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EXHIBIT 10.1
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement ("Agreement") is made and entered into as
of the 20th day of March, 1995, by and among (i) Complete Wellness Centers,
Inc., a Delaware corporation ("the Corporation"), (ii) C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(hereinafter sometimes referred to as "▇▇▇▇▇▇▇▇") and other holders of the
Corporation's outstanding Common Stock (as defined below), and (iii) the
holders of the Corporation's Series A, 12% Cumulative Convertible Preferred
Stock (the "Preferred Stock") listed on Schedule A attached hereto (the
"Preferred Stockholders"). For purposes hereof, ▇▇▇▇▇▇▇▇, the other holders of
outstanding Common Stock, and the Preferred Stockholders are sometimes
individually referred to herein as a "Stockholder" or collectively as the
"Stockholders".
RECITALS
1. The authorized capital stock of the Corporation consists of
Twenty Thousand (20,000) shares of common stock, par value $.01 per share (the
"Common Stock"), and Fifteen Hundred (1,500) shares of Series A, 12% Cumulative
Convertible Preferred Stock, par value $.01 per share.
2. The Stockholders own all of the issued and outstanding Common
Stock and all of the issued and outstanding Preferred Stock, and constitute all
of the stockholders of the Corporation as of the date of this Agreement.
3. The Corporation and the Stockholders believe that it is in the
best interests of the Corporation and of the Stockholders to (i) provide
certain rights of first refusal with respect to any
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transfer of Common Stock and/or Preferred Stock (collectively, the "Shares")
now held or hereafter acquired by the Stockholders; (ii) require all
transferees of Shares to become parties to this Agreement, and (iii) provide
the Stockholders with certain rights in the event of any future issuance of
equity securities by the Corporation.
NOW, THEREFORE, in consideration of the above Recitals and the mutual
agreements set forth below, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by all parties, the
parties hereto hereby agree as follows:
1. Transfer Restrictions/Legend.
(a) The terms "Transferred", "Transfer" and all other
derivations thereof shall mean to sell, assign, transfer, divide, combine,
donate, exchange, distribute, mortgage, finance, refinance, pledge, encumber,
hypothecate and/or otherwise dispose of in whole or in part (including, without
limitation, by way of or as a result of a judicial decree or any dissolution,
liquidation, termination, insolvency, bankruptcy, withdrawal, death or
incompetency).
(b) There shall be stamped, typed or printed on each
certificate or document evidencing any Shares a legend restricting Transfer of
such Shares, which legend shall be substantially as follows:
Transfer of the shares represented by this certificate is limited and
restricted in several respects by the provisions of a certain
Stockholders' Agreement dated as of March 20, 1995, a copy of which is
on file in the principal office of
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the Corporation. Prospective transferees are referred to that
Stockholders' Agreement for further information. Accordingly, neither
this certificate nor any of the shares of stock of the Corporation
evidenced hereby may be transferred (as that term is defined in the
Stockholders' Agreement) except in compliance with the provisions of
the aforesaid Stockholders' Agreement.
(c) The Corporation agrees, for and on behalf of itself
and its successors and assigns, that (i) it shall not issue, transfer or
reissue any shares of Common Stock or Preferred Stock in violation of the
provisions of this Agreement, and (ii) all certificates representing shares of
Common Stock and Preferred Stock issued to and held by any Stockholder shall
bear a legend in substantially the form specified in Section 1(b) hereof.
2. Rights of First Refusal.
(a) Definitions. The following terms shall have the
following meanings whenever used in this Agreement:
(i) "Bona Fide Offer" shall mean a legally
enforceable offer, in writing, made and signed by an offeror or offerors who is
or are a person or persons or entity or entities financially capable of
carrying out the terms of such Bona Fide Offer.
(ii) "Bona Fide Offeror" shall mean the person or
persons making the Bona Fide Offer.
(iii) "Registered Notice" shall mean notice sent by
registered or certified mail, return receipt requested, and first-class postage
prepaid or by actual delivery by messenger or overnight delivery service; and,
if such Registered Notice is sent with respect to a Bona Fide Offer (as
provided for in Section 2(b)
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hereof), such Registered Notice shall contain a true and complete copy of the
Bona Fide Offer, setting forth the number of Shares to be sold by the
Stockholder, the price thereof and all of the terms and conditions thereof,
with the name(s), address(es) (both home and office) and business(es) or other
occupation(s) of the offeror or offerors. Any notice which does not contain
all such requisite information shall not be considered a "Registered Notice"
for the purposes of Section 2(b) hereof.
(iv) "Selling Stockholder" shall mean the
Stockholder who shall have received a Bona Fide Offer pursuant to this Section
2 and who is desirous of selling some or all of his/her Shares pursuant to such
Bona Fide Offer: "Remaining Stockholders" shall mean the Stockholders other
than the Selling Stockholder.
(b) Receipt of Bona Fide Offer by Stockholder/Right of
First Refusal. (i) In the event that a Stockholder shall receive a Bona
Fide Offer to purchase any or all of such Stockholder's Shares, and in the
further event that the Stockholder shall desire to accept such Bona Fide Offer,
such Selling Stockholder shall promptly send Registered Notice to the
Corporation and to the Remaining Stockholders. Such Registered Notice shall
offer to sell such Selling Stockholder's Shares that are the subject of the
Bona Fide Offer to the Remaining Stockholders on terms the same as those in
such Bona Fide Offer (the "Bona Fide Offer Terms"). Each of the Remaining
Stockholders shall then have the right to purchase from the Selling
Stockholder, at the Bona Fide Offer Terms, a pro rata
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share of such Shares (based on the number of Shares held by such Remaining
Stockholders) as are subject to such Bona Fide Offer (the "Bona Fide Offer
Shares"); provided that any such purchase must be made within twenty (20) days
after receipt of such Registered Notice. For purposes of this Section 2, the
Corporation and/or a Remaining Stockholder shall accept any offer to purchase
shares, if at all, by notifying the Selling Stockholder, in writing, of its or
his election to purchase such Bona Fide Offer Shares, in the manner set forth
in Section 2(a)(iii) for Registered Notice, and including in such notice a bank
or cashiers' check for the total purchase price of the Bona Fide Offer Shares
to be so purchased.
(ii) To the extent one or more of such Remaining
Stockholders do not purchase their pro rata share of the Bona Fide Offer Shares
as set forth in Section 2(b)(i), such Selling Stockholder shall sell the Bona
Fide Offer Shares to any of the Remaining Stockholders at the Bona Fide Offer
Terms; provided that such Remaining Stockholders purchase such Bona Fide Offer
Shares within ten (10) days after the Selling Stockholder notifies such
Stockholders of their right to purchase such Bona Fide Offer Shares pursuant to
this Section 2(b)(ii).
(iii) If, after the applicable time periods
prescribed in Sections 2(b)(i) or 2(b)(ii), as the case may be, the Remaining
Stockholders do not purchase all of the Bona Fide Offer Shares, the Corporation
shall have the option for a period of fifteen (15) days to purchase any or all
of such Bona Fide Offer Shares upon the Bona Fide Offer Terms.
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(iv) If all Bona Fide Offer Shares are not
purchased by the Remaining Stockholders and/or the Corporation pursuant to this
Section 2(b), such Selling Stockholder may sell such Bona Fide Offer Shares to
the Bona Fide Offeror, at the Bona Fide Offer Terms for a period of time not to
exceed forty (40) days from the date the Registered Notice is received by the
Corporation. Any sale of Bona Fide Offer Shares may not be made after such
forty (40) day period, or to a person other than the Bona Fide Offeror without
again complying with the provisions of this Section 2.
(c) Notwithstanding anything in this Section 2 to the
contrary, ▇▇▇▇▇▇▇▇ shall have the right to transfer to one or more third
party(s) up to an aggregate of 100 shares of Common Stock without regard to the
foregoing obligations or restrictions on transfer, which, until such time as
▇▇▇▇▇▇▇▇ shall have transferred the foregoing number of such shares, shall be
inapplicable.
3. Issuance of Equity Securities by the Corporation.
In the event that the Corporation proposes to issue any additional
equity securities in the future other than pursuant to the exercise of options
granted in accordance with the Corporation's Stock Option Plan, the Corporation
shall notify the Stockholders of such intention in writing not less than thirty
(30) days prior to such issuance. The Stockholders shall have the right as a
condition to any such issuance of equity securities by the Corporation, to
purchase from the Corporation on the same terms as such proposed issuance, a
pro rata portion of the equity securities to be so issued, provided that such
Stockholder shall beneficially
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own shares of the Corporation's Common Stock or Preferred Stock at the time of
such issuance. Notwithstanding anything herein to the contrary, any and all
rights granted to the Stockholders in this Section 3 shall not apply to any
public offering of equity securities by the Corporation pursuant to a
registration statement filed with the U.S. Securities and Exchange Commission,
in which case the provisions of this Section 3 shall be null and void.
4. Transfers of Shares.
(a) Conditions/Transferee Rights. Subject to the
provisions of Sections 1, 2 and subsections (b) and (c) of this Section 4, any
person (other than the Corporation or a Stockholder) who acquires any Shares,
shall, as a condition to such transfer, become a party to this Agreement and
take such Shares pursuant to all provisions, conditions and covenants of this
Agreement, by executing a supplement to this Agreement in substantially the
form of Exhibit "B" attached hereto and such other documents as the Corporation
may reasonably request. Upon the execution of such supplement and the Transfer
of Shares, such transferee shall have all of the rights and privileges of the
Stockholders under this Agreement, if applicable at the time of such Transfer.
Accordingly, for purposes of this Agreement, the term "Stockholder" shall be
deemed to include any such transferee.
(b) Notice. Prior to any Transfer or attempted Transfer
of any Shares, the holder of such Shares shall, in addition to providing any
notice required pursuant to Section 2 hereof, give written notice to the
Corporation of such holder's intention to
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effect such Transfer. Each such notice (i) shall describe the manner and
circumstances of the proposed Transfer, and shall state how the provisions of
this Stockholders' Agreement applicable to such Transfer shall be satisfied,
which statement shall be acceptable to the Corporation in its reasonable
discretion.
(c) Response and Transfer. As promptly as practicable
(but in no event later than three (3) days after the holder delivers such
notice pursuant to Section 4(b)), the Corporation shall review the notice and
any other items provided by the holder with said notice and shall notify the
person who gave such notice whether or not the requirements of Section 4(b)
have been satisfied. If such requirements have been satisfied, such holder
shall be immediately entitled to Transfer such Shares, in accordance with the
terms of the notice delivered by such holder to the Corporation and in
accordance with this Agreement (including adherence to the requirements of
Section 2 hereof regarding rights of first refusal). If such requirements have
not been satisfied, the holder may cure any defect or deficiency and re-submit
such written notice, whereupon the provisions of Section 4(b) shall again
apply. Each certificate or other document evidencing Shares issued upon any
such Transfer shall bear the restrictive legend set forth in Section 1(b),
unless in the opinion of counsel to the Corporation such legend is not
applicable.
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5. Election of Director.
The holders of the Preferred Stock, voting together as a class, shall
have the right to elect one director to the Board of Directors of the
Corporation.
6. Termination.
This Agreement shall terminate twenty (20) years from the date hereof
or upon the earlier voluntary written agreement of the Corporation and all then
Stockholders.
7. Integration.
This Agreement sets forth all (and are intended by all parties hereto
to be an integration of all) of the promises, agreements, conditions,
understanding, warranties, representations and covenants among the parties
hereto with respect to the subject matter hereof and no other writings or
agreements, written or oral, express or implied, shall be held to affect the
provisions hereof.
8. Waiver.
No failure of any party to exercise any power, right or remedy given
it hereunder, or to insist upon the strict compliance by any other party with
any obligation, covenant, term, condition, warranty or agreement hereunder, and
no custom or practice at variance with the terms of this Agreement, shall
constitute a waiver of such party's right to demand exact compliance with the
terms hereof at any time and from time to time. Further, no waiver by any
party of any covenant, condition or agreement hereof on the part of any other
party hereto to be kept and/or performed shall be
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considered to constitute a waiver of the same or any other covenant, condition
or provision or any subsequent breach thereof.
9. Interpretation.
This Agreement shall be governed by, and construed and interpreted in
accordance with, the laws of the State of Delaware, without giving effect to
the principles of conflicts of law.
10. Partial Invalidity.
Should any immaterial part of this Agreement for any reason be
declared or held invalid, such invalidity shall not affect the validity of any
remaining portion, which remaining portion shall remain in force and effect as
if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties hereto that
they would have executed the remaining portion of this Agreement without
including therein any such part, parts or portion which may, for any reason, be
hereafter declared or held invalid.
11. Amendments.
Neither this Agreement nor any provision hereof may be amended,
modified, changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against which enforcement of the
amendment, modification, change, waiver, discharge or termination is sought.
12. Notices.
All notices pertaining to this Agreement shall be either (a)
hand-delivered or (b) sent by registered or certified mail, return receipt
requested, with first class postage prepaid, (1) if to a
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Stockholder, then to the last address of such to the Corporation, then to
Complete Wellness Centers, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇, Attention: President, with a copy to the Law Firm of Proskauer
▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, Suite 800, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esquire, or at any other address
that may be given by one party to all others by notice pursuant to this
Section. Such notices, if sent by registered or certified mail, shall be
deemed to have been delivered at the time of mailing. Any notice which is
required to be delivered within a stated period of time shall be considered
timely if either hand-delivered or postmarked on or before midnight of the last
day of such period.
13. Further Assurance.
Each of the parties hereto agrees hereafter to promptly execute, swear
to, acknowledge under oath, and deliver such further documents and instruments,
and to promptly do such further acts and things, as may be necessary,
appropriate or incidental to carry out the intent and purpose of this
Agreement.
14. Burden and Benefit.
This Agreement is binding upon, and inures to the benefit of, the
parties hereto and their respective spouses, heirs, executors, administrators,
personal and legal representatives, successors and permitted assigns.
15. Counterparts.
This Agreement may be executed and sealed in one or more counterparts
and, in such event, all such counterparts shall
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constitute originals and all such counterparts shall constitute a single
agreement.
16. Survival.
All representations, warranties, agreements, covenants and
indemnifications made by the parties or otherwise set forth in this Agreement
shall survive and be effective to the expiration of the applicable statute of
limitations.
IN WITNESS WHEREOF, the Corporation and the Stockholders have executed
and sealed this Agreement, by their duly authorized officers or individually,
as the case may be, all done as of the day and year hereinabove first written.
WITNESS: COMPLETE WELLNESS CENTERS, INC.
By:
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C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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STOCKHOLDERS:
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C. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Sen. ▇▇▇▇ ▇▇▇▇▇
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EXHIBIT A
PREFERRED STOCKHOLDERS
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Sen. ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT B
SUPPLEMENT FOR TRANSFEREES
The undersigned, ___________________________________________
_______________________________ ("Transferee"), as of _________,
19__, hereby:
1. Agrees, pursuant to and in accordance with Section 4(a) of the
Stockholders' Agreement dated as of March 20, 1995 ("Stockholders' Agreement"),
by and among Complete Wellness Centers, Inc. and the Stockholders (as that term
is defined in the Stockholders' Agreement), and as a condition to the transfer
to the undersigned Transferee of the Shares of Common Stock and/or Preferred
Stock (as those terms are defined in the Stockholders' Agreement), in whole or
in part, hereby to become a party to and be deemed a Stockholder for all
purposes of the Stockholders' Agreement.
2. Make all representations and warranties set forth in, and
agrees to all other provisions of, the Stockholders' Agreement.
IN WITNESS WHEREOF, the undersigned Transferee has executed and sealed
this instrument as of the date first written above.
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By: (SEAL)
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,
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