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EXHIBIT 10.3.49
R E S T A T E D S T O C K H O L D E R S
A G R E E M E N T
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April 17, 1998
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XXXX TECHNOLOGIES, INC., a Delaware corporation (the "Company") and each of the
stockholders (each, a "Stockholder" and collectively, the "Stockholders") of the
Company who has signed this Agreement or who has subsequently become a party to
this agreement hereby agree as follows:
P R E A M B L E:
The Stockholders and the Company desire to provide for the transfer of
shares of common stock, par value $.001, of the Company ("Common Stock") and to
restate the Stockholders Agreement entered into by the Company and the
Stockholders on March 14, 1996.
TERMS:
ARTICLE 1. TRANSFER RESTRICTIONS.
SECTION 1.1. TRANSFERS OF STOCKHOLDERS' COMMON STOCK. Except as
provided in Section 1.3, 1.4 and 1.5 below, no interest in Common Stock that is
owned, directly or indirectly, by any Stockholder on the date such Stockholder
became a party to this Agreement or is subject to an option, warrant or other
right to purchase in favor of the Stockholders existing on the date such
Stockholder became a party to this Agreement or any other securities of the
Company issued in respect thereof in any recapitalization (all of which may be
referred to herein as "Subject Shares") may be given, sold, pledged or otherwise
transferred to or owned by any person, and the Company shall not register on its
books any transfer in violation of this Section 1.1.
SECTION 1.2 LEGENDS. Any certificate representing any Subject Shares
shall bear the following legends in larger or other contrasting type or color:
These securities have not been registered under the Securities Act of
1933. These securities may not be offered for sale, sold or otherwise
transferred unless they are registered under the Securities Act of 1933 or they
or such offer, sale or transfer are exempt from such registration and the Issuer
has received an opinion of counsel reasonably satisfactory to the Issuer in form
and substance, to that effect.
The transfer of these shares is restricted by the terms of a Restated
Stockholders Agreement among the Corporation and certain of its Stockholders
dated April 17, 1998. Except as provided in such Agreement, these shares may not
be given, sold, pledged or otherwise transferred. The Corporation will mail to
the Stockholder a copy of such Agreement without charge within five days after
receipt of written request therefor.
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SECTION 1.3. RIGHT OF FIRST REFUSAL.
(a) If a Stockholder is permitted to sell any of his Subject Shares
pursuant to a bona fide offer to purchase Subject Shares owned by him (an
"Offer") (such Stockholder is referred to as a "Seller") such Seller shall not
sell his Subject Shares until such Seller abides by the provisions of this
Section 1.3 and shall send a copy of the Offer (a "Notice of Offer") to the
Company within five (5) days after his receipt thereof.
(b) After the Company receives notice of Offer, the Company may notify
the Seller within thirty (30) days of the date of the Offer (the "Response
Period") that it desires to purchase the Subject Shares subject to the Offer
pursuant to its right of first refusal under this Section 1.3 in which case the
Seller shall not sell the Subject Shares subject to the Offer pursuant to the
Offer and shall sell the Subject Shares subject to the Offer to the Company on
the terms and subject to the conditions of the Offer. Such notice from the
Company is referred to as a "Response" herein.
(c) If the Company sends a Response to the Seller during the Response
Period stating that the Company desires to purchase the Seller's Subject Shares
for the per share cash consideration to be paid to the Seller pursuant to the
Offer, the Seller shall not sell his Subject Shares pursuant to the Offer and
shall sell his Subject Shares to the Company.
(d) If the Company elects to purchase the Seller's shares as provided
in Section 1.3(c), such election shall be binding upon the Seller and on the day
after the end of the Response Period, the Seller shall notify the Company of a
time and place during regular business hours on a regular business day within 60
days of the date of the Offer when the Seller and the Company shall meet for the
purpose of completing the sale of the Seller's Subject Shares. At such meeting
the Company shall deliver a certified or cashiers' check to the Seller in an
amount equal to the per share price set forth in the Offer multiplied by the
number of Subject Shares to be purchased by the Company. The Seller shall
deliver the certificates representing such Subject Shares to the Company duly
endorsed for transfer and free and clear of all adverse claims (other than
restrictions on transfer under this Agreement and applicable federal and state
securities laws or those that are imposed by or through the Company).
(e) If (i) the Seller delivers a copy of the Offer as provided in
Section 1.3(a) and (ii) the Company fails to (a) deliver a Response within the
Response Period or (b) having exercised any of its right of first refusal under
this Section 1.3, fails to take up and pay for the Subject Shares as required
herein, the Seller may sell his shares pursuant to the terms and conditions of
the Offer within sixty (60) days of the date of the Offer. If the sale of
Subject Shares, pursuant to the Offer is not completed within sixty (60) days of
the date of the Offer, the Offer shall be invalid and the Seller may not sell
any of his Subject Shares pursuant thereto. No such sale shall be consummated
unless: (i) the purchaser agrees in writing to comply with each of the
provisions of this Agreement that apply to the Stockholders and agrees that such
purchaser shall, upon the acquisition of the Subject Shares, be deemed to be one
of the Stockholders hereunder and shall be bound by the terms hereof; and (ii)
the sale to the purchaser is in compliance with all applicable federal and state
securities laws and the Company has received (at is sole option) an opinion of
counsel, in form and substance reasonably satisfactory to Company, to the effect
that such Subject Shares or their sale or transfer are so in compliance.
SECTION 1.4. PERMITTED TRANSFERS. The transfer restriction imposed by
Section 1.1 above shall not apply to:
(a) any bona fide gift to a member of the immediate family of the donor
or to a trust solely for the benefit of the donor or a member of his immediate
family; provided, however, that (i) the Stockholder shall notify the Company of
such gift or transfer before he makes it; (ii) the donee shall execute a written
instrument in which such donee agrees to be bound by
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and comply with the provisions of this Agreement; and (iii) if such gift is not
in compliance with all applicable federal and state securities laws and the
Company has not received (at its sole option) an opinion of counsel, in form and
substance reasonably satisfactory to the Company, to the effect that such gift
is so in compliance, no such gift shall be made; or
(b) any transfer under the terms of the will of a Stockholder or
pursuant to the laws of descent and distribution applicable to a Stockholder,
provided however, that the transferee shall execute a written instrument in
which such transferee agrees to bound by and comply with the provisions of this
Agreement.
Any Subject Shares transferred pursuant to the provisions of this
Section 1.4 remain Subject Shares hereunder and the donee or transferee thereof
shall be treated as a "Stockholder" for the purposes of this Agreement.
SECTION 1.5. OTHER TRANSFERS. If any Stockholder: (a) is required to
transfer any or all of his Subject Shares pursuant to the final order of a
domestic relations court, or (b) is the subject of an order for relief granted
under Title 11 of the United States Code or any similar law, and his Subject
Shares are to be transferred pursuant to the order of the applicable court, the
Company shall have the right to purchase such Subject Shares for the Fair Market
Value of Subject Shares as determined by the applicable court before such shares
are transferred.
"Fair Market Value" means the price at which the Subject Shares would
change hands between a willing buyer and willing seller, neither being under any
compulsion to buy or to sell and both having knowledge of relevant facts. In
determining the Fair Market Value of Subject Shares, consideration shall be
given to the transfer restrictions imposed on the Subject Shares, the minority
position of the applicable Stockholder and the lack of a resale market for the
shares of Common Stock of the Company, but no consideration need be given to any
information concerning plans for the Company to make a public offering of its
Securities or to be acquired by or merged with or into another firm or entity.
SECTION 1.6. TERMINATION. The provisions of Article 1 shall terminate
when the Common Stock of the Company has been registered and sold in a
firm-commitment underwriting after the date hereof.
ARTICLE 2. MISCELLANEOUS.
SECTION 2.1. THIS AGREEMENT. This Agreement is an amendment and
restatement of the Stockholders Agreement entered into by the Company and the
Stockholders on March 14, 1996. This Agreement sets forth the entire agreement
of the parties with respect to the subject matter hereof and supersede and
discharge all prior agreements (written or oral) and negotiations and all
contemporaneous oral agreements concerning such subject matter and negotiations.
There are no oral conditions precedent to the effectiveness of this Agreement.
SECTION 2.2. OPTION STOCKHOLDERS. The parties to this Agreement hereby
consent to the admittance of persons who become Stockholders, by receiving newly
issued shares of Common Stock, a transfer in compliance with Article 1 of this
Agreement or exercising an option for the purchase of Common Stock, as parties
to this Agreement.
SECTION 2.3. SUCCESSORS AND ASSIGNMENT; TERMINATION OF RIGHTS. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto, and except as otherwise specifically provided in this
Agreement, their respective heirs, legal representatives, and successors.
Neither this Agreement, nor any rights herein granted may be assigned,
transferred or encumbered by any party, unless otherwise specifically provided
herein. Upon the transfer of all of a Stockholder's Subject Shares and the
payment therefor as provided in this Agreement, such Stockholder shall no longer
have any rights under this Agreement.
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SECTION 2.4. SEVERABILITY. The terms of this Agreement are severable
and the invalidity of all or any part of any term of this Agreement shall not
render invalid the remainder of this Agreement or the remainder of such term. If
any term of this Agreement is so broad as to be unenforceable, such term shall
be interpreted to be only so broad as is enforceable.
SECTION 2.5. NOTICES. Any notice, request or other communication
required or permitted to be given under this Agreement shall be in writing and
deemed to have been properly given: (a) when delivered, if delivered in person;
(b) when sent, if sent by telecopy or other electronic means and confirmation of
receipt is received; (c) the day designated as the delivery date, if sent by
nationally recognized overnight courier service; or (d) two (2) days after being
sent, if sent by certified or registered United States mail, return receipt
requested, postage prepaid, addressed to the party at the address set forth next
to such party's signature hereto and with such copies delivered, transmitted or
couriered or mailed to such persons as are specified therein. Any party may
change his address for notices in the manner set forth above.
SECTION 2.6. SATURDAYS, SUNDAYS AND HOLIDAYS. Where this Agreement
authorizes or requires a payment or performance on a Saturday, Sunday or public
holiday, such payment or performance shall be deemed to be timely if made on the
next succeeding business day.
SECTION 2.7. THIRD PARTIES. Nothing herein expressed or implied is
intended or shall be construed to give any person other than the parties hereto
any rights or remedies under this Agreement.
SECTION 2.8. GOVERNING LAW. The validity, terms, performance and
enforcement of this Agreement shall be governed by laws of the State of Ohio
that are applicable to agreements negotiated, executed, delivered and performed
solely in the State of Ohio.
SECTION 2.9. COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which shall constitute one and the same instrument, and
any party hereto may execute this Agreement by signing one or more counterparts.
SECTION 2.10. CASE AND GENDER. In this Agreement words in the singular
number include the plural, and in the plural include the singular; and words of
the masculine gender include the feminine and the neuter, and when the sense so
indicates words of the neuter gender may refer to any gender.
SECTION 2.11. ARBITRATION. Any disputes, controversies or claims
arising out of or relating to the negotiation, execution, delivery, performance
or breach of this Agreement shall be settled by arbitration conducted if
Franklin County, Ohio in accordance with the Commercial Arbitration Rules of the
American Arbitration Association and judgment upon the award rendered by the
arbitrators may be entered in any Court having jurisdiction thereof. If the
amount claimed or disputed in such arbitration is equal to or more than One
Hundred Thousand Dollars ($100,000), it shall be conducted before a panel of
three arbitrators. All proceedings before and papers submitted to any arbitrator
hereunder shall be held in the strictest confidence by the parties, the
arbitrators and any attorneys participating therein.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Address the Company:
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XXXX TECHNOLOGIES, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx, President
the Stockholders:
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NEOPROBE CORPORATION
000 Xxxxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxx, Xxxx 00000-0000
By: /s/ Xxxxx Xxxx
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Xxxxx X. Xxxx, President
00000 Xxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000 /s/ Xxxxxxx X. Xxxxx
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XXXXXXX X. XXXXX
0000 Xxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 /s/ Xxxx X. Xxxxxxxxx
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XXXX X. XXXXXXXXX
0000 Xxxxxxx Xxxx
Xxxxxxxx, Xxxx 00000 /s/ Xxxxxxx XxXxxxxx
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XXXXXXX XXXXXXXX
0000 Xxxxx Xxxxx 00 XX
Xxxxxx, Xxxx 00000 /s/ Xxxxx X. Xxxxxxxxx
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XXXXX X. XXXXXXXXX
XXXXXXX & XXXXX, LTD.
0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxx 00000
By: /s/ X. X. Xxxxxxx, Xx.
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Name: X. X. Xxxxxxx, Xx.
Title: Member
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 /s/ Xxxxxx X. Xxxxxxx
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XXXXXX X. XXXXXXX
0000 Xxxxx Xxxx
Xxxxxxxxxxx, Xxxx 00000 /s/ Xxxxxxx Xxxx
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XXXXXXX XXXX
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