STOCKHOLDERS' AGREEMENT
STOCKHOLDERS' AGREEMENT, dated as of February 1, 2000 by and among
XXXXXXXX.XXX, INC., a Delaware corporation (the "Company"), GLOBAL
TELECOMMUNICATION SOLUTIONS, INC. ("GTS"), DK&G WEBMASTER, INC. ("DK&G"), XXXXXX
XXXXXXX ("Xxxxxxx"), XXXX XXXXXXXXXXX ("Xxxxxxxxxxx"), XXXXXXX XXXXX ("Xxxxx"),
XXXX XXXXXX ("Xxxx Xxxxxx") and XXX XXXXXXXX ("Xxxxxxxx" and together with GTS,
DK&G, Previdi, Silverstein, the "Consenting Stockholders").
R E C I T A L S:
WHEREAS, the Company is authorized by its Certificate of Incorporation to
issue 1,000,000 shares of Common Stock, $.001 par value. As of the date hereof,
there are 400,000 shares of Common Stock of the Company outstanding of which the
following shares are issued to the following parties hereto:
GTS 176,000
Xxxxxxx 54,400
DK&G 45,600
Xxxxxxxxxxx 26,000
Xxxxx (Xxxxxxx
& Xxxxx) 17,444
Xxxxxx 24,000
Franklin 24,000
WHEREAS, the Company and the Consenting Stockholders desire to set forth
their agreement concerning the management of the Company and such other matters
as are set forth herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual and
dependent promises set forth in this Agreement, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS AND OTHER GENERAL MATTERS
SECTION 1.01. Definitions. The following terms shall be used in this
Agreement with the meanings set forth in this Section 1.01:
"Acquisition Offer" means an offer (whether solicited or unsolicited) to
acquire the Company by merger, statutory share exchange, direct purchase of
securities, sale of all of substantially all of the assets of the Company or
other similar transaction.
"Affiliate" means, with respect to any person or entity, any other person
or entity that directly or indirectly through one or more intermediaries
controls, is controlled by or is under common control with the first specified
person or entity.
"Board" means the Board of Directors of the Company.
"By-laws" means the by-laws of the Company.
"CEO" means the officer elected by the Board to the post designated in the
By-laws as the chief executive officer of the Company.
"COO" means the officer elected by the Board to the post designated in the
By-laws as Chief Operating Officer.
"Certificate of Incorporation" means the Certificate of Incorporation of
the Company.
"Common Stock" means the common stock, $.001 par value, of the Company.
"Consenting Stockholder" means any beneficial owner of shares of Voting
Securities that is a party to this Agreement.
"Management Shareholders" means collectively, Xxxxxxx, DK&G, Xxxxxxxxxxx,
Xxxxx, Xxxxxx and Xxxxxxxx.
"Permitted Transfer" means a transfer by a Consenting Shareholder
permitted by and made in accordance with Section 2.02.
"Permitted Transferee" means any individual, trust, entity or other person
who receives Shares is the result of a Permitted Transfer.
"Public Offering" means the offering of Common Stock pursuant to a
registration statement on a form applicable to the sale of securities to the
general public.
"Shares" means the shares of Common Stock now or hereafter owned by a
Consenting Stockholder.
"Tag Along Rights" means the rights of a Consenting Stockholder under
Article II of this Agreement.
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"Voting Securities" means, any security of the Company or any rights
therein, beneficially owned, acquired, converted, held, pledged or received by
any Consenting Stockholder entitling or granting such Consenting Stockholder to
vote such security.
SECTION 1.02. Voting; Written Consent. (a) Any agreement by the Consenting
Stockholders herein to vote their shares of Voting Securities in a certain
manner shall be deemed, in each instance, to include an agreement by each
Consenting Stockholder to use such Consenting Stockholder's best efforts and to
take all actions necessary to call, or cause the Company and the appropriate
officers and directors of the Company to call, as promptly as practicable, a
special or annual meeting of stockholders or to act by written consent.
(b) When any action is required to be taken by a Consenting Stockholder
pursuant to this Agreement, such Consenting Stockholder shall take all steps
necessary to implement such action, including, without limitation, executing or
causing to be executed, as promptly as practicable, a consent in writing in lieu
of an annual or special meeting of the stockholders.
(c) Unless expressly stated to the contrary herein, any action requiring
the vote of the directors (or any committee thereof) may be effected by
unanimous written consent in lieu of a meeting of the directors or committee
members, as the case may be.
ARTICLE II
TAG ALONG RIGHTS
SECTION 2.01 Tag Along Rights. Except for (i) a Public Offering; (ii) a
transfer which is part of the transfer of all of the outstanding Shares of the
Company; (iii) the redemption of any Shares by the Company; or (iv) a Permitted
Transfer, if one or more Consenting Stockholders, individually or collectively
(for purposes of Section, the "Selling Shareholders") propose to transfer, in a
bona fide arms-length transaction or series of transactions to any third party
or parties ("Buyer"), a number of Shares equal to or greater than twenty-five
percent (25%) of the outstanding Shares of the Company (or if Xxxxxxx or DKG
proposes to make such a transfer of more than one half of his or its
shareholdings as of the date hereof), the Selling Shareholder(s) proposing to do
so shall notify all remaining Consenting Shareholders ("Remaining Shareholders")
in writing (the "Tag along Notice"), describing in such notification the
material terms of the proposed sale. Each Remaining Shareholder shall have the
option (the "Tag Along Option"), exercisable by giving written notice to the
Selling Shareholder(s) within five business days after the Remaining
Shareholder's receipt of the Tag Along Notice, to participate in such
transaction by selling all or a portion of such Remaining Shareholder's Shares
(the "Tag Along Shares") to the Buyer on the same terms and conditions as the
Selling Shareholder. If a Tag Along Option is exercised by one or more Remaining
Shareholders, the Selling Shareholder shall not proceed with such transaction
unless each of the Remaining
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Shareholders who have exercised Tag Along Options is given the right to sell his
Tag Along Shares pro rata in proportion to the aggregate number of Shares
proposed to be sold by the Selling Shareholder and all Remaining Shareholders.
SECTION 2.02 Permitted Transfers. Subject to compliance with the second
sentence of this Section 2.02, the following shall be "Permitted Transfers" for
the purposes of its Agreement and may be made without compliance with the
provisions of Section 2.01:
(a) A Consenting Shareholder may transfer Shares to any Affiliate;
and
(b) A Consenting Shareholder which is a corporation, partnership or
trust may transfer Shares to its shareholders, partners or beneficiaries.
Any transfer to be made pursuant to the preceding sentence may only be made if
the transferee shall agree to be subject to the terms of this Agreement and the
Shares so transferred shall be subject to the provisions of this Agreement.
ARTICLE III
FINANCIAL REPORTING
SECTION 3.01 The Company shall retain a firm of certified public
accountants to render an annual certified report of the Company's financial
statements and to assist the Company in preparing quarterly financial
statements. Such quarterly reports shall be provided to each Consenting
Shareholder within 20 days following the end of each calendar quarter and such
annual report shall be provided to each Consenting Shareholder within 45 days
following the end of each fiscal year. The Company shall permit the certified
public accountants retained by GTS to perform such review of the Company's
financial statements and underlying records as shall be necessary for such firm
of certified public accountants to certify the financial statements of GTS, as
the same pertain to the shares of the Company owned by GTS.
ARTICLE IV
SPECIAL RIGHTS AND OBLIGATIONS OF CERTAIN SHAREHOLDERS
SECTION 4.01 Put Rights. If (i) the employment of any individual
Management Shareholder shall terminate for any reason, including without
limitation, death, disability, retirement, voluntary termination or involuntary
termination (whether with or without cause), and (ii) within sixty (60) days
after such termination (180 days in the case of death) (the "Put Notice
Period"), such Management Shareholder (or the legal representative of such
Management Shareholder's estate) shall
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request in writing that the Company purchase all or any part of the Shares owned
by him at the time of his termination, then the Company, to the extent permitted
by Section 4.03 below, shall purchase from such Management Shareholder or his
estate all or any part of such Shares as so requested, on the terms and
conditions set forth in this Article IV.
SECTION 4.02 Call Rights. In the event of termination of a Management
Shareholder for cause (as that term is defined in the employment agreement of
such Management Shareholder) and if such Management Shareholder does not
exercise put rights pursuant to Section 4.1 within the Put Notice Period, then
for a period commencing on the first day after the expiration of the Put Notice
Period and ending on the 60th day after the expiration of the Put Notice Period,
the Company shall have the right and option to purchase all or any part of the
Shares owned by the Management Shareholder at the time of his death or other
termination of employment on the terms and conditions set forth in this Article
IV. The Company shall exercise any option under this Section 4.02 by giving
written notice of such exercise to such Management Shareholder or the legal
representative of such Management Shareholder's estate within the sixty-day
period after the expiration of the Put Notice Period.
SECTION 4.03 Limitations on Company's Obligations. If the Company has been
requested pursuant to Section 4.01 to purchase Shares owned by a Management
Shareholder and (a) after giving effect to such purchase of shares, the Company
would be in violation of its Certificate of Incorporation or Bylaws, or of any
law, regulation or judgment promulgated by a governmental authority applicable
to the Company or any of its subsidiaries or any of its or their property (each
such violation being herein called "Violation"), or (b) the purchase of such
Shares would create any non-compliance in any respect with any agreement of the
company with any bank, trust company, insurance company or other financial
institution, relating to indebtedness of the Company, including, without
limitation, any covenant directly prohibition such purchase (which agreements
are hereinafter individually referred to as a "Loan Agreement"), or would, with
the giving of notice or the lapse of time, or both, cause the occurrence of a
default or event of default under a Loan Agreement (any such non-compliance,
default or event of default being herein referred to as a "Default"); then the
Company shall be obligated pursuant to Section 4.01 to purchase only the number
of Shares, if any, which may be purchased without causing a Violation or
Default, and the Company's obligation to purchases the remainder of such Shares
pursuant to Section 4.01 shall automatically be deferred. The Company will use
reasonable efforts to obtain any consent or waiver required by the lender under
any Loan Agreement, provided that such efforts shall not require a refinancing
or prepayment of any loans or the payment of any consideration for such consent
or waiver.
SECTION 4.04 Purchase Price. The purchase price to be paid for a purchase
pursuant to Section 4.01 or 4.02 shall be the appraised fair value ("Appraised
Value") as of the date of death or other terminations as determined by an
independent public accounting or investment banking firm
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selected by the Company that is neither related to nor is rendering any service
to the Company as of the date of selection. The appraised value shall reflect
the value of the Company on a going concern basis, but shall not include (i) any
valuation for life insurance proceeds, if any, received or receivable by the
Company upon the death of such Management Shareholder to the extent such
proceeds are applied to purchase Shares pursuant to Section 4.01, or (ii) in the
event of termination of a Management Shareholder's employment by the Company
without cause, any discount in the Appraised Value resulting from the Shares'
limited marketability or minority interest. The appraiser shall give written
notice of the Appraised Value to the Company and to the deceased Management
Shareholder's legal representative. The expenses of appraisal shall be borne by
the Company and shall be taken into account in determining the Appraisal Value.
SECTION 4.05 Closing. The closing of any purchase of Shares pursuant to
Section 4.01 or 4.02 shall take place not later than thirty (30) days after the
determination of Appraised Value upon delivery of the certificates representing
the Shares owned by the Management Shareholder at the time of his termination of
employment in satisfactory form for transfer free and clear of any liens or
encumbrances and delivery by the Company of either (a) a certified or official
bank check in United States funds in payment of the purchase price, net of any
offset for any indebtedness of such Management Shareholder to the Company or (b)
at the sole option of the Company, its note in the amount of the purchase price
payable in thirty-six (36) equal monthly installments bearing interest at the
rate of ten (10%) percent per annum.
SECTION 4.06 Additional Rights to Request Purchase of Shares. If the
Company has been requested by a Management Shareholder or the legal
representative of his estate pursuant to Section 4.01 to purchase Shares owned
by such Management Shareholder and the Company has not been able to purchase all
of such Shares due to the restrictions under Sections 4.03, the Company shall
promptly notify the Management Shareholder or his legal representative of such
restriction and then the Company thereafter shall notify such Management
Shareholder or his legal representative whenever the Company is able under the
provisions of Section 4.03 to purchase Shares owned by such Management
Shareholder and such Management Shareholder or his legal representative shall
have the right to exercise the put rights under Section 4.01 within sixty (60)
days after the receipt of such notice; provided that the put rights under
Section 4.01 and this Section 4.06 shall expire to the extent not exercised
within the exercise period for those rights, and the Company shall thereafter
not be required to give any further notice pursuant to this Section 4.06.
SECTION 4.07 Piggyback Registration.
(a) If, at any time during the period commencing on the date hereof and
ending upon the termination of this Agreement, the Company shall propose to
register any shares of Common Stock or other securities (but excluding any
shares or securities being registered pursuant to Form S-8 or Form S-4 or any
successor form to either of them), the Company shall (i) give each Consenting
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Stockholder written notice, or telecopy and telephonic notice followed as soon
as practicable by written confirmation thereof, of such proposed registration at
least thirty (30) days prior to the filing of such registration statement and
(ii) upon written notice, or telecopy or telephonic notice following as soon as
practicable by written confirmation thereof, given to the company by any
Consenting Stockholder within fifteen (15) days after the filing of such written
confirmation or written notice by the Company, the Company shall include or
cause or be included in any such registration statement all or such portion of
the Shares as such Consenting Stockholder may request; provided, however, that
the Company may at any time withdraw or cease proceeding with any such
registration if it shall at the same time withdraw or cease proceeding with the
registration of the Common Stock or other securities originally proposed to be
registered; and provided, further, that in connection with any registered public
offering involving an underwriting, the managing underwriter may (if in its
reasonable opinion marketing factors so require) limit the number of securities
(including any Shares) included in such offering. In the event of any such
limitation, the total number of Shares to be offered for the account of the
Consenting Stockholder participating in the registration shall be reduced pro
rata in proportion to the respective number of Shares requested to be included
therein to the extent necessary to reduce the total number of shares proposed to
be registered to the number of shares recommended by the managing underwriter;
provided, however, that (i) if the amount of Shares to be offered for the
accounts of the Consenting Stockholders shall be reduced in accordance with this
sentence, the Company shall not be permitted to include securities of any person
other than the Company unless the Consenting Stockholder are permitted to
participate on a pro rata basis with other selling securityholders.
(b) If any Consenting Stockholder timely elects to participate in an
offering by including Shares in a registration statement pursuant to Section
4.07(a) above, the Company shall use its best efforts to effect such
registration to permit the sale of Shares in accordance with the intended method
or methods of disposition thereof.
SECTION 4.08 Purchase of Certain Assets. The Company shall endeavor to
negotiate the purchase of the device known as an "apex switch" from Network
Services System L.P. ("Network"), currently a debtor in possession, having filed
a petition under Chapter 11 of the United States Bankruptcy Code, and subject to
reaching agreement with respect to the terms for the purchase for such assets,
the Company shall make prompt application to the United States Bankruptcy Court,
District of Delaware, for an order confirming the sale of the said "apex switch"
to the Company. Upon confirmation of such order, GTS or its designee shall be
solely responsible for the payment of the purchase price for the switch. In the
event that the Company and Network shall for any reason be unable to agree upon
the purchase price for the apex switch, or in the event that the sale of the
apex switch to the Company shall for any reason not be approved by order of the
Bankruptcy Court, GTS or its designee shall pay to the Company an amount equal
to the purchase price for an apex switch, or similar device, which the Company
shall acquire at the lowest market price available to the Company.
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SECTION 4.09. Apportionment of Certain Payments on Kraft Contract. GTS
shall pay to the Company all payments due and outstanding from Kraft Foods, Inc.
("Kraft") in connection with a certain agreement entered into between GTS and
Kraft in or about October, 1999, less the sum of $50,000 from which sum GTS
shall pay up to $40,000 due and payable to Qwest with respect to services
provided by Qwest in connection with the performance of the foregoing agreement.
SECTION 4.10 Responsibility for Certain Salaries. GTS shall be responsible
for payment of all salaries and fringe benefits due to Xxxxxxxxxxx, Xxxxxx and
Xxxxxxxx through the period ended December 31, 1999. The Company shall be
responsible for the payment of all such salary and fringe benefits for the
period commencing January 1, 2000.
SECTION 4.11 Loans Made by GTS and Xxxxxxx. In consideration of a $50,000
loan made to the Company by Xxxxxxx and a $50,000 loan made to the Company by
GTS, the Company shall issue to each of GTS and Xxxxxxx a $50,000 convertible
negotiable promissory note in the form annexed hereto.
ARTICLE V
BOARD OF DIRECTORS AND STOCKHOLDERS
SECTION 5.01. Composition of the Board of Directors. (a) General. The
Board shall initially consist of five directors, of which (i) the Management
Shareholders shall have the right to designate two individuals to serve as
directors;(ii) GTS shall have the right to designate two individuals to serve as
directors; and (iii) an additional director (the "Additional Director") shall be
designated in accordance with the joint agreement of the Consenting
Stockholders. Except as otherwise provided in this Section 5.01, the ratio of
directors designated by each of the Management Shareholders shall be maintained
as set forth in this Section 5.01(a) should the Board be increased in number.
(b) Additional Director. The Additional Director shall be Xxxxx X.
Xxxxxxxxx, who shall serve in such capacity until a successor is designated by
mutual agreement of all Consenting Stockholders.
(c) Election of Directors. Each Consenting Stockholder hereby agrees to
vote all shares of Voting Securities owned by such Consenting Stockholder to
cause the election to the Board of Directors of the individuals designated by
the Consenting Stockholders in accordance with this Section 5.01.
SECTION 5.02. Removal of Directors. Each Consenting Stockholder shall vote
all shares of Voting Securities owned by such Consenting Stockholder for the
removal (with or without cause) of any director designated and elected pursuant
to Section 5.01 hereof if the Consenting Stockholders
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entitled to designate such director pursuant to Section 5.01 request such
removal by written notice to the other Consenting Stockholders.
SECTION 5.03. Vacancies. If, as a result of death, disability, retirement,
resignation, removal (with or without cause) or otherwise there shall exist or
occur any vacancy on the Board other than as provided in Section 5.01(b), (i)
the Consenting Stockholders entitled to designate (pursuant to Section 5.01
hereof) the director whose death, disability, retirement, resignation or removal
resulted in such vacancy may designate another individual to fill such capacity
and to serve as a director of the Company, and (ii) each Consenting Stockholder
shall vote its respective Voting Securities in favor of the individual
designated in accordance with clause (i) above to fill such vacancy.
SECTION 5.04. Conflicting Charter or By-law Provisions. Each Consenting
Stockholder shall vote its Voting Securities and shall take all other actions
necessary, to ensure that the Certificate of Incorporation and By-laws
facilitate and do not at any time conflict with the provisions of this
Agreement.
SECTION 5.05. Action By the Board of Directors. (a) All actions of the
Board of Directors shall require the affirmative vote of the majority of
directors present at a duly convened meeting of the Board at which a quorum is
present or, in lieu of a meeting, by the unanimous written consent of the
members of the Board of Directors.
(b) In lieu of any other approval provided in the Agreement, the approval
of a majority of disinterested members of the Board of Directors shall be
required to approve any transaction between the Company and a Consenting
Stockholder or an Affiliate of a Consenting Stockholder.
ARTICLE VI
TRANSFERS
SECTION 6.01. First Refusal. (a) Each Consenting Shareholder, pro rata in
accordance with their respective Shareholdings, shall have a right of first
refusal on all shares held by any other Consenting Shareholder. The foregoing
rights of first refusal shall not apply to Permitted Transfers, sales in Public
Offerings, sales in the public market subsequent to such a Public Offering, or
sales pursuant to Article II hereof.
(b) A Consenting Stockholder seeking to transfer ("Transfer") his or its
shares (the "Transferor Stockholder") shall give written notice (the "Sale
Notice") to the Company and the other Consenting Stockholders (the "Remaining
Stockholders") of his or its intention to transfer the Shares. The Sale Notice
shall identify the proposed transferees (the "Buyer") and specify the number
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of Shares to be transferred (the "Offered Shares"), the price per share, and the
terms of payment. A Transfer of shares by a Transferor Stockholder pursuant to
the terms of a pledge, hypothecation or security agreement shall not be deemed a
Transfer for purposes of this Article.
(c) The Company shall have the first option to purchase the Offered Shares
at the price and on the same terms and conditions specified in the Sale Notice.
Within fifteen (15) days after delivery of the Sale Notice to the Company, the
Company shall give written notice to the Transferor Stockholder and the
Remaining Stockholders regarding the number of Shares to be purchased by the
Company (the "Company Notice").
(d) If the Company does not elect to purchase all of the Offered Shares,
the Remaining Stockholders shall have the option to purchase all, but not less
than all, of the Shares other than those to be purchased by the Company (the
"Remaining Offered Shares") at the price and on the same terms and conditions
specified in the Sale Notice. Each Remaining Stockholder shall have the right to
purchase that number of Remaining Offered Shares equal to the number of such
Remaining Offered Shares multiplied by a fraction, the numerator of which shall
be the number of Shares then owned by such Remaining Stockholder and the
denominator of which shall be the number of Shares then owned by all of the
Remaining Stockholders (a "Pro Rata Portion"). The Remaining Stockholders may
exercise their rights to purchase Remaining Offered Shares by delivering a
written notice to the Transferor Stockholder and each of the other Remaining
Stockholders (the "Stockholder Notice") indicating the number of Remaining
Offered Shares to be purchased within fifteen (15) days of receipt of the
Company Notice.
(e) The Remaining Stockholders shall also have a right of oversubscription
such that, if any Remaining Stockholder fails to elect to purchase its Pro Rata
Portion of Remaining Offered Shares, the other Remaining Stockholders shall have
the right to purchase up to the balance of the Remaining Offered Shares. The
oversubscription right set forth herein may be exercised by a Remaining
Stockholder by electing in a Stockholder Notice to purchase more than such
Remaining Stockholder's Pro Rata Portion. If all such oversubscriptions exceed
the number of Remaining Offered Shares available for purchase, the
oversubscribing Remaining Stockholders shall be cut back in proportion to their
respective Pro Rata Portions or as they may otherwise agree.
(f) If the Company and/or the Remaining Stockholders elect to purchase
all, and not less than all, of the Shares set forth in the Sale Notice, the
Company and/or the Remaining Stockholders, as applicable, shall purchase all
such Shares at the price and on the same terms and conditions specified in the
Sale Notice. Such purchase shall be made at such time and place as shall be
agreed with the Transferor Stockholder.
(g) If the Company and/or the Remaining Stockholders do not elect to
purchase all of the Offered Shares, the Company shall send written notice
thereof to all Remaining Stockholders and
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Transferor Stockholders (the "No-Sale Notice") immediately following the
expiration of the fifteen-day period set forth in Subsection 6.01(d) hereof,
and, subject to Article VI hereof, the Offered Shares may be transferred at any
time prior to the ninetieth (9Oth) day after the date of the Sale Notice to the
transferee identified in the Sale Notice on the terms and conditions specified
in the Sale Notice. No transfer of Offered Shares shall be made after the end of
such ninety (90) day period, nor shall any change in the terms and conditions of
transfer be permitted, without the Transferor Stockholder first giving to the
Company and the other Stockholders a new Sale Notice in compliance with the
requirements of this Article VI.
SECTION 6.03. Legend. Each certificate evidencing outstanding shares of
Voting Securities held by a Consenting Stockholder shall bear the following
legend (until removal thereof is warranted in accordance with the terms of this
Agreement):
"THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED. NO REGISTRATION OF TRANSFER
OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF THE ISSUER UNLESS SUCH
TRANSFER IS MADE IN CONNECTION WITH AN EFFECTIVE REGISTRATION STATEMENT
UNDER SUCH ACT OR PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH ACT DOES NOT APPLY.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS ON TRANSFER AS SET FORTH IN A STOCKHOLDERS' AGREEMENT, DATED
AS OF FEBRUARY 1, 2000, AS IT MAY BE AMENDED FROM TIME TO TIME, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER. NO
REGISTRATION OF TRANSFER OF SUCH SECURITIES WILL BE MADE ON THE BOOKS OF
THE ISSUER UNLESS AND UNTIL SUCH RESTRICTIONS SHALL HAVE BEEN COMPLIED
WITH."
SECTION 6.04 Filing of Agreement. An executed counterpart of this
Agreement shall be put and remain on file at the principal executive office of
the Company.
SECTION 6.05 Written Consent to Agreement. Except for (i) a sale pursuant
to the exercise of any right or obligation under this Agreement, (ii) a
redemption by the Company, or (ii) a sale as part of a Public Offering, no sale,
exchange or other transfer of Shares shall be made by a Consenting Stockholder
or his or its legal representative to any person unless and until such person
shall agree in writing to take such Shares subject to, and shall agree in
writing to the terms and conditions of, this Agreement.
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ARTICLE VII
TERMINATION
SECTION 7.01 Termination of Agreement. This Agreement shall terminate upon
the earlier of (a) the closing of a Public Offering, (b) the dissolution of the
Company, or (c) the voluntary written agreement of Consenting Shareholders
owning eighty percent (80%) of the Shares then subject to this Agreement.
SECTION 7.02 Termination of Board Representation. The respective rights of
the Consenting Stockholder under Article V shall terminate (i) as to GTS if at
any time, GTS does not own, in the aggregate, at least 65% of the aggregate
number of Shares which it owns as of the date hereof, or (ii) as to the
Management Shareholders, if at any time such Shareholders do not own at least
65% of the aggregate number of Shares which they own as of the date hereof.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Representations. Each of the parties hereto represents that
this Agreement has been duly authorized, executed and delivered by such party
and constitutes a legal, valid and binding obligation of such party, enforceable
against it in accordance with the terms of this Agreement.
SECTION 8.02. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of their terms hereof, in addition to any other
remedy at law or in equity.
SECTION 8.03. Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any such term may be waived (either generally or
in a particular instance and either retroactively or prospectively) only with
the written consent of the Company and Consenting Shareholders owning ninety
percent (90%) of the Shares then subject to this Agreement. Each Consenting
Stockholder shall be bound by any amendment or waiver authorized by this Section
8.03, whether or not such Consenting Stockholder shall have consented thereto.
SECTION 8.04. Notices. All notices and other communications provided for
herein shall be in writing and shall be delivered by hand, Federal Express or
other national overnight delivery service or sent by certified or registered
mail, return receipt requested, postage prepaid, addressed in the manner set
forth on the signature pages of this Agreement (or in such other manner for a
party
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as shall be specified in a notice given in accordance with this Section 8.04) or
by facsimile. All such notices shall be conclusively deemed to be received and
shall be effective, if sent by hand delivery or telecopied, upon receipt, or if
sent by registered or certified mail, on the fifth day after the day on which
such notice is mailed.
SECTION 8.05. Benefit: Successors and Assigns. Except as otherwise
provided herein, this Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors and permitted
assigns; provided, however, that this Agreement shall not inure to the benefit
of any prospective transferee unless such prospective transferee shall have
agreed in writing to be bound by the terms of this Agreement. No Consenting
Stockholder may assign any of its rights hereunder to any person other than a
transferee that has complied with the requirements of this Section 8.05 in all
respects. Nothing in this Agreement either express or implied is intended to
confer on any person other than the parties hereto and their respective
successors and permitted assigns, any rights, remedies or obligations under or
by reason of this Agreement.
SECTION 8.06. Recapitalization, Exchanges, Etc., Affecting the Stock. All
the provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Shares and any and all securities of the Company or
any successor or assign of the Company (whether by merger, consolidation, sale
or assets or otherwise) which may be issued in respect of, in exchange for, or
in substitution of the Shares or by reason of any stock dividend, split, reverse
split, combination, recapitalization, reclassification, merger, consolidation or
otherwise.
SECTION 8.06. Miscellaneous. This Agreement sets forth the entire
agreement and understanding among the parties hereto, and supersedes all prior
agreements and understandings, relating to the subject matter hereof. If any
term or other provision of this Agreement is held invalid, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and
effect, unless invalidity of the term or provision held invalid shall
substantially impair the benefits of the remaining portions of this Agreement
and shall not limit or otherwise affect the meaning hereof. This Agreement shall
be governed by the law of the State of New York. This Agreement may be executed
in any number of counterparts, each of which shall be deemed to be an original,
but all of which together shall constitute one instrument. This Agreement may be
signed in counterparts.
13
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
in their individual capacity or caused it to be duly executed by their
respective authorized signatories hereunto duly authorized as of the day and
year first above written.
XXXXXXXX.XXX, INC. GLOBAL TELECOMMUNICATION,
SOLUTIONS, INC.
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxx X. Xxxxxxxxxx
---------------------------------- ----------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxx X. Xxxxxxxxxx
Title: President Title: Chief Financial Officer
DK&G WEBMASTER, INC.
By: /s/ [Illegible] /s/ Xxxxxx Xxxxxxx
---------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxxx
Title: PRESIDENT
/s/ Xxxx Xxxxxxxxxxx
------------------------------------- -------------------------------------
Xxxx Xxxxxxxxxxx Xxxxxxx Xxxxx
------------------------------------- -------------------------------------
Xxxx Xxxxxx Xxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxx
14
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
in their individual capacity or caused it to be duly executed by their
respective authorized signatories hereunto duly authorized as of the day and
year first above written.
XXXXXXXX.XXX, INC. GLOBAL TELECOMMUNICATION,
SOLUTIONS, INC.
By: By: /s/ Xxx X. Xxxxxxxxxx
---------------------------------- ----------------------------------
Name: Name: Xxx X. Xxxxxxxxxx
Title: Title: Chief Financial Officer
DK&G WEBMASTER, INC.
By:
---------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
------------------------------------- -------------------------------------
Xxxx Xxxxxxxxxxx Xxxxxxx Xxxxx
------------------------------------- -------------------------------------
Xxxx Xxxxxx Xxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxx
14
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
in their individual capacity or caused it to be duly executed by their
respective authorized signatories hereunto duly authorized as of the day and
year first above written.
XXXXXXXX.XXX, INC. GLOBAL TELECOMMUNICATION,
SOLUTIONS, INC.
By: By: /s/ Xxx X. Xxxxxxxxxx
---------------------------------- ----------------------------------
Name: Name: Xxx X. Xxxxxxxxxx
Title: Title: Chief Financial Officer
DK&G WEBMASTER, INC.
By:
---------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
------------------------------------- -------------------------------------
Xxxx Xxxxxxxxxxx Xxxxxxx Xxxxx
/s/ Xxx Xxxxxxxx
------------------------------------- -------------------------------------
Xxxx Xxxxxx Xxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxx
14
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
in their individual capacity or caused it to be duly executed by their
respective authorized signatories hereunto duly authorized as of the day and
year first above written.
XXXXXXXX.XXX, INC. GLOBAL TELECOMMUNICATION,
SOLUTIONS, INC.
By: By: /s/ Xxx X. Xxxxxxxxxx
---------------------------------- ----------------------------------
Name: Name: Xxx X. Xxxxxxxxxx
Title: Title: Chief Financial Officer
DK&G WEBMASTER, INC.
By:
---------------------------------- -------------------------------------
Name: Xxxxxx Xxxxxxx
Title:
------------------------------------- -------------------------------------
Xxxx Xxxxxxxxxxx Xxxxxxx Xxxxx
/s/ Xxxx Xxxxxx
------------------------------------- -------------------------------------
Xxxx Xxxxxx Xxx Xxxxxxxx
-------------------------------------
Xxxxx Xxxxx
14
