1
--------------------------------------------------------------------------------
STOCKHOLDERS' AGREEMENT
FOR
SIMPLEX MEDICAL SYSTEMS, INC.
Dated: May 15, 1998
--------------------------------------------------------------------------------
2
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT ("AGREEMENT"), made and entered into as of
this 15th day of May, 1998, by and among each of the persons set forth on the
signature page hereto (each a "STOCKHOLDER" and collectively the "STOCKHOLDERS")
and Simplex Medical Systems. Inc., a Colorado corporation (the "CORPORATION").
R E C I T A L S
A. The Stockholders own approximately _ % of the issued and outstanding
common stock, .0001 par value, of the Corporation (the "COMMON STOCK"); and
B. The Stockholders desire to provide for, among other things, the manner
in which they will vote their shares of Common Stock, the approval of certain
significant operating decisions, and for the imposition of certain restrictions
upon the disposition of shares of Common Stock held by the Stockholders;
NOW, THEREFORE, in consideration of the mutual covenants and provisions
herein set forth, and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
CORPORATE STRUCTURE AND OPERATION
1.1 BOARD OF DIRECTORS.
(a) BOARD SIZE. The Board of Directors of the Corporation shall at
all times consist of seven (7) directors, unless otherwise agreed to in
writing by Software and R&P.
(b) ELECTION OF DIRECTORS. At all meetings (and written actions in
lieu of meetings) of stockholders of the Corporation at which directors are
to be elected, each Stockholder shall vote all of such Stockholder's shares
of Common Stock to elect as directors of the Corporation the persons
nominated in accordance with the following provisions:
(i) Software & Healthcare Technology Fund, L.L.C., an Illinois
limited liability company ("SOFTWARE") and Xxxxxxxxx & Partners,
L.L.C., an Illinois limited liability company ("R&P") shall have the
right to nominate two persons (each, a "SOFTWARE DIRECTOR"), who
initially shall be Xxxxxxx Xxxxxxxxx and Xxxxxx Xxxxxx.
1
3
(ii) Automated Health Technologies, Inc., a Florida corporation
("AHT") shall have the right to nominate one person (an "AHT
DIRECTOR") who initially shall be Xxxxx Xxxxx.
(c) SELECTION OF NOMINEES. AHT and R&P shall notify the Corporation
of its nominees not less than forty-five (45) days prior to the
Corporation's annual meeting, and not less than forty-five (45) days prior
to any special meeting at which directors are to be elected. The
Corporation agrees to include the AHT nominee and the Software nominee in
management's slate of nominees to be elected to the Board of Directors and
to recommend to the stockholders of the Corporation the election of such
persons.
(d) REMOVAL. Each Stockholder agrees to vote such Stockholder's
shares of Common Stock to remove a Software Director or a AHT Director upon
request at any time by Software or AHT respectively, provided, that
Software or AHT, as the case may be, shall simultaneously designate a
replacement to fill any vacancy so created.
(e) VACANCIES. Each Stockholder agrees to vote such Stockholder's
shares of Common Stock to fill any vacancy on the Board of Directors caused
by the death, disability, resignation or removal of any Software Director
with a nominee selected by Software and with respect to any AHT Director,
with a nominee selected by AHT.
1.2 MANAGEMENT PROVISIONS. Without limiting the actions that may be
required, by applicable law or otherwise, to be approved by the Board of
Directors, the parties expressly agree that, unless approved by the Software
Directors, the Corporation may not take or agree to take, and no Stockholder
shall cause the Corporation to take or agree to take, any of the following
actions:
(i) wind-up, liquidate, dissolve or reorganize the Corporation
or adopt a plan or proposal contemplating any of the foregoing;
(ii) redeem shares of the Corporation's capital stock; or
(iii) merge, consolidate or combine the Corporation with any
person or sell substantially all of its assets.
1.3 COMMITTEES. The Board of Directors may establish and at all times
maintain any committee that it may deem is in the Corporation's best interest;
provided, that at least one-third (1/3) of the members of any such committee are
Software Directors. The Board of Directors shall establish a Compensation
Committee consisting of three independent directors, who initially shall be
Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxx and a third person chosen by the Board of
Directors. The Compensation Committee shall have the authority to set and
approve the compensation arrangement for the executive officers of the
Corporation.
1.4 AGREEMENT TO VOTE SHARES. Each Stockholder shall vote all of his
shares of Common Stock (or such other securities of the Corporation which
entitle such Stockholder to vote on such matters, including, but not limited to,
shares of any other class of stock of the Corporation entitling
2
4
them to vote on any matter, or otherwise obtain proxies or other rights to vote
capital stock of the Corporation), execute and deliver such further documents,
take such further action and cause its designees on the Board of Directors to
vote in such a manner as may be necessary or desirable to carry out the purposes
and intent of this Agreement, including, without limitation, any amendments to
the Articles of Incorporation or By-Laws which are required by law or prudent
business practices in order to make the terms of this Agreement effective and
binding on the Corporation and all of its stockholders or otherwise to
effectuate any of the terms, conditions, provisions or purposes hereof.
ARTICLE II
RESTRICTIONS UPON AND OBLIGATIONS WITH
RESPECT TO DISPOSITION OF SHARES
2.1 CERTAIN DEFINITIONS. The term "CORPORATION SECURITIES" as used herein
shall mean any shares of capital stock of the Corporation at any time owned or
subscribed for by any party hereto, and any subscriptions, options, warrants,
calls, commitments, or rights of any kind whatsoever to purchase or otherwise
acquire any shares of capital stock of the Corporation.
2.2 GENERAL RESTRICTION. During the term of this Agreement, each
Stockholder covenants and agrees that such Stockholder will not, directly or
indirectly, voluntarily or involuntarily, sell, assign, transfer, pledge,
hypothecate, encumber or otherwise dispose (each, a "TRANSFER") of the
Corporation Securities at any time owned by such Stockholder, or any interest
therein, except for (i) Transfers to Permitted Transferees (as hereinafter
defined), or (ii) Transfers in accordance with the terms and conditions of the
provisions of this Article II. Any attempted Transfer not in accordance with the
terms and conditions of this Agreement shall be void and of no force or effect.
2.3 TAG ALONG RIGHTS. If any Stockholder (each, a "Selling Stockholder")
has received a bona fide written offer (an "Offer") to purchase a majority of
its Corporation Securities in a private transaction from any person other than a
Permitted Transferee (the "PROPOSED TRANSFEREE"), and such Selling Stockholder
desires to accept such Offer, each Stockholder shall have the right to elect to
participate in the contemplated transaction. The Selling Stockholder shall give
the Corporation and each Stockholder written notice of the Offer within three
days of receipt of the Offer, and each Stockholder shall have thirty (30) days
from the date of receipt of such notice to notify the Selling Shareholder of its
election to participate. If any Stockholders elect to participate in the
proposed sale, such Stockholder shall have the right to sell, at the same price
and on the same terms as set forth on the Offer, that number of shares of
Corporation Securities equal to the product of (i) the number of shares of
Corporation Securities owned by it, and (ii) the number obtained by dividing (A)
the number of shares of Corporation Securities to be sold to the Proposed
Transferee pursuant to the Offer by (B) the aggregate number of shares owned by
the Selling Stockholder (the "TAG-ALONG SHARES"). The Tag-Along Shares shall
either (i) be purchased by the Proposed Transferee in addition to the Selling
Stockholder's shares, or (ii) be purchased by the Proposed Transferee in lieu
(and reduction) of the number of shares being sold by the Selling Stockholder.
The Selling Stockholder will use his best efforts to obtain the agreement of the
Proposed Transferee to the participation of the electing Stockholders in such
sale. The Selling Stockholder will be prohibited from transferring any
3
5
of his shares of Corporation Securities to the Proposed Transferee if the
Proposed Transferee declines to allow the participation of the other
Stockholders.
2.4 RESTRICTIVE LEGEND ON SECURITIES. Each stock certificate or instrument
representing any Corporation Securities shall be endorsed with the following
legend:
"The transfer and voting of the shares represented by this
Certificate is restricted under the terms of a Stockholders'
Agreement dated May 15, 1998 by and among the Corporation and
certain of its Stockholders, a copy of which is available in
the office of the Corporation."
2.5 PERMITTED TRANSFERS.
(a) Notwithstanding anything contained in Section 2.2 to the
contrary, a Stockholder may transfer any or all of his Corporation
Securities to a Permitted Transferee, as defined below, subject to the
terms and conditions contained in this Section 2.5.
(b) A "PERMITTED TRANSFEREE" of a Stockholder is hereby defined as
and construed to mean any one or more of the following:
(i) an executor(s), administrator(s) or conservator(s) of the
Stockholder;
(ii) a beneficiary of a deceased Stockholder's will or trust;
(iii) any other Stockholder;
(iv) a trustee or trustees of a trust or a beneficiary or
beneficiaries of a trust created by a Stockholder, but only if (A) the
beneficiary or beneficiaries of such trust are one or more of a group
consisting of the Stockholder, the spouse of the Stockholder and the
descendants and/or the adopted children of the Stockholder or the
Stockholder's parents, and (B) the trustee or other person exercising
dominion or control over such trust is a Stockholder or former
Stockholder; and
(v) a Transferee of a Permitted Transferee if the transfer
would have been permissible under the provisions hereof if made by the
Stockholder who originally transferred the Corporation Securities to
the Permitted Transferee.
(c) All Permitted Transferees shall execute an appropriate
counterpart to this Agreement pursuant to which the Permitted Transferee
agrees to be bound by this Agreement. Until a Permitted Transferee shall
execute such a counterpart to this Agreement, the transfer and conveyance
of the Corporation Securities to such Permitted Transferee shall be void
and of no effect and he or she shall not be deemed a Stockholder hereunder
and shall have none of the rights and benefits of a Stockholder hereunder.
4
6
2.6 PERMITTED SALES. Notwithstanding anything contained in Section 2.2 to
the contrary, a Stockholder may Transfer during each calendar quarter during the
term hereof up to that number of his, her or its Corporation Securities
permitted under the quarterly volume limitations of Rule 144 of the Securities
Act of 1933, as amended, regardless of whether Rule 144 is applicable to such
Corporation Securities being transferred.
2.7 REQUIREMENTS FOR TRANSFER. No Corporation Securities shall be
transferred upon the books of the Corporation, nor shall any sale or transfer or
any other disposition thereof be effective, unless and until (a) all of the
terms and conditions of this Agreement and applicable law have been first
complied with and, with respect to compliance with applicable law, the
Corporation has been provided with an opinion of counsel in form and substance
satisfactory to the Corporation's counsel, and (b) the transferees shall have
executed an agreement in form and substance satisfactory to counsel for the
Corporation to assume and become subject to all of the rights and obligations
hereunder of the party whose Corporation Securities it has acquired, including,
without limitation, the obligation to make payment for any unpaid stock
subscriptions and the obligations and restrictions under Article II hereof with
respect to disposition of the Corporation Securities with the same full force
and effect as if originally a signatory hereto. This Section 2.7 shall not be
applicable to transfers permitted under Section 2.6.
2.8 RIGHTS AND OBLIGATIONS OF TRANSFEROR. Following disposition of all of
its Corporation Securities in compliance with this Agreement, a party hereto
shall have no further rights or obligations hereunder.
2.9 PREEMPTIVE RIGHTS. The Corporation shall not authorize in one
transaction or a series of related transactions, the sale or other issuance of
any Corporation Securities without first offering to each Stockholder (who are,
as defined in the first paragraph of this Agreement, all persons or entities who
sign this Agreement), the right to subscribe for and purchase his, her or its
pro rata portion of such Corporation Securities for the same purchase price and
upon the same terms as the Corporation shall desire to issue and sell such
Corporation Securities; provided, however, that preemptive rights hereunder
shall not apply to Corporation Securities issued to any director, officer or
employee of the Corporation in connection with the compensation of such
individual pursuant to an established employee benefit or other compensation
plan, or in connection with the issuance of Corporation Securities for services
or assets (other than cash or notes). To the extent that any Stockholder elects
not to acquire his, her or its portion of such Corporation Securities pursuant
to the foregoing sentence, the Corporation shall have the right to issue and
sell such Corporation Securities to any person or entity (including another
Stockholder); provided, however, that (i) the terms and conditions of the
issuance and sale of such Corporation Securities shall be substantially similar
to those initially offered to the Stockholders pursuant to the foregoing
sentence and (ii) the per share purchase price of such Corporation Securities
shall not be less than the per share purchase price initially offered to the
Stockholders. The offer to each Stockholder under this Section 2.8 shall be
effected by delivery of written notice thereof by the Corporation to each of the
Stockholders and such offer shall remain open for twenty (20) days after
delivery of such notice. Notice of any Stockholder's intention to accept the
offer made pursuant to this Section 2.8 shall be made in writing to the
Corporation accepting such offer prior to the end of the twenty (20) day period
of such offer. Failure of any Stockholder to timely accept such offer shall be
deemed to be a rejection of such offer.
5
7
No offer needs to be made to any Stockholder if such offer would result in a
violation of any local, state or federal law or regulation.
2.10 PIGGY-BACK REGISTRATION RIGHTS. If the Corporation proposes to file a
registration statement effecting an underwritten public offering of any of
Corporation's capital stock under the Securities Act of 1933, as amended (the
"Act") on its behalf or any of its stockholders, then the Corporation shall in
each case give written notice of such proposed filing to Software and R&P at
least twenty (20) days before the anticipated filing date, and subject to
underwriter approval, such notice shall offer Software and R&P the opportunity
to register such number of Corporation Securities as they may request. The
Corporation Securities to be included in such offering (the "INCLUDED SHARES")
shall be offered on the same terms and conditions as any similar securities of
the Corporation included therein. Notwithstanding the foregoing, if the managing
underwriter or underwriters of such offering delivers an opinion to Software and
R&P that the total number of Included Shares which they or the Corporation and
any other persons intend to be included in such offering is so large as to
materially and adversely affect the success of such offering (including, without
limitation, the price at which such Corporation Securities may be sold) then:
(a) the Corporation may reduce the total amount of Corporation Securities to be
included in such offering to the amount recommended by such managing underwriter
(the "RECOMMENDED AMOUNT"); and (b) the amount of Corporation Securities to be
offered for the account of each person selling shares in the offering shall be
reduced pro rata on the basis of the amount of Corporation Securities requested
to be included in such offering with respect to such person, to the extent
necessary to reduce the total amount of Corporation Securities to be included in
such offering to the Recommended Amount.
ARTICLE III
GENERAL PROVISIONS
3.1 TERM OF THIS AGREEMENT. The provisions set forth in Sections 1.2, 1.3,
and 1.4 and Sections 2.2 through 2.9 shall terminate on the later of (i) May 15,
2000 or (ii) on the ninetieth (9Oth) consecutive day that the bid price for a
share of Common Stock (as reported on all national securities exchanges reported
through the automated quotation system of a registered securities association)
is greater than $4.00. The balance of this Agreement shall terminate on May 15,
2005. No termination of any part of this Agreement, by lapse of time or
otherwise shall affect any rights or obligations created by exercise of any
option to purchase or sell the Corporation Securities in accordance with any of
the provisions of Article II hereof.
3.2 Remedies. Each of the parties to this Agreement acknowledges that (a)
the rights of the Stockholders concerning the restrictions on the transfer of
the Corporation Securities, and in the management and affairs of the Corporation
are unique, and (b) any failure of any Stockholder to perform any of such
party's obligations under this Agreement will cause irreparable harm for which
any remedies at law would be inadequate. Accordingly, each of the parties agrees
that, in the event of any actual or threatened or attempted failure of any party
to perform any of its obligations hereunder, each of the other parties shall, in
addition to all other remedies, be entitled to a decree for
6
8
specific performance of the provisions of this Agreement and to temporary and
permanent injunctions restraining such failure or commanding performance of such
obligations, without being required to show actual damage or to furnish any bond
or other security. In addition to any remedies a Shareholder may have hereunder,
if any Selling Stockholder breaches the provisions of Section 2.3, such Selling
Shareholder shall have the obligation to purchase from the electing Stockholders
that number of Tag-Along Shares such Stockholders desire to sell.
3.3 NOTICES. All notices required or permitted hereunder shall be in
writing, signed by the party giving notice or an officer thereof, and shall be
deemed to have been given when delivered by personal delivery, by Federal
Express or similar courier service, by facsimile or three (3) days after deposit
in the United States mail, registered or certified, with postage prepaid,
addressed as follows:
(A) If to Software and R&P at:
Software & Healthcare Technology Fund, L.L.C.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
with a copy to:
XXXXXXX & XXXXXXXX LTD.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
(B) If to a Stockholder, at his address as reflected on the
Corporation records.
(C) If to the Corporation, at:
000 Xxxxx Xxxx. Xxxxx X,
Xxxxxxxxxx, XX 00000
Attn: President
Fax: (000) 000-0000
or such other address as any party may designate for himself or itself by notice
given to the other parties from time to time in accordance with the provisions
hereof.
3.4 Legal Fees. In the event that any action is filed to enforce any of
the terms, covenants or provisions of this Agreement, the prevailing party in
such action shall be entitled to payment from the other party of all costs and
expenses, including reasonable attorney fees, court costs and ancillary expenses
incurred by such prevailing party in connection with such action.
7
9
3.5 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors and assigns.
3.6 GOVERNING LAW. This Agreement shall be controlled, construed and
enforced in accordance with the substantive laws of the United States and the
State of Illinois, notwithstanding any choice of law conflicts.
3.7 FURTHER ASSURANCES. Each party agrees to cooperate with the others,
and to execute and deliver, or cause to be executed and delivered, all such
other instruments, and to take all such other actions as it may be reasonably
required to take, from time to time, in order to effect the provisions and
purposes hereof.
3.8 COUNTERPARTS. This Agreement may be executed in any one or more
counterparts, each of which shall constitute an original, no other counterpart
needing to be produced and all of which, when taken together, shall constitute
but one and the same instrument.
3.9 HEADINGS. The headings of Articles and subdivisions herein are merely
for convenience of reference and shall not affect the interpretation of any of
the provisions hereof.
3.10 ENTIRE AGREEMENT. This Agreement contains the entire understanding
among the parties with respect to the subject matter of this Agreement. Any
modification hereof may be made only by an instrument in writing signed by all
of the parties hereto.
3.11 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be construed and interpreted in such a manner as to be effective and valid
under applicable law. If any provision of this Agreement or the application
thereof to any party or circumstance shall be prohibited by or invalid under
applicable law, such provision shall be ineffective to the extent of such
prohibition without invalidating the remainder of such provision or any other
provision of this Agreement or the application of such provision to other
parties or circumstances.
3.12 WAIVERS. No delay on the part of any party in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by any party or any remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
3.13 GENDER REFERENCES. Whenever appropriate, the singular form of a word
shall be interpreted in the plural and vice versa. All words and phrases shall
be construed as masculine, feminine or neuter gender, according to the context.
8
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
SIMPLEX MEDICAL SYSTEMS, INC.,
a Colorado corporation
By: /s/ Xxxxx Xxxxx
-----------------------------------
Xxxxx Xxxxx, President
By: /s/Xx. Xxxxxxxx Xxxxxxxxxxx
-----------------------------------
Xx. Xxxxxxxx Xxxxxxxxxxx,
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
SOFTWARE & HEALTHCARE
TECHNOLOGY FUND, L.L.C.,
an Illinois limited liability company
By: Xxxxxxxxx & Partners, L.L.C., its manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
XXXXXXXXX & PARTNERS, L.L.C.,
an Illinois limited liability company
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
AUTOMATED HEALTH TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxxx X Xxxxx Trust
By: /s/ Xxxxx X. Xxxx
---------------------------------------
/s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx
/s/ Xxxxx X. Xxxx
---------------------------------------
Xxxxx X. Xxxx
9
11
/s/ Xxxxx X. Xxxx
-------------------------------------------------
Xxxxx X. Xxxx as custodian for Xxxxxxxx X. Xxxxx
/s/ Xxxxx Xxxx
-------------------------------------------------
Xxxxx Xxxx
/s/ Xxxxxx Xxxx
-------------------------------------------------
Xxxxxx Xxxx
Xxxx Xxxxxx Irrevocable Trust
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
---------------------------------------
Its: Trustee
10
12
EXHIBIT B
The following are the executive officers and directors of Automated Health
Technologies, Inc., and their titles. The business address of each person is
0000 XX 00xx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxx 00000.
NAME TITLE
---- -----
Xxxxxx Xxxxxx President and Director
Xxxxxx Xxxxxx Director
Xxxxx Xxxxx Director
Xxxxxxx Xxxxx Director
Xxxxxx Xxxxxx Director
