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EXHIBIT 4.4
STATE OF GEORGIA
COUNTY OF HALL
AMENDED AND RESTATED
SHAREHOLDER AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT, effective as of the first day of
December 1998, is made by and among Xxx X. Xxxxxx, Xxxxx Xxxx Xxxxxx, Xxxxxx X.
Xxxxx, and Xxxxx X. Xxxxx, Xx., (hereinafter referred to as the
"Shareholders"), and ComStar Communications, Inc., a Georgia corporation (the
"Corporation"). The Shareholders hold all of the issued and outstanding shares
of Common Stock (including all outstanding shares of both series of Common
Stock; the "Shares"). The Shareholders wish to further their mutual interests
in the Corporation, as well as the interests of the Corporation, by imposing
certain restrictions and obligations on the transfer of their Shares, and on
other aspects of their mutual agreements.
NOW, THEREFORE, in consideration of the mutual promises contained herein
and the sum of One Dollar ($1.00) paid by each party to the other, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto do hereby
agree as follows:
ARTICLE I. RESTRICTIONS ON TRANSFERS
No Shareholder may sell, transfer, assign, hypothecate, or otherwise
alienate any of his Shares, now or hereafter owned by him, without the written
consent of all other Shareholders, except by giving notice to all other
Shareholders at least thirty (30) days prior to the date of the proposed
transfer. Such notice must be made by certified mail, return receipt requested
and shall set forth the exact provisions of the proposed transfer. The receipt
by the Shareholders of such notice will create an option in each of the other
Shareholders to purchase the Shares proposed to be transferred by such
Shareholder. The Secretary, or any other officer, shall, within five (5) days
of receipt of such notice, give notice of such proposed transfer to all of the
other Shareholders, and they shall have the opportunity to exercise their
options in the manner provided herein. Any sale or transfer or purported sale
or transfer of such Shares shall be null and void unless the terms, conditions,
and provisions of this agreement are strictly observed and followed.
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ARTICLE II. DEATH; INVOLUNTARY TRANSFER
Each Shareholder agrees that upon his death or upon an involuntary
transfer by operation of law, of all or a portion of his Shares, the other
Shareholders shall have an option to purchase all of the Shares transferred,
whether by his death or otherwise. Upon the death of a Shareholder, the
executor or administrator, or upon a transfer, the person acquiring such Shares
(in any such case, the "Transferor") shall promptly notify the Secretary of the
Corporation of such death or transfer. The Secretary shall, within five (5)
days of receipt of such notification, give notice of such death or transfer to
all of the other Shareholders, and they shall have the opportunity to exercise
their options in the manner provided herein. In the event that Shareholders
elect to purchase such Shares, the Transferor shall sell such Shares to those
Shareholders purchasing same.
ARTICLE III. TERMINATION OF OPTION
The option to purchase Shares pursuant to Article I hereof shall
terminate on the date set for the proposed transfer; provided, however, that if
notice of the proposed transfer is delivered to the Shareholders and the
Corporation less than thirty (30) days from the date of such delivery, the
option to purchase Shares pursuant to Article II above shall terminate thirty
(30) days after the delivery of notice to the Corporation of the death of a
Shareholder or of a transfer of Shares. If options to purchase shares are not
exercised in accordance with the procedure outlined in the agreement, the
Shares (a) may be transferred to the proposed transferee as provided in Article
I, or (b) transferred in due course in either case described in Article II
without further restriction on such transfer (but only in the same manner and
on the same terms and conditions as set forth in the notice of proposed
transfer), and said transfer shall be valid and binding; provided, however,
that the transferee, in any case, executes, and agrees to become subject to,
this agreement; and provided, further, that such stock cannot be further
transferred except in accordance with the terms and conditions of this
agreement.
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ARTICLE IV. EXERCISE OF OPTION
Each Shareholder may exercise his option to purchase all or any portion
of the Shares transferred or proposed to be transferred by delivering written
notice, by certified mail, return receipt requested, or by hand delivery, to
the Secretary of the Corporation of his election to purchase, not less than
five (5) days prior to the expiration of the option period, indicating the
number of Shares he elects to purchase. If the total number of Shares which
such Shareholder elects to purchase exceeds the number of Shares available for
purchase, the number of available shares shall be allocated by the Corporation
among the electing Shareholders on the basis of the number of Shares held by
each such electing Shareholder; provided, however, that the options may be
partially exercised by the other Shareholders with the remainder available for
sale by the Shareholder electing to sell his shares. If the Shareholders elect
to purchase any Shares, the Corporation shall immediately deliver written
notice of such election, by certified mail, return receipt requested, to the
Shareholder proposing such transfer or the Transferor, setting forth the names
of each of the Shareholders who have elected to purchase Shares and the number
of Shares purchased by each of such Shareholders. Upon such notification, the
Shareholder proposing the transfer of such Shares or the Transferor shall sell
such Shares to the Shareholders electing to purchase such Shares, on the terms
and conditions provided herein.
ARTICLE V. PURCHASE PRICE
A. If there is a bonafide offer for the purchase of the Shares proposed
to be transferred, the purchase price per Share shall be the total purchase
price offered by the prospective purchaser divided by the number of Shares
proposed to be transferred.
B. If there is no such bona fide offer or if the Shares have been
transferred involuntarily or by operation of law, or by the death of the
Shareholder, the purchase price per Share shall be the fair market value of
such Shares as determined by agreement of the Transferor, or the Shareholder
proposing to transfer such Shares, and those Shareholders electing to purchase
such Shares.
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C. If the parties are unable to agree upon a value as provided in
subsection B the provisions of this subsection shall control the valuation of
the Shares rather than the preceding subsection. The electing Shareholders, as
a group, shall nominate an appraiser, and either the Transferor or the
Shareholder proposing such transfer, as applicable, shall nominate an appraiser
to determine the value of such Shares. If the two appraisers are unable to
agree upon the value of such Shares, both appraisers shall agree upon and
appoint a third appraiser to value such Shares. The opinion of the majority of
the three appraisers shall be conclusively binding on all of the parties
concerned.
ARTICLE VI. METHOD OF PAYMENT
The purchase price of the Shares purchased shall be paid in cash. The
certificates for the shares shall be endorsed by the Shareholder proposing the
transfer, or by the Transferor, and delivered to the purchasing Shareholder(s)
or surrendered directly to the Corporation for issuance of a new certificate to
the purchasing Shareholder(s).
ARTICLE VII. DELIVERY OF SHARES
The Shareholder proposing the transfer or the Transferor shall endorse
and deliver the certificates evidencing the transferred Shares to the
Shareholder(s) or the Corporation at the time the payment of the purchase price
is made as set forth herein. From the time of such transfer, the persons
purchasing such Shares shall be treated as the full owners of such Shares and
will be so registered on the books of the Corporation, and will have full
rights otherwise incident to such Shares.
ARTICLE VIII. INSURANCE
[Intentionally omitted.]
ARTICLE IX. LEGAL REMEDIES ON DEFAULT
In the event a default by a Shareholder (a "defaulting Shareholder") in
any payment on the purchase of Shares hereunder continues for a period of more
than 60 days after notice to the defaulting Shareholder(s), the person required
to sell such Shares hereunder ("Seller") may, at his option, elect to sell such
Shares elsewhere. The Seller may also
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agree with the defaulting Shareholder(s) to alter the terms for the payment of
the purchase price; provided, however, that the Seller may only rescind the
sale if all other Shareholders agree to the rescission.
ARTICLE X. SPECIFIC PERFORMANCE
The Shareholders agree that the Shares of the Corporation cannot be
readily purchased, sold, or evaluated in the open market, that they have a
unique and special value, and the Shareholders would be irreparably damaged if
the terms of this agreement were not capable of being specifically enforced,
and for this reason the Shareholders agree that the purchase of the Shares in
accordance with terms of this agreement shall be specifically enforceable. The
Shareholders further agree that any sale or disposition which does not strictly
comply with the terms and conditions of this agreement may be specifically
restrained, 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.
ARTICLE XI. RESTRICTIONS ON CERTIFICATES
The Shareholders agree that all Share certificates now or hereafter held
by them will be stamped with the following legend prominently on the front of
the certificate, reading as follows:
"THIS SHARE CERTIFICATE IS SUBJECT TO RESTRICTIONS ON TRANSFER. SEE
BACK."
The back side of the certificate is to carry the following endorsement:
"THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS
AND OPTIONS IN REGARD TO ITS PURCHASE AND TRANSFER BY THE PROVISIONS OF A
SHAREHOLDERS AGREEMENT DATED AS OF DECEMBER 1, 1998, A COPY OF WHICH IS ON FILE
IN THE OFFICE OF THE SECRETARY OF THE CORPORATION."
ARTICLE XII. NOTICE
All notices under this agreement shall be mailed to the parties at the
addresses provided under their signatures, provided that any party may change
his mailing address by delivering written notice of such new address to the
Corporation.
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ARTICLE XIII. TERM
A. This agreement shall terminate and the certificates representing
the shares subject to this Agreement shall be released from the terms of this
Agreement on the occurrence of the earliest to occur of the following events:
(i) the consummation of a Qualified Initial Public Offering (as
defined below) of the Common Stock of the Company.
(ii) written agreement of the Company and the parties whose vote
is sufficient to amend this agreement as provided below; or
(iii) dissolution of the Company.
"Qualified Initial Public Offering" shall mean the offer and sale by the
Corporation of its equity securities in a transaction underwritten by an
investment banking firm following the completion of which (i) such equity
securities will be listed for trading on any national securities exchange or
(ii) there will be at least two market makers who are making a market in such
equity securities through the Nasdaq National Market System.
B. Notwithstanding anything to the contrary contained in this
agreement, it shall terminate 20 years from the effective date unless it is
renewed within the 20-year period provided in O.C.G.A. Section 14-2-731.
Amendments to this agreement shall be deemed renewals of this Agreement unless
the amendment states to the contrary. If not sooner terminated, this agreement
shall terminate 21 years after the death of the last to die of any individual
Shareholder of the Company living at the date of this Agreement.
C. Upon the termination of this agreement as provided above, the share
certificates held by each Shareholder shall be surrendered to the Company and
the Company shall issue new certificates for the same number of shares but
without the legend required by this agreement.
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ARTICLE XIV. INUREMENT
Subject to the restrictions against the transfer or assignment as herein
contained, the provisions of this agreement shall inure to the benefit of and
shall be binding upon the assigns, successors in interest, personal
representatives, estates, heirs, and legatees of each of the parties hereto.
Each of the Shareholders agrees that he will not hypothecate or otherwise
create or suffer to exist any lien, claim, or encumbrance upon any of his
shares at any time subject hereto, other than the encumbrance created by this
agreement.
ARTICLE XV. AMENDMENT
Neither this agreement nor any provision hereof may be waived, modified,
terminated or amended except by a written agreement signed by the Company and
the Shareholders holding at least two thirds (2/3) of the Common Stock
(including shares of all series of Common Stock then outstanding, voting as one
voting group) issued and outstanding and entitled to vote then held by all
Shareholders. Any waiver by any party of a breach of any provision of this
agreement shall not operate or be construed as a waiver of any subsequent
breach of that provision or of any other provision hereof. Each of the parties
hereto agrees to execute all such further instruments and documents and to take
all such further action as any other party may reasonably require in order to
effectuate the terms and purposes of this agreement.
ARTICLE XVI. MISCELLANEOUS PROVISIONS
A. This agreement may be executed in any number of counterparts and
each such counterpart shall be deemed to be an original instrument.
B. The parties acknowledge that they are entering into this agreement
freely and voluntarily; that they have ascertained and weighed all the facts
and circumstances likely to influence their judgment herein; that they have
sought and obtained legal advice independently of each other; that they have
been duly apprised of their respective legal rights; that all the provisions
hereof, as well as all questions pertaining thereto, have been fully and
satisfactorily explained to them; that they have given due consideration to
such
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provisions and questions and that they clearly understand and assent to all the
provisions hereof.
C. Each party shall, at the other party's request at any time
hereafter, take any and all steps and execute, acknowledge and deliver any and
all further instruments and assurances that the other party may reasonably
require for the purpose of carrying out the provisions of this agreement.
D. This agreement is and shall be deemed to be a Georgia agreement,
and shall be governed and construed in all respects by and in accordance with
the laws of the State of Georgia.
E. Time is of the essence of this agreement and all of its terms,
conditions and provisions.
F. This agreement supersedes any and all other agreements, whether
oral or in writing, between the parties with respect to this agreement, and
this agreement contains all of the covenants and agreements between the parties
with respect to the subject matter of this agreement in any manner whatsoever.
Each party to this agreement acknowledges that no representations, inducements,
promises, or agreements, orally or otherwise, have been made by any party, or
anyone acting on behalf of any party, that are not embodied in this agreement,
and that no other agreement, statement, or promise not contained in this
agreement shall be valid or binding.
G. If any paragraph, subparagraph, sentence, clause, phrase, or any
portion of this agreement be declared invalid or unconstitutional by any Court
of competent jurisdiction, or if the provisions of any part of this agreement
as applied to any particular situation or set of circumstances shall be
declared invalid or unconstitutional, such invalidity shall not be construed to
affect the portions of this agreement not so held to be invalid, or the
application of this agreement to other circumstances not so held to be invalid.
It is hereby declared to be the intent of the parties to this agreement to
provide for separable and divisible parts, and to hereby adopt any and all
parts hereof as may not be held invalid for any reason.
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H. In the event of a breach or threatened breach by either party of
the obligations under this agreement, the parties acknowledge that the
non-breaching party will not have an adequate remedy at law and shall be
entitled to such equitable and injunctive relief as may be available to
restrain the breaching party from the violation of the provisions of this
agreement. Nothing in this paragraph shall be construed as prohibiting the
other party from pursuing any other remedies available for breach or threatened
breach of this agreement, including the recovery of damages from the breaching
party.
I. If any action at law or in equity is necessary to enforce or
interpret the terms of this agreement, the prevailing party shall be entitled
to reasonable attorneys' fees, costs, and necessary disbursements in addition
to any other relief to which that party may be entitled.
J. The duties and obligations imposed by this agreement and the rights
and remedies available hereunder shall be in addition to, and not in limitation
of, any duties, obligations, rights and remedies otherwise imposed or available
at law.
K. No action or failure to act or to insist in any one or more
instances upon the strict performance of any one or more of the provisions of
this agreement, or to exercise any right herein contained or provided by law by
any party hereto, shall constitute a waiver of any right or duty afforded him
under this agreement, nor shall any such action or failure to act constitute an
approval of or acquiescence in any breach hereunder, nor shall it be construed
as a waiver of the right to subsequently demand strict performance or exercise
such rights, and the rights shall continue unchanged and remain in full force
and effect, except as may be specifically agreed in writing.
L. Additional holders of Shares may join into this Agreement by
executing an agreement to be bound by all of the terms and conditions hereof,
which may be evidenced by the signing of a signature page in the form attached
hereto. Such additional shareholders shall be bound by all of the terms and
shall receive all of the benefits of this agreement on par with the original
signatory shareholders.
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IN WITNESS WHEREOF, the parties hereto have executed this agreement
under seal on the dates indicated by their signatures, to be effective as of
the first day of December, 1998.
[Signatures begin on following page.]
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SHAREHOLDERS
Date:
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/s/ Xxx X. Xxxxxx
--------------------------------(SEAL)
Xxx X. Xxxxxx
Address:
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--------------------------------
Date:
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/s/ Xxxxx X. Xxxxxx
--------------------------------(SEAL)
Xxxxx Xxxx Xxxxxx
Address:
--------------------------------
--------------------------------
Date:
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/s/ Xxxxxx X. Xxxxx
--------------------------------(SEAL)
Xxxxxx X. Xxxxx
Address:
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Date:
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/s/ Xxxxx X. Xxxxx
--------------------------------(SEAL)
Xxxxx X. Xxxxx, Xx.
Address:
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COMSTAR COMMUNICATIONS, INC.
BY: /s/ Xxx X. Xxxxxx
----------------------------------
Xx. Xxx X Xxxxxx, President
(Corporate Seal)
/s/ Xxxxxx X. Xxxxx ATTEST:
----------------------------
Secretary
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COMSTAR COMMUNICATIONS, INC. SHAREHOLDER AGREEMENT
SIGNATURE PAGE FOR ADDITIONAL SHAREHOLDERS
Date:
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Signature
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Please print name
Address:
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AMENDMENT NO. 1 TO
AMENDED AND RESTATED SHAREHOLDER AGREEMENT
AMENDMENT NO. 1 dated this 31st day of August, 1999 by and among
xxxxxxx.xxx, inc. (the "Corporation") and the Shareholders that are parties to
the Amended and Restated Shareholder Agreement, dated as of December 1, 1998,
by and among the Corporation and the Shareholders (the "Original Agreement").
WHEREAS, the Shareholders wish to further their mutual interests in
the Corporation, as well as the interests of the Corporation, by amending the
Original Agreement to permit certain transfers of stock, and
WHEREAS, Article XV of the Original Agreement permits amendment of the
Original Agreement by written agreement signed by certain of the Shareholders,
NOW THEREFORE, in consideration of the mutual premises contained
herein, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto do hereby agree as follows:
1. Article I of the Original Agreement is hereby amended and
restated in its entirety to read as follows:
"(a) No Shareholder may sell, transfer, assign, hypothecate, or
otherwise alienate any of his Shares, now or hereafter owned by him,
without the written consent of all other Shareholders, except by
giving notice to all other Shareholders at least thirty (30) days
prior to the date of the proposed transfer. Such notice must be made
by certified mail, return receipt requested and shall set forth the
exact provisions of the proposed transfer. The receipt by the
Shareholders of such notice will create an option in each of the other
Shareholders to purchase the Shares proposed to be transferred by such
Shareholder. The Secretary, or any other officer, shall, within five
(5) days of receipt of such notice, give notice of such proposed
transfer to all of the other Shareholders, and they shall have the
opportunity to exercise their options in the manner provided herein.
Any sale or transfer or purported sale or transfer of such Shares
shall be null and void unless the terms, conditions, and provisions of
this agreement are strictly observed and followed.
(b) Notwithstanding the foregoing, a Shareholder may freely transfer
any of his Shares at any time to Family Members whether or not for
adequate consideration, by gift, assignment, sale, will, joint tenancy
with right of survivorship, bequest, devise, intestacy or otherwise.
Such transfers may be made outright or in trust, in fee or lesser
estate, or held under a guardianship, conservatorship, or custodian
arrangement. The Shareholders hereby consent to any such transfer
without compliance with the prior notice and approval
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provisions of section (a) above and without creating for other
Shareholders the option to purchase the transferred Shares described
in paragraph (a) above. Solely for purposes of this Article I, "Family
Member" shall mean the spouse, issue (including, step-children and
their issue), siblings, parents, siblings-in-law and parents-in-law of
the Shareholder; any trust created for the exclusive benefit of one or
more of such persons; and any entity owned entirely by the Shareholder
and/or one or more of the Shareholder's Family Members."
2. All other provisions and agreements of the Original Agreement
shall remain unchanged.
[Signatures appear on the following page.]
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IN WITNESS WHEREOF, the undersigned have executed this Amendment No. 1
under seal, to be effective as of the date on which holders of two thirds of
the outstanding Common Stock have signed this Amendment No. 1.
CORPORATION:
xxxxxxx.xxx, inc.
By: /s/ Xxx X. Xxxxxx
--------------------
Name: Xxx X. Xxxxxx
Title: Chairman/President
SHAREHOLDERS:
date: 08-31-99 /s/ Xxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
date: 27-Aug-99 /s/ Xxxxx Xxxx Xxxxxx
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Xxxxx Xxxx Xxxxxx
date: 8/27/1999 /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
date: 8/28/99 /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Xx.
date:
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Xxxx Xxxxxxx
date:
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Xxxxx Xxxxxxx
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date:
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X. Xxxxxx Hood
date:
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Xxxxx Xxxxxxxx
date:
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Xxxxxx Xxxxxxxx
date:
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X. Xxxxxxx Xxxxx
date:
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Xxx Xxxxxxx
date:
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X.X. Xxxxxxx, III
date:
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Xxxxx X. Xxxxxx
date:
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Xxxxxxxx X. Xxxxx
date:
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Xxxxx Xxxxxx
date:
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Xxxxxxx X. Xxxxx Xx.
date:
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Xxxxxx Xxxxx, III
date:
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Xxxx Xxxxx Xxxxxxxx
date:
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Xxxxxxx Xxxxxx, Xx.
date:
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Xxxxx Xxxxxx
date:
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Xxxxxxx Xxxxxx
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Xxxxxx Family Trust
date: By:
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date:
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Xxxxxx X. Xxxxx
date:
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Xxxxx X. Xxxxxxxx
date:
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Xxxxx Xxxxxxxx
date:
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Xxx X. Xxxxxxx
date:
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Xxxxxx X. Xxxxxxx
date:
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Xxxxxx X. Xxxxxx
date: 8/27/99 /s/ Xxxxx X. Xxxxxx
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Xxxxxxxxxxx X. Xxxxxx
date:
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Xxxx X. Xxxxxxx
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