AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the
"Agreement") is entered into as of June 26, 1998, among each of the entities and
individuals listed on Annex A hereto (individually an "Investor" and
collectively the "Investors"), VALUE AMERICA, INC., a Virginia corporation (the
"Company"), and Xxxxx X. Xxxx ("Xxxx") and Xxx Xxxxxxx ("Xxxxxxx"), Xxxxxxx
Investments, L.L.C., a Virginia limited liability company ("Crystal") and
Frostine, L.L.C., a Virginia limited liability company ("Frostine") (each of
Winn, Scatena, Crystal and Frostine, a "Holder," and, collectively, "Holders").
RECITALS
A. Pursuant to the Stockholders Agreement dated as of December
17, 1997 (the "Prior Stockholders Agreement"), by and among the Company, the
Holders and Union Labor Life Insurance Company, a Maryland corporation acting on
behalf of its Separate Account P ("Ullico"), the Holders granted Ullico certain
rights of first refusal, rights of co-sale and noncompetition covenants.
B. The Holders, the Company and Ullico desire to terminate the
Prior Stockholders Agreement and accept the rights created pursuant hereto in
lieu of the rights granted to Ullico under the Prior Stockholders Agreement.
C. Concurrent with the execution of this Agreement, the
Company and the Investors propose to enter into a Preferred Stock Purchase
Agreement dated the date of this Agreement (the "Purchase Agreement") under
which the Investors will become obligated, subject to certain conditions, to
provide approximately $18.5 million in equity financing to the Company.
X. Xxxx is the beneficial owner of 5,153,893 shares (the "Xxxx
Shares") of the Company's authorized and issued common stock, without par value
(which class of shares is herein called "Common Stock"), and Xxxx is the record
owner of 5,053,793 shares of Common Stock and Crystal, which is closely-held and
managed by Xxxx, is the record owner of 100,100 shares of Common Stock.
X. Xxxxxxx is the beneficial owner of 2,250,000 shares (the
"Xxxxxxx Shares;" together with the Xxxx Shares, the "Holder Shares") of Common
Stock, and Xxxxxxx is the record owner of 2,149,900 shares of Common Stock and
Frostine, which is closely-held and managed by Xxxxxxx, is the record owner of
100,100 shares of Common Stock.
F. The Investors are unwilling to provide equity financing to
the Company unless each Holder is willing to subject its Holder Shares to the
restrictions contained in this Agreement and make the covenants contained
herein, and it is a condition to the performance of the Investors' obligations
under the Purchase Agreement that the Company and each Holder enter into this
Agreement.
G. Each Holder acknowledges that having the Investors provide
equity financing to the Company pursuant to the Purchase Agreement will directly
benefit such Holder as a result of its ownership of Holder Shares and,
accordingly, that such Holder is entering into this Agreement to induce the
Investors to provide equity financing to the Company under the Purchase
Agreement.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
1. Definitions.
(a) Unless otherwise expressly defined herein or the
context otherwise requires, the capitalized terms appearing herein shall have
the respective meanings assigned to them in the Purchase Agreement.
(b) Unless the context otherwise requires, the terms
defined in this Section 1 shall have the meanings herein specified for all
purposes of this Agreement, applicable to both the singular and plural forms of
any of the terms herein defined.
"Governmental Entity" shall mean any local, state,
federal or foreign (i) court, (ii) government or (iii) governmental department,
commission, instrumentality, board, agency or authority, including the
Internal Revenue Service and other taxing authorities.
"Holder Shares" shall (i) have the meaning set forth
in Recital E above and (ii) also include all shares issued by the Company on
or in respect of the shares referred to in the preceding clause (i)
including, without limitation, by way of dividend, subdivision,
combination, reclassification, recapitalization, reorganization or otherwise.
"Legal Requirement" shall mean any foreign, federal,
state or local statute, law, ordinance, rule, regulation, permit, order, writ,
judgment, injunction, decree or award issued, enacted or promulgated by any
Governmental Entity or any arbitrator.
"Transfer" shall mean any sale, pledge, assignment,
encumbrance or other transfer or disposition of any shares of Common Stock to
any other Person, whether directly, indirectly, voluntarily, involuntarily, by
operation of law, pursuant to judicial process or otherwise.
2. Covenant Against Certain Transfers.
(a) Each Holder covenants and agrees with the
Investors that except as permitted in this Agreement it will not Transfer any or
all of the Holder Shares held by it.
(b) Prior to a Qualified Offering, each Holder may
sell the Holder Shares owned by it for a cash price of not less than $35 per
share (which price shall be proportionately adjusted for subdivisions and
combinations of the outstanding shares of Common Stock) so long as the Investors
have the Right of First Refusal and Co-Sale Rights to with respect to such sale
as provided in Section 4.
(c) The minimum price requirement appearing in
Section 2(b) shall expire on the fourth anniversary of the Closing Date under
the Purchase Agreement.
3. Legend on Certificates.
All certificates evidencing the shares of Common Stock of
the Company now or hereafter held by the Holders shall bear substantially the
following legend:
"The shares represented by this certificate are subject to the
rights of certain investors of Value America, Inc., under the
terms of an Amended and Restated Stockholders Agreement, among
Value America, Inc., holders of shares of Common Stock and
holders of shares of Preferred Stock of Value America, Inc., a
copy of which is on file at the principal office of Value
America, Inc. and will be furnished upon request to the holder
of record of the shares represented by this certificate."
4. Investors' Rights of First Refusal and Co-Sale
Rights.
(a) Rights of First Refusal. Before any shares of
Common Stock may be Transferred by any Holder, such shares of Common Stock shall
first be offered to the Investors, as set forth below.
(i) If a Holder desires to Transfer any shares of
Common Stock owned by him, the selling Holder shall deliver a notice (the
"Notice") to the Investors stating (w) its bona fide intention to Transfer such
shares of Common Stock, (x) the number of shares of Common Stock proposed to be
Transferred (the "Noticed Securities"), (y) the price at which it proposes to
Transfer the Noticed Securities (in the case of a Transfer not involving a sale,
such price shall be deemed to be the fair market value of the Noticed Securities
as determined pursuant to Section 4(a)(iii)) and the terms of payment of that
price and other terms and conditions of sale, and (z) the name and address of
the proposed purchaser or transferee. Such Holder shall not effect any transfer
for value of the shares of Common Stock other than for money (United States
dollars) or an obligation to pay money (United States dollars).
(ii) For a period of thirty (30) days after receipt
of the Notice, each Investor shall have the right to purchase that number of the
Noticed Securities equal to the product obtained by multiplying (a) the
aggregate number of Noticed Securities by (b) a fraction, the numerator of which
shall equal the aggregate number of shares of Common Stock owned by such
Investor at the time of the Transfer (assuming for this purpose that the
Investor's holdings include all shares of Common Stock underlying the Series A
Preferred Stock and Series B Preferred Stock of the Company then held by the
Investor), and the denominator of which shall equal the aggregate number of
shares of Common Stock owned by the selling Holder and the Investors at the time
of the Transfer (such product being referred to as such Investor's "Pro Rata
Share"). The price per share of Common Stock of the Noticed Securities purchased
by the Investors pursuant to this Section 4 shall be, in the case of a sale, the
price per share of Common Stock set forth in the Notice and, in the case of a
Transfer not involving a sale, the fair market value of such shares of Common
Stock determined pursuant to Section 4(a)(iii) hereof, and the purchase shall be
on the same terms and subject to the same conditions as those set forth in the
Notice. The right to purchase shall be exercisable by written notice to the
selling Holder within the 30-day period described above, specifying the number
of shares of Common Stock to be purchased and the number of shares of Common
Stock, if any, such Investor desires to purchase of any of such shares which are
not subscribed, as contemplated in Section 4(b)(iii).
(iii) In the case of a Transfer of shares of Common
Stock not involving a sale, if the Investors and the Transferring Holder do not
reach agreement on the fair market value thereof, then such fair market value
shall be determined in good faith by an independent and qualified investment
banker or appraisal firm selected by the Board. This determination will be final
and binding upon all parties and persons claiming under or through them.
(b) Right of Co-Sale. If any Investor does not elect
to purchase all of the shares of Common Stock purchasable by it to which the
Notice refers as described in Section 4(a) hereof, then each such Investor shall
have the right, exercisable upon written notice to the selling Holder (the
"Tag-Along Notice") within thirty (30) days of the date of the original Notice
described in Section 4(a), to participate in such Transfer of shares of Common
Stock on the same terms and conditions. The Tag-Along Notice shall indicate the
number of shares of Common Stock the Investor wishes to Transfer under its right
to participate and the number of shares of Common Stock, if any, such Investor
desires to purchase of any of such shares which are not subscribed, as
contemplated in Section 4(b)(iii).
(i) Each Investor may sell all or any part of its Pro
Rata Share of the number of shares covered by the Notice (as reduced by any
purchases pursuant to Section 4(a)).
(ii) If any Investor elects to participate in the
sale pursuant to this Section 4(b), it shall effect its participation in the
sale by delivering to the prospective purchaser one or more certificates,
properly endorsed for transfer, which represent the number of shares of Common
Stock which each Investor elects to sell in consummation of the sale of the
Common Stock pursuant to the terms and conditions specified in the Notice, and
the purchaser shall concurrently therewith remit to each Investor that portion
of the sales proceeds to which each Investor is entitled by reason of its
participation in such sale. To the extent that any prospective purchaser or
purchasers prohibits such assignment or otherwise refuses to purchase shares
from each Investor exercising its rights of co-sale hereunder, the selling
Holder shall not sell to such prospective purchaser or purchasers any Common
Stock unless and until, simultaneously with such sale, the selling Holder shall
purchase such shares from each Investor on the same terms and conditions
specified in the Notice.
(iii) To the extent that any Investor does not elect
to purchase its Pro Rata Share of the Shares of Common Stock to which the Notice
refers as described in Section 4(a) or participate in such Transfer to the
extent of its Pro Rata Share, then each other Investor shall have a right to
either purchase such unsubscribed shares of Common Stock in proportion to such
subscribing Investor's Pro Rata Share (calculated without regard to the
non-subscribing and non-participating Investor's shares) or to participate in
such Transfer to the extent of such unsubscribed shares based on such
subscribing Investor's Pro Rata Share (calculated without regard to the
non-subscribing and non-participating Investor's shares).
(c) Closing if Rights Not Exercised. If the
Investors do not elect to purchase or participate in the sale of all of the
shares of Common Stock to which the Notice refers as provided in Section 4(a),
then the selling Holder may Transfer all (but not less than all) of the Noticed
Securities to any purchaser or transferee named in the Notice at, in the case of
a sale, the price specified in the Notice and on other terms and conditions not
materially more favorable to the transferor than those described in the Notice,
provided that (i) such Transfer is consummated within ninety (90) days of the
date of the Notice to the Investors and (ii) any purchaser or transferee named
in the Notice shall agree to be bound by all the terms and conditions of, and to
take upon itself the undertakings of the transferor pursuant to, this Agreement.
Any proposed Transfer at a price greater than the price specified in the Notice
or on terms and conditions materially more favorable to the transferor than
those described in the Notice, as well as any subsequent proposed Transfer of
any shares of Common Stock by a selling Holder, shall again be subject to the
right of first refusal and the co-sale rights of the Investors and shall require
compliance by the selling Holder with the procedures described in this Section
4.
(d) Excepted Transactions. Notwithstanding anything
contained herein to the contrary, the provisions of this Section 4 shall not
apply to (i) any Transfer to ancestors, descendants or spouse or to a trust for
the benefit of such Persons or a Holder, or (ii) any bona fide gift, (iii) any
Transfer to an entity that is wholly owned, and will remain wholly-owned, by
such Holder (or such Holder and one or more of the individuals referred to in
the preceding clause (i)), or (iv) any sale of Common Stock by a Holder in a
Qualified Offering of the Company; provided that (1) as a condition precedent to
any Transfer made pursuant to one of the exemptions provided in clause (i), (ii)
or (iii), (A) the Transferring Holder shall inform the Investors of such
Transfer or gift prior to effecting it, and (B) the transferee or donee shall
furnish the Investors with a written agreement to be bound by and comply with
all provisions of Sections 2, 3 and 4 and such Transferred shares of Common
Stock shall remain "shares of Common Stock" and "Holder Shares" hereunder, and
such transferee or donee shall be treated as a "Holder" for all purposes of this
Agreement, (2) in the case of a Transfer in trust, such Holder shall become the
trustee or, with such Holder's spouse, a co-trustee of such trust, (3) in the
case of a Transfer not in trust, as a condition precedent to such Transfer such
Holder shall retain an irrevocable proxy to vote the Transferred Common Stock
and (4) in the case of a Transfer described in clause (iii), as a condition
precedent to the Transfer all holders of equity or other ownership interests in
such entity shall enter into an agreement with the Investors, which shall be
mutually satisfactory to the Investors and the transferee, under which the
outstanding equity or other ownership interests in such transferee shall be
subjected to the same restrictions against Transfer that appear in Sections 2, 3
and 4 of this Agreement.
(e) Company Repurchases. This Agreement supersedes
any agreement between the Company and any Investor and any agreement between the
Company and any Holder under which the Company may have to repurchase Common
Stock from Investors or Holders, and, accordingly, Investors' rights under this
Section 4 shall be superior to any rights that the Company may have under any
such agreement.
(f) Transfers in Violation. Any attempted Transfer
of any shares of Common Stock in violation of the provisions of this Agreement
shall be null and void, and the Company shall not in any way give effect to any
such impermissible Transfer.
5. Holders' Non-Competition and Non-Solicitation Covenants.
(a) Each Holder hereby covenants and agrees with the
Company and the Investors that, for the period beginning on the date hereof and
ending on the fifth (5th) anniversary of the Closing Date under the Purchase
Agreement (the "Covenant Period") (provided, however, that such period shall be
extended automatically by and for the duration of any period of time during
which such Holder is in violation of any provision hereof), such Holder shall
not, directly or indirectly, acting alone or as a member of a partnership,
limited liability company or other business entity or as a holder of any
security of any class (other than as holder of less than one percent (1%) of the
outstanding amount of any security listed on a national securities exchange or
designated as a Nasdaq National Market security by the National Association of
Securities Dealers, Inc.) or as an officer, director, partner, employee,
consultant, agent or representative of or as an advisor or lender to any
corporation or other business entity:
(i) engage in any business over the Internet (or any
comparable medium of communication), or within any geographic territory in which
the Company is conducting business during the Covenant Period, which business is
substantially similar to any business conducted by the Company at any time
during the Covenant Period;
(ii) request, induce or attempt to influence any
customer or supplier of the Company at any time during the Covenant Period to
limit, curtail or cancel its business with the Company; or
(iii) request, induce or attempt to influence any
officer, director or employee, of the Company at any time during the Covenant
Period to (x) terminate his, her or its employment or business relationship with
the Company or (y) commit any act that, if committed by Holder, would constitute
a breach of any provision hereof.
(b) The provisions of clauses (i), (ii) and (iii)
above are separate and distinct commitments independent of each of the other
such clauses. Each Holder agrees that neither the Company nor any Investor has
an adequate remedy at law for any breach or threatened or attempted breach by
Holder of the covenants and agreements set forth in Section 5(a) hereof, and,
accordingly, such Holder also agrees that the Company and each Investor may, in
addition to the other remedies that may be available to either of them under
this Agreement or at law, commence proceedings in equity for an injunction
temporarily or permanently enjoining such Holder from breaching or threatening
or attempting any such breach of any covenant or agreement set forth in Section
5(a) hereof, and with respect to any such proceeding in equity, it shall be
presumed that the remedies at law available to the Company and the Investors
would be inadequate and that they would suffer irreparable harm as a result of
the violation of any provision hereof by such Holder. The prevailing party or
parties in any proceeding in equity or at law commenced in respect of this
Agreement shall be entitled to recover from the other party or parties to such
proceeding all reasonable fees, costs and expenses (including reasonable fees
and disbursements of counsel) incurred in connection with such proceeding and
any appeals therefrom.
(c) The parties hereto acknowledge and agree that if
the scope of any covenant set forth in Section 5(a) hereof is deemed by any
court to be overly broad, the court may reduce the scope thereof to that which
it deems reasonable under the circumstances. If any one or more provisions
hereof are held to be invalid or unenforceable, the validity and enforceability
of the remaining provisions shall not be affected thereby.
6. Holders' Confidentiality Covenant.
(a) Each Holder hereby agrees that such Holder will
maintain in confidence and not disclose, divulge or otherwise communicate to
others or use for any purpose, except as may be necessary to perform such
Holder's duties as an employee of the Company, where applicable, any
Confidential Information (as hereinafter defined) except as expressly set forth
in Section 6(c).
(b) As used herein, the term "Confidential
Information" refers to any and all financial, technical, commercial or other
information concerning the business and affairs of the Company, whether prepared
by employees, agents or advisors or the Company or otherwise, that has
heretofore been, or may hereafter be, provided to any Holder, irrespective of
the form or source of the communication, including, without limitation, computer
programs, code, technical information, data, reports, know-how, patent
positioning, financial information, analyses, compilations, studies and business
plans. The term "Confidential Information" does not include information which
(i) at the time of disclosure or thereafter is generally available to or known
by the public otherwise than by reason of a Holder's disclosure thereof in
violation of this Section 6, or (ii) becomes available to a Holder on a
nonconfidential basis from a source other than the Company or its agents,
provided that such Holder, after due inquiry, had no reason to believe that such
source was bound by a confidentiality agreement with the Company.
(c) In the event that any Holder or Person to whom
any Holder furnishes Confidential Information as permitted by this Agreement
receives a request to disclose all or any part of the information contained in
the Confidential Information under the terms of a subpoena, order, civil
investigative demand or similar process issued by a court of competent
jurisdiction or by a governmental body or agency, subject to the following
sentence, such Holder agrees (i) to notify Company immediately of the existence,
terms and circumstances surrounding such a request, (ii) to consult with the
Company on the advisability of taking legally available steps to resist or
narrow such request, (iii) if disclosure of such information is required, to
furnish only that portion of the Confidential Information which, in the opinion
of counsel for such Holder, such Holder is legally compelled to disclose and to
advise Company as far in advance of such disclosure as is possible so that
Company may seek an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Confidential Information, and
(iv) not to oppose actions by Company to obtain an appropriate protective order
or reliable assurance that confidential treatment will be accorded the
Confidential Information. Nothing in this Section 6 shall prevent Holder from
disclosing Confidential Information to his counsel, the court and witnesses in
connection with Holder's enforcement or defense of its rights under this
Agreement and any other agreement entered into in connection with the Purchase
Agreement.
7. Miscellaneous.
(a) Construction. As used in this Agreement, the
masculine, feminine or neuter gender, and the singular or plural shall be deemed
to include the others or other whenever and wherever the context so requires.
(b) Waivers and Amendments. Any provision of this
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively), only by the written consent of (i) as to the Company, only by
the Company by action authorized by the Board, (ii) as to the Investors, only by
vote of both (a) the Investors holding more than fifty percent (50%) in interest
of the Series A Preferred Stock, and any Common Stock issued as a result of all
or any portion thereof, voting as a separate class, and (b) the Investors
holding more than fifty percent (50%) in interest of the Series B Preferred
Stock, and any Common Stock issued as a result of all or any portion thereof,
voting as a separate class, and (iii) as to the Holders, by Holders holding more
than fifty percent (50%) in interest of the Holder Shares held by Holders. Any
amendment or waiver effected in accordance with clause (i), (ii) and (iii) of
this Section 7(b) shall be binding upon the Company, the Investors, and the
Holders and their respective successors and assigns. No waiver by any party of
the breach of any term or provision contained in this Agreement, in any one or
more instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained in the Agreement. The Investors acknowledge that by operation
of this Section Investors holding more than fifty percent (50%) of the
securities described in clause (ii) above will have the right and power to
diminish or eliminate certain rights of the Investors under this Agreement. Each
Investor shall have the absolute right to exercise or refrain from exercising
any right or rights which such Investor may have by reason of this Agreement,
including, without limitation, the right to consent to the waiver of any
obligation under this Agreement and to enter into an agreement for the purpose
of modifying this Agreement or any agreement effecting any such modification,
and such Investor shall not incur any liability to any other Investor with
respect to exercising or refraining from exercising any such right or rights.
(c) Entire Agreement; Assignment of Rights. This
Agreement constitutes the entire agreement among the parties hereto relative to
the subject matter hereof. Any previous agreement among the parties relative to
the specific subject matter hereof is superceded by this Agreement provided,
that nothing herein contained shall in any manner negate any provision of the
Purchase Agreement or any other written agreement referred to in the Purchase
Agreement. This Agreement and the rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding upon, their respective
successors, estates, assigns, legal representatives and heirs.
(d) Notices. All notices, requests, consents and
other communications required or permitted hereunder shall be in writing
(including telecopy or similar writing) and shall be given,
if to the Company to:
Value America, Inc.
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxxxxxxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxx, Chairman and Chief
Executive Officer
Telecopier: (000) 000-0000
with a copy to
Xxxx X. XxXxxxx, Esq.
XxXxxxx Xxxx, A Professional Corporation
000 Xxxx Xxxx Xxxxxx, Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Telecopier: (000) 000-0000
if to any Investor at the address or to the telecopier number
set forth for such Investor on Annex A hereto or if to any
Holder at the address or to the telecopier number set forth
for such Holder under his signature on the appropriate
signature page hereto,
or to such other address or telecopier number as such party may specify for the
purpose by notice to the other party or parties to this Agreement, as the case
may be. A copy of any notice to any Investor shall be given to each other
Investor and a copy of any notice to any Holder shall also be given to each
other Holder. Any notice, request, consent or other communication hereunder
shall be deemed to have been given and received on the day on which it is
delivered (by any means including personal delivery, overnight air courier,
United States mail) or telecopied (or, if such day is not a business day or if
the notice, request, consent or communication is not telecopied during business
hours of the intended recipient, at the place of receipt, on the next following
business day).
(e) Severability. Should any one or more of the
provisions of this Agreement or of any agreement entered into pursuant to this
Agreement be determined to be illegal or unenforceable, all other provisions of
this Agreement and of each other agreement entered into pursuant to this
Agreement, shall be given effect separately from the provision or provisions
determined to be illegal or unenforceable and shall not be affected thereby.
(f) Headings. The headings of the Sections and
paragraphs of this Agreement have been inserted for convenience of reference
only and do not constitute a part of this Agreement.
(g) Choice of Law. It is the intention of the parties
that the internal substantive laws, and not the laws of conflicts, of Virginia
should govern the enforceability and validity of this Agreement, the
construction of its terms and the interpretation of the rights and duties of the
parties.
(h) Expenses. Except as provided below, the Company
shall be responsible for all of its own fees and expenses arising or incurred in
connection with this Agreement and consummation of the transactions contemplated
hereby.
(i) Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, with the same effect as if all parties had signed the same
document. All such counterparts shall be deemed an original, shall be construed
together and shall constitute one and the same instrument.
(j) Term. This Agreement shall commence upon the date
hereof and shall terminate upon the earlier to occur of (x) the tenth
anniversary of the date hereof or (y) the expiration of the underwriters'
lock-up period following the completion of a Qualified Offering.
(k) Further Assurances.
(i) Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable Legal Requirements or
otherwise, to make effective the transactions contemplated by this Agreement.
(ii) If at any time the Investors believe in good
faith that any further action is necessary or desirable on the part of the
Company or any Holder or Holders to carry out the purposes of this Agreement,
each of the Holders and the Company, as the case may be, shall, as requested by
the Investors in writing, take or cause to be taken all such necessary or
convenient action and execute, and deliver and file, or cause to be executed,
delivered and filed, all necessary or convenient documentation.
(l) Counsel. In connection with the transactions
contemplated by this Agreement, the Company has been represented by XxXxxxx
Xxxx, A Professional Corporation ("Counsel"). Each party hereto has reviewed the
contents of this Agreement and fully understands its terms. Each party hereto
other than the Company acknowledges that he or it is fully aware of his or its
right to the advice of counsel independent from that of the Company, that
Counsel has advised him or it of such right and disclosed to him or it the risks
in not seeking such independent advice, and that he or it understands the
potentially adverse interests of the parties with respect to this Agreement.
Each party hereto further acknowledges that no representations have been made
with respect to tax or other consequences of this Agreement or the transactions
contemplated herein to him or it, and that he or it has been advised of the
importance of seeking independent counsel with respect to such consequences.
Each Investor acknowledges that it has not received any information or advice
from, and is not relying upon any statement made by Ullico or Ullico's special
counsel, Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, in entering into or in
connection with this Agreement or the transactions contemplated hereby.
(m) Expenses of Enforcement. If any party seeks to
enforce its rights under this Agreement against another party, the prevailing
party in any arbitration, litigation or dispute shall be entitled to its receive
from the party or parties against which it has prevailed the reasonable fees and
expenses incurred by the prevailing in connection therewith including, without
limitation, the reasonable fees and expenses of counsel, advisors and expert
witnesses.
(n) Further Enforcement Matters. Each party hereby
agrees that each other party shall be entitled to equitable relief, including an
injunction and specific performance, in the event of any breach of the
provisions of this Agreement, in addition to all other remedies available at law
or in equity. Each party further agrees to waive, and to use its best efforts to
cause its officers, directors, employees and agents to waive, any requirement
for the securing or posting of any bond in connection with such remedy. Each
party also hereby irrevocably and unconditionally consents to submit to the
exclusive jurisdiction of the courts of the United States of America located in
the District of Columbia for any actions, suits or proceedings arising out of or
relating to this Agreement or any matter contemplated hereby, and each party
agrees not to commence any action, suit or proceeding related thereto except in
such courts. Each party further agrees that service of any process, summons,
notice or document by United States mail, registered or certified, to its
address set forth or referred to in Section 7(d) shall be effective service of
process for any action, suit or proceeding against the party being served in any
such court. Each party hereby irrevocably and unconditionally waives any
objection to the laying of venue of any action, suit or proceeding arising out
of or relating to this Agreement, in the courts of the United States of America
located in the District of Columbia, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
(o) Authorship of Documents. This Agreement shall not
be construed for or against any party by reason of authorship or alleged
authorship of any provisions hereof or by reason of the status of the respective
parties.
(p) Amendment and Restatement. This Agreement amends
and restates in its entirety the Prior Stockholders Agreement. All provisions
of, rights granted and covenants made in the Prior Stockholders Agreement are
hereby waived, released and terminated in their entirety and shall have no
further force or effect whatsoever. The rights and covenants contained in this
Agreement supercede any and all rights granted or covenants made under the Prior
Stockholders Agreement.
(q) Termination of Buy-Out Option Agreement. The
Company, Ullico and the Holders hereby agree that, upon execution of this
Agreement by all of the parties hereto, that certain Buy-Out Option Agreement,
dated as of December 17, 1997, among the Company, Ullico and the Holders is
hereby terminated and shall have no further force or effect.
(r) Pronouns. As used herein, the masculine, feminine
or neuter gender shall be deemed to include the others whenever the context so
indicates or requires.
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
IN WITNESS WHEREOF, the parties have caused this
Amended and Restated Stockholders Agreement to be duly executed as of the day
and year first above written.
VALUE AMERICA, INC.
By:____________________________________
Xxxxx X. Xxxx, Chairman and
Chief Executive Officer
UNION LABOR LIFE INSURANCE COMPANY
Acting on behalf of its Separate Account P
By:____________________________________
Authorized Officer
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
VULCAN VENTURES INCORPORATED
By:____________________________________
Authorized Officer
UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND
PIPEFITTING INDUSTRY OF THE UNTIED STATES
AND CANADA, GENERAL FUND
By:____________________________________
Authorized Officer
THE XXXXXXX X. AND XXXXXXXX X. XXXXXX
FAMILY FOUNDATION
By:____________________________________
Authorized Officer
RYMAC JOINT VENTURE
By:_______________________________________
Authorized Officer
XXXXXX FAMILY INVESTMENT LIMITED PARTNERSHIP
By:_______________________________________
Authorized Officer
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
XXXXXX INVESTMENTS LIMITED
PARTNERSHIP, a Maryland limited partnership
By: Moloreaux, Inc., its general partner
By:________________________________
Authorized Officer
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
------------------------------------
Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxx XxXxxx
------------------------------------
Xxxxx Xxxxxxxxx
------------------------------------
Xxxxxxx X. XxXxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. X. Xxxxxx
------------------------------------
Xxxxxx Xxxxxxxx
------------------------------------
Xxxx X. Xxxxxxx
------------------------------------
C. Xxxxxxx Xxxxxx
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
YAGEMANN REVOCABLE TRUST,
DATED NOVEMBER 13, 1992
By: __________________________________
Name: ____________________________
Title: ____________________________
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
DAVIDSON FAMILY LIMITED PARTNERSHIP,
a Nevada limited partnership
By:_______________________________________
Xxxxxx X. Xxxxxxxx, General Partner
[SIGNATURE PAGE TO AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT]
HOLDERS:
--------------------------------------
Xxxxx X. Xxxx
Address: 0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
--------------------------------------
Xxx Xxxxxxx
Address: 000 Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
CRYSTAL INVESTMENT, L.L.C.
By:_____________________________________
Authorized Officer
Address: c/o Xxxxx X. Xxxx
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
FROSTINE, L.L.C.
By:_____________________________________
Authorized Officer
Address: c/o Xxx Xxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000
ANNEX A
SCHEDULE OF INVESTORS
Name/Address
'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''
Union Labor Life Insurance Company
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxx,
Senior Vice President
Telecopier: (000) 000-0000
Vulcan Ventures Incorporated
000 000xx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
The United Association of Journeymen and Apprentices of the
Plumbing and Pipefitting Industry of the United States and
Canada,
General Fund
000 Xxxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
The Xxxxxxx X. and Xxxxxxxx X. Xxxxxx
Family Foundation, Inc.
00000 Xxxx Xxxxx
Xxxxx Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Partner
Telecopier: (000) 000-0000
Xxxxxx Investments Limited Partnership
00000 Xxxx Xxxxx
Xxxxx Xxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Partner
Telecopier: (000) 000-0000
Rymac Joint Venture
0000 Xxx Xxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx XxXxxxxx
Telecopier: (000) 000-0000
Xxxxxx Family Investment Limited Partnership
0000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Davidson Family Limited Partnership
c/o Mr. Xxxxxx Xxxxxxxx
Xxxxxx Xxxxx
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Xxxxxxx X. Xxxxx
c/o Vulcan Ventures Incorporated
000 000xx Xxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Xxxxxx XxXxxx
0000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Telecopier: (000) 000-0000
Xxxxx Xxxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
Xxxxxxx X. XxXxxxxxx
0000 Xxx Xxxxxxxx Xxxxx
XxXxxx, XX 00000
Telecopier: (000) 000-0000
Xxxxxxx X. Xxxxxx
Manatt Xxxxxx & Xxxxxxxx
0000 X Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Xxxxxx X.X. Xxxxxx
c/o Hawkes Xxxxxxx Xxxxxxx & Co., Ltd.
00000 Xxx Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
(000) 000-0000
Xxxxxx Xxxxxxxx
c/o X.X. Xxxxxxxxxx & Co., Inc.
00 Xxxx Xxxxx, Xxxxxx Xxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Xxxx X. Xxxxxxx
0000 Xxxxxxxx Xxxxx, XX
Xxxxxxxxxx, X.X. 00000
Telecopier: (000) 000-0000
C. Xxxxxxx Xxxxxx
0000 Xxxxx Xxxx
XxXxxx, XX 00000
Telecopier: (000) 000-0000
Yagemann Revocable Trust,
Dated November 13, 1992
0 Xxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
VALUE AMERICA, INC.
------------------------------------------
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
------------------------------------------
Dated as of June 26, 1998
TABLE OF CONTENTS
Page
1. Definitions...............................................................................2
2. Covenant Against Certain Transfers........................................................3
3. Legend on Certificates....................................................................3
4. Investors' Rights of First Refusal and Co-Sale Rights....................................3
(a) Rights of First Refusal...........................................................3
(b) Right of Co-Sale..................................................................4
(c) Closing if Rights Not Exercised...................................................5
(d) Excepted Transactions.............................................................6
(e) Company Repurchases...............................................................6
(f) Transfers in Violation............................................................6
5. Holders' Non-Competition and Non-Solicitation Covenants...................................7
6. Holders' Confidentiality Covenant.........................................................8
7. Miscellaneous.............................................................................9
(a) Construction......................................................................9
(b) Waivers and Amendments............................................................9
(c) Entire Agreement; Assignment of Rights...........................................10
(d) Notices..........................................................................10
(e) Severability.....................................................................11
(f) Headings.........................................................................11
(g) Choice of Law....................................................................11
(h) Expenses.........................................................................11
(i) Counterparts.....................................................................11
(j) Term.............................................................................11
(k) Further Assurances...............................................................11
(l) Counsel..........................................................................12
(m) Expenses of Enforcement..........................................................12
(n) Further Enforcement Matters......................................................12
(o) Authorship of Documents..........................................................13
(p) Amendment and Restatement........................................................13
(q) Termination of Buy-Out Option Agreement..........................................13
(r) Pronouns.........................................................................13
