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EXHIBIT 10.7
AGREEMENT
THIS AGREEMENT, entered into this 10th day of May, 1996, is by and
between Vision 21, Inc. (the "Company") and Xxxxx X. Xxxxxx ("Xxxxxx").
WHEREAS, Xxxxxx has provided the Company with extensive advice and
assistance in strategic planning and development for which the Company desires
to compensate Xxxxxx with shares of common stock in the Company.
NOW, THEREFORE, for good and valuable consideration, the parties
hereto agree as follows:
1. Issuance of Stock. In consideration for the services
previously rendered by Xxxxxx, the Company shall issue to Xxxxxx 217,057 shares
of its common stock (the "Shares") which shares, upon issuance except as
otherwise set forth herein, will be free and clear of all claims, liens and
encumbrances duly authorized, validly issued, fully paid and nonassessable
shares of the Company's common stock.
A. Warranties, Representations and Agreements by Xxxxxx Regarding
the Shares. In connection with the Shares, Xxxxxx hereby warrants and
represents (i) that the Shares are being acquired for his own account and for
investment, and not with a view to, or in connection with, any distribution or
sale thereof, (ii) that he has not made any agreement with any other person or
entity concerning such Shares, (iii) that his financial condition is such that
it will not be necessary for him to dispose of such Shares in the foreseeable
future, and (iv) that he is an "accredited investor" within the meaning of Rule
501 of Regulation D promulgated under the Act. Furthermore, Xxxxxx agrees to
indemnify and hold the Company harmless from and against any claim, liability,
cost or expense, including reasonable attorneys' fees, arising from any alleged
unlawful sale or offer to sell or transfer any of the Shares by Xxxxxx.
Xxxxxx also represents he is aware that the Shares have not been
registered under either federal law or the applicable law of any state or other
jurisdiction, and that the sale or resale of the Shares will not be permitted
under federal or state law unless such Shares are first registered or the sale
is a transaction that is exempt from registration under both federal and state
laws. Furthermore, Xxxxxx agrees to refrain from any sale of the Shares except
pursuant to registration or exemption from registration.
Xxxxxx agrees that if, contrary to his foregoing stated intentions, he
should later desire to dispose of or transfer any of the Shares in any manner,
he will not do so without first obtaining (a) an opinion of independent counsel
satisfactory to the Company to the effect that the proposed disposition or
transfer may lawfully be made without registration of the Shares pursuant to
the Act, including but not limited to Rule 144 promulgated under the Act, and
applicable state securities laws, or (b) such registration (it being expressly
understood that the Company will have no obligation to register the Shares for
this purpose). Xxxxxx also consents
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to the placing of a stop transfer notification on the Company's securities
records with respect to the Shares.
Xxxxxx consents to the placement of the following restrictive legend
on all stock certificates representing the Shares:
"The securities represented by this Certificate have not been
registered under the Securities Act of 1933, as amended, or
the securities laws of any state. The securities have been
acquired for investment and may not be sold, offered for sale
or transferred in the absence of an effective registration
under the Securities Act of 1933, as amended, and any
applicable state securities laws or an opinion of counsel
satisfactory in form and substance to counsel for the Company
that the transaction will not result in a violation of federal
or state securities laws."
Xxxxxx also represents that he has been fully appraised of, and is
totally aware of the nature of, the investment in the Company being made and
the financial risks thereof. In addition, Xxxxxx has been offered access to
all of the Company's books, records, information, agreements and documents that
he has deemed necessary and appropriate under the circumstances and has had the
opportunity to ask questions of and receive answers from management of the
Company. Xxxxxx represents that the Company has made no representation of any
kind as to the value of the Shares.
B. Registration Rights. Xxxxxx shall have the following
registration rights with respect to the Shares:
(a) Piggyback Registration. If the Company at any time
proposes to register on Form S-1 any of its securities under the Act in order
to consummate a public offering of any of its securities in the form of an
underwritten offering, the Company shall request that the managing underwriter
of such underwritten offering include the Shares in such registration. If such
managing underwriter agrees to include any of the Shares in the underwritten
offering, the Company shall give prompt written notice to Xxxxxx specifying the
form and manner and other relevant facts involved in such proposed
registration. Upon the written request of Xxxxxx, delivered to the Company
within 30 days of receipt of the Company's notice (which request shall specify
the number of Shares intended to be included in such offering), the Company
shall include such Shares in such registration, provided, however, that:
(i) If, at any time after giving such written
notice of its intention to register any of its securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
securities at its sole election, the Company may give written notice of such
determination to Xxxxxx and thereupon shall be relieved of its obligation to
register any Shares in connection with such registration;
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(ii) If the managing underwriter in such
underwritten offering shall advise the Company that it declines to include a
portion or all of the Shares requested by Xxxxxx to be included in the
registration, then distribution of all or a specified portion of the Shares
shall be excluded from such registration and the Company shall give Xxxxxx
prompt notice of the number of Shares excluded; and
(iii) The maximum number of Shares that Xxxxxx may
request to include in any single offering shall be twenty percent (20%) of the
Shares.
(b) Demand Registration. In the event Xxxxxx has not
sold all of the maximum allowable Shares (20%) pursuant to above section (a)
and if the Company shall receive, at any time after 180 days after the
effective date of the Company's registration statement filed pursuant to the
Act, a written request from Xxxxxx that the Company file a registration
statement under the Act covering the registration of the Shares, the Company
shall, as soon as practicable, effect the registration of the Shares pursuant
to the Act; provided, however, that the maximum number of Shares that Xxxxxx
may request to be registered shall be twenty percent (20%) of the Shares and
the minimum number of Shares that Xxxxxx may request to be registered shall be
ten percent (10%) of the Shares. The Company shall be obligated to effect only
one such registration under this section(b).
(c) S-8 Registration. In the event that the Shares are
eligible for registration on Form S-8 under the Act, the Company may, in lieu
of (a) or (b) above, effect the registration of the Shares on Form S-8.
(d) In no event shall the Company be required to register
any Shares at any time that (i) the Company has no equity securities registered
under Section 12 of the Securities Exchange Act of 1934, as amended, (ii)
registration is not required to effect public sale of the Shares; or (iii) the
Shares are subject to forfeiture.
(e) Xxxxxx agrees to cooperate with the Company in all
respects in connection with any registration of the Shares, including, timely
supplying all information and executing and returning all documents requested
by the Company and its managing underwriter in connection with the registration
and sale of the Shares.
(f) The Company shall not be required to include any of
the Shares in an underwritten offering of the Company's securities unless
Xxxxxx accepts the terms of the underwriting as agreed upon between the Company
and the underwriters selected by it, and agrees to execute and/or deliver such
documents in connection with such registration as the Company or the managing
underwriter may request.
(g) Xxxxxx agrees to indemnify and hold the Company, its
officers, directors, shareholders, representatives and underwriters harmless
from and against any claim, liability, cost or expense (including reasonable
attorneys' fees) arising from or based upon any acts, omissions or statements
by Xxxxxx in connection with any registration of the Shares.
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(h) Xxxxxx shall pay all (or a pro rata portion in the
case of piggyback registration) expenses related to the registration of the
Shares including, but not limited to, printing expenses, registration fees,
blue sky fees, listing fees, fees and disbursements of counsel for the Company,
underwriting discounts and selling commissions.
(i) The Company agrees to indemnify and hold Xxxxxx
harmless from and against any claim, liability, cost or expense (including
reasonable attorneys' fees) arising from or based upon any acts, omissions or
statements by the Company in connection with any registration of the Shares,
provided that such acts, omissions or statements were not as a result of acts,
omissions or statements by Xxxxxx.
(j) The Company shall not be obligated to keep any
registration statement effective for more than forty (40) days.
(k) Any registration statement provided herein may be
extended, suspended or delayed by the Company for a period of up to ninety (90)
days if, upon the advice of counsel, at the time such registration statement is
required to be filed, or at the time the Company is required to cause such
registration statement to become effective, such delay is advisable and in the
best interests of the Company.
(l) The registration rights set forth in this Agreement
shall expire three years from the date of this Agreement.
(m) The right to receive the Shares, together with the
registration rights therefor, may also be assigned by Xxxxxx with the prior
written consent of the Company; provided, however, any assignee must first make
the warranties, representations and agreements set forth in this Section 1
hereof to the Company. The Company hereby consents to the transfer by Xxxxxx
of Shares to an entity controlled by Xxxxxx provided that such assignee first
makes the warranties, representations and agreements set forth in this Section
1 hereof to the Company.
2. Warranties and Representations of the Company. The Company
warrants and represents to Xxxxxx as follows: (a) The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Florida, with requisite corporate power and authority to
execute and deliver this Agreement (b) the execution, delivery and performance
by the Company of this Agreement has been duly authorized by the Company and
constitutes the legal, valid and binding obligation of the Company except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors rights generally or the availability of equitable remedies and (c)
the execution and delivery of this Agreement will not result in the breach of
any agreement to which the Company is a party.
3. Reliance on Representations. Xxxxxx is informed of the
significance to the Company of the foregoing representations, agreements and
consents, and they are made with the intention that the Company may rely upon
them.
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4. Indemnification. Xxxxxx acknowledges that he is aware of the
meaning and legal consequences of the representations and warranties contained
in this Agreement, and agrees to indemnify and hold the Company harmless from
and against any and all loss, damages or liability due to or arising out of any
material inaccuracy or breach of any representation or warranty of Xxxxxx
contained in this Agreement.
5. Florida law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF FLORIDA, WITHOUT REGARD TO SUCH STATE'S RULES CONCERNING CONFLICTS
OF LAWS. ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR PROCEEDING
RELATED TO OR ARISING OUT OF THIS ENGAGEMENT, OR ANY TRANSACTION OR CONDUCT IN
CONNECTION HEREWITH, IS WAIVED.
6. Survival of Warranties. Except as otherwise provided in this
Agreement, the warranties, representations and indemnifications contained in
this Agreement shall survive the expiration or termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
VISION 21, INC.
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Xxxxxxxx Xxxxxxxx
President and CEO
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, individually
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