or without the passage of
time or the giving of notice, any material contract, obligation or commitment to
which such Stockholder is a party or by which it is bound.
4.1.2 Enforceability. Assuming due execution and delivery by
the Company and the other Stockholders, this Agreement constitutes a legal,
valid and binding obligation of such Stockholder, enforceable against such
Stockholder in accordance with its terms, subject, as to enforcement, (i) to
bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws
of general applicability relating to or affecting creditors, rights and (ii) to
general principles of equity, whether such enforcement is considered in a
proceeding in equity or at law.
4.1.3 Capacity. Such Stockholder has the requisite legal
capacity to enter into this Agreement.
4.1.4 Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration, or filing with,
any federal, state, or
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local governmental authority in the United States, or of any other person or
entity (which has not been obtained) on the part of such Stockholder is required
in connection with such Stockholder's valid execution and delivery of this
Agreement.
4.2. Representations and Warranties of the Company. The Company
hereby represents and warrants to the Stockholders that:
4.2.1 No Conflicts with Other Instruments. The execution,
delivery and performance of this Agreement will not result in any violation of,
be in conflict with, or constitute a default under, with or without the passage
of time or the giving of notice: (i) any provision of the Company's Certificate
of Incorporation or Bylaws; (ii) any provision of any judgment, decree or order
to which the Company is a party or by which it is bound; (iii) any material
contract, obligation or commitment to which the Company is a party or by which
it is bound; or (iv) to the Company's knowledge, any statue, rule or
governmental regulation applicable to the Company.
4.2.2 Enforceability. Assuming due execution and delivery by
the Stockholders, this Agreement constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject, as to enforcement, (i) to bankruptcy, insolvency,
reorganization, arrangement, moratorium and other laws of general applicability
relating to or affecting creditors, rights and (ii) to general principles of
equity, whether such enforcement is considered in a proceeding in equity or at
law.
4.2.3 Authorization. All corporate action on the part of the
Company, its officers, directors and stockholders necessary for the
authorization, execution, delivery and performance of all obligations under this
Agreement has been taken.
4.2.4 Consents. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration, or filing with,
any federal, state, or local governmental authority in the United States, or of
any other person or entity (which has not been obtained) on the part of the
Company is required in connection with the Company's valid execution and
delivery of this Agreement.
5. Registration Rights
5.1. Demand Registration
5.1.1 Request for Registration. If at any time after April 30,
1997, and before April 30, 2001, the Company receives from Stockholders holding
50% or more of the outstanding Shares (the "Initiating Holders") a written
request that the Company register with the Securities and Exchange Commission
(the "SEC") at least thirty percent (30%) of the outstanding Shares, or a lesser
percentage if the aggregate
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offering price (net of underwriting discounts and commissions) to the public of
the Shares is reasonably expected to exceed $5,000,000, the Company shall: (i)
promptly, but in any event within ten (10) days, give written notice of the
proposed registration to all other Stockholders; and (ii) as soon as
practicable, but in any event within ninety (90) days after receipt of the
request of the Initiating Holders, use its best efforts to effect such
registration of the Shares of the Initiating Holders together with all or such
portion of the Shares of any other Stockholder who has given written notice to
the Company within fifteen (15) days after receiving such written notice from
the Company pursuant to clause (ii) above. Such obligation shall include,
without limitation, the execution of an undertaking to file post-effective
qualifications under applicable blue sky or other state securities laws and
appropriate compliance with exemptive regulations issued under the Securities
Act of 1933, as amended (the "Act"), and any other governmental requirements or
regulations. The Company shall have the right, exercisable one time only during
any 12-month period, to delay the effectiveness of such request of the
Initiating Holders until up to one hundred twenty (120) days after delivery of
the request if the Board of Directors of the Company has determined in good
faith that such a registration would be seriously detrimental to the Company at
such time. The Initiating Holders may withdraw the request during such one
hundred twenty (120) days period, in which event such Initiating Holders shall
not be deemed to have made the request. The Company shall not be obligated to
take any action to effect any registration pursuant to this Section 5.1 after
the closing of the sale of Shares resulting from one previous registration
effected pursuant to a request under this Section 5.1.
5.1.2 Registration of Other Securities. Any registration
statement filed pursuant to the request of the Initiating Holders under this
Section 5.1 may, subject to the provisions of Section 5.1.3, include securities
of the Company other than the Shares.
5.1.3 Underwriting in Demand Registration. If the Initiating
Holders intend to use an underwriter to distribute the Shares covered by their
request, they shall so advise the Company in their request and the Company shall
include such information in its written notice to the other Stockholders. In
such event, the right of any Stockholder to registration pursuant to this
Section 5.1 shall be conditioned upon such Stockholder's participation in such
underwriting and the inclusion of all or part of such Stockholder's Shares in
the underwriting, unless otherwise mutually agreed by a majority in interest of
the Initiating Holders and such Stockholder. The Company shall enter into an
underwriting agreement in customary form with an underwriter selected by the
Stockholders holding a majority of the Shares proposed to be included in the
underwriting, but subject to the approval of the Company which shall not be
unreasonably withheld. The underwriting agreement may contain provisions
regarding indemnification and contribution from the Company. Notwithstanding any
other provision of this Section 5.1, if the underwriter advises the Initiating
Holders and the Company in writing that marketing factors require a limitation
of the number of shares is
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to be included in the underwriting, then securities of the Company other than
the Shares shall first be excluded from such registration to the extent required
by such underwriting limitation. If a further limitation of the number of shares
is still required, the Company shall so advise the Initiating Holders and the
number of shares included in such underwriting and registration shall be
allocated among the Stockholders requesting registration in proportion, as
nearly as practicable, to the total number of shares held by such Stockholders
at the time of the filing of the registration statement. If the number of Shares
so excluded exceeds twenty percent (20%) of the number of Shares which the
Stockholders have requested to be included in such registration, then the
Initiating Holders shall be entitled, on behalf of the Stockholders, either (i)
to require that the registration be deferred for such period of time as the
Initiating Holders, the Company and the underwriter may mutually agree upon, but
in no event for more than ninety (90) days from delivery of a written notice of
the Initiating Holders to the Company requesting such delay, or (ii) to withdraw
the registration request, in which case it shall not count as the Stockholders,
one demand registration. If any Stockholder disapproves of the terms of the
underwriting, such Stockholder may elect to withdraw therefrom by written notice
to the Company, the underwriter and the Initiating Holders delivered at least
seven (7) days prior to the effective date of the registration statement. The
Shares so withdrawn also shall be withdrawn from registration.
5.2. Piggyback Registration
5.2.1 Notice of Registration. Subject to the terms of this
Agreement, in the event the Company decides to register with the SEC any of its
Common Stock (either for its own account or the account of its security
holders), the Company will: (i) promptly give each Stockholder written notice
thereof (which shall include a list of the jurisdictions in which the Company
intends to attempt to qualify such securities under the applicable Blue Sky or
other state securities laws), and (ii) include in such registration (and any
related qualification under Blue Sky laws or other state securities laws), and
in any underwriting involved therein, all the Shares specified in a written
request delivered to the Company by any Stockholder within 15 days after
delivery of such written notice from the Company.
5.2.2 Notice of Underwriting. If the registration of which the
Company gives notice is for a public offering involving an underwriting, the
Company shall so advise the Stockholders as a part of the written notice given
pursuant to Section 5.2.1. In such event the right of any Stockholder to
registration and the inclusion of such Stockholder's Shares in such underwriting
shall be conditioned upon such underwriting to the extent provided in this
Section 5.2. All Stockholders proposing to distribute their Shares through such
underwriting shall (together with the Company and the other Stockholders
distributing their Shares through such underwriting) enter into an underwriting
agreement with the underwriter's representative for such offering. The
Stockholders shall have no right to participate in the selection of the
underwriters.
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5.2.3 Marketing Limitations. In the event the underwriter's
representative advises the Stockholders seeking registration of Shares pursuant
to this Section 5.2 in writing that market factors require a limitation of the
number of Shares to be underwritten, the underwriter's representative may: (a)
in the case of the Company's initial registered public offering, exclude some or
all from such registration and underwriting pro rata based on the number of
Shares requested to be registered by all Stockholders; and (b) in the case of
any subsequent registered public offering subsequent to the initial public
offering, limit the number of Shares to be included in such registration and
underwriting to not less than 10% of the shares of Common Stock included in such
registration.
5.2.4 Withdrawal. If any Stockholder disapproves of the terms
of any such underwriting, such Stockholder may elect to withdraw therefrom by
written notice to the Company and the underwriter delivered at least seven days
prior to the effective date of the registration statement. Any Shares excluded
or withdrawn from such underwriting shall be withdrawn from such registration.
5.3. Expenses. The Company shall bear the expenses incurred in
complying with this Section 5, including, without limitation, all federal and
state registration, qualification and filing fees, printing expenses, fees and
disbursements of counsel for the Company and one special counsel for the
Stockholders (if different from the Company), blue sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration. Each Stockholder participating in the registration shall bear all
underwriting discounts and selling commissions applicable to the sale of such
Stockholder's Shares pursuant to this Agreement.
5.4. Registration Procedures. The Company will keep each Stockholder
whose Shares are included in any registration pursuant to this Section 5 advised
as to the initiation and completion of such registration. At its expense the
Company will furnish such number of prospectuses (including preliminary
prospectuses) and other documents as a Stockholder from time to time may
reasonably request.
5.5. Information Furnished by Stockholders. It shall be a condition
precedent of the Company's obligations under this Section 5 that each
Stockholder participating in any registration furnish to the Company such
information regarding such Stockholder as the Company may reasonably request.
5.6. Market Stand-off. Each Stockholder hereby agrees that, if so
requested by the Company and the underwriter's representative (if any), such
Stockholder shall not sell or otherwise transfer any Shares or other securities
of the Company during the 180-day period following the effective date of a
registration statement of the Company filed under the Act; provided that such
restriction shall only apply to the first
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two registration statements of the Company to become effective which include
securities to be sold on behalf of the Company to the public in an underwritten
offering.
5.7. Securities Exchange Act of 1934. Following the effective date of
the first registration statement filed by the Company for the offering of its
securities to the general public, the Company shall file with the SEC in a
timely manner all reports and other documents required of the Company under the
Securities Exchange Act of 1934, as amended.
5.8. Indemnification
5.8.1 Company's Indemnification of Stockholders. To the extent
permitted by law, the Company will indemnify each Stockholder, each of its
officers, directors and constituent partners, legal counsel for the
Stockholders, and each person controlling such Stockholder, with respect to
which registration, qualification or compliance of Shares has been effected
pursuant to this Agreement, and each underwriter, if any, and each person who
controls any underwriter against all claims, losses, damages or liabilities (or
actions in respect thereof) to the extent such claims, losses, damages or
liabilities arise out of or are based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any prospectus or other
document (including any related registration statement) incident to any such
registration, qualification or compliance, or are based on any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
the Company of any rule or regulation promulgated under the Act applicable to
the Company and relating to action or inaction required of the Company in
connection with any such registration, qualification or compliance; and the
Company will reimburse each such Stockholder, each such underwriter and each
person who controls any such Stockholder or underwriter, for any legal and any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action; provided, however, that the
indemnity contained in this Section 5.8.1 shall not apply to amounts paid in
settlement of any such claim, loss, damage, liability or action if settlement is
effected without the consent of the Company (which consent shall not
unreasonably be withheld); and provided, further, that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based upon any untrue statement or
omission based upon written information furnished to the Company by such
Stockholder or controlling person and stated to be for use in connection with
the offering of securities of the Company.
5.8.2 Stockholder's Indemnification of Company. To the extent
permitted by law, each Stockholder will, if Shares held by such Stockholder are
included in the securities as to which such registration, qualification or
compliance is being effected pursuant to this Agreement, indemnify the Company,
each of its directors and
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officers, each legal counsel and independent accountant of the Company, each
underwriter, if any, of the Company's securities covered by such a registration
statement, each person who controls the Company or such underwriter within the
meaning of the Act, and each other such Stockholder, each of its officers,
directors and constituent partners and each person controlling such other
Stockholder, against all claims, losses, damages and liabilities (or actions in
respect thereof) arising out of or based upon any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, or any violation by
such Stockholder of any rule or regulation promulgated under the Act applicable
to such Stockholder and relating to action or inaction required of such
Stockholder in connection with any such registration, qualification or
compliance; and will reimburse the Company, such Stockholders, such directors,
officers, partners, persons, law and accounting firms, underwriters or control
persons for any legal and any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such registration statement, prospectus, offering circular or other
document in reliance upon and in conformity with written information furnished
to the Company by such Stockholder and stated to be specifically for use in
connection with the offering of securities of the Company provided, however,
that each Stockholder's liability under this Section 5.8.2 shall not exceed such
Stockholder's proceeds from the offering of securities made in connection with
such registration.
5.8.3 Indemnification Procedure. Promptly after receipt by an
indemnified party under this Section 5.8 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against an indemnifying party under this Section 5.8, notify the indemnifying
party in writing of the commencement thereof and generally summarize such
action. The indemnifying party shall have the right to participate in and to
assume the defense of such claim; provided, however, that the indemnifying party
shall be entitled to select counsel for the defense of such claim with the
approval of any parties entitled to indemnification, which approval shall not be
unreasonably withheld; provided further, however, that if either party
reasonably determines that there may be a conflict between the position of the
Company and the Stockholders in conducting the defense of such action, suit or
proceeding by reason of recognized claims for indemnity under this Section 5.8,
then counsel for such party shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interest of such party at the expense of the indemnifying party. The Company
shall not be required to pay the costs of more than one counsel for the
Stockholders pursuant to this Section. The failure to notify an indemnifying
party promptly of the commencement of any such action, if prejudicial to the
ability of the indemnifying party to defend such action, shall relieve such
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indemnifying party, to the extent so prejudiced, of any liability to the
indemnified party under this Section 5.8, but the omission so to notify the
indemnifying party will not relieve such party of any liability that such party
may have to any indemnified party otherwise other than under this Section 5.8.
5.9. Limitation on Registration Rights. Shares included in a request
for registration under this Section 5 shall not be eligible for registration
under this Section 5 if either (a) the Shares have previously been sold to the
public, or (b) no registration under the Act is required in connection with the
disposition of such Shares pursuant to Rule 144 under the Act or otherwise.
5.10. Conversion of Shares. As a condition to the inclusion of any
Shares in a registration statement pursuant to this Section 5, the holders of
such Shares, if such Shares are not shares of Class A Common Stock of the
Company, must convert, or agree to convert such Shares, into shares of Class A
Common Stock at or prior to the closing of the offering contemplated by such
registration statement.
6. Legends on Share Certificates. Each outstanding certificate
representing Shares shall bear legends reading substantially as follows:
The securities represented by this certificate were acquired for investment
only and not for resale. They have not been registered under the Securities Act
of 1933 or any state securities law. These shares may not be sold, transferred,
pledged, or hypothecated unless first registered under such laws, or unless the
issuer has received evidence satisfactory to it that registration under such
laws is not required.
The securities represented by this certificate are subject to voting and
transfer restrictions and a bring-along right which may require the disposition
of the securities in certain circumstances on the terms and conditions set forth
in a Stockholders Agreement dated as of April 30, 1993, a copy of which is on
file in the office of the Secretary of the issuer. No transfer of such Common
Stock will be made on the books of the issuer unless accompanied by evidence of
compliance with the terms of such Agreement.
Such certificates shall bear any additional endorsements that may be
required for compliance with state securities or blue sky laws or that may be
deemed appropriate by the Board of Directors of the Company.
7. Additional Stockholders. The Company shall not sell any shares of
capital stock and the Stockholders shall not transfer any Shares, unless the new
shareholder becomes a party to this Agreement by execution of a counterpart
hereof. Upon such execution, such shareholder shall be considered a
"Stockholder" under this Agreement and the shares of capital stock held and
subsequently acquired by such Stockholder shall be considered "Shares" under
this Agreement.
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8. Termination. This Agreement (except for Sections 5 and 9) shall
terminate upon the earlier to occur of: (a) the closing of a firm-commitment
underwritten offering of the Common Stock of the Company involving the sale to
the public of Common Stock with an aggregate offering price exceeding $5,000,000
pursuant to a registration statement filed under the Act; and (b) the sale of
all of the Shares or assets of the Company.
9. Miscellaneous.
9.1. Notices. Any and all notices or other communications provided
for herein shall be deemed to be validly given on the date of service if served
personally, on the business day after transmission by telecopier or telex with
confirmation of receipt, or five days after the date of mailing if mailed in the
United States mail, registered or certified mail, postage prepaid, return
receipt requested, and addressed to the parties at their most current addresses
set forth in the records of the Company. The address of any party for notice may
be changed by giving notice to the other parties pursuant to this Section 9.1.
9.2. Captions. The captions at the beginning of the sections in this
Agreement are inserted for identification and convenience only and shall not be
considered in the construction or interpretation of this Agreement.
9.3. Construction. Whenever used herein, the singular number shall
be deemed to include the plural, and the plural shall be deemed to include the
singular. Any reference in the masculine shall be deemed to refer to the
feminine. All reference to a party shall include that party's personal
representatives, successors, heirs and assigns.
9.4. Entire Agreement. This Agreement constitutes the entire
agreement among the parties on the subject matter hereof and supersedes any and
all prior agreements or understandings, whether written or oral. No
representations, warranties or inducements, express or implied, have been made
by any party to another, except as set forth herein.
9.5. Counterparts. This Agreement may be executed 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.
9.6. Modification, Waivers and Consents. No amendment, alteration or
modification of this Agreement shall be valid unless in a writing signed by the
Company and Stockholders holding a majority of the outstanding Shares. No
waiver of any provision of this Agreement shall be valid unless made in writing.
Any action, consent or agreement required from the Stockholders under or in
connection with this Agreement shall be effective upon the written action,
consent or agreement of Stockholders holding a majority of the Shares.
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9.7. Binding Effect. This Agreement shall be binding upon and shall
inure to the benefit of the executors, administrators, legal representatives,
heirs, successors and assigns of the parties to this Agreement, unless expressly
provided otherwise in this Agreement.
9.8. Attorneys' Fees. In any action to enforce or interpret the
provisions of this Agreement the prevailing party shall be entitled to recover
such party's reasonable costs of suit, including reasonable attorneys, fees, in
addition to any other recovery or relief.
9.9. Severability. If any portion of this Agreement shall be
determined to be invalid or unenforceable in a court of competent jurisdiction,
the remainder shall be valid and enforceable to the maximum extent possible.
9.10. Governing Law. This Agreement and the rights of the parties
hereunder shall be governed by and enforced in accordance with the laws of the
State of California applicable to contracts made in that state between residents
of that state.
9.11. Specific Performance. The Shares of the Company cannot be
readily purchased or sold on the open market, and for that reason, among others,
the parties will be irreparably damaged in the event that this Agreement is not
specifically enforced. Should any dispute arise under this Agreement, including,
without limitation, a breach of any covenant under this Agreement, the parties
agree that a decree of specific performance shall be an appropriate remedy. This
remedy shall be cumulative and not exclusive and shall be in addition to any
other remedies which the parties may have.
9.12. Further Instruments. From time to time, each party hereto shall
execute and deliver such instruments as may be reasonably necessary to carry out
the intent and purpose of this Agreement.
9.13. Arbitration. Any controversy arising out of, or relating to,
this Agreement as it may be amended from time to time, including any claim for
damages or injunctive relief, shall be settled by arbitration in San Francisco,
California in accordance with the rules then obtaining of the American
Arbitration Association. The parties consent to the jurisdiction of the Supreme
Court of the State of California and of the United States District Court for the
Northern District of California, for all purposes in connection with
arbitration. The parties consent that any process or notice of motion or other
application to either of said courts, and any paper in connection with
arbitration, may be served by certified mail, return receipt requested or by
personal service or in such other manner as may be permissible under the rules
of the applicable court or arbitration tribunal, provided a reasonable time for
appearance is allowed.
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IN WITNESS WHEREOF, the parties hereto and their spouses have duly executed
and delivered this Agreement the day and year first above written.
The Company: AEGIS MORTGAGE ACCELERATION CORPORATION,
a Delaware corporation
By:_____________________________________
Title:__________________________________
Stockholders:
________________________________________
(Signature)
________________________________________
(Printed Name of Stockholder)
________________________________________
(Title if Stockholder is an entity)
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SPOUSAL CONSENT
Each of the undersigned (each of whom is the spouse of one of the
individual Stockholders whose signature appears above) hereby consents to his or
her respective spouse's execution of the foregoing Agreement, acknowledges that
the Company is a business interest that is subject to the sole management and
control of his or her respective spouse, agrees to be bound by the terms of this
Agreement, and hereby irrevocably appoints his or her respective spouse as the
agent of the undersigned for the purposes of executing and performing any
actions directly or indirectly relating to the Company and the foregoing
Agreement, including without limitation, amendments and supplements to or
waivers, consents, or approvals under the Agreement, without further signature
or consent of or notice to the undersigned.
________________________________________
(Signature)
________________________________________
(Printed Name)
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