Exhibit 10.2
SHAREHOLDERS' AGREEMENT
OF
E-Z AUTH. MANAGEMENT CO.
THIS AGREEMENT, entered into this 4 day of February, 2002, by and
between HFE, LTD., ("HFE") a Florida Limited Partnership, TCB LEXSYS LTD.,
("Lexsys") a Florida Limited Partnership, and GDV DUNDAS FAMILY LIMITED
PARTNERSHIP, a Florida Limited Partnership ("Verdier"), hereinafter collectively
referred to as "Shareholders" and E-Z AUTH. MANAGEMENT CO., a Florida
corporation, hereinafter referred to as the ("Corporation"). (The term
Shareholder shall also be deemed to include any persons or entities that
subsequently acquire Shares (as hereafter defined) and become parties to this
Agreement).
WITNESSETH:
WHEREAS, FIFE, Lexsys and Verdier, are the sole shareholders of the
Corporation, each owning the following number of shares of the Corporation's
Common Stock, no par value per share ("Common Stock"):
PERCENTAGE OF
SHAREHOLDER NUMBER OF SHARES NUMBER OF SHARES
----------- ---------------- ----------------
HFE 1000 33 1 /3%
Lexsys 1000 33 1 /3%
Verdier 1000 33 1 /3%
WHEREAS, all of the shares of Common Stock that may be issued and
outstanding from time to time, including those shares of Common Stock issued and
outstanding as of the date hereof are subject to this Agreement (the "Shares").
All Shares shall entitle the owner of such shares to preemptive rights to
purchase additional Shares of the Corporation when and if offered for sale or
distribution by the Corporation.
WHEREAS, the Shareholders and Corporation believe that it is to their
mutual best interests to provide for continuity in management and policies of
the Corporation. Accordingly, the purpose of this Agreement is two-fold:
(a) To control the disposition of stock ownership in the
Corporation; and
(b) To provide the fundamentals of a working relationship within
and for the Corporation and its relationship with Paris
Health Services Ltd. for which the Corporation serves as the
General Partner.
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NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I
SALE OF SHARES
Except as specifically permitted by the provisions of this Article I,
the sale, assignment, pledge, transfer or other disposition of any Shares owned
by a Shareholder, to any person or entity other than the Corporation is
prohibited. No shareholder shall dispose of all or any part of its Shares,
whether now owned or hereafter acquired, except in accordance with the terms of
this Agreement. The term "dispose of (and in noun form, "disposition") shall
include, but is not limited to, any assignment, transfer, sale, exchange, gift,
conveyance, disposition, pledge, hypothecation, or encumbrance whatsoever,
whether voluntary, involuntary or by operation of law. Any attempted disposition
of the shares, except as expressly permitted herein, shall be void and of no
force and effect and the corporation shall not reflect any transfer of shares on
its stock transfer books unless the transfer thereof is specifically permitted
hereby, and any transfer and violation hereof which is reflected on the books
through willful violation of this provision or through error shall be reversed.
(a) If any Shareholder shall desire to sell all or any part of
his Shares, such Shareholder (hereinafter referred to as the
"Selling Shareholder"), shall forthwith give written notice
thereof to the Corporation and to each of the non-selling
Shareholder(s), which shall state: (i) the Shareholder's
desire to make such sale; (ii) the number of Shares desired to
be sold; and (iii) the price to be paid in accordance with
Article IV of this Agreement.
(b) Upon the happening of the event described in Section (a)
above, the Corporation shall have the option, but not the
obligation, to acquire all or some of the Shares of the
Corporation proposed to be sold by the Selling Shareholder for
a price as determined in accordance with Article IV hereof.
(c) Within thirty (30) days after the giving of such notice by
the Selling Shareholder, the Corporation shall give
simultaneous written notice to the Selling Shareholder and to
all non-selling Shareholders which (i) shall state whether or
not the Corporation elects to exercise its option; (ii) shall
state the number of Shares, if any, of the Selling Shareholder
which the Corporation elects to purchase; and (iii) shall fix
a date and time (hereinafter referred to as the "Closing
Date") for the closing of the purchase of such Shares which
shall be (a) not less than twenty (20) nor more than thirty
(30) days after giving of such notice by the Corporation if
the Corporation shall have exercised its option with respect
to all (but not less than all) the Shares of the Selling
Shareholder, or (b) not less than eighty (80) nor more than
one
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hundred (100) days after the Selling Shareholder has given
notice of desire to sell, if the Corporation shall have
exercised its option with respect to less than all of the
Shares of the Selling Shareholder.
(d) The Selling Shareholder shall not be entitled to vote,
either as a Shareholder, or Director, on the issue of whether
or not, and to what extent, the Corporation shall exercise its
option to purchase Shares of the Selling Shareholder.
(e) Failure by the Corporation to give such notice within the
time specified in Section (c) hereof shall be deemed an
election by the Corporation not to exercise such option.
(f) If the Corporation shall have failed to exercise such
option with respect to all of the Shares owned by the Selling
Shareholder, each of the non-selling Shareholders shall
thereupon have the option, but not the obligation, to purchase
its pro rata portion of the remaining offered Shares
calculated based upon the percentage that such Shareholder's
Shares constitute of the Shares owned by all non-selling
Shareholders.
(g) Within sixty (60) days after the giving of the notice of
desire to sell by the Selling Shareholder, each of the
non-selling Shareholders shall give simultaneous written
notice to the Selling Shareholder, to the other non-selling
Shareholders and to the Corporation which (i) shall state
whether or not he elects to exercise his option; (ii) shall
state the number of Shares, if any, of the Selling Shareholder
which he elects to purchase; and (iii) shall fix a date and
time ("Closing Date") for the closing of the purchase of such
Shares which shall be (a) not less than twenty (20) days nor
more than thirty (30) days after the giving of such notice by
such non-selling Shareholder, or (b) the same date as the
Closing Date selected by the Corporation if it shall have
exercised its option as provided in Section (c) (iii) (b)
hereof.
(h) If any of the non-selling Shareholder(s) elects not to
exercise his option with respect to some or all of the Shares
which he is entitled to purchase, each of the other
non-selling Shareholder(s) may elect to purchase his pro rata
portion of the remaining Shares in addition to the Shares
which he, himself, has an option to purchase, by giving notice
within ten (10) days after the expiration of the period
provided for in Section (g) hereof, to the Selling Shareholder
and the other non-selling Shareholders which (i) shall state
the number of such additional Shares which he elects to
purchase; and (ii) shall set the same Closing Date as that set
in his prior notice of elections to purchase Shares of the
Selling Shareholder. If Shares still remain unpurchased any
non-selling Shareholder(s) that desire to
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purchase additional Shares may, by providing notice during
this 10-day period and for any additional three days
thereafter, continue to purchase their respective pro rata
portion of the Shares until either all of the Shares are
purchased or none of the non-selling Shareholders desire to
purchase any additional Shares.
(i) Failure by any non-selling Shareholder to give notice,
pursuant to Section (g) or Section (h) hereof, shall be deemed
an election by him not to exercise such option.
(j) If the Corporation and all of the non-selling Shareholders
shall fail to exercise their respective options for all or
part of the Shares set forth in the notice provided in
accordance with Section I(a), then in that event, the Selling
Shareholder shall be free, for a period of 30 days after the
expiration of the period within which the Corporation and the
non-selling Shareholders had to exercise their option to
purchase such Shares, to sell such nonpurchased shares to a
third party free of the prohibition set forth in this Article
I. If the non-purchased Shares are not sold during this 30-day
period, any subsequent sales shall again be subject to the
requirements of this Section I.
(k) If the Corporation or any non-selling Shareholder shall
exercise any option described in this Article I, then that
party or parties who shall have exercised options hereunder
(any such party or any party purchasing any Shares pursuant to
this Article being hereinafter referred to as a "Purchaser"
shall pay in cash to the Selling Shareholder on the Closing
Date an amount equal to Fifty (50%) per cent of the Purchase
Price and the balance shall be paid over a period of three (3)
years, in equal consecutive quarterly installments commencing
three (3) months following the Closing Date, with interest on
the unpaid balance at the rate of eight (8%) per cent per
annum. At the Closing, the Purchaser shall execute a
promissory note in favor of the Selling Shareholder for the
balance of the purchase price (the "Note"). The Note shall
include the terms set forth in this subsection(k) and (I) and
such other terms as are reasonably acceptable to the parties.
(I) The Purchaser of such Shares shall have the privilege of
prepaying any or all of the unpaid installments of the
Purchase Price for such Shares, without penalty, but with
interest thereon to the date of prepayment, upon ten (10) days
written notice to the Selling Shareholder. Any such prepayment
by the Purchaser shall be considered a prepayment of the last
remaining installments of the Purchase Price in reverse order
of their maturity.
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ARTICLE II
PAYMENT FOR SHARES TO BE SOLD
(A) THE CERTIFICATE OR CERTIFICATES for any Shares purchased
pursuant to Article I hereof, shall be held by the Selling
Shareholder (as the case may be) (either party or parties
referred to in this Article II as the "Seller") as security
for the payment of the entire amount of the Purchase Price for
such Shares, and such certificate or certificates shall be
delivered to the Purchaser, duly endorsed, simultaneously with
the payment of last installment of the Purchase Price. At the
Closing, the parties shall execute a stock pledge and security
agreement, in form and substance reasonably acceptable to both
parties, granting the security interest described herein.
(b) At the closing of any such purchase, and provided the
amount required to be paid on the Closing Date is paid, the
Seller shall deliver to the Purchaser a proxy entitling the
Purchaser to vote the Shares so purchased at all subsequent
meetings of the Shareholders of the Corporation, and shall
also deliver to the Corporation his written resignation as an
officer and director of the Corporation.
(c) From the date of exercise of any option to purchase Shares
from the Selling Shareholder pursuant to Article I hereof, and
until the entire Purchase Price for the Shares so purchased
has been paid in full, the non-Selling Shareholder (or
Surviving Shareholder, as the case may be) will not vote any
Shares owned by them as to cause the Corporation to (i) pay
any dividend or make any distribution with respect to Shares
of its stock; (ii) purchase, redeem or otherwise re-acquire
any Shares of its stock; (iii) authorize or issue any
additional Shares or otherwise change its capital structure;
or (iv) take any other action outside the ordinary course of
business which may reasonably be expected to increase the risk
of non-payment of the unpaid balance of the Purchase Price.
(d) Upon the happening of any of the following events, at the
Selling Shareholder's option, the proxy given pursuant to
Section (b) hereof shall immediately terminate and the
remaining balance of the Note shall become immediately due and
payable, to-wit: (i) the Purchaser shall default in the
payment of any installments of the Purchase Price for any
Shares purchased pursuant hereto, and such default shall
continue for a period of ten (10) days after written notice
thereof is given by the Selling Shareholder to the Purchaser;
(ii) the sale by the Corporation of all or substantially all
of its assets; (iii) a statutory merger or consolidation
wherein the Corporation is not the survivor; or (iv) a resale
by the Purchaser of all or any of the purchased Shares. The
Selling Shareholder shall thereupon have the right, upon ten
(10) days prior written notice to the Purchaser of the time
and place thereof,
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to sell all, but not less than all, of the Shares held by him
at public or private auction, in the City of Fort Lauderdale,
Florida, at which auction the Purchaser may bid. Such right
shall be in addition to any other rights that the Selling
Shareholder may have at law or in equity.
(e) Out of the proceeds of any such sale, the Seller shall
have the right to retain an amount equal to the entire balance
of the Purchase Price of such Shares then remaining unpaid,
together with (i) interest to the date of sale at the rate of
eight (8%) percent per annum, and (ii) the expenses of sale.
Any surplus shall be paid to the Purchaser. However, in the
event of a deficiency, the Purchaser shall remain liable for
the full amount thereof.
ARTICLE III
CERTIFICATE ENDORSEMENT
Upon the execution of this Agreement, the certificates representing
Shares subject hereto shall be surrendered to the Corporation and endorsed as
follows:
Any sale, assignment, transfer, pledge or other disposition of
the shares of stock represented by this certificate is
restricted by, and subject to, the terms and provisions of a
Shareholders' Agreement, dated January __, 2002, a copy of
which is on file in the office of the Corporation and in the
stock book thereof. By acceptance of this certificate, the
holder hereof agrees to be bound by the terms of this
Agreement.
All subsequently issued certificates representing Shares shall also bear the
foregoing legend.
ARTICLE IV
VALUATION SCHEDULE
The value of the Shares for the purposes of Articles I and II of this
Agreement shall be determined as follows:
(a) The transferring Shareholder and the Corporation and/or
purchasing Shareholder shall each within ten (10) days of an
event triggering the need for a valuation (triggering events
shall be a shareholder providing notice of its desire to sell
and the exercise of the purchase option by the corporation'
and/or a purchasing shareholder) choose an appraiser who will
determine the Corporations value per share. The two appraisers
shall then meet within 10 days thereafter to determine whether
or not they can mutually agree upon the value. If they cannot
agree on such value within three (3) days,
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then the appraisers shall jointly choose a third appraiser
whose valuation shall govern. The corporation shall be
responsible for paying all costs and expenses for the
appraisers discussed in this Article IV.
(b) If neither the corporation or any of the other
shareholders exercise the purchase option, then the Selling
Shareholders shall be free to sell all, or part of its Shares
to a third party at any price established by the selling
Shareholder and the third party Purchaser.
ARTICLE V
CORPORATION PURPOSE AND DECISIONS
(a) The parties hereby join together and form this
Corporation, for the purposes of being the General Partner of
Paris Health Services Ltd., ("Paris"), a Florida Limited
Partnership (the "Partnership") which will own, develop and
operate the Paris system designed to facilitate the
notification and authorization process between Hospitals and
Insurers, and to manage Paris' business and related activities
and to obtain the benefits of any future appreciation in the
value in the business.
(b) During the continuance of this Agreement, the parties'
hereto shall vote continuously to prevent the Articles of
Incorporation and By-Laws of the Corporation from containing
any provision inconsistent with the terms hereof.
(c) The Shareholders agree that the following major decisions
of the Corporation shall be made by unanimous vote of the
directors. These decisions are:
(i) The requirement that all Shareholders contribute
additional capital proportionately;
(ii) The requirement that all Shareholders execute personal
guarantees for Partnership borrowing;
(iii) The establishment of terms, conditions and collateral
for Partnership obligations;
(iv) The negotiation and execution of contracts pertaining to
contracts with Corporations or entities in which the various
Shareholders or their Shareholder's, Partners, Directors,
Officers and/or Members may have an interest, except that the
Shareholders agree that the time spent on Partnership matters
by employees of a Shareholder's affiliated Company will be
billed to the Partnership at
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the rate of 150% of such employee's hourly rate. All other
expenses will be billed to the Partnership at cost.
(v) Grant leasehold estates of all or any portion of any
Partnership property;
(vi) Engage the Partnership or Corporate in any business other
than the business as contemplated herein;
(vii) Loan Partnership monies to any Paris Partner or
Shareholder, officer, director of the Corporation, or relative
of any of the preceding;
(viii) All other decisions pertaining to the business of the
Partnership of Paris and Corporation, except as set forth in
this Article, shall be made by the Board of Directors and 60%
of the vote shall govern;
(ix) The issuance of any shares of stock of the corporation to
any entity or individual other than the shareholders as of the
date of this agreement;
(x) Any merger, sale of substantially all of the assets of the
Corporation or business combination, which must be approved by
the shareholders of the Corporation under Florida law; and
(xi) Decisions made by the Corporation as the general partner
of the Partnership that requires the general partner or
limited partners to make any additional capital contributions
to the Partnership.
(d) The Shareholders agree that the Corporation's Board of Directors
shall consist of three to seven members and any increase in the size
of the Board beyond seven members, must be approved in writing by
100(degree)/a of the Shareholders. Regardless of any statement to the
contrary in the Corporation's bylaws, each Shareholder agrees to vote
its Shares to cause the election of and continued Board membership of
(i) one person selected by HBOA, (ii) one person selected by Lexsys
(iii) one person selected by HFE.
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ARTICLE VI
NOTICES
Any and all notices, designations, consents, offers, acceptances, or
any other communication provided for herein shall be given in writing by
registered or certified mail which shall be addressed, in the case of the
Corporation, to its principal office, and in the case of any Shareholder, to his
or her address appearing on the books of the Corporation or his residence or to
such other address as may be designated by him. The initial addresses for each
of the Shareholders and Corporation are set forth on the signature page attached
to this Agreement.
ARTICLE VII
DEADLOCK
Any deadlock among the directors, dispute or controversy arising under,
out of, in connection with or in relation to this Agreement, or any breach or
alleged breach thereof, or in connection with the formation, operation or
dissolution of the Corporation, shall be submitted to and settled by arbitration
in Broward County, Florida, as set forth in Article XVI.
ARTICLE VIII
PREEMPTIVE RIGHTS
The holders of the Shares of the Corporation shall have preemptive
rights to purchase any Shares of the Corporation hereafter issued or any
securities exchangeable for or convertible into such Shares or any warrants or
other instruments evidencing rights or options to subscribe for, purchase or
otherwise acquire such Shares.
ARTICLE IX
TERMINATION
This Agreement shall terminate upon the occurrence of any one of the
following events:
(a) Cessation of the Corporation;
(b) Bankruptcy, receivership or dissolution of the Corporation;
or
(c) Unanimous written consent of all the Shareholders.
ARTICLE X
AMENDMENTS
This Agreement may be altered or amended in whole or in part at any
time by mutual agreement of all of the Shareholders and the Corporation.
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ARTICLE XI
MODIFICATIONS
No change or modification of this Agreement shall be valid unless the
same be in writing and signed by all parties hereto.
ARTICLE XII
GOVERNING LAW
The laws of the State of Florida shall apply and bind the parties in
any and all questions arising hereunder, regardless of the jurisdiction in which
any action, or proceeding may be initiated or maintained. Any provision hereof,
which in any way may be construed to violate or contravene the laws of the State
of Florida shall be deemed not to be a part of this Agreement, and the remaining
terms of the Agreement shall, in all other respects, remain in full force and
effect.
ARTICLE XIII
GENERAL PROVISIONS
(a) Entire Agreement. Except as otherwise provided herein, this
Agreement constitutes the final, complete and exclusive
expression of the understanding of the parties. All
understandings and agreements heretofore had between the parties
are merged in this Agreement. This Agreement supersedes any and
all other agreements, either oral or in writing, between the
parties hereto with respect to the subject matter hereof and
contains all of the covenants, agreements, representations and
other valid statements between the parties with respect to such
matter. Each party to the Agreement acknowledges that no
representations, inducements, promises, or statements, oral or
otherwise, have been made by any party hereto or anyone acting on
behalf of any party hereto which are not embodied herein and
agrees that no other agreement, covenant, representation,
inducement, promise or statement not set forth in writing in this
Agreement shall be valid or binding. The parties to this
Agreement further acknowledge that all the terms of this
Agreement were negotiated at arms' length and that this Agreement
and all documents executed in connection herewith were prepared
and executed without duress, undue influence or coercion of any
kind exerted by any party hereto upon any other party. The
parties further acknowledge that they understand the importance
of having their own independent legal counsel review this
Agreement on their behalf and for their benefit and have been
afforded the opportunity to consult such counsel.
(b) Effect of Non-Compliance. In the event any purported or
attempted transfer of Shares does not comply with the provisions
of this Agreement, the
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intended transferee shall not be deemed to be a Shareholder of
the Corporation any such purported or attempted transfer shall be
null and void. Accordingly, the Corporation shall not recognize
any such transferee as a Shareholder of record, nor shall the
transfer agent of the Corporation record any such transfer on the
books and records of the Corporation.
(c) REPRESENTATIONS. All parties undersigned hereby represent and
warrant that:
(i) They understand that the Shares (i) have not been
registered under the Securities Act of 1933, as amended or
any state securities laws and that the Shares cannot be sold
or otherwise transferred, unless they are so registered or
are sold or transferred in compliance with the requirements
of an applicable exemption from the registration provisions
of such securities laws and, if requested, the Board of
Directors of the Corporation is provided with an opinion of
counsel to that effect, satisfactory to it in form and
substance; (ii) any sale or other transfer must be made in
compliance with this Agreement and the provisions of the
Corporations Articles and Bylaws; and (iii) a legend in
substantially the following form will be placed on any
certificate or other document evidencing the Shares:
THE SECURITIES ISSUED HEREBY HAVE NOT BEEN REGISTERED WITH
THE SECURITIES AND EXCHANGE COMMISSION (THE "COMMISSION")
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE.
THESE SECURITIES ARE SUBJECT TO RESTRICTION ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR
RESOLD EXCEPT AS PROVIDED UNDER THE ACT AND SUCH LAWS
PURSUANT TO REGISTRATION OR PURSUANT TO AN EXEMPTION
THEREFROM AND DELIVERY TO THE CORPORATION OF AN OPINION OF
COUNSEL, SATISFACTORY IN FORM AND SUBSTANCE TO THE
CORPORATION, TO THE EFFECT THAT THE PROPOSED TRANSFER IS IN
COMPLIANCE WITH SUCH AN EXEMPTION. THESE SECURITIES HAVE NOT
BEEN APPROVED OR DISAPPROVED BY THE COMMISSION, ANY STATE
SECURITIES COMMISSION OR OTHER REGULATORY AUTHORITY AND ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
(ii) The Shares they are to receive are solely for their own
account, for investment and are not being purchased with a
view to
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or for sale in connection with any distribution, subdivision
or fractionalization thereof; the undersigned has no present
plans to enter into any contract, undertaking, agreement or
arrangement with respect to any such sale.
(iii) They acknowledge and are aware of the following:
(1) That the Corporation has little operating history;
(2) The Shares will not be, and Shareholders have no
right to require that the Shares be, registered under
the Securities Act; there will be no public market for
the Shares; the undersigned will not be able to avail
himself of the provisions of Rule 144 adopted by the
Securities and Exchange Commission under the
Securities Act with respect to the sale of the Shares.
(d) The tax effects which may be expected by the Corporation are
not susceptible to absolute prediction, and new developments in
rules of the Internal Revenue Service, audit adjustment, court
decisions or legislative changes may have an adverse effect on
one or more of the tax consequences of an investment in the
Corporation.
(e) That no federal or state agency has made any finding or
determination as to the fairness of investing in the Corporation
or any recommendation or endorsement of the Shares.
(f) SEVERABILITY. The determination by any court of competent
jurisdiction that any provisions of this Agreement is not
enforceable in accordance with its terms shall not affect the
validity or enforceability of the remaining provisions shall be
stricken or modified in accordance with the court's decision, and
this Agreement, as so modified, shall continue to bind the
parties hereto.
(g) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(h) CAPTIONS. The Article headings and captions contained in this
Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Whenever
the context shall require, all words herein in the masculine
gender shall be deemed to include the feminine or neuter gender,
all singular words shall include the plural, and
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all plural words shall include the singular. The parties
acknowledge and agree that each Party has reviewed this Agreement
and that any rule of construction resolving ambiguities against
the drafting Party shall not be employed in the interpretation of
this Agreement or any amendment hereto.
(i) Strict Compliance. Failure to insist upon strict compliance
with any of the terms, covenants or conditions hereof shall not
be deemed a waiver of such terms, covenants or conditions nor
shall any waiver or relinquishment of any right or power be
deemed a waiver of such terms, covenants or conditions nor shall
any waiver or relinquishment of any right or power hereunder at
any one time or more times be deemed a waiver or relinquishment
of such right or power at any other time or times.
(j) Waiver Modification or Cancellation. Any waiver, alteration
or modification of any of the provisions of this Agreement or
cancellation or replacement of this Agreement shall not be valid
unless in writing and signed by the Shareholders owning a
majority of the Shares subject to this Agreement.
(k) Benefit. Except as otherwise expressly herein provided, this
Agreement shall inure to the benefit of and be binding upon the
Corporation, its successors and assigns and upon the
Shareholders, their heirs, personal representatives, and
permitted assigns.
ARTICLE XIV
BREACH AND ARBITRATION
(a) Breach of Agreement. It shall constitute a breach of this
Agreement if any Shareholder or his personal representative
violates any of the provisions of this Agreement. In the event of
such a breach of this Agreement which is not cured or waived
within the applicable grace period as set forth below, any party
hereto claiming that a breach has occurred may, if he so elects,
pursue any remedy that my exist, in law or in equity, for a
breach of this Agreement. If however, the party against whom the
breach of this Agreement is claimed believes, in good faith,
that:
(i) No breach has occurred, or
(ii) The party claiming a breach of this Agreement claiming
that a breach of this Agreement has occurred shall give the
party who is alleged to have committed such breach fifteen
(15) days written notice specifying the nature thereof with
a request that same be cured or corrected
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within thirty (3) days of the date of notice.
(b) ARBITRATION. It is the intention of the parties that,
whenever possible, all disputes arising under this Agreement
shall be settled through arbitration. Except in cases where
emergency equitable relief is necessary or appropriate, if a
dispute or controversy arises pursuant to Paragraph V, above,
then such dispute or controversy shall be settled by arbitration
in accordance with the procedures, rules and regulations of the
American Arbitration Association. The decision rendered by the
arbitrator shall be binding upon the parties and judgment upon
the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. Arbitration shall be held in Broward
County, Florida. All costs of arbitration and attorneys' fees
incurred by the parties shall be paid by the non-prevailing party
or, if neither party prevails on the whole, each party shall be
responsible for a pro rata portion of the costs of arbitration
and his attorneys' fees.
(c) SPECIFIC PERFORMANCE. The Shareholders acknowledge and agree
that the Shares of the Corporation cannot be readily purchased or
sold in the open market, that they have a unique and special
value, and that the Shareholders would be irreparably damaged if
the terms of this Agreement were not capable of being
specifically enforced; for this reason the Shareholders agree
that the purchase of Shares in accordance with the terms of this
Agreement shall be specifically enforceable and that the remedy
of specific performance may be sought and obtained in an
arbitration proceeding. The Shareholders further agree that any
sale or disposition which does not strictly comply with the terms
and conditions of this Agreement may be restrained by emergency
injunctive relief whenever resorting to arbitration would be
inadequate, and that such equitable relief provided herein shall
not in any way limit or deny any other remedy at law which a
Shareholder might otherwise have. In addition, all parties to
this Agreement hereby expressly waive any objection, in any such
equitable action that the party seeking equitable relief has or
may have an adequate remedy at law, and hereby consent to any
such equitable action.
ARTICLE XV
CORPORATION'S COUNSEL
Each Party acknowledges that the Corporation's counsel, Xxxxxxx X.
Xxxxxxxxx, Counselor at Law, P.A., prepared this Agreement on behalf of and in
the course of their representation of the Corporation, as directed by the board,
and that:
(a) Such Party has been advised that a conflict of interest
may exist
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between such Party's interests and those of the other Parties;
(b) Such Party has been advised by the Corporation's counsel to
seek the advice of independent counsel; and
(c) Such Party has had the opportunity to seek the advice of
independent counsel.
ARTICLE XVI
STOCK TRANSFER RECORD
The Corporation shall maintain a stock transfer book in which shall be
recorded the name and address of each Shareholder. No Transfer or issuance of
any Shares of the Corporation shall be effective or valid unless and until
recorded in such stock transfer book. The Corporation agrees not to record any
Transfer or issuance of shares of stock in such stock transfer book unless the
Transfer or issuance is in strict compliance with all provisions of this
Agreement. Each Shareholder agrees that, if such Shareholder desires to make a
Transfer within the provisions hereof, such Shareholder shall furnish to the
Corporation evidence of compliance with this Agreement.
ARTICLE XVII
AGREEMENTS BY CORPORATION
The Corporation, by its duly authorized officers for itself and its
successors and assigns, agrees that:
(a) The Corporation and the Shareholder(s) who are parties
to this Agreement enter into this Agreement on the date
indicated next to each individual's signature.
(b) It shall not issue, transfer or reissue any shares of
stock in violation of any provision of this Agreement; and
(c) All certificates representing shares of stock that may
be issued by the Corporation under this Agreement or which
are held by the Shareholders shall bear a legend in
substantially the form specified in Article II hereof.
ARTICLE XVIII
ASSIGNMENT; BINDING EFFECT, FURTHER ASSURANCES
This Agreement shall not be assignable by any Party without the prior
written consent of the other Parties. Subject to the foregoing, this Agreement
shall inure to the
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benefit of and shall be binding upon each of the Parties hereto and their
respective heirs, personal representatives, administrators, successors and
permitted assigns, and the parties hereby agree for themselves and their heirs,
personal representatives, administrators, successors and permitted assigns to
execute any instruments and to perform any acts which may be necessary or
helpful to carry out the purposes of this Agreement.
ARTICLE IX
INTERPRETATION AND RULES OF CONSTRUCTION
The Article headings and captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the context shall require, all words
herein in the masculine gender shall be deemed to include the feminine or neuter
gender, all singular words shall include the plural, and all plural words shall
include the singular. The parties acknowledge and agree that each Party has
reviewed this Agreement and that any rule of construction resolving ambiguities
against the drafting party shall not be employed in the interpretation of this
Agreement or any amendment hereto.
The Corporation and the Shareholders who are parties to this Agreement
enter into this Agreement on the a indicated next to each individual's
signature.
HFE, LTD.
By: Xxxxxxx Xxxxxxx 2/4/02
----------------- ------
President of the General Partner Date
TCB LEXSYS LTD.
By: *illegible 2/4/02
---------- ------
Secretary Date
GDV DUNDAS FAMILY LIMITED PARTNERSHIP
By:
---------- ------
E-Z AUTH. MANAGEMENT CO.
By: Xxxxxxx Xxxxxxx 2/4/02
----------------- ------
President
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