SHAREHOLDERS’ AGREEMENT
SHAREHOLDERS’
AGREEMENT
THIS
SHAREHOLDERS’ AGREEMENT DATED THE 15th DAY OF August, 2005
AMONG:
-
and
-
FAWARD
Consulting Corp., a corporation incorporated pursuant to the laws of the State
of Florida;
-
and
-
SDS-SONSITAR
DATA SERVICES INC., a corporation incorporated pursuant to the laws of the
Province of Ontario;
-
and
-
Xxxxx
Xxxxxxx of Xxxxxxx County, Florida, the United States of America;
-
and
-
eRoomsystem
Technologies Inc., a publicly traded corporation incorporated pursuant to the
laws of the State of Nevada and trading in the United States on the
Over-the-Counter Bulletin Board (the “OTCBB”) under the symbol
ERMS.OB;
-
and
-
Xxxxxxxx
Inc., a
corporation incorporated pursuant to the laws of the Province of
Ontario;
-
and
-
ASSIF
S.A., a corporation incorporated pursuant to the laws of the Republic of the
Xxxxxxxx Islands;
-
and
-
Xxxx
Xxxxxxx Xxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Xxxxxx
Xxxxxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Xxxxxxxx
Xxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page
1
of 9
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-
and
-
Xxx
Xxxxx
of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Xxxxxx
Xxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Xxxxx
Xxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Xxxxxx
Xxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Xxxxxx
Xxxxxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Xxxxxx
Xxxxxxxxx of the City of Xxxxxxx, Xxxxxxx, Xxxxxx;
-
and
-
Identica
Corp. a corporation incorporated pursuant to the laws of the Province of Ontario
(the “Corporation”).
WHEREAS
the Parties have entered into this Agreement to define their rights as
Shareholders of the Corporation;
NOW
THEREFORE in consideration of the mutual covenants herein contained, the parties
hereto agree with each other as follows:
DEFINITIONS
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1.
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In
this Agreement, unless the context otherwise
requires:
|
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a)
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“Agreement”
shall mean this Agreement and all instruments supplemental hereto
or in
amendment or confirmation hereof;
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b)
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“Corporation”
shall mean Identica Corp., a corporation incorporated under the laws
of
the Province of Ontario;
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c)
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“Common
Shares” shall mean the common Shares in the capital of the
Corporation;
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d)
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“Parties”
shall mean collectively the parties to this Agreement and “Party” shall
mean any one of them;
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page 2
of 9
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e)
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“Shareholders”
shall mean collectively the Parties to this Agreement who are at
the
relevant time holders of Shares in the capital of the Corporation
and
“Shareholder” shall mean each of such parties
individually;
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f)
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“Shares”
shall mean the Common Shares in the capital of the Corporation, as
the
context may require.
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SHAREHOLDERS
OF THE CORPORATION
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2.
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The
Parties hereto acknowledge and confirm that at the date hereof the
only
issued and outstanding Shares of the Corporation are 15,666,666 Common
Shares all of which are fully paid and non-assessable and owned of
record
at the date hereof as follows:
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Shareholder
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No.
of Common Shares
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||
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1. 1462869
Ontario Inc.
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3,000,000
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||
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2. Faward
Consulting Corp.
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1,500,000
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||
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3. SDS-Sonsitar
Data Services Inc..
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1,500,000
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||
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4. Xxxxx
Xxxxxxx
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4,000,000
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||
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“Founding
Shareholders” Above As a Group
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10,000,000
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||
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5. eRoomsystem
Technologies Inc.
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1,666,666
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||
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6. Xxxxxxxx
Inc.
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166,667
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||
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7. Xxxx
Xxxxxxx Xxxxxx
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166,667
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||
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8. Xxxxxx
Xxxxxxxxx
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166,667
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||
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9. Xxxxxxxx
Xxxxxx
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333,333
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||
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10. ASSIF
S.A.
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166,667
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||
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11. Xxx
Xxxxx
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666,667
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||
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12. Xxxxxx
Xxxxxx
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100,000
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13. Xxxxx
Xxxxxx
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333,333
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||
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14. Xxxxxx
Xxxxxx
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666,667
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||
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15. Xxxxxx
Xxxxxxxxx ???
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666,666
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||
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16. Xxxxxx
Xxxxxxxxx
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566,666
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||
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Total
of the “Non-Founding Shareholders”
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5,666,666
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page 3
of 9
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DEALING
IN SHARES OF THE CORPORATION
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3.
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The
Parties hereto acknowledge and confirm that this Section 3. will
govern
the dealing in the Shares of the
Corporation.
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a)
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The
Founding Shareholders listed above (being the owners of ten million
(10,000,000) Shares being one hundred percent (100%) of the outstanding
Shares of the Corporation prior to the purchase of Shares by the
Non-Founding Shareholders), shall be restricted from selling their
Shares
for a period of twelve (12) months from the commencement of quotation
of
the Shares of the Corporation on the OTCBB; provided, however, such
Founding Shareholders shall be permitted to sell the Shares at any
time
after the six-month anniversary date of the commencement of trading
of
Shares on the OTCBB, provided that such Shares of the Founding
Shareholders can only be sold during such period as follows: Each
such
Founding Shareholder shall not sell more than five (5) percent of
its own
respective holdings in any given five (5) day period, provided that
such
percentage does not exceed the average trading volume of the Shares
for
the previous five (5) day period, multiplied by a fraction the numerator
of which is the number of Shares held by such Founding Shareholder
and the
denominator is 16,666,666. Notwithstanding the foregoing, this right
to
sell Shares by the Founding Shareholders shall only apply if the
Non-Founding Shareholders could have sold their Shares pursuant to
the
formula provided herein in 3.b)
below.
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b)
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The
Non-Founding Shareholders shall be restricted from selling their
Shares
(i) for a period of six (6) months from the commencement of quotation
of
its Shares on the OTCBB; however, during such six month period the
Non-Founding Shareholders shall be permitted to sell Shares of common
stock in accordance with the following formula: Each such Non-Founding
Shareholder shall not sell more than five (5) percent of its own
respective holdings in any given five (5) day period, provided that
such
percentage does not exceed the average trading volume of the stock
for the
previous five (5) day period, multiplied by a fraction the numerator
of
which is the number of Shares held by such Non-Founding Shareholder
and
the denominator of which is 16,666,666.
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| c) |
The
foregoing are in addition to any further restrictions under applicable
securities law.
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EROOMSYSTEM
TECHNOLOGIES, INC. LOAN AND WARRANT
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4.
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In
addition to the purchase of 1,666,666 Shares purchased by eRoomsystem
Technologies, Inc. (“eRoom”) pursuant to a subscription agreement, eRoom
has provided the following to the
Corporation:
|
|
a)
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A
secured loan to the Corporation in the original principal amount
of ONE
HUNDRED FIFTY THOUSAND ($150,000) US DOLLARS (the “Loan”). The Loan has
been evidenced by a promissory note with a term of twenty-five (25)
months, and is interest free for the twenty-four (24) months from
the date
of funding (the “Term”), after which time the loan shall incur simple
interest at the rate of ten percent (10%) per annum (the “Note”). The Note
is secured by all of the assets of The Corporation and shall rank
senior,
at all times, to any other security interest in any of the assets
of the
Corporation. However, the holder of the Note shall subordinate its
position to any other asset-based lenders of the Corporation. The
Note may
be prepaid without penalty or premium prior to the Term at any
time.
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page
4
of 9
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b)
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In
consideration of the Note, the Corporation has issued to eRoom a
warrant
(the “eRoom Warrant”) to purchase 1,000,000 Shares which, calculated on a
fully diluted basis, is equal to six percent (6%) of the issued and
outstanding capital stock of the Corporation. The eRoom Warrant shall
be
exercisable at a price of US$0.15 per
share.
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c)
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eRoom
shall have the right to exercise the Warrant at any time from the
date of
issuance of the Note through the close of business on the fifth
anniversary date of its issuance, in whole or in part, at the sole
election of eRoom. eRoom can exercise the Warrant by tendering the
Note
(or part thereof for a partial exercise of the Warrant) in payment
of the
exercise price.
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d)
|
All
of the Shares underlying the Warrant (the “Warrant Shares”) shall be
included in the registration statement to be filed by the Corporation
with
the U.S. Securities and Exchange Commission (the “SEC”) pursuant to the
Securities Act of 1933, as amended.
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e)
|
When
eRoom exercises the Warrant, then eRoom shall be permitted to sell
Shares
during the restricted period in accordance with the formula provided
in
Section 3.b) above.
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REGISTRATION
STATEMENT
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5.
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Upon
the issuance of share certificates representing the Shares purchased
by
Non-Founding Shareholders then, within sixty days, the Corporation
shall
file a registration statement with the U.S. Securities and Exchange
Commission (the “SEC”) pursuant to the Securities Act of 1933, as amended,
to register the re-sale of all the Shares.
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MISCELLANEOUS
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6.
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The
following represents additional terms of this
Agreement:
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a)
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The
Founding Shareholders shall restrict their compensation to the amounts
attached hereto in Schedule “A” for a period of three (3) years; provided
however, such schedule shall be increased to twenty percent (20%)
of the
Corporation’s earnings before interest, taxes, depreciation and
amortization (“EBITDA”), such additional amounts to be calculated annually
based upon the audited financial statements of the Corporation.
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b)
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This
Agreement is governed by the substantive laws of the Province of
Ontario
without regard to conflict of law principles. This Agreement constitutes
the entire understanding and agreement among the parties hereto and
their
affiliates with respect to its subject matter and supersedes all
prior or
contemporaneous agreements, representations, warranties and understandings
of such parties (whether oral or written), No promise, inducement,
representation or agreement, other than as expressly set forth herein,
has
been made to or by the parties hereto. This Agreement may be amended
only
by written agreement, signed by the parties to be bound by the amendment.
Evidence shall be inadmissible to show agreement by and among such
parties
to any term or condition contrary to or in addition to the terms
and
conditions contained in this Agreement. This Agreement shall be construed
according to its fair meaning and not strictly for or against any
party.
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page
5
of 9
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IN
WITNESS WHEREOF,
each of
the parties hereto has caused this Agreement to be executed in counterpart
by
its duly authorized representative as of the date first set forth
above.
IDENTICA
CORP.
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Its:
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President
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Name:
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/s/
Xxxxxxxx Xxxxxx
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Its:
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Secretary
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eROOMSYSTEM
TECHNOLOGIES, INC.
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By:
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/s/
Xxxxx Xxxxxxxxx
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Name:
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Xxxxx
Xxxxxxxxx
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Its:
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1462869
ONTARIO INC.
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By:
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/s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Its:
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CEO
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FAWARD
CONSULTING CORP.
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By:
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/s/
Xxxxxx Xxxxxx
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|
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Name:
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Xxxxxx
Xxxxxx
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Its:
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CEO
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page 6
of 9
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SDS-SONSITAR
DATA SERVICES INC.
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By:
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/s/
Sid Tarek
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Name:
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Sid
Tarek
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Its:
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President
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XXXXX
XXXXXXX
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By:
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/s/
Xxxxx Xxxxxxx
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XXXXXXXX
INC.
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Its:
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President
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ASSIF
S.A.
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By:
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/s/
Xxxxxx Xxxxxxxx
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Name:
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Xxxxxx
Xxxxxxxx
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Its:
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Partner
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XXXX
XXXXXXX XXXXXX
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By:
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/s/
Xxxx Xxxxxxx Xxxxxx
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XXXXXX
XXXXXXXXX
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By:
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/s/
Xxxxxx Xxxxxxxxx
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XXXXXXXX
XXXXXX
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By:
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/s/
Xxxxxxxx Xxxxxx
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XXX
XXXXX
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By:
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/s/
Xxx Xxxxx
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page 7
of 9
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XXXXXX
XXXXXX
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By:
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/s/
Xxxxxx Xxxxxx
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XXXXX
XXXXXX
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By:
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/s/
Xxxxx Xxxxxx
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XXXXXX
XXXXXX
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By:
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/s/
Xxxxxx Xxxxxx
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XXXXXX
XXXXXXXXX
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By:
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/s/
Xxxxxx Xxxxxxxxx
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XXXXXX
XXXXXXXXX
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By:
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/s/
Xxxxxx Xxxxxxxxx
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page 8
of 9
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SCHEDULE
“A”
Founding
Shareholders’ Compensation
The
Founding Shareholders (through their respective holding companies)
are:
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§
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Xx.
Xxxxx Xxxxxxx, of 1462869 Ontario
Inc.;
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§
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Xx.
Xxxxx Xxxxxxx, of Xxxxx Xxxxxxx
Consulting;
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§
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Mr.
Sid Tarek, of SDS-Sonsitar Data Services Inc.;
and,
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§
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Mr.
Xxxxxx Xxxxxx, of Faward Consulting
Corp.
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The
Regular Compensation (not including: bonus as described in Section 6.a) herein;
benefits; and reimbursable business expenses) for the four (4) Founding
Shareholders named above shall not exceed an aggregate of four hundred thousand
($400,000) US dollars per year for the three years following May 1,
2005.
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IDENTICA
SHAREHOLDERS’ AGREEMENT
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Page 9
of 9
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