Exhibit 10.9
SHAREHOLDERS AGREEMENT
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AGREEMENT made the _____ day of August, 1996, by and among Export Business
& Services, Inc. ("EBS") having an office at 00000 X.X. Xxxxxx Xxxxx Xx., Xxxx
Xxxxxx, Xxxxxx, 00000, and Micel Corp. ("Micel") having an office at 000
Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000 (said corporations being referred to as
"Shareholder") and Milink Corporation, a Florida corporation, having offices in
Miami, Florida (hereinafter called the "Corporation").
W I T N E S S E T H:
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WHEREAS, the Shareholders are the owners of all of issued and outstanding
shares of the capital stock of the Corporation, and
WHEREAS, the Corporation intends to manufacture, and market wireless
telephone terminals and other related products which may be mutually agreed upon
by the Shareholders; and
WHEREAS, the parties wish to make certain agreements relating to and
affecting the Corporation and their respective rights, interests and obligations
in and to the Corporation and the capital stock of the Corporation;
NOW, THEREFORE, in consideration of the promises and the covenants herein
contained, it is mutually agreed as follows:
1. RESTRICTIONS ON TRANSFER OF SHARES.
Each of the Shareholders agrees that it will not transfer, sell,
assign, pledge, lien or otherwise in any manner dispose of or encumber or permit
to be disposed of or encumbered any of the Shares of the capital stock of the
Corporation owned by such Shareholders except as provided for in this agreement.
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2. OPTION TO PURCHASE STOCK.
(a) In the event any of the Shareholders wishes to sell or dispose of
any or all of its shares in the Corporation, then the shares of stock owned by
such Shareholder shall be deemed offered to the Corporation and the remaining
Shareholder or Shareholders on the date of receipt of written Notice of such
intention as provided in Paragraph 9 of this agreement.
(b) The Corporation shall within thirty (30) days after an offer is
made pursuant to the provisions of subdivision (a) of this Paragraph advise the
offering Shareholder and the remaining Shareholders of its acceptance of all or
any part of the offer.
(c) To the extent the Corporation does not accept such offer, the
remaining Shareholders shall have a period of fifteen (15) days following the
expiration of the initial period thirty (30) day period to accept such offer pro
rata according to their share holdings. A Shareholder electing to purchase all
of the shares offered to him may include in his acceptance an agreement to
purchase such additional shares (with or without limitation) not agreed to be
purchased by the other Shareholders to whom such offer is made, and the
Shareholders so electing shall purchase the shares not to agreed to be purchased
by the other Shareholders, pro rata to the extent possible to their respective
share holdings.
(d) To the extent that a Shareholder or Shareholder cannot dispose of
its shares as provided in this Paragraph, such Shareholder or Shareholders shall
retain its remaining shares until such time as they may be disposed of pursuant
to this Paragraph.
3. TERMINATION OF EMPLOYMENT
(a) In the event of the termination of employment with the Corporation of
any Shareholder (with respect to any Shareholder who is not a natural person,
"termination of
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employment" for purposes of this Agreement shall mean the termination of
employment of any person or persons designated by the Shareholder to be employed
as part of Shareholder's responsibilities to the corporation as set forth in
this agreement), for whatever reason other than death or disability of such
Shareholder after the Corporation shall have repaid in full the loan to Micel
and obtained profitability, then the shares of stock owned by such Shareholder
shall be deemed offered to the Corporation and the remaining Shareholders on the
date of termination of employment at the book value of such shares.
(b) In the event of death or disability of both Xxxxx X. Xxxx and Xxxxx X.
Xxxxxx after the loan from Micel to the Corporation shall have been repaid in
full and after the Corporation shall be profitable, then EBS shall have the
option for a period of six months from date of death of the latter to die of Xx.
Xxxx or Xx Xxxxxx to offer the shares for sale upon receipt of a bona fide third
party written offer. Micel shall have the right of first refusal to purchase
the shares owned by EBS upon the same terms and at the same price set forth in
the bonafide third party offer. Such acceptance shall be made by a written
acceptance within 30 days of receipt by Micel of a copy of the third party
offer. In the event that no such offer shall be received by Micel within such
six month period set forth above then the shares owned by EBS shall be offered
to Micel in accordance with the terms of subsection (a) of this Paragraph 3.
(c) The Corporation shall within thirty (30) days after an offer is made
pursuant to the provisions of subdivision (a) of this Paragraph 3 advise the
offering Shareholder and the remaining Shareholders of its acceptance of all or
any part of the offer. To the extent the Corporation does not accept such
offer, the remaining Shareholders shall have a period of fifteen (15) days
following the expiration of the initial period thirty (30) day period to accept
such offer pro rata according to their share holdings. A Shareholder electing
to purchase all of the shares offered to him may include in his acceptance an
agreement to purchase such additional shares (with or without limitation) not
agreed to be purchased by the other Shareholders to whom such offer is made, and
the Shareholders so electing shall purchase the shares not to agreed to be
purchased by the other Shareholders, pro rata to the extent possible to their
respective share holdings. In the event that the offer is not accepted, the
Corporation shall be dissolved.
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4. EMPLOYMENT AND SALARIES.
(a) During the term of this Agreement each Shareholder (with respect
to any Shareholder who is not a natural person, "employment" for purposes of
this Agreement shall mean the employment of any person or persons designated by
the Shareholder to be employed as part of the Shareholder's responsibilities to
the Corporation as set forth in this Agreement), shall be employed as an officer
of the Corporation as set forth below. Each such Shareholder may appoint a
person to substitute for the officer or director that was previously appointed
by such Shareholder.
(i) The Chairman and Secretary of the Corporation will be
Xxxxx Xxxxxxxx, or otherwise, as designated by Micel.
(ii) The president of the Corporation will be Xxxxx X. Xxxx, or
otherwise, as designated by EBS.
(iii) The Vice President shall be Xxxxx X. Xxxxxx, or
otherwise, as designated by EBS.
(b) EBS, through Xxxxx X. Xxxx and Xxxxx X. Xxxxxx shall be
responsible for sales, marketing, management and administration of the
Corporation. Micel, through Xxxxx Xxxxxx will be responsible for marketing and
sales for the Corporation.
(c) Each of the employees and shareholders shall devote appropriate
time and attention to the business and affairs of the Corporation as may be
required to ensure the success of the Corporation and shall not be engaged in
any other business directly competitive with that of the Corporation, whether
directly or indirectly, but nothing herein contained shall prevent the
Shareholders from investing their funds in such entitles as they may deem
advisable, provided that such investment does not require the rendition of
personal services.
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(i) Xxxxx X. Xxxx and Xxxxx X. Xxxxxx will serve upon the
Advisory Board of Micel, if asked at compensation to be agreed upon.
(d) Each Shareholder shall have the right to elect two persons to
serve on the Board of Directors of the Corporation.
(e) The Board of Directors of the Corporation will elect the officers
of the Corporation in accordance with the persons designated by the
Shareholders.
(f) The Corporation, during its startup, will pay no salaries to
employees. The Corporation will pay to employees commissions equal to 1.5% of
sales.
(g) Commissions on sales payable to employees may be paid either
directly to the individual employees or to the Shareholders.
(h) Employees of the Corporation will be provided with a monthly
expense allowance of $500 which may be applied to cover all expense items of
$100 or less incurred by such employees within the scope of their employment.
All single expense items for amounts greater than $100, incurred by employees
within the scope of their employment, will be paid to such employee upon
submission of receipts for such expenses to the Corporation for reimbursement.
5. PROFITS AND EXPENSES OF THE CORPORATION
(a) Micel will provide to the Corporation a working capital loan to
the Corporation in the amount of $150,000. The working capital loan shall bear
interest at 12% per annum, payable annually. The loan will become due after 12
months or when otherwise mutually agreed upon by the Shareholders.
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(b) At a time and terms to be mutually agreed upon among the
Shareholders and the Corporation, the working capital loan may be converted into
nonvoting preferred stock of the Corporation.
(c) The working capital loan shall be used during the startup of the
Corporation to purchase inventory, pay expenses, cover operating startup and
overhead costs. Substantial remuneration to the participants should be based
upon and paid from the sales revenues of the Corporation.
(d) Checks for the Corporation or any wires up to $5,000 may be
executed by an Officer designated by either Shareholder. Checks for the
Corporation for amounts over $5,000 shall require two signatures and must be
signed by an Officer designated by each Shareholder.
(e) Net profits of the Corporation shall be divided equally among the
Shareholders.
6. TRANSFER OF EBS BUSINESS TO CORPORATION
(a) All business currently transacted by EBS except in the area of
non-wireless communications will be transferred to the Corporation. All sales
by EBS in the area of wireless communications shall be done through the
Corporation.
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7. LEGEND ON STOCK CERTIFICATES
All certificates for shares of stock of the Corporation subject hereto
shall be endorsed as follows:
"The shares of stock represented by this certificate are subject to,
controlled by, and are transferable only on compliance with an
agreement dated as of the ______ day of _____, 1996, among Export &
Business Services, Inc., Micel Corp. and Milink, Inc., a copy which is
on file in the office of the Corporation."
After the endorsement, the certificates shall be returned to the respective
Shareholders who shall, subject to the terms of this Agreement, be entitled to
exercise all rights of ownership of said shares of stock.
8. NOTICES
All offers, acceptances, notices or other communications required to
be given hereunder shall be given in writing and shall be deemed given when
delivered in person or mailed by registered or certified mail, return receipt
requested, to the parties hereto at the respective addresses hereinabove set
forth or to such addressed as any of the parties hereto may designate in writing
by notice given hereunder as his or its address for the receipt of such
communications.
9. FURTHER ACTIONS.
The parties hereto for themselves, their legal representatives,
successors and assigns, agrees to do all things and execute all instruments
necessary to effectuate the terms of this Agreement.
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10. ARBITRATION.
Any controversy or claim arising under, out of, or in connection with
this Agreement or any breach or claimed breach thereof, shall be settled by
arbitration in The City of New York, New York, before a panel of three
arbitrators, in accordance with the rules then obtaining of the American
Arbitration Association, and judgment upon any award rendered may be entered in
any court having jurisdiction thereof.
11. FORMER AGREEMENTS
This Agreement supersedes, as of the date hereof, each and every
shareholders agreement and stock purchase agreement entered into between the
Corporation and the individual parties hereto.
12. SUBSCRIPTION TO PURCHASE STOCK.
(a) EBS and Micel each agree to purchase at the date hereof, and the
Corporation agrees to sell and issue to EBS and Micel at the date hereof one
share each of Common Stock of the Corporation at a purchase price of $500 per
share.
(b) Each share of Common Stock of the Corporation shall represent
ownership of 50% of the Corporation and each share of Common Stock of the
Corporation shall carry with it a single vote.
(c) The Corporation agrees to use the proceeds from the sale of the
Common Stock to purchase inventory, pay expenses, and to cover operating startup
and overhead costs.
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IN WITNESS WHEREOF, The parties hereto have hereunto executed this
Agreement the day and year first above written.
EXPORT BUSINESS & SERVICES, INC.
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ATTEST:
/s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx Xxxx
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Xxxxx X. Xxxxxx, Sec Xxxxx Xxxx, President
MICEL CORPORATION
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ATTEST:
By: /s/ Xxxxxxxx Xxxxx
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Xxxxxxxx Xxxxx, Chairman
MILINK CORPORATION
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By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, President
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