STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (the "Agreement") made and entered into
this 31st day of January, 1998, by and among Xxxxxxx Xxxxxx, an adult individual
residing at ______________________ New York, New York (the "Stockholder") and
Xxxx Xxxxxxxxxx an adult individual residing at at 00 Xxxx Xxxxx, Xxxxxxxxx, Xxx
Xxxxxx 00000 ("Xxxxxxxxxx").
WITNESSETH:
WHEREAS, Stockholder owns 248,372 shares (the "Shares") of Common Stock
in Global Telecommunication Solutions, Inc. ("GTS"), a Delaware corporation; and
WHEREAS, following the completion of the Merger and Reorganization (the
"Merger") of Centerpiece Communications, Inc. into a wholly owned subsidiary of
GTS, Xxxxxxxxxx will own approximately 401,284 Shares of Common Stock in GTS;
WHEREAS, as a part of the merger and reorganization agreement (the
"Merger Agreement"), the Stockholder has agreed, subject to the terms and
conditions set forth herein, that Xxxxxxxxxx shall be entitled, at his sole and
exclusive option and expense, to participate in any private sale of Shares by
Stockholder pursuant to the formula set forth herein; and
WHEREAS, both Stockholder and Xxxxxxxxxx acknowledge and agree that the
rights being acquired by Xxxxxxxxxx herein are material to Xxxxxxxxxx'x to the
Merger Agreement and are in addition to any sales right Xxxxxxxxxx may have
under the Merger Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and for other valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually agreed by and
between the parties to this Agreement as follows:
1. RIGHT TO PARTICIPATE.
(a) NOTICE. In the event Stockholder receives a bona fide offer to
purchase all or any part of his Shares or proposes to sell all or any part of
his Shares in a private transaction (the "Offer") from or to another person or
entity (the "Offeror"), and Stockholder accepts such Offer, then Stockholder
shall give written notice to Xxxxxxxxxx of his intention to sell such Shares.
Stockholder shall provide such notice at least fifteen (15) days prior to the
closing of the sale and the notice shall include all relevant terms of the sale,
including without limitation: (i) the name, address and telephone number of the
Offeror, (ii) the date on which the proposed sale will occur, (iii) the number
of shares being sold by Stockholder, (iv) a description of the consideration to
be received for the shares which are
the subject of the Offer, (v) all other material terms and conditions of sale
and (vi) the proposed date for closing the sale.
(b) TAG ALONG RIGHTS. Subject to the share limitation set forth
in subsection (c) below, Xxxxxxxxxx shall have the right to include shares of
GTS Common Stock owned by him (and acquired as a part of the Merger) in the sale
of Stockholder's Shares on the same terms and conditions to be received by the
Stockholder. Xxxxxxxxxx may exercise his right herein by providing written
notice to the Stockholder within Five (5) days after the date he receives notice
from Stockholder pursuant to subsection (a) above. In the event Xxxxxxxxxx
participates in any such sale, Xxxxxxxxxx shall be responsible for all of his
costs and expenses associated with his participation in such private sale.
(c) EXTENT OF PARTICIPATION. During the first year following the
date of this Agreement, Xxxxxxxxxx shall have the right to sell one share of GTS
Common Stock (acquired as a part of the Merger) for each two Shares being sold
by Stockholder in any private transaction. During the second year of the Term of
this Agreement, Xxxxxxxxxx shall have the right to participate equally in any
such private sale of Shares by the Stockholder by selling one share (acquired as
a part of the Merger) for each share sold by the Stockholder.
(d) OTHER SALES. Notwithstanding anything contained herein to the
contrary, the Stockholder shall have the right, without any obligation to
Xxxxxxxxxx under this Agreement, to (i) sell all or any number of Shares on any
nationally recognized exchange; (ii) convey Shares as a gift; (iii) transfer
Shares to family members or to any entity controlled by a family member of
Stockholder.
3. TERM. The term of this Agreement shall commence on the date of this
Agreement and shall continue for a period of two years after the date of this
Agreement (the "Term").
4. TERMINATION. This Agreement shall automatically terminate upon the
occurrence of any one of the following events:
(a) By the mutual agreement of Xxxxxxxxxx and Stockholder; or
By the dissolution and winding up of the Company; or
In the event Xxxxxxxxxx breaches a material term of the of the Merger
Agreement; or
The expiration of the Term.
5. GENERAL PROVISIONS.
(a) INTERPRETATION. This Agreement shall be considered as having
been entered into in the State of New York, and shall be construed pursuant to
the laws of the
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State of New York. In case any one or more of the provisions of this Agreement
or the application thereof shall be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
hereof and any other application thereof shall in no way be affected or
impaired. No provision of this Agreement shall be construed against a party
because such party or its representatives drafted such provision.
(b) NOTICES. Any notice required or permitted to be given under
this Agreement shall be sufficient if in writing, and if sent by Federal Express
or similar reputable overnight courier service, to the addresses set forth
below.
If to the Stockholder: Xxxxxx Xxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
With a copy to: Xxxxxxxx Mollen & Xxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Facsimile (000) 000-0000
If to Xxxxxxxxxx: Xxxx Xxxxxxxxxx
00 Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Marked "Personal and Confidential"
with a copy to: Technology Law Group, LLC
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
with a copy to: Xxxxxx & Xxxxx, LLP
000 X. Xxxxxxxx Xxxx.
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. XxXxxxxxxx, Esq.
Facsimile: (000) 000-0000
Any notice hereunder shall be effective upon actual receipt by the party to whom
it is addressed in accordance.
(c) BINDING EFFECT. This Agreement is binding upon and inures to
the benefit of the parties hereto, their respective successors and assigns.
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(e) FURTHER ACTIONS. Each of the parties shall take, such further
actions as may be reasonably necessary to give effect to the terms of this
Agreement.
(f) AMENDMENT. This Agreement may be amended or altered only by
an instrument in writing signed by all the parties hereto.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all parties hereto had signed the same
document.
(h) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in New York without reference to the choice
of law principles. Each party hereby submits to the exclusive jurisdiction of
the courts (city, state and federal) located in the County of New York, State of
New York, for any action, proceeding or claim brought by any other party to
enforce the provisions of this Agreement.
(i) EXPENSES. All accounting, legal and other costs and expenses
incurred in connection with this Agreement and the transactions contemplated by
this Agreement shall be paid by the party incurring those fees, costs and
expenses.
(j) SEVERABILITY. The invalidity or unenforceability of any one
or more of the words, phrases, sentences, clauses, or sections contained in this
Agreement shall not affect the validity or enforceability of the remaining
provisions of this Agreement or any part of any provision, all of which are
inserted conditionally on their being valid in law, and in the event that any
one or more of the words, phrases, sentences, clauses or sections contained in
this Agreement shall be declared invalid or unenforceable, this Agreement shall
be construed as if such invalid or unenforceable word or words, phrase or
phrases, sentence or sentences, clause or clauses, or section or sections had
not been inserted or shall be enforced as nearly as possible according to their
original terms and intent to eliminate any invalidity or unenforceability. If
any invalidity or unenforceability is caused by the length of any period of time
or the size of any area set forth in any part of this Agreement, the period of
time or area, or both, shall be considered to be reduced to a period or area
which would cure the invalidity or unenforceability.
(k) ATTORNEY'S FEES. In the event of any litigation, including
appeals, with regard to this Agreement, the prevailing party shall be entitled
to recover from the non-prevailing party all reasonable fees, costs, and
expenses of counsel (at pre-trial, trial and appellate levels).
(l) ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties and supersedes all previous verbal and written
agreements, representations or warranties of any kind made by or between the
parties.
(m) AUTHORITY AND CONSENTS. Each person executing below
represents that he has the right, power, legal capacity, and authority to bind
himself to perform the
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obligations under this Agreement and that no approvals or consents of any other
person or entities are necessary.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above stated.
XXXXXXXXXX
By:________________________________
Xxxx Xxxxxxxxxx
THE STOCKHOLDER
By:________________________________
Xxxxxxx Xxxxxx
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