Exhibit 10.2
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this"Agreement") is made as of September 30, 1999,
by and among ECONOMETRICS, INC., a Colorado corporation (the "Company"), XXXXXXX
HEALTHCARE, INC., a Delaware corporation (the "Investor"), and XXXXXX X. XXXXXXX
("XxXxxxx"), XXXXXX X. XXXXXXX III ("Xxxxxxx") and WCI, INC. ("WCI" and together
with XxXxxxx, the "Stockholders").
RECITALS
A. Each Stockholder owns the number of shares of Common Stock, no par
value per share, of the Company (the "Common Stock") set forth opposite the name
of such Stockholder on ANNEX I.
B. Pursuant to the 8% Convertible Debenture Purchase Agreement (the
"Purchase Agreement") dated of even date herewith by and among the Company and
the Investor, the Investor purchased from the Company $2,000,000 aggregate
principal amount of the Company's 8% Convertible Debentures due 2004 (the
"Debenture").
C. The Debenture is convertible, at the option of the Investor, into
shares of Common Stock (the "Conversion Shares").
D. The parties wish to provide for the terms with respect to certain
matters regarding the relationship between the Company and its stockholders and
among such stockholders. The parties agree as follows:
ARTICLE I
DEFINITIONS
The following terms shall have the following meanings:
"BOARD" means the Board of Directors of the Company.
"CONVERSION SHARES" means the shares of Common Stock issuable upon
conversion of the Debenture, and any shares of capital stock issued on any of
the foregoing as a stock dividend or upon any stock split or other subdivision
of shares of capital stock.
"EQUITY SECURITIES" means all shares of capital stock of the Company,
all securities convertible into or exchangeable for shares of capital stock of
the Company, and all options, warrants, and other rights to purchase or
otherwise acquire from the Company shares of such capital stock, or securities
convertible into or exchangeable for shares of such capital stock.
"GROUP" means:
(a) IN THE CASE OF ANY STOCKHOLDER WHO IS AN INDIVIDUAL,
(i) such Stockholder, (ii) the spouse and lineal
descendants of such Stockholder, and (iii) all trusts
for the benefit of any of the foregoing;
(b) IN THE CASE OF ANY STOCKHOLDER WHICH IS A
PARTNERSHIP, (i) such Stockholder and any affiliate
thereof, (ii) its partners, and (iii) any person or
entity to which such Stockholder shall Transfer all
or substantially all of its assets;
(c) IN THE CASE OF ANY STOCKHOLDER WHICH IS A LIMITED
LIABILITY COMPANY, (i) such Stockholder and any
affiliate thereof, (ii) its managing and non-managing
members, and (iii) any person or entity to which such
Stockholder shall Transfer all or substantially all
of its assets; and
(d) IN THE CASE OF ANY STOCKHOLDER WHICH IS A
CORPORATION, (i) such Stockholder and any affiliate
thereof, (ii) all stockholders thereof who hold more
than 50% of the shares of the capital stock entitled
to vote for the election of directors of such
Stockholder, and (iii) any person or entity to which
such Stockholder shall Transfer all or substantially
all of its assets.
"NEW SECURITIES" means all Equity Securities issued by the Company
after the date hereof.
"PERSON" shall be construed broadly and shall include an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or a
governmental entity (or any department, agency or political subdivision
thereof).
"PRO RATA AMOUNT" means, with respect to any Investor, the quotient obtained by
dividing (i) the number of shares of Common Stock held by such Investor by (ii)
the aggregate number of shares of Common Stock held by all Investors, assuming
in each case the conversion, exchange or exercise of all Equity Securities that
are not Common Stock.
"SHARES" means the Conversion Shares and the Stockholder Shares.
"STOCKHOLDER SHARES" means the shares of Common Stock held by the
Stockholders on the date hereof, any Equity Securities acquired by the
Stockholders hereafter, and any shares of capital stock issued thereon as a
stock dividend or upon any stock split or other subdivision of shares of capital
stock.
"THIRD PARTY" means, with respect to any Person, any person or entity
that is not a member of the Group of such Person.
"TRANSFER" means to issue, sell, transfer, assign, pledge or otherwise
dispose of, either voluntarily or involuntarily and with or without
consideration.
2
"VOTING SHARES" means the shares of capital stock of the Company
entitled to vote for the election of directors.
ARTICLE II
MATTERS RELATING TO THE BOARD
2.1 BOARD REPRESENTATION.
(a) The Company and each Stockholder shall take such corporate actions
as may be reasonably required to ensure that the number of directors
constituting the Board is at all times seven.
(b) Subject to the terms of this Agreement and the Purchase Agreement,
the Investor shall be entitled (A) to nominate two individuals for election to
the Board to serve as directors until their successors are elected and qualified
(the "Investor Nominees"), (B) to nominate each such successor to the Investor
Nominees, and (C) to propose the removal from the Board of any director
nominated under the foregoing clause (A) or (B).
(c) Each nomination or any proposal to remove from the Board any
director pursuant to paragraph (b) above shall be made by delivering to the
Company a notice signed by the Investor. As promptly as practicable after
delivery of such notice, the Company shall take or cause to be taken such
corporate actions as may be reasonably required to cause the election or removal
proposed in such notice. Such corporate actions may include calling a meeting or
soliciting a written consent of the Board, or calling a meeting or soliciting a
written consent of the stockholders of the Company.
(d) Notwithstanding the foregoing, in the event the number of directors
is increased above seven, the number of Investor Nominees shall be increased
such that the number of Investor Nominees serving as director is not less than
20% of the total number of directors of the Company.
2.2 VOTING AGREEMENT.
Each Stockholder shall vote all Voting Shares held, directly or
indirectly, by such Stockholder (including Voting Shares with respect to which
such Stockholder has voting power or control and shares with respect to which
such Stockholder acquires voting control after the date hereof) for the election
to the Board of all Investor Nominees and for the removal from the Board of all
directors proposed to be removed in accordance with Section 2.1(b). Each
Stockholder shall use all reasonable efforts to cause each director to vote for
the election to the Board of all Investor Nominees.
2.3 BOARD MEETINGS, EXPENSES.
The Company shall convene meetings of its Board not less frequently
than quarterly. The Company shall reimburse the reasonable out-of-pocket
expenses of directors incurred in connection with attending Board meetings.
3
2.4 BOARD COMMITTEES.
The Board shall form an executive committee, an audit committee and a
compensation committee of the Board. Each committee of the Board, including the
executive, audit and compensation committees, shall include at least one
director who is an Investor Nominee.
ARTICLE III
TRANSFER OF SHARES
3.1 LIMITATIONS ON TRANSFERS.
(a) Each Stockholder shall not Transfer any Shares except (i) in
accordance with Sections 3.1 or 3.2 hereof, (ii) with the prior written approval
of the Investor, or (iii) to any other member of the Group of such Stockholder,
but each such transferee may Transfer such Shares only to any other member of
the Group of the Stockholder initially relying on the foregoing exception. As a
condition to the effectiveness of any such Transfer, the transferee shall
execute a counterpart to this Agreement, whereupon such transferee shall be
bound by, and entitled to the benefits of, this Agreement with respect to the
transferred Shares in the same manner as the transferring Stockholder.
(b) Any Transfer of Shares by any Stockholder not in accordance with
paragraph (a) above shall be void.
3.2 TAG-ALONG RIGHTS.
(a) In the event any Stockholder proposes to Transfer, in a transaction
or a series of transactions, 25% or more of the Shares of such Stockholder to a
Third Party, such Stockholder shall first deliver to the Investor a written
notice (the "OFFER NOTICE") not less than 45 days prior to the date of Transfer.
Such Offer Notice shall include a description of the purchase price and the
other terms on which such Stockholder proposes to Transfer Shares to such Third
Party (such Offer Notice shall include the foregoing information and all other
relevant terms of the proposed Transfer). The Investor shall have the right and
option, for a period of 45 days after receipt of an Offer Notice (the
"ACCEPTANCE PERIOD"), to elect to participate in the proposed Transfer at the
same price and on the same terms specified in the Offer Notice by delivering to
the selling Stockholder a notice (the "CO-SALE NOTICE"), during the Acceptance
Period, specifying the number of Shares (not to exceed the Investor's Co,,Sale
Percentage of the Shares to be Transferred in the contemplated Transfer) with
respect to which the Investor exercises its right under this Section.
(b) Each selling Stockholder shall use his or its best efforts to
obtain the agreement of the prospective Transferee to the participation of the
Investor.
(c) The Investor shall effect its participation in the sale or transfer
by delivering to the selling Stockholder for Transfer to the prospective
Transferee one or more certificates, properly endorsed for Transfer,
representing (i) the type and number of shares of Common Stock the Investor
elects to sell or (ii) that portion of the principal amount of the Debenture
that is at such time convertible into the number of shares of Common Stock
Investor elects to sell; provided however , that if the prospective Transferee
objects to the delivery of a portion of the Debenture
4
in lieu of Common Stock, the Investor shall convert such portion of the
Debenture into Common Stock and deliver Common Stock as provided above. The
Company agrees to make any such conversion concurrent with the actual transfer
of such shares to the purchaser.
(d) The stock certificate or certificates that the Investor delivers to
the selling Stockholder shall be transferred to the prospective Transferee in
consummation of the sale of Shares pursuant to the terms and conditions
specified in the Offer Notice, and the selling Stockholder shall concurrently
therewith remit to the Investor that portion of the sale proceeds to which the
Investor is entitled by reason of its participation in such sale. To the extent
that any prospective purchaser refuses to purchase securities from the Investor,
the selling Stockholder shall not sell to such prospective Transferee any Shares
unless and until, simultaneously with such sale, the selling Stockholder shall
purchase such Shares from the Investor for the same consideration and on the
same terms and conditions as described in the Offer Notice.
(e) As used herein, "Co-Sale Percentage" means the percentage
determined by dividing the number of Shares held by the Investor by the
aggregate Shares held by the selling Stockholder(s) delivering the Offer Notice
(in each case determined on a fully diluted basis).
(f) In the event any Shares subject to Section 3.2 are not Transferred
by the selling Stockholder during the 45-day period following the expiration of
the offer contained in the related Offer Notice, the restrictions set forth in
Section 3.2 shall again become applicable to any Transfer of such Shares by the
selling Stockholder.
ARTICLE IV
RIGHT OF FIRST REFUSAL
4.1 RIGHT OF FIRST REFUSAL.
(a) During the term of this Agreement, the Company hereby grants to the
Investor the right of first refusal to purchase New Securities which the Company
may from time to time propose to sell. In the event the Company proposes to
undertake a sale of New Securities, it shall give to the Investor written notice
(the "Notice") of its intention, which notice shall describe the price and the
principal terms upon which the Company proposes to sell such New Securities. The
Investor shall have ten (10) days from the delivery of the Notice to exercise
its right of first refusal to purchase such Common Stock by giving written
notice to the Company stating the quantity of such New Securities to be
purchased accompanied by payment of the purchase price therefor.
(b) If effective acceptance shall not be received pursuant to Section
4.1(a) with respect to all New Securities, the Company may issue such excess or
any portion thereof to any Person on terms and conditions that are no more
favorable to such Person than upon the terms stated in the Offer within 90 days
after expiration of the date of the Notice. If such issuance is not made within
such 90-day period, the restrictions provided for in this Section shall again
become effective.
5
ARTICLE V
MISCELLANEOUS
5.1 XXXXXXX TRANSACTION.
XxXxxxx and the Company agree that, at the request of the Investor, the
outstanding amounts owed by the Company to XxXxxxx as well as outstanding
amounts owed by XxXxxxx to the Company will be restructured as follows (or in a
manner reasonably acceptable to the Investor, XxXxxxx and the Company):
Restructuring: (a) the Company would pay to XxXxxxx a portion of the
deferred compensation owed by the Company to XxXxxxx in an amount equal to the
amount XxXxxxx owes to the Company plus an amount necessary to gross up the
payment to cover the estimated personal income tax XxXxxxx will incur upon such
payment; (b) simultaneously, XxXxxxx would repay all amounts he owes to the
Company; and (c) the Balance of the deferred compensation owed by the Company to
XxXxxxx would be converted to Common Stock of the Company at a conversion price
of $.4315 per share. SCHEDULE 5.1 hereto sets forth a complete and accurate
description of all amounts owed by the Company to XxXxxxx and all amounts owed
by XxXxxxx to the Company.
5.2 LEGEND ON STOCK CERTIFICATES.
Each certificate representing Shares that are subject to this Agreement
shall bear a legend substantially in the following form:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, OR ENCUMBRANCE OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE RIGHTS OF THE HOLDER
OF SUCH SECURITIES IN RESPECT OF THE ELECTION OF DIRECTORS ARE SUBJECT
TO A STOCKHOLDERS' AGREEMENT DATED AS OF ____________, 1999, AMONG
ECONOMETRICS, INC., XXXXXXX HEALTHCARE, INC. AND CERTAIN OF THE
STOCKHOLDERS OF ECONOMETRICS, INC. COPIES OF SUCH AGREEMENT MAY BE
OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF ECONOMETRICS, INC."
5.3 SEVERABILITY; GOVERNING LAW.
If any provision of this Agreement shall be determined to be illegal
and unenforceable by any court of law, the remaining provisions shall be
severable and enforceable in accordance with their terms. This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of Illinois.
5.4 ASSIGNMENTS; SUCCESSORS AND ASSIGNS.
The rights of the Stockholders under this Agreement may not be
assigned, except in connection with any permitted Transfer of Shares by any
Stockholder on the terms expressly provided herein. The
6
rights of the Investor may be assigned, in whole or in part, to any transferee
of all or part of the Debenture provided that the Investor gives prior written
notice of the assignment of all or part of its rights under this Agreement and
the transferee agrees to be bound by the terms hereof. This Agreement may not be
assigned by the Company. This Agreement shall bind and inure to the benefit of
the parties and their respective successors, permitted assigns, legal
representatives and heirs.
5.5 AMENDMENTS.
This Agreement may only be modified or amended by an instrument in
writing signed by the Company, the Stockholders and the Investor.
5.6 NOTICES.
All notices, claims, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered or if sent by nationally-recognized overnight courier, by
telecopy, or by registered or certified mail, return receipt requested and
postage prepaid, addressed as follows:
if to the Company:
Econometrics, Inc.
One Illinois Center
000 Xxxx Xxxxxx Xxxxx,
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Chairman and Chief Executive Officer
With copy to:
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxxxx
if to any Stockholder, to its or his address set forth on Annex I or II, as the
case may be;
If to Investor:
Xxxxxxx Healthcare, Inc.
000 Xxxxxxxxxx Xxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Telecopier: (000) 000-0000
7
Attention: Xxxxxx X. Xxxxxxx, Xx., Chairman of the Board, President and Chief
Executive Officer
With copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
Peachtree
Xxxxxxx, Xxxxxxx 00000
Telecopy: (000) 000-0000
Telephone (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
or to such other address as the party to whom notice is to be given may have
furnished to the other parties in writing in accordance herewith. Any such
notice or communication shall be deemed to have been received (a) in the case of
personal delivery, on the date of such delivery, (b) in the case of
nationally,,recognized overnight courier, on the next business day after the
date when sent, (c) in the case of telecopy transmission, when received, and (d)
in the case of mailing, on the fifth business day following that on which the
piece of mail containing such communication is posted.
5.7 HEADINGS.
The headings of the sections of this Agreement have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Agreement.
5.8 NOUNS AND PRONOUNS.
Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of names and pronouns shall include the plural and vice versa.
5.9 ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties with
respect to the subject matter hereof and supersedes all prior agreements and
understandings with respect to such subject matter.
5.10 COUNTERPARTS.
This Agreement may be executed in any number of counterparts, and each
such counterpart hereof shall be deemed to be an original instrument, but all
such counterparts together shall constitute but one agreement.
5.11 TERMINATION.
This Agreement shall terminate at the end of the "Applicable Period" as
such term is defined in the Purchase Agreement.
(Signatures on next page)
8
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement on the date first above written.
ECONOMETRICS, INC.
By: /s/ Xxxxxx X. XxXxxxx
------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Chairman/CEO
Attest:
By: /s/ A. Xxxx XxXxxxx
-----------------------------
Name: A. Xxxx XxXxxxx
Title: President/CFO
STOCKHOLDERS:
/s/ Xxxxxx X. XxXxxxx
----------------------------------
Xxxxxx X. XxXxxxx
WCI, Inc.
By: /s/ Xxxxxx X. Xxxxxxx III
------------------------------
Name: Xxxxxx X. Xxxxxxx III
Title: President
----------------------------------
Xxxxxx X. Xxxxxxx III
9
INVESTOR:
XXXXXXX HEALTHCARE, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
------------------------------
Xxxxxx X. Xxxxxxx, Xx.
Chairman of the Board, President and Chief
Executive Officer
10
ECONOMETRICS, INC.
STOCKHOLDERS' AGREEMENT
DATED AS OF SEPTEMBER 30, 1999
11
