SHAREHOLDERS' AGREEMENT
THIS SHAREHOLDERS' AGREEMENT (the "Agreement") is made and entered into as of
this 16th day of August, 1999 by and among Summus, Ltd., a Delaware corporation
(the "Company"), High Speed Net Solutions, Inc., a Florida corporation; Xxxxxx
Stairs; Xxxxx Xxxxxx; Xxxxxxx Xxxxxx; Xxxxxx Xxxxxxx; Xxxx, Xxxxxx & Xxxxxx
(CPAs); Xxxxx Xxxxxxxx; Xxxxxxx Xxxxxxx; Xxxxxxx Xxxxxxx; Xxx Xxxxxxx and such
other shareholders of the Company who become a party to this Agreement in
accordance with the terms hereof (collectively, the "Shareholders").
WITNESSETH:
WHEREAS, the Shareholders currently, or as part of the merger of the Company and
Summus Technologies, Inc. (the "Merger"), will own certain of the issued and
outstanding shares of capital stock of the Company; and
WHEREAS, the parties to this Agreement believe that it is in their mutual best
interests to restrict the sale and transfer of any capital stock of the Company,
thus to insure continuity and harmony in the management and policies of the
Company; and
NOW, THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
Unless the context requires otherwise, capitalized terms used herein shall have
the meaning set forth in the Glossary attached to this Agreement.
ARTICLE II
TRANSFER OF SHARES
The provisions of this Agreement shall apply to all Shares currently issued (or
intended to be issued in the Merger) and which may be issued in the future.
ARTICLE III
COMPLIANCE WITH AGREEMENT
During the term of this Agreement, no Shareholder shall Transfer any Shares now
owned or hereafter acquired by it, except as permitted by, and in compliance
with, the terms and conditions of this Agreement and in accordance with any
Applicable Laws. Any purported Transfer not in compliance with the terms and
conditions of this Agreement shall be void and of no force and effect.
ARTICLE IV
PERMITTED TRANSFERS
AND
LEGEND REQUIREMENTS
4.1 A Shareholder may Transfer its Shares in accordance with the
provisions of this Agreement to any other Person (a "Third Party"); PROVIDED,
HOWEVER, that (i) any Transfer (other than Involuntary Transfers in accordance
with Section 5. 1) shall be for consideration that shall consist of only cash or
Marketable Securities or any combination thereof, and (ii) no Transfer shall be
allowed until such time as the proposed transferee agrees in writing to be bound
by the terms and conditions of this Agreement.
4.2 As a result of this Shareholders Agreement, each certificate
evidencing Shares shall bear the following or a substantially similar legend:
The securities evidenced hereby are subject to the terms of a
Shareholders' Agreement among the Company and the shareholders of
the Company. A copy of the Shareholders' Agreement is on file at
the office of the Company and is available upon request. The
Shareholders' Agreement provides, among other things, for
restrictions on the sale, transfer, pledge, hypothecation or other
disposition of, the securities represented by this Certificate. Any
attempted sale, transfer, pledge, hypothecation or other
disposition of the securities represented by this Certificate not
in compliance with the terms and conditions of the Shareholders'
Agreement shall be void and of no force and effect.
ARTICLE V
INVOLUNTARY TRANSFER OF SHARES
5.1 COMPANY'S OPTION. If an Involuntary Transfer of any of the Shares
owned by any Shareholder (the "Transferred Shares") shall occur, the Company
shall have the right to purchase some or all of the Transferred Shares, which
right shall be exercisable by written notice given to the transferee of the
Transferred Shares (the "Involuntary Transferee") and the Shareholder who
suffered the Involuntary Transfer or his estate in the case of his death (in
either case, the "Involuntary Transferor") within thirty (30) days after receipt
by the Company of written notice of the Involuntary Transfer (or, in the event
no such notice is received, thirty (30) days after the Company becomes aware of
the Involuntary Transfer). The Company shall provide to each other Shareholder
(a "Continuing Shareholder") (i) a copy of any written notice of Involuntary
Transfer received by the Company (or, in the event no such notice is received, a
written notice of awareness of any Involuntary Transfer), within five (5) days
after the Company becomes aware of the Involuntary Transfer, and (ii) a copy of
any written notice of exercise given by the Company pursuant to this Section 5.
1. The failure of the Company to exercise such right within such thirty (30) day
time period shall be regarded as a waiver of its right to participate in the
purchase of the Transferred Shares.
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5.2 CONTINUING SHAREHOLDERS' OPTION. If the Company does not elect to
purchase all of the Transferred Shares as provided herein, each Continuing
Shareholder shall have the right to purchase any portion of the Transferred
Shares for which no such election has been made by the Company (the "Excess
Transferred Shares") pro rata based on the number of Shares owned by the
Shareholders which exercise the right, which right shall be exercisable by
written notice to the Involuntary Transferee and Involuntary Transferor given
within forty-five (45) days after receipt by such Continuing Shareholder of
written notice of the Involuntary Transfer from the Company. The exercising
Continuing Shareholder shall also provide a copy of such written notice of
exercise to the Company and the other Continuing Shareholders. A Continuing
Shareholder may also indicate in such notice, if it so elects, its desire to
purchase additional Excess Transferred Shares (indicating a maximum number, if
any) if any other Continuing Shareholder does not exercise its right to purchase
up to the full amount of its pro rata share of the Excess Transferred Shares. If
one or more Continuing Shareholders so elect, the additional Excess Transferred
Shares, if any, shall be allocated (pro rata if more than one, or less than pro
rata with respect to any such Continuing Shareholder requesting a lower number
of Excess Transferred Shares) to such Continuing Shareholder(s). The failure of
a Continuing Shareholder to exercise such right within such forty-five (45) day
period shall be regarded as a waiver of its right to participate in the purchase
of the Transferred Shares.
5.3 PURCHASE PRICE FOR TRANSFERRED SHARES. The purchase price per share
of any Transferred Shares shall be the "fair market value" thereof as determined
by mutual agreement of the Involuntary Transferee and each party participating
in such purchase, or if no such agreement can be reached within thirty (30) days
after the termination of the forty-five (45) day period provided in Section 5.2,
the purchase price shall be determined in accordance with the provisions of
Section 5.6.
5.4 TERMS OF PAYMENT OF PURCHASE PRICE TO THE COMPANY AND CONTINUING
SHAREHOLDERS. The Company and the exercising Continuing Shareholders shall pay
the purchase price for the Transferred Shares in cash; provided, however, that
the purchase price payable by the Company or any Continuing Shareholders for the
Transferred Shares of the Involuntary Transferor may be paid twenty-five percent
(25 %) percent down within thirty (30) days after the purchase price is
determined with the balance to be paid with interest at the rate of the lesser
of the Bank of America prime rate as adjusted from time to time, or the
applicable federal rate in three (3) equal annual installments of principal and
interest until paid in full. Notwithstanding the foregoing in no event shall the
amount paid as a down payment be less than the amount of any insurance proceeds
received by the Company or any Continuing Shareholder as a result of the death
of the Involuntary Transferor. Until the Transferred Shares have been paid for
in full, the Company and each exercising Continuing Shareholder shall pledge
back the Transferred Shares it purchases to the Involuntary Transferee as
collateral for payment pursuant to a Security and Pledge Agreement with
customary terms and conditions, as determined in the reasonable discretion of
the Company.
5.5 FIRST REFUSAL RIGHTS SURVIVE. In the event the provisions of this
Article V shall be held to be unenforceable with respect to any particular
Involuntary Transfer of any Shares, each Continuing Shareholder and the Company
shall have rights of first refusal if the Involuntary Transferee subsequently
obtains a bona fide offer for and desires to Transfer such Shares, and such
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Shares shall otherwise remain subject to the terms and conditions of this
Agreement, including this Article V.
5.6 DETERMINATION OF FAIR MARKET VALUE. For the purposes of this
Article V, the "fair market value" of the Transferred Shares shall be
determined, in the absence of mutual agreement, by an investment banking firm or
firm of professional business evaluators (the "Consultant") reasonably
satisfactory to each party participating in the transaction. If each such party
shall not agree upon a Consultant within the earliest of (i) thirty (30) days
after the delivery of the last applicable written notice from a Continuing
Shareholder or the Company with respect to such purchase and sale, (ii) fifteen
(15) days after such parties notify the Company in writing that mutual agreement
on such Consultant cannot be reached, or (iii) fifteen (15) days after the
expiration of the thirty (30) day period provided in Section 5.3, the Company's
auditors shall select a Consultant. The determination by the Consultant shall be
final and binding upon all parties to the purchase and sale. The fees of the
Consultant shall be paid by the Company.
5.7 NO PREJUDICE. If the Company or any Shareholder at any time fails
to exercise its right to repurchase in accordance with this Article V, the
Company or such Shareholder shall in no way be precluded from (i) exercising in
connection with any subsequent Involuntary Transfer its right to repurchase
pursuant to this Article V with respect to the Shares in question or any other
Shares or (ii) exercising its rights to repurchase generally in accordance with
the provisions of this Agreement with respect to any other Transfer of any
Shares.
ARTICLE VI
RIGHTS OF FIRST REFUSAL
6.1 RIGHT OF FIRST REFUSAL. Subject to Articles III and IV, any
Shareholder which desires to Transfer all or any of its Shares (the "Offering
Shareholder") to any Third Party shall first make an offer (the "Offer") to
Transfer the Shares (the "Offered Shares") to the Company and, if the Company
does not elect to purchase all of the Offered Shares, then to each other
Shareholder (a "Non-Offering Shareholder") pursuant to the provisions of this
Article VI.
6.2 OFFER TO COMPANY AND OTHER SHAREHOLDERS. The Offering Shareholder
shall send written notice of the Offer (the "Offering Shareholder's Notice") to
the Company and to each Non-Offering Shareholder within ten (10) days following
receipt of an offer for such Offered Shares from, or a making of an offer with
respect to the Offered Shares to, a Third Party. In addition to any other
information required to be provided by the Offering Shareholder pursuant to the
immediately following sentence, the Offering Shareholder's Notice shall state
the number of Offered Shares, the terms and conditions of the Offer, including
the price (stating the portion in cash and in Marketable Securities or any
combination thereof) and the name and address of the Third Party (together with
a copy of all writings between the Third Party and the Offering Shareholder
establishing the terms of the offer between such parties) and shall include a
description of any related transactions, understandings or relationships or a
statement that there are no such related items. The Offer shall be on the same
terms and conditions, as the offer from, or made by the Offering Shareholder to,
the Third Party.
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6.3 COMPANY'S OPTION. Upon receipt of the Offering Shareholder's
Notice, the Company shall have the right to purchase some or all of the Offered
Shares at the price and upon the terms and conditions specified in such notice;
provided, however, that the Company shall have the option to match the price by
agreeing to pay in cash an amount equivalent to any portion of such price
payable in Marketable Securities. Notice of election to purchase the Offered
Shares shall be given by the Company to the Offering Shareholder and to each
Non-Offering Shareholder within thirty (30) days after receipt by the Company of
the Offering Shareholder's Notice. The failure of the Company to exercise its
right to purchase the Offered Shares within such thirty (30) day period shall be
regarded as a waiver of its right to participate in the purchase of the Offered
Shares.
6.4 NON-OFFERING SHAREHOLDERS' OPTION. If the Company does not elect to
purchase all of the Offered Shares, each of the Non-Offering Shareholders shall
have the right to purchase any portion of the Offered Shares pro rata based on
the number of Shares owned by the Non-Offering Shareholders who exercise the
right, for which no such election has been made (the "Excess Offered Shares") at
the price and upon the terms and conditions specified in the Offering
Shareholder's Notice; provided, however, that each of the Non-Offering
Shareholders shall have the option to match the price by paying in cash an
amount equivalent to any portion of such price payable in Marketable Securities.
A Non-Offering Shareholder's right to purchase Excess Offered Shares shall be
exercisable by written notice of exercise to the Offering Shareholder given
within forty-five (45) days after receipt of the Offering Shareholder's Notice.
The exercising Non-Offering Shareholder shall also provide a copy of such
written notice to the Company and the other Non-Offering Shareholders. A
Non-Offering Shareholder may also indicate in such notice, if it so elects, its
desire to purchase additional Excess Offered Shares (indicating a maximum
number, if any) if any other Non-Offering Shareholder does not exercise its
right to purchase up to the full amount of its pro rata amount of the Excess
Offered Shares. If one or more of the Non-Offering Shareholders so elect, the
additional Excess Offered Shares, if any, shall be allocated (pro rata if more
than one, or less than pro rata with respect to any such Non-Offering
Shareholder requesting a lower number of Excess Offered Shares) to such
Non-Offering Shareholder(s). The failure of a Non-Offering Shareholder to
exercise such right within such forty-five (45) day period shall be regarded as
a waiver of its right to participate in the purchase of the Offered Shares.
6.5 TERMS OF SALE TO THE COMPANY AND NONOFFERING SHAREHOLDER. The
purchase price payable by the Company or any Nonoffering Shareholder of the
Offered Shares of the Offering Shareholder may be paid twenty-five percent (25
%) percent down with the balance to be paid with interest at the rate of the
lesser of the Bank of America prime rate as adjusted from time to time, or the
applicable federal rate in three (3) equal annual installments of principal and
interest until paid in full. Until the Offered Shares have been paid for in full
by the Company and any exercising Non-Offering Shareholder, the Company and each
exercising Non-Offering Shareholder shall pledge back the Offered Shares it
purchases to the Offering Shareholder as collateral for payment pursuant to a
Security and Pledge Agreement with customary terms and conditions, as determined
in the reasonable discretion of the Company.
6.6 SURRENDER OF CERTIFICATES. At such time as the Company and the
Non-Offering Shareholders have agreed to purchase, in the aggregate, all of the
Offered Shares the Offering Shareholder shall surrender its certificate(s)
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representing the Offered Shares to the Company with duly executed assignments,
and the purchasers shall concurrently and therewith pay the Offering Shareholder
the purchase price (or appropriate portion thereof) for the Shares.
6.7 SALE. The Offering Shareholder may Transfer, subject to the
provisions of this Agreement, the Offered Shares that the Company and/or the
Non-Offering Shareholders do not elect to purchase on the terms and conditions
set forth in the Offering Shareholder's Notice delivered to the Company and the
Non-Offering Shareholders, provided that such sale is consummated within ninety
(90) days of the date of the Offering Shareholder's Notice. In accordance with
Articles II, III, and IV, the purchasing Third Party shall agree to be bound by
the terms and provisions of this Agreement before the Company can reflect the
Transfer on its stock transfer records. If such sale is not consummated within
such ninety (90) day period, all of the restrictions of this Agreement shall
again become effective with respect to the Offered Shares.
ARTICLE VII
EXCEPTION
Notwithstanding anything contained in this Shareholders Agreement to
the contrary, the shares owned by HSNS may be transferred through the sale of
HSNS by the sale of all of the outstanding capital stock of HSNS to a third
party so long as the payment required under Section 15.2 of the MLA is made to
the Company in accordance with the terms of the MLA (and the other terms and
conditions of Section 15.2 of the MLA are met), and the ownership by the third
party purchasing all of the capital stock of HSNS will not have an adverse
effect on the Company's business, financial condition, operations or prospects.
In the event of such a transaction, the shares of the Company shall continue to
remain subject to the first refusal rights contained in this Shareholders'
Agreement. Subject to a confidentiality agreement acceptable to HSNS, HSNS shall
provide the Company at least 30 days advance written notice of any intended
transfer in accordance with this Section and the Company shall have 15 days to
respond in writing to HSNS as to its specific reasons as to why it believes such
transfer would have an adverse effect on the Company. The burden of proving such
adverse effect shall be on the Company. The exception contained in this Article
shall not apply to the sale of HSNS to any entity with which Xxxxx Xxxxxxxx is
an affiliate.
ARTICLE VIII
BOARD OF DIRECTORS; REQUIRED VOTING
8.1 REQUIRED VOTING. Except for HSNS, which shall control the voting of
the shares owned by HSNS, the Shareholders agree to vote their shares as
follows:
(a) BOARD OF DIRECTORS. The Shareholders agree to vote their shares
in such manner as to cause Jawerth and such other parties as he shall
select to be elected to the Board of Directors.
(b) OTHER MANNERS. On all matters submitted to a vote at a regular
or special meeting of shareholders of the Company or by written
consent, such shares shall be voted as determined by Jawerth.
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(c) PROXY GRANT. In connection with this Article VIII, if requested
at any time by Xx. Xxxxxxx, all Shareholders, other than HSNS, shall
promptly xxxxx Xxxxxxx an irrevocable proxy with respect to the voting
of the shares, to be used in Jawerth's discretion.
ARTICLE IX
GENERAL PROVISIONS
9.1 TERMINATION OF AGREEMENT. This Agreement shall terminate upon the
occurrence of any one of the following events:
(a) The written agreement of the Company and those
Shareholders holding a majority of the issued and outstanding capital stock;
(b) The bankruptcy, receivership, or dissolution of the
Company; or
(c) The consummation of an underwritten public offering of the
Company's Common Stock.
9.2 NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be delivered by hand or mailed by
certified mail, return receipt requested, first class postage prepaid, or sent
by Federal Express or similarly recognized overnight delivery service with
receipt acknowledged addressed as follows:
(a) If to the Company:
Summus, Ltd.
0000 Xxxxxx Xxxxx Xx.
Xxxxx 0000
Xxxxxxxx, XX 00000
(b) If to the Shareholders:
As listed in the stock records of the Company.
(c) If delivered personally, the date on which a notice,
request, instruction or document is delivered shall be the date on which such
delivery is made and, if delivered by mail or by overnight delivery service, the
date on which such notice, request, instruction or document is received shall be
the date of delivery. In the event any such notice, request, instruction or
document is mailed or shipped by overnight delivery service to a party in
accordance with this Section 9.2 and is returned to the sender as
nondeliverable, then such notice, request, instruction or document shall be
deemed to have been delivered or received on the fifth day following the deposit
of such notice, request, instruction or document in the United States mails or
the delivery to the overnight delivery service provided that the delivering
party shall continue to make reasonable efforts to deliver the notice by other
commercially reasonable means.
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(d)Any party hereto may change its address specified for notices herein by
designating a new address by notice in accordance with this Section 9.2.
9.3 AMENDMENTS. This Agreement, which constitutes the entire
understanding and agreement among the parties and supersedes all other previous
agreements among the parties, may only be altered, amended, changed or modified
by the written agreement of the Company and those Shareholders holding
two-thirds of the issued and outstanding shares of capital stock of the Company.
9.4 WAIVER. Any failure on the part of any party hereto to comply with
any of its obligations, agreements or conditions hereunder may be waived by any
other party to whom such compliance is owed. No waiver of any provision of this
Agreement shall be deemed, or shall constitute, a waiver of any other provision,
whether or not similar, nor shall any waiver constitute a continuing waiver.
9.5 BINDING EFFECT. Subject to the terms and conditions hereof, this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective heirs, legal representatives, executors, administrators,
successors and assigns. This Agreement shall not be assignable by any party
without the prior written consent of each other party hereto, except in
accordance with the express terms and conditions hereof. The Company, the
Shareholders, personal representatives of any deceased Shareholder, and all
other parties bound by this Agreement shall promptly execute and deliver any and
all papers or instruments necessary or desirable to carry out the provisions of
this Agreement.
9.6 HEADING, ETC. Headings are for convenience only and do not affect
interpretation of this Agreement. The following rules of interpretation apply
unless the context requires otherwise:
(a) The singular includes the plural and conversely.
(b) A gender includes all genders.
(c) Where a word or phrase is defined, its other
grammatical forms have a corresponding meaning.
(d) A reference to any legislation or to any provision of
any legislation includes any modification or re-enactment of it, any legislative
provision substituted for it, and all regulations and statutory instruments
issued under it.
(e) A reference to conduct includes, without limitation,
any omission, representation, statement or undertaking, whether or not in
writing.
9.7 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
among the parties hereto and supersedes and cancels any prior agreements,
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representations, warranties, or communications, whether oral or written, among
the parties hereto relating to the transactions contemplated hereby or the
subject matter herein.
9.8 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
9.9 NO AGREEMENT UNTIL EXECUTED. This Agreement shall not constitute or
be deemed to evidence a contract or agreement among the parties hereto unless
and until executed by all parties hereto irrespective of negotiations among the
parties or the exchanging of drafts of this Agreement.
9.10 SEVERABILITY. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity or unenforceability without invalidating or rendering
unenforceable the remaining terms or provisions hereof, and any such invalidity
or unenforceability in any such jurisdiction shall not invalidate or render
unenforceable such term or provision in any other jurisdiction; provided,
however, that any such invalidity or unenforceability does not deny any party
hereto any of the basic benefits of the bargain contemplated by this Agreement.
9.11 CONFLICTS WITH ARTICLES OF INCORPORATION OR BY-LAWS. In the event
of any conflict between this Agreement and the Company's Articles of
Incorporation or By-Laws, respectively, the parties will take such action as may
be necessary and appropriate consistent with Applicable Laws to ensure that the
provisions of this Agreement will prevail.
9.12 COSTS OF SUIT. In the event any legal action is required to
enforce or interpret the terms of this Agreement, the prevailing party shall be
entitled to recover all costs of suit, including reasonable attorneys' fees.
9.13 INSURANCE. Any party hereto shall have the right to purchase life
insurance on the life of any Shareholder of the Company to the extent reasonably
necessary to finance any stock purchases provided for hereinabove. In such case,
such insured Shareholder shall cooperate fully by performing all of the
requirements of the life insurer which are necessary conditions precedent to the
issuance of life insurance policies.
9.14 SPECIFIC PERFORMANCE. The parties hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
by reason of a failure to perform any of the obligations under this Agreement.
Therefore, if any party hereto (or its representative) shall institute any
action or proceeding to enforce the provisions hereof, any person (including the
Company) against whom such action or proceeding is brought hereby waives the
claim or defense therein that such party or representative has an adequate
remedy at law and such person shall not urge in any such action or proceeding
the claim or defense that such remedy at law exists.
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9.15 UNDERWRITING RESTRICTIONS. In the event the Company undertakes an
underwritten public offering, the Shareholders agree to restrict the sale or
transfer of their shares for a period, not to exceed twelve months from the
initial closing of the offering, as agreed upon by the Company and the
underwriter.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
SUMMUS, LTD.
By: /s/ Bjorn Jaweth
Its: President
SHAREHOLDERS:
HIGH SPEED NET SOLUTIONS, INC.
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx, Chairman
------------------------
Xxxxxx Stairs
-------------------------
Xxxxx Xxxxxx
-------------------------
Xxxxxxx Xxxxxx
-------------------------
Xxxxxx Xxxxxxx
-------------------------
Xxxx, Xxxxxx & Xxxxxx (CPAS)
-------------------------
Xxxxx Xxxxxxxx
-------------------------
Xxxxxxx Xxxxxxx
-------------------------
Xxxxxxx Xxxxxxx
-------------------------
Xxx Xxxxxxx
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GLOSSARY
The following definitions apply unless the context requires otherwise:
AGREEMENT shall mean this Shareholders' Agreement.
APPLICABLE LAWS shall mean all applicable (i) statutes, ordinances or otherwise
legislative enactments of the United States of America or other country or
foreign government, or of any state or political subdivision or agency thereof
(including any county, municipal or other local subdivisions), (ii) rules,
regulations, orders, permits, directives or other actions or approvals of any
Regulatory Authority, and (iii) judgments, awards, orders, decrees, writs and
injunctions of any court Regulatory Authority or arbitrator.
COMMON STOCK shall mean the common stock, $.0001 par value per share, of the
Company.
COMPANY shall mean Summus, Ltd., a Delaware Corporation.
CONTINUING SHAREHOLDER shall have the meaning set forth in Section 5.1.
CONSULTANT shall have the meaning set forth in Section 5.6.
EXCESS OFFERED SHARES shal have the meaning set forth in Section 6.4.
EXCESS TRANSFERRED SHARES shall have the meaning set forth in Section 5.2.
HSNS shall mean High Speed Net Solutions, Inc., a Florida corporation.
INVOLUNTARY TRANSFER shall mean any Transfer, proceeding or action (other than a
Transfer complying with the provisions of Article VI) by or as a result of which
a Shareholder shall be deprived or divested of any right, title or interest in
or to any of the Shares, including without limitation any seizure under levy of
attachment or execution, any Transfer in connection with bankruptcy (whether
pursuant to the filing of a voluntary or any involuntary petition under the
federal bankruptcy code) or other court proceeding to a debtor-in-possession,
trustee in bankruptcy or receiver or other officer or agency, any Transfer
pursuant to a separation agreement or the entry of a final court order in a
divorce proceeding from which there is no further right of appeal, any Transfer
upon or occasioned by the death of any Shareholder, or any Transfer to a legal
representative of any Shareholder.
INVOLUNTARY TRANSFEREE shall have the meaning set forth in Section 5.1.
INVOLUNTARY TRANSFEROR shall have the meaning set forth in Section 5.1.
JAWERTH shall mean Xx. Xxxxx Xxxxxxx.
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MARKETABLE SECURITIES shall mean investment grade securities freely tradable and
transferable without restriction and listed on a nationally recognized stock
exchange or quoted on the NASDAQ National Market System.
MLA shall mean the Marketing License Agreement between the Company and HSNS.
NON-OFFERING SHAREHOLDER shall have the meaning set forth in Section 6.1.
OFFER shall have the meaning set forth in Section 6.1.
OFFERED SHARES shall have the meaning set forth in Section 6.1.
OFFERING SHAREHOLDER shall have the meaning set forth in Section 6.1.
OFFERING SHAREHOLDER'S NOTICE shall have the meaning set forth in Section 6.2.
PERSON shall include, but is not limited to, an individual, a trust, an estate,
a partnership, an association, a company, a corporation, a sole proprietorship,
a professional corporation or a professional association.
REGULATORY AUTHORITY shall mean any national, federal, state, county, municipal
or local government, department, commission, board, agency, taxing authority or
other governmental, administrative or regulatory body (whether of the United
States of America or any other country or foreign government).
SECURITIES ACT shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Securities and Exchange Commission promulgated
thereunder.
SHAREHOLDERS shall mean the current shareholders of the Company, except for Xx.
Xxxxxxx, and any other Person who becomes bound by the terms hereof in
accordance with the terms hereof.
SHARES mean any and all shares of capital stock of the Company issued and
outstanding whether common stock, preferred stock, or any other type stock,
whether voting or nonvoting, as well as all shares of capital stock of the
Company issuable pursuant to outstanding options, warrants, other derivative
securities, convertible securities or similar arrangements, except for those
shares held from time to time by Jawerth.
THIRD PARTY shall have the meaning set forth in Section 4. 1.
TRANSFER shall mean any direct or indirect (including, without limitation,
through the transfer of ownership of the owner of the shares) sale, transfer,
assignment, gift, bequest, exchange of property, conveyance, pledge,
encumbrance, or any other form of disposition of any right, title or interest in
and to any of the Shares to any Person.
TRANSFERRED SHARES shall have the meaning set forth in Section 5. 1.
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