Exhibit 4.11
AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into as of the 29th
day of October 2003, by and between RETURN ON INVESTMENT CORPORATION, a
corporation organized and existing under the laws of the state of Delaware
("ROI"), whose address is 0000 Xxxxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxx 00000, XXXXXXX X. XxXXXXXXX, an individual resident of Georgia ("X.
XxXxxxxxx"), whose address is 0000 Xxxxxxxxx Xxxxx, Xxxxxxx, XX 00000, XXXX X.
XxXXXXXXX, an individual resident of Alabama ("X. XxXxxxxxx"), whose address is
0000 Xxx Xxxxx Xxxx, Xxxxxxxxxx, XX 00000, and XXXXXXX XXXXXXX, XX., an
individual resident of Georgia ("Xxxxxxx"), whose address is 00 Xxxxxxxx Xxxx,
Xxxxxxxx, XX 00000, (X. XxXxxxxxx, X. XxXxxxxxx, and Xxxxxxx collectively
referred to as the "Shareholders" and individually referred to as a
"Shareholder").
W I T N E S S E T H:
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WHEREAS, ROI and the Shareholders have entered into that certain Escrow
Agreement dated October 20, 2000 (the "Escrow Agreement"), under the terms of
which 3,765,930 shares of ROI common stock, $.01 par value, (the "Escrowed
Shares") were held in escrow by SunTrust Bank for the benefit of the
Shareholders in the individual amounts set forth next to such Shareholders name
on Schedule I; and
WHEREAS, the parties agree that the escrow shall be terminated and in
consideration for such termination a portion of the Escrowed Shares shall be
released to the Shareholders, a portion shall be returned to ROI, and Xxxxxxx
shall receive certain additional shares to be held in escrow by ROI, in each
case subject to and in accordance with the terms, provisions, conditions and
limitations set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged by the
parties hereto, the parties hereto do hereby mutually covenant and agree as
follows:
1. Release of Shares. Upon execution of this Agreement and delivery to
ROI of an executed stock power by each of the Shareholders, ROI will deliver the
Escrowed Shares and the stock powers to its transfer agent along with
instructions to issue and deliver to the Shareholders the following stock
certificates: 309,383 shares to X. XxXxxxxxx, 187,486 shares to X. XxXxxxxxx,
and 253,131 shares to Xxxxxxx (collectively the "Released Shares").
2. Return of Shares to ROI. Upon execution of this Agreement and
delivery to ROI of an executed stock power by each of the Shareholders, the
following shares shall be released from escrow and returned to the treasury of
ROI: 1,244,102 shares from X. XxXxxxxxx, 753,926 shares from X. XxXxxxxxx, and
849,148 shares from Xxxxxxx (collectively the "Returned Shares").
3. Xxxxxxx Right to Receive Additional Shares. The remaining 168,754
shares of ROI common stock (the "Additional Xxxxxxx Shares") to be held in
escrow by ROI (the "Xxxxxxx Escrow") are subject to release as follows:
(a) At the end of any rolling period of ninety days in which the
closing bid price of ROI's common stock does not drop below $4.00 for any
consecutive five (5) trading days (such price to be adjusted for any stock
splits or other recapitalization transactions following the date hereof), ROI
shall release 84,377 shares of ROI common stock to Xxxxxxx, subject to Section 5
of this Agreement; and/or
(b) Immediately prior to the acquisition of ROI by another entity or if
ROI's common stock has an average trading price in excess of $5.00 for any
rolling thirty (30) calendar day period (such price to be adjusted for any stock
splits or other recapitalization transactions following the date hereof), ROI
shall, taking into account whether shares have been issued pursuant to
subparagraph (a) above, release all remaining Additional Xxxxxxx Shares to
Xxxxxxx, subject to Section 5 of this Agreement.
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Shares remaining in the Xxxxxxx Escrow, if any, three (3) years after
the date of this Agreement shall be returned to ROI. Xxxxxxx shall enjoy all of
the rights and privileges related to the shares in the Xxxxxxx Escrow unless and
until any of such shares are returned to ROI as described herein, including, but
not limited to, any and all voting rights and dividends, provided, however, that
any such shares that have not yet been released to Xxxxxxx and any rights or
privileges associated therewith may not be sold, transferred, or pledged.
4. Termination of Escrow Agreement. Upon issuance of the Released
Shares, the Escrow Agreement shall be terminated and be of no further force and
effect.
5. Legend on Shares; Piggyback Registration. Each certificate for
shares of ROI common stock issued hereunder, unless at the time of issuance such
shares are registered under the Securities Act of 1933, as amended (the
"Securities Act"), shall bear the following legend (and any additional legend
required by any national securities exchanges upon which such shares may, at the
time of such issuance, be listed or under applicable securities laws):
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), or
the securities laws of any state. They may not be sold, transferred,
assigned, pledged, hypothecated, encumbered, or otherwise disposed of
in the absence of registration under said Act and all other applicable
securities laws, unless an exemption from registration is available.
The Shareholders shall have unlimited piggyback registration rights for any
shares of ROI common stock issued hereunder. If ROI at any time proposes for any
reason to register any of its securities under the Securities Act (other than a
registration on Form S-8 or S-4 or on Form SB-2 solely for purposes of the
issuance of shares through an employee benefit plan), it shall each such time
promptly give written notice to the Shareholders of its intention to do so, and
upon the written request, given within thirty (30) days after receipt of any
such notice, of any of the Shareholders to register any shares of ROI common
stock held by any of them, ROI shall cause all such shares to be registered
under the Securities Act, all to the extent requisite to permit the sale or
other disposition by any of the Shareholders of the shares respectively held by
them so registered. ROI, at its sole expense, shall take all actions required
and prepare and file any and all documents required under the Act or any other
securities or "blue sky" laws of any jurisdictions reasonably requested by the
Shareholders or by the Securities and Exchange Commission or any other
regulatory agency. Notwithstanding the foregoing, such piggyback rights shall
not apply at any time that a Shareholder may dispose of all of the shares of ROI
common stock issued hereunder pursuant to Rule 144 in one three month period.
6. Representations and Warranties of the Shareholders. Each of the
Shareholders, respectively, represents and warrants to ROI that the following
representations and warranties are true and correct in all material respects as
they relate to such Shareholder as of the date hereof:
(a) Authority. The Shareholder has the requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. There are no actions or proceedings pending or, to
Shareholder's knowledge, threatened, involving the Shareholder which might
reasonably be expected to materially and adversely affect the validity of this
Agreement or the transfer of the Escrowed Shares hereunder.
(b) Right to Escrowed Shares. The Shareholder has the sole right to
receive his respective Escrowed Shares as set forth on Schedule I hereto free
and clear of all liens, charges, claims and encumbrances. There are no
restrictions on the transfer of the Escrowed Shares, except as set forth in the
Escrow Agreement.
(c) No Conflict. Neither the execution or delivery of this Agreement or
the consummation of the transactions contemplated hereby will constitute or
result in a default or violation of any indentures, leases, instruments,
judgments, agreements, decrees or orders of any court, or to Shareholder's
knowledge, any law, ordinances, requirements or regulations which might
reasonably be expected to materially and adversely affect the validity of this
Agreement, except as set forth in the Escrow Agreement.
7. Representations and Warranties of ROI. ROI represents and warrants
to the Shareholders that the following representations and warranties are true
and correct in all material respects as of the date hereof:
(a) Authority. This Agreement has been duly executed and delivered by
ROI and constitutes the legal, valid and binding obligations of ROI enforceable
against ROI in accordance with its terms. There are no actions or proceedings
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pending or, to ROI's knowledge, threatened, involving ROI which might reasonably
be expected to materially and adversely affect the validity of this Agreement or
the transfer of the Released Shares hereunder.
(b) No Conflict. Neither the execution or delivery of this Agreement or
the consummation of the transactions contemplated hereby will constitute or
result in a default or violation of any indentures, leases, instruments,
judgments, agreements, decrees or orders of any court, or to ROI's knowledge,
any law, ordinances, requirements or regulations which might reasonably be
expected to materially and adversely affect the validity of this Agreement,
except as set forth in the Escrow Agreement.
8. Further Action. At any time and from time to time, the parties to
this Agreement agree, at their expense, to take such actions and to execute and
deliver such documents as may be reasonably necessary to effectuate the purposes
of this Agreement.
9. Notices. Any notice, request or other communication required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if sent by registered or certified mail, return receipt requested, postage
prepaid, to the parties at their respective addresses set forth above, or to
such other addresses as may be furnished in writing from time to time by any
party hereto to the other parties.
10. Assignment. Except as permitted herein, none of the parties to this
Agreement may assign its respective rights and obligations hereunder without the
prior written consent of the other parties hereto.
11. Release. The Shareholders each confirm and agree that upon their
receipt of the Release Shares, the Escrow Agreement shall be terminated and the
Shareholders shall have no further right to receive shares of common stock from
ROI except as otherwise provided for herein in the case of Xxxxxxx. Further, as
a condition precedent to ROI's obligations under this Agreement, the
Shareholders, for themselves, their successors and assigns, agents and
employees, do hereby, now and forever, fully and finally, GENERALLY RELEASE,
acquit and discharge ROI, including without limitation, its past or present
successors, assigns, representatives, employees, officers, directors, agents,
attorneys, affiliates, parent and subsidiary corporations, shareholders,
insurers, divisions, and, additionally as to any of such individuals, his or her
heirs, executors and administrators (collectively referred to hereinafter as
"Releasees"), from any and all claims, responsibility, covenants, suits,
judgments, demands, indebtedness, promises, agreements, actions, causes of
action, obligations, damages, costs, expenses, compensation or liabilities of
any type or nature whatsoever which the Shareholders now have, might have, or
might claim to have, against any of the Releasees at this time, whether or not
known, suspected, developed or undeveloped, anticipated or unanticipated, in law
or in equity, which arise under, arise out of, relate to, or are connected with
any claim to stock or equity in ROI.
12. Terminology and Section Headings. All personal pronouns in this
Agreement, whether used in the masculine, feminine or neuter gender shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Paragraphs are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
13. Binding Effect. Subject to the restrictions on assignments set
forth in this Agreement, this Agreement and the rights of the parties hereunder
shall inure to the benefit of and be binding upon the parties and their
respective legal representatives, successors and assigns. Whenever in this
Agreement a reference is made to one of the parties, such reference shall be
deemed to include a reference to the legal representatives, heirs, successors
and assigns of such party.
14. Severability. This Agreement shall be governed by and construed in
accordance with, and only to the extent permitted by, all applicable laws,
ordinances, rules and regulations. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.
15. Interpretation. In construing the terms and provisions of this
Agreement, it is understood and agreed that no court or other interpretive body
shall apply a presumption that the terms of this Agreement shall be more
strictly or particularly construed against one party hereto by reason of the
fact that said party, either directly or through its agents, prepared this
Agreement, it being understood and agreed that all parties, either directly or
through their agents, have fully participated in the preparation hereof.
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16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
17. Entire Agreement. Except as specifically provided in this Agreement
to the contrary, this Agreement constitutes the entire agreement between the
parties hereto regarding the subject matter hereof, and no modification hereof
shall be effective unless made a supplemental agreement in writing executed by
each of the parties affected by such modification.
18. Taxes and Expenses. The parties will be responsible for their
respective costs and expenses of all attorneys, accountants, and advisors
retained by or representing them in connection with this transaction.
Shareholders shall pay all sales, documentary, stamp and other transfer taxes,
if any, payable as a result of the sale and transfer of the Escrowed Shares, or
payable as the result of any other action contemplated by this Agreement.
19. Separate Counsel and Tax Advice. By signing this Agreement, the
parties hereto acknowledge that they have had the opportunity to obtain separate
counsel and tax advice regarding the Agreement, the Released Shares and the
Returned Shares, and that they have read and understand this Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be executed in multiple counterparts, each of which shall be deemed an original,
with their respective seals affixed thereto all as of the date and year first
above written.
RETURN ON INVESTMENT CORPORATION SHAREHOLDERS:
By: /s/ Xxxx X. Xxxxxxx /s/ XXXXXXX X. XxXXXXXXX (SEAL)
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Its: President & Chief Executive Officer XXXXXXX X. XxXXXXXXX
[CORPORATE SEAL]
/s/ XXXX X. XxXXXXXXX (SEAL)
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XXXX X. XxXXXXXXX
/s/ XXXXXXX XXXXXXX, XX. (SEAL)
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XXXXXXX XXXXXXX, XX.
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SCHEDULE I
Shareholder Escrowed Shares
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Xxxxxxx X. XxXxxxxxx 1,553,485
Xxxx X. XxXxxxxxx 941,412
Xxxxxxx Xxxxxxx, Xx. 1,271,033
Total: 3,765,930
