EXHIBIT 10.13
UNVEIL TECHNOLOGIES, INC.
STOCKHOLDERS AGREEMENT
AGREEMENT made as of the 7th day of March, 2001, by and among Unveil
Technologies, Inc., a Delaware corporation (the "Company"), the persons
or entities listed as Common Stockholders on Schedule A hereto (each, a
"Stockholder") and the persons or entities listed as Preferred
Stockholders on Schedule A hereto (each a "Preferred
Stockholder").
WHEREAS, the Stockholders are holders of an aggregate of 7,499,999
shares of the Company's common stock, $.001 par value per share ("Common
Stock") as set forth on Schedule A hereto;
WHEREAS, the Preferred Stockholders are acquiring an aggregate of up to
3,000,000 shares of Series A Convertible Preferred Stock, par value $.001 per
share (the "Preferred Stock"), pursuant to the terms and conditions of a
Series A Convertible Preferred Stock Purchase Agreement, dated as of the date
hereof, between the Company and such persons or entities (the "Purchase
Agreement"); and
WHEREAS, it is a condition to the obligations of the Preferred
Stockholders under the Purchase Agreement that this Agreement be executed by the
parties hereto, and the parties are willing to execute this Agreement and to be
bound by the provisions hereof;
NOW, THEREFORE, in consideration of the foregoing, the agreements set
forth below, and the parties' desire to provide for continuity of ownership of
the Company to further the interests of the Company and its present and future
stockholders, the parties hereby agree with each other as follows:
1. Certain Defined Terms. As used in this Agreement, the
following terms will have the following respective meanings:
(a) "Stock" will mean and include all shares of Common
Stock, and all other securities of the Company which may be issued in
exchange for or in respect of shares of Common Stock (whether by way of
stock split, stock dividend, combination, reclassification,
reorganization, or any other means). Stock owned by a Preferred
Stockholder will also mean and include as the context may require (i)
all of the Preferred Stock held by such person and (ii) all of the
Common Stock which a Preferred Stockholder has the right to acquire
from the Company upon the conversion, exercise or exchange of any
warrants or other securities of the Company then owned by such
Preferred Stockholder.
(b) "Shares" will mean and include all shares of Stock
now owned or hereafter acquired by (i) a Stockholder, or (ii) a
Preferred Stockholder.
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2. Restrictions on Transfer of Shares Held by Stockholders.
(a) Voluntary Transfers. A Stockholder will not sell,
pledge or otherwise dispose of any Shares of the Company now owned or
hereafter acquired except pursuant to a sale in accordance with the
following terms:
(i) The Stockholder (the "Selling Stockholder") will
obtain a bona fide unconditional, irrevocable written offer from an
offeror (the "Outside Offeror") to purchase all or a portion of
the Selling Stockholder's Shares (the "Offered Shares") for cash
at a stated price (the "Outside Offer"). The Outside Offer will
contain substantially all the provisions set forth on Exhibit A
hereto.
(ii) The Selling Stockholder will offer to sell all of the
Offered Shares to the Company, the other Stockholders and the Preferred
Stockholders (such other Stockholders and the Preferred Stockholders
are collectively referred to herein as the "Offeree Holders") by
delivering to the Company a copy of the Outside Offer and a written
offer to sell the Offered Shares on the terms contained in the Outside
Offer.
(iii) Any Offered Shares as to which such offer is not
accepted by the Company or the Offeree Holders within thirty (30) days
after effective delivery to the Company of the Outside Offer pursuant
to Section 12 hereof may be sold by the Selling Stockholder to the
Outside Offeror during the next ninety (90) days on the terms contained
in the Outside Offer.
(b) Transfers in the Event of Death of a Stockholder.
In the event of a Stockholder's death, his Shares may be transferred to
his spouse, parents, siblings or issue (each a "Relative") or to
a trust for the benefit of any Relative pursuant to the deceased
Stockholder's will or the laws of descent and distribution; provided,
however, that such Relative first becomes a party to this Agreement.
In the event the deceased Stockholder's Shares have not
previously been transferred pursuant to the previous paragraph, the
executor, administrator or other representative of such Stockholder's
estate (the "Executor") will, within ninety (90) days of death
or his appointment, whichever is later, offer to sell all of such
Shares to the Company and the Offeree Holders by delivering to the
Company a written offer to sell such shares at their fair market value
determined under Section 2(e). Any Shares as to which such offer is not
accepted by the Company within ninety (90) days after effective
delivery of such offer pursuant to Section 12 hereof to the Company or
the Offeree Holders may be transferred by the Executor, but only to a
transferee who becomes a party to this Agreement.
(c) Transfers by Operation of Law or in Violation of
Agreement. If a Stockholder is subject to a transfer of his Shares
by any bankruptcy or insolvency law
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or proceeding, any divorce proceeding or otherwise by operation of law
(other than by death, in which case the provisions of Section 2(b)
hereof apply), or if any transfer of Shares is made or attempted
contrary to the provisions of this Agreement or if an offer to sell
Offered Shares is not delivered to the Company as required by this
Agreement promptly after receipt of written notice from the Company
that such offer has not been made as required, the Company and the
Offeree Holders will have the right to purchase any or all of such
shares from the Stockholder, his legal representative or his
transferees at any time before or after the transfer, at the price, if
any, paid for or proposed to be paid for such Shares or for fair market
value as determined under Section 2(e), whichever is less.
The Stockholder acknowledges that a breach of his obligation
relating to transfers will cause irreparable harm to the Company and
the Offeree Holders that will be difficult to quantify and for which
money damages would be inadequate. As a result, the Stockholder agrees
that in the event of such a breach or threat of such a breach the
Company and the Offeree Stockholders may, in addition to any other
legal or equitable remedies they may have, enforce their respective
rights by actions for specific performance (to the extent permitted by
law), without the necessity of posting a bond, and the Company may
refuse to recognize any transferee as one of its shareholders for any
purpose, including, without limitation, for purposes of dividend and
voting rights and rights to retransfer any interest whatsoever in the
Shares so acquired until all applicable provisions of this Agreement
have been complied with.
(d) Transfers in General. The Company will have the
right to determine whether to purchase any or all of the Shares
available for purchase under Sections 2(a), (b) or (c). Promptly after
a determination by the Company not to purchase all of such Shares, the
Company will make the right to purchase any of such Shares it does not
purchase available to the Offeree Holders pro rata on the basis of the
relative number of shares of Common Stock owned by each (or, in the
case of any Preferred Stock owned by Offeree Stockholders, based on the
number of shares of Common Stock into which such Preferred Stock is
then convertible), or on such other basis as the Board of Directors of
the Company may determine. In addition, each Offeree Holder will have a
right of oversubscription such that if any Offeree Holder does not
agree to purchase its pro rata share, the other Offeree Holders will,
among them, have the right to purchase up to the balance of the Shares
of the Selling Stockholder.
(e) Fair Market Value. The fair market value of the
shares subject to purchase pursuant to Sections 2(b) or (c) will be
jointly determined by the seller and the Company or, if they are unable
to agree, by such other appraiser as the seller and the Company may
jointly choose. The Company and the seller will each bear one-half
(1/2) of the fees and expenses arising out of the appraisal.
(f) Closing; Tenders. The acceptance of any offer or
exercise of any right to purchase hereunder will be by notice given in
accordance with the provisions of
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Section 12 hereof and will specify a date of closing not earlier than
ten (10) business days nor later than fifteen (15) business days after
the effective delivery of such notice. At the closing, the purchaser
will pay the purchase price by certified or bank cashier's check.
Certificates for the Shares to be purchased, duly endorsed or
accompanied by duly executed stock powers, in each case with signatures
guaranteed, will be delivered at the closing by the seller. In
addition, the purchaser may reasonably request waivers of any tax liens
and evidence of good title and authority of any representative before
tendering payment.
3. Restrictions on Transfer of Shares Held by Preferred
Stockholders. Preferred Stock shall be transferable only upon satisfaction
of the applicable conditions specified in this Section 3 or unless sold in an
offering registered under the Securities Act or pursuant to an exemption from
the registration requirements of the Securities Act. Prior to any transfer of
any Preferred Stock other than pursuant to an effective registration statement
under the Securities Act, the holder thereof will give written notice to the
Company of such holder's intention to effect such transfer, describing in
reasonable detail the manner of the proposed transfer. If any such holder
delivers to the Company (a) an opinion of counsel addressed to the Company, in
form and substance reasonably acceptable to the Company, to the effect that the
proposed transfer may be effected without registration under the Securities Act
and (b) the written agreement of the proposed transferee to be bound by all of
the terms and conditions of this Agreement applicable to the Preferred
Stockholders, such holder shall thereupon be entitled to transfer such Preferred
Stock in accordance with the terms of this Agreement and the notice delivered by
such holder to the Company. Each certificate representing such shares issued
upon or in connection with such transfer shall bear appropriate restrictive
legends required by the Securities Act and the Delaware General Corporation Law,
in each case unless the opinion delivered pursuant to this Section 3 shall state
that such restrictions are no longer required in order to assure compliance with
the Securities Act. Whenever any of such restrictions shall terminate as to any
shares of Preferred Stock, the holder thereof shall be entitled to have new
certificates issued with the legends removed and the restrictions on transfer in
this Section 3 shall no longer apply.
4. Exception to Restrictions, Waiver. The Company by vote of its
Board of Directors, which vote includes a majority of the Directors designated
by the Preferred Stockholders (as provided in Section 5 hereof), may exempt any
proposed transfer of Shares by a Stockholder from the terms of this Agreement on
such conditions as the Board of Directors may deem appropriate. Any Stockholder
or Preferred Stockholder by written consent may waive its respective rights
hereunder either generally or with respect to specific transfers. The provisions
of Section 2 hereof shall not apply to (i) sales of Shares by a Stockholder in a
firm commitment underwritten public offering and (ii) the transfer of all or any
of the Shares during a Stockholder's lifetime to the Relatives of the
Stockholder or a trust for the benefit of a Stockholder and/or his Relatives;
provided, however, that any transferee under subsection (ii) of this Section 4
shall receive and hold the Shares so transferred subject to the provisions of
this Agreement and shall so agree in writing, and there shall be no further
transfer of such Shares except in accordance with the terms of this Agreement.
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5. Board of Directors.
(a) For so long as this Agreement remains in effect, each
Stockholder and Preferred Stockholder will vote any and all shares of
the Company's Common Stock and Preferred Stock, respectively, held by
him or it from time to time, so as to elect members of the Company's
Board of Directors (the "Board of Directors") as follows:
(i) One (1) member representing the Preferred
Stockholders, who shall be designated by Voicenet, Inc. (so
long as Voicenet, Inc. holds any shares of Preferred Stock)
and who shall initially be Xxxx Xxxxxx; and
(ii) Four (4) members designated by vote of the
Common Stockholders, who initially will be Xxxxx Xxxxxxx, Xxxx
Xxxxxx, Xxxx Xxxxxx and Xxxxxxx Xxxxx.
(b) Directors will be entitled to reimbursement by the Company
for reasonable out-of-pocket expenses incurred in connection with the
performance of their duties as Directors.
(c) The provisions of this Section 5 will expire on the tenth
(10th) anniversary of the date of this Agreement, unless this Agreement
is sooner terminated as provided herein.
6. Preemptive Rights. The Company shall, prior to any issuance
by the Company of any of its securities (other than debt securities with no
equity feature), offer to each Preferred Stockholder by written notice the
right, for a period of fifteen (15) days, to purchase its pro rata share
(determined on a fully diluted basis, based on the number of shares of Common
Stock into which the shares of Preferred Stock held by each holder could be
converted on the date of any such notice, and treating all outstanding shares of
Preferred Stock and other outstanding warrants, options and securities of the
Company convertible into, exercisable or exchangeable for Common Stock as so
converted, exercised or exchanged based on the number of shares of Common Stock
into which such Preferred Stock and other outstanding warrants, options and
securities are then convertible into or exercisable or exchangeable for) of such
securities proposed to be issued to a third party or parties (the "Offered
Securities") for cash at an amount equal to the price or other consideration
for which such Offered Securities are to be issued; provided,
however, that the preemptive rights pursuant to this Section 6 shall not
apply to (i) any Preferred Stockholder who, at the time of issuance of
securities giving rise to such preemptive rights, is employed by any competitor
of the Company or any other entity engaged in a similar business to that
conducted by the Company, or (ii) securities issued:
(a) upon conversion of any of the Preferred Stock;
(b) as a stock dividend or upon any subdivision of shares of
Common Stock,
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provided that the securities issued pursuant to such stock dividend or
subdivision are limited to additional shares of Common Stock;
(c) in connection with any merger or consolidation of the
Company with another corporation or other entity or in consideration
for the acquisition (whether by the Company or any of its Subsidiaries)
of the stock or assets of any other entity;
(d) pursuant to a firm commitment underwritten public
offering;
(e) pursuant to the exercise of options to purchase Common
Stock or shares of restricted Common Stock outstanding on the date
hereof or hereafter issued or granted pursuant to the Company's 2000
Stock Option and Restricted Stock Plan, not to exceed in the aggregate
1,000,000 shares (appropriately adjusted to reflect stock splits, stock
dividends, combinations of shares and the like with respect to the
Common Stock and not counting the re-issuance of canceled options or
restricted stock);
(f) as a stock dividend to holders of Preferred Stock upon any
stock split, stock dividend or subdivision of shares of the Preferred
Stock;
(g) in any Additional Closing (as defined in the Purchase
Agreement); and
(h) upon the exercise of any right or option which was not
itself in violation of the terms of this Section 6.
The Company's written notice to the holders of Preferred Stock shall describe
the securities proposed to be issued by the Company and specify the number,
price and payment terms. Each holder of Preferred Stock may accept the Company's
offer as to the full number of securities offered to it or any lesser number, by
written notice thereof given by it to the Company prior to the expiration of the
aforesaid fifteen (15) day period, in which event the Company shall promptly
sell and such holder shall buy, upon the terms specified, the number of
securities agreed to be purchased by such Purchaser. The Company shall be free
at such time prior to ninety (90) days after the date of its notice of offer to
the holders of Preferred Stock, to offer and sell, to any such third party or
parties the Offered Securities not agreed by the holders of Preferred Stock to
be purchased by them, at a price and on payment terms no less favorable to the
Company than those specified in such notice of offer to such holders. However,
if such third party sale or sales are not consummated within such ninety (90)
days period, the Company shall not sell such Offered Securities as shall not
have been purchased within such period without again complying with this Section
6.
In the event that any Preferred Stockholder fails to exercise in full the
preemptive rights contained in this Section 6 to which it is entitled with
respect to an issuance of securities by the Company to which the preemptive
rights outlined in this Section 6 apply, such Preferred Stockholder shall
forfeit any application of this Section 6 to future issuances of securities by
the Company with respect to any Shares held or thereafter acquired by such
Preferred
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Stockholder.
7. Parties. This Agreement will be binding upon the parties hereto and
their heirs, representatives, successors and assigns and may not be assigned
without the written consent of each such party. Transferees, successors or
additional holders of Shares may become parties to this Agreement with the
approval of the Company by executing this Agreement or a counterpart, whereupon
their names will be added to Schedule A.
8. Voting Trusts. If at any time a Stockholder's Shares are
deposited in a voting trust, then the provisions of this Agreement will also
apply to the voting trust certificates held by such Stockholder and all
references to the Shares of such Stockholder will be deemed to be references to
such voting trust certificates as well as to such Shares. The initial transfer
of Shares into a voting trust must be approved by the Board of Directors of the
Company to be exempt from the provisions of this Agreement, but a distribution
of Shares by the voting trust in cancellation of voting trust certificates will
not be subject to this Agreement and no approval of the Board of Directors will
be required therefor, and the Shares will remain subject to this Agreement in
the hands of the Stockholder.
9. Governing Law. This Agreement will be construed under and
governed by the laws (other than the conflict of laws rules) of the State of
Delaware.
10. Counterparts. This Agreement may be executed in one or more
counterparts each of which will be deemed an original and all of which together
will constitute a single instrument. An original copy of this Agreement and all
counterparts subsequently executed will be kept with the records of the Company.
11. Legend. Each certificate evidencing any of the Shares issued
on or after the date hereof will bear a legend substantially as follows:
"The shares represented by this certificate are subject to certain
agreements on voting, restrictions on transfer and rights of purchase
set forth in, and may not be sold, exchanged, transferred, pledged,
hypothecated or otherwise disposed of except in accordance with and
subject to all the terms and conditions of, a certain Stockholders
Agreement, as amended or restated from time to time, a copy of which
the Company will furnish to the holder of this certificate upon request
and without charge."
12. Notice. Any notice or other communication in connection with
this Agreement shall be deemed to be delivered if in writing addressed as
provided below and if either (a) actually delivered at said address, (b) in the
case of a letter, five business days shall have elapsed after the same shall
have been deposited in the mail, postage prepaid and registered or certified,
return receipt requested or (c) transmitted and confirmed by telecopy by
overnight or two-day courier:
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If to the Company: Unveil Technologies, Inc.
000 0xx Xxxxxx
Xxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile:
With a Copy to: Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: 617.951.7050
If to any Stockholder at the address set forth under their
or Preferred respective names on Schedule A
Stockholder: hereto;
or, as to each of the foregoing, at such other address as will be designated by
such Person in a written notice to the other parties complying as to delivery
with the terms of this Section.
13. Entire Agreement. This Agreement, the Purchase Agreement and
the Registration Rights Agreement, dated as of the date hereof, by and among the
Stockholders and Investors (as defined therein) (including in each case any and
all exhibits, schedules and other instruments contemplated thereby) constitute
the entire agreement of the parties with respect to the subject matter hereof.
To the extent any term or other provision of any other agreement or instrument
by which any party hereto is bound conflicts with this Agreement, this Agreement
will have precedence over such conflicting term or provision.
14. Modification; Termination. This Agreement may be amended, modified
or terminated, and any provision hereunder may be waived, by the written consent
of (a) the Company, (b) holders of at least a majority of the Shares and (c)
holders of at least a majority of the voting power of the outstanding shares of
Preferred Stock; provided, however, that Section 6 hereof may be amended,
modified or terminated, and any provision contained in Section 6 hereof may be
waived, by the written consent of (a) the Company and (b) holders of at least a
majority of the voting power of the outstanding shares of Preferred Stock. This
Agreement will terminate automatically immediately prior to the earlier to occur
of (x) the consummation of the first underwritten public offering and sale of
the Company's Common Stock pursuant to a registration statement under the
federal Securities Act of 1933, as amended, at a price of at least $2.00 per
share (such price subject to equitable adjustment in the event of any stock
split, stock dividend, combination, reorganization, reclassification or other
similar event) and pursuant to which the aggregate price paid by the public for
the Common Stock sold in such offering is at least $10,000,000 (a "Qualified
Public Offering") or (y) the sale of the Company, whether by merger, sale, or
transfer of more than 80% of its capital stock, or sale of substantially all of
its assets (a "Sale") provided, however, in the event that the consideration
payable to the stockholders of the Company pursuant to any Sale is
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other than cash or marketable securities, the Company shall cause the acquiring
entity in such Sale to grant to the Stockholders and Preferred Stockholders at
the time of such Sale substantially similar rights and privileges to those
granted hereunder.
15. Severability. If any provision of this Agreement will be
held to be illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability will attach only to such provision and will not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement will be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
16. Captions. Captions are for convenience only and are not
deemed to be part of this Agreement.
17. Continuation of Employment. Nothing in this Agreement will
create an obligation on the Company or the Preferred Stockholders to continue
any Stockholder's employment with the Company.
18. Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the undersigned have executed this Stockholders
Agreement as a sealed instrument as of the day and year first above written.
COMPANY:
UNVEIL TECHNOLOGIES, INC.
By:______________________________
Name:
Title:
COMMON AND PREFERRED STOCKHOLDERS:
VOICENET, INC.
By:______________________________
Name:
Title:
_______________________________
Xxxx Xxxxxx
_______________________________
Xxxxx Xxxxxxx
_______________________________
Xxxxxxx Xxxxx
_______________________________
Xxxx Xxxxxx
STOCKHOLDERS AGREEMENT SCHEDULE A
Stockholder Number of Shares
Common Stockholders
Xxxx Xxxxxx 1,708,333
Xxxxx Xxxxxxx 1,708,333
Xxxxxxx Xxxxx 1,708,333
Xxxx Xxxxxx 2,375,000
Preferred Stockholders
Voicenet, Inc. 2,500,000
STOCKHOLDERS AGREEMENT EXHIBIT A
FORM OF OUTSIDE OFFER
[Date]
[Name of Selling Stockholder]
[Address]
Dear Sir:
For good and valuable consideration the undersigned hereby offers
unconditionally and irrevocably for a period of [____] days from the date hereof
to purchase from you [_________] shares of Common Stock, $.001 par value per
share (the "Shares"), of Unveil Technologies, Inc., a Delaware corporation (the
"Company"), at a cash price of [$_________] per Share.
The undersigned represents and warrants that the undersigned will
acquire the Shares for the undersigned's own account for investment only and not
with a view to distribution or resale of the Shares. The undersigned agrees not
to sell or otherwise dispose of the shares in violation of the provisions of the
Securities Act of 1933, as amended (the "Act"). The undersigned understands that
the Shares will be purchased pursuant to an exemption from the registration
requirements of the Act and, accordingly, must be held indefinitely by the
undersigned unless they are later transferred in transactions that are either
registered under the Act or exempt from registration. The undersigned
understands that the Company is under no obligation to register the Shares under
the Act or to file for or comply with an exemption from registration, and
recognizes that exemptions from registration, in any case, are limited and may
not be available when the undersigned may wish to sell, transfer or otherwise
dispose of the Shares.
The undersigned agrees upon purchase of the Shares to become a party to
a Stockholders Agreement dated as of March 7, 2001 (a copy of which is attached)
and promptly to deliver a counterpart thereof signed by the undersigned to the
Company together with a letter to the Company in the form of Exhibit 1 hereto.
This letter will become a binding agreement between the undersigned and you upon
your written acceptance of this offer.
Very truly yours,
____________________________
[Name of Outside Offeror]
Agreed to and accepted by:
_______________________________
[Name of Selling Stockholder]
STOCKHOLDERS AGREEMENT EXHIBIT 1
March 7, 2001
UNVEIL TECHNOLOGIES, INC.
[Address]
Dear Sir:
The undersigned has just purchased or otherwise acquired [____] shares
(the "Shares") of Common Stock, $.001 par value per share (the "Stock"),
of UNVEIL TECHNOLOGIES, INC., a Delaware corporation (the "Company"). In
connection therewith, the undersigned has agreed to become a party to a
Stockholders Agreement dated as of March 7, 2001 (the "Agreement"). The
undersigned hereby delivers to you an executed counterpart of the Agreement, and
by such execution agrees to be bound by all the terms and provisions thereof.
The undersigned recognizes that the Shares will be subject to
restrictions on transfer set forth in the Agreement. The undersigned also
acknowledges that the certificate(s) representing the Shares will bear the
following legends restricting their transfer and that a notation restricting
transfer will be made on the stock transfer books of the Company:
The shares of stock represented by this certificate have not
been registered under the Securities Act of 1933, as amended, and may
not be sold, assigned, pledged or otherwise transferred in the absence
of an effective registration statement under said Act covering the
transfer or an opinion of counsel satisfactory to the issuer that
registration under said Act is not required.
The shares represented by this certificate are subject to
certain agreements on voting, restrictions on transfer and rights of
purchase set forth in; and may not be sold, exchanged, transferred,
pledged, hypothecated or otherwise disposed of except in accordance
with and subject to all the terms and conditions of, a certain
Stockholders Agreement dated as of January __, 2001, a copy of which
the Company will furnish to the holder of this certificate upon request
and without charge.
The undersigned agrees not to sell, transfer or otherwise dispose of
the Shares during the period beginning upon the effective date of a registration
statement under the Act relating to an underwritten public offering of the
shares of stock of the Company and ending one hundred eighty (180) days
thereafter or at such later time as may be agreed to in writing by the selling
stockholders in such offering or stockholders who own in the aggregate at least
twenty (20%) percent of the Company's outstanding shares of stock immediately
prior to such offering.
Very truly yours,
________________________
