1
EXHIBIT 10.5
INTERNATIONAL INTEGRATION INCORPORATED
FOUNDING STOCKHOLDERS' AGREEMENT
This Agreement is made as of this 6th day of May, 1997 between
International Integration Incorporated, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), and the undersigned
holders of its Common Stock, par value $.01 per share, each of whom individually
is called a "Shareholder" and all of whom are together referred to as the
"Shareholders."
Each Shareholder desires to confirm in writing his agreement with the
Corporation that he will not sell, assign, transfer, or in any manner dispose of
the beneficial or legal interest in any shares of Common Stock of the
Corporation now or hereafter owned by him (the "Shares"), or create or suffer
the creation of a security interest in the Shares, except in accordance with
this Agreement.
In consideration of the mutual and dependant promises contained in this
Agreement, each Shareholder and the Corporation agree as follows:
SECTION 1. RIGHT OF CORPORATION TO PURCHASE. Subject to the terms and
conditions of this Agreement:
(a) OPTION AND RIGHT OF FIRST REFUSAL. The Corporation is hereby granted
the option and right to purchase any or all of the Shares at the purchase price
set forth in Section 2(a) that any Shareholder (including, in the event of
death, incompetency, insolvency or bankruptcy of any Shareholder, any legal
representatives of such Shareholder) proposes to sell, assign, transfer or
dispose in any other manner. The Shareholder proposing to sell, assign, transfer
or dispose of any or all of his Shares to a third party shall obtain a written
offer from
2
such third party setting forth the proposed price for the Shares, the manner of
payment and all other terms of the offer (the "Written Offer"). The Shareholder
shall deliver to the Corporation, not less than sixty (60) days prior to the
anticipated date of consummation of the proposed sale, transfer or other
disposition, a written notice setting forth the anticipated date of such
transaction, the number of Shares that are to be the subject of such
transaction, the names and addresses of the prospective parties thereto, the
proposed consideration, the terms of payment and any other material facts
related thereto (the "Notice of Transaction"), which Notice shall be accompanied
by a copy of the Written Offer. The Corporation shall have the right to exercise
the option created by this Section 1(a) by delivering to the Shareholder
proposing such transaction, within thirty (30) days of delivery of such
Shareholder's Notice of Transaction, a written notice of exercising this option
setting forth the number of Shares to be acquired, the purchase price for the
Shares and the date of payment therefor (the "Notice of Exercise"), which date
shall not be more than thirty (30) days after the date of delivery by the
Corporation of its Notice of Exercise. This Section 1(a) shall not apply to (A)
a proposed sale as part of a public offering of the Shares pursuant to a
registration statement under the Securities Act of 1933 or Regulation A
thereunder; (B) a sale, transfer or disposition that takes place as part of a
corporate reorganization or pursuant to a plan of merger or consolidation duly
adopted by the stockholders of the Corporation; or (C) a proposed transfer by
the Shareholder to his spouse or issue or a trust for the benefit of such
persons, or any transfer by operation of law to any such transferee, provided
that any such transferee shall become a party to this Agreement and agree in
writing to join herein and be bound hereby. (The sale, transfer or disposition
specified in subclause (C) is hereinafter referred to as a "Permitted
Transaction"
-2-
3
and the transferee is hereafter referred to as a "Permitted Transferee.")
(b) OPTION TO PURCHASE PLEDGED SHARES. A Shareholder may not cause any
Shares to become subject to any security interest or security agreement,
transfer the record or beneficial ownership of any Shares pursuant to the terms
of any security agreement or by operation of law, or otherwise pledge any Shares
to a transferee (a "Creditor Transferee") in connection with the creation,
satisfaction, assumption or guarantee of any indebtedness by the Shareholder,
unless (i) the Shareholder has provided the Corporation with a written notice (a
"Pledge Notice") disclosing his intent to pledge any or all of his Shares and
outlining the principal terms of such pledge and (ii) the Corporation has
received from the Creditor Transferee a written instrument (a "Creditor
Acknowledgment") (A) acknowledging that the Shareholder proposing to pledge any
or all of his Shares is bound by the terms of this Agreement, (B) acknowledging
the Corporation's option and right under Section 1(a) of this Agreement to
purchase any or all of the pledged Shares in the event of a default by the
pledging Shareholder under the terms of the pledge and (C) agreeing to provide
the pledging Shareholder with a Written Offer and otherwise to comply, and to
permit the pledging Shareholder to comply, with the terms of this Agreement
prior to any exercise by such Creditor Transferee of its rights under any
pledge. In the event of a proposed exercise by a Creditor Transferee of its
rights to any pledged Shares, either the Shareholder or Creditor Transferee
shall deliver a Notice of Transaction and Written Offer to the Corporation in
accordance with the provisions of Section 1(a), whereupon the Corporation shall
exercise its rights pursuant to and in accordance with Section 1(a).
In the event the Corporation does not receive a Pledge Notice and Creditor
-3-
4
Acknowledgment prior to a Shareholder causing Shares to become subject to a
pledge, the Corporation shall have an option to purchase any or all of the
pledged Shares at the purchase price set forth in Section 2(b) hereof.
(c) FAILURE TO DELIVER NOTICE OF TRANSACTION. In the event any Shareholder
fails to deliver a Notice of Transaction in a timely manner as provided herein,
the Corporation's rights hereunder shall not be impaired and its option shall
continue, and may be exercised within sixty (60) days of receipt by the
Corporation of such Notice, no matter when received. No transferee of any Shares
by operation of law, and no secured party, creditor, trustee, receiver or
assignee of any Shareholder shall have rights as a stockholder of the
Corporation unless the Shares so transferred shall have first been offered to
the Corporation as provided in this Agreement.
(d) WITHDRAWAL OF NOTICE OF TRANSACTION. Any Stockholder who has delivered
a Notice of Transaction pursuant to paragraphs (a) or (b) of this Section 1 may
withdraw such Notice of Transaction at any time prior to the delivery by the
Corporation of payment for the Shares. Upon withdrawal of a Notice of
Transaction, the Corporation shall have no rights to exercise its option under
Section 1(a), with respect to such proposed transaction.
SECTION 2. PURCHASE PRICE. (a) In the event of a purchase pursuant to
Section 1(a) hereof, the purchase price shall be the purchase price to be paid
by a proposed transferee (or its equivalent in cash) as set forth in the Notice
of Transaction given by a Shareholder to the Corporation as required by
paragraphs (a) or (b) of Section 1 hereof.
(b) Except as set forth in paragraph (a) above, the purchase price to be
paid for any Share to be purchased pursuant to this Agreement shall be the book
value for such Share as of
-4-
5
the last day of the fiscal quarter preceding the fiscal quarter during which the
event giving rise to such option or obligation occurred, as such book value
shall be determined from the books of the Corporation in accordance with
generally accepted accounting principles, consistently applied, and adjusted
upward or downward, as the case may be, to the extent necessary to:
(i) reflect corrections or errors;
(ii) provide appropriate accruals and reserves for all taxes
(including but not limited to all taxes based on income), bonuses and
other employee compensation (including but not limited to compensation
payable after the end of the then current fiscal year), reserves for
contingent liabilities and such other reserves as the Board of Directors
may deem proper, and such other items of income and expense attributable
to the period prior to the date as of which the determination is made as
the Board of Directors may deem proper;
(iii) exclude any value for customers' lists, records, files, leases
and any other good will relating to the business of the Corporation or any
of its subsidiaries or affiliates;
(iv) reflect the book value (as adjusted in the manner set forth in
this subparagraph) of any subsidiary of the Corporation;
(v) provide for the effect on book value of exercise of outstanding
options, warrants or other rights to acquire any capital stock of the
Corporation; and
(vi) reflect the liquidation preference of each share of capital
stock having a preference with respect to distribution of assets on
liquidation or dissolution.
SECTION 3. PAYMENT OF PURCHASE PRICE. On any payment date provided
-5-
6
pursuant to Section 1 of this Agreement, the entire purchase price payable for
the Shares that the Corporation is obligated to purchase or with respect to
which it has exercised an option shall be tendered and paid at 11:00 a.m., local
time, at the principal office of the Corporation against delivery of the
certificate or certificates for the Shares to be purchased, duly endorsed for
transfer or accompanied by one or more duly executed stock powers, with
signatures guaranteed by a bank or trust company, as follows:
(a) The entire purchase price shall be paid in cash, or by good certified
or bank check, unless the terms of payment specified in the Notice of
Transaction or Written Offer delivered by such Shareholder to the Corporation
pursuant to paragraphs (a) and (b) of Section 1 specified payment on the
installment or other deferred method, in which event the purchase price shall,
at the option of the Corporation or the Shareholder, be paid according to such
method.
(b) Nothing contained in this Section 3 shall prevent the Corporation from
paying any of the purchase price in a manner not provided for herein if mutually
agreed to by the Corporation and the Shareholder from whom such Shares are to be
purchased.
SECTION 4. RIGHTS OF SHAREHOLDER ON FAILURE OF CORPORATION TO EXERCISE
OPTION. Whenever, pursuant to the provisions of paragraphs (a) and (b) of
Section 1 hereof, the Corporation has the option to exercise its rights under
Section 1(a) and does not exercise this right, then, upon the expiration of the
period during which the Corporation shall have had such option, the Shareholder
by whom such Shares are held, shall be free for a period of ninety days to sell,
assign, transfer or otherwise dispose of such Shares for the consideration and
upon the terms and conditions stated in such Shareholder's Notice of
Transaction, including the
-6-
7
Written Offer, provided, however, that any such purchaser or other permitted
transferee shall become party to this Agreement and agree in writing to join
herein and be bound by all of the terms and conditions hereof. If not so sold,
assigned, transferred or otherwise disposed of within such ninety-day period
such Shares shall again become subject to the provisions of this Agreement.
SECTION 5. NO WAIVER OF SUBSEQUENT OPTIONS. The failure of the Corporation
in any instance to exercise in full any option arising under Section 1 hereof
shall not be a waiver of any option that may subsequently arise under this
Agreement.
SECTION 6. CANCELLATION OF SHARES. If the Corporation shall make
available, at the time and place and in the amount and form as provided in this
Agreement, the entire purchase price of all Shares to be purchased in accordance
with Section 1 hereof, then from and after such time all rights of the person
from whom Shares are to be purchased as a stockholder of the Corporation and as
a holder of Shares of the Corporation shall cease with respect to the Shares to
be purchased by the Corporation, other than the right to receive payment of such
purchase price in accordance with this Agreement, and such Shares shall be
deemed to be no longer outstanding, regardless of whether the certificate or
certificates therefor have been delivered to the Corporation as required by this
Agreement; provided, however, that if the person from whom Shares are to be
purchased is selling, assigning, transferring or otherwise disposing of less
than all the Shares owned by him, such person shall retain his rights as a
stockholder of the Corporation with respect to any Shares not purchased by the
Corporation.
SECTION 7. STOCK CERTIFICATES. Shares of stock of the Corporation of any
class
-7-
8
shall be issued only in the names of the beneficial owners thereof. No transfer
of shares of stock of the Corporation shall be effected except on the stock
books of the Corporation upon surrender of the certificate or certificates
therefor, duly endorsed for transfer or accompanied by one or more duly executed
stock powers, and with all stock transfer taxes paid or provided for.
SECTION 8. COMPLIANCE. No Shareholder shall sell, assign, transfer or in
any manner dispose of any Shares now or hereafter owned by him, or pledge or
create or suffer the creation of a security interest therein, nor shall any
Shares or any interest therein be transferable by the Corporation on its books
except upon compliance with this Agreement, and any sale, assignment, transfer,
disposition, pledge or the creation of any security interest contrary to the
provisions of this Agreement shall be null, void and of no effect. A Shareholder
shall indemnify and hold harmless the Corporation from any costs or expenses
(including reasonable attorneys' fees) in the event of any breach of this
Agreement or in the event of the sale of any of his Shares to the Corporation
pursuant to this Agreement from and against the claims of any other person with
respect to such Shares.
SECTION 9. CERTIFICATE LEGEND. All certificates representing outstanding
Shares owned of record or beneficially by a Shareholder shall have written,
stamped or printed on the face or back of the certificates a legend
substantially as follows:
"THIS CERTIFICATE AND THE SHARES REPRESENTED
HEREBY ARE SUBJECT TO THE TERMS OF A WRITTEN
STOCKHOLDERS' AGREEMENT, DATED AS OF MAY 6, 1997,
BETWEEN THE CORPORATION AND CERTAIN OF ITS
SHAREHOLDERS. THE CORPORATION UPON WRITTEN REQUEST
WILL FURNISH A COPY OF SUCH AGREEMENT TO THE
HOLDER HEREOF WITHOUT CHARGE."
-8-
9
SECTION 10. SHAREHOLDER REPRESENTATION. Each Shareholder represents and
warrants that he is the sole record, legal and beneficial owner of the Shares
set forth next to such Shareholder's name below, in each case free and clear of
any and all liens, charges and other encumbrances.
SECTION 11. TERMINATION. This Agreement shall terminate on the earlier of
(i) the second anniversary of the date hereof and (ii) the closing of an initial
public offering of the Corporation's securities (the "Termination Date").
SECTION 12. AMENDMENT. This Agreement may not be modified, amended, or
terminated prior to the Termination Date except by an instrument in writing
signed by a duly authorized officer on behalf of the Corporation and each of the
undersigned.
SECTION 13. FURTHER ASSURANCES. Each party hereto agrees to execute and
deliver such further instruments, certificates and documents as shall be
necessary to carry out the provisions of this Agreement.
SECTION 14. BINDING EFFECT. This Agreement shall inure to the benefit of'
and be binding upon the Corporation and its successors and assigns and each
Shareholder and his legal representatives, heirs, testate and intestate
distributees and assigns, and transferees by operation of law, whether or not
any such person shall have become a party to this Agreement and agreed in
writing to join herein and be bound by the terms and conditions hereof.
SECTION 15. MASSACHUSETTS LAW. This Agreement is and shall be deemed to be
made and performed in The Commonwealth of Massachusetts. This Agreement and any
controversies arising between the parties to this Agreement shall be governed
and construed by and in accordance with the laws of The Commonwealth of
Massachusetts.
-9-
10
SECTION 16. NO WAIVER. No waiver of any breach or condition of this
Agreement shall be deemed to be a waiver of any other or subsequent breach or
condition, whether of like or different nature.
SECTION 17. ILLEGALITY. In the event that any provision of this Agreement
shall be invalid or contrary to law, the remaining provisions shall remain in
full force and effect and in all respects binding upon all of the parties to
this Agreement.
SECTION 18. NOTICES. Any notice required or permitted by this Agreement
shall be deemed delivered when given by registered or certified mail, return
receipt requested, addressed to the Corporation at its principal office, to any
Shareholder at his address as shown on the books of the Corporation and to any
other party hereto at such other address as shall from time to time be specified
in a notice similarly given.
IN WITNESS WHEREOF, the Corporation has caused this agreement to be signed
by its duly authorized officer, and each Shareholder has set his hand, all as of
the day and year first above written.
INTERNATIONAL INTEGRATION INCORPORATED
By: /s/ Xxxxxxx Xxxx
------------------------------
Xxxxxxx Xxxx
Chief Executive Officer
SHARES SHAREHOLDERS:
1,755,000 /s/ Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx
-10-
11
1,755,000 /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx
6,755,025 /s/ Xxxxxx Xxxxxxxxxxx
------------------------------
Xxxxxx Xxxxxxxxxxx
1,755,000 /s/ Xxxxxxx Xxxxxxxx
------------------------------
Xxxxxxx Xxxxxxxx
-11-
