AMENDED AND RESTATED
SHAREHOLDER AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER AGREEMENT (the "Agreement") is
entered into this 25th day of August, 1999, by and among Xxxxxxx.xxx, Inc., an
Oklahoma corporation (the "Company"), and (i) the holders of Series B
Convertible Preferred Stock, $.01 par value ("Series B Preferred Stock") named
in Schedule I; and (ii) the holders of Common Stock (as hereafter defined)
listed on Schedule I. This Agreement amends and restates that certain
Shareholder Agreement dated February 29, 1996, and as amended on April 2, 1999.
W I T N E S S E T H:
WHEREAS, the Company has issued shares of Series B Preferred Stock
pursuant to the terms of that certain Series B Convertible Preferred Stock
Purchase Agreement (the "Series B Stock Purchase Agreement") of even date
herewith, and the effectiveness of this Agreement is a condition to the closing
of the transactions contemplated by the Series B Stock Purchase Agreement;
NOW, THEREFORE, for and in consideration of the premises, the mutual
covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Certain Definitions. As used herein, the following terms
shall have the respective meanings indicated:
(a) "Common Stock" means the Company's common stock, $.01 par value.
(b) "Common Shareholders" means the holders of Common Stock listed on
Schedule I.
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(c) "Disposition" means any sale, transfer, encumbrance, gift,
donation, assignment, pledge, hypothecation or other disposition by a Common
Shareholder, whether voluntary or involuntary, during a Common Shareholder's
lifetime.
(d) "Disposition Notice" shall have the meaning given such term in
Section 2 of this Agreement.
(e) "Offered Shares" shall have the meaning given such term in Section
2 of this Agreement.
(f) "Preferred Shareholder" means a holder of Preferred Stock listed
on Schedule I. ----------
(g) "Preferred Stock" means shares of Series B Convertible Preferred
Stock, $.01 par value.
(h) "Pro Rata Part" means, in any particular instance, the proportion
which the number of shares of Underlying Common Stock owned by a Preferred
Shareholder bears to the aggregate number of shares of Underlying Common
Stock owned by all Preferred Shareholders.
(i) "Public Offering" shall have the meaning given such term in
Section 6 of this Agreement.
(j) "Remaining Offered Shares" shall have the meaning given such term
in Section 2 of this
Agreement.
9
(k) "Shares" means (i) any shares of Common Stock owned,
either beneficially or of record, by any Common Shareholder; (ii) any shares of
Common Stock issuable upon the exercise of stock options granted or which may be
granted in the future to a Common Shareholder under the Xxxxxxx.xxx, Inc. 1997
Stock Option Plan, the Xxxxxxx.xxx, Inc. 1999 Stock Option Plan, or any other
stock option or stock purchase plan of the Company which may be adopted in the
future, or (iii) any shares of Common Stock which may be acquired in the future
by a Common Shareholder.
(l) "Shareholder" means each Common Shareholder and Preferred
Shareholder who has executed this Agreement or a counterpart of this Agreement,
whether such counterpart is executed on the date hereof or some earlier or later
date.
(m) "Stock" means all shares of Common Stock and Preferred Stock.
(n) "Third Party" means any person or entity not a Common Shareholder
at the time of determination.
(o) "Transferee" shall have the meaning given such term in Section 2
of this Agreement.
(p) "Underlying Common Stock" means (i) shares of Common Stock now or
in the future issuable or issued upon conversion of the Preferred Stock;
and (ii) all shares of Common Stock now or in the future issued or issuable
in respect of such Common Stock and the Common Stock referred to in clause
(i) by reason of stock splits, stock dividends, combinations, mergers,
exchanges or other reclassifications or recapitalizations.
2. Right of First Offer by Common Shareholders.
(a) Each time a Common Shareholder proposes to make any
Disposition of all or any portion of his Shares, such Common Shareholder (the
"Selling Common Shareholder") shall so inform the Company by notice (the
"Disposition Notice") stating the number of Shares that are the subject of such
proposed Disposition (the "Offered Shares"), and the other terms and conditions
of such proposed Disposition, including the consideration proposed to be
received for the Offered Shares (and, if the proposed Disposition is to be
wholly or partly for consideration other than money, the Disposition Notice
shall state the proposed price as being equal to the amount of the monetary
consideration, if any, plus the fair market value of the other consideration).
By giving the Disposition Notice, the Selling Common Shareholder shall be deemed
to have granted to the Company a first option to purchase the Offered Shares for
the price and upon the terms set forth hereafter and in the Disposition Notice.
(b) Within ten (10) days after the date of any Disposition
Notice, the Company shall notify the Selling Common Shareholder of the number of
Offered Shares, if any, that the Company elects to purchase.
(c) If the Company notifies the Selling Common Shareholder
that it will exercise such option for none or less than all of the Offered
Shares, it shall simultaneously notify the Preferred Shareholders of such fact
and shall deliver a copy of the Disposition Notice to the Preferred
Shareholders. The Preferred Shareholders shall thereupon have an option to
purchase all (but not less than all) of the Offered Shares which the Company
does not elect to purchase (the "Remaining Offered Shares"). If such option is
exercised by all of the Preferred Shareholders, each of them shall purchase his
or its Pro Rata Part of the Remaining Offered Shares; however, if one or more of
the Preferred Shareholders elect to purchase none or less than all of his or its
Pro Rata Part of the Remaining Offered Shares or fail to give notice with regard
thereto, the Preferred Shareholders electing to purchase at least their Pro Rata
Part shall also be required to make up the difference and purchase, pro rata,
all Remaining Offered Shares which otherwise would not be purchased.
(d) Within thirty (30) days after the date of receiving any
Disposition Notice pursuant to Section 2(a) hereof, each of the Preferred
Shareholders shall give notice to the Selling Common Shareholder as to the
number or proportion of the Remaining Offered Shares (if any) such Preferred
Shareholder is willing to purchase. Failure by any Preferred Shareholder to give
such notice shall be deemed an election by him or it not to purchase. Unless one
or more of the Preferred Shareholders elect in such notices to purchase all of
the Remaining Offered Shares, the Selling Common Shareholder shall be free
(subject to the provisions of Section 2 hereof), for a period of ninety (90)
days from the date of such failure to elect to purchase, to make a Disposition
of the Offered Shares to a Third Party (the "Transferee") on terms and
conditions no more favorable to the Transferee than those set forth in the
Disposition Notice, provided that each Transferee shall, prior to a Disposition
to such Transferee, execute and deliver to the Company a valid and binding
agreement to the effect that any Shares so disposed of shall continue to be
subject to all of the provisions of this Agreement. Any Shares not so disposed
of within the period provided herein shall also remain subject to all of the
provisions of this Agreement.
(e) Shares purchased by the Company and/or Preferred
Shareholders pursuant to this Section 2 shall be purchased for the same
consideration and upon the same terms and conditions as are set forth in the
Disposition Notice. (If the Disposition Notice refers to a non-monetary
consideration in whole or in part, the purchaser or purchasers shall pay in cash
the fair market value of the non-monetary consideration.) Any Shares purchased
by a Preferred Shareholder pursuant to this Section 2 shall no longer be
considered Shares or subject to this Section 2 or Section 3.
(f) The closing of a purchase by the Company and/or Preferred
Shareholders shall take place on the nearest business day preceding the 45th day
after the date of the Disposition Notice to the Company. Such closing shall take
place at 10:00 a.m. (Central Time) in the Company office, or at such other date
and at such other time and place that may be agreed to by the parties who are
purchasing and selling the Offered Shares. At the closing the parties shall take
all action necessary to transfer the Offered Shares in accordance with this
Agreement.
3. Right of Co-Sale.
(a) No Common Shareholder may make a Disposition of Shares
pursuant to a Disposition Notice unless such Common Shareholder provides (either
by a purchase by such Common Shareholder or by the Transferee) for a
simultaneous sale of Underlying Common Stock by each Preferred Shareholder of up
to its Pro Rata Part of the number of shares of Common Stock which such Selling
Common Shareholder proposes to sell to such Transferee, for the same price and
on the same terms and conditions which appear in the Disposition Notice.
(b) Within thirty (30) days after receipt of any Disposition
Notice, each Preferred Shareholder shall notify the Selling Common Shareholder
of its intention to sell all or part of his or its Underlying Common Stock for
the price and on the terms and conditions set forth in the Disposition Notice.
If a Preferred Shareholder does not elect to sell its Pro Rata Part of its
Underlying Common Stock pursuant to this Section 3(b), then such Offered Shares
may be disposed of by such a Selling Common Shareholder to the prospective
Transferee named in the Disposition Notice (subject to the provisions of Section
2 hereof), for the price and on the terms and conditions set forth in the
Disposition Notice, at any time within ninety (90) days after each Preferred
Shareholder receives the Disposition Notice, provided that each Transferee
shall, prior to a Disposition to such Transferee, execute and deliver to the
Company a valid and binding agreement to the effect that any Shares so disposed
of shall continue to be subject to all of the provisions of this Agreement. Any
Shares not so disposed of within the period provided herein shall also remain
subject to all of the provisions of this Agreement.
(c) Notwithstanding any other provision hereof, each Preferred
Shareholder may, at its sole option, elect to exercise either its rights
pursuant to Section 2 hereof or its right of co-sale pursuant to Section 3
hereof.
4. After-Acquired Shares. Whenever a Common Shareholder shall hereafter
acquire any additional Shares, such shares so acquired shall be held subject to
all the terms and conditions of this Agreement.
5. Failure to Comply. If any Disposition is purported to be made or
suffered without the giving of notice required by this Agreement, such purported
Disposition shall be void, and the Shares which are the subject thereof shall be
deemed to have been offered to the Company and an option to purchase such shares
granted to the Company and to each holder of Preferred Stock pursuant to this
Agreement as of the date the Company first learns of such purported Disposition,
and thereafter the provisions of this Agreement shall be fully applicable to
such shares as if such offer had actually been made or such options had actually
been granted. Further, if any Shares are the subject of a Disposition not in
accordance with the terms and conditions of this Agreement, such Disposition
shall be void ab initio. In enforcing this provision, the Company may hold and
refuse to transfer any Shares or any certificate therefor tendered to it for
transfer in addition to, and without prejudice to, any and all other rights or
remedies which may be available to it.
6. Termination. This Agreement shall automatically terminate upon the
happening of any of the following events:
(a) permanent cessation of the Company's business activities;
(b) bankruptcy, receivership or dissolution of the Company;
(c) the voluntary agreement of each of: (i) the holders of a majority
of the issued and outstanding shares of Preferred Stock and Underlying
Common Stock; (ii) the holders of a majority of the Shares held by Common
Shareholders; and (iii) the Company; or
(d) the issuance by the Company of its securities in a registered
public offering in which the aggregate offering price to the public (prior
to the deduction of underwriting commissions and expenses) is at least
Fifteen Million Dollars ($15,000,000), and which results in the market
equity capitalization of the Company being equal to or in excess of Fifty
Million Dollars ($50,000,000) and the listing of the Company's securities
on a national securities exchange or on The Nasdaq National Market System
(a "Public Offering").
7. Exceptions.
(a) Notwithstanding anything to the contrary set forth herein, the
provisions of this Agreement shall not apply to any of the following:
(i) Transfers by a Common Shareholder of his or its Shares or any
portion thereof by bequest or inheritance.
(ii) Transfers by a Common Shareholder to members of his immediate
family or in trust for the benefit of such persons. For purposes of the
Agreement, a Common Shareholder's immediate family shall be defined as such
person's spouse, children and grandchildren.
(iii) Transfers by a Common Shareholder to the Company.
(b) For purposes of this Section 7, with respect to any transfers
pursuant to (a)(i) or (a)(ii) above, the transferrees thereof shall take
such Shares as Common Shareholder and the provisions of Section 4 shall
apply to such transfer.
8. Board of Directors. The Shareholders agree to vote their shares of
Stock such that the Board of Directors of the Company will consist of five (5)
members as follows: (i) three (3) persons elected by the holders of Common Stock
(the "Common Directors"), voting as a single class; (ii) two (2) persons elected
by the holders of Preferred Stock, voting as a single class. Any vacancy,
however created, shall be filled by the person elected by the class of voting
stock which elected the Director whose death, incapacity, resignation or removal
caused the vacancy.
9. Right of First Refusal by the Company. The Company shall, prior to
any issuance by the Company of any of its securities (other than debt securities
with no equity feature), offer to each holder of Series B Preferred Stock (the
"New Issuance Offerees"), by written notice the right, for a period of thirty
(30) days, to purchase all of such securities for cash at an amount equal to the
price or other consideration for which such securities are to be issued;
provided, however, that the first refusal rights of the New Issuance Offerees
pursuant to this Section 9 shall not apply to securities issued (A) upon
conversion of any of the shares of Preferred Stock outstanding on the date of
this Agreement or upon conversion of any of the shares of Series B Preferred
issued subsequently pursuant to the Series B Agreement, (B) as a stock dividend
or upon any subdivision of shares of Common Stock, provided that the securities
issued pursuant to such stock dividend or subdivision are limited to additional
shares of Common Stock, (C) pursuant to subscriptions, warrants, options,
convertible securities, or other rights which are listed in Schedule II as being
outstanding on the date of this Agreement, (D) solely in consideration for the
acquisition (whether by merger or otherwise) by the Company or any of its
subsidiaries of all or substantially all of the stock or assets of any other
entity, (E) pursuant to a firm commitment underwritten public offering, (F)
pursuant to the exercise of options to purchase Common Stock granted to
directors, officers, employees or consultants of the Company in connection with
their service to the Company, not to exceed in the aggregate 270,000 shares
(appropriately adjusted to reflect stock splits, stock dividends, combinations
of shares and the like with respect to the Common Stock) less the number of
shares (as so adjusted) issued pursuant to subscriptions, warrants, options,
convertible securities, or other rights outstanding on the date of this
Agreement and listed in Schedule II pursuant to clause (C) above (the shares
exempted by this clause (F) being hereinafter referred to as the "Reserved
Employee Shares"), (G) capital stock or warrants or options to purchase capital
stock, issued to financial institutions or lessors in connection with commercial
credit arrangements, equipment financings or similar transactions, and (H) upon
the exercise of any right which was not itself in violation of the terms of this
Section 9. The Company's written notice to the New Issuance Offerees shall
describe the securities proposed to be issued by the Company and specify the
number, price and payment terms. Each New Issuance Offeree may accept the
Company's offer as to the full number of securities offered to it or any lesser
number, by written notice thereof given by it to the Company prior to the
expiration of the aforesaid thirty (30) day period, in which event the Company
shall promptly sell and such New Issuance Offeree shall buy, upon the terms
specified, the number of securities agreed to be purchased by such New Issuance
Offeree. Notwithstanding the foregoing, if the New Issuance Offerees agree, in
the aggregate, to purchase more than the full number of securities offered by
the Company, then each New Issuance Offeree accepting the Company's offer shall
first be allocated the lesser of: (i) the number of securities which such New
Issuance Offeree agreed to purchase; and (ii) that number of securities equal to
the full number of securities offered by the Company multiplied by a fraction,
the numerator of which shall be the number of shares of Common Stock held by
such New Issuance Offeree as of the date of the Company's notice of offer
(treating such New Issuance Offeree, for the purpose of such calculation, as the
holder of the number of shares of Common Stock which would be issuable to such
New Issuance Offeree upon conversion, exercise or exchange of all securities
(including but not limited to the Preferred Stock) held by such New Issuance
Offeree on the date such offer is made, that are convertible, exercisable or
exchangeable into or for (whether directly or indirectly) shares of Common
Stock) and the denominator of which shall be the aggregate number of shares of
Common Stock (calculated as aforesaid) held on such date by all New Issuance
Offerees who accepted the Company's offer, and the balance of the securities (if
any) offered by the Company shall be allocated among the New Issuance Offerees
accepting the Company's offer in proportion to their relative equity ownership
interests in the Company (calculated as aforesaid), provided that no New
Issuance Offeree shall be allocated more than the number of securities which
such New Issuance Offeree agreed to purchase and provided further that in cases
covered by this sentence all New Issuance Offerees shall be allocated among them
the full number of securities offered by the Company. The Company shall be free
at any time prior to ninety (90) days after the date of its notice of offer to
the New Issuance Offerees, to offer and sell to any third party or parties the
number of such securities not agreed by the New Issuance Offerees to be
purchased by them, at a price and on payment terms no less favorable to the
Company than those specified in such notice of offer to the New Issuance
Offerees. However, if such third party sale or sales are not consummated within
such ninety (90) day period, the Company shall not sell such securities as shall
not have been purchased within such period without again complying with this
Section 9.
10. Compliance with Laws. Each Shareholder agrees that any certificates
representing Shares may be legended to comply with federal and state securities
or other laws and to assure the enforceability of this Agreement, by the giving
of notice of this Agreement or otherwise.
11. References. All references to "Sections" and "Subsections"
contained herein are, unless specifically indicated otherwise, references to
sections and subsections of this Agreement. Whenever herein the singular number
is used, the same shall include the plural where appropriate, and words of any
gender shall include each other gender where appropriate.
12. Captions. The captions, headings and arrangements used in this
Agreement are for convenience only and do not in any way affect, limit,
amplify or modify the terms and provisions hereof.
13. Notices. Whenever this Agreement requires or permits any consent,
approval, notice, request or demand must be in writing to be effective and
shall be deemed to have been given when actually received by the party to
whom notice is sent.
14. Governing Law. The substantive laws of the State of Oklahoma shall
govern the validity, construction, enforcement and interpretation of this
Agreement.
15. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the Shareholders and the Company and their successors
and assigns, including, but not limited to, any Transferee hereunder. This
Agreement shall be binding upon and inure to the benefit of each individual
signatory hereto and his or her respective heirs, personal representatives and
assigns, and any receiver, trustee in bankruptcy or representative of the
creditors of each such person. Should a Common Shareholder ever cease to be the
owner of Shares, he, she or it shall automatically cease to be a party to this
Agreement and shall have no rights hereunder unless and until he, she or it
again becomes an owner of Shares.
16. Invalid Provisions. If any provision of this Agreement is held to
be illegal, invalid or unenforceable under present or future laws effective
during the term of this Agreement, such provision shall be fully severable; this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision had never comprised a part of this Agreement; and the
remaining provisions of this Agreement shall remain in full force and effect and
shall not be affected by the illegal, invalid or unenforceable provision or by
its severance from this Agreement. Furthermore, in lieu of each such illegal,
invalid or unenforceable provision there shall be added automatically as a part
of this Agreement a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
17. Amendments. This Agreement may be amended at any time and from time
to time, in whole or in part, or may be terminated by an instrument in writing
setting forth the particulars of such amendment or termination, as the case may
be, duly executed by the Company, the holders of a majority of Underlying Common
Stock held by the Preferred Shareholders and the holders of a majority of the
Shares who are Common Shareholders at the time of such amendment or termination.
18. Multiple Counterparts. This Agreement may be executed in a number
of identical counterparts, each of which for all purposes is to be deemed an
original, and all of which constitute collectively one Agreement; but in making
proof of this Agreement, it shall not be necessary to produce or account for
more than one such counterpart. It is not necessary that each Shareholder
execute the same counterpart, so long as identical counterparts are executed by
the Company and each Shareholder.
19. Enforcement. It is specifically agreed and understood that monetary
damages will not adequately compensate the breach of this Agreement and this
Agreement shall therefore be specifically enforceable, and any breach or
threatened breach of this Agreement shall be the proper subject of a temporary
or permanent injunction or restraining order. Further, each party hereto and
their successors, heirs, representatives and assigns waive any claim or defense
that there is an adequate remedy at law for such breach or threatened breach.
EXECUTED on the date indicated above and binding on each party from and
after the date such party executes this Agreement or a counterpart hereof.
THE COMPANY: XXXXXXX.XXX, INC.
By:
Xxxxxx X. Xxxxx, Chief Executive Officer
COMMON SHAREHOLDERS:
XXXXXX X. XXXXX
XXXXXX X. XXXXXXXX, XX.
XXXX X. XXXXXX
BANCFIRST INVESTMENT CORP.
By:
Xxxx X. Xxxxxx, President
PREFERRED SHAREHOLDERS: RICHMONT OPPORTUNITY FUND, L.P.
By: Richmont Opportunity Management Partners, L.P.,
its General Partner
By: Richmont Investment Management,L.L.C.,
its General Partner
By:________________________________
Title:____________________________
RICHMONT OPPORTUNITY PARTNERS, LTD.
By: Richmont Opportunity Management Partners, L.P., its
Attorney-in-Fact
By: Richmont Investment Management,L.L.C., its General Partner
By:________________________________ Title:____________________________
XXXXXX X. XXXXX
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XXXX XXXXX
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XXXX XXXXX
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XXXXXX X. XXXXXXXX, XX., M.D.
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XXXXXXX X. XXXXXX
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XXXXXXX X. XXXXXXX
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XXXXX X. ODOR
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XXXXXX X. XXXXX
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XXXXXXX XXXXX
*______________________________________________
XXXXXX XXXXX XXXXX
*______________________________________________
XXXXXXX XXXX XXXXXX XXXXXX
*______________________________________________
XXXXXXX X. XXXXXXX
*______________________________________________
XXXXX XXXXXX
*______________________________________________
XXXXX XXXXXX
*______________________________________________
RICHMONT TRADING ASIA-PACIFIC LIMITED
By:______________________________________________
XXXXXXX X. XXXXXXXX
*______________________________________________
XXXX X. XXXXXXXX
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J. XXXXX XXXXXXXXX
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*By J. Xxxxx Xxxxxxxxx, Attorney-in-Fact
SCHEDULE I
HOLDERS OF SERIES B CONVERTIBLE PREFERRED STOCK
Richmont Opportunity Fund, L.P.
Richmont Opportunity Partners, Ltd.
Xxxxxx X. Xxxxx
Xxxx Xxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxxxx, M.D.
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Odor
Xxxxxx X. Xxxxx
Xxxxxxx Xxxxx
Xxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxx Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Richmont Trading Asia-Pacific Limited
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx
J. Xxxxx Xxxxxxxxx
COMMON SHAREHOLDERS
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx, Xx.
BancFirst Investment Corp.
SCHEDULE II
SECURITIES NOT SUBJECT TO THE RIGHT OF FIRST REFUSAL
1. Warrants issuable to Southwest Securities, Inc., pursuant to that
certain Letter Agreement dated February 24, 1999, to purchase
shares of Series B Convertible Preferred Stock at a purchase price
of $9.00 per share.
2. Warrants issuable to Net Me Up, a sole proprietorship of Xxxxxxxx and
Xxxxxx Xxxxxxxxx, to purchase 2,500 shares of common stock of the
Company at a purchase price of $9.00 per share.
3. Warrants issuable to Interactive Applications Group, Inc., to
purchase 10,000 shares of common stock of
the Company, at a purchase price of $9.00 per share.
4. Warrants issuable to Pro Silver Star, Ltd., to purchase 11,111
shares of common stock at a purchase price of $9.00 per share.
5. Warrants issuable to Richmont Opportunity Management Partners, L.P.,
to purchase 11,111 shares of common stock at a purchase price of
$9.00 per share.
