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EXHIBIT 10.25
Exhibit B
SECURITYHOLDERS AGREEMENT
This Securityholders Agreement (this "Agreement") is made as of the
30th day of September, 1999, by and among VSI Enterprises, Inc., a Delaware
corporation ("VSI"), Xxxx D'Haeyer ("D'Haeyer"), and Xxxxxx Xx Xxx ("De Rop")
All of them are each, a "Securityholder", and collectively, "Securityholders"
of Videoconferencing Systems, n.v., a limited liability company organized under
the laws of Belgium (the "Company"), which is also a party to this Agreement.
Future new securityholders can be invited to become part of this
Securityholders Agreement by unanimous approval of all then current
participants in this Securityholders Agreement.
For good and valuable consideration, the receipt and sufficient of
which are hereby acknowledged and agreed, the parties hereto hereby agree as
follows:
SECTION 1. DEFINITIONS. In addition to other terms defined in this
Agreement, the following terms shall have the following meanings:
"Common Stock" means the common stock of the Company.
"Securities" means any securities of the Company including, without
limitation, Securities of Common Stock of the Company.
"Securityholder" means the person or entity being part of this
Securityholders Agreement.
"Offer Notice" shall mean a written notice sent not more than 60 nor
less than 20 days prior to the proposed date of a Sale that sets forth: (i) the
name and address of the Proposed Purchaser; (ii) the proposed amount and forms
of all consideration of forbearances to be paid or received by the
Securityholders per Share, (iii) the terms and conditions or payment offered by
the Proposed Purchaser; and (iv) the proposed closing date of the Sale.
"Proposed Purchaser" means the person or entity making the offer of
Sale.
"Sale" means the sale, in one or a series of related transactions, of
more than 50% of the outstanding Securities owned by the Securityholders.
SECTION 2. TAG-ALONG RIGHTS.
(A) If any combination of the Securityholders receives an offer of
Sale, the other Securityholders shall have the right to require the Proposed
Purchaser to purchase all or any portion of their Securities at the same price
per Share and upon the same terms and conditions as the selling
Securityholder(s) receive in the Sale (the "Tag-Along Right").
(B) Upon receiving an offer of Sale, the selling Securityholder(s)
shall provide the other Securityholder(s) with the Offer Notice.
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Exhibit B
(C) The other Securityholder(s) may exercise the Tag-Along Right by
delivering a written notice (the "Tag-Along Notice") to the selling
Securityholder(s) and the Proposed Purchaser, within ten days following its
receipt of the Offer Notice, which Tag-Along Notice shall state the number of
Securities that they will include in the Sale.
(D) If no Tag-Along Notice is received during the ten day period set
forth in Section 2(c) above, the selling Securityholder(s) may complete the
Sale on terms no less favorable to them than those contained in the Offer
Notice.
(E) If the Tag-Along Notice is received during the ten day period set
forth in Section 2(c) above, the selling Securityholder(s) may not complete the
Sale without including in such Sale the Securities which were tendered for
purchase pursuant to such Tag-Along Notice; provided, however, that in order to
participate in such Sale, the other Securityholder(s) must deliver to the
Proposed Purchaser by the closing date a certificate representing the
Securities so tendered, together with a stock power executed in blank, together
with any other document or instrument reasonably requested by the Proposed
Purchaser (it being agreed and understood that VSI will not make any
representations or warranties or give any indemnification regarding the
Company, but will represent and warrant as to its ownership of the Securities
so tendered).
SECTION 3. RIGHT OF FIRST REFUSAL. In the event any Securityholder
receives a bona fide offer to purchase any Common Stock held by such
Securityholder, and which offer such Securityholder desires to accept, then
such Securityholder shall give written notice thereof to the other
Securityholders, which written notice shall state the number of shares to be
acquired and the price per Share to be paid, and the other Securityholders will
have thirty (30) days after receipt of such written notice to purchase the
Shares which are the subject of such offer for the purchase price so offered
(in cash). In order to exercise this purchase option, the other Securityholders
shall deliver to the selling Securityholder written notice of their election to
purchase, together with the purchase price. In the event the other
Securityholder(s) elect(s) not to exercise such purchase option within the
above thirty (30) day period, then such Securityholder shall have sixty (60)
days following such thirty (30) day period to consummate such sale, but in no
event may the terms be more favorable then those described in the written
notice delivered by such Securityholder.
Nothing contained herein shall restrict or prohibit a Securityholder
from transferring, by gift, by will or by laws of descent and devise, shares of
Common Stock to a member of his immediate family or to a trust or other entity
for estate planning purposes; provided (i) that such transferee becomes a party
to this Agreement and (ii) that the transferring Securityholder and the
transferee(s) collectively, shall only have the right to nominate one member of
the Board as provided in Section 4.
In the event Common Stock is sold in a transaction subject to the
first paragraph of this Section 3 to a person not a party to this Agreement,
such transferee shall not be required to, and shall have no right to, become a
party to this Agreement and to be subject to all the rights and restrictions
contained herein.
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Exhibit B
SECTION 4. BOARD SEAT. Each Securityholder shall have the right to
nominate one member of the board of directors of the Company (the "Board"). All
Securityholders will take all such action which may be necessary or advisable
(including, without limitation, the voting of securities of the Company) in
order to cause the nominees to be elected as a members of the Board.
Thereafter, at any meeting of the Securityholders of the Company to elect
directors, the Securityholders shall have the right to designate one person for
the election as a director of the Company, the Board shall cause such designee
to be nominated, and the Securityholders shall take all such action which may
be necessary or advisable (including, without limitation, the voting of
securities of the Company) in order to cause such nominee to be elected as a
member of the Board.
SECTION 5. TERMINATION.
(A) This Agreement shall terminate automatically upon the dissolution
of the Company or upon the occurrence of any event which reduces the number of
Securityholders to one.
(B) This Agreement shall terminate upon the written consent of all
Securityholders owning each at least 5% of the Common Stock of the Company,
calculated on an as-converted basis.
SECTION 6. ISSUANCE OF SECURITIES TO AFFILIATES. In addition to the
provisions set forth in the Company's by-laws regarding the issuance of
Securities, the Company shall not issue Securities to any officer, director or
holder of five percent (5%) or more of the voting capital stock of the Company
(on a fully diluted basis) unless such issuance is approved in writing by the
unanimous consent of all of the directors of the Company. Notwithstanding the
foregoing, the Company may issue Securities to a holder of five percent (5%) or
more of the voting capital stock of the company (on a fully diluted basis)
provided such holder is not a party to this agreement and provided such
Securities are issued for not less than their fair market value as determined
by a majority vote of the disinterested members of the Board.
SECTION 7. STOCK LEGEND. The Company and the Securityholders agree that
all certificates or agreements representing Securities (or options or other
instruments to purchase Securities) that at any time are subject to the
provisions of this Agreement will have endorsed upon them in capitalized type a
legend in substantially the following form:
THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO A SECURITYHOLDERS
AGREEMENT, DATED AS OF SEPTEMBER 30, 1999 (THE "AGREEMENT"), AS MAY BE
AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN OF ITS
SECURITYHOLDERS, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF
THE COMPANY. THE AGREEMENT CONTAINS CERTAIN RESTRICTIONS ON SUCH
SECURITIES, AND SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED,
ASSIGNED, PLEDGED, HYPOTHECATED, OR
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Exhibit B
OTHERWISE DISPOSED OF EXCEPT IN STRICT ACCORDANCE WITH THE TERMS OF
THE AGREEMENT. A COPY OF THE AGREEMENT WILL BE FURNISHED WITHOUT
CHARGE TO THE HOLDER OF THIS CERTIFICATE UPON RECEIPT BY THE COMPANY
AT ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE OF A WRITTEN
REQUEST FROM THE HOLDER REQUESTING SUCH A COPY.
Each holder of Securities (or options or other instruments to purchase
Securities) subject to the provisions of this Agreement issued prior to the
date hereof agrees to deliver all certificates and agreements representing
Securities to the Company for the purpose of endorsing said legend thereon. The
Company agrees to maintain a counterpart of this Agreement in its principal
and/or registered office.
Upon a transfer of Securities to a person not a party to this
Agreement, the Company shall issue a certificate to such person without the
legend set forth above.
SECTION 8. MISCELLANEOUS.
(A) Further Assurances. Each party to this Agreement agrees to perform
all further acts and to execute and deliver all further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
(B) Severability. In the event that any of the provisions of this
Agreement is held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining provisions will
not be affected, and in lieu of such unenforceable provision there shall be
added automatically as part of this Agreement a provision as similar in terms
as may be valid and enforceable.
(C) Terms; Captions. Whenever used in this Agreement, the singular
number will include the plural, and the plural number will include the
singular, and pronouns in the masculine, feminine, or neuter gender will
include each other gender. The captions of this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
(D) Applicable Law. This Agreement has been executed in and will be
governed by the laws of the Belgium, without regard to the choice of law
provisions thereof.
(E) Binding Effect. Subject to the restrictions against transfer or
assignment and other provisions of this Agreement, the provisions of this
Agreement will benefit and will be binding on the assigns, successors in
interest, personal representatives, estates, heirs and legatees of each of the
parties hereto.
(F) Amendment; Waiver. This Agreement may only be amended, or
provision waived, by the written consent of all Securityholders owning each at
least 5% of the Common Stock of the Company, calculated on an as-converted
basis.
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Exhibit B
(G) Entire Agreement. This Agreement contains the entire understanding
among the parties hereto concerning the subject matter hereof.
(H) Notices. All notices required or permitted to be given hereunder
will be deemed to be duly given (a) on the date of delivery if delivered in
person, (b) one (1) day after sent by overnight delivery or by telecopy, where
receipt of delivery or confirmation of telecopy is received, or (c) seven (7)
days after the date of mailing if mailed by registered or certified mail, first
class postage prepaid, return receipt requested, to the Securityholder(s), as
appropriate, at the respective addresses indicated on the signature pages to
this Agreement. The addresses of the Securityholders, or any of them, may be
changed only by giving written notice of such change or address to all of the
other parties hereto in the manner provided above.
(I) Performance. If any party to this Agreement fails to perform,
observe or discharge any of its respective obligations under this Agreement,
any other party hereto shall be entitled to temporary and permanent injunctive
relieve in such case without the necessity of proving actual damages, and such
remedy shall be in addition to other relief as may be provided by law. If any
legal action is required to enforce the terms of this Agreement, the prevailing
party shall be entitled to the reasonable costs of enforcement, including
attorneys' fees.
(J) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have entered into this
Agreement as of the date first indicated above.
VSI ENTERPRISES, INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, CFO
Address: 0000 Xxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
X.X.X.
/s/ Xxxx D'Haeyer /s/ Xxxxxx Xx Xxx
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XXXX D'HAEYER XXXXXX XX XXX
Address: H. Van Xxxxxxxxxxxxxxx 00 Address: Xxxxxx 00/0
0000 Xxxx 0000 Xxxxxx
Xxxxxxx Belgium
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Exhibit B
VIDEOCONFERENCING SYSTEMS, N.V.
By:
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Name:
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