Exhibit 8
SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT ("Agreement") is entered into as of June
2, 1997, by and among SCIENTECH, Inc., a corporation formed under the laws of
Idaho (the "Company"); and the Persons named in Schedule A hereto (the
"Shareholders").
RECITALS
WHEREAS, the Company has outstanding as of the date hereof 2,026,413
shares of Common Stock; and
WHEREAS, each Shareholder has or is expected to have a substantial
investment in the Company by reason of its ownership of the capital stock of the
Company as set forth on Schedule A; and
WHEREAS, the terms "Shareholder" or "Shareholders" as used herein shall
include the parties hereto other than the Company and shall include any future
holder of shares of Common Stock or other equity securities of the Company who
becomes a party to this Agreement; and
WHEREAS, the parties believe that it is in the best interest of the
Company and the Shareholders to make provision for matters relating to the
governance of the Company;
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used herein in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" means, as applied to the Company or any other specified
Person, any Person directly or indirectly controlling, controlled by or under
direct or indirect common control with the Company (or other specified Person)
and shall also include (a) any Person who is a director or beneficial owner of
at least 5% of the then outstanding equity securities of the Company (or other
specified Person) and Family Members of any such Person, (b) any Person of which
the Company (or other specified Person) or an Affiliate (as defined in clause
(a) above) of the Company (or other specified Person) shall, directly or
indirectly, either beneficially own at least 10% of the then outstanding equity
securities or constitute at least a 10% equity participant, and (c) in the case
of a specified Person who is an individual, any Family Member of such Person.
"Approved Management Incentive Plan" shall mean any plan described on
Schedule 3.4(b) of the Stock Purchase Agreement, and any incentive stock plan or
other form of incentive compensation approved by the Company's Board of
Directors and PSO in writing.
"Articles of Incorporation" means the Amended and Restated Articles of
Incorporation of the Company attached as Exhibit A to the Stock Purchase
Agreement.
"Common Stock" means the Class A Voting Common Stock, par value $.01
per share, and the Class B Nonvoting Common Stock, par value $.01 per share, of
the Company.
"Escrow Agreement" means that Escrow Agreement among Sellers, PSO and
the Escrow Agent named therein in the form of Exhibit B to the Stock Purchase
Agreement.
"Fully Diluted Basis" shall mean with respect to any shares of capital
stock of the Company the aggregate of (a) all of such shares which consist of
Common Stock, and (b) with respect to any other shares which are not Common
Stock, the number of shares of Common Stock into which such shares are
convertible at the time of determination of such Fully Diluted Basis, and (c)
with respect to any options, warrants or other rights to acquire shares of
Common Stock (or securities convertible into or exchangeable for Common Stock)
the maximum number of shares of Common Stock issuable at the time of such
determination in connection with the exercise of any such options, warrants or
other rights to subscribe, convert or exchange.
"Options" shall mean any rights, options, or warrants to purchase
shares of Common Stock from the Company, and securities of any type whatsoever
that are, or may become, convertible into, exercisable, exchangeable, or carry
rights to subscribe for any Common Stock of the Company.
"Person" shall mean an individual, partnership, corporation,
association, trust, joint venture, unincorporated organization and any
government, governmental department or agency or political subdivision thereof.
"PSO" shall mean Public Service Company of Oklahoma, an Oklahoma
corporation.
"Qualified IPO" shall mean a fully underwritten, firm commitment public
offering pursuant to an effective registration statement under the Securities
Act covering the offer and sale by the Company of Common Stock in which the
aggregate net proceeds to the Company after deducting underwriters' discounts
and commissions equals or exceeds $20,000,000 and in which the price per share
of Common Stock offered to the public equals or exceeds $10.00, such price to be
equitably adjusted in the event of any stock dividend, stock split, combination,
recapitalization or other similar event, and the listing of such Common Stock on
a nationally recognized U.S. exchange.
"Sellers" shall mean the persons listed on Schedule 2.1 of the Stock
Purchase Agreement.
"Shareholders" shall have the meaning given such term in the Recitals
to this Agreement.
"Stock Purchase Agreement" means that certain Agreement of even
date between Xx. X. X. Xxxxxxxxx and his Related Trusts and Family Members (as
such terms are defined in the Stock Purchase Agreement) and PSO, as well as the
Exhibits and Schedules thereto when the circumstances so admit.
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"Transfer" shall mean, with respect to any security of the Company, any
transfer, sale, gift, exchange, assignment, pledge or other disposition by a
Shareholder and in the case of a Shareholder which is not an individual, a
Transfer of shares of Common Stock or other security held by such Shareholder
shall be deemed to have been made if any equity interest in such Shareholder is
directly or indirectly transferred, sold, given, exchanged, assigned, pledged or
disposed of to any other Person.
"Transferee" shall mean any Person who receives shares of Common Stock
by virtue of a Transfer.
ARTICLE II
AFFIRMATIVE COVENANTS OF THE COMPANY AND THE SHAREHOLDERS
2.1 Board Representation and Voting Agreement.
(a) The Shareholders hereby agree to amend the Bylaws of the
Company, and to take all other actions as may be necessary, to establish and
maintain the number of directors of the Board of Directors of the Company at a
minimum of six (6).
(b) For so long as PSO owns 10% or more of the outstanding
Common Stock of the Company on a Fully Diluted Basis, PSO shall have the right
to designate one (1) member of the Board of Directors. The Shareholders hereby
agree to cast their votes for, and the Company shall take all necessary steps to
nominate, the candidate for the Board of Directors designated by PSO, who
initially shall be Xxxxx X. Xxxxxxxx.
(c) In the event all parties to this Agreement agree to
increase the number of directors above six, the parties agree to fill such
vacancies only with independent industry executives.
(d) The Company agrees that, without the consent of PSO, it
will not issue any Common Stock on a Fully Diluted Basis at a price lower than
$6.00 per share, proportionately adjusted to reflect any stock dividend, stock
split, combination of shares, reclassification, recapitalization, automatic
conversion, redemption or other similar event affecting the number or character
of outstanding shares of Common Stock, and the Shareholders hereby agree to vote
their shares, and to take all other actions as may be necessary, to cause the
Company to comply with such covenant; provided, the provisions of this Section
2.1(d) shall not apply to (i) Options issued to any employees of the Company
pursuant to any Approved Management Incentive Plan; (ii) Common Stock issued
pursuant to the exercise of Options granted under any Approved Management
Incentive Plan; and (iii) shares of Class A Voting Common Stock issued to any
holder of shares of Class B Stock upon the conversion of any share of Class B
Nonvoting Common Stock to Class A Voting Common Stock, and vice versa;
(e) If at any time the number of authorized but unissued
shares of Class A Voting Common Stock shall not be sufficient to effect the
conversion of all then outstanding shares of the Class B Nonvoting Common Stock,
the Company and the Shareholders shall immediately take such corporate action as
may be necessary to increase its authorized but
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unissued shares of Class A Voting Common Stock to such number of shares as shall
be sufficient for such purpose.
(f) Each and every Transferee of the shares from any
Shareholder shall be bound by and subject to all the terms and conditions of
this Agreement. So long as this Agreement is in effect, the Company shall
require, as a condition precedent to the Transfer of any shares covered by this
Agreement, that the Transferee agrees in writing to be bound by, and subject to,
the terms and conditions of this Agreement and to ensure that his Transferees of
the shares shall be likewise bound.
2.2 Restrictive Legend. The Company and the Shareholders agree
that, so long as this Agreement is in effect, all share certificates in respect
of Common Stock or other voting securities, now or hereafter held by each
Shareholder will be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO AGREEMENTS,
COVENANTS AND RESTRICTIONS IN REGARD TO THE VOTING OF SUCH SHARES AND
THEIR TRANSFER, AS PROVIDED IN THE ARTICLES OF INCORPORATION AND BY THE
PROVISIONS OF A SHAREHOLDERS' AGREEMENT DATED JUNE 2, 1997 BY AND AMONG
THE COMPANY AND THE SHAREHOLDERS NAMED THEREIN, A COPY OF WHICH IS ON
FILE IN THE OFFICE OF THE SECRETARY OF THE COMPANY.
2.3 Director Expenses. The Company shall pay the reasonable
out-of-pocket travel, lodging and other related expenses of all directors
elected pursuant to the Articles of Incorporation and this Article II incurred
in connection with attendance at meetings of the Board or any committee thereof.
ARTICLE III
MISCELLANEOUS
3.1 Notices.
(a) All demands, notices, requests, consents and other
communications required or permitted under this Agreement, shall be in writing
and shall be personally delivered or sent by facsimile machine (with a
confirmation copy sent by one of the other methods authorized in this Section),
commercial (including FedEx) or U.S. Postal Service overnight delivery service,
or deposited with the U.S. Postal Service mailed first class, registered or
certified mail, postage prepaid, as set forth on Schedule A hereto.
(b) Notices shall be deemed given upon the earlier to occur of
(i) receipt by the party to whom such notice is directed; (ii) if sent by
facsimile machine, on the day (other than a Saturday, Sunday or legal holiday in
the jurisdiction to which such notice is directed) such notice is sent if sent
(as evidenced by the facsimile confirmed receipt) prior to 4:00 p.m. Mountain
Time and, if sent after 4:00 p.m. Mountain Time, on the day (other than a
Saturday,
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Sunday or legal holiday in the jurisdiction to which such notice is directed)
after which such notice is sent; (iii) on the first business day (other than a
Saturday, Sunday or legal holiday in the jurisdiction to which such notice is
directed) following the day the same is deposited with the commercial carrier if
sent by commercial overnight delivery service; or (iv) the fifth day (other than
a Saturday, Sunday or legal holiday in the jurisdiction to which such notice is
directed) following deposit thereof with the U.S. Postal Service as aforesaid.
Each party, by notice duly given in accordance therewith may specify a different
address for the giving of any notice hereunder.
3.2 Waivers and Amendments. The rights and obligations of the Company
and the rights and obligations of the Shareholders under this Agreement may not
be waived (either generally or in a particular instance, either retroactively or
prospectively, and either for a specified period of time or indefinitely) or
amended without the written consent of all Shareholders.
3.3 Entire Agreement. This Agreement and the other agreements referred
to herein constitute the whole and entire agreement between the parties
pertaining to the subject matter hereof, and supersede all prior agreements or
understandings between the parties with respect thereto. This Agreement may not
be modified except by an instrument in writing signed by all parties.
3.4 Governing Law. The validity, construction and enforcement of, and
the remedies under, this Agreement shall be governed in accordance with the laws
of Idaho, except any choice of law provision of Idaho law shall not apply if the
law of a state or jurisdiction other than Idaho would apply thereby.
3.5 Jurisdiction and Venue. The parties to this Agreement agree that
jurisdiction and venue of any action brought to enforce, or to construe or
determine the validity of, any term or provision contained in this agreement
shall properly lie in the District Court of Bonneville County, Idaho, or the
United States District Court for the District of Idaho, or the District Court of
Tulsa County, Oklahoma, or the United States District Court for the Northern
District of Oklahoma. Such jurisdiction and venue are merely permissive;
jurisdiction and venue shall also continue to lie in any court where
jurisdiction and venue would otherwise be proper. The parties further agree that
the mailing by certified mail, return receipt requested, or the delivery by any
recognized expedited delivery service, of any process required by any such court
shall, when received, constitute valid and lawful service of process against
them, without the necessity for service by any other means otherwise provided by
statute or rule of court.
3.6 Successors and Assigns. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the parties hereto and their
respective personal representatives, successors and permitted assigns. No party
may assign its, his or her obligations hereunder without the prior written
consent of all other parties; provided, notwithstanding any provision of this
Agreement or in the Bylaws of the Company to the contrary, without prior notice
to or consent of the other parties to this Agreement, PSO may assign all of its
rights and obligations under this Agreement, or any or all of its shares of
Capital Stock of the Company, to any Affiliate under the direct or indirect
control of PSO's parent corporation, Central and South West Corporation. Each
Shareholder hereby agrees to vote its shares as necessary to
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effect any amendment to the Bylaws or take such other action as may be necessary
to permit PSO to effect such assignment.
3.7 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
3.8 Attorneys' Fees. If any action is brought to enforce, or to
construe or determine the validity of, any term or provision of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs, and
disbursements in addition to any other relief to which such party may be
entitled.
3.9 Severability. If any provision of this Agreement are held to be
unenforceable under applicable law, such provision shall be excluded from this
Agreement and the balance of the Agreement shall be interpreted as if such
provision were so excluded and shall be enforceable in accordance with its
terms.
3.10 Pronouns and Plurals. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
3.11 Further Action. The parties to this Agreement shall execute
and deliver all documents, provide all information and take or refrain from
taking action as may be necessary or appropriate to achieve the purposes of
this Agreement.
3.12 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
3.13 Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which shall constitute one and
the same instrument. Any signature delivered by facsimile transmission shall be
deemed a valid and binding signature for all purposes hereof.
3.14 Expenses. The parties hereto agree to pay their separate costs and
expenses (such as travel, photocopy and telephone expenses and including the
fees and expenses of counsel) in connection with the documentation of the
transactions contemplated by this Agreement and shall not be liable for the
other's expenses.
3.15 Termination. This Agreement shall terminate upon the
consummation of a Qualified IPO, or upon the unanimous consent of the parties.
3.16 Equitable Remedies. The parties hereto agree that irreparable harm
would occur in the event that any of the agreements and provisions this
Agreement were not performed fully by the parties hereto in accordance with its
specific terms or conditions or were otherwise breached, and that money damages
are an inadequate remedy for breach of the Agreement because of the difficulty
of ascertaining and quantifying the amount of damage that will be
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suffered by the parties hereto in the event that this Agreement is not performed
in accordance with its terms or conditions or is otherwise breached. It is
accordingly hereby agreed that the parties hereto shall be entitled to an
injunction or injunctions to restrain, enjoin and prevent breaches of this
Agreement by the other parties and to enforce specifically such terms and
provisions of this Agreement in any court of the United States or any state
having jurisdiction, such remedy being in addition to and not in lieu of, any
other rights and remedies to which the other parties are entitled to at law or
in equity.
3.17 Escrow. The effectiveness of this Agreement is subject to and
contingent upon approval, as provided therein, of the Stock Purchase Agreement,
and all transactions contemplated thereby, by the Securities and Exchange
Commission ("SEC") under the Public Utility Holding Company Act, of 1935, as
amended. Pending such approval, the parties agree to execute, deliver, and
deposit this Agreement with the Escrow Agent (as such term is defined in the
Stock Purchase Agreement) pursuant to the terms of the Escrow Agreement.
(a) In the event the SEC disapproves of the transactions
contemplated by the Stock Purchase Agreement, or in the event no approval, as
provided therein, or denial is received from the SEC within 75 days from the
date hereof (or such later date as may be agreed to in writing by PSO and Xx. X.
X. Xxxxxxxxx and communicated to the Escrow Agent) (i) this Agreement shall be
rescinded, and (ii) no party hereto shall have any liability to any other party
whatsoever.
(b) In the event of SEC approval of the Stock Purchase
Agreement, as provided therein, and all transactions contemplated thereby, this
Agreement shall be delivered by the Escrow Agreement to all parties and shall
continue in full force and effect.
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In Witness Whereof, this Agreement has been executed as of the date
first above written.
"Company"
SCIENTECH, INC.
By:
Name:
Title:
"Shareholders"
PUBLIC SERVICE COMPANY OF OKLAHOMA
By:
Name:
Title:
XX. X. X. XXXXXXXXX
XXXXXXXXX FAMILY TRUST B
By:
Xx. X. X. Xxxxxxxxx, Trustee
XXXXXXXXX FAMILY TRUST C-1
By:
Xx. X. X. Xxxxxxxxx, Trustee
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XXXXXXXXX FAMILY TRUST C-2
By:
Xx. X. X. Xxxxxxxxx, Trustee
XX. XXXXXXX XXXXXXXXX
XX. XXX-XXXXX XXXXXXXXX
XXXXXX X. XXXXXXXXX
XXXXX X. XXXXXXXXX
XX ACQUISITION CORP.
By:
Xxxxx X. Xxxxxxxx, Chairman
XXXXX X. XXXXXXX
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SCHEDULE A
List of Shareholders
Name and Address Number of Shares
PSO 70,000 Class A
436,000 Class B
Xx. X. X. Xxxxxxxxx 183,904 Class A
Xxxxxxxxx Family Trust B 59,119 Class A
Xxxxxxxxx Family Trust C-1 40,080 Class A
Xxxxxxxxx Family Trust C-2 180,258 Class A
Xx. Xxxxxxx Xxxxxxxxx 43,002 Class A
Xx. Xxx-Xxxxx Xxxxxxxxx 1,990 Class A
Xxxxxx X. Xxxxxxxxx 1,988 Class A
Xxxxx X. Xxxxxxxxx 1,988 Class A
KR Acquisition Corp. 298,500 Class A
Xxxxx X. Xxxxxxx 118,189 Class A
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