STOCKHOLDERS AGREEMENT
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This STOCKHOLDERS AGREEMENT (the "Agreement") dated as of April 16,
1999, is by and among each of the stockholders of Triangle Imaging Group, Inc.,
a Florida corporation (the "Company") listed on the signature page of this
Agreement.
R E C I T A L S:
WHEREAS, the capital stock of the Company consists of 50,000,000 shares
of common stock, $.001 par value per share ("Common Stock"), and 1,000,000
shares of preferred stock, $1.00 par value per share; and
WHEREAS, each of the Stockholders (as hereinafter defined) presently
owns the number of shares of Common Stock set forth opposite their respective
names on Exhibit A attached hereto, which shares when aggregated equals
6,368,454 shares representing 43.5% of the issued and outstanding shares of
Common Stock; and
WHEREAS, a new Board of Directors was recently elected by the
stockholders of the Company; and
WHEREAS, the Stockholders deem it to be in their best interests to
provide for consistent and uniform management of the Company; and
WHEREAS, the Stockholders desire to restrict the Transfer (as
hereinafter defined) of the Shares (as hereinafter defined), whether issued and
outstanding on the date hereof or issued from time to time hereafter; and
WHEREAS, the Stockholders desire to evidence their agreement with
respect to certain other matters in relation to the Company and their respective
holdings of Common Stock.
NOW, THEREFORE, in consideration of the premises, the terms and
provisions set forth herein, the mutual benefits to be gained by the performance
thereof and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS.
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms have the following meanings unless the context otherwise requires:
"AFFILIATE" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person.
"BOARD" has the meaning specified in Section 2.1(a).
"BUSINESS DAY" means any day other than a Saturday, Sunday or other
day on which commercial banks are authorized or required by law to close in Fort
Lauderdale, FL.
"COMMON STOCK" has the meaning specified in the recitals.
"COMPANY" has the meaning specified in the introductory paragraph to
this Agreement.
"COMPANY ACCEPTANCE" has the meaning specified in Section 3.4(b).
"JOINDER AGREEMENT" has the meaning specified in Section 3.1(b).
"NOMINATED DIRECTORS" has the meaning specified in Section 2.1(a).
"NOTICE OF OFFER" has the meaning specified in Section 3.4(a).
"OFFER PRICE" has the meaning specified in Section 3.4(a).
"OFFERED SECURITIES" has the meaning specified in Section 3.4(c).
"PERMITTED TRANSFER" has the meaning specified in Section 3.3.
"PERSON" means any individual, corporation, partnership, firm, joint
venture, association, joint-stock company, trust, unincorporated organization,
governmental or regulatory body or other entity.
"REGISTRATION STATEMENT" means any registration statement filed by
the Company under the Securities Act that covers any of the securities of the
Company, any amendments and supplements to such Registration Statement,
including post-effective amendments, and all exhibits and all material
incorporated by reference in such registration statement, other than
Registration Statements on Form S-8, or any similar or successor registration
statement.
"RESTRICTED SECURITIES" means the shares of Common Stock and any
securities issued by the Company in respect of the shares of Common Stock
presently owned or hereafter acquired by a Stockholder.
"SELLING STOCKHOLDER" has the meaning specified in Section 3.4(a).
"SHARES" means, with respect to each Stockholder, (i) the shares of
Common Stock set forth opposite their respective names on Exhibit A to this
Agreement and (ii) any shares of Common Stock acquired following the date
hereof.
"STOCKHOLDERS" means each of the stockholders signatory to this
Agreement and each of their respective Transferees.
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"STOCKHOLDERS ACCEPTANCE" has the meaning specified in Section
3.4(c).
"THIRD PARTY TRANSFEREE" has the meaning specified in section 3.4(e).
"TRANSFER" has the meaning specified in Section 3.1
"TRANSFEREE" has the meaning specified in Section 3.1
"UNRESTRICTED SECURITIES" means any Shares held by a Stockholder
which were received by such Stockholder in a transaction which was not exempt
from the registration requirements of the Securities Act of 1933.
SECTION 2. CORPORATE GOVERNANCE.
2.1 COMPANY'S BOARD OF DIRECTORS.
(a) NUMBER OF DIRECTORS; BOARD REPRESENTATION. During the term
of this Agreement, the Company shall be governed by a Board of Directors (the
"Board") consisting of not less than three (3) members. The directors shall
serve for a period of one year and until their successors are elected at the
next annual meeting of the stockholders, or at any special meeting, as the case
may be. At any annual or special meeting of stockholders called for the purpose
of voting on the election of directors, or by consensual action of stockholders
with respect to the election of directors, Xxxxxx X. Xxxxxxx, the Company's
President, shall nominate and recommend to the Stockholders the proposed members
of the Board (the "Nominated Directors"). Each of the Stockholders agrees (i) to
appear in person or by proxy at any annual or special meeting of stockholders
for the purpose of obtaining a quorum (or in lieu thereof grant a proxy to be
voted in accordance with Section 2.1(a)(ii) below) and (ii) to vote all voting
securities of the Company owned by such Stockholder, either in person or by
proxy, at any such meeting of stockholders or by any such consensual action with
respect to the election of directors, in favor of the election of the Nominated
Directors in accordance with this Section 2.1.
(b) BOARD OF DIRECTORS. The Board, as of the date of this
Agreement, consists of the following members:
Xxxxxxx X. Xxxxxxx (Chairman of the Board)
Xxxxxx X. Xxxxxxx
J. Xxxx Xxxxxxxx
(c) FILLING VACANCIES, ETC. If, at any time during a
director's term, a vacancy is created on the Board by the death, removal or
resignation of such director, the Stockholders shall cause the remaining
directors to meet within ten (10) days after such vacancy occurs for the purpose
of approving and appointing a director to fill such vacancy in accordance with
the provisions of Section 2.1(a).
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2.2 CERTAIN RESTRICTIONS. No Stockholder shall grant any proxy,
enter into or agree to be bound by any voting trust agreement or arrangement of
any kind with respect to any Shares, or enter into any stockholder agreement or
arrangement of any kind with respect to any Shares, any of which is inconsistent
with the provisions of this Agreement, including, but not limited to, any
agreement or arrangement with respect to the voting of shares of Common Stock,
nor shall any Stockholder act as a member of a group or in concert with any
other Person in connection with the acquisition of Shares in any manner
inconsistent with the provisions of this Agreement.
3. TRANSFER OF RESTRICTED SECURITIES.
3.1 LEGEND AND JOINDER AGREEMENT REQUIRED. Except in connection
with a Transfer of Shares (i) covered by a Registration Statement, or (ii)
pursuant to Rule 144 (or any similar or successor rule, including but not
limited to Rule 144A) or a Transfer of Unrestricted Securities in an open market
transaction, no stockholder shall sell, assign, pledge, encumber or otherwise
transfer Restricted Securities (each a "Transfer") to any Person (all persons
acquiring Restricted Securities from a Stockholder in accordance with this
Agreement, regardless of the method of transfer, including transfers pursuant to
Section 3.3 or 3.4 hereof shall be collectively referred to as "Transferees"
(and individually as a "Transferree"), unless:
(a) such Restricted Securities bear legends as provided in
Section 5;
(b) such Transferee shall have executed and delivered to the
Company, as a condition to its acquisition of Restricted Securities, a Joinder
Agreement substantially in the form of Exhibit B (or other document approved by
the Company) (a "Joinder Agreement") confirming that such Transferee takes the
Restricted Securities subject to all of the terms and conditions of this
Agreement; and
(c) such Stockholder first complies with the terms and
conditions of this Agreement.
3.2 TRANSFER RESTRICTIONS.
(a) Any attempt to Transfer any Restricted Securities not in
accordance with the Agreement shall be null and void and neither the Company as
the issuer nor any transfer agent of such securities shall give any effect to
such attempted Transfer or encumbrance on its records.
(b) No Stockholder shall Transfer any Restricted Securities at
any time if such action would constitute a violation of any federal or state
securities or blue sky laws or a breach of the conditions to any exemption from
registration of Restricted Securities under any such laws or a breach of any
undertaking or agreement of such Stockholder entered into pursuant to such laws
or in connection with obtaining an exemption thereunder. Each Stockholder agrees
that any Restricted Securities held by or issued to or to be purchased by such
Stockholder shall bear appropriate legends restricting the sale or other
transfer of such Restricted Securities, in accordance with applicable federal
and state securities or blue sky laws.
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3.3 PERMITTED TRANSFERS. Notwithstanding the requirements
contained in Section 3.4, none of the restrictions or provisions contained in
this Agreement with respect to Transfers of Restricted Securities shall apply
with respect to any Transfer (i) to the spouse or issue of such Stockholder,
(ii) to a trust or custodial account for the sole benefit of such Stockholder or
the spouse or issue of such Stockholder, (iii) to the personal representative of
a Stockholder for the purpose of administration of such Stockholder's estate or
upon the incompetency of such Stockholder for the purpose of the protection and
management of such Stockholder's assets, (iv) between Stockholders and the
Company or the Company's designee (subsections i through iv are collectively
referred to as "Permitted Transfers") or (v) which is not pursuant to Rule 144
(or any similar or successor rule) or any other exemption to the registration
requirements of the Securities Act of 1933, as amended. Not less than three (3)
days following a Permitted Transfer, a Stockholder effecting such Transfer shall
notify the Company as to the date of the sale, the number of Shares sold, and in
the event of a private transaction, the name of the Purchaser.
3.4 RIGHT OF FIRST OFFER.
(a) Except for Permitted Transfers, a Stockholder desiring to
sell or otherwise transfer Restricted Securities (a "Selling Stockholder") shall
first deliver written notice to the Company and each of the Stockholders (the
"Notice of Offer") which Notice of Offer shall specify (i) the type and number
of Restricted Securities owned by the Selling Stockholder which such Selling
Stockholder wishes to sell (the "Offered Securities"); (ii) the proposed cash
purchase price for each type of Restricted Security constituting the Offered
Securities (the "Offer Price"); and (iii) all other terms and conditions of such
offer. The Notice of Offer shall constitute an irrevocable offer by the Selling
Stockholder to sell to the Company (its designee) or the Stockholders, as the
case may be, the Offered Securities at the Offer Price.
(b) Within ten (10) days following its receipt of the Notice
of Offer, the Company shall notify the Selling Stockholder as to the number and
type of the Offered Securities that the Company (or its designee) is electing to
purchase (such notification shall be referred to hereinafter as the "Company
Acceptance"). The election to purchase the Offered Securities shall be made on
behalf of the Company by those members of the Board who are not Affiliates of
the Selling Stockholder. The Company Acceptance shall be deemed to be an
irrevocable commitment to the purchase from the Selling Stockholder the number
of the Offered Securities which the Company or its designee has elected to
purchase pursuant to the Company Acceptance.
(c) Within ten (10) days following its receipt of the Notice
of Offer, each Stockholder shall notify the Selling Stockholder as to the type
and number of Offered Securities, if any, that it is electing to purchase (such
notification is hereinafter referred to as the "Stockholders Acceptance"). If
the Company does not receive a Stockholder's Acceptance from any of the other
Stockholders within such ten (10) day period, such Stockholders who did not
deliver a Stockholder's Acceptance shall be deemed to have declined to purchase
any of the Offered Securities. A Stockholder's Acceptance shall be deemed to be
an irrevocable commitment to purchase from the Selling Stockholder the number of
Offered Securities which such Stockholder has elected to purchase pursuant to
its Stockholder's Acceptance, subject to the allocation of Offered Securities
among Stockholders accepting the Notice of Offer as hereinafter
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provided. If the Company and the Stockholders have elected to purchase a number
of Offered Securities that in the aggregate exceeds the total number of Offered
Securities, the Company or its designee shall be entitled to purchase the number
of Offered Securities contained in the Company Acceptance and each such
Stockholder shall be entitled to purchase a percentage of the remaining Offered
Securities determined by dividing the number of Shares owned by such Stockholder
by the total number of Shares held by all such Stockholders who have elected to
purchase Offered Securities.
(d) Subject to paragraph (e) of this Section 3.4, if the
Company or its designee or any Stockholder elects to purchase any Offered
Securities, such Offered Securities shall be delivered, and the transaction
closed, within twenty (20) days after the expiration of the ten (10) day period
provided in Section 3.4(c).
(e) If, at the end of the 10 (ten) day period provided in
Section 3.4(c), the Company or its designee and the Stockholders have not
elected to purchase all of the Offered Securities, the Selling Stockholder (i)
shall be under no obligation to sell any of the Offered Securities to the
Company or its designee or any Stockholder, unless the Selling Stockholder so
elects, and (ii) may, within a period of ninety (90) days from the date of the
Notice of Offer, if applicable, sell the Offered Securities to one or more third
parties (each a "Third Party Transferee"), for cash at a price per share not
less than the Offer Price and on such other terms and conditions as are no more
favorable to the proposed Third Party Transferee than those specified in the
Notice of Offer.
3.5 MERGER TRANSACTIONS. In the event that the Company shall have
entered into any agreement of merger to merge with or into any other corporation
(including, without limitation, any merger effected for the purpose of changing
the Company's state of incorporation), Sections 3.1 through 3.4 of this
Agreement shall not be applicable in connection with the consummation of such
merger; provided, however, that the Stockholders and any securities received by
the Stockholders in such transaction shall be subject to the restrictions the
terms, conditions, covenants and restrictions contained in this Agreement.
Section 4. REPRESENTATIONS AND WARRANTIES.
Each of the Stockholders hereby represents and warrants to the
other Stockholders as follows:
(i) such Stockholder has full power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby without the consent, concurrence or joinder of any other
Person (except for any such consent, concurrence or joinder that has been
obtained and a copy of which has been delivered to the Company);
(ii) the execution, delivery, and performance by such
Stockholder of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of such Stockholder;
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(iii) this Agreement has been duly and validly
executed and delivered by such Stockholder and constitutes a binding obligation
of such Stockholder, enforceable against such Stockholder in accordance with its
terms; and
(iv) the execution, delivery and performance by such
Stockholder of this Agreement and the consummation by such Stockholder of the
transactions contemplated hereby will not (with or without the giving of notice
or the lapse of time, or both) (A) violate any provision of law, statute, rule
or regulation to which such Stockholder is subject, (B) violate any order,
judgment, or decree applicable to such Stockholder or its properties or assets,
or (C) conflict with, or result in a breach or default under, any agreement or
other instrument to which such Stockholder is a party or by which such
Stockholder or its properties or assets is bound.
Section 5. LEGEND.
Each of the Stockholders agrees that each outstanding certificate
representing Restricted Securities shall be endorsed with legends substantially
in the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE TRANSFERRED, SOLD, OFFERED
FOR SALE, PLEDGED, HYPOTHECATED, OR OTHERWISE DISPOSED OF UNLESS PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT, OR UNLESS IN THE OPINION OF
COUNSEL TO THE COMPANY SUCH TRANSFER IS EXEMPT FROM APPLICABLE REGISTRATION
REQUIREMENTS.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS SET FORTH IN A STOCKHOLDERS AGREEMENT DATED AS OF APRIL 16, 1999, A
COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY OR FROM THE HOLDER OF THIS
CERTIFICATE. TRANSFER OF SUCH SHARES WILL NOT BE MADE ON THE BOOKS OF THE
COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF SUCH
AGREEMENT.
A copy of this Agreement shall be filed with the Secretary of the
Company and kept with the records of the Company.
Section 6. INVOLUNTARY TRANSFER OF RESTRICTED SECURITIES.
6.1. CERTAIN INVOLUNTARY TRANSFERS; SELLER'S NOTICE. In the event
that a Stockholder shall involuntarily transfer, directly or indirectly, any or
all of his, her or its Restricted Securities (other than in the event of death
or disability), such Stockholder shall give written notice within five (5) days
of such involuntary transfer (the "Seller's Notice") to the Company and the
Stockholders, with a copy to the transferee thereof (the "Transferee"), stating
the fact that the involuntary transfer occurred, the reasons therefor, the date
of the transfer, the name and address of the Transferee and the type and number
of Restricted Securities acquired by the Transferee (the "Involuntarily
Transferred Shares").
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6.2. RIGHT TO REPURCHASE. For a period of sixty (60) days from the
date of receipt of the Seller's Notice or, failing receipt of such notice, sixty
(60) days from the date the Company sends written notice to the Transferee that
the transfer is deemed to be an involuntary transfer subject to repurchase under
this Section 6, the Company and the Stockholders shall have the irrevocable and
exclusive option to purchase all of the Involuntarily Transferred Shares,
exercisable in the same order of priority, proportion and manner as provided in
Section 3.4, and the provisions of Section 3.4, shall be followed in their
entirety except that the purchase price shall be as provided in Section 6.3.
6.3. PURCHASE PRICE. The purchase price for Restricted Securities
purchased pursuant to Section 6.2 shall be equal to the lesser of (a) the price
which the Transferee paid for the Involuntarily Transferred Shares, and (b) the
price which the Stockholders originally paid for the Involuntarily Transferred
Shares.
Section 7. HOLDBACK AGREEMENT.
7.1. RESTRICTIONS ON PUBLIC SALE BY STOCKHOLDER OF RESTRICTED
SECURITIES.
Each of the Stockholders agree that with respect to any
Registration Statement that the Company may file (other than on Form S-8) such
Stockholder will not sell any equity securities of the Company (whether or not
such securities are Restricted Securities, and however acquired), other than
securities, if any, of such Stockholder included in such Registration Statement
or securities sold pursuant to Rule 144, during the period commencing five (5)
days before and ending on the last date upon which such Stockholder is
prohibited from effecting any such sale pursuant to any agreement entered into
by and among such Stockholder, the Company and one or more of the underwriters
with respect to such offering.
Section 8. MISCELLANEOUS.
8.1 SURVIVAL OF TERMS. All representations, warranties and
covenants contained in this Agreement or in any certificates or other
instruments delivered by or on behalf of the parties hereto shall be continuous
and survive the execution of this Agreement.
8.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement contains the
entire agreement among the parties hereto with respect to the transactions
contemplated herein, supersedes all prior written agreements and negotiations
and oral understandings, if any, and may not be amended, supplemented or
discharged except by an instrument in writing signed by Stockholders holding the
number of shares constituting a majority of the shares held by the Stockholders.
8.3 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Florida, without regard
the to conflict of laws provisions thereof.
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8.4 ASSIGNMENT. This Agreement shall be binding upon the parties
hereto and their respective successors and assigns and shall inure to the
benefit of any assignee, subject to the terms and conditions hereof.
8.5 NO WAIVER. Any waiver by either party to this Agreement of any
provision of this Agreement shall not be construed as a waiver of any other
provision of this Agreement, nor shall such waiver be construed as a waiver of
such provision respecting any future event or circumstance.
8.6 NOTICES. Notices hereunder shall be given only by personal
delivery, registered or certified mail, return receipt requested, overnight
courier service, or telex, telegram, facsimile or other form of electronic mail
and shall be deemed transmitted when personally delivered or deposited in the
mail or delivered to a courier service or a carrier for electronic transmittal
or electronically transmitted by facsimile (as the case may be), postage or
charges prepaid, and properly addressed to the particular party to whom the
notice is to be sent. Unless and until changed by notice given as provided
herein, notices shall be sent to the Stockholders at their respective addresses
set forth on the signature page attached hereto.
8.7 INJUNCTIVE RELIEF. It is acknowledged that it will be
impossible to measure in dollar amounts the damages that would be suffered if
the parties fail to comply with any of the obligations herein imposed on them
and that in the event of any such failure, an aggrieved party will be
irreparably damaged and will not have an adequate remedy at law. Any such party
shall, therefore, be entitled to injunctive relief, including specific
performance, to ensure the performance of such obligations, and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
8.8 COUNTERPARTS. This agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
8.9 VARIATIONS IN PRONOUNS. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the antecedent person or persons or entity or
entities may require.
8.10 HEADINGS. The headings used in this Agreement are for
convenience only and shall not by themselves determine the interpretation,
construction or meaning of this Agreement.
8.11 BINDING EFFECT. This Agreement, the Exhibits and all
certificates or other instruments delivered by or on behalf of the parties
hereto, constitute and contain the entire agreement of the parties with respect
to the subject matter hereof and supersede any and all prior negotiations,
correspondence, understandings and agreements between the parties with respect
hereto.
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8.12 TERM. This Agreement shall terminate on the earlier of (a) the
date on which Xxxxxx X. Xxxxxxx is no longer the senior most executive
responsible for managing the day-to-day activities of the Company (excluding any
senior officer who may be suspended from actively discharging his duties) or (b)
the date which is three (3) years following the date hereof.
IN WITNESS WHEREOF, each of the Stockholders has caused this
Agreement to be executed as of the day and year first above written.
STOCKHOLDERS:
_____________________________________ _____________________________________
Name: Name:
Address: Address:
_____________________________________ _____________________________________
Name: Name:
Address: Address:
_____________________________________ _____________________________________
Name: Name:
Address: Address:
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EXHIBIT A
STOCKHOLDERS
NUMBER OF SHARES
NAME OF COMMON STOCK
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EXHIBIT B
JOINDER AGREEMENT
Relating to the Stockholders Agreement
WHEREAS, the undersigned is acquiring simultaneously with the execution
of this Agreement __________ shares of Common Stock, par value $.001 per share
(the "Securities"), of Triangle Imaging Group, Inc., a Florida corporation (the
"Company"), from the Company or an existing holder of Securities; and
WHEREAS, as a condition to the acquisition of the Securities, the
undersigned has agreed to join in a certain stockholders agreement (the
"Stockholders Agreement") dated as of April 16, 1999 by and among the persons
listed on the signature page thereto, as the same may have been amended from
time to time; and
WHEREAS, the undersigned understands that the execution of this
Agreement is a condition precedent to the acquisition of the Securities;
NOW, THEREFORE, as an inducement to the Company, or the holder of the
Securities from whom the undersigned is acquiring the Securities, to transfer
the Securities to the undersigned, the undersigned agrees as follows:
1. The undersigned hereby joins in the Stockholders Agreement and
agrees to be bound by all of the terms and provisions thereof.
2. Any notice to be given to the undersigned pursuant to Section 8.6 of
the Stockholders Agreement should be given at the following address:
_______________________________________________________________.
IN WITNESS WHEREOF, the undersigned has executed this Agreement as of
this ____ day of __________________, 199__.
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Name:
