STOCKHOLDERS’ AGREEMENT
Exhibit 10.36
STOCKHOLDERS’ AGREEMENT
This
STOCKHOLDERS’
AGREEMENT (this “Agreement”) is
made and entered into effective as of March 2, 2020, among American
Medical REIT Inc., a Maryland corporation (the “Company”) and
its initial stockholders AMRE Asset Management, Inc., a Nevada
corporation, AMRE TENNESSEE, LLC, a Delaware limited liability
company, and LIQUIDVALUE ASSET MANAGEMENT PTE LTD., (individually,
a “Stockholder”
and collectively, the “Stockholders”).
PRELIMINARY STATEMENTS
A.
The Company issued
1000 shares of its common stock, par value $0.01 per share (the
“Common
Stock” or “Stock”) to
AMRE Asset Management, Inc. on or about November 10, 2019;
and
B.
On March 2, 2020,
AMRE Asset Management, Inc. transferred 35 of such shares to
LiquidValue Asset Management Pte., Ltd and 35 of such shares to
AMRE Tennessee, LLC; and
C.
As of March 2,
2020, each Stockholder owns shares of the Company’s Common
Stock in such amounts as are set forth hereto:
AMRE
Asset Management, Inc. (“AAMI”): 930
LiquidValue Asset
Management Pte Ltd. (“LVAM”): 35
AMRE
Tennessee, LLC (“AMRE Tennessee”): 35
D The
Stockholders and the Company desire to enter into this Agreement
for the purpose of regulating certain aspects of the relationship
between the Stockholders as stockholders of the Company and to
provide for certain rights and obligations with respect thereto as
hereinafter provided.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the
promises and of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
FOUNDING
STOCKHOLDERs’ EQUITY PARTICIPATION
1.1 The Founding
Stockholders are LVAM and AMRE Tennessee (collectively, the
“Founding Stockholders”). The Founding Stockholders
shall be entitled to participate in any Equity Raise. An Equity
Raise is the Company commitment to issue any Equity Security of the
Company. “Equity Security” means any Company stock
(common or preferred), membership interests, units, operating
partnership units, performance units, options, restricted stock,
warrants, company appreciation rights, interests in
“phantom” stock plans, restricted stock, contingent
stock, profit interests, voting securities, stock appreciation
rights or equivalents, and any other present or future right
entitling the holder, absolutely or contingently (through the
exercise of any subscription, conversion, exchange, option or
similar right), to acquire such Equity Security.
1.2 Upon the issuance
of any Equity Security of the Company, the Founding Stockholders
shall be issued the same Equity Security in the Founders
Amount.
1.3 The Founders Amount
is an aggregate 7% (seven percent) of the Equity Security committed
to be issued by the Company, to be split between the Founding
Stockholders in half.
1.4 The Founding
Stockholders may elect to receive the issued equity security in the
form of Operating Partnership Units or, if available and permitted
by law, Long-Term Incentive Plan Units.
1.5 The Founding
Stockholders may distribute the Equity Security received in an
Equity Raise to other persons and holders at its discretion in
compliance with existing law. Recipients of the Equity Security
shall be listed as the holder of such Equity Security on the
Company’s shareholder register for such Equity Security, and
the holder shall have the full rights and benefits, including
dividend rights, that come with ownership of such Equity Security.
AMRE Tennessee allocations of the Equity Security shall be subject
to approval by the Board of the Company.
(a) AMRE Tennessee
Restrictions. Notwithstanding the language herein at Section 1.5,
recipients of the Equity Security allocated to AMRE Tennessee as
part of the Founders Amount shall not be permitted to sell any such
Equity Security for a period of three (3) years after the approval
of such allocation.
(b) AMRE Tennessee
Forfeiture. Should any recipient of the Equity Security allocated
from the Founders Amount allocated to AMRE Tennessee be separated
from employment from the Company, other than an assignment to an
affiliate or successor to the Company, prior to the third year of
the issuance of the Equity Security to recipient, the Equity
Security awarded to the recipient shall be forfeited and returned
to AMRE Tennessee for reallocation. Terminations of employment by
the Company without cause, or due to Changes in Control of the
Company, or due to disability or due to hardship (disability and
hardship shall be determined by the Board of the Company) shall not
result in forfeiture of the Equity Security. Upon the expiration of
three years from the date of issuance, the Equity Securities
awarded from the Founders Amount shall not be subject to forfeit.
“Change in Control” shall mean: the acquisition, either
directly or indirectly, of more than 50% of either (i) the then
outstanding shares of Company Common Stock, taking into account as
outstanding for this purpose such shares of common stock issuable
upon the exercise of options or warrants, the conversion of
convertible shares or debt, and the exercise of any similar right
to acquire such Common Stock or (ii) the combined voting power of
the then outstanding voting securities of the Company entitled to
vote generally in the election of directors or (iii) the direct or
indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of
related transactions, of all or substantially all of the properties
or assets of the Company and its subsidiaries, taken as a whole, to
any person or entity that is not a subsidiary of the Company;
provided, however, that an initial public offering of the
Company’s Common Stock shall not constitute a Change in
Control.
(c) LVAM. The
Founders Amount allocated to LVAM shall not be subject to a three
year selling restriction period and shall not be subject to
forfeit.
ARTICLE II
ADDITIONAL
COVENANTS AND AGREEMENTS
2.1 Agreement regarding Corporate
Opportunities. Each Stockholder hereby agrees that
notwithstanding anything expressed or implied herein to the
contrary, LVAM and its affiliates, owners, officers, directors, and
employees may engage in or possess interests in other business
ventures of any kind and description (including but not limited to
business ventures including the development, management or sale of
real estate), independently or with others, for their own accounts;
the fact that LVAM and its affiliates, owners, officers, directors,
and employees may avail itself of any opportunities, either by
itself or with other persons, and not offer such opportunities to
the Company, shall not subject LVAM and its affiliates, owners,
officers, directors, and employees to liability to the Company or
to any Stockholder on account of a lost Company opportunity; and no
Stockholder shall have any right by virtue of this Agreement in or
to any such opportunities described above or to the income or
profits derived therefrom, and the pursuit of such opportunities,
even though competitive with the Company, shall not be deemed
wrongful or improper or in violation of this Agreement. All parties
hereto agree to execute and deliver such waiver, or to adopt such
policies and procedures, to the fullest extent of the applicable
law, as may be necessary to effectuate the intent
hereof.
2.2 Stockholder Representations and
Warranties. Each Stockholder represents and warrants to the
Company and agrees and acknowledges, that:
(a) The execution,
delivery and performance of this Agreement by such Stockholder do
not and shall not conflict with, violate or cause a breach of any
agreement, contract or instrument to which such Stockholder is a
party or any judgment, order or decree to which such Stockholder is
subject.
(b) Such Stockholder
has no and shall not grant any proxy or become party to any voting
trust or other agreement that is inconsistent with, conflicts with
or violates any provision of this Agreement.
(c) If such Stockholder
is a corporation, partnership, limited company, limited liability
company, trust, custodianship, estate or other entity, it has taken
all action necessary for the authorization, execution, delivery and
performance of this Agreement. If such Stockholder is an
individual, the Stockholder has the legal capacity to execute and
deliver this Agreement, to perform his or her obligations hereunder
and to consummate the transactions contemplated
hereby.
(d) If such Stockholder
is a corporation, partnership, limited company, limited liability
company, trust, custodianship, estate or other entity, this
Agreement has been duly executed by a duly authorized person on its
behalf. If such Stockholder is an individual, this Agreement has
been duly executed and delivered by the Stockholder. This Agreement
constitutes the legally binding obligation of such Stockholder,
enforceable against such Stockholder in accordance with its terms
(except to the extent that enforcement may be affected by laws
relating to bankruptcy, reorganization, insolvency and
creditors’ rights generally and by the availability of
injunctive relief, specific performance and other equitable
remedies).
ARTICLE III
CONFIDENTIALITY
3.1 Confidentiality.
(a) Non-Disclosure. In connection
with each Stockholder’s rights hereunder, the Company and its
advisors and agents may make available to such Stockholder certain
information that is non-public, confidential or proprietary in
nature (the “Confidential
Information”). Each Stockholder agrees to keep the
Confidential Information confidential and will not disclose the
Confidential Information to any third party without the
Company’s prior written consent. Each Stockholder recognizes
and acknowledges the value and confidential nature of the
Confidential Information and the damage that could result to the
Company if any information contained therein is disclosed to a
third party. The Confidential Information will be used by such
Stockholder solely as necessary for provision of such
Stockholder’s rights hereunder. Stockholder further agrees to
reimburse, indemnify and hold harmless the Company and its
employees, affiliates, officers, directors, managers, partners,
agents, advisors and representatives (collectively,
“Company
Representatives”) from any damage, loss or expense
incurred as a result of the use of the Confidential Information by
such Stockholder or other recipients contrary to the terms of this
Agreement. Nothing in this Section III shall prohibit any
Stockholder from disclosing any Confidential Information to
authorities or regulators in compliance with any law or regulation
the Stockholder is subject to.
(b) Confidential Information.
Confidential Information includes: (i) information transferred or
transmitted in writing, orally, visually, electronically or by any
other means, whether prior to, on or after the date hereof; (ii)
information provided to the Stockholder by third parties under
circumstances where such Stockholder has an obligation not to
disclose that information; and (iii) any memoranda, reports,
analyses, extracts or notes such Stockholder produces that are
based on, reflect or contain any of the Confidential Information
(the items referred to in this clause (iii) collectively
referred to as “Notes”).
Confidential Information does not include any information that: (A)
becomes generally available to the public other than as a result of
a disclosure by the Stockholder in violation of this Agreement; (B)
was in such Stockholder’s possession prior to the disclosure
of the Confidential Information pursuant to this Agreement,
provided that such Stockholder did not know, or have reason to
believe, after reasonable investigation, that such source was
subject to an obligation not to disclose such information; and/or
(C) becomes available to such Stockholder on a non-confidential
basis from a source other than the Company or any Company
Representative; provided that such Stockholder
did not know, or have reason to believe, after reasonable
investigation, that such source was subject to an obligation not to
disclose such information.
(c) Required Disclosure. If a
Stockholder is requested to disclose any Confidential Information
(including, but not limited to, any Notes) in connection with any
legal or administrative proceeding or investigation, such
Stockholder will notify the Company immediately in writing of the
existence, terms and circumstances surrounding such a request so
that the Company may, in its sole discretion, seek a protective
order or other appropriate remedy and/or take steps to resist or
narrow the scope of the disclosure sought by such request. The
Stockholder agrees to assist the Company in seeking a protective
order or other remedy, if requested by the Company. If a protective
order or other remedy is not obtained and, in the written opinion
of Stockholder’s counsel, disclosure is required, such
Stockholder may make such disclosure without liability under this
Agreement, provided that such Stockholder furnishes only that
portion of the Confidential Information that is legally required to
be disclosed, the Stockholder gives the Company notice of the
information to be disclosed as far in advance of its disclosure as
practicable and the Stockholder uses its best efforts to ensure
that confidential treatment will be accorded to all such disclosed
information.
3.2 Return of Confidential Information.
Promptly after sale or other Transfer of all of a
Stockholder’s Stock (except to a successor entity with a
substantially similar ownership) such Stockholder will promptly
delete all Confidential Information from any computer and backup
storage system in which the Confidential Information has been
stored and will turn over to the Company: (a) all documents and
other materials (including without limitation all copies or
reproductions of such documents or materials, tapes, floppy disks,
backup copies and other forms of electronic storage media) that
constitute, contain or are derived from the Confidential
Information and (b) all other documents, Notes and other materials
connected with or arising out of the Stockholder’s ownership,
and no copy thereof will be retained by such Stockholder. The
Stockholder will deliver to the Company a certificate that such
Stockholder has complied with the requirements of this Section 3.2. Notwithstanding
the return, deletion or destruction of the Confidential
Information, the Stockholder will continue to be bound by the
obligations of confidentiality and other obligations under this
Article
III.
3.3 Remedies. Each Stockholder acknowledges
and agrees that the Company would be damaged irreparably if any
provision of this Article
III were not performed in accordance with its specific terms
or were otherwise breached. Accordingly, the Company will be
entitled to equitable relief, including, without limitation, an
injunction or injunctions to prevent breaches of the provisions of
this Article III
and to enforce specifically this Article III and its provisions
in addition to any other remedy to which the Company may be
entitled, at law or in equity.
3.4 Permitted Disclosures. Each Stockholder
shall be allowed to disclose Confidential Information to its agents
and advisors as is proper, with the understanding that they shall
keep the information confidential as set forth herein.
ARTICLE IV
GENERAL
PROVISIONS
4.1 Remedies. In any action to enforce this
Agreement or to seek damages on account of any breach hereof, the
prevailing party shall be entitled to reimbursement for its costs
of collection (including reasonable attorneys’ fees and
expenses). No remedy conferred upon any party to this Agreement is
intended to be exclusive of any other remedy herein or by law
provided or permitted, but each such remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by
statute.
4.2 Waiver. None of the terms of this
Agreement shall be deemed to have been waived by any party hereto,
unless such waiver is in writing and signed by that party. The
waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
other provision of this Agreement or any further breach of the
provision so waived.
4.3 Notices. All notices and other
communications that are required or permitted to be given under
this Agreement shall be in writing and shall be delivered
personally, by facsimile, e-mail, overnight courier or by certified
mail (return receipt requested) and addressed, to
LiquidValue Asset Management Pte
Ltd.
0 Xxxxxxx Xxxxxxxxx #00-00X
Xxxxxx Xxxxx Xxx
Xxxxxxxxx 000000
or
AMRE
Tennessee, LLC
0000 X.
Xxxxxxxx Xxxx, #X000
Xxxxxxxxx Xxxxxxx,
XX 00000
Attn:
Conn Xxxxxxxx
Xxxx.Xxxxxxxx@xxxxxxxx.xxx
or
AMRE
Asset Management Inc.
0 Xxxxxxx Xxxxxxxxx #00-00X
Xxxxxx Xxxxx Xxx
Xxxxxxxxx 000000
Any
notice under this Agreement shall be deemed to have been given, (a)
if delivered in person or sent by confirmed facsimile or overnight
courier, one (1) business day following delivery to recipient,
facsimile transmission, e-mail transmission or delivery to the
courier (as the case may be) or (b) if mailed, three (3) business
days following deposit in the U.S. mail.
4.4 Termination. This Agreement will
terminate (a) upon the dissolution and winding up of the Company or
(b) on the date as of which the parties hereto terminate this
Agreement by unanimous written consent.
4.5 Ownership. Each Stockholder represents
and warrants that such Stockholder is the sole legal owner of the
Stock subject to this Agreement and that no other person or entity
has any interest in such shares.
4.6 Entire Agreement. This Agreement
contains the entire agreement, and supersedes all prior agreements
and understandings and arrangements, oral or written, among the
parties hereto with respect to the subject matter
hereof.
4.7 Amendments and Modifications. Any
amendment, modification or change to this Agreement must be
approved by written consent of (a) the Stockholders who are a party
hereto, or any successor to the Stockholders and (b) the Company;
provided that the
Company may, without the consent of any of the Stockholders, amend
this Agreement at any time or from time to time: (i) to cure any
ambiguity, to correct or supplement any provisions herein that may
be inconsistent with any other provision herein or to add other
provisions with respect to matters arising under this Agreement
that will not be inconsistent with the provisions of this
Agreement,
(ii) to amend this
Agreement to reflect any action that the Company is authorized to
take under the Agreement if such action requires amendment of this
Agreement, or (iii) to delete or add any provision to this
Agreement required to be so deleted or added by any federal or
state agency deemed to be for the benefit or protection of the
Stockholders; provided, further, however, that (A) any amendment
that enlarges or adversely affects the obligations of any
Stockholder, including requiring any additional capital
contribution, assessment or payment by such Stockholder, shall
require the written consent of each Stockholder so affected; (B) no
amendment shall adversely discriminate against a Stockholder as
opposed to other Stockholders without written consent of such
adversely affected Stockholder; and (C) no amendment shall be
adopted by the Company that adversely affects the limited liability
of any Stockholder.
4.8 Binding Effect; Benefits. No Stockholder
may assign either this Agreement or any of its rights, interests or
obligations hereunder without the prior written approval of the
other Stockholder. Any purported transfer in violation of any
provision of this Agreement will be void and ineffectual and will
not operate to transfer any interest or title to the purported
transferee. All of the terms and provisions of this Agreement shall
be binding upon and shall inure to the benefit of the parties
hereto and their respective legal representatives, successors and
permitted assigns.
4.9 No Third-Party Beneficiaries. This
Agreement is made solely and specifically among and for the benefit
of the parties hereto, and their respective successors and assigns
subject to the express provisions hereof relating to successors and
assigns, and no other person or entity will have any rights,
interest or claims hereunder or be entitled to any benefits under
or on account of this Agreement as a third-party beneficiary or
otherwise, and none of the provisions of this Agreement shall be
construed as existing for the benefit of any creditor of any of the
Stockholders or of the Company.
4.10 Severability.
Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be
unenforceable or invalid under applicable law, such provision shall
be ineffective only to the extent of such unenforceability or
invalidity, and the remaining provisions of this Agreement shall
continue to be binding and in full force and effect.
4.11 Headings.
The section and other headings contained in this Agreement are for
convenience only and shall not be deemed to limit, characterize or
interpret any provisions of this Agreement.
4.12 No
Strict Construction. The parties hereto jointly participated
in the negotiation and drafting of this Agreement. The language
used in this Agreement shall be deemed to be the language chosen by
the parties hereto to express their collective mutual intent, this
Agreement shall be construed as if drafted jointly by the parties
hereto, and no rule of strict construction shall be applied against
any Person.
4.13 Interpretation.
As used in this Agreement, the masculine, feminine or neuter gender
shall be deemed to include the others whenever the context so
indicates or requires. Terms defined in the singular have a
comparable meaning when used in the plural and vice versa. Terms
defined in the current tense shall have a comparable meaning when
used in the past or future tense and vice versa. Terms defined as a
noun shall have a comparable meaning when used as an adjective,
adverb or verb and vice versa. Whenever the term
“include” or “including” is used in this
Agreement, it shall mean “including, without
limitation,” (whether or not such language is specifically
set forth) and shall not be deeded to limit the range of
possibilities to those items specifically enumerated. Unless
otherwise limited, the words “hereof,” herein”
and “hereunder” and words of similar import refer to
this Agreement as a whole and not to any particular
provision.
4.14 Counterparts.
This Agreement may be executed in any number of counterparts, and
by facsimile, each of which shall be effective only upon delivery
and thereafter shall be deemed to be an original, and all of which
shall be taken to be one and the same instrument with the same
effect as if each of the parties hereto had signed the same
signature page.
4.15 Governing
Law. This Agreement and the rights of the parties hereunder
shall be construed and interpreted in accordance with the laws of
the State of Maryland applicable to agreements made and to the
performance wholly within that jurisdiction.
4.16 Arbitration.
Any controversy or claim arising out of or relating to this
Agreement, or any breach of this Agreement, will be settled by
arbitration in Washington, DC, in accordance with the Commercial
Arbitration Rules of the American Arbitration Association. Any
decision made pursuant to such arbitration will be binding on the
parties and judgment upon the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction
thereof.
4.17 Necessary
Approvals. All parties hereto hereby acknowledge and agree
that the effectiveness of this Agreement is subject to approval by
the Board of Directors of Singapore eDevelopment, Ltd, a Singapore
limited company and the parent company of LVAM. Should such
approval not be granted within twenty (20) calendar days of the
date hereof, this Agreement shall be null and void.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the date first above
written.
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STOCKHOLDERS:
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AMRE
ASSET MANAGEMENT, INC.
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LIQUIDVALUE
ASSET MANAGEMENT PTE LTD.
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By:
Name:
Title:
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AMRE
TENNESSEE, LLC
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By:
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Name:
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Title:
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COMPANY:
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AMERICAN
MEDICAL REIT INC.
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By:
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Name:
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Title:
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