EXHIBIT 4.2
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of May 7, 1998 among TECHNOLOGY HORIZONS CORP., A
Delaware corporation (the "Corporation"), and those stockholders of the
Corporation who are signatories of the Agreement (the "Stockholders").
WHEREAS, the authorized capital stock of the Corporation consists of
Twenty Million (20,000,000) shares of Common Stock, par value $.0001 per
share (the "Stock"); and
WHEREAS, the Stockholders further desire that the Stockholders and
the Corporation be bound by the terms of this Agreement; and
NOW THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, and other consideration, receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. DISPOSITION OF STOCK
1.1 GENERAL. Except as set forth in this Agreement, no Stockholder
shall dispose of any portion of the Stock held by such Stockholder on the
date hereof, as set forth on Exhibit A hereto, and any successor shares
thereto (the "Present Stock").
1.1 RESTRICTION ON THE DISPOSITION OF A STOCKHOLDER'S PRESENT STOCK
DURING A STOCKHOLDER'S LIFETIME. (a) Subject to Section 1.7, a Stockholder
desiring to dispose of his Present Stock (the "Selling Stockholder") during
his lifetime must first obtain the written consent of all of the other
Stockholders (the "Non-Selling Stockholders").
(b) In the absence of such consent, the party desiring to
dispose of this Present Stock shall give to the Corporation and the Non-Selling
Stockholders written notice of his intention to dispose of his Present Stock in
the Corporation (the "Notice"). Subject to the provisions of Section 1.6 below,
the Selling Stockholder who intends to dispose of his Present Stock must dispose
of all of his Present Stock.
(c) Upon the terms and conditions provided for herein, the
Non-Selling Stockholder(s) shall have the right to purchase the Selling
Stockholder's Present Stock (the "Stockholders' Right). Such Present Stock shall
be acquired on a pro rata basis commensurate with the Non-Selling Stockholders'
respective ownership in the Corporation, upon the terms and conditions provided
for herein. The Stockholders' Right may be exercised by the Non-Selling
Stockholder giving written notice to the Selling Stockholders and to the
Corporation within thirty (30) days of the Non-Selling Stockholders' receipt of
the notice required by Section 1.2(b) above. If less than all of the Non-Selling
Stockholders elect to purchase the Present Stock, then all of the Selling
Stockholder's stock shall be offered to those Non-Selling Stockholders who have
elected to purchase in the proportion that each electing Non-Selling
Stockholder's ownership interest bears to all of the electing Non-Selling
Stockholders' interest in the Corporation.
(d) In the event that any portion of the Selling Stockholder's
Present Stock is not being purchased by the Non-Selling Stockholders pursuant to
Section 1.2 (c) above, then the Corporation shall have the right to purchase
that portion of the Present Stock of the Selling Stockholder which is not being
purchased by the Non-Selling Stockholders (the "Corporation's Right"). The
Selling Stockholder shall not participate , in any capacity, in the
Corporation's decision to exercise the Corporation's Right under this or any
other section in this Agreement. The Corporation's Right may be exercised by the
Corporation by giving written notice to the Selling Stockholder and to the
Non-Selling Stockholders within fifteen (15) days of the waiver to the
expiration of the Stockholders' Right, whichever is earlier.
(e) In the event that neither the Non-Selling Stockholders nor
the Corporation elects to purchase all of the Selling Stockholder's Present
Stock in the manner set forth in
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Sections 1.2(c) and (d) above, then the Selling Stockholder thereafter may
dispose of all, but not less than all, of his Present Stock to any third
party (an "Outside Party") on the same terms and conditions as in the
Offering Notice (as defined below); provided; however, that no sale of any
Present Stock to an Outside Party shall be consummated until and unless (i)
the Selling Stockholder has offered, in writing, to the Non-Selling
Stockholders and the Corporation the opportunity to purchase all of his
Present Stock upon the same terms and conditions as the bona fide offer of an
Outside Part, contained in a notice written in sufficient detail (the
"Offering Notice") (which offer may be exercised by the Non-Selling
Stockholders and/or the Corporation in the manner and within the same time
periods provided in Section 1.2(c) and (d) above; (ii) the Offering Notice
shall expire unexercised; and (iii) the Outside Party agrees to be bound by
and subject to this Agreement to the fullest extent possible and delivers
such consents and other documents as may be necessary, in the opinion of
counsel to the Corporation, for the Outside Party to become so bound and
subject. If the Selling Stockholder fails to transfer his Present Stock to
the Outside Party within sixty (60) days following the expiration of the
Offering Notice, such Present Stock shall agin become subject to the
restrictions of the Agreement.
(f) Notwithstanding anything to the contrary, each Stockholder
agrees to sell and/or transfer his Present Stock in the event the holder(s) of a
majority of the outstanding Present Stock receive and accept a bona fide third
party offer to acquire not less than a majority of the outstanding Stock of the
Corporation or to merge with such third party. The purchase price per share
payable to each such Stockholder and the others terms of such transaction with
respect to the shares covered by such exercise shall be identical to the
purchase price per share
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and the other terms of the transaction between the holder(s) of a majority of
shares and the third party.
(g) The purchase price for the Present Stock being sold under
Sections 1.2(c)-(d) above, the manner of payment thereof and the delivery of the
Present Stock shall be as set forth in Section 1.4 below. The purchase price for
the Present Stock sold under Section 1.2(e) above and the manner of payment
thereof shall be set forth in the Offering Notice.
(h) Notwithstanding anything contained in this Agreement to
the contrary, any Stockholder that is a corporate entity may, without consent,
transfer its Stock to its stockholders or (if the sole asset of the corporate
entity is Stock of the Corporation and such corporate entity has no liabilities)
merge into the Corporation in a share exchange.
1.3 CLOSING. In the event the purchaser of any Stock is any or all of
the non-Selling Stockholders or the Corporation, then the closing shall be held
at the Principal Office of the Corporation, at a meeting of the Stockholders, on
the date which thirty (30) days after the exercise of the Stockholders' Right or
the Corporation's Right, whichever is exercised last or pursuant to the Offering
Notice, as appropriate.
1.4 PURCHASE PRICE AND MANNER OF PAYMENT. (a) For all purpose of this
Agreement, except Section 1.2(e) above, the purchase price of a Stockholder's
Present Stock shall be determined by the following formula: the book value of
the Corporation (determined by the Corporations's accountants in accordance with
generally accepted accounting principles which reflect minimal, if any, value
for the Corporation as a going concern and for any intangibles), multiplied by
the percentage of Present Stock owned by the Selling Stockholder (the "Purchase
Price").
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(b) The Purchase Price shall be paid at the closing (as
determined under Section 1.4 above) in the following manner: not less than ten
percent (10%) of the Purchase Price in cash or certified check of a bank or
trust company, which is a member of the New York Clearing House, at the Closing,
and the balance of the Purchase Price by delivery to the Selling Stockholder of
a ten (10) year, self-amortizing, non-negotiable promissory note. The note shall
bear interest at a rate per annum equal to the prime rate publicly announced by
Citibank, N.A. on the date of the Closing at its principal lending office in the
Borough of Manhattan, City and State of New York.
(c) The provisions of this Section 1.4 shall not be applicable
to a sale occurring under Section 1.2(e) above, which shall be governed by the
terms of the Offering Notice.
1.5 NO EFFECT. The Corporation shall not be required to recognize as
valid or give effect to any mortgage, pledge, hypothecation, security interest,
assignment, transfer, sale or other disposition in violation of the provisions
of this Article 1. Any act in compliance with this Agreement shall be void and
of nor effect expect as otherwise required by judicial process of law.
1.6 TRANSFER TO PERMITTED TRANSFEREES. Notwithstanding anything to the
contrary contained in this Article 1, each Stockholder may dispose, by gift
during his lifetime, or by his Last Will and Testament upon his death, any
portion or all of his Present Stock in the Corporation, without the consent of
other Stockholders, to the following permitted transferees ("Permitted
Transferees"): (i) one or more members of his Family Members (as hereinafter
defined), or (ii) one or more trusts for the benefit of one or more Family
Members (collectively,
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the "Trusts"); provided, however, that all such Permitted Transferees shall
expressly agree, in writing, to be bound by the terms of this Agreement.
Moreover, the trustees and beneficiaries of all the Trusts (or the legal
representative of any beneficiary) shall expressly agree that any transfer
from such Trust shall be governed by this Agreement. For purposes of this
Agreement, the term "Family Members" shall be defined to consist of that
Stockholder's spouse and issue.
1.7 INITIAL PUBLIC OFFERING. Upon the closing of an initial public
offering of Stock in the Corporation, all restrictions on the transfer of a
Stockholder's Stock pursuant to this Article 1 shall terminate.
2. NOTICES.
2.1 All notices which are provided for under any of the
provisions of this Agreement shall be in writing and shall be delivered by hand
or sent by certified or registered mail, return receipt requested or by a
nationally recognized overnight courier. Any such notice, if sent by hand, shall
be deemed to have been delivered upon receipt; if sent by mail, shall be deemed
to have been sent on and as of the date when the same was deposited for mailing,
properly addressed with postage prepaid, in a United States post office or post
office mailbox, and shall be deemed to have been delivered on the date of
receipt appearing on the return receipt requested or, if refused, on the date of
refusal, or, if undeliverable, on the third business day following the date it
is sent; and if sent by courier, shall be deemed to have been delivered two
business days after providing to the such courier for priority delivery. All
notices provided to be sent or delivered to the Stockholders shall be addressed
to them at their respective addresses appearing on the record of stockholders of
the Corporation, unless any of them shall give to the Corporation written notice
of some other address which shall thereafter be used for the purpose
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of this Agreement. All notices provided to be sent or delivered to the
Corporation shall be addressed to it at its principle executive offices to
the attention of the Secretary of the Corporation.
3. TERM.
3.1 This Agreement is effective when signed by all of the
parties hereto and shall terminate on the earliest of:
(a) the date all Stockholders have executed a written
agreement terminating this Agreement,
(b) the date the Corporation liquidates.
(c) the date all the issued and outstanding stock of the
Corporation is registered in the name of one person
or entity, and
(d) the closing date of an initial public offering of the
Corporation's Common Stock.
4. MANAGEMENT.
4.1 At any meeting of the director(s) or Stockholders of the
Corporation at which director(s) of the Corporation are proposed to be elected
or removed, the Stockholders shall cast their votes for Xxxxxx X. Xxxxxxxx, Esq.
as director unless or until such time as he resigns such position.
5. MISCELLANEOUS.
5.1 Each Stockholder agrees that the certificates representing
shares of Common Stock held by him may have stamped or printed thereon on
appropriate legend referring to the terms and restrictions contained in this
Agreement.
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5.2 The terms "Stock", "Present Stock" and "shares" as used
herein shall include all additional securities issued with respect thereto
pursuant to any stock dividend, stock-split, recapitalization, merger or
consolidation.
5.3 This Agreement shall be binding upon and inure to the
benefit of the parties hereto, their respective heirs, legal representative,
successors and/or assigns, including permitted transferees of shares of Stock
originally owned by a Stockholder.
5.4 This Agreement may be executed in several
counterparts, each of which shall be deemed an original.
5.5 This Agreement shall construed in accordance with and
governed by the laws of the State of New York without regard to the choice or
conflict of law provisions thereof, and shall constitute the entire agreement
among the partes hereto with respect to the subject matter hereof. There are
merged herein all prior and collateral representations and agreements in
connection with the subject matter hereof.
5.6 None of the terms or conditions of this Agreement may be
changed, modified, waived or canceled except by a writing signed by all the
parties hereto, specifying such change, modification, waiver or cancellation. A
waiver at any time of compliance with any of the terms and conditions of the
Agreement shall not be considered a modification, cancellation or waiver of such
terms and conditions, of any preceding or succeeding breach thereof, unless
expressly so stated.
5.7 All pronouns used in the Agreement shall include all
genders. This singular shall include the plural and vice versa.
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5.8 Each of the Stockholders represents and warrants that he
has (i) carefully read this Agreement, (ii) had an opportunity to consult with
independent legal counsel with respect to this Agreement and (iii) entered into
this Agreement of his won free will.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
TECHNOLOGY HORIZONS CORP.
By: ______________________________
Name:
Title:
STOCKHOLDERS
CREATIVE MUSIC PRODUCTS CORP.
By: ______________________________
Name:
Title:
___________________________________
XXXXXX XXXXXXXX
___________________________________
XXXX XXXXX
___________________________________
XXXXX XXXX
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___________________________________
XXXXXX XXXXXXXX
___________________________________
XXXX XXXXXXXX
___________________________________
XXXX XXXXX
___________________________________
XXXX XXXXX
___________________________________
XXXX XXXXX
___________________________________
XXXX XXXXX
___________________________________
XXXXXXXXX XXXXX
___________________________________
XXXXXX XXXXXX
___________________________________
XXXXXXX XXXXXXXXXX
___________________________________
XXX XXXXX
___________________________________
XXXXXX XXXXXX
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___________________________________
XXXXXXXX/XXXXXX
___________________________________
XXXXXXXXX XXXXXXX XXX
___________________________________
XX. XXXXXX XXXXXX
___________________________________
XXXXXX XXXXXXXX
___________________________________
XXXX XXXXXX
___________________________________
XXX XXXXXXXX
___________________________________
XXX XXXXXXXX
___________________________________
XXXXXX XXXXXXXX
___________________________________
XXXXX XXXXXX
___________________________________
XXXXXXX XXXXXXXXX
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___________________________________
XXXXX XXXXXXXXXX
___________________________________
XXXXX XXXXXXXX
___________________________________
XXXXX XXXXXXX
___________________________________
NEWBRIDGE COVERAGE
___________________________________
XXXXXXXX XXXXXX
___________________________________
XXXXXXXX CRT
___________________________________
XXXXXX CRT
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EXHIBIT A
TECHNOLOGY HORIZONS CORP.
SHAREHOLDER NUMBER OF SHARES
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1. CREATIVE MUSIC 1,210,787.48
2. XXXXXX XXXXXXXX 491,193.43
3. XXXX XXXXX 716,743.96
4. XXXXX XXXX 411,618.55
5. XXXXXX XXXXXXXX 71,674.40
6. XXXX XXXXXXXX 143,379.61
7. XXXX XXXXX 43,357.51
8. XXXX XXXXX 43,357.51
9. XXXX XXXXX 43,357.51
10. RONA & XX XXXXX 462,266.82
11. XXXXXX XXXXXX 288,238.68
12. XXXXXXX XXXXXXXXXX 285,505.80
13. XXX XXXXX 142,157.01
14. XXXXXX XXXXXX 72,177.82
15. XXXXXXXX/XXXXXX 42,696.42
16. GUADILOUPE SEGUER 71,592.20
17. XX. XXXXXX 71,623.03
18. XXXXXX XXXXXXXX 71,561.38
19. XXXX XXXXXX 142,9788.93
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20. XXX XXXXXXXX 71,160.70
21. XXX XXXXXXXX 28,525.92
22. XXXXXX XXXXXXXX 14,201.32
23. XXXXX XXXXXX 283,903.06
24. XXXXX XXXXXXXXX 71,309.67
25. XXXXX XXXXXXXXXX 71,309.67
26. XXXXX XXXXXXXX 142,609.07
27. XXXXX XXXXXXX 71,561.38
28. NEWBRIDGE COV. 71,304.53
29. XXXXXXXX XXXXXX 71,227.48
30. XXXXXXXX CRT 85,294.21
31. XXXXXX CRT 191,384.91
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6,000,000.00
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