STOCKHOLDERS' AGREEMENT
AGREEMENT, made as of January __, 1998, by and among XXXXXX XXXXXXXX,
an individual residing at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("Xxxxxx"), XXXXXX XXXXXXXX, an individual residing at 00 Xxxx Xxxxx, Xxxxxxxxx,
Xxx Xxxx 00000 ("Xxxxxx"), XXXXXXX XXXXXX, an individual residing at
___________________________ ("Xxxxxxx"), XXXXX XXXXX, an individual residing at
___________________________________ ("Xxxxx"), the XXXXXX XXXXXXXX 1998 GRANTOR
RETAINED ANNUITY TRUST (the "Trust"), and PMCC FINANCIAL CORP., a Delaware
corporation located at 00 Xxxxxxxxxx Xxxx, Xxxxxx Xxxxxxx, Xxx Xxxx 00000 (the
"Company"). Ronald, Robert, Xxxxx, Xxxxxxx and the Trust are sometimes
collectively referred to as the "Stockholders."
W I T N E S S E T H:
WHEREAS, Ronald, Robert, Xxxxxxx, Xxxxx and the Trust are currently the
record owners of all of the outstanding shares of the Company (the "Shares");
and
WHEREAS, Xxxxxxx and Xxxxx have granted a proxy to Xxxxxx to vote their
respective Shares; and
WHEREAS, the Company is anticipating an offering of its shares to the
public through an initial public offering ("IPO"); and
WHEREAS, the Stockholders desire to provide for, in advance of the IPO,
among other things, (i) the composition of the Company's Board of Directors;
(ii) continuity in the management, ownership and control of the Company; and
(iii) certain restrictions on transfer of the Securities.
NOW, THEREFORE, in consideration of the mutual promises and other good
and valuable consideration, each of the parties hereto agrees with the other, as
follows:
1. Election of Directors; Management of the Company.
(a) Election of Directors. Each of the Stockholders agrees to
vote, in person or by proxy, all of the shares of Common Stock owned by such
Stockholder, at any meeting of Stockholders of the Company called for the
purpose of voting on the election of directors or by consensual action of
Stockholders with respect to the election of directors, in favor of the election
of the directors as follows:
(i) Xxxxxx shall nominate and vote for Xxxxxx as a member
of the Board of Directors and any other individual whom he sees fit, in his sole
discretion, including himself; and
(ii) Xxxxxx shall nominate and vote for Xxxxxx as Chairman
of the Board of Directors and any other individual whom he sees fit, in his sole
discretion, including himself.
(b) Management of the Company. Each Stockholder shall use his
best efforts to cause the Company to employ Xxxxxx Xxxxxxxx as the Company's
President and Chief Executive Officer and Xxxxxx as Chief Operating Officer,
Secretary and Treasurer.
2. Restrictions on Transfer of Shares. The Stockholders agree that:
(a) No Stockholder shall pledge, assign, sell, gift, transfer
or hypothecate or otherwise dispose of or encumber his Shares, or cause or
permit a change in the legal or beneficial ownership of his Shares, inter vivos
(collectively and individually referred to as a "Transfer"), except as expressly
permitted in this Agreement. Any Transfer requiring consent which is attempted
without such consent shall be null and void and without any force or effect.
(b) Except with respect to a sale of the Shares pursuant to an
effective registration statement (the "Registration Statement") filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
then in effect ("Securities Act"), every transferee of the Shares shall be bound
by the terms and conditions of this Agreement and all amendments hereto without
the requirement for the execution of any further document or agreement.
Nevertheless, each authorized transferee of the Shares shall execute and deliver
to the Corporation, at the transferee's own cost and expense, all documents,
instruments, certificates or agreements required to bind the transferee to the
terms of this Agreement. If the transferee refuses or fails to deliver any such
document, instrument, certificate or agreement within thirty (30) days after
demand thereof by the Corporation, the Transfer of the Shares to such transferee
shall be null and void;
(c) If any of the Shares are subject to attachment by a
creditor or is assigned or held for the benefit of any creditor, the interest
obtained by such creditor or assignee shall be only that of a lienholder, and in
no event shall any such creditor or assignee have any rights as a Stockholder.
(d) All Shares, including any additional Shares that may be
issued to the Stockholders, whether or not acquired or transferred pursuant to
the provisions of this Agreement, shall remain in all respects subject to this
Agreement and every transferee thereof shall by his acceptance be deemed to have
consented thereto.
(e) The restrictions set forth in this Section 2 shall
continue with respect to each share until the date on which such share has been
transferred pursuant to a sale to the public pursuant to an effective
Registration Statement pursuant to the Securities Act.
(f) The Corporation shall not be required to recognize a
Transfer of any Shares on the books of the Corporation unless the Transfer shall
be in compliance with and in accordance with the terms of this Agreement, or if
otherwise mutually agreed to by all of the Stockholders in writing.
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3. Legends.
(a) Each certificate evidencing the Shares and each
certificate issued in exchange for or upon transfer of any of the Shares (if
such Shares remain subject to this Agreement after such transfer) shall be
stamped or otherwise imprinted with a legend in substantially the following
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
CERTAIN STOCKOLDERS AGREEMENT DATED AS OF JANUARY, 1998 BY AND
AMONG THE COMPANY AND CERTAIN STOCKHOLDERS, AND AS SUCH ARE
SUBJECT TO CERTAIN VOTING PROVISIONS AND RESTRICTIONS ON
TRANSFER SET FORTH IN THE STOCKHOLDERS AGREEMENT."
(b) Removal of Legends. Whenever in the opinion of the issuer
of such Shares and counsel reasonably satisfactory to the issuer of such Shares
(which opinion shall be delivered to the issuer of such Shares in writing) the
restrictions described in the legend set forth above cease to be applicable to
any shares, the holder thereof shall be entitled to receive from the issuer
thereof, without expense to the holder, a new instrument or certificate not
bearing a legend stating such restrictions.
4. Right of First Refusal.
(a) Upon receipt by any Stockholder (the "Selling
Stockholder") of a bona fide, arm's length offer in writing (a "Bona Fide
Offer") to purchase any and all Shares held by a Selling Stockholder, the
following provisions shall govern if such Selling Stockholder desires to sell
any such securities in any transaction, other than by a sale pursuant to an
effective Registration Statement:
(i) All sales of Shares must be entirely for cash (whether
or not payable in installments).
(ii) The Selling Stockholder shall promptly offer in
writing (the "First Reoffer") to sell such securities to the other Stockholder
("Offeree"), upon terms and conditions no less favorable than contained in the
Bona Fide Offer and shall attach a copy of the Bona Fide Offer to the First
Reoffer. Such First Reoffer may be accepted at any time by the Offeree within 20
days next following the receipt of the Reoffer (the "Reoffer Period") and such
acceptance must be made unconditionally and in full by the accepting Offeree by
notice to the Selling Stockholder prior to the expiration of the Reoffer Period.
(iii) If the First Reoffer is not accepted within the
Reoffer Period, the Selling Stockholder shall promptly offer in writing (the
"Second Reoffer") to sell such Shares to the Company upon terms and conditions
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no less favorable than contained in the Bona Fide Offer and shall attach a copy
of the Bona Fide Offer to the Second Reoffer. The Second Reoffer may be accepted
by the Company at any time within 20 days next following its receipt.
(iv) If an offer to purchase Shares of the Company is not
in writing, such offer shall not constitute a Bona Fide Offer and may not be
accepted by the Selling Stockholder.
(v) The purchase price for the securities which the
Company or Offeree elects to purchase shall be payable in cash as provided
herein, within 30 days after the exercise of such right to purchase by the
Company or such Offeree. The Company shall cooperate with and facilitate any
such transaction.
(c) Sales to Persons Other than Corporation or Offeree. Upon
the expiration of the First Reoffer and Second Reoffer without any such Reoffer
being accepted in accordance herewith, the Selling Stockholder shall be free to
accept the Bona Fide Offer; provided, however, that
(i) the third person or persons so acquiring such shares
shall prior to such acquisition agree in writing with the Company and the other
Stockholders to hold such securities subject to and in accordance with all of
the terms, provisions and considerations contained in this Agreement to the same
extent as if such person(s) originally executed this Agreement;
(ii) the conclusion of the transaction contemplated by the
Bona Fide Offer shall have been effected within 60 days after the later of the
Second Reoffer, and if not so effected within such 60 day period, the Bona Fide
Offer shall be deemed to have terminated at the end of such period and may not
thereafter be accepted; and
(iii) if the amount of a Bona Fide Offer should be
reduced, or if any of its terms or provisions should otherwise be changed, then
the Bona Fide Offer shall be treated as a new Bona Fide Offer and may not be
accepted unless the provisions of this Section 4 shall have been complied with
and Reoffers made with respect to it.
5. Voting in Violation of this Agreement. Each Stockholder agrees that
he will not vote any Shares owned by him or her or take any other action as a
Stockholder or in any other capacity for the purpose of authorizing or inducing
the Company to take any of the foregoing actions or approving or ratifying the
same in violation of this Agreement.
6. Miscellaneous.
(a) Term. This Agreement shall be effective and binding upon
the parties hereto and their respective successors and assigns as of the date on
which the Securities and Exchange Commission declares effective the Registration
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Statement on Form S-1 of PMCC, filed pursuant to the Securities Act until the
tenth (10th) anniversary of the date hereof.
(b) Notices. Notices or other communications required or
permitted to be given hereunder shall be in writing, and shall be deemed duly
given upon personal delivery or mailing by registered or certified mail, return
receipt requested, to all of the parties at their last known residence or
principal office address, as follows:
If to Xxxxxx: 000 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
If to Xxxxxx: 00 Xxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
If to the Company: 00 Xxxxxxxxxx Xxxx
Xxxxxx Xxxxxxx, Xxx Xxxx 00000
With a copy to: Ruskin Moscou Xxxxx & Faltischek, P.C.
000 Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Such notices shall be effective upon receipt in the case of personal or courier
service or telecopier delivery and on the third (3rd) day after posting in the
U.S. mail.
(c) Governing Law. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance with the laws
of the State of New York without reference to the choice of law, except with
respect to matters of law concerning the internal corporate affairs of PMCC, and
as to those matters the law of the State of Delaware shall govern.
(d) Entire Agreement. This Agreement supersedes all prior
agreements and understandings, oral and written, among the parties with respect
to the subject matter hereof, and this Agreement constitutes the entire
agreement of the parties.
(e) 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.
(f) Severability. If any term, covenant, condition, or
provision of this Agreement or the application thereof to any circumstance shall
be invalid or unenforceable to any extent, the remaining terms, covenants,
conditions, and provisions of this Agreement shall not be affected and each
remaining term, covenant, condition, and provision of this Agreement shall be
valid and shall be enforceable to the fullest extend permitted by law. If any
provision of this Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only as broad as is enforceable.
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(g) Headings. The article, section and other headings
contained in this Agreement are for reference purposes only and shall not be
deemed to be a part of this Agreement or to affect the meaning or interpretation
of this Agreement.
(h) Amendments. This Agreement may not be modified or changed
except by an instrument or instruments in writing signed by all Parties.
(i) Lack of Independent Counsel. The parties all acknowledge
that the Company's counsel, Ruskin, Moscou, Xxxxx & Faltischek, P.C., prepared
this Agreement on behalf of and in the course of its representation of the
Company, and that:
(i) The parties have been advised by Ruskin, Moscou, Xxxxx
& Faltischek, P.C. that a conflict exists among their individual interests; and
(ii) The parties have been advised by Ruskin, Moscou,
Xxxxx & Faltischek, P.C., to seek the advice of independent counsel; and
(iii) The parties have had the opportunity to seek the
advice of independent counsel.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
PMCC FINANCIAL CORP.
By:______________________________
, President
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XXXXXX XXXXXXXX
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XXXXXX XXXXXXXX
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XXXXXXX XXXXXX
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XXXXX XXXXX
XXXXXX XXXXXXXX 1998 GRANTOR
RETAINED ANNUITY TRUST
By:______________________________
Xxxxxx Xxxxxxxx, Trustee
