EX-10.4
SHAREHOLDERS' AGREEMENT
This SHAREHOLDERS' AGREEMENT is made as of June , 1997 by and
among SETECH, Inc., a corporation duly organized, validly existing, and in good
standing under the laws of the State of Delaware ("Corporation"), Xxxxxxx X.
Xxxxxxx, Xx., a resident of Shelby County, Tennessee ("Xxxxxxx"), and Xxxxxx X.
Xxxxxxxx, a resident of Davidson County, Tennessee ("Xxxxxxxx").
WHEREAS, pursuant to its Charter, the Corporation has authorized
capital stock consisting of Ten Million shares of Common Stock, $.01 par value
("Stock");
WHEREAS, the Corporation, in connection with the acquisition of Xxxxx
Supply Company, Inc. ("LSCI") pursuant to that certain Stock Purchase Agreement
among the Corporation, Xxxxxxx and others, dated as of the date hereof (the
"Stock Purchase Agreement"), has agreed to issue, in partial consideration for
the sale by Xxxxxxx of all his shares of the capital stock of LSCI, 285,714
shares of Stock to Xxxxxxx ("Xxxxxxx'x Stock"), of which 225,102, shares have
been issued to Xxxxxxx concurrently herewith;
WHEREAS, Xxxxxxxx owns 324,016 shares of Stock ("Xxxxxxxx'x Stock");
WHEREAS, the parties hereto believe that it is in their respective
and mutual best interests to make provision for certain matters concerning
Stock owned by Xxxxxxx and Xxxxxxxx; and
WHEREAS, the parties hereto desire to set forth in writing their
understandings and agreements.
NOW, THEREFORE, in consideration of the foregoing, of the mutual
promises hereinafter set forth, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending to be legally bound, hereby agree as follows:
Section 1. TERM OF AGREEMENT. This Agreement shall be effective as of
the date first above written and shall, except as otherwise expressly provided
herein, terminate on the earlier of:
(i) June 30, 2000; or
(ii) the unanimous written agreement of the parties hereto.
Sections 4 and and 5 hereof shall earlier terminate in the event of a closing
of a Public Offering.
Section 2. REGISTRATION RIGHTS.
(a) If after the date hereof the Corporation closes a Public Offering and
after such closing, but prior to June 30, 2000, proposes to register any of its
Stock under the Securities Act of 1933 (the "1933 Act") for sale to the public,
whether for its own account or for the account of other holders of Stock or
both, the Corporation will use its best efforts to cause Xxxxxxx'x Stock to be
included in the securities to be covered by the registration statement proposed
to be filed by the Corporation, pro rata with any shares of Stock held by other
holders of Stock to be included in such registration. In connection with any
such registration, Xxxxxxx will furnish to the Corporation in writing such
information with respect to himself as shall be reasonably necessary in order
to assure compliance with federal and applicable state securities laws. Xxxxxxx
will indemnify and hold harmless the Corporation, its agents, officers and
directors, against all losses, claims, damages or liabilities, joint or
several, to which the Corporation or any such agent, officer or director may
become subject under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in a registration
statement under which shares of Xxxxxxx'x Stock were registered pursuant to
this Section 2, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements not misleading; provided, however, that
Xxxxxxx will be liable hereunder if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with information pertaining to Xxxxxxx, furnished in
writing to the Corporation by Xxxxxxx specifically for use in such registration
statement. All expenses incurred in connection with the registration of
Xxxxxxx'x Stock shall be paid by the Corporation, provided, however, that the
Corporation's obligation to pay attorney's fees for any counsel retained by
Xxxxxxx shall be limited to $2,500 of reasonable attorney's fees.
(b) Notwithstanding the provisions of Section 2(a),
(i) if no other outstanding Stock of any selling shareholder (other
than Xxxxxxx) of the Corporation is included in a registration
statement, the Corporation shall not be required to include
Xxxxxxx'x Stock in the securities covered by such registration
statement if it is a form of registration statement which limits
the amount of securities which may be registered by the issuer
and/or selling security holders; and
(ii) if the offering being registered by the Corporation is
underwritten and if no other outstanding Stock of any selling
shareholder of the Corporation is included therein and if the
representative of the underwriters certifies in writing that the
inclusion therein of Xxxxxxx'x Stock would materially and
adversely affect the sale by the Corporation of of Stock to be
issued and sold by the Corporation thereunder, the public
offering of Xxxxxxx'x Stock included in such registration
statement shall be delayed for a period of 90 days after the
commencement of the underwritten public offering, provided that
the representative of the underwriters certifies in writing that
such delayed offering would not materially and adversely affect
the sale of the securities to be sold and issued by the
Corporation or, if the representative of the underwriters will
not so certify, Xxxxxxx shall not be permitted to participate in
the registration.
(iii) the Corporation shall not be required to effect a registration
of shares of Xxxxxxx'x Stock under Section 2(a) of this
Agreement if in the written opinion of counsel to the
Corporation, which counsel and the opinion so rendered shall be
reasonably acceptable to Xxxxxxx, Xxxxxxx may sell without
registration under the 1933 Act all Xxxxxxx'x Stock for which
Xxxxxxx requested registration under the provisions of the 1933
Act and in the quantity in which Xxxxxxx'x Stock was proposed to
be sold.
For purposes of this SECTION 2, in the event that the Stock shall be
subdivided into a greater number of shares of Stock, the number of shares of
Xxxxxxx'x Stock available for registration in effect immediately prior to each
such subdivision, simultaneously with the effectiveness of such subdivision,
shall be proportionately increased. Conversely, in the event that the Stock
shall be combined into a smaller number of shares of Stock, the number of
shares of Xxxxxxx'x Stock available for registration in effect immediately
prior to each such combination, simultaneously with the effectiveness of such
combination, shall be proportionately reduced.
Section 3. PUT RIGHT OF XXXXXXX. Xxxxxxx shall have the right to
demand that the Corporation repurchase Xxxxxxx'x Stock at a price of $2.00 per
share (subject to adjustment as set forth below); PROVIDED, HOWEVER, that
Xxxxxxx may exercise such right to demand repurchase only (i) upon a Change in
Control of the Corporation (as hereinafter defined), or (ii) after April 30,
2000 in the event that the Corporation has not made a Public Offering prior to
that date.
For purposes of this SECTION 3, in the event that the Stock shall be
subdivided into a greater number of shares of Stock, the purchase price in
effect immediately prior to each such subdivision, simultaneously with the
effectiveness of such subdivision, shall be proportionately reduced.
Conversely, in the event that the Stock shall be combined into a smaller number
of shares of Stock, the purchase price in effect immediately prior to each such
combination, simultaneously with the effectiveness of such combination, shall
be proportionately increased.
For purposes of this SECTION 3, "Change in Control" shall mean an event
not approved by Xxxxxxx in which:
(i) the Corporation effects any sale, lease, assignment, transfer, or
other conveyance of all or substantially all of the assets of the
Corporation; or
(ii) the Company effects any consolidation or merger involving the
Corporation; PROVIDED, HOWEVER, that in the event of a merger of any
entity into the Corporation or the acquisition by the Corporation of such
entity, no Change in Control shall occur so long as (a) the Corporation is
the surviving entity, and (b) the holders of voting stock of the
Corporation immediately prior to such merger or acquisition are the
holders of not less than a majority of the voting stock of the Corporation
immediately following such merger or acquisition; or
(iii) any person or group of persons acquires not less than thirty
five percent (35%) of the Corporation's voting securities without prior
approval of the Corporation's board of directors or, after completion of a
Public Offering, any person or group of persons acquires not less than
twenty percent (20%) of the Corporation's voting securities without prior
approval of the Corporation's board of directors; or
(iv) the current Board of Directors of the Corporation (including any
new members elected or reelected in the ordinary course of business at an
annual or special shareholders meeting) cease to comprise a majority of
the Board of Directors of the Corporation.
Notwithstanding the provisions of Section 1 hereof, the rights of Xxxxxxx
under this Section 3 shall not terminate June 30, 2000 and shall terminate the
earlier of:
(x) the completion hereafter of a Public Offering; or
(y) the termination for "cause" (as defined in that certain
Employment Agreement between the Corporation and Xxxxxxx of even date
herewith) of Xxxxxxx'x employment with the Coroporation, in which
event Xxxxxxx may exercise the put right hereunder by written notice
to the Corporation delivered no later than 15 days following the date
of such termination and the Corporation shall make payment therefor
(upon delivery of the applicable stock certificates) no later than 15
days following delivery of such notice; or
(z) cessation of Xxxxxxx'x employment with the Corporation for any
other reason (e.g., involuntary termination, death or permanent
disability), in which event Xxxxxxx may exercise the put right
hereunder by written notice to the Corporation delivered no later
than 180 days following the date of such employment cessation and the
Corporation shall make payment therefor (upon delivery of the
applicable stock certificates) no later than 180 days following
delivery of such notice.
Section 4. RIGHT OF FIRST REFUSAL.
(a) Xxxxxxx hereby agrees not to transfer, sell, convey, exchange,
pledge or otherwise dispose of any shares of Stock owned by him except in
compliance with this Section 4.
(b) If Xxxxxxx desires to transfer, sell, convey, exchange, pledge or
otherwise dispose of any shares of Stock other than:
(i) pursuant to Section 3; or
(ii) in connection with the registration of such shares in
accordance with the 1933 Act; or
(iii) to a Permitted Transferee (as defined in Section 9),
subject to the provisions of Section 4(d) and 9 hereto; or
(iv) in a "brokers' transaction" as presently defined in Rule
144 of the Securities and Exchange Commission (the "SEC");
or
(v) in any sale transaction in which Xxxxxxxx participates
pursuant to Section 5 hereof
Xxxxxxx shall first give written notice to the Corporation to the effect that
Xxxxxxx wishes to dispose of such Stock, stating the price at and other
material terms upon which Xxxxxxx wishes to dispose of such Stock and the
proposed transferee of such Stock, and offering to sell such Stock first to the
Corporation pursuant to this Section 4 at the price and on the other material
terms described in such notice.
The Corporation shall give written notice to Xxxxxxx within ten (10) days
of receipt of the notice described above as to whether it accepts such offer
with respect to all or a portion of the Stock.
(c) In the event that Xxxxxxx'x offer under (b) to sell to the
Corporation has not been accepted by the Corporation as to all of the shares of
Stock offered in accordance with this Section 4, Xxxxxxx may agree to sell such
shares of Stock as to which the offer was not accepted by the Corporation at
not less than one hundred percent (100%) of the price, but otherwise on the
terms, stated in such Xxxxxxx'x notice, at any time up to ninety (90) days
after such Xxxxxxx'x notice, to the transferee specified in such notice.
Thereafter the provisions of this Section 4 shall again apply.
(d) Anything herein to the contrary notwithstanding, Xxxxxxx may
transfer, sell, convey, exchange, pledge or otherwise dispose of any Stock to a
Permitted Transferee (as defined in Section 9) provided that prior to such
transfer such spouse, child, parent or trust agrees to be bound by the
restrictions of this Section 4 of this Agreement.
Section 5. CO-SALE.
(a) Neither Xxxxxxx nor Xxxxxxxx will sell (the "selling shareholder")
any shares of Stock (other than: (x) to Permitted Transferee, in which event
any shares of Stock acquired by such Permitted Transferee shall remain subject
to the other shareholder's co-sale rights pursuant to this Section 5; (y) in a
registered public offering; or (z) in accordance with Rule 144 promulgated
under the 1933 Act), except to a transferee who is willing to purchase such
shares of Stock as part of a transaction in which a pro rata portion of the
aggregate number of shares of Stock being purchased by such transferee is being
purchased from other shareholder if he chooses to participate in such
transaction (such pro rata portion to be computed with respect to Xxxxxxx and
Xxxxxxxx by multiplying the aggregate number of shares of Stock to be purchased
by such transferee by a fraction (i) the numerator of which is the number of
shares of Stock held by the other shareholder, and (ii) the denominator of
which is the total number of shares of Stock held collectively by the selling
shareholder and the other shareholder).
(b) In the event that a selling shareholder proposes to consummate a sale
of shares of Stock that is subject to the other shareholder's co-sale rights,
he will give written notice (the "Co-Sale Notice") to the other shareholder,
stating the material terms of the offer. If the other shareholder wishes to
participate in such sale as to his pro rata portion, he shall give the selling
shareholder(s) notice to such effect within fifteen (15) days after receipt of
the Co-Sale Notice.
(c) Xxxxxxx'x and Xxxxxxxx'x co-sale rights shall terminate: (x) as to any
shares of shares of Stock sold by the other shareholder in a "brokers'
transaction" as presently defined in Rule 144 of the SEC; and (y) as to any
shares of Stock sold in a transaction in which other shareholder elected not to
exercise his co-sale rights under this Section 5.
Section 6. REPRESENTATIONS OF THE CORPORATION. The Corporation
represents and warrants to Xxxxxxx as follows:
(a) The financial statements and any accompanying notes contained in the
annual report of the Corporation filed with the SEC on Form 10-K for the fiscal
year ended June 30, 1996 and in the quarterly reports on Form 10-Q filed with
the SEC after the filing of the annual report fairly present in all material
respects the financial condition and the results of operations, changes in
stockholders' equity, and cash flow of the Corporation and its subsidiaries on
a consolidated basis as at the respective dates of and for the periods referred
to in such financial statements, all in accordance with GAAP, in all material
respects.
(b) The Corporation has fully provided Xxxxxxx with all the information
that Xxxxxxx has requested for deciding whether to acquire the shares of Stock
in partial consideration for the sale of his shares of the capital stock of
LSCI and all information that the Corporation believes is reasonably necessary
to enable Xxxxxxx to make such decision. To the Corporation's knowledge,
neither this Agreement, the Stock Purchase Agreement nor any other statements
or certificates made or delivered in connection herewith or therewith or in any
of the Corporation's filings with the SEC referenced in preceding subparagraph
(a) contains any untrue statement of a material fact or omits to state a
material fact necessary to make the statements herein or therein not
misleading, nor has there occurred since the date of such filings any material
adverse change (considered with respect to the entire business of the
Corporation and its subsidiaries) in the information contained therein,
including information under the caption "Titan's Operations" in the
Management's Discussion and Analysis or Plan of Operation.
(c) No officer or director of the Corporation is subject to a complaint or
proceeding by the SEC.
(d) Except with respect to the transactions which are the subject of the
Stock Purchase Agreement, the Corporation is not presently engaged in active
negotiations with any person or entity with respect to any merger or
acquisition of or by the Corporation with or into any other entity.
Section 7. REPRESENTATIONS AND WARRANTIES OF XXXXXXX. Xxxxxxx hereby
represents and warrants to the Corporation that:
(a) He is acquiring the shares of Stock for investment and not with a view
to the resale or distribution of any part thereof, and that Xxxxxxx has no
present intention of selling, granting any participation in, or otherwise
distributing the same. By executing this Agreement, Xxxxxxx further represents
that such Xxxxxxx does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person, with respect to any of the shares of Stock.
(b) He has had an opportunity to ask questions and receive answers from
the Corporation regarding the Stock and the business, properties, prospects and
financial condition of the Corporation.
(c) He can bear the economic risk of investment in the Stock, and has such
knowledge and experience in financial or business matters that he is capable of
evaluating the merits and risks of the investment in the Stock.
(d) He is an "accredited investor" within the meaning of SEC Rule 501 of
Regulation D, as presently in effect.
(e) The shares of Stock he is acquiring are characterized as "restricted
securities" under the federal securities laws inasmuch as they are being
acquired from the Corporation in a transaction not involving a public offering
and that under such laws and applicable regulations such securities may be
resold without registration under the 1933 Act, only in certain limited
circumstances. In this connection, he further represents that he is familiar
with Rule 144, as presently in effect, and understands the resale limitations
imposed thereby and by the 1933 Act.
Section 8. NOTICES. Any and all notices provided for herein shall be
sufficient if in writing and delivered personally, sent by certified or
registered mail, return receipt requested, first-class postage prepaid, sent by
overnight delivery service with proof of delivery, or sent by facsimile,
provided the facsimile is confirmed by certified or registered mail or
expedited delivery service in the manner previously described, to its principal
office if to the Corporation, and to its address as reflected in the stock
records of the Corporation if to Xxxxxxx, unless notice of a change of address
is furnished to all parties in the manner provided this SECTION 8. Any notice
shall be deemed to have been given either at the time of personal delivery or,
in the case of mail delivery service, as of the date of delivery, or in the
case of facsimile, upon receipt.
Section 9. MISCELLANEOUS.
A. No change or modification of this Agreement, including this
provision, shall be valid unless the same is in writing and signed by all
parties hereto. No waiver of any provision of this Agreement, including this
provision, shall be valid unless in writing and signed by the person against
whom sought to be enforced, The failure of any party at any time to insist
upon strict performance of any condition, promise, agreement, or understanding
set forth herein shall not be construed as a waiver or relinquishment of the
right to insist upon strict performance of the same condition, promise,
agreement, or understanding at a future time.
B. This Agreement sets forth all the promises, agreements,
conditions, understandings, warranties, and representations among the parties
hereto with respect to the shares of Stock, and there are no promises,
agreements, conditions, understandings, warranties, or representations, oral or
written, express or implied, among them with respect to the shares of Stock
other than as set forth herein. Any and all prior agreements with respect to
the shares of Stock of the Corporation are hereby revoked. This Agreement is,
and is intended by the parties to be, an integration of any and all prior
agreements or understandings, oral or written, with respect to the shares of
Stock and other matters addressed herein.
C. The rights of Xxxxxxx under Sections 2, 3 and 5 and the
rights of Xxxxxxxx under Section 5 hereof are personal to Xxxxxxx and Xxxxxxxx
and may not be assigned or transferred without the prior written consent of the
Corporation, except that such rights are transferable and assignable, upon and
with respect to a transfer and assignment by Xxxxxxx or Xxxxxxxx in increments
of not less than 1,000 shares (subject to adjustment as set forth above), to
any or all of his spouse, children or estate or a trust created by Xxxxxxx or
Xxxxxxxx exclusively for the benefit of any or all of his spouse, children or
estate ("Permitted Transferees").
D. For purposes of this Agreement, "Public Offering" means an
underwritten public offering of the Corporation's Common Stock yielding net
proceeds to the Corporation of at least $10,000,000 resulting in: (a) the
listing of the Corporation's Common Stock on the New York Stock Exchange or the
American Stock Exchange, (b) the designation or approval for designation (upon
notice of issuance) of the Corporation's Common Stock on NASDAQ/NMS; or (c)
listing or designation of the Corporation's Common Stock upon any other
exchange designated by order of the Commissioner of Insurance of the State of
Tennessee pursuant to Section 3(a)(9) of the Tennessee Securities Act of 1980.
E. The certificates evidencing shares of Xxxxxxx'x Stock and
Xxxxxxxx'x Stock shall bear a legend substantially as follows:
(a) "These securities have not been registered under the Securities
Act of 1933, as amended. These securities are subject to the terms and
conditions of that certain Shareholders' Agreement among the Corporation,
Xxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxx, Xx. dated as of June ,
1997. They may not be sold, offered for sale, pledged or hypothecated in
the absence of a registration statement in effect with respect to the
securities under such Act or an opinion of counsel satisfactory to the
SETECH that such registration is not required or unless sold pursuant to
Rule 144 of such Act."
(b) Any legend required by the laws of the States of Tennessee or the
1933 Act.
E. This Agreement shall be construed and enforced in accordance
with the laws of the State of Tennessee.
IN WITNESS WHEREOF, the Corporation and Xxxxxxx have caused this
Agreement to be executed by their duly authorized officers, all as of the day
and year first above written.
CORPORATION:
SETECH, Inc.
By:
Xxxxxx X. Xxxxxxxx, President
XXXXXXX:
Xxxxxxx X. Xxxxxxx, Xx.
XXXXXXXX:
Xxxxxx X. Xxxxxxxx
