EXHBIT 10.8
RESTATED SHAREHOLDERS AGREEMENT
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RESTATED SHAREHOLDERS AGREEMENT, made on 8/27, 1996, among Xxxx Xxxxx,
having an address at 00 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx 00000, Xxxxxx Xxxxxxx,
having an address at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000 and Xxxxxxx
Xxxxxxxxx, having an address at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000,
(each separately referred to as a Shareholder and collectively referred to as
the Shareholders), and Mortgage Plus Equity & Loan Corporation, a New York
corporation, with offices located at 0000 Xxxxxxx Xxxxxxxx, Xxxxxxx, Xxx Xxxx
00000 (the Corporation).
I.
RECITALS
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A. The Shareholders together own all of the issued and outstanding
shares of the Corporation.
B. The Shareholders have conducted, and will continue to conduct, the
Corporation as a closed corporation and want to provide for share ownership and
control of the Corporation, and other matters, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, and other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree to the
following terms and conditions.
II.
TERMS AND CONDITIONS
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SECTION 1. CAPITALIZATION.
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The Corporation has 200 authorized shares of voting common
stock, of which 100 shares are issued and outstanding. The shares are owned as
set forth on Schedule A attached to and made a part of this agreement.
SECTION 2. CONTRIBUTIONS TO CAPITAL.
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The Shareholders have contributed to the capital of the
Corporation in the amounts stated on Schedule B attached to this Agreement. In
the event that additional capital is required, each Shareholder shall contribute
its pro rata portion of the required amount based on percentage of "voting"
share ownership.
SECTION 3. ELECTION OF OFFICERS AND DIRECTORS.
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3.1 Election of Directors. The Shareholders shall elect a Board
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of Directors consisting of Xxxx Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxxxx or
one designee of each of them.
3.1 Election of Officers. The officers of the Corporation shall
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be:
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President - Xxxxxx Xxxxxxx
Chief Financial Officer - Xxxx Xxxxx
Vice President - Xxxxxxx Xxxxxxxxx
Secretary - Xxxx Xxxxx
Treasurer - Xxxx Xxxxx
SECTION 4. MANAGEMENT OF THE BUSINESS OF THE CORPORATION.
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The Shareholders shall devote such time and attention to the
business of the Corporation as is necessary and all shall use their best efforts
to promote the business of the Corporation. Each shall keep the others
currently apprised of all matters affecting the business of the Corporation,
cause all financial matters to be entered in the appropriate books and records
and consult with one another on all business matters.
SECTION 5. RESTRICTION ON SALE OF SHARES.
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No Shareholder shall assign, encumber, transfer or otherwise
dispose of all or any portion of his shares, by sale or otherwise, to any person
or entity except as provided in this Agreement. The Corporation shall not issue
any previously unissued or treasury shares of the outstanding shares.
The Corporation shall not recognize any sale, assignment,
transfer, pledge, mortgage, encumbrance, or other
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disposition of any shares in accordance with the provisions of this Agreement
and shall not issue or transfer any shares to any person or entity unless and
until such person or entity has executed and delivered to the Corporation a
counterpart of this Agreement.
SECTION 6. SALE OF SHARES DURING LIFETIME.
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6.1 Notice. Any Shareholder desiring to sell his shares during
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his lifetime shall so notify the Corporation and non-selling Shareholders in
writing (Notice).
6.2 Option to Purchase.
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6.2.1 The Corporation shall have an option to purchase all, but
not less than all, of the shares, which option shall be exercisable by written
notification to the selling Shareholder no later than 30 days after receipt of
Notice (the Initial Option Period). The selling shareholder shall abstain from
voting as Shareholder or Director with respect to the exercise of the Option by
the Corporation.
6.2.2 If, upon expiration of the Initial Option Period, the
Corporation has not notified the selling Shareholder of its intention to
purchase all of the shares, the non-Selling Shareholders shall have an
additional option to purchase all, but not less than all, of the unsold shares,
which shall be exercisable by written notification to the selling
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Shareholder no later than 15 days after the expiration of the Initial Option
Period (the Additional Option Period). If more than one Shareholder wishes to
purchase the shares, then each purchasing Shareholder shall purchase his pro
rata portion, based on the aggregate number of shares owned by all the
purchasing Shareholders. In the event that any non-selling Shareholder wishes
to purchase fewer than his pro rata portion of the unsold shares, the others may
purchase their pro rata portions of the remaining shares.
6.3 Purchase Price. The purchase price for shares purchased
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pursuant to this Section shall be the Agreed Value, as provided in this
Agreement.
6.4 Payment of Purchase Price. The purchase price for shares
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purchased under any purchase provison of this Agreement shall be paid at the
closing, or the purchaser may elect to pay 25% percent of the purchase price at
the closing, with the balance payable over 3 years in 36 equal monthly
installments. The obligation to pay the balance of the purchase price shall be
evidenced by a promissory note bearing interest at a rate per annum equal to the
prime rate for commercial loans announced by the bank used by the Corporation's
principal office on the date the note is issued. The note shall provide that
(i) in the event of default in payment of any installment, the entire unpaid
principal amount
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shall become due and payable immediately and (ii) the principal amount of the
note may be prepaid at any time, with interest accrued to the date of payment,
in whole or in part without penalty or premium.
6.5 Closing. The closing of any purchase pursuant to this
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Section shall take place within 60 days of the termination of the Initial Option
Period or the Additional Option Period, as the case may be, at the office of the
Corporation's attorneys, or at such other location as the parties may agree. At
the closing, the selling Shareholder shall deliver (i) the stock certificates
representing the shares being sold, duly endorsed for transfer to the purchaser,
(ii) his written resignation as an officer, director and, if applicable,
employee of the Corporation and (iii) the written agreement of the selling
Shareholder that he shall not, for a period of 2 year from the closing date,
directly or indirectly, enter into any business similar to or in competition
with the business conducted by the Corporation at the time of closing, whether
as an owner, stockholder, partner, officer, director, agent or employee, within
New York, Missouri, Pennsylvania or Florida, nor will he serve or solicit any
customers or accounts of the Corporation which were served by the Corporation
within the 12 months immediately preceding the closing.
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6.6 Failure to Exercise Option. In the event that neither the
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Corporation nor the non-selling Shareholders have exercised the option to
purchase all of the shares of the selling Shareholder, within the applicable
option period, the selling Shareholder shall be free to sell such shares to a
third party provided (i) such party agrees to be bound by the terms and
conditions of this Agreement and executes and delivers a counterpart of this
Agreement to the Corporation and (ii) such transfer shall not have the effect of
preventing the Corporation from qualifying for Subchapter "S" status pursuant to
Internal Revenue Code (S)1361 et. seq.
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SECTION 7. PURCHASE OF STOCK ON DEATH OF A SHAREHOLDER.
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On the death of any Shareholder, their respective estates shall
sell to the Corporation, and the Corporation shall purchase, all of the shares
owned by that Shareholder, on the date of his or her death.
7.1 Purchase Price. For purposes of this Section, the purchase
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price of the shares shall be the greater of the amount of the proceeds of all
life insurance policies (if any) held by the Corporation on the life of the
deceased Shareholder (the Insurance Policies), or the Agreed Value, as provided
in Section 8 of this Agreement.
SHAREHOLDERS AGREEMENT -- PAGE 7
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7.2 Payment of the Purchase Price. The purchase price shall be
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paid no later than 60 days after the later of the qualification of the legal
representative of the estate of the deceased Shareholder, and receipt by the
Corporation of the proceeds of the Insurance Policies, as follows: if the
insurance proceeds are sufficient to pay the full purchase price, then the full
purchase price shall be paid immediately; if the purchase price exceeds the
insurance proceeds, the excess, or if no insurance has been maintained by the
Corporation, the entire purchase price, shall be paid as provided in Section 6.4
of this Agreement.
7.3 Transfer of Shares. Upon payment of the purchase price and,
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if applicable, execution and delivery of the promissory note, the legal
representative shall execute and deliver all instruments necessary to transfer
the shares to the Corporation. If such instruments have not been delivered
within 120 days of the date of death, then the remaining Shareholders shall have
the right, until the shares of the deceased Shareholder have been duly
transferred, to vote such shares, pro-rata on the basis of their share
ownership, on all matters requiring the approval of Shareholders.
SECTION 8. AGREED VALUE OF SHARES.
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8.1 Certificate of Value. Each year, no later than 60 days
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after the last day of the Corporation's fiscal year (the Valuation Date), the
Shareholders shall establish a value (the Agreed Value) for each share, either
by affirmation of the value established for the year immediately preceding or by
establishment of a new value. The Certificate of Value is attached to this
Agreement as Schedule C. If the parties fail in any one year to so establish a
value, the value established for the immediately preceding year shall control.
8.2 Book Value. In the event the Shareholders fail to value the
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shares as provided in Section 8.1, for 2 consecutive Valuation Dates, then the
Agreed Value of the shares shall be their book value. For purposes of this
Agreement, "book value" shall mean: (a) the net worth of the shares as of the
applicable date as determined by the Corporation's usual accountant, which
determination when made and delivered to the Corporation shall be binding upon
the parties to this Agreement, to which net worth shall be added, as good will,
(b) an amount equal to the average annual net profit, after deducting any
applicable state, federal and local taxes, for the 3 fiscal years preceding the
year in which such determination is made.
SECTION 9. INSUFFICIENT SURPLUS.
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SHAREHOLDERS AGREEMENT -- PAGE 9
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If, at the time that the Corporation is required to purchase a
Shareholder's shares, the Corporation's surplus is insufficient for such
purpose, then the entire available surplus shall be used to purchase the
shares, and the Corporation and the Shareholders shall promptly act to reduce
the stated capital or otherwise increase the surplus of the Corporation to the
extent necessary for the purchase, including, if possible, the revaluation of
corporate assets to reflect the market value of such assets on the books of the
Corporation.
SECTION 10. TERM.
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This Agreement shall terminate upon the occurrence of any of the
following events:
A. Bankruptcy, receivership, or dissolution of the Corporation;
B. Mutual agreement in writing of the parties to this
Agreement; or
C. Acquisition of a majority of the Corporation's shares by a
third party, merger, or sale of all or substantially all of the Corporation's
assets.
Upon the termination of this Agreement, each Shareholder shall
surrender to the Corporation his stock certificates and the Corporation shall
issue to the Shareholder, in
SHAREHOLDERS AGREEMENT -- PAGE 10
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lieu thereof, new certificates for an equal number of shares without the
endorsement set forth thereon.
SECTION 11. INSURANCE POLICIES.
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11.1 Maintenance. The Corporation may purchase and maintain a
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policy or policies naming the Corporation as beneficiary, insuring the life of
each Shareholder in an amount equal to the Agreed Value of such Shareholder's
shares. The amount of coverage shall be reviewed annually and adjusted to
reflect adjustments in the Agreed Value as provided in this Agreement.
11.2 Option to Purchase on Termination. If any Shareholder ceases
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to be a Shareholder of the Corporation for any reason, the Shareholder or his
spouse or other interested person shall have the right within 6 months from the
date thereof to purchase from the Corporation any or all of the policies upon
his life held by the Corporation by paying for each policy an amount equal to
its cash surrender value, if any, as of the date of such purchase, plus the
portion of the most recently paid premium applicable to the period commencing on
the date of purchase. The Corporation shall take all necessary action to
effectuate the transfer of such policies.
SECTION 12. DISABILITY PAYMENTS TO A SHAREHOLDER.
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In the event a Shareholder becomes partially or permanently
disabled prior to the age of 65, so that he is not able
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to perform his normal and customary duties for the Corporation for a period of
45 consecutive days, then, in that event, the Shareholder shall continue to
receive from the Corporation an amount of money equal to the full salary he was
receiving during the previous 12 calendar months (the Disability Payments). The
Disability Payments shall be paid by the Corporation to the Shareholder on a
weekly basis for 6 months or until the Shareholder is no longer disabled in that
he can again perform his normal and customary duties for the Corporation.
SECTION 13. PAYMENTS UPON DEATH OF A SHAREHOLDER.
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In the event a Shareholder dies, the Corporation shall pay to the
Shareholder's spouse (or in the absence of a spouse, to the Shareholder's
estate) an amount of money equal to 100% of the salary the Shareholder was
receiving during the 12 months prior to his death (the Payments). The Payments
shall be paid by the Corporation to the Shareholder's spouse (or estate, as the
case may be) on a weekly basis for 6 months.
SECTION 14. DECEASED SHAREHOLDER'S SHARES.
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In the event (a) a Shareholder dies (the Deceased Shareholder), and
(b) the Deceased Shareholder's shares in the Corporation are redeemed by the
Corporation pursuant to the terms of this Agreement, and (c) within a 2 year
period after the Deceased Shareholder's death a majority of the Corporation's
shares
SHAREHOLDERS AGREEMENT -- PAGE 12
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are acquired by a third party, or the Corporation merges with another entity, or
all (or substantially all) of the assets of the Corporation are sold, or the
Corporation's shares are the subject of a private placement offering or a public
offering (all collectively referred to as the Sale), then the Deceased
Shareholder's heirs shall be entitled, as soon as practicable, to the benefit of
the Sale to be paid in stock, stock options or cash, or a combination of two or
more of them, the form of which shall be the same as offered to the other
Shareholders (the Sale Benefit). The Sale Benefit shall be in an amount equal to
the difference between (a) the value of the Deceased Shareholder's shares at the
time of his death, and (b) the value the Deceased Shareholder's shares would
have had at the time of the Sale if the Deceased Shareholder's shares had not
been redeemed by the Corporation.
SECTION 15. ENDORSEMENT ON STOCK CERTIFICATES.
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Each stock certificate issued by the Corporation shall be endorsed
as follows:
"The shares represented by this certificate are subject to the
terms of a shareholders agreement, a copy of which is on file at
the office of the Corporation."
SECTION 16. RATIFICATION OF AGREEMENT.
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The Shareholders shall execute, acknowledge, verify and deliver any
and all documents or affidavits and shall take such
SHAREHOLDERS AGREEMENT -- PAGE 13
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other actions, requisite or appropriate to effectuate the provisions and
purposes of this Agreement.
SECTION 17. MISCELLANEOUS
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17.1 Notices. All notices called for in this Agreement shall be
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deemed to have been given when mailed by certified mail, return receipt
requested, with a copy mailed by regular first class mail, to the parties at the
addresses listed above, or to such other addresses as the parties may designate
in writing.
17.2 Construction. This Agreement shall be governed by and
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construed in accordance with the laws of the State of New York. The invalidity
or unenforceability of any provision or provisions of this Agreement shall not
affect the other provisions of this Agreement, which shall be construed in all
respects as if such invalid or unenforceable provisions were omitted.
17.3 Entire Agreement. This Agreement sets forth the entire
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understanding of the parties to this Agreement with respect to the subject
matter contained in this Agreement. Any and all prior Shareholder agreements, or
memoranda of understanding, are canceled, terminated, made null and void and are
of no further force and effect.
17.4 Modification. No modification or waiver of any provision of
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this Agreement shall be valid unless made in writing signed by all parties to
this Agreement.
SHAREHOLDERS AGREEMENT -- PAGE 14
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17.5 Benefits and Burdens. This Agreement shall be binding upon and
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shall inure to the benefit of the Corporation and its Shareholders, their heirs,
legal representatives, successors and assigns.
17.6 Counterparts. This Agreement may be executed in several
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counterparts, each of which shall be an original, and such counterparts shall
together constitute one and the same agreement.
17.7 Arbitration. Any disagreement between the parties to this Agreement
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shall be submitted to Arbitration in Nassau County, New York and shall be
determined by and in accordance with the rules and regulations of the American
Arbitration Association then in effect.
IN WITNESS WHEREOF, the parties have caused this Shareholders
Agreement to be duly executed as of 8/27, 1996.
Mortgage Plus Equity & Loan
Corporation
/s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx
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Xxxx Xxxxx Name: Xxxxxx Xxxxxxx
Title: CEO
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
SHAREHOLDERS AGREEMENT -- PAGE 15
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SCHEDULE A
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STOCK OWNERSHIP
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CERTIFICATE %
SHAREHOLDER NO. # OF SHARES OWNERSHIP
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Xxxx Xxxxx 1 33 1/3 33 1/3
Xxxxxx Xxxxxxx 2 33 1/3 33 1/3
Xxxxxxx Xxxxxxxxx 3 33 1/3 33 1/3
SHAREHOLDER'S AGREEMENT -- PAGE 16
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SCHEDULE B
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Shareholder Amount of Capital
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Contribution
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Xxxx Xxxxx
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxx
SHAREHOLDERS AGREEMENT -- PAGE 17
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SCHEDULE C
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CERTIFICATE OF VALUE
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The Agreed Value of each share of issued and outstanding stock of the
Corporation shall be $_______________ per share as of the date written below.
Dated: ________________, 199_
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SHAREHOLDERS AGREEMENT -- PAGE 18
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FIRST AMENDMENT TO
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RESTATED SHAREHOLDERS
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AGREEMENT
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FIRST AMENDMENT TO RESTATED SHAREHOLDERS AGREEMENT, made on August 27,
1996, among Xxxx Xxxxx, having an address at 00 Xxxxxx Xxxxx, Xxxxxxxx, Xxx Xxxx
00000, Xxxxxx Xxxxxxx having an address at 00 Xxxxxxxx Xxxx, Xxxxxxxxx, Xxx Xxxx
00000, Xxxxxxx Xxxxxxxxx, having an address at 00 Xxxxxxx Xxxx, Xxxxxxxxx, Xxx
Xxxx 00000 and Xxxxx Xxxxx, having an address at 0 Xxxxxx Xxxxx, Xxxx Xxxxxx,
Xxx Xxxxxx 00000 (each separately referred to as a Shareholder and collectively
referred to as the Shareholders), and Mortgage Plus Equity and Loan Corporation,
a New York corporation, with offices located at 0000 Xxxxxxx Xxxxxxxx, Xxxxxxx,
Xxx Xxxx 00000 (the Corporation).
I
RECITALS
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A. The Corporation and Messrs. Xxxxx, Xxxxxxx and Xxxxxxxxx executed a
Restated Shareholders Agreement.
B. Xxxxx Xxxxx has since become a Shareholder of the Corporation.
C. The Shareholders together own all the issued and outstanding shares of
the Corporation.
D. The Shareholders want to amend the Restated Shareholders Agreement to
reflect Xxxxx Xxxxx as a new Shareholder and to elect a new Board of Directors.
NOW THEREFORE, in consideration of the mutual promises and covenants
contained in this First Amendment, and other good and valuable consideration,
the receipt and sufficiency of which are acknowledged, the parties agree to the
following terms and conditions.
II.
TERMS AND CONDITIONS
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1. Section 3.1 of the Restated Shareholders Agreement is amended to
reflect the election of a Board of Directors consisting of Xxxx Xxxxx, Xxxxxx
Xxxxxxx, Xxxxxxx Xxxxxxxxx and Xxx X. Xxxxx.
2. Supplementing the provisions of Section 6 of the Restated Shareholders
Agreement, a new Section 6.7 is added as follows:
6.7 Right of Xxx X. Xxxxx to Purchase Xxxxx Xxxxx'x Shares.
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Notwithstanding anything contained in this Agreement to the contrary, upon the
death of Xxxxx Xxxxx, her husband, Xxx X. Xxxxx, if he is alive, shall have the
option to purchase all, but not less than all, of the Shares owned by Xxxxx
Xxxxx at the time of her death (Xxx X. Xxxxx'x Option). Xxx X. Xxxxx'x Option
shall be exercisable prior to the option of the Corporation and the non-selling
shareholders to purchase Xxxxx Xxxxx'x shares, as set forth in this Section 6,
all in the same manner, and upon the same notice, purchase and other terms, as
set forth in this Section 6.
3. Schedule A of the Restated Shareholders Agreement is amended to reflect
the stock ownership of the Corporation as follows:
FIRST AMENDMENT TO RESTATED SHAREHOLDERS AGREEMENT -- PAGE 2
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Shareholder Certificate # of %
No. Shares Ownership
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Xxxx Xxxxx 4 33.477 33.477
Xxxxxx Xxxxxxx 5 33.477 33.477
Xxxxxxx Xxxxxxxxx 6 23.146 24.146
Xxxxx Xxxxx 7 9.900 9.900
4. All the other terms and conditions of the Restated Shareholders
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this First Amendment to
Restated Shareholders Agreement to be duly executed as of August 27, 1996.
Mortgage Plus Equity and Loan
Corporation
/s/ Xxxx Xxxxx By: /s/ Xxxxxx Xxxxxxx CEO
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Xxxx Xxxxx Name: Xxxxxx X. Xxxxxxx
Title: CEO
/s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
/s/ Xxxxxxx Xxxxxxxxx
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Xxxxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
FIRST AMENDMENT TO RESTATED SHAREHOLDERS AGREEMENT -- PAGE 3
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