EXHIBIT 10.12
SELLING SHAREHOLDER AGREEMENT
THIS SELLING SHAREHOLDER AGREEMENT (this "Agreement") is made and enter
into on the effective date of the 1st day of March, 2002 by and among Xxxxxx X.
Xxxxxxx, Xxxx X. Xxxxx, the Xxxxxx Family Trust, Xxxx X. Xxxxxx, and Xxxxxx X.
Xxxxxxx, Xx. (collectively, "Selling Shareholders" or singly, "Selling
Shareholder") and Precis, Inc., an Oklahoma corporation ("Precis").
RECITALS
1. The Selling Shareholders in the aggregate intend to contribute 250,000
shares of Precis common stock, $0.01 par value per share (the "Common Stock") to
the Trust Under The Capella Group, Inc. IMR 2002 Stock Purchase Plan (the
"Trust") for the offer and sale to the independent marketing representative of
The Capella Group, Inc., a wholly-owned subsidiary of Precis ("Capella") that
elect to participate in The Capella Group, Inc. IMR 2002 Stock Purchase Plan
(the "Plan"), pursuant to registration under the Securities Act of 1933, as
amended (the "1933 Act") (such offer to sell and sale is referred to as the
"Public Offering"). In addition, the Selling Shareholders may contribute
additional shares of Common Stock to the Trust for offer and sale pursuant to
the Plan. For purposes of this Agreement, shares of Common Stock contributed to
the Trust and sold to the participants in the Plan shall be referred to as the
"Shares."
2. Precis does not require any additional capital as of the date of this
agreement; however, the Board of Directors of Precis has concluded that it is in
the best interest of Precis and its non-affiliate shareholders to take actions
to increase the number of shares of Common Stock owned by non-affiliates
(ultimately to increase the "public float" of the Common Stock) in order to
establish and maintain a more orderly market of and broaden ownership of the
Common Stock and reduce to some extent the volatility of the Common Stock in the
market place, while avoiding any additional dilution to the current shareholders
of Precis.
3. Each of the Selling Shareholders will constitute an "underwriter" within
the meaning of the 1933 Act and have the attendant liability.
4. Each Selling Shareholder desires to be indemnified by Precis for any and
all liabilities and claims arising from or attributable to the offer and sale of
the Shares.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements herein contained, and intending to be legally bound hereby,
Selling Shareholders and Precis hereby agree as follows:
1. EXPENSES OF PUBLIC OFFERING. Precis hereby agrees to bear all costs and
expenses of the Public Offering, including without limitation all registration
and filing fees, printing expenses, fees and disbursement of Precis' legal
counsel, accounting and auditing fees and disbursement of Precis' independent
accountants, stock transfer, and sales commissions and discounts, if any,
associated with the sale of the Shares (collectively, the "Offering Costs"). To
the extent that any Selling Shareholder pays any portion of the Offering Costs,
the Selling Shareholder that paid such Offering Costs shall be entitled to
reimbursement of such Offering Costs by Precis.
2. PRECIS INDEMNIFICATION. Precis shall indemnify and hold harmless each
Selling Shareholder (the "Indemnified Party") against any and all investigations
of, preparation for or defense of any pending or threatened liabilities, claims,
judgment, fines and amounts paid in settlement and expenses (including attorneys
fees) actually and reasonably incurred by the Indemnified Party (collectively
the "Loss, Claim or Expense") in connection with any claim or any threatened,
pending or completed action, suit or proceeding, whether civil,
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criminal, administrative or investigative ("Proceeding"), including any action
by or in the right of Precis, to which the Indemnified Party is, was or at any
time becomes a party, or is threatened to be made a party, by reason of the fact
that the Indemnified Party is, was or at any time participant in the sale and
distribution of the Shares as part of the Public Offering and by reason of any
misstatement or omissions to state a material fact by Precis. Precis further
agrees that the Indemnified Party shall not have any liability to Precis or its
affiliates, officers, directors, agents, employees, persons deemed to be in
control of Precis within the meaning of either Section 15 of the Securities Act
of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as
amended, or shareholders for any Losses, Claims or Expenses. Precis agrees that
the provisions of this Section 2shall apply (i) whether or not the Indemnified
Party is a formally named party to or the subject or target of any Proceeding
and (ii) in addition to any liability that Precis may otherwise have and shall
be binding upon and inure to the benefit of any successors, assigns, heirs and
personal representatives of Precis or an Indemnified Party.
2.1 LIMITATIONS ON INDEMNITY. No indemnity pursuant to this Section 2
shall be paid to the Indemnified Party (i) for the amount of such Loss,
Claim or Expense for which the Indemnified Party is indemnified pursuant to
any insurance purchased and maintained by Precis or (ii) on account of the
Indemnified Party's conduct that is finally adjudged to have been knowingly
fraudulent, deliberately dishonest or willful misconduct.
2.2 CONTINUATION OF INDEMNIFY. The provisions of this Section 2 shall
continue during the period that the Indemnified Party shall be subject to
any possible Proceeding by reason of the fact that the Indemnified Party
is, was or at any time a participant in the sale and distribution of the
Shares as part of the Public Offering.
2.3 NOTIFICATION AND DEFENSE OF CLAIM. Within 30 days after receipt by
the Indemnified Party of notice of the commencement of any Proceeding in
which the Indemnified Party has a right to indemnification pursuant to this
Section 2, the Indemnified Party shall notify Precis; however, the omission
of the Indemnified Party to timely notify Precis shall not relieve Precis
from any liability that Precis may have to the Indemnified Party under this
Section 2 or otherwise. With respect to any such action, suit or proceeding
as to which the Indemnified Party notifies Precis of the commencement
thereof
(i) Precis will be entitled to participate therein at its own expense
and
(ii) Except as otherwise provided below, to the extent that Precis may
wish, any other person similarly notified by the Indemnified Party will be
entitled to assume defense thereof, with counsel satisfactory to the
Indemnified Party. After notice from Precis of its election to assume the
defense thereof, Precis will not be liable to the Indemnified Party under
this Section for any additional legal or other expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof
other than as otherwise provided below. The Indemnified Party shall have
the right to employ its own counsel in such action, suit or proceeding;
provided, however, that the fees and expenses of such counsel incurred
after notice from Precis of the assumption of the defense thereof shall be
at the expense of the Indemnifying Party, unless (a) the employment of
counsel by the Indemnified Party has been authorized by Precis, (b) the
Indemnified Party shall have reasonably concluded that there may be a
conflict of interest between Precis and the Indemnified Party in the
conduct of the defense of such action, or (c) Precis shall not have
employed counsel to assume the defense of such action, in each of which
cases the fees and expense of counsel shall be at the expense of Precis.
Precis shall not be entitled to assume the defense of any action, suit or
proceeding brought by or on behalf of Precis or as to which the Indemnified
Party shall have made the conclusion provided for in (b) above.
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Notwithstanding the foregoing, in no event shall Precis be obligated to
reimburse the fees or expenses of more than one counsel for the Indemnified
Party.
(iii) Precis shall not be liable to indemnify the Indemnified Party
under this Section 2 for any amount paid in settlement of any Losses,
Claims or Expenses and related Proceeding effected without Precis' written
consent. Precis shall not settle any Losses, Claims or Expenses and related
Proceedings in any manner that would impose any obligation, penalty or
limitation on the Indemnified Party without the Indemnified Party's written
consent. Neither Precis nor the Indemnified Party will unreasonably
withhold its consent to any proposed settlement.
2.4 REPAYMENT OF EXPENSES. The Indemnified Party shall reimburse
Precis for all reasonable expenses paid by Precis in defending any
Proceeding against the Indemnified Party in the event and only to the
extent that it shall be ultimately determined that the Indemnified Party is
not entitled to be indemnified by Precis for such expenses under this
Agreement.
2.5 ENFORCEMENT. It is hereby acknowledged that the provisions of this
Section 2 are contained in this Agreement to induce the Indemnified Party
to participate in the Public Offering with the other Selling Shareholders
and that the Indemnified Party's participation is, in part, in reliance
upon the provisions of this Section 2. In the event the Indemnified Party
is required to bring any action to enforce the Indemnified Party's right to
collect moneys due under this Section 2 and is successful in such action,
Precis shall reimburse the Indemnified Party for all of the Indemnified
Party's attorneys fees and expenses in bringing and pursuing such action.
2.6 JUDICIALLY IMPOSED LIMITATIONS. If for any reason the
indemnification provisions of this Section 2 are judicially determined to
be unavailable or insufficient to hold any Indemnified Party harmless, then
Precis agrees to contribute to the Losses, Claims or Expenses for which
indemnification is held unavailable in such proportion as is appropriate to
reflect not only the relative benefits received by Precis and such
Indemnified Party, but also relevant fault of each such person or entity,
as well as any relevant equitable considerations.
3. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier to the parties to this
Agreement at addresses appearing below the signature of each such party or sent
by electronic transmission, with confirmation received, to the facsimile numbers
also specified below the signature of each such party (or at such other address,
facsimile or telephone number as shall be specified by like notice).
4. AMENDMENT. This Agreement may be amended by the Selling Shareholders and
Precis at any time only by an instrument in writing signed by the parties
hereto.
5. WAIVER. Any party hereto may with respect to any other party hereto (a)
extend the time for the performance of any of the obligations or other acts or
(b) waive compliance with any of the agreements or conditions contained in this
Agreement. Any such extension or waiver shall be valid if set forth in an
instrument in writing signed by the party or parties to be bound thereby. For
purposes of this Agreement, time shall be of the essence.
6. HEADINGS; CONSTRUCTION. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. In this Agreement (a) words denoting the
singular include the plural and vice versa, (b) "it" or "its" or words denoting
any gender include all genders, (c) the word "including" shall mean "including
without limitation," whether or not expressed, (d) any reference to a statute
shall mean the statute and any regulations thereunder in force as of the date of
this
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Agreement, unless otherwise expressly provided, (e) any reference herein to a
Section refers to a Section of this Agreement, unless otherwise stated, (f) when
calculating the period of time within or following which any act is to be done
or steps taken, the date which is the reference day in calculating such period
shall be excluded and (g) any reference to a party's "best efforts" or
"reasonable efforts" shall not include any obligation of such party to pay, or
guarantee the payment of, money or other consideration to any third party or to
agree to the imposition on such party of any condition reasonably considered by
such party to be materially burdensome to such party.
7. SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the extent reasonably
possible.
8. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
supersedes all prior agreements and undertakings, both written and oral, among
the parties, or any of them, with respect to the subject matter hereof, except
as otherwise expressly provided herein.
9. ASSIGNMENT. This Agreement shall not be assigned by operation of law or
otherwise.
10. PARTIES IN INTEREST. This Agreement shall be binding upon and inure
solely to the benefit of each party hereto, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any other person any
right, benefit or remedy of any nature whatsoever under or by reason of this
Agreement, including, without limitation, by way of subrogation, other than
Section 2 (which is intended to be for the benefit of the Indemnified Party and
may be enforced by such Indemnified Party).
11. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of any party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any covenant or agreement herein, nor shall any single or partial
exercise of any such right preclude other or further exercise thereof or of any
other right. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
12. GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the internal laws of the State of Oklahoma applicable to
contracts executed and fully performed within the State of Oklahoma.
13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
14. WAIVER OF JURY TRIAL. EACH OF THE SELLING SHAREHOLDERS AND PRECIS
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHTS TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED UPON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY.
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15. JURISDICTION; SERVICE OF PROCESS. Any action or proceeding seeking to
enforce any provision of, or based on any right arising out of, this Agreement
may be brought against any of the parties in the courts of the State of
Oklahoma, County of Cleveland or, the State of Texas, County of Tarrant, the
United States District Court for the Western District of Oklahoma or the United
States District Court for the Northern District of Texas, and each of the
parties consents to the jurisdiction of such courts (and of the appropriate
appellate courts) in any such action or proceeding and waives any objection to
venue laid therein.
IN WITNESS WHEREOF, the Selling Shareholders and Precis have caused
this Agreement to be executed as of the date first written above and with
respect to Precis by its duly authorized officers and with respect to Xxxxxx
Family Trust by its duly authorized trustee.
"Selling Shareholders" /s/ XXXXXX X. XXXXXXX
------------------------------------------
Xxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxxx 000
Xxxxxx Xxxxxxx, Xxxxx 00000
/s/ XXXX X. XXXXX
------------------------------------------
Xxxx X. Xxxxx
0000 Xxxxx Xxxxxxx 000
Xxxxxx Xxxxxxx, Xxxxx 00000
/s/ XXXX X. XXXXXX
------------------------------------------
Xxxx X. Xxxxxx
0000 Xxxxx Xxxxxxx 000
Xxxxxx Xxxxxxx, Xxxxx 00000
Xxxxxx Family Trust
By: /s/ XXXXX XXXXXX
--------------------------------------
Xxxxx Xxxxxx, Trustee
Mr. Xxxxx Xxxxxx
0000 Xxxxx Xxxxxxx 000
Xxxxxx Xxxxxxx, Xxxxx 00000
/s/ XXXXXX X. XXXXXXX, XX.
------------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
0000 Xxxxx Xxxxxxx 000
Xxxxxx Xxxxxxx, Xxxxx 00000
"Precis" PRECIS, INC.
By /s/ XXXXXX X. XXXXXXX
---------------------------------------
Xxxxxx X. Xxxxxxx, Chief Executive
Officer
0000 Xxxxx Xxxxxxx 000
Xxxxxx Xxxxxxx, Xxxxx 00000
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