SPACEDEV, INC. STOCKHOLDER AGREEMENT
Exhibit
99.2
This
Stockholder Agreement (the “Agreement”)
is made as of December 4, 2007 by and among SpaceDev,
Inc., a Delaware corporation (the
“Company”) and Loeb Partners
Corporation (the
“Stockholder”). Capitalized terms which are
not otherwise defined shall have the same meaning as in the Purchase Agreement
(as defined below).
Recitals
Whereas,
the Stockholder is purchasing 3,750,000 shares of the Company’s Common
Stock (the “Shares”) pursuant to the Stock Purchase
Agreement dated as of even date herewith (the “Purchase
Agreement”);
Whereas,
the obligations in the Purchase Agreement are conditioned upon the execution
and
delivery of this Agreement by the Company and the Stockholder;
Whereas,
the Stockholder Agreement dated September 14, 2007 among OHB Technology AG,
MT
Aerospace AG and the Company is being amended in connection with this Agreement
(as so amended, the “OHB/MT Stockholder Agreement”)
and
Whereas,
the parties desire to enter into this Agreement to, among other things, restrict
the transfer of the Shares and provide the Stockholder with certain registration
rights and rights to participate in future financings of the Company, as
set
forth below.
Agreement
Now,
Therefore, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1. Definitions. As
used in this Agreement the following terms shall have the following respective
meanings:
1.1 “Affiliate”
means an “affiliate,” as defined in Rule 405 of Regulation C of the Securities
Act, of the Stockholder.
1.2 “Change
of Control” means (1) any consolidation or merger
of the Company with or into any other corporation or other entity or person,
or
any other corporate reorganization, in which the stockholders of the Company
immediately prior to such consolidation, merger or reorganization, own less
than
fifty percent (50%) of the voting power of the surviving or successor entity
(or
in the event stock or ownership interests of an affiliated entity are issued
in
such transaction, less than fifty percent (50%) of the voting power of such
affiliated entity) immediately after such consolidation, merger or
reorganization; (2) any transaction or series of related transactions in
which
in excess of fifty percent (50%) of the Company’s outstanding voting power is
transferred; provided that such transactions shall not include any
consolidation or merger effected exclusively to change the domicile of the
Company or (3) a sale, lease, conveyance, exclusive license or other disposition
of all or substantially all of the assets of the Company.
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1.3 “Exchange
Act” shall means the Securities Exchange Act of 1934, as
amended.
1.4 “Restricted
Territory” means the United States.
1.5 “Securities
Act” shall mean the Securities Act of 1933, as
amended.
1.6 “Special
Registration Statement” shall mean (i) a registration statement
relating to any employee benefit plan or (ii) with respect to any corporate
reorganization or transaction under Rule 145 of the Securities Act, including
any registration statements related to the issuance or resale of
securities.
Section 2. Covenants
of The Stockholder.
2.1 Standstill. The
Stockholder agrees that, during the period commencing on the date hereof
and
ending on the Termination Date, neither the Stockholder nor any of its
Affiliates will in any manner, directly or indirectly (i) purchase
additional shares of Common Stock of the Company or rights to purchase such
shares of Common Stock of the Company, (ii) effect, seek, offer or propose
to effect any acquisition of any securities or assets of the Company (except
as
permitted in the foregoing clause (i)), any tender or exchange offer, merger,
business combination, recapitalization or other extraordinary transaction
involving the Company or any solicitation of proxies or consents to vote
any
voting securities of the Company, (iii) form, join or in any way
participate in a “group” (as defined in the Exchange Act) with respect to any
voting securities of the Company (it being understood that the execution
of the
Purchase Agreement or this Agreement shall not constitute a violation of
this
clause (iii)), (iv) solicit or participate in any solicitation of proxies
relating to the election of directors of the Company, (v) enter into any
agreement with any other person with respect to the foregoing, or assist
any
other person to do any of the foregoing or (vi) nominate any person to the
Board
of Directors of the Company; provided that (A) the Stockholder may
purchase additional Company securities in an amount sufficient to allow the
Stockholder to continue to own up to its pro rata ownership after this
transaction of the outstanding shares of Common Stock of the Company;
(B) the Stockholder may exercise its rights in Section 5; (C) the
Stockholder may acquire additional Company securities in the public market
or
through one or more private transactions up to a maximum of 14.99% of the
outstanding shares of Common Stock of the Company (including the Stockholder’s
current holdings and the Shares) and (D) the Stockholder may sell, tender
or exchange its shares of Company Common Stock in connection with (1) the
acquisition (including by way of merger) by any person or group (as defined
in
the Exchange Act), other than by or on behalf of the Stockholder or its
Affiliates, of more than 50% of the outstanding voting securities of the
Company
or (2) in a tender offer for the Company’s voting securities other than by
or on behalf of the Stockholder or its Affiliates (with securities or cash)
which has not been approved by a majority of the Company’s Board of
Directors.
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2.2 Voting
of Shares. The Stockholder may vote its Shares in its sole
discretion; provided, however, that the Stockholder agrees that during the
first
year of this Agreement, with respect to the election of directors of the
Company, the Shares shall be present and voted “for” the nominees recommended by
the Company’s Board of Directors. Following the one (1) year
anniversary of this Agreement, the Stockholder agrees that with respect to
the
election of directors of the Company, the Shares shall be present and voted
“for” any nominees recommended by the Company’s Board of Directors if such
nominee is currently a member of the Company’s Board of
Directors. The provisions of this Section 2.2 shall apply to
both the casting of votes at general meetings of stockholders and any execution
of stockholder action by written consent. During the first year of
this Agreement, the Stockholder agrees, and shall cause its Affiliates, to
execute and deliver to the Secretary of the Company not later than 20 days
prior
to the date of any general meeting of stockholders of the Company, a proxy
(in
such form as provided by and on behalf of the Company’s Board of Directors)
representing all Shares beneficially owned by the Stockholder and its Affiliates
voted in accordance with this Agreement.
2.3 Confidentiality
of Records. The Stockholder agrees, and
shall cause its Affiliates, to use the same degree of care as the Stockholder
uses to protect its own confidential information to keep confidential any
information furnished to it that the Company identifies as being confidential
or
proprietary (so long as such information is not in the public domain), except
that the Stockholder may disclose such proprietary or confidential information
(i) to any Affiliate, manager, subsidiary or parent of the Stockholder for
the purpose of evaluating its investment in the Company as long as such
Affiliate, manager, subsidiary or parent is advised of the confidentiality
provisions of this Section 2.3; (ii) at such time as it enters the
public domain through no act of the Stockholder; (iii) that is communicated
to
it free of any obligation of confidentiality; or (iv) that is developed by
the
Stockholder or its Affiliates independently of and without reference to any
confidential information communicated by the Company as definitively shown
by
the written records of the Stockholder or its Affiliates.
2.4 Export
Control. The Stockholder acknowledges and
understands that: (a) the Company is subject to U.S. export controls that
may
restrict the Stockholder’s access to certain articles, technical data, and
/or services; and (b) if applicable, an export license from the U.S.
government may be required prior to transfer to the Stockholder of controlled
articles, technical data, or services. The Stockholder agrees to
comply with all U.S. export control laws and the Company’s export control
policies and practices with respect to its activities related to the
Company. The Stockholder agrees to cooperate with the Company to
obtain any necessary U.S. government authorizations required to allow the
Stockholder access to controlled articles, technical data and/or
services.
Section 3. Restrictions
on Transfer.
3.1 General.
(a) The
Stockholder agrees not to make any disposition of all or any portion of the
Shares issued pursuant to the Purchase Agreement unless and until:
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(i) there
is
then in effect a registration statement under the Securities Act covering
such
proposed disposition and such disposition is made in accordance with such
registration statement; or
(ii) (A) the
transferee has agreed in writing to be bound by the terms of this Agreement,
(B) the Stockholder shall have notified the Company of the proposed
disposition and shall have furnished the Company with a detailed statement
of
the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, the Stockholder shall have furnished
the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that
such disposition will not require registration of such shares under the
Securities Act.
(b) Notwithstanding
the provisions of subsection (a) above, no such restrictions shall apply
to a
transfer by the Stockholder that is (A) corporation transferring to any
Affiliate or other affiliated entity, including, without limitation, any
subsidiary or parent corporation, or affiliated partnership or limited liability
company, (B) a limited liability company transferring to Affiliates, its
members or former members in accordance with their interest in the limited
liability company or (C) any other form of entity transferring to Affiliates;
provided that in each case the transferee will agree in
writing to be subject to the terms of this Agreement to the same extent as
if
he, she or it were the original Stockholder hereunder.
(c) Each
certificate representing Shares shall be stamped or otherwise imprinted with
legends substantially similar to the following (in addition to any legend
required under applicable state securities laws):
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933 (THE “ACT”) AND MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED,
ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR
UNLESS THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL SATISFACTORY TO THE
COMPANY AND ITS COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED.
THE
SALE,
PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDER
AGREEMENT BY AND BETWEEN THE STOCKHOLDER AND THE COMPANY. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY.
(d) Any
legend endorsed on an instrument pursuant to applicable state securities
laws
and the stop-transfer instructions with respect to such securities shall
be
removed upon receipt by the Company of an order of the appropriate blue sky
authority authorizing such removal.
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(e) The
Company shall be obligated to reissue promptly unlegended certificates at
the
request of the Stockholder, if the Stockholder shall have obtained an opinion
of
counsel reasonably acceptable to the Company to the effect that the securities
proposed to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
3.2 “Market
Stand-Off” Agreement.
(a) The
Stockholder hereby agrees that it shall not sell, transfer, make any short
sale
of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale of (collectively,
“Selling Activities”), the Shares issued to the
Stockholder pursuant to the Purchase Agreement for a period of one (1) year
following the Closing Date provided, however, that no provisions in this
Agreement or the Purchase Agreement shall restrict Stockholder from engaging
in
any Selling Activities with respect to Company Common Stock or other Company
securities currently held by Stockholder or acquired by Stockholder after
the
date hereof, other than the Shares purchased pursuant to the Purchase
Agreement.
(b) The
Stockholder hereby agrees that it shall not sell, transfer, make any short
sale
of, grant any option for the purchase of, or enter into any hedging or similar
transaction with the same economic effect as a sale, any Common Stock (or
other
securities) of the Company held by the Stockholder (other than those included
in
or acquired after the below registration) for a period specified by the
representative of the underwriters of Common Stock (or other securities)
of the
Company not to exceed one hundred eighty (180) days following the effective
date
of a registration statement of the Company filed under the Securities Act
(or
such longer period, not to exceed 18 days after expiration of the 180-day
period, as the Company or the underwriters shall request in order to facilitate
compliance with NASD Rule 2711); provided that all officers and
directors of the Company enter into similar agreements.
Section 4. Covenants
of the Company.
4.1 Indemnification.
(a) The Company
hereby agrees to hold harmless and indemnify the Stockholder, the Stockholder’s
direct and indirect subsidiaries, affiliated entities and corporations, and
each
of their partners, members, managers, officers, directors, employees,
stockholders, agents, and representatives (collectively, referred to as the
“Stockholder Indemnitees”) against any and
all expenses (including attorneys’ fees), damages, judgments, fines, amounts
paid in settlements, or any other amounts that a Stockholder Indemnitee incurs
as a result of any claim or claims made against it in connection with any
threatened, pending or completed action, suit, arbitration, investigation
or
other proceeding arising out of, or relating to, the breach of the Company’s
representations and warranties contained in the Purchase Agreement.
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(b) The
Company’s indemnity obligations set forth above are subject to the Stockholder
Indemnitees providing prompt written notice of a claim. The Company
shall control the defense of any such action and, at its discretion, may
enter
into a stipulation of discontinuance or settlement thereof; provided that
the
Company may not discontinue any action or settle any claim in a manner that
does
not unconditionally release the Stockholder Indemnitees without the
Stockholder’s prior written approval. The Stockholder shall, at the
Company’s expense and reasonable request, cooperate with the Company in any such
defense and shall use commercially reasonable efforts to make available to
the
Company at the Company’s expense all those persons and documents (excluding
attorney/client or attorney work product materials) reasonably required by
the
Company in the defense of any such action. The Stockholder may, at
its expense, assist in such defense.
(c) The
Company’s aggregate cumulative liability under this Section shall be limited to
the amount received by the Company pursuant to the transactions contemplated
by
the Purchase Agreement.
(d) The
Stockholder acknowledges that, from and after the Closing Date, the sole
and
exclusive remedy of the Stockholder Indemnitees with respect to any and all
claims and causes of action relating to the Purchase Agreement and the
transactions contemplated thereby shall be pursuant to the indemnification
provisions set forth in this section, provided that (i) nothing in this
Agreement shall limit the Stockholder Indemnitees’ right to recover against the
Company with respect to any claim arising from the Company’s fraudulent acts or
bad faith and (ii) nothing in this Agreement shall limit the Stockholder
Indemnitees’s right to receive stock certificates representing the Shares
pursuant to Section 2.2 of the Purchase Agreement.
4.2 Rule
144 Reporting. With a view to making
available to the Stockholder the benefits of certain rules and regulations
of
the SEC which may permit the sale of the Shares to the public without
registration, the Company agrees to use its best efforts to:
(a) Make
and
keep public information available, as those terms are understood and defined
in
SEC Rule 144 or any similar or analogous rule promulgated under the
Securities Act; and
(b) File
with
the SEC, in a timely manner, all reports and other documents required of
the
Company under the Exchange Act.
4.3 Registration
Rights.
(a) The
Stockholder Demand Registration.
(i) If
the
Company shall receive a written request from the holders (the “Loeb
Holders”) of a majority of the Shares purchased by the Stockholder
from the Company pursuant to the Purchase Agreement that the Company file
a
registration statement under the Securities Act covering the registration
of
such Shares, then the Company shall, within thirty (30) days of
the receipt thereof, effect, as expeditiously as reasonably possible, the
registration under the Securities Act of all such Shares.
(ii) The
Company shall not be required to effect a registration pursuant to this
Section 4.3(a):
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(A) prior
to
first anniversary of the date of this
Agreement;
(B) after
the
Company has effected one registration pursuant to this
Section 4.3(a), and such registration has been declared or ordered
effective;
(C) during
the period starting with the date of filing of, and ending on the date one
hundred eighty (180) days following the effective date of a registration
statement pertaining to a public offering of Company Common Stock by the
Company, provided that the Company makes
reasonable good faith efforts to cause such registration statement to become
effective;
(D) if
within
thirty (30) days of receipt of a written request from the Loeb Holders, the
Company gives notice to the Loeb Holders of the Company’s intention to file a
registration statement pertaining to a public offering of
Company Common Stock by the Company within ninety (90) days;
(E) if
the
Company shall furnish to the Loeb Holders, a certificate signed by the Chairman
of the Board stating that in the good faith judgment of the Board of Directors
of the Company, it would be seriously detrimental to the Company and its
stockholders for such registration statement to be effected at such time,
in
which event the Company shall have the right to defer such filing for a period
of not more than one hundred twenty (120) days after receipt of the request
of
the Loeb Holders; provided that such right to delay a request shall be
exercised by the Company not more than twice in any twelve (12) month period;
or
(F) in
any
particular jurisdiction in which the Company would be required to qualify
to do
business or to execute a general consent to service of process in effecting
such
registration, qualification or compliance.
(iii) The
Company shall use all commercially reasonable efforts to cause such registration
statement to become effective, and, upon the request of the Loeb Holders,
keep
such registration statement effective so long as the participating Loeb Holders
continue to beneficially own, in the aggregate, in excess of 4.99% of the
Company’s issued and outstanding Common Stock. Notwithstanding the
foregoing, at any time, upon written notice to the participating Loeb Holders
and for a period not to exceed sixty (60) days thereafter (the “Suspension
Period”), the Company may delay the effectiveness of any registration statement
or suspend the use or effectiveness of any registration statement (and the
participating Loeb Holders hereby agree not to offer or sell any Shares pursuant
to such registration statement during the Suspension Period) if the Company’s
Board of Directors, upon the written advice of counsel, reasonably believes
that
the Company may, in the absence of such delay or suspension hereunder, be
required under state or federal securities laws to disclose any corporate
development the disclosure of which could reasonably be expected to have
a
material adverse effect upon the Company and its stockholders, a potentially
significant transaction or event involving the Company, or any negotiations,
discussions, or proposals directly relating thereto. In the event
that the Company shall exercise its right to delay or suspend the filing
or
effectiveness of a registration hereunder, the applicable time period during
which the registration statement is to remain effective shall be extended
by a
period of time equal to the duration of the Suspension Period.
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(b) Piggyback
Registrations.
(i) The
Company shall notify the Stockholder in writing at least fifteen (15) days
prior
to the filing of any registration statement under the Securities Act for
purposes of a public offering of securities of the Company (including, without
limitation, registration statements relating to secondary offerings of
securities of the Company, but excluding Special Registration Statements)
and
will afford the Stockholder an opportunity to include in such registration
statement all or part of such Shares held by the Stockholder. If the
Stockholder desires to include in any such registration statement all or
any
part of the Shares held by it, it shall, within ten (10) days after the
above-described notice from the Company, so notify the Company in writing
and
the Company shall include in such registration statement all or any part
of such
Shares the Stockholder requests to be registered to the extent the Company
may
do so without violating registration rights of others which exist as of the
date
of this Agreement. If the Stockholder decides not to include all of
its Shares in any registration statement thereafter filed by the Company,
the
Stockholder shall nevertheless continue to have the right to include any
Shares
in any subsequent registration statement or registration statements as may
be
filed by the Company with respect to offerings of its securities, all upon
the
terms and conditions set forth herein.
(ii) If
the
registration statement under which the Company gives notice under this Section
4.3(b) is for an underwritten offering, the Company shall so advise the
Stockholder. In such event, the right of the Stockholder to be
included in a registration pursuant to this Section 4.3(b) shall be conditioned
upon the Stockholder’s participation in such underwriting and the inclusion of
the Stockholder’s Shares in the underwriting to the extent provided
herein. To the extent the Stockholder proposes to distribute its
Shares through such underwriting, the Stockholder shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding any
other provision of this Agreement, if the underwriter determines in good
faith
that marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to any stockholder of
the
Company (other than the Stockholder and the Stockholders under the OHB/MT
Stockholder Agreement) that is entitled to piggyback registration rights
pursuant to agreements in effect on the date hereof on a pro rata
basis; and third, to the Stockholder and any stockholders under the OHB/MT
Stockholder Agreement (as amended in connection with this Agreement) pari
passu on a pro rata basis, but only as to the Shares and the
shares of Company Common Stock entitled to piggyback registration rights
under
the OHB/MT Stockholder Agreement (as amended in connection with this
Agreement). If the Stockholder disapproves of the terms of any such
underwriting, the Stockholder may elect to withdraw therefrom by written
notice
to the Company and the underwriter, delivered at least ten (10) business
days
prior to the effective date of the registration statement.
(iii) The
Company shall have the right to terminate or withdraw any registration initiated
by it under this Section 4.3(b) prior to the effectiveness of such registration
whether or not the Stockholder has elected to include securities in such
registration.
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4.4 Use
of Proceeds. The Company shall use the net
proceeds from the sale of the Shares for general working capital
purposes.
4.5 Integration. The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the
Securities Act) that would be integrated with the offer or sale of the Shares
in
a manner that would require the registration under the Securities Act of the
sale of the Shares to the Stockholder.
Section 5. Preemptive
Rights
5.1 Subsequent
Offerings. Subject to applicable securities laws and
existing preemptive rights, the Stockholder shall have the right to purchase
its
pro rata share of all Equity Securities, as defined below, that the
Company may, from time to time, propose to sell and issue after the date
of this
Agreement. The Stockholder’s pro rata share is equal to the
ratio of (a) the number of shares of the Company’s Common Stock of which the
Stockholder is deemed to be a holder immediately prior to the issuance of
such
Equity Securities to (b) the total number of shares of the Company’s outstanding
Common Stock. The term “Equity Securities”
shall mean (i) any Common Stock, Preferred Stock
or other security of the
Company, (ii) any security convertible into or exercisable or exchangeable
for,
with or without consideration, any Common Stock, Preferred Stock or other
security (including any option to purchase such a convertible security),
(iii)
any security carrying any warrant or right to subscribe to or purchase any
Common Stock, Preferred Stock or other security or (iv) any such warrant
or
right.
5.2 Exercise
of Rights. If the Company proposes to issue any Equity
Securities, it shall give the Stockholder written notice of its intention,
describing the Equity Securities, the price and the terms and conditions
upon
which the Company proposes to issue the same. The Stockholder shall
have ten (10) days from the giving of such notice to agree to purchase its
pro rata share of the Equity Securities for the price and upon the
terms and conditions specified in the notice by giving written notice to
the
Company and stating therein the quantity of Equity Securities to be
purchased. Notwithstanding the foregoing, the Company shall not be
required to offer or sell such Equity Securities to the Stockholder if it
would
cause the Company to be in violation of applicable federal securities laws
by
virtue of such offer or sale.
5.3 Issuance
of Equity Securities to Other Persons. If the Stockholder
fails to exercise in full the preemptive rights set forth in this Section
5, the
Company shall have ninety (90) days following the notice provided pursuant
to
Section 5.2 to sell the Equity Securities in respect of which the Stockholder’s
rights were not exercised, at a price and upon general terms and conditions
not
more favorable to the purchasers thereof than specified in the Company’s notice
to the Stockholder pursuant to Section 5.2 hereof. If the Company has
not sold such Equity Securities within ninety (90) days of the notice provided
pursuant to Section 5.2, the Company shall not thereafter issue or sell any
Equity Securities, without first offering such securities to the Stockholder
in
the manner provided above.
5.4 Termination
and Waiver of Preemptive Rights. The preemptive rights
established by this Section 6 shall terminate three years from the date
hereof. The preemptive rights established by this Section 5 may be
amended, or any provision waived, either prospectively or retrospectively,
with
the written consent of the Stockholder, or as permitted by Section
6.5.
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5.5 Excluded
Securities. The preemptive rights established by this
Section 5 shall have no application to the issuance of any of the following
Equity Securities:
(a) Shares
of
Common Stock and/or options, warrants or other Common Stock purchase rights
and
the Common Stock issued pursuant to such options, warrants or other rights
issued or issuable after the date hereof to employees, officers or directors
of,
or consultants or advisors to, the Company or any of its subsidiaries pursuant
to stock purchase or stock option plans or other arrangements that are approved
by the Board of Directors;
(b) stock
issued or issuable pursuant to any rights or agreements, options, warrants
or
convertible securities outstanding as of the date of this Agreement; and
stock
issued pursuant to any such rights or agreements after the date of this
Agreement; provided that the preemptive rights established by this
Section 5 applied with respect to the initial sale or grant by the Company
of
such rights or agreements, options, warrants or convertible
securities;
(c) any
Equity Securities issued for consideration other than cash pursuant to a
merger,
consolidation, acquisition, strategic alliance or similar business combination
approved by the Board of Directors;
(d) any
Equity Securities issued pursuant to any equipment loan or commercial credit
or
leasing arrangement, real property leasing arrangement, or debt financing
from a
bank or similar financial or lending institution approved by the Board of
Directors;
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(e) shares
of
Common Stock issued in connection with any stock split, stock dividend,
reclassification or similar non-economic event by the Company; and
(f) shares
of
Common Stock issued upon conversion of shares of the Company’s Preferred
Stock.
Section 6. Miscellaneous
6.1 Termination
of this Agreement. This Agreement shall continue in full
force and effect from the date hereof through the earliest of the following
dates (collectively, the “Termination Date”), on which date it shall terminate
in its entirety:
(a) upon
a
Change of Control;
(b) the
ten
(10) year anniversary of the date of this Agreement;
(c) the
date
as of which the parties hereto terminate this Agreement by written consent
of
the Company and the Stockholder;
(d) if
the
Stockholder no longer beneficially own an aggregate of at least 4.99% of
the
Company’s issued and outstanding Common Stock; or
(e) the
date
on which the Stockholder sells all of the Shares pursuant to either (i) Rule
144
under the Securities Act or (ii) an effective registration statement under
the
Securities Act.
6.2 Severability. It
is the desire and intent of the parties that the provisions of this Agreement
be
enforced to the fullest extent permissible under the law and public policies
applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this
Agreement would be held in any jurisdiction to be invalid, prohibited or
unenforceable for any reason, such provision, as to such jurisdiction, shall
be
ineffective, without invalidating the remaining provisions of this Agreement
or
affecting the validity or enforceability of such provision in any other
jurisdiction. Notwithstanding the foregoing, if such provision could
be more narrowly drawn so as not to be invalid, prohibited or enforceable
in
such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn,
without invalidating the remaining provisions of this Agreement or affecting
the
validity or enforceability of such provision in any other
jurisdiction.
6.3 Governing
Law; Jurisdiction. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Colorado
as
applied to contracts entered into and performed entirely in Colorado by Colorado
residents without regard to conflicts of law principles, except for matters
of
corporate law, which shall be governed by the laws of the State of
Delaware.
6.4 Assignments;
Successors and Assigns. Except in connection with any
transfer of Shares in accordance with this Agreement, the rights of each
party
under this Agreement may not be assigned. This Agreement shall bind
and inure to the benefit of the parties and their respective successors,
permitted assigns, legal representatives and heirs.
6.5 Amendments;
Waivers. Except as otherwise provided herein, neither this
Agreement nor any provision hereof may be changed, waived, discharged,
terminated, modified or amended except upon the written consent of the Company
and the Stockholder.
6.6 Notices. Any
and all notices or other communications or deliveries required or permitted
to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 5:30 p.m. (New York City time) on a business
day, (ii) the business day after the date of transmission, if such notice
or communication is delivered via facsimile at the facsimile telephone number
specified in the Purchase Agreement later than 5:30 p.m. (New York City time)
on
any date and earlier than 11:59 p.m. (New York City time) on such date,
(iii) the business day following the date of mailing, if sent by nationally
recognized overnight courier service, (iv) upon five days after mailing if
sent by certified or registered mail or (v) actual receipt by the party to
whom such notice is required to be given if delivered by hand. The
address for such notices and communications shall be as follows:
11
(i) if
to the
Company, to:
▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile
No.: (▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to (which shall not constitute notice):
Holland
& ▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
(ii) if
to
Loeb, at the addresses set forth on the Schedule of Stockholders, or at such
other addresses as may have been furnished to the Company in writing with
a copy
to (which shall not constitute notice):
Akin
Gump
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
6.7 Headings. The
headings of the sections of this Agreement have been inserted for convenience
of
reference only and shall not be deemed to be a part of this
Agreement.
6.8 Nouns
and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter
forms,
and the singular form of names and pronouns shall include the plural and
vice
versa.
6.9 Entire
Agreement. This Agreement and other documents delivered
pursuant hereto, including the exhibits, constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
6.10 Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall
constitute an original, but all of which, when taken together, shall constitute
but one instrument, and shall become effective when one or more counterparts
have been signed by each party hereto and delivered to the other
parties.
REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE
PAGES FOLLOW
12
IN
WITNESS WHEREOF, the parties hereto have executed this Stockholder Agreement
on
the date first written above.
By: /s/
▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇
Title: Chief
Executive Officer
Loeb
Partners Corporation
By: /s/
▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Vice
President