STOCKHOLDERS' AGREEMENT
This is a STOCKHOLDERS' AGREEMENT ("Agreement"), dated March 6, 2000,
among RHEOMETRIC SCIENTIFIC, INC., a New Jersey corporation (the "Company"),
ANDLINGER CAPITAL XXVI LLC, a Delaware limited liability company ("Investor"),
and AXESS CORP. ("AXESS"). Investor and Axess are sometimes referred to
hereinafter individually as a "Stockholder" and collectively as the
"Stockholders."
Background
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The Company, Axess and the Investor have entered into a Securities
Purchase Agreement dated the date hereof (the "Securities Purchase Agreement")
pursuant to which, among other things, the Company, (i) will sell to the
Investor, and the Investor will purchase from the Company, certain shares of and
Warrants for Common Stock of the Company, and (ii) will issue to Axess Warrants
for certain shares of the Company's Convertible Redeemable Preferred Stock
("Preferred Stock"), upon the terms and subject to the conditions set forth in,
the Securities Purchase Agreement. Capitalized terms not otherwise defined
herein shall have the meanings given such terms in the Securities Purchase
Agreement.
The Stockholders wish to enter into this Agreement to set forth, among
other things, certain limitations with respect to their ownership and transfer
of Securities upon the terms and subject to the conditions set forth herein.
Terms
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In consideration of the promises, covenants and agreements set forth
herein and in the Securities Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
each of the parties hereto, intending to be legally bound hereby, agrees as
follows:
ARTICLE I. Term
Section 1. Term. This Agreement shall become effective concurrently
with the closing of the transactions contemplated by the Securities Purchase
Agreement and shall remain in effect for a period of ten years thereafter (such
period being the "Term") subject to earlier termination as provided in Section
7.
ARTICLE II. Covenants
Section 2. Covenants. During the Term, without the prior written
consent of each of the other Stockholders party hereto, no Stockholder or any
Permitted Transferee of such Stockholder shall Transfer any Securities, except
(a) in the public market in open-market sales made pursuant to a
registration statement filed in connection with "demand" or "piggyback"
registration rights in transactions registered under the Securities Act and
effected after the first anniversary of the Closing Date in accordance with the
terms of the Registration Rights Agreement;
(b) pursuant to an exemption from registration under Rule 144 under the
Securities Act in transactions effected after the first anniversary of the
Closing Date;
(c) to a Permitted Transferee;
(d) pursuant to a tender offer made to all the holders of the Company's
Common Stock;
(e) as collateral security in a bona fide arm's-length loan or credit
transaction, provided the Stockholder retains the authority to vote such
securities in the absence of any default thereunder; and
(f) pursuant to any transaction approved by the stockholders of the
Company (including, without limitation, the reincorporation of the Corporation
from New Jersey to Delaware, the "Reincorporation").
Section 3. Certain Transferees To Be Bound. No Stockholder or Permitted
Transferee may effect any Transfer to a Permitted Transferee unless such
Permitted Transferee executes an agreement pursuant to which such Permitted
Transferee agrees to be bound by the terms and provisions of this Agreement
applicable to the transferor. Any purported Transfer in violation of this
Section 2 shall be null and void and of no force and effect and the purported
transferee shall have no rights or privileges in or with respect to the Company.
The Company shall not register or record or permit a transfer agent to register
or record on the stock record books of the Company any purported Transfer to a
Permitted Transferee unless and until it has received evidence that such
Transfer and the parties thereto have complied with this Section 3. Each
Stockholder acknowledges that the shares of Common Stock issued to it in the
Reincorporation shall continue to be bound by the restrictions set forth in this
Agreement, and agrees to enter into a stockholders agreement in substantially
the form of this Agreement effective upon the Reincorporation with respect to
such shares of Common Stock issued to such Stockholder.
Section 4. Other Restrictions May Apply. Each Stockholder (and
Permitted Transferee who becomes subject to this Agreement) acknowledges that
the restrictions set forth herein are in furtherance and not in limitation of
any other restrictions that may be imposed by the Securities Act, the Exchange
Act or other U.S. federal securities laws and the rules and regulations
thereunder, state securities laws and the rules and regulations thereunder, any
other governmental authority or any rules and regulations of The Nasdaq Stock
Market, Inc. or the National Association of Securities Dealers, Inc.
ARTICLE III. Definitions.
For purposes of this Agreement, the following terms shall have the
following meanings:
Section 1. Affiliate. An "Affiliate" of a person shall have the meaning
set forth in Rule 12b-2 of the Exchange Act as in effect on the date hereof and,
in addition, shall include "Associates" (as defined in Rule 12b-2 of the
Exchange Act as in effect on the date hereof) of such Person and its Affiliates.
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Section 2. Common Stock. "Common Stock" means the common stock, no par
value per share, of the Company.
Section 3. Exchange Act. "Exchange Act" means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated thereunder as
in effect from time to time.
Section 4. Permitted Transferee. "Permitted Transferee" means, with
respect to each of Investor and Axess,
(a) in the case of Investor or any Permitted Transferee of
Investor or Axess, as the case may be, (i) the members of Investor or the
stockholders of Axess, (ii) the spouse or children or grandchildren (in each
case, natural or adopted) or any trust for the sole benefit of the spouse or
children or grandchildren (in each case, natural or adopted) of any member of
Investor or the stockholders of Axess, (iii) the heirs, executors,
administrators or personal representatives upon the death of any member of
Investor or the stockholders of Axess or upon the incompetency or disability of
any member of Investor or the stockholders of Axess for purposes of the
protection and management of the assets of such member; and (iv) any Affiliate
of Investor or its members or of Axess.
Section 5. Person. "Person" means any natural person, group,
corporation, limited liability company, partnership, business association,
trust, firm, government or agency or political subdivision thereof, or other
entity of whatever nature.
Section 6. Registration Rights Agreement. "Registration Rights
Agreement" means the Registration Rights Agreement dated the date hereof among
the Company and the Stockholders.
Section 7. Securities. "Securities" means the shares of Common Stock,
the Warrant or the Preferred Stock, in each case held by any Stockholder or its
Permitted Transferee and all other securities of the Company (or a successor to
the Company) received on account of ownership of such shares of Common Stock,
including all securities issued in connection with any stock dividend, stock
distribution, stock split, reverse stock split, stock combination,
recapitalization, reclassification, subdivision, conversion or similar
transaction in respect thereof, including without limitation any securities
received on account of such ownership in any merger or consolidation.
Section 8. Securities Act. "Securities Act" means the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder as in
effect from time to time.
Section 9. Transfer. "Transfer" means the making of any sale, exchange,
assignment, gift, security interest, pledge or other encumbrance, or any
contract therefor, any voting trust or other agreement or arrangement with
respect to the transfer of voting rights or any other beneficial interest in any
of the Securities, the creation of any other claim thereto or any other transfer
or disposition whatsoever, whether voluntary or involuntary, affecting the
right, title, interest or possession in or to such Securities (but excluding
changes in the membership of Investor).
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ARTICLE IV. Miscellaneous
Section 1. Legends. Each certificate or instrument representing
Securities subject to the terms of this Agreement will bear the following
legends in addition to any other legend required by law:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF A STOCKHOLDERS' AGREEMENT AMONG THE COMPANY AND THE
HOLDERS SPECIFIED THEREIN, A COPY OF WHICH AGREEMENT IS ON FILE AT THE
PRINCIPAL OFFICE OF THE COMPANY. THE SALE, TRANSFER OR OTHER
DISPOSITION OF THE SECURITIES IS SUBJECT TO THE TERMS OF SUCH AGREEMENT
AND THE SECURITIES ARE TRANSFERABLE ONLY UPON PROOF OF COMPLIANCE
THEREWITH.
Section 2. Governing Law; Severability. This Agreement shall be
governed by the laws of the State of New Jersey without giving effect to
conflicts of law principles thereof. If any provision of this Agreement shall be
declared invalid or unenforceable by a court of competent jurisdiction, the
remaining provisions hereof shall remain valid and shall continue in effect.
Section 3. Binding Effect on Successor. This Agreement shall be binding
upon and inure to the benefit of the Company and the Stockholders, and to their
respective successors and permitted assigns, including any successors to the
Company or the Stockholders or their businesses or assets as the result of any
merger, consolidation, reorganization, transfer of assets or otherwise, and any
subsequent successor thereto, without the execution or filing of any instrument
or the performance of any act.
Section 4. Specific Performance. The Stockholders and the Company
acknowledge and agree that irreparable injury to the other party would occur in
the event any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached and that such
injury would not be compensable in damages. It is accordingly agreed that each
part hereto (the "Moving Party") shall be entitled to specific enforcement of,
and injunctive relief to prevent any violation of the terms hereof, and the
other parties hereto will not take action, directly or indirectly, in opposition
to the Moving Party seeking such relief on the grounds that any other remedy or
relief is available at law or in equity. The parties further agree that no bond
shall be required as a condition to the granting of any such relief.
Section 5. No Waiver. Any waiver by any party of a breach of any
provision of this Agreement shall not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision of
this Agreement. The failure of a party to insist upon strict adherence to any
term of this Agreement on one or more occasions shall not be considered a waiver
or deprive that party of the right thereafter to insist upon strict adherence to
that term or any other term of this Agreement.
Section 6. Entire Agreement; Amendments. This Agreement, together with
the Securities Purchase Agreement and other agreements entered into in
connection herewith and
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therewith, constitute the entire understanding of the parties with respect to
the subject matter hereof and thereof. This Agreement may be amended only by a
written instrument duly executed by the parties or their respective successors
or assigns. This Agreement shall create any rights on the part of any person not
a party hereto.
Section 7. Termination. This Agreement shall terminate upon any merger
involving the Company in which the Company is not the surviving corporation; any
sale of all or substantially all of the Company's assets or in the event that
Investor is the beneficial owner of less than 6,300,000 shares (including as
beneficially owned any shares issuable under the Investor A Warrant, but not the
Investor B Warrant).
Section 8. Headings. The section headings contained in the Agreement
are for reference purposes only and shall not effect in any way the meaning or
interpretation of this Agreement.
Section 9. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by hand delivery, facsimile, mail
(registered or certified, postage prepaid, return receipt requested) or
recognized express carrier or delivery service to the respective parties as
follows:
If to the Company, to:
Rheometric Scientific, Inc.
Xxx Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
With a copy to:
Xxxxxxx, Del Deo, Dolan, Griffinger & Xxxxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
if to Investor, to:
Andlinger Capital XXVI LLC
c/o Andlinger & Company, Inc.
000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: 000-000-0000
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with a required copy to:
Dechert Price & Xxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxx, Esq.
Fax: 000-000-0000
If to Axess, to:
Axess Corporation
000 Xxxxxxxxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
Fax: (000) 000-0000
or to such other address as the Person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 10. Further Assurances. From time to time on and after the date
hereof, the Company and the Stockholders, as the case may be, shall deliver or
cause to be delivered to the other party hereto such further documents and
instruments and shall do and cause to be done such further acts as the other
party hereto shall reasonably request to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance herewith or to
assure that it is protected in acting hereunder.
Section 11. Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall be deemed one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Stockholders have executed this
Agreement, or have caused this Agreement to be executed by duly authorized
officers, as of the day and year first above written.
RHEOMETRIC SCIENTIFIC, INC.
By /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ANDLINGER CAPITAL XXVI LLC
By /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
AXESS CORP.
By /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
