EXHIBIT 4.5
STOCKHOLDERS' AGREEMENT
BY AND AMONG
XXXXXXX X. XXXXX
XXXXXX X. XXXXXX
XXXXXX XXXXX
XXXXXX XXXXXX
XXXXXXX XXXXXX
XXXXXXX XXXXXX
XXXX XXXXXXXXX
XXXXXX X. QUICK, III
XXXXXX X. QUICK
AND
VITAL LIVING, INC.
(A NEVADA CORPORATION)
DATED: NOVEMBER 20, 2002
STOCKHOLDERS' AGREEMENT
TABLE OF CONTENTS
Page
----
1. CORPORATE GOVERNANCE 2
1.1. Board of Directors. 4
1.2. Initial Officers of the Company. 5
1.3. Certain Actions Requiring Majority Vote. 6
2. MISCELLANEOUS 6
2.1. Term. 7
2.2. Injunctive Relief. 7
2.3. Notices. 9
2.4. Governing Law. 9
2.5. Headings. 9
2.6. Entire Agreement; Amendment. 9
2.7. No Waiver. 9
2.8. Counterparts.
STOCKHOLDERS' AGREEMENT
AGREEMENT dated as of November 19, 2002 by and among XXXXXXX X. XXXXX,
an individual having an office at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, XX 00000,
("XXXXX"); XXXXXX X. XXXXXX an individual having an office at 0000 Xxxxx 00xx
Xxxxxx, Xxxxxxx, XX 00000 ("XXXXXX"), XXXXXX XXXXXX, an individual having an
office at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, XX 00000 ("HANNAH"), XXXXXX XXXXX, an
individual having an office at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, XX 00000
("XXXXX"), XXXXXXX XXXXXX, an individual having an office at 000 Xxxx Xxxxxx,
Xxxxxxx, XX 00000 ("COPPEL"), XXXX XXXXXXXXX, an individual having an office at
000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 ("XXXXXXXXX"), XXXXXXX XXXXXX, an individual
having an office at 000 Xxxx Xxxxxx, Xxxxxxx, XX 00000 ("XXXXXX"), XXXXXX X.
QUICK, III, an individual having an office at 000 Xxxx Xxxxxx, Xxxxxxx, XX 00000
("XXXXXX QUICK"), XXXXXX X. QUICK, an individual having an office at 000 Xxxx
Xxxxxx, Xxxxxxx, XX 00000 ("XXXXXX QUICK"); and VITAL LIVING, INC., a Nevada
corporation having an office at 0000 Xxxxx 00xx Xxxxxx, Xxxxx 000, Xxxxxxx, XX
00000-0000 (THE "COMPANY"). Edson, Benson, Hannah and Xxxxx, are collectively
referred to as the "FOUNDERS GROUP" and Coppel, Maffetone, Xxxxxx, Xxxxxx Quick
and Xxxxxx Quick, are collectively referred to herein as the "MAF GROUP". Each
of the parties hereto (other than the Company) and any other person who shall
hereafter become a party to or agree to be bound by the terms of this agreement
(the "Agreement") is sometimes referred to as a "STOCKHOLDER" and all of such
parties are referred to as the "STOCKHOLDERS."
W I T N E S S E T H:
WHEREAS, the Company and the MAF Group are parties to a stock purchase
agreement dated October 23, 2002 (the "Stock Purchase Agreement"); and
WHEREAS, immediately prior to the closing of the Stock Purchase
Agreement, and not giving effect to the proposed financing referenced in Section
7.1(f) of the Stock Purchase Agreement, there were 13,684,116 shares of the
Company's common stock, $.001 par value per share ("COMMON STOCK") outstanding;
WHEREAS, the execution and delivery of this Agreement is a condition to
the closing of the Stock Purchase Agreement;
WHEREAS, pursuant to the Stock Purchase Agreement, the members of the
MAF Group listed on Schedule 1 hereto will be issued an aggregate of 2,500,000
shares of Common Stock ("ACQUISITION STOCK"); of which 1,250,000 shares of
Acquisition Stock are being held in escrow pursuant to the terms of the Stock
Purchase Agreement and a certain Securities Escrow Agreement of even date
herewith (the "Escrow Agreement");
WHEREAS, as of the closing of the Stock Purchase Agreement and the
agreements contemplated thereby, the holdings of Common Stock and options,
warrants or convertible securities to purchase Common Stock by the Founders
Group and the MAF Group (COLLECTIVELY, THE "SHARES") will be as follows:
NUMBER OF OPTIONS,
STOCKHOLDER NAME NUMBER OF SHARES WARRANTS OR CONVERTIBLES
---------------- ---------------- ------------------------
Xxxxxxx X. Xxxxx 2,738,050 1,000,000
Xxxxxx X. Xxxxxx Zero 1,340,000
Xxxxxx Xxxxxx 530,000 Zero
Xxxxxx Xxxxx 2,738,050 500,000
Xxxx Xxxxxx 773,069 TBD
Xxxx Xxxxxxxxx 570,250 TBD
Xxxxxxx Xxxxxx 250,000 Zero
Xxxxxx X. Quick III 390,830 Zero
Xxxxxx X. Quick 312,658 Zero
-2-
WHEREAS, the parties hereto deem it in their best interests and in the
best interests of the Company to provide consistent and uniform management for
the Company and to regulate certain of their rights in connection with their
interests in the Company, and desire to enter into this Agreement in order to
effectuate those purposes.
NOW, THEREFORE, in consideration of the premises and of the covenants,
terms and conditions herein contained, the parties hereto mutually agree as
follows:
1. CORPORATE GOVERNANCE
1.1. BOARD OF DIRECTORS.
(a) NUMBER OF DIRECTORS. The Company shall be governed by a Board of
Directors consisting of seven (7) members. The number of members may not be
increased or decreased except as provided in Section 1.3.
(b) NOMINATION AND ELECTION OF DIRECTORS. The following procedures
shall govern the nomination and election of directors of the Company:
(i) For so long as the Founders Group shall beneficially own at
least 65% of the Shares held by them on the date hereof, they shall be
entitled to nominate and have elected four (4) directors acceptable to
them in their sole discretion (the "Founders Directors").
(ii) For so long as the MAF Group shall beneficially own at
least 65% of the Shares held by them on the date hereof, they shall be
entitled to nominate and have elected three (3) directors (the "MAF
Directors");
(c) INITIAL BOARD OF DIRECTORS. The initial Board of Directors of the
Company shall consist of the following three members:
NAME OF DIRECTOR TYPE OF DIRECTOR
---------------- ----------------
Xxxxxxx X. Xxxxx Founders Director
Xxxxxx X. Xxxxxx Founders Director
Xxxxxx X. Xxxx Founders Director
Xxxxxx Xxxxxx Founders Director
Xxxxxxx Xxxxxx MAF Director
Xxxxxx X. Quick III MAF Director
Xxxxxx Xxxxxx MAF Director
(d) REMOVAL OF DIRECTORS. Except as otherwise provided in this
Section 1.1(d), each holder of Shares agrees not to take any action or to cause
the Company to take any action to remove, with or without cause, any director of
the Company. Notwithstanding the foregoing, the MAF Group and/or the MAF
Directors shall at all times have the right to recommend the removal, with or
without cause, of any MAF Director; and the Founders Group and the Founders
Directors shall have the right to recommend the removal, with or without cause,
any Founders Director. If the removal of any director is recommended as provided
in the immediately preceding sentence, then the Stockholders shall immediately
cause a special meeting of stockholders to be held, or shall act by written
consent
-3-
without a meeting, for the purpose of removing such director, and each
Stockholder agrees to vote all its Shares, or to execute a written consent in
respect of all such Shares, for the removal of such director.
(e) VACANCIES. At any time a vacancy exists on the Board of
Directors, the remaining directors (if any) representing the Stockholder whose
Board seat is vacant shall have the right to designate and elect the person to
fill such vacancy. If no directors representing the Stockholder remain as a
result of such vacancy, the Stockholder shall have the right to designate and
elect the person to fill such vacancy. All holders of Shares shall vote in favor
of electing such designated director to fill the vacancy and all such persons
shall take the necessary actions to amend the by-laws to reflect the provisions
of this Agreement.
(f) COVENANT TO VOTE. Each of the Stockholders agrees to vote, in
person or by proxy, all of the Shares beneficially owned by such Stockholder
(which for all purposes shall include all Acquisition Shares held pursuant to
the Escrow Agreement unless Acquisition Shares are returned to the Company under
the terms thereof, in which event those returned shares shall be excluded), at
any annual or special meeting of stockholders of the Company called for the
purpose of voting on the election of directors or by consensual action of
stockholders without a meeting with respect to the election of directors, in
favor of the election of the directors nominated by the MAF Group and the
Founders Group, respectively, as the case may be, in accordance with Section
1.1(b) hereof. Each Stockholder shall vote the Shares owned by such Stockholder
and shall take all other actions necessary to ensure that the Company's Articles
of Incorporation and By-Laws do not at any time conflict with the provisions of
this Agreement.
(g) QUORUM. No action shall be taken at any meeting of the Board of
Directors of the Company, except for the adjournment of such meeting, unless at
least three Founders Directors and two MAF Directors shall be present. For
purposes of a quorum, any director may be present at any meeting in person, by
means of telephone or similar communications equipment by means of which each
person participating in the meeting can hear and speak to each other or, to the
extent permitted under applicable law, by proxy or by nominee director. No
action shall be taken at any meeting of stockholders of the Company unless a
majority of the Shares beneficially owned by the Founders Group and the MAF
Group are represented at the meeting, in person or by proxy.
(h) COMMITTEES OF THE BOARD. The Board shall appoint such committees,
including an audit committee and a compensation committee, as shall be
permissible under applicable provisions of the Business Corporation Law of the
State of Nevada and as the Board shall deem reasonable and necessary. At least
one member of any such committee shall be an MAF Director.
(i) SPECIAL MEETINGS OF DIRECTORS. Special meetings of the Board may
be called by the President of the Company and shall be called by the President
of the Company or the Secretary of the Company upon the written request of any
Director and the bylaws of the Company shall be amended this effect.
(j) SPECIAL MEETINGS OF STOCKHOLDERS. Special meetings of
stockholders may be called by the Board and shall be called by the President of
the Company or the Secretary of the Company upon the written request of any
Director the bylaws of the Company shall be amended this effect.
(k) BOARD OF DIRECTORS AND OFFICERS OF SUBSIDIARIES. The composition
of the board of directors and officers of each subsidiary of the Company shall
require the approval of a majority of the Directors the bylaws of the Company
shall be amended this effect.
1.2. INITIAL OFFICERS OF THE COMPANY. Each of the Stockholders agrees to
cause the Board of Directors of the Company initially to appoint the following
persons as officers of the Company in the following positions:
-4-
OFFICE NAME
------ ----
Chairman of the Board and Chief Executive Officer Xxxxxxx X. Xxxxx
Vice Chairman, Executive Vice President and Secretary Xxxxxx X. Xxxxxx
President and Chief Operating Officer Xxxxxxx Xxxxxx
Chief Financial Officer Xxxxxxx Xxxxxxxx
If any of such officers are unable to serve, or cease for any reason to be an
officer of the Company, their successors shall be appointed by the Board of
Directors of the Company. The parties hereto agree that the Company should enter
into employment agreements with each officer mentioned above to assure the
Company of such officer's services for a fixed period of time.
1.3. CERTAIN ACTIONS REQUIRING APPROVAL. For so long as the MAF Group
shall collectively own shares at least 65% of the Shares held by them on the
date hereof, without the prior vote of five (5) of the Directors, the Company
shall not, and the MAF Directors and the Founders Directors shall use their
respective best efforts to preclude the Company, directly or indirectly
(including through any Subsidiaries (as hereinafter defined) of the Company)
from taking the following actions:
(a) except as provided in or contemplated by the Stock Purchase
Agreement, purchase, redeem, retire or otherwise acquire, or set aside any
assets or deposit any funds for the purchase, redemption, retirement or other
acquisition of, any shares of any class or series of capital stock of the
Company or any securities convertible into, or exercisable or exchangeable for,
any shares of any class or series of capital stock of the Company;
(b) purchase or otherwise acquire, or cause or permit any Subsidiary
to purchase or otherwise acquire in one transaction or a series of related
transactions (other than purchases of inventory or services in the ordinary
course of business), any significant business or assets from a third party
having a material effect on the Company, whether through stock or asset purchase
or otherwise;
(c) sell, lease, assign or otherwise transfer or dispose of, or
cause or permit any Subsidiary to sell, lease, assign or otherwise transfer or
dispose of, in one transaction or a series of related transactions (other than
sales of inventory or services in the ordinary course of business), all or
substantially all of the Company's assets to a third party which has an effect
on the Company, whether through stock or asset sale or otherwise;
(d) enter into any agreement, or adopt any resolution, or cause or
permit any Subsidiary to enter into any agreement or adopt any resolution, in
respect of (i) any merger of the Company or such Subsidiary with or into any
other corporation, partnership or other entity, (ii) any consolidation of the
Company or such Subsidiary with any other corporation, partnership or other
entity, (iii) any transaction or series of related transactions in which the
Company shall sell or otherwise transfer all or substantially all of the
Company's business, property or assets or (iv) any dissolution, liquidation or
reorganization of the Company; or
(e) alter the size of the Board of Directors.
2. MISCELLANEOUS
2.1. TERM. This Agreement shall terminate on the date of the first to
occur of the following events: (i) the closing of the sale by one or more of the
Founders Group pursuant to one or more offerings registered under the Securities
Act to any person or group of persons who are not, and who do not become, at the
time of sale, parties to this Agreement of a number of Shares equal to at least
50% of the maximum total number of Shares beneficially owned by all of the
Founders Group at any time; (ii) Bankruptcy, receivership, or dissolution of the
Company; (iii) the sale, lease, assignment or other transfer of all or
substantially all of the assets of the Company to a
-5-
third party, whether effected through an asset transaction, a stock transaction,
a merger, or otherwise; (iv) the voluntary agreement of all the parties who are
then bound by the terms hereof; (v) the acquisition of all the Shares by one of
the Stockholders; or (vi) three years from the date of this Agreement.
2.2. INJUNCTIVE RELIEF. It is hereby agreed and acknowledged that it
will be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that in the event of any such failure, an aggrieved person will be irreparably
damaged and will not have an adequate remedy at law. Any such person shall,
therefore, be entitled to injunctive relief, including specific performance, to
enforce such obligations, and if any action should be brought in equity to
enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
2.3. NOTICES. All notices, statements, instructions or other documents
required to be given hereunder, shall be in writing and shall be given either by
hand delivery, by overnight delivery service, by facsimile transmission or by
mailing the same in a sealed envelope, first-class mail, postage prepaid and
either certified or registered, return receipt requested, addressed as follows:
IF TO THE FOUNDERS GROUP, TO: Vital Living, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000-0000
WITH A COPY TO THEIR COUNSEL: Xxxxx X. Xxxx, Esq.
Xxxxx Xxxxxx & Xxxx LLP
0000 Xxxxxx xx xxx Xxxxx
Xxx Xxxxxxx, XX 00000
IF TO THE MAF GROUP, SEND NOTICES MAF Bionutritionals LLC
TO THEM AT THE NOTICE ADDRESS GIVEN 000 Xxxx Xxxxxx
XX THE SIGNATURE PAGE HEREOF: Xxxxxxx, XX 00000
WITH A COPY TO THEIR COUNSEL: Xxxxxx X. XxXxxxx, Esq.
Xxxx Xxxxx LLP
Xxx Xxxxxxxxxx Xxxxx, Xxxxx Xxxxx
Xxxxxx, XX 00000
and to the other parties at their addresses reflected in the stock records of
the Company. Each Stockholder, by written notice given to the Company in
accordance with this Section 2.3 may change the address to which notices,
statements, instruction or other documents are to be sent to such Stockholder.
All notices, statements, instructions and other documents hereunder that are (i)
mailed shall be deemed to have been given on the date of mailing, (ii) sent by
hand delivery or by facsimile transmission shall be deemed to have been given
when received, or (iii) sent by overnight delivery service shall be deemed to
have been given one business day after sent. Whenever pursuant to this Agreement
any notice is required to be given by any Stockholder to any other Stockholder
or Stockholders, such Stockholder may request from the Company a list of
addresses of all Stockholders of the Company, which list shall be promptly
furnished to such Stockholder.
2.4. GOVERNING LAW. Regardless of the place of execution, this Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware, applicable to contracts made and to be performed entirely within such
state.
-6-
2.5. HEADINGS. All headings are inserted herein for convenience only and
do not form a part of this Agreement.
2.6. ENTIRE AGREEMENT; AMENDMENT. This Agreement and the other
agreements referenced herein contain the entire agreement among the parties
hereto with respect to the transactions contemplated herein and supersede all
prior written agreements and negotiations and oral understandings, if any, and
this Agreement may not be amended, supplemented or discharged except by an
instrument in writing signed by all the Stockholders. Concurrently with such
amendment or modification of this Agreement or as soon thereafter as is
practicable the Certificate of Organization and By-Laws of the Company shall be
amended by necessary corporate action. In the event that any Stockholder, or the
Company shall be required, as a result of the enactment, amendment or
modification, subsequent to the date hereof, of any applicable law or
regulations, or by the order of any governmental authority, to take any action
which is inconsistent with or which would constitute a violation or breach of
any terms of this Agreement, then the Stockholders, and the Company shall use
their best efforts to negotiate an appropriate amendment or modification of, or
waiver of compliance with, such terms.
2.7. NO WAIVER. No failure to exercise and no delay in exercising any
right, power or privilege of a party hereunder shall operate as a waiver nor a
consent to the modification of the terms hereof unless given by that party in
writing.
2.8. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. Fax copy signatures shall
be given the same effect as original signatures.
[rest of page left blank intentionally - next page is signature page]
-7-
IN WITNESS WHEREOF, the parties here have caused this Agreement to be
duly executed on the date first written above.
MAF BIONUTRITIONALS, LLC VITAL LIVING, INC.
By: By:
--------------------------------- ---------------------------------
Xxxxxxx Xxxxxx, Managing Member Xxxxxxx X. Xxxxx, President
By:
---------------------------------
Xxxxxx X. Xxxxxx,
Executive Vice President
------------------------------------ ------------------------------------
Xxxxxxx X. Xxxxx, Individually Xxxx Xxxxxxxxx, Individually
------------------------------------ ------------------------------------
Xxxxxx X. Xxxxxx, Individually Xxxxxx X. Quick, III, Individually
------------------------------------ ------------------------------------
Xxxxxx Xxxxxx, Individually Xxxxxx X. Quick, Individually
------------------------------------
Xxxxxx Xxxxx, Individually
------------------------------------
Xxxxxxx Xxxxxx, Individually
------------------------------------
Xxxxxxx Xxxxxx, Individually
-8-
SCHEDULE 1
DETAIL OF ACQUISITION STOCK
Name of Holder Number of Shares
-------------- ----------------
Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxx
Xxxxxx X. Quick, III
Xxxxxxx Xxxxxx
Xxxxxx X. Quick
Others Not Party to This Agreement
Escrow 250,000
-----------
TOTAL 2,500,000
===========
-9-
