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EXHIBIT 10.35
STOCKHOLDERS' AGREEMENT
AMONG
CYBERNET HOLDING, INC.
AND
CERTAIN STOCKHOLDERS THEREOF
Dated as of December 8, 1995
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TABLE OF CONTENTS
Page
1. TRANSFER OF EQUITY
SECURITIES ........................................................1
1.1. Rights of First Refusal ......................................1
1.1.1. Transfer Subject to Rights of Company ................1
1.1.2. Transfer .............................................1
1.1.3. Offer ................................................2
1.1.4. Acceptance............................................3
1.1.5. Specified Minimum Purchase............................3
1.1.6. Purchase Price........................................3
1.1.7. Release of Transferor from Restrictions...............3
1.2. Death of a Stockholder........................................4
1.2.1. Execution of Agreement................................4
1.2.2. Rights of Purchase....................................4
1.2.3. Determination of Purchase Price.......................4
1.3. Termination of Employment of a Stockholder....................5
1.3.1. Rights of Purchase....................................5
1.3.2. Determination of Purchase Price.......................5
2. COVENANTS OF THE COMPANY............................................6
2.1. Corporate Existence...........................................6
2.2. Books and Records.............................................6
2.3. Statements, Notices, and Reports..............................6
3. REPRESENTATIONS AND WARRANTIES......................................7
3.1. Representations and Warranties of Non-Individual
Stockholders..................................................7
3.1.1. Organization and Standing.............................7
3.1.2. Authorization.........................................7
3.1.3. Absence of Violation..................................7
3.1.4. Binding Obligation....................................8
3.2. Representations and Warranties of Individual Stockholders.....8
3.2.1. Power and Authority...................................8
3.2.2. Absence of Violation..................................8
3.2.3. Binding Obligation....................................8
3.3. Representations and Warranties of the Company.................9
3.3.1. Organization and Standing.............................9
3.3.2. Authorization.........................................9
3.3.3. Absence of Violation..................................9
3.3.4. Binding Obligation....................................9
4. DEFINITIONS..................................................9
5. TERMINATION.................................................10
6. MISCELLANEOUS...............................................11
6.1. Legend.................................................11
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6.2. Additional Actions and Documents.............................11
6.3. Expenses.....................................................11
6.4. Assignment...................................................11
6.5. Entire Agreement; Amendment..................................12
6.6. Waiver.......................................................12
6.7. Limitation on Benefit........................................12
6.8. Binding Effect...............................................12
6.9. Governing Law................................................12
6.10. Notices.....................................................13
6.11. Headings....................................................13
6.12. Execution in Counterparts...................................13
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STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is entered into as of
December 8, 1995 by and among Cybernet Holding, Inc., a Delaware corporation
(the "Company"), and the stockholders of the Company named on Appendix 1
attached hereto (collectively, the "Stockholders" and individually, a
"Stockholder").
WHEREAS, each of the Stockholders holds such Equity Securities (as
defined in Section 4) in the Company as are set forth opposite such
Stockholder's name on Appendix 1 hereto;
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement in order to provide, among other things, for certain mutual
restrictions relating to the transfer of the Equity Securities (as hereinafter
defined) and other rights and responsibilities as set forth herein; and
WHEREAS capitalized terms used in this Agreement shall have the
meaning ascribed to them in Section 4 hereof;
NOW, THEREFORE, for and in consideration of the foregoing and of the
mutual covenants and agreements hereinafter set forth, the parties hereto agree
as follows:
1. TRANSFER OF EQUITY SECURITIES
1.1. RIGHTS OF FIRST REFUSAL
1.1.1. TRANSFER SUBJECT TO RIGHTS OF COMPANY
None of the Stockholders shall (during his lifetime, in the case of
an individual), without consent of the Company transfer (as defined in Section
1.1.2 hereof) any Equity Securities now or hereafter held or acquired by such
Stockholder to any individual or entity except upon receipt of a bona fide third
party offer (a "Third Party Offer") and after the party desiring to make such
transfer (the "Transferor") shall have first made the offer required by this
Section, and such offer shall not have been accepted as provided in this
Section. Any purported transfer contrary to the terms of this Section shall be
null and void and of no force and effect.
1.1.2. TRANSFER
The term "transfer" as used in this Section shall include a sale,
gift, mortgage, pledge, exchange, assignment or other disposition, including a
disposition
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under judicial order, legal process, execution, attachment or enforcement of an
encumbrance, but shall not include the following: (i) a pledge, grant of
security interest or other encumbrance effected in a bona fide transaction with
an unrelated and unaffiliated pledgee, under a written pledge agreement that
assures that, before any foreclosure may be had thereon, the pledgee shall first
notify the Company of its intent to foreclose and shall first offer the shares
subject to such foreclosure to the Company pursuant to this Section, at the
price and on the other terms and conditions specified in a written offer from a
prospective purchaser (which may be the pledgee), in connection with such
foreclosure; (ii) a transfer (other than by an individual) to a person or entity
(or simultaneous transfers in partial or complete liquidation to or for the
benefit of the persons or entities, if no more than five in number) owning all
of the outstanding common stock of the Transferor or a transfer to a corporation
all of the outstanding common stock of which is directly or indirectly owned by
such Transferor or a transfer to a corporation all of the outstanding common
stock of which is owned by a corporation that owns all the outstanding common
stock of the Transferor; or (iii) a transfer to members of Transferor's
immediate family, or to trustees or custodians for their benefit. In the case of
any transfers described in clause (ii) or clause (iii) of this Section, the
transferees shall hold the Equity Securities subject to the terms of this
Agreement and, as a condition precedent to such transfers, shall be required to
execute and deliver this Agreement. Thereafter, such transferees shall be deemed
to be Stockholders for purposes of this Agreement, but, in the case of transfers
described in clauses (ii) and (iii), Equity Securities in the hands of the
transferees shall be subject to the provisions of this Agreement, including
Section 1.1 hereof, and shall also be subject to purchase by the Company under
Section 1.2 and Section 2.3. For purposes of this Agreement, "immediate family"
shall be deemed to include only the Transferor's spouse, children and
grandchildren.
1.1.3. OFFER
If the Transferor has received a Third Party Offer the Transferor
shall, prior to transferring any or all of its Equity Securities (except as
otherwise permitted in this Section) make to the Company an offer in writing to
sell the Equity Securities proposed to be transferred by the Transferor (the
"Offer"). Attached to the Offer, which shall be sent to the Company, shall be a
statement of intention to transfer, and all particulars, including, but not
limited to, (i) the name(s) and address(es) of the individual or entity making
the Third Party Offer, (ii) the number and class of Equity Securities involved
in the proposed transfer, (iii) a description of all of the terms of the Third
Party Offer (which must include a cash price unless the Third Party Offer
consists partly or wholly of consideration other than cash), and a copy of the
Third Party Offer, and (iv) the address of the Transferor to which notice or
acceptance of the Offer is to be sent.
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1.1.4. ACCEPTANCE
Within 30 days after the receipt of the Offer (the "Offer Period"),
the Company shall notify the Transferor whether or not it desires to purchase
any of the Equity Securities offered and how many of the Equity Securities it
desires to purchase. If a purchase is intended, the notice shall fix a closing
date not more than 30 days after the expiration of the Offer Period.
1.1.5. SPECIFIED MINIMUM PURCHASE
Notwithstanding the foregoing, if the Transferor has received a Third
Party Offer which contains a condition that such prospective purchaser will not
purchase less than the total, or a specified minimum, number of Equity
Securities owned by the Transferor at the time of the bona fide written offer,
then in order to exercise the foregoing options the Company must purchase, in
the aggregate, either (i) all of the Equity Securities offered by the
Transferor, or (ii) no more than that number of Equity Securities which, when
deducted from the total number of Equity Securities being offered by the
Transferor, results in the minimum number of Equity Securities specified in the
bona fide written offer from such prospective purchaser. Otherwise, the Offer
shall be deemed to have been completely rejected by the Company.
1.1.6. PURCHASE PRICE
The purchase price for each share of the Equity Securities purchased
from the Transferor by the Company shall be the same as, and on the same terms
and conditions as, specified in the Third Party Offer. The purchase price shall
be payable in cash. In the event that the Third Party Offer specifies the
payment of consideration other than cash, the purchase price for purposes of
this Section shall be the cash equivalent of such consideration, determined on a
per share basis by the Board of Directors of the Company in good faith.
1.1.7. RELEASE OF TRANSFEROR FROM RESTRICTIONS
If the Company shall fail to purchase the Equity Securities offered
by the Transferor pursuant to the terms of this Section, the Transferor shall be
free for a period of 60 days to sell the offered but unsold Equity Securities to
the individual or entity making the Third Party Offer, for the price and on
terms no more favorable to such transferee(s) than were available to the Company
under the Offer. If the offered but unsold Equity Securities are not so sold by
the Transferor within the 60-day period, all rights with respect to transfer of
the Equity Securities without again complying with the restrictions contained in
this Section shall terminate.
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1.2. DEATH OF A STOCKHOLDER
1.2.1. EXECUTION OF AGREEMENT
Upon the death of any individual Stockholder, the Company may
request (in writing) that this Agreement be executed and delivered by the estate
of the decedent (or the then holder(s) of such Equity Securities as a result of
the death of the decedent), or in the case of Equity Securities that were
transferred to immediate family members prior to the death of the decedent
pursuant to Section 1.1, the transferees of such Equity Securities
(collectively, the "Decedent's Transferees").
1.2.2. RIGHTS OF PURCHASE
If the Company has requested that the Decedent's Transferees execute
and deliver this Agreement and the Decedent's Transferees have not so executed
and delivered this Agreement within 60 days after such request, then the Company
may, but shall not be required to, purchase, and the Decedent's Transferees, at
the request of the Company, shall sell to the Company, the Equity Securities. To
the extent the Company does not so elect, then each other Stockholder who owns
five percent (5%) or more of the total outstanding capital stock of the Company
at such time shall have the right, but not the obligation, to purchase such
Equity Securities. Any purchase of such Equity Securities shall be at the price
determined in accordance with Section 2.2.3 and time periods for notification
and acceptance shall run from the date on which the Company receives notice of
the death of the Stockholder, but otherwise any such purchase shall be effected
in accordance with the terms and conditions of Section 1.1.4.
1.2.3. DETERMINATION OF PURCHASE PRICE
For purposes of this Section, the price per share of the Equity
Securities being purchased shall be the per-share fair market value as
determined by agreement of the Company and the Decedent's Transferees or, if
requested by such Decedent's Transferees, by the appraisal process described
below (which, if requested, shall cause the purchase date to be extended as
necessary to accommodate the completion of the appraisal process). If an
appraisal is requested, then within 30 days after receipt by the Company of
Decedent's Transferees' notice requesting such process, an appraiser shall be
appointed by unanimous action of the Directors of the Company then in office,
or, if requested by such Decedent's Transferees, appointed by the American
Arbitration Association upon application of either the Company or the Decedent's
Transferees. Once appointed, the appraiser shall determine the value of the
shares of the Equity Securities being purchased as of the most recent
practicable date. In connection therewith, the Company shall promptly furnish to
the appraiser such information concerning its financial condition, earnings,
capitalization, business prospects and sales of its
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capital stock as may be reasonably requested. The appraiser shall promptly
notify the Company and the Decedent's Transferees who requested such appraisal
of the appraiser's final determination of value, and the determination shall be
binding upon the Company, the Decedent's Transferees and any other interested
person. The reasonable fees and expenses of the appraiser shall be borne by the
Company.
1.3. TERMINATION OF EMPLOYMENT OF A STOCKHOLDER
1.3.1. RIGHTS OF PURCHASE
Upon termination of the employment of a Stockholder with the
Company, other than by reason of the Stockholder's retirement in accordance with
the normal retirement policies of the Company or the death or permanent and
total disability of such Stockholder, the Company may, but shall not be required
to, purchase from the Stockholder, or in the case of Plan Shares (as defined
below) that were transferred pursuant to Section 2.1 to immediate family members
prior to such termination, the transferees of such Plan Shares (collectively,
the "Employees" and individually, the "Employee"), and the Employees shall sell
to the Company, at the Company's request, any Common Stock of the Company
received by the Employee pursuant to the Cybernet Holding, Inc. 1995 Stock
Option Plan (the "Plan Shares"). To the extent the Company does not so elect,
then each other Stockholder who owns five percent (5%) or more of the total
outstanding capital stock of the Company at such time shall have the right, but
not the obligation, to purchase such Equity Securities. Any purchase of such
Equity Securities shall be at the price determined in accordance with Section
2.3.2 and time periods for notification and acceptance shall run from the date
on which the Company receives notice of the death of the Stockholder, but
otherwise any such purchase shall be effected in accordance with the terms and
conditions of Section 1.1.4.
1.3.2. DETERMINATION OF PURCHASE PRICE
For purposes of this Section, the price per share of the Plan Shares
being purchased shall be the per-share fair market value as determined by
agreement of the Company and the Employee or, if requested by such Employee, by
the appraisal process described below (which, if requested, shall cause the
purchase date to be extended as necessary to accommodate the completion of the
appraisal process). If an appraisal is requested, then within 30 days after
receipt by the Company of Employee's notice requesting such process, an
appraiser shall be appointed by unanimous action of the Directors of the Company
then in office, or, if requested by such Employee, appointed by the American
Arbitration Association upon application of either the Company or the Employee.
Once appointed, the appraiser shall determine the value of the shares of the
Plan Shares being purchased as of the most recent practicable date. In
connection therewith, the Company shall promptly furnish to the appraiser such
information concerning its financial condition, earnings, capitalization,
business prospects and sales of its
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capital stock as may be reasonably requested. The appraiser shall promptly
notify the Company and the Employee who requested such appraisal of the
appraiser's final determination of value, and the determination shall be binding
upon the Company, the Employee and any other interested person. The reasonable
fees and expenses of the appraiser shall be borne by the Company.
2. COVENANTS OF THE COMPANY
The Company hereby covenants as set forth in the following
subsections with each Stockholder as follows:
2.1. CORPORATE EXISTENCE
The Company shall preserve, maintain, and keep in full force and
effect the Company's corporate existence; preserve, maintain, and keep in full
force and effect all rights, franchises, and privileges necessary or desirable
in the normal conduct of the Company's business; and qualify and remain
qualified as a foreign corporation in each jurisdiction in which such
qualification is necessary in view of the Company's business and operations and
the ownership of its properties.
2.2. BOOKS AND RECORDS
The Company shall keep and maintain adequate and proper books and
records of account, in which complete entries are made in accordance with
generally accepted accounting principles consistently applied and in accordance
with all applicable laws, rules, and regulations, reflecting all financial and
other transactions of the Company normally or customarily included in books and
records of account of companies engaged in the same or similar businesses and
activities as the Company. All financial statements that the Company shall
prepare and deliver pursuant to this Agreement (i) shall be in accordance with
the books and records of the Company in all material respects, (iii) subject, in
the case of quarterly financial statements, to year-end adjustments, which shall
not, in the aggregate, be material, shall present fairly the financial position
of the Company as of the respective dates and the results of operations and
changes in financial positions of the Company for the respective periods
indicated, and (iv) shall have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis.
2.3. STATEMENTS, NOTICES, AND REPORTS
The Company shall furnish to each Stockholder:
(1) as soon as practicable after the end of each fiscal year of the
Company, a copy of the balance sheet of the Company as of the end of such fiscal
year and the related statements of income, stockholders' equity, and changes in
financial condition for such fiscal year, all prepared in reasonable detail;
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(2) promptly upon the occurrence of a material adverse change in the
business, operations, prospects, assets, properties, or condition (financial or
otherwise) of the Company, a statement of the chief financial officer of the
Company setting forth the details thereof and the action that the Company
proposes to take with respect thereto; and
(3) promptly upon receipt of a reasonable good faith request from
any Stockholder therefor, such other information respecting the business,
operations, prospects, assets, properties or condition (financial or otherwise)
of the Company as such Stockholder from time to time reasonably may request.
3. REPRESENTATIONS AND WARRANTIES
3.1. REPRESENTATIONS AND WARRANTIES OF NON-INDIVIDUAL STOCKHOLDERS.
Each Stockholder that is a corporation or partnership hereby
represents and warrants to the Company and to each other Stockholder as follows:
3.1.1. ORGANIZATION AND STANDING
Such Stockholder is a corporation or partnership duly organized,
validly existing, and in good standing under the laws of the jurisdiction in
which it is incorporated. Such Stockholder has the corporate or partnership
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.
3.1.2. AUTHORIZATION
Such Stockholder has taken all corporate or partnership action
necessary for it to enter into this Agreement and to consummate the transactions
contemplated hereby.
3.1.3. ABSENCE OF VIOLATION
Neither the execution and delivery of this Agreement, or of any
document or instrument to be executed and delivered by such Stockholder pursuant
hereto, nor the consummation of the transactions contemplated hereby and thereby
will constitute a violation of, or default under, or conflict with, or require
any consent under (other than a violation or default that has been waived or a
consent that has been obtained), any term or provision of the Certificate of
Incorporation or Bylaws or Partnership Agreement of such Stockholder or any
contract, commitment, indenture, lease, or other agreement to which such
Stockholder is a party or by which such Stockholder or any of its assets is
bound.
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3.1.4. BINDING OBLIGATION
This Agreement constitutes a valid and binding obligation of such
Stockholder, enforceable in accordance with its terms, except to the extent that
such enforceability may be limited by bankruptcy, insolvency, and similar laws
affecting the rights and remedies of creditors generally, and by general
principles of equity and public policy; and each document and instrument to be
executed by such Stockholder pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding obligation
of such Stockholder, enforceable in accordance with its terms (with the
aforesaid exceptions).
3.2. REPRESENTATIONS AND WARRANTIES OF INDIVIDUAL STOCKHOLDERS
Each Stockholder who is an individual hereby represents and warrants
to the Company and each other Stockholder as follows:
3.2.1. POWER AND AUTHORITY
Such Stockholder has the legal capacity and all other necessary power
and authority necessary to enter into this Agreement and to consummate the
transactions contemplated hereby.
3.2.2. ABSENCE OF VIOLATION
Neither the execution and delivery of this Agreement, or of any
document or instrument to be executed and delivered by such Stockholder pursuant
hereto, nor the consummation of the transactions contemplated hereby and thereby
will constitute a violation of, or default under, or conflict with, or require
any consent under (other than a violation or default that has been waived or a
consent that has been obtained), any term or provision of any contract,
commitment, indenture, lease, or other agreement to which such Stockholder is a
party or by which such Stockholder or any of his assets is bound.
3.2.3. BINDING OBLIGATION
This Agreement constitutes a valid and binding obligation of such
Stockholder, enforceable in accordance with its terms, except to the extent that
such enforceability may be limited by bankruptcy, insolvency, and similar laws
affecting the rights and remedies of creditors generally, and by general
principles of equity and public policy; and each document and instrument to be
executed by such Stockholder pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding obligation
of such Stockholder, enforceable in accordance with its terms (with the
aforesaid exceptions).
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3.3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to each Stockholder as
follows:
3.3.1. ORGANIZATION AND STANDING
The Company is a corporation duly organized, validly existing, and in
good standing under the laws of Delaware. The Company has the corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby.
3.3.2. AUTHORIZATION
The Company has taken all corporate action necessary for it to enter
into this Agreement and to consummate the transactions contemplated hereby.
3.3.3. ABSENCE OF VIOLATION
Neither the execution and delivery of this Agreement, or of any
document or instrument to be executed and delivered by the Company pursuant
hereto, nor the consummation of the transactions contemplated hereby and thereby
will constitute a violation of, or default under, or conflict with, or require
any consent under (other than a violation or default that has been waived or a
consent that has been obtained), any term or provision of the Certificate of
Incorporation or Bylaws of the Company or any contract, commitment, indenture,
lease, or other agreement to which the Company is a party or by which the
Company or any of its assets is bound.
3.3.4. BINDING OBLIGATION
This Agreement constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms, except to the extent that
such enforceability may be limited by bankruptcy, insolvency, and similar laws
affecting the rights and remedies of creditors generally, and by general
principles of equity and public policy; and each document and instrument to be
executed by the Company pursuant hereto, when executed and delivered in
accordance with the provisions hereof, shall be a valid and binding obligation
of the Company, enforceable in accordance with its terms (with the aforesaid
exceptions).
4. DEFINITIONS
Capitalized terms used in this Agreement shall have the meaning
ascribed to them as follows:
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"Act" shall mean the Securities Act of 1933, as amended.
This "Agreement" shall mean this Stockholders' Agreement.
The "Company" shall mean Cybernet Holding, Inc., a Delaware
corporation.
"Equity Securities" shall mean any share of any class or series of
capital stock of the Company or any right or option to acquire any share of
capital stock of the Company, and shall include the Plan Shares and the
Preferred Stock.
"Initial Public Offering" shall mean the first public sale of any
securities of the Company pursuant to the registration provisions of Section 6
of, or the provisions of Regulation A under, the Act, with an aggregate public
offering price of at least $5,000,000.
"Offer" shall have the meaning ascribed to that term in Section
1.1.3.
"Offer Period" shall have the meaning ascribed to that term in
Section 1.1.4.
"Plan Shares" shall mean any Common Stock of the Company received
by an employee or non-employee director of the Company or any of its
subsidiaries pursuant to the Cybernet Holding, Inc. 1995 Stock Option Plan.
"Preferred Stock" shall mean the Preferred Stock of the Company, with
the rights, privileges, and preferences set forth in the Certificate of
Incorporation of the Company.
5. TERMINATION
The rights and obligations of the parties under this Agreement shall
irrevocably terminate on the occurrence of any of the following events: (i) the
voluntary or involuntary dissolution of the Company; (ii) the consummation of an
Initial Public Offering (as defined in Section 4) by the Company; (iii) an
acquisition, consolidation, or merger of the Company into or with another
corporation that results in the Stockholders owning publicly traded securities;
or (iv) the expiration of five years from the date of this Agreement.
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6. MISCELLANEOUS
6.1. LEGEND
The certificates or other evidence representing the Equity Securities
shall bear a legend (the "Legend") in substantially the following form:
The shares represented by this certificate have not been
registered under the Securities Act of 1933 (the "Act") or
state securities laws and cannot be offered, sold or otherwise
transferred in the absence of registration or the availability
of an exemption from registration under the Act and
regulations promulgated thereunder and applicable state
securities laws. The voting rights with respect to, and sale
or other disposition of the securities represented by this
certificate are restricted by and subject to the provisions of
a Stockholder Agreement dated as of December 8, 1995, a copy
of which is available for inspection at the offices of the
Company.
6.2. ADDITIONAL ACTIONS AND DOCUMENTS
Each of the parties hereto hereby agrees to use its good faith best
efforts to bring about the consummation of this Agreement, and to take or cause
to be taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments, and to
obtain such consents, as may be necessary or as may be reasonably requested in
order to fully effectuate the purposes, terms and conditions of this Agreement,
whether on or after the date of this Agreement.
6.3. EXPENSES
Each party shall pay his or its own expenses incident to the
preparation and negotiation of this Agreement and the transactions contemplated
hereunder, including all legal and accounting fees and disbursements.
6.4. ASSIGNMENT
Neither the Company nor any Stockholder shall assign this Agreement,
in whole or in part, whether by operation of law or otherwise, (a) unless such
person shall have obtained the prior written consent of all the other parties,
or (b) unless and to the extent that such assignment is in connection with a
transfer of Equity Securities described in clause (i), (ii), or (iii) of Section
1.1.2 hereof or a transfer of Equity Securities upon death of such Stockholder.
Any purported assignment of this Agreement contrary to the terms hereof shall be
null and void and of no force and effect.
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6.5. ENTIRE AGREEMENT; AMENDMENT
This Agreement, including the Appendices and Exhibits hereto and
other writings referred to herein or delivered pursuant hereto, constitutes the
entire agreement among the parties hereto with respect to the transactions
contemplated herein, and it supersedes all prior oral or written agreements,
commitments or understandings with respect to the matters provided for herein.
No amendment, modification or discharge of this Agreement shall be valid or
binding unless set forth in writing and duly executed by the party against whom
enforcement of the amendment, modification, or discharge is sought.
6.6. WAIVER
No delay or failure on the part of any party hereto in exercising any
right, power or privilege under this Agreement or under any other instruments
given in connection with or pursuant to this Agreement shall impair any such
right, power or privilege or be construed as a waiver of any default or any
acquiescence therein. No single or partial exercise of any such right, power or
privilege shall preclude the further exercise of such right, power or privilege,
or the exercise of any other right, power or privilege. No waiver shall be valid
against any party hereto unless made in writing and signed by the party against
whom enforcement of such waiver is sought and then only to the extent expressly
specified therein.
6.7. LIMITATION ON BENEFIT
It is the explicit intention of the parties hereto that no person or
entity other than the parties hereto is or shall be entitled to bring any action
to enforce any provision of this Agreement against any of the parties hereto,
and the covenants, undertakings and agreements set forth in this Agreement shall
be solely for the benefit of, and shall be enforceable only by, the parties
hereto or their respective successors, heirs, executors, administrators, legal
representatives and permitted assigns.
6.8. BINDING EFFECT
This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors, heirs, executors,
administrators, legal representatives and permitted assigns.
6.9. GOVERNING LAW
This Agreement, the rights and obligations of the parties hereto, and
any claims or disputes relating thereto, shall be governed by and construed in
accordance with the laws of Delaware (excluding the choice of law rules
thereof).
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6.10. NOTICES
All notices, demands, requests, or other communications which may be
or are required to be given, served, or sent by any party to any other party
pursuant to this Agreement shall be in writing and shall be hand delivered, sent
by overnight courier or mailed by first-class, registered or certified mail,
return receipt requested, postage prepaid, or transmitted by telegram, telecopy
or telex, addressed as set forth on Appendix 1.
Each party may designate by notice in writing a new address to which
any notice, demand, request or communication may thereafter be so given, served
or sent. Each notice, demand, request, or communication which shall be hand
delivered, sent, mailed, telecopied or telexed in the manner described above, or
which shall be delivered to a telegraph company, shall be deemed sufficiently
given, served, sent, received or delivered for all purposes at such time as it
is delivered to the addressee (with the return receipt, the delivery receipt, or
(with respect to a telecopy or telex) the answer back being deemed conclusive,
but not exclusive, evidence of such delivery) or at such time as delivery is
refused by the addressee upon presentation.
6.11. HEADINGS
Section headings contained in this Agreement are inserted for
convenience of reference only, shall not be deemed to be a part of this
Agreement for any purpose, and shall not in any way define or affect the
meaning, construction or scope of any of the provisions hereof.
6.12. EXECUTION IN COUNTERPARTS
To facilitate execution, this Agreement may be executed in as many
counterparts as may be required; and it shall not be necessary that the
signatures of, or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signatures of the persons required to bind any party, appear on one or more of
the counterparts. All counterparts shall collectively constitute a single
agreement. It shall not be necessary in making proof of this Agreement to
produce or account for more than a number of counterparts containing the
respective signatures of, or on behalf of, all of the parties hereto.
-13-
17
IN WITNESS WHEREOF, the undersigned have duly executed this
Agreement, or have caused this Agreement to be duly executed on their behalf, as
of the day and year first hereinabove set forth.
[Corporate Seal] CYBERNET HOLDING, INC.
Attest:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
By:
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
THE STOCKHOLDERS:
ITC HOLDING COMPANY, INC.
Attest:
/s/ J. ▇▇▇▇▇▇▇ ▇▇▇
------------------
By:
Name: J. ▇▇▇▇▇▇▇ ▇▇▇
Title: CFO
SOUTH ATLANTIC VENTURE FUND III,
LIMITED PARTNERSHIP
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------- --------------------
By:
Name:
Title:
{1 of 2 signature pages}
-14-
18
MPX SYSTEMS, INC.
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
--------------------- ------------------
By:
Name:
Title:
PLANT ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇, INC.
Attest:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------- --------------------
By: Plant ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇, Inc.
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ O. ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
O. ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ -- ▇▇▇▇▇▇▇ ▇▇▇▇▇
& Associates, Custodian
/s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------
Marcus ▇▇▇▇▇▇▇ ▇▇▇▇
{2 of 2 signature pages}
-15-
19
APPENDIX 1
THE STOCKHOLDERS
Class of Number of
Stockholder Equity Securities Shares Owned
----------- ----------------- ------------
ITC HOLDING, INC. Preferred Stock 4,000
▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
SOUTH ATLANTIC VENTURE FUND III, Preferred Stock 3,000
LIMITED PARTNERSHIP
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
MPX SYSTEMS, INC. Preferred Stock 200
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇/▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇, INC. Preferred Stock 200
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Preferred Stock 200
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
O. ▇▇▇▇ ▇▇▇▇▇▇▇ Preferred Stock 100
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Preferred Stock 10
1239 ▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-i-
20
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ -- ▇▇▇▇▇▇▇ Preferred Stock 10
▇▇▇▇▇ & ASSOCIATES, CUSTODIAN
▇▇▇▇ ▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
MARCUS ▇▇▇▇▇▇▇ ▇▇▇▇ Preferred Stock 10
1239 ▇. ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
-ii-
21
[ADDITIONAL SIGNATURE PAGES, AS PROVIDED FOR PURSUANT TO AMENDMENT NO. 2 TO
THIS STOCKHOLDERS AGREEMENT, HAVE BEEN OMITTED]
