STOCKHOLDERS' AGREEMENT
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THIS STOCKHOLDERS' AGREEMENT entered into this 11th day of April, 2003
among Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxxxxxx (collectively or
individually referred to as the "Stockholders").
WHEREAS, the Stockholders are record or beneficial owners of the number
of NexGen Vision, Inc. (the "Company") shares of Class B Common Stock (the
"Shares") set forth opposite their names; and
Name of Stockholder Number of Class B Shares
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Xxxx Xxxxxxxx 2,350,000
Xxxxxxx Xxxxxxxxxx 2,106,250
Xxxxxxx Xxxxxxxxxx 2,106,250
WHEREAS, the parties wish to provide for continuity of management and
control of the Company; to set forth the relative rights, duties and obligations
of the parties.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration, it is agreed as follows:
1. TERM OF THIS AGREEMENT. This Agreement shall commence as of the date
of execution and shall remain in force until the earlier of (i) payment of the
current balance of
$1,350,000 due to Xxxxxx Xxxxxxx or (ii) 12 months from the date hereof.
2. SHARES SUBJECT TO AGREEMENT; Transfers. All Shares owned of record
or beneficially or hereafter acquired by the Stockholders in either such
capacity shall be subject to this Agreement. Except as specifically provided in
this Agreement, the Company will have no obligation to recognize the ownership,
beneficial or otherwise, of any such Shares that are sold, assigned or
transferred whether voluntarily, by will, laws of descent and distribution, by
court order, by operation of law or otherwise, unless and until such transferee
agrees to be bound by the provisions of this Agreement.
3. VOTING OF SHARES.
a.The Stockholders agree to vote their Shares of the Company so as to elect Xxxx
Xxxxxxxx and Xxxxxxx Xxxxxxxxxx or their respective designees as directors of
the Company, and will take all action necessary or appropriate at each annual or
special meeting of stockholders (including actions taken by written consent)
during the term of this Agreement to insure Xxxx Xxxxxxxx and, Xxxxxxx
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Xxxxxxxxxx are retained as directors of the Company. In addition, the
Stockholders agree to vote their Shares of the Company together against any
proposal seeking the removal of any one or more of them from the Company's board
of directors.
b. Xxxxxxx Xxxxxxxxxx shall only vote his Shares during the term of this
Agreement for the purposes specified above, provided that he may also vote to
oppose (i) any proposal to approve a merger or consolidation involving the
Company where the holders of Class A or B Common Stock (or common stock if there
is only one class of common stock) receive less than $1.50 per share, subject to
adjustment as provided in Section 4 or (ii) any Stock Option Plan or other
employee benefit plan which permits the issuance of capital stock at less than
$1.50 per share, subject to adjustment.
4. Protection Against Dilution. If the Company effects any stock
dividend, stock split, combination or exchange of shares, reclassification or
recapitalization of the Company's common stock, reorganization of the Company,
consolidates with or merges into or sells all or substantially all of the
Company's assets to another corporation or any other similar event, the $1.50
price referred to in Section 3 shall be appropriately and equitably adjusted.
5. Legend to be Placed on all Shares Certificates. The parties agree
that all certificates evidencing Shares issued by the Company to the
Stockholders and any replacement or re-issuances thereof shall bear the
following restrictive legend:
The shares represented by the stock certificate may not be offered,
sold or transferred except pursuant to the provisions of a
Stockholders' Agreement dated April 11, 2003, a copy of which is
maintained in the Company's offices.
6. Public Sales. The above voting restrictions and transfer of Shares
provisions shall lapse as to any Shares which are publicly sold under (i) Rule
144 of the Securities Act of 1933 or other exemption from registration or (ii)
an effective registration statement.
7. Severability. In the event any parts of this Agreement are found to
be void, the remaining provisions of this Agreement shall nevertheless be
binding with the same effect as though the void parts were deleted.
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. The execution of this
Agreement may be by actual or facsimile signature.
9. Benefit. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their legal representatives, successors and
assigns.
10. Notices and Addresses. All notices, offers, acceptance and any
other acts under this Agreement (except payment) shall be in writing, and shall
be sufficiently given if delivered to the addressees in person, by Federal
Express or similar receipted delivery, by facsimile delivery or, if mailed,
postage prepaid, by certified mail, return receipt requested, as follows:
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If to Xxxx Xxxxxxxx: 0000 Xxx Xxxxxxxxxx Xxxx
Xxxxx X
Xxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx, LLP
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile (000) 000-0000
If to Xxxxxxx Xxxxxxxxxx: 0000 X.X 00xx Xxxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
With a copy to : Xxxxxx X. Xxxxxxx
Xxxxx & Xxxxx, Ltd.
00 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
If to Xxxxxxx Xxxxxxxxxx: 0000 Xxx Xxxxxxxxxx Xxxx
Xxxxx X
Xxxxxxx, Xxxxxxx 00000
With a copy to: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxx & Xxxxxxx, LLP
0000 Xxxx Xxxxx Xxxxx Xxxx.
Xxxxx 000
Xxxx Xxxx Xxxxx, XX 00000
Facsimile (000) 000-0000
or to such other address as either of them, by notice to the other may designate
from time to time. The transmission confirmation receipt from the sender's
facsimile machine shall be evidence of successful facsimile delivery. Time shall
be counted to, or from, as the case may be, the delivery in person or by
mailing.
11. Attorney's Fees. In the event that there is any controversy or
claim arising out of or relating to this Agreement, or to the interpretation,
breach or enforcement hereof, and any action or proceeding including an
arbitration proceeding is commenced to enforce the provisions of this Agreement,
the prevailing party shall be entitled to an award by the court or arbitrator,
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as appropriate, of reasonable attorney's fees, including the fees on appeal or
to enforce an award of attorneys' fees, costs and expenses.
12. Oral Evidence. This Agreement constitutes the entire Agreement
between the parties and supersedes all prior oral and written agreements between
the parties hereto with respect to the subject matter hereof. Neither this
Agreement nor any provision hereof may be changed, waived, discharged or
terminated orally, except by a statement in writing signed by the party or
parties against which enforcement or the change, waiver discharge or termination
is sought.
13. Additional Documents. The parties hereto shall execute such
additional instruments as may be reasonably required by their counsel in order
to carry out the purpose and intent of this Agreement and to fulfill the
obligations of the parties hereunder
14. Governing Law. This Agreement and any dispute, disagreement, or
issue of construction or interpretation arising hereunder whether relating to
its execution, its validity, the obligations provided herein or performance
shall be governed or interpreted according to the internal laws of the State of
Florida without regard to choice of law considerations.
15. Arbitration. Any controversy, dispute or claim arising out of or
relating to this Agreement, or its interpretation, application, implementation,
breach or enforcement which the parties are unable to resolve by mutual
agreement, shall be settled by submission by either party of the controversy,
claim or dispute to binding arbitration in Atlanta, Georgia (unless the parties
agree in writing to a different location), before a single arbitrator in
accordance with the rules of the American Arbitration Association then in
effect. In any such arbitration proceeding the parties agree to provide all
discovery deemed necessary by the arbitrator. The decision and award made by the
arbitrator shall be final, binding and conclusive on all parties hereto for all
purposes, and judgment may be entered thereon in any court having jurisdiction
thereof.
16. Section or Paragraph Headings. Section headings herein have been
inserted for reference only and shall not be deemed to limit or otherwise
affect, in any matter, or be deemed to interpret in whole or in part any of the
terms or provisions of this Agreement.
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IN WITNESS WHEREOF the parties hereto have set their hand and seals the
day and year first above written.
WITNESSES:
By: /s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx
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By: /s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
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By: /s/ Xxxxxxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
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