Exhibit 10(ii)
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STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT ("Agreement"), entered into this day of
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May, 2000, is made by and among (i) XXXXXX INDUSTRIES INC., a New York
corporation ("Xxxxxx Industries"), (ii) ENVIRO-CLEAN OF AMERICA, INC., a Nevada
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corporation ("Enviro-Clean"), (iii) CORPORATE ASSETS INTERNATIONAL INC., a
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Delaware corporation ("Corporate Assets"), (iv) PRESTIGE EQUIPMENT CORPORATION,
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a New York corporation ("Prestige Equipment"), (v) XXXXX SYSTEMS, INC., a Texas
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corporation ("Xxxxx Systems"), (vi) XXXXXX XXXXXXX, an individual residing in
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the state of Kansas ("Xx. Xxxxxxx"), (vii) XXXXX XXXX, an individual residing in
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the state of Kansas ("Mr. Root"), (each of the foregoing, a "Stockholder" and,
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collectively, the "Stockholders") and (viii) XXXXX0XXXX.XXX CORPORATION, a
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Delaware corporation (the "Company").
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W I T N E S S E T H :
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WHEREAS, Xxxxxx Industries, Enviro-Clean, Corporate Assets, Prestige
Equipment, Xxxxx Systems, Xx. Xxxxxxx and Xx. Xxxx desire to establish the
Company to conduct auctions over the Internet;
WHEREAS, pursuant to Subscription Agreements, each dated as of the date
hereof (the "Subscription Agreements"), between the Company and each
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Stockholder, the Company shall issue and sell on the date hereof to the
Stockholders an aggregate of 1,000,000 shares of Common Stock; and
WHEREAS, the parties hereto desire to set forth more fully their agreements
regarding the investment by the Stockholders in the Company.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, each intending to be legally bound hereby,
agree as follows:
XII.
DEFINITIONS
A. Definitions.
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As used herein, the following terms shall have the respective meanings set
forth below:
"Affiliate" means (i) a Person, other than a Stockholder, controlling,
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controlled by or under common control with such Stockholder or (ii) a
Stockholder's parents, spouse, descendants
(whether or not adopted) and stepchildren and any trust solely for the benefit
of such Stockholder and/or the Stockholder's parents, spouse, stepchildren
and/or descendants.
"Board of Directors" means the Board of Directors of the Company, as
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constituted from time to time in accordance with this Agreement and the
Company's by-laws.
"Business Day" means any day excluding Saturday, Sunday and any day which
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is a legal holiday under the laws of the State of New York or is a day on which
banking institutions located in New York, New York are authorized or required by
law or other governmental action to close.
"Common Stock" means the Class A common stock, par value $0.001 per share,
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of the Company and the Class B common stock, par value $0.001 per share, of the
Company.
"Director" means a member of the Board of Directors.
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"Equity Securities" means (i) any Common Stock, preferred stock or other
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security of the Company, (ii) any security convertible, with or without
consideration, into any Common Stock, preferred stock or other security
(including any option to purchase such a convertible security), (iii) any
security carrying any warrant or right to subscribe to or purchase any Common
Stock, preferred stock or other security or (iv) any such warrant or right.
"Material Adverse Change" means, with respect to the Company or Enviro-
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Clean, any law, regulation, judgment, injunction, order or decree which
prohibits or enjoins the Additional Financing of the business of the Company
applicable to or binding upon the Company or Enviro-Clean adopted, passed, made,
issued or rendered, as the case may be, after the date of this Agreement or any
bankruptcy or insolvency of any of the parties hereto other than Enviro-Clean.
"Net Profit" means the (i) total commission earned at a commission auction
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sale less any customary direct actual expenses of sale not reimbursed by the
customer, including without limitation, expenses for advertising, labor, travel
and insurance or (ii) gross selling price of an auction where assets are
purchased by the auctioneer less purchase price and any customary direct actual
expenses of sale not reimbursed by the customer, including without limitation,
expenses for advertising, labor, travel and insurance; provided, however, that
if a purchase is made in joint venture with other partners, net profit for
purposes of this definition shall include only the Stockholder's percentage of
the joint venture's net profit.
"Person" means any individual, corporation, partnership, limited liability
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company, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, governmental body or other entity.
"Qualified Initial Public Offering" means an initial public offering
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pursuant to an effective registration statement under the Securities Act, as
then in effect (or any comparable statement under any similar federal statute
then in force or effect), of the Company's Common Stock in which (i) the
aggregate gross proceeds to the Company are not less than $25,000,000 and (ii)
the price per share paid in such public offering is not less than $5.00.
"Qualified Majority" means the holders of a majority of the Common Stock of
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the Company, excluding Enviro-Clean.
"Qualified Sale" means a merger, sale of all of the assets or business of
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the Company or a sale of all of the issued and outstanding shares of the Company
to a single purchaser or related group of purchasers for aggregate consideration
of not less than $25,000,000.
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar federal statute, and the rules and regulations of the Securities and
Exchange Commission thereunder, all as the same shall be in effect at the time.
"Stockholder Shares" means all Common Stock issued to or issuable to the
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Stockholders.
"Third Party" means any Person that is not the Company, a Stockholder or an
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Affiliate of the Company or the Stockholders.
"Transfer" means to sell, transfer, assign, pledge, encumber or otherwise
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dispose of any interest in any Common Stock.
XIII.
CORPORATE GOVERNANCE
A. Board of Directors.
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1. Each Stockholder shall promptly vote all of its Stockholder
Shares, whether presently owned or hereafter acquired, and shall
promptly take all other necessary or desirable actions within its
control (whether in its capacity as a Stockholder of the Company or
otherwise, and including, without limitation, attendance at meetings
in person or by proxy for purposes of obtaining a quorum and execution
of written consents in lieu of meetings), and the Company shall
promptly take all necessary and desirable actions within its control
(including, without limitation, calling special board and stockholder
meetings), so as to cause and maintain the election to the Board of
Directors of the Company one person as shall be designated by Xxxxxx
Industries, two persons as shall be designated by Enviro-Clean, one
person as shall be designated by Corporate Assets, one person as shall
be designated by Prestige Equipment, one person as shall be designated
by Xxxxx Systems, and one person as shall be designated by Xx. Xxxxxxx
(each of the foregoing, a "Designated Director"). The names of the
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initial Designated Directors are set forth on Schedule II hereto.
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2. If any vacancy shall occur in the Board as a result of the death,
disability, resignation or other termination of any Designated
Director, the party who initially designated such Designated Director
shall be entitled to name his or her
replacement. Each party designating a Designated Director shall also
have the right to remove such Designated Director with or without
cause and to designate a replacement for any Designated Director so
removed.
3. Each of the parties further covenants and agrees to vote, to the
extent possible, all Stockholder Shares now owned and hereafter
acquired by such party so that the Board of Directors shall consist of
no more than seven (7) members.
B. Actions Requiring Approval of a Two-Thirds Majority. The Company shall
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not take any of the following actions without the prior written approval of
the holders of at least two-thirds (2/3) of the outstanding Common Stock of
the Company:
1. authorize a merger, sale of all capital stock or sale of all or
substantially all of the assets of the Company, other than a Qualified
Sale;
2. make any material purchase or acquisition of any capital stock,
obligations or securities of, or any interest in, or make a capital
contribution to, any other Person, or make any material purchase or
acquisition of any property or assets not used in the usual and
ordinary course of business; or
3. incur any debt or enter into any commitments to incur debt
(whether by issuance, guarantee or otherwise), other than in the
ordinary course to finance normal working capital needs, which in the
aggregate is greater than $100,000.
C. Actions Requiring Approval of a Qualified Majority. The Company shall
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not take any of the following actions without the prior written approval of
a Qualified Majority:
1. authorize a Qualified Sale;
2. effect a Qualified Initial Public Offering; or
3. issue Equity Securities, other than Equity Securities issued in
connection with Sections 2.3(b) and 5.2 hereof.
XIV.
TRANSFER RESTRICTIONS AND OFFER PROCEDURES
A. Restrictions; Right of First Refusal.
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1. No Stockholder shall Transfer any interest in any Stockholder
Shares, whether now owned or hereafter acquired, except pursuant to
and in accordance with the provisions of this Section 3.1.
2. If, at any time, a Stockholder wishes to sell any of its
Stockholder Shares to a Third Party, such sale shall be made pursuant
to the following procedures:
a) At least twenty (20) Business Days prior to making any
Transfer of Stockholder Shares, any transferring Stockholder (the
"Transferring Stockholder") shall deliver a written notice (the
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"Offer Notice") to the Company and to each other Stockholder (a
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"Non-Selling Stockholder"). The Offer Notice shall disclose in
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reasonable detail the proposed number of Stockholder Shares to be
Transferred (the "Stockholder Transfer Shares") and the proposed
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terms and conditions of the Transfer (including the proposed
price at which the shares are to be Transferred).
b) The Company shall have a right of first refusal to purchase
the Stockholder Transfer Shares specified in the Offer Notice at
the price and on the terms and conditions specified therein by
delivering written notice of such election (an "Election Notice")
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to the Transferring Stockholder as soon as practicable but in any
event within ten (10) Business Days after delivery of the Offer
Notice. If the Company elects not to purchase the Stockholder
Transfer Shares, it shall deliver a written notice of such
decision (a "Refusal Notice") to the Transferring Stockholder and
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to each Non-Selling Stockholder as soon as practicable but in any
event within ten (10) Business Days after delivery of the Offer
Notice.
c) Upon receipt of a Refusal Notice from the Company, each Non-
Selling Stockholder shall be entitled to purchase all (but not
less than all) of its Pro Rata Share (as defined below) of the
Stockholder Transfer Shares specified in the Offer Notice at the
price and on the terms and conditions specified therein by
delivering an Election Notice to the Transferring Holder as soon
as practicable but in any event within ten (10) Business Days
after delivery of the Refusal Notice. Any Stockholder Transfer
Shares not elected to be purchased by the end of such 10-Business
Day period shall be reoffered for an additional 10-Business Day
period by the Transferring Holder on a pro rata basis to the Non-
Selling Stockholders who have elected to purchase their Pro Rata
Share. Each Non-Selling Stockholder's "Pro Rata Share" shall be
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based upon such Non-Selling Stockholder's proportionate ownership
of the Stockholder Shares to the Stockholder Shares owned by all
Non-Selling Stockholders. The Non-Selling Stockholders shall only
have the right to purchase Stockholder Transfer Shares if they
agree to purchase all of the Stockholder Transfer Shares being
offered.
d) The Transfer of any Stockholder Transfer Shares to be
purchased by the Company or by the Non-Selling Stockholders shall
be consummated as soon as practicable after the delivery of the
final Election Notice, but in any event within thirty (30)
Business Days after the delivery of the final Election Notice. In
the event that the Company and the Non-Selling Stockholders do
not purchase all of the Stockholder Transfer Shares, the
Transferring Stockholder may, within ninety (90) Business Days
after the expiration of the last 10-Business Day period pursuant
to clauses (ii) and (iii) above and subject to the provisions of
Section 3.3 below, Transfer
such remaining Stockholder Transfer Shares to one or more Third
Parties at a price no less than the price per share specified in
the Offer Notice for such class and on other terms and conditions
no more favorable to the transferees thereof than offered to the
Company and the Non-Selling Stockholders in the Offer Notice. Any
Stockholder Transfer Shares not Transferred within such 90-
Business Day period shall be reoffered to the Company and the
Non-Selling Stockholders under this Section 3.1(b) prior to any
subsequent Transfer pursuant to the terms of this Section. The
purchase price specified in any Offer Notice shall be payable
solely in cash at the closing of the transaction.
e) At any closing pursuant to this Section 3.1(b), each
Transferring Stockholder will deliver to the relevant purchaser,
against payment of the purchase price therefor, good and valid
title to the Stockholder Shares being sold by each such
Transferring Stockholder, free and clear of any lien, claim or
encumbrance.
3. The restrictions set forth in Section 3.1(b) shall not apply to
any Transfer of Stockholder Shares by any Stockholder among its
Affiliates or upon the death of any Stockholder; provided that the
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provisions of this Agreement will continue to be applicable to the
Stockholder Shares after any Transfer pursuant to this Section 3.1,
and the transferees of such Stockholder Shares shall agree in writing
to be bound by the provisions of this Agreement.
B. Tag Along Rights. If any Stockholder proposes to Transfer, in one
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transaction or in a series of related transactions (a "Tag Along Sale"),
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any Stockholder Shares to any Third Party, the Non-Selling Stockholders
shall have the right to participate in such Tag Along Sale on the following
terms:
1. Such Transferring Stockholder shall give the Non-Selling
Stockholders not less than ten (10) Business Days' written notice (a
"Sale Notice") of its intention, describing the price offered, which
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price shall be payable in cash, and all other material terms and
conditions of the Tag Along Sale.
2. In connection with any Tag Along Sale, each Non-Selling
Stockholder shall have the right, in its sole discretion, to sell, for
the same price per share being paid to, and otherwise on the same
terms and conditions as, the Transferring Stockholder, its pro rata
portion of Stockholder Shares based on the number of Stockholder
Shares it holds as compared to the number of Stockholder Shares being
sold in the Tag Along Sale.
3. Each Non-Selling Stockholder must exercise its tag along right
under this Section 3.2 by giving written notice to the Transferring
Stockholder within ten (10) Business Days of the delivery of a Sale
Notice, specifying the number of Stockholder Shares that such other
Stockholder desires to include in the Tag Along Sale. At the closing
for the Tag Along Sale, against payment of the purchase price for the
Stockholder Shares to be sold by the Non-Selling Stockholders, each
participating Non-Selling Stockholder will deliver to the Third
Party the certificate or certificates representing such number of
Stockholder Shares, duly endorsed, together with all other documents
which are necessary in order to effect such Tag Along Sale. Each
Transferring Stockholder shall use its best efforts to obtain the
agreement of the prospective transferee(s) to the participation of the
Non-Selling Stockholders in any contemplated Tag Along Sale, and no
Stockholder shall Transfer any of its Stockholder Shares to any
prospective transferee if such prospective transferee declines to
allow the participation of the Non-Selling Stockholders.
C. Limitations on Tag Along. Notwithstanding anything to the contrary
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contained herein, the provisions of Section 3.2 hereof shall not prohibit
or apply to a Transfer or Transfers in any one transaction or series of
transactions by a Stockholder of up to five percent (5%) in the aggregate
of the total number of Stockholder Shares held by such Stockholder on the
date of this Agreement.
D. Drag Along Rights. In the event holders of Common Stock propose to
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enter into a transaction or series of transactions to sell more than two-
thirds (2/3) of the outstanding Common Stock (a "Drag-Along Transaction"),
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the Stockholders agree to participate fully in such Drag-Along Transaction
by voting all of the Stockholder Shares in favor of such transaction and/or
selling all of the Stockholder Shares to the proposed transferee. The
consideration received by the Stockholders in connection with a Drag-Along
Transaction shall be on the same terms and conditions as that received by
any other holders of Common Stock.
E. Legends. Each certificate evidencing outstanding Stockholder Shares
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held by the Stockholders (unless either (i) such Stockholder Shares are
registered under the Securities Act or (ii) any Stockholder shall deliver
to the Company an opinion of counsel reasonably satisfactory to the Company
that the Stockholder Shares represented thereby need no longer be subject
to the restriction contained herein), shall bear a legend in substantially
the following form:
THE SECURITIES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR
TRANSFERRED UNLESS THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT COVERING SUCH SECURITIES OR THE SECURITIES ARE SOLD AND
TRANSFERRED IN A TRANSACTION THAT IS EXEMPT FROM THE REGISTRATION AND
PROSPECTUS DELIVERY REQUIREMENTS OF SUCH ACT.
THE SECURITIES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDERS' AGREEMENT
DATED AS OF MAY __, 2000, COPIES OF WHICH WILL BE FURNISHED BY
XXXXX0XXXX.XXX CORPORATION AND ANY SUCCESSOR THERETO UPON REQUEST AND
WITHOUT CHARGE.
XV.
PRE-EMPTIVE RIGHTS
A. Subsequent Offerings. Each Stockholder shall have a right of first
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offer to purchase its pro rata share of all Equity Securities that the
Company may, from time to time, propose to sell and issue after the date of
this Agreement; provided, however, that such rights shall not apply to
Equity Securities issued in connection with Section 5.2 hereof. Each
Stockholder's pro rata share is equal to the ratio of (a) the number of
shares of the Company's Common Stock (including all shares of Common Stock
issued or issuable upon conversion of the Shares) which such Stockholder is
deemed to be a holder of immediately prior to the issuance of such Equity
Securities to (b) the total number of shares of the Company's outstanding
Common Stock (including all shares of Common Stock issued or issuable upon
conversion of the Shares or upon the exercise of any outstanding warrants
or options) immediately prior to the issuance of the Equity Securities .
B. Exercise of Rights. If the Company proposes to issue any Equity
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Securities, it shall give each Stockholder prior written notice of its
intention, describing the Equity Securities, the price and the terms and
conditions upon which the Company proposes to issue the same. Each
Stockholder shall have fifteen (15) Business Days from the giving of such
notice to agree to purchase its pro rata share of the Equity Securities for
the price and upon the terms and conditions specified in the notice by
giving written notice to the Company and stating therein the quantity of
Equity Securities to be purchased. Notwithstanding the foregoing, the
Company shall not be required to offer or sell such Equity Securities to
any Stockholder who would cause the Company to be in violation of
applicable federal or state securities laws by virtue of such offer or
sale.
C. Issuance of Equity Securities to Other Persons. If not all of the
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Stockholders elect to purchase their pro rata share of the Equity
Securities within said fifteen (15) Business Day period, then the Company
shall promptly notify in writing the Stockholders who do so elect and shall
offer such Stockholders the right to acquire such unsubscribed shares. The
Stockholders shall have five (5) Business Days after receipt of such notice
to notify the Company of their respective election to purchase all or a
portion of the unsubscribed shares. If the Stockholders fail to exercise in
full the rights of first offer, the Company shall have one hundred and
eighty (180) Business Days thereafter to sell the Equity Securities in
respect of which the Stockholders' rights were not exercised, at a price
and upon general terms and conditions materially no more favorable to the
purchasers thereof than specified in the Company's notice to the
Stockholders pursuant to Section 4.2 hereof. If the Company has not sold
such Equity Securities within one hundred and eighty (180) Business Days of
the notice provided pursuant to Section 4.2, the Company shall not
thereafter issue or sell any Equity Securities, without first offering such
securities to the Stockholders in the manner provided above.
D. Termination and Waiver of Rights of First Offer. The rights of first
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offer established by this Article 4 shall not apply to, and shall terminate
upon the earlier of (i) the effective date of the registration statement
pertaining to the Company's initial Public Offering or
(ii) a change in control. The rights of first offer established by this
Article 4 may be amended, or any provision waived with the written consent
of Stockholders holding two-thirds (2/3) of the Common Stock then
outstanding, or as permitted by Section 6.3.
E. Excluded Securities. The pre-emptive rights established by this
Article 4 shall have no application to any of the following Equity
Securities:
1. shares of Common Stock (and/or options, warrants or other Common
Stock purchase rights issued pursuant to such options, warrants or
other rights) as adjusted for any stock dividends, combinations,
splits, recapitalizations and the like issued or to be issued after
the date hereof to employees, officers or directors of, or consultants
or advisors to the Company or any subsidiary, pursuant to stock
purchase or stock option plans or other arrangements that are approved
by the Board of Directors;
2. any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination approved by the Board of Directors;
3. shares of Common Stock issued in connection with any stock split,
stock dividend or recapitalization by the Company;
4. shares of Common Stock issued upon conversion of preferred stock;
5. any Equity Securities issued pursuant to any equipment leasing or
loan arrangement, or debt financing from a bank or similar financial
or lending institution approved by the Board of Directors;
6. any Equity Securities that are issued by the Company pursuant to
a registration statement filed under the Securities Act; and
7. any Equity Securities issued in connection with strategic
transactions involving the Company and other entities, including (i)
joint ventures, manufacturing, marketing or distribution arrangements
or (ii) technology transfer or development arrangements; provided that
such strategic transactions and the issuance of shares therein, has
been approved by the Company's Board of Directors.
XVI.
COVENANTS OF THE STOCKHOLDERS
A. Obligation to Offer Items for Sale Through the Company. Each of the
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Stockholders hereby covenants and agrees that, for so long as this
Agreement is in force and effect and such Stockholder owns any Common
Stock:
1. it will not, directly or indirectly, own, manage, control,
develop or participate in the ownership, management, control of or
development of an Internet auction site for sales of industrial,
manufacturing, production and construction equipment and appurtenant
fixtures and tooling ("Equipment"), including, without limitation, an
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Internet component of a physical auction for sales of Equipment, but
specifically excluding listing sales and sites, (each, a "Competing
Auction"); provided, however, that the ownership by such Stockholder
of not more than five percent (5%) of the stock of any publicly traded
corporation engaged in any Competing Auction shall not be deemed to
violate this Section 5.1(a);
2. it will not participate in, or be employed or engaged by or
otherwise affiliated or associated as a partner, joint venturor,
agent, consultant or otherwise with any Person (other than the
Company) that is engaged in, any Competing Auction unless a portion of
the revenues it derives therefrom are paid to the Company as provided
in Section 5.1(d);
3. it will use its reasonable efforts to conduct all Internet
auctions for sales of Equipment, including Internet components of
physical auctions for sales of Equipment, in which it participates
through the Company;
4. if it participates in any Competing Auction not conducted through
the Company, it will pay to the Company 10% of the Net Profit it
derives from such Competing Auction;
5. it will not solicit, induce or otherwise encourage any person who
is an employee, officer or agent of the Company to terminate his or
her relationship with the Company, except where such action is taken
in the ordinary course of carrying out such Stockholder's duties for
the Company;
6. it will not disclose, divulge, discuss, copy or otherwise use or
suffer to be used, in any manner in competition with or contrary to
the interests of the Company any proprietary confidential information
or trade secrets of the Company; provided, however, that this Section
5.1(f) shall not apply to the disclosure by such Stockholder of such
confidential information (i) in the ordinary course of carrying out
such Stockholder's duties for the Company or (ii) when required to do
so by a court of law or governmental agency of competent jurisdiction;
provided such Stockholder gives prompt prior written notice of the
requirement for such disclosure to the Company so that the Company may
seek a protective order or other appropriate remedy; and
7. it acknowledges that the sole remedy for a breach of Sections
5.1(a), 5.1(b) or 5.1(c) hereof is the remedy set forth in Section
5.1(d) hereof.
B. Obligation of Enviro-Clean to Provide or Obtain Additional Financing.
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Enviro-Clean hereby covenants and agrees that it and/or Third Party
financing sources it identifies will, within sixty (60) days after the date
hereof, invest an aggregate of $2,250,000 in equity in exchange for 15% of
the capital stock of the Company (the "Additional Financing"); provided,
however, that (i) at least $1,125,000 of the Additional Financing will be
invested in the Company within thirty (30) days after the date hereof and
(ii) the full $2,250,000 of the Additional Financing will be invested in
the Company within sixty (60) days after the date hereof; provided,
further, that Enviro-Clean will not be obligated to provide such Additional
Financing if a Material Adverse Change has occurred and remains in effect.
XVII.
MISCELLANEOUS
A. Transfers in Violation of Agreement. Any Transfer or attempted
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Transfer of any Stockholder Shares in violation of any provision of this
Agreement shall be void, and the Company shall not record such Transfer on
its books or treat any purported transferee of such Stockholder Shares as
the owner of such shares for any purpose.
B. Confidentiality. Each Stockholder acknowledges that any and all
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information, including without limitation customer mailing lists, received
by such Stockholder pursuant hereto or in connection with the Company may
be confidential and for its use only, and it will not use such confidential
information in any manner adverse to the Company or to the Stockholder
delivering the information, or reproduce, disclose or disseminate such
information to any other person (other than its employees or agents having
a need to know the contents of such information, its respective partners,
members or shareholders and its and their respective attorneys who are
advised of the confidential nature of the information), except in
connection with the exercise of rights under this Agreement, unless the
Company has made such information available to the public generally or such
Stockholder is required to disclose such information by a court or
governmental body of competent jurisdiction. Each Stockholder hereby agrees
to hold in confidence and trust and not to misuse or disclose any
confidential information provided pursuant to this Agreement.
C. Amendment and Waiver. Except as otherwise provided herein, no
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modification, amendment or waiver of any provision of this Agreement shall
be effective against any party hereto unless such modification, amendment
or waiver is approved in writing by the Company and a majority in interest
of the Stockholders.
D. Severability. Whenever possible, each provision of this Agreement
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or the effectiveness
or validity of such provision in any other jurisdiction, and this Agreement
shall be reformed, construed and enforced in such jurisdiction as if such
invalid, illegal or unenforceable provision had never been contained
herein.
E. Entire Agreement. Except as otherwise expressly set forth herein, this
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Agreement embodies the complete agreement and understanding among the
parties hereto with
respect to the subject matter hereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof in any
way.
F. Successors and Assigns. The provisions of this Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and to the extent applicable heirs,
executors, administrators and legal representatives and any subsequent
holders of Stockholder Shares, and the respective successors and assigns of
each of them, so long as they hold Stockholder Shares.
G. Specific Performance. Each party to this Agreement acknowledges that
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the other parties will suffer irreparable injury in the event of any breach
of any provision of this Agreement and that therefore the remedy at law for
any breach or threatened breach of any such provision of this Agreement
will be inadequate. Accordingly, upon a breach or threatened breach of any
such provision of this Agreement by any party hereto, the other parties
shall, in addition and without prejudice to any of the rights and remedies
they may have, be entitled as a matter of right, without proof of actual
damages, to seek specific performance of such provisions of this Agreement
and to such other injunctive or equitable relief to enforce, or prevent any
violations (whether anticipatory, continuing or future) of, such provisions
of this Agreement.
H. Counterparts. This Agreement may be executed in separate counterparts
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each of which shall be an original and all of which taken together shall
constitute one and the same agreement. The Company shall require each
Person who shall, after the date hereof, acquire shares of capital stock of
the Company, as a condition to such acquisition, to become a party to this
Agreement by executing and delivering to the Company an instrument of
accession.
I. No Third Party Beneficiaries. Nothing contained in this Agreement
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shall be construed to confer upon any Person who is not a signatory hereto
any rights or benefits, as a third party beneficiary or otherwise.
J. Notices. All notices and other communications under this Agreement
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shall be in writing and shall be deemed given when delivered personally,
telecopied or mailed by certified mail, return receipt requested, to the
parties at the following addresses (or to such other address as a party may
have specified by notice given to the other parties pursuant to this
provision):
If to the Company, to:
xxxxx0xxxx.xxx Corporation
c/o Koster Industries, Inc.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Chief Executive Officer and President
Facsimile: 000-000-0000
with a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Older, Esq.
Facsimile: (000) 000-0000
If to the Stockholders, at their respective addresses set forth on Schedule I
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hereto, or on the instrument of accession pursuant to which such Person became a
party to this Agreement. All notices are effective upon receipt or upon refusal
if properly delivered.
K. Termination. This Agreement shall terminate upon consummation of a
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Qualified Initial Public Offering or Qualified Sale and, except for
Sections 5.1(f) and 6.2 hereof, which shall remain in full force and
effect, shall have no further force and effect. Upon termination of this
Agreement, each Stockholder shall no longer be a party to this Agreement
and shall have no obligations under this Agreement other than the
obligations set forth in Sections 5.1(f) and 6.2 hereof.
L. Governing Law. The corporate law of the State of Delaware shall govern
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all issues concerning the relative rights of the Company and its
stockholders. All other issues concerning this Agreement shall be governed
by and construed in accordance with the laws of the State of New York
without giving effect to the principles of conflict of laws thereunder
which would specify the application of the law of another jurisdiction.
M. Nouns and Pronouns. Whenever the context may require, any pronouns
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used herein shall include the corresponding masculine, feminine or neuter
forms, and the singular form of nouns and pronouns shall include the plural
and vice-versa.
N. Headings. The section headings of this Agreement are for reference
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purposes only and are to be given no effect in the construction or
interpretation of this Agreement.
[SIGNATURE PAGES FOLLOW]
