Exhibit 2.4(a)(vii){PRIVATE }
SHAREHOLDERS AGREEMENT
JAH\CSW\AGRE\207135.10
THIS AGREEMENT, made and entered into as of the day of ,
1996, by and between ECB INC., a Florida corporation, hereinafter referred to as
the "Corporation," ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), a resident of Lake County, Florida,
▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), a resident of ▇▇▇▇ County, Florida and S. C. ▇▇▇▇▇▇▇▇,
JR., ("▇▇▇▇▇▇▇▇") a resident of Buncombe County, North Carolina, HANDEX
CORPORATION, ("Handex") a Delaware Corporation, and SOUTHCOAST CAPITAL
CORPORATION ("Southcoast") a Corporation, hereinafter collectively
referred to as the "Shareholders" and individually referred to as "Shareholder."
As used herein, "Shareholder" shall also refer to any future shareholder of the
Corporation who becomes subject to the terms and conditions of this agreement.
WHEREAS, the Corporation has authorized 1,540,000 shares of Voting Common
Stock and 2,000 shares of Series A Preferred Stock; and
WHEREAS, all of the Corporation's issued and outstanding shares of Voting
Common Stock are owned by Bannon, Eatman, and ▇▇▇▇▇▇▇▇ (collectively the
"Controlling Shareholders") as follows;
Shareholder Number of Shares
----------- -----------------
▇▇▇▇▇▇ 314,666.66
▇▇▇▇▇▇ 314,666.66
▇▇▇▇▇▇▇▇ 189,666.66
------------
Total 819,000.00
WHEREAS, the Corporation has issued "A" Warrants to Handex to purchase
300,000 shares of the Corporation's Voting Common Stock pursuant to that certain
Warrant of even date herewith, a copy of which is attached as Exhibit "A" and
incorporated by reference, "B" Warrants to Handex to purchase 85,000 shares of
the Corporation's Voting Common Stock pursuant to that certain Warrant of even
date herewith, a copy of which is attached as Exhibit "B" hereto and
incorporated by reference, and Warrants to Southcoast to purchase 46,200 shares
of the Corporation's Voting Common Stock pursuant to that certain Warrant of
even date herewith, a copy of which is attached as Exhibit "C" and incorporated
by reference (the warrants issued by the Corporation are collectively referred
to as the "Warrants" and the agreements regarding the Warrants are collectively
referred to as the "Warrant Agreements"); and
WHEREAS, the Corporation has issued all of the 2,000 shares of Series A
Preferred Stock to Handex; and
WHEREAS, the Corporation intends to grant certain of its employees other
than the Controlling Shareholders (collectively the "Key Employees" and
individually the "Key Employee") the right to purchase shares of unissued Voting
Common Stock (the "Restricted Shares") and as a condition to the grant of such
rights, the key employees shall agree to be bound by the terms and conditions of
this Agreement; and
WHEREAS, the Voting Common Stock, the Series A Preferred Stock, the
Warrants, all shares of Voting Common Stock issued by the Corporation to Handex
and Southcoast upon the effective exercise of the Warrants, and the Restricted
Shares comprise or will comprise all of the capital interests in the Corporation
(individually and collectively referred to as the "Security" or the
"Securities"); and
WHEREAS, the Corporation has entered into that certain Stock Purchase
Agreement of even date herewith (the "Stock Purchase Agreement") to purchase
stock in Handex Environmental, Inc. (the "Transaction") and various other
documents and agreements necessary to consummate the Transaction referred to
therein which are herein referred to collectively as the "Collateral
Agreements"; and
WHEREAS, the Controlling Shareholders have, in connection with the
Transaction, entered into a Nonrecourse Guaranty and Pledge Agreement (the
"Pledge Agreement"); and
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WHEREAS, the parties hereto desire to set forth in this agreement the
specific terms and agreements reached between and among them concerning
management of the Corporation and the purchase of a Shareholder's Security in
the Corporation by the Corporation or by other Shareholders upon the occurrence
of certain events; and
WHEREAS, the parties hereto believe it to be in the best interests of the
Shareholders and the Corporation to impose certain restrictions and obligations
on the Securities of the Corporation.
NOW, THEREFORE, for and in consideration of the mutual promises and
covenants of the parties hereto, the sum of Ten Dollars ($10.00) each to the
other cash in hand paid, and other good and valuable consideration, the receipt
and sufficiency of all of which is hereby acknowledged, the parties hereto do
hereby agree as follows:
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Control, Agreement Regarding Voting of Shares. Subject to the terms
of the Pledge Agreement, each Controlling Shareholder and Key Employee
personally and for heirs and assigns, separately covenants and promises to each
other and heirs and assigns that in exercising the voting rights of the Voting
Common Stock that the articles and by-laws annexed as Exhibits "E" and "F"
shall not be altered, amended, modified, repealed, rescinded, or changed except
by unanimous agreement among the Controlling Shareholders. To that end, each
Controlling Shareholder and Key Employee gives all further assurances and
covenants that in all matters pertaining to Shareholder voting, whether
preliminary, procedural, or otherwise, he or she shall and will vote such shares
consistently with, and in such manner as to effectuate and carry out, this
intention.
Affairs of the Corporation; Agreements Concerning Management.
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Subject to the terms of the Pledge Agreement, each Controlling
Shareholder and Key Employee, personally and for heirs and assigns, separately
covenants and promises to each other and his heirs and assigns that in
exercising voting rights of the Voting Common Stock, in exercising voting powers
and discretions as a director of the Corporation, and in exercising powers as an
officer of the Corporation, each such party shall in each and every capacity
exercise his voting rights, legal powers, and discretions in favor of the
following:
The directors of the Corporation shall consist of four
members and the Controlling Shareholders shall elect ▇▇▇▇▇▇, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇
as members of such board;
The election of the following officers of the Corporation
shall be as follows:
(1) President\Assistant Secretary - ▇▇▇▇▇▇;
(2) Treasurer\Secretary - ▇▇▇▇▇▇;
(3) Assistant Secretary - ▇▇▇▇▇▇▇▇
(b) The Corporation shall purchase and maintain insurance on behalf
of any person who is or was a director or officer of the Corporation, or is or
was serving at the request of the Corporation as a director or officer, against
any liability asserted against him and incurred by him in any such capacity, or
arising out of his or her status as a director or officer.
(c) It is the purpose and intent of this paragraph to specify that
the matters set forth herein shall be adhered to by the Controlling Shareholders
and Key Employees in the conduct of the business and affairs of the Corporation,
unless by unanimous agreement of the Controlling Shareholders a contrary
determination is made. Any corporate action which is approved unanimously by
the Controlling Shareholders shall be valid whether or not express waiver of any
otherwise applicable proscription contained in this agreement shall be made.
To effectuate their intention expressed in this paragraph, the Controlling
Shareholders and Key Employees give unto each other party his or her covenant of
further assurances and agrees that in all affairs of the Corporation he or she
will exercise all voting rights in shares of Voting Common Stock in a manner
which is consistent with the intention expressed herein.
2. Restriction on Transfer. The Shareholders shall not, while this
agreement is in force, sell, assign, encumber, pledge, gift, transfer or
otherwise dispose of any Security in the Corporation now or hereafter owned by
them except pursuant to and in compliance with the terms of this agreement and
the Pledge Agreement. The Controlling Shareholders acknowledge and agree that
this Agreement shall not restrict the rights of Handex to sell or transfer any
Security pursuant to the Pledge Agreement free of the restrictions herein
contained.
3. Capitalization.
(a) At the effective date of this agreement, the Corporation is
authorized to issue 1,540,000 shares of Voting Common Stock all of one class and
having one vote per share and the Corporation has issued, outstanding, fully
paid, and non-assessable the following shares:
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Shareholder Number of Shares
----------- ----------------
▇▇▇▇▇▇ 314,666.66
▇▇▇▇▇▇ 314,666.66
▇▇▇▇▇▇▇▇ 189,666.66
-----------
TOTAL 819,000.00
The Corporation and the Controlling Shareholders acknowledge and agree that
no additional shares of Voting Common Stock or other securities convertible into
or exchangeable for, or options, warrants or other rights to acquire shares of
Voting Common Stock will be issued or sold that would or could result in the
Controlling Shareholders and the shares of Voting Common Stock pledged under the
Pledge Agreement having the right to exercise less than fifty-one percent (51%)
of the total voting power of the Corporation for the election of Directors.
At the effective date of this agreement, the Corporation is
authorized to issue 2,000 shares of Series A Preferred Stock, all of one class
and having voting rights as provided in the terms thereof set forth in the
articles of incorporation of the Corporation and the Corporation has issued,
outstanding, fully paid and non-assessable all such shares to Handex.
Options in the Event of Involuntary Transfers of Securities.
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Subject in the case of the Controlling Shareholders to the rights
of Handex under the Pledge Agreement, if a Shareholder owning a Security
(hereinafter called the Involuntary Transferor): (a) files a voluntary petition
under any bankruptcy or insolvency law or a petition for the appointment of a
receiver or makes an assignment for the benefit of creditors, (b) is subjected
involuntarily to such a petition or assignment or to an attachment or other
legal or equitable interest with respect to his Security in the Corporation and
such involuntary petition, assignment, or attachment is not discharged within
one hundred and twenty (120) days after its effective date, or (c) is subjected
to any other possible involuntary transfer of a Security in the Corporation by
legal process, including without limitation, an assignment or transfer pursuant
to a divorce decree (collectively referred to as a "Triggering Event"), the
Corporation shall have the option to purchase any or all of the Securities held
by the Involuntary Transferor (hereinafter referred to as the "Transferor's
Shares") for the purchase price set forth in Paragraph 10 and upon the terms set
forth in Paragraph 11. If the Corporation desires to exercise its option to
purchase any or all of the Transferor's Securities offered for sale to it
pursuant to this paragraph, it shall notify such Involuntary Transferor and the
other Shareholders in writing within sixty (60) days of the Triggering Event
that it intends to exercise its option to purchase the portion of the
Transferor's Securities specified in such notice.
Subject in the case of the Controlling Shareholders to the rights
of Handex under the Pledge Agreement, if the Corporation fails to exercise its
option to purchase any portion of the Transferor's Securities, the other
Shareholders owning Voting Common Stock shall have the option to purchase all
but not less than all of the Transferor's Securities remaining unpurchased at
and for the purchase price and upon the same terms at which the Corporation was
entitled to purchase such shares pursuant to subparagraph (a) above. Each such
Shareholder shall have the option to purchase such Shareholder's "proportionate
share" (as hereinafter defined) of each and every "class" (as defined below) of
the Transferor's Securities not purchased by the Corporation. A Shareholder
shall exercise such Shareholder's option by giving written notice to the
Involuntary Transferor and the other Shareholders within ninety (90) days of the
Triggering Event (as provided in subparagraph (a) above) that such Shareholder
intends to purchase such Shareholder's proportionate share of each and every
class of the Transferor's Securities not purchased by the Corporation.
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For purposes of this agreement, the term "proportionate share" means
that portion of each and every class of the Transferor's Securities not
purchased by the Corporation determined by the ratio which the number of shares
of Voting Common Stock of the Corporation owned by each Shareholder who elects
to purchase his proportionate share of the Transferor's Securities pursuant to
this subparagraph (b) bears to the total number of shares of Voting Common Stock
of the Corporation owned by all of the Shareholders who elect to purchase their
proportionate shares of the Transferor's Shares not purchased by the Corporation
pursuant to this subparagraph (b). For example, if only one Shareholder owning
Voting Common Stock elects to purchase such Shareholder's proportionate share of
the Transferor's Shares not purchased by the Corporation pursuant to this
subparagraph (b), then such Shareholder shall be entitled to, and shall be
required to, purchase all of such Transferor's Securities.
Also, for purposes of this agreement, the Voting Common Stock, Series A
Preferred Stock, and Warrants shall each represent a separate "class" of the
Securities.
The closing of a purchase and sale pursuant to this paragraph
shall take place on a date within one hundred twenty (120) days after the
Triggering Event. At closing, the Involuntary Transferor shall resign as a
director or officer of Corporation, if and to the extent that he or she may hold
such office, and shall deliver to the purchaser the Securities acquired pursuant
to this Paragraph 5.
In the event that, at any time or from time to time, any
Securities are transferred to any party pursuant to a Triggering Event, the
transferee shall take such Securities pursuant to all provisions, conditions,
and covenants of this agreement and, as a condition precedent to the transfer of
such shares of Voting Common Stock, the transferee shall agree, for and on
behalf of himself or itself, his or its legal representatives, and his or its
transferees and assigns, in writing to be bound by all provisions of this
agreement as a party hereto and in the capacity of a Shareholder. In the event
that there shall be any transfer to any person or entity in compliance with the
provisions of this section, all references herein to the Shareholders or any
Shareholder shall thereafter be deemed to include such transferee.
Disposition of Securities of the Corporation - Right of First Refusal.
Subject to the terms of the Pledge Agreement, in the event that a Shareholder
(hereinafter referred to as the "Offering Shareholder") desires to dispose of
any or all of his, her or its Securities of the Corporation after having
received a "bona fide offer from a qualified third party purchaser" (as defined
below) to purchase such Securities, the Offering Shareholder shall first offer
in writing such Securities for sale as follows:
(a) If the Offering Shareholder desires to accept said offer of such
third party, the Offering Shareholder shall deliver a copy of said third party's
offer to the Corporation, and to the other Shareholders, together with a written
offer from the Offering Shareholder to sell such Securities to the Corporation
or to other Shareholders in accordance with this agreement. As used herein, a
"bona fide offer from a qualified third party purchaser" shall mean a written
and binding offer from a third party which sets forth the proposed purchase
price and terms of the proposed purchase of the Offering Shareholder's
Securities and which is accompanied by an ▇▇▇▇▇▇▇ money deposit in an amount not
less than twenty percent (20%) of the proposed purchase price.
(b) The Corporation shall have the option to purchase any or all of
the Offering Shareholder's Securities (hereinafter referred to as the "Offered
Securities") for the purchase price and upon the terms set forth in said bona
fide offer. If the Corporation desires to exercise its option to purchase any
or all of the Offered Securities, it shall notify such Offering Shareholder and
the other Shareholders in writing within thirty (30) days of the Offering
Shareholder's offer that it intends to exercise its option to purchase the
portion of the Offered Securities specified in such notice.
(c) If the Corporation fails to exercise its option to purchase any
portion of the Offered Securities, the other Shareholders owning Voting Capital
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Stock shall have the option to purchase all but not less than all of the Offered
Securities remaining unpurchased at and for the purchase price and upon the same
terms at which the Corporation was entitled to purchase such shares pursuant to
subparagraph (ii) above. Each such Shareholder shall have the option to
purchase such Shareholder's "proportionate share" (as hereinafter defined) of
each and every class of the Offered Securities not purchased by the Corporation.
A Shareholder shall exercise such Shareholder's option by giving written notice
to the Offering Shareholder and the other Shareholders within sixty (60) days of
the Offering Shareholder's offer to sell the Offered Securities that such
Shareholder intends to purchase such Shareholder's proportionate share of each
and every of the Offered Securities not purchased by the Corporation.
(d) If the Corporation and the other Shareholders fail to exercise
their respective options to purchase all of the Offered Securities pursuant to
this paragraph and the Offering Shareholder desires to dispose of his or her
Securities to the third party purchaser, the Offering Shareholder shall be free
to dispose of the Offered Securities to the third party so designated in his
written offer at the price and upon the terms indicated in such written offer
for a period of forty-five (45) days after expiration of the sixty (60) day
period referred to in subparagraph (iii) above during which the other
Shareholders had the option to purchase the Offered Securities provided that,
the Offering Shareholder and the third party purchaser comply with the
following:
(i) In the event that an Offering Shareholder is a Controlling
Shareholder, such Controlling Shareholder hereby covenants and agrees to
exchange all of his shares of Voting Common Stock for an equal number of
Nonvoting Common Stock prior to transferring the Offered Securities to the third
party. In order to effectuate such an exchange, the Shareholders covenant and
agree to exercise their voting rights in the shares of the Corporation in favor
of a plan of recapitalization whereby the Corporation shall authorize and issue
to such Controlling Shareholder a number of shares of Nonvoting Common Stock
equal to number of shares of Voting Common Stock then held by such Controlling
Shareholder.
(ii) Such third party assumes and agrees in writing to be bound
by all of the terms and conditions of this agreement, including any amendments
made on or prior to the date of such purchase.
(e) At the expiration of this forty-five (45) day period, the Offered
Securities shall again become subject to all of the applicable requirements
contained in this agreement before any transfer, sale, assignment, encumbrance,
pledge, gift or other disposition of such Shareholder's Securities.
(f) The closing of a purchase and sale pursuant to this paragraph
shall take place on a date within ninety (90) days after the written offer by
the Offering Shareholder.
2. Drag Along Rights Notwithstanding anything to the contrary expressed
herein but subject to the terms of the Pledge Agreement and the Warrant
Agreements, the Controlling Shareholders may elect (the "Drag Along Election")
at any time during the term of this Agreement to sell all of their shares of
Voting Common Stock to a third party purchaser and to cause a sale of all of the
then issued and outstanding shares of Voting Common Stock of the Corporation to
be made to such third party purchaser in a transaction for value. Any such sale
of all of the issued and outstanding shares of Voting Common Stock of the
Corporation held by all of the Shareholders of the Corporation, other than the
Controlling Shareholders, must be made on the same terms and conditions,
including the price per share, upon which the Controlling Shareholders have
agreed to sell all of their shares of Voting Common Stock.
The Controlling Shareholders may trigger a Drag Along Election by providing
a written notice of such election (the "Drag Along Notice") to all of the
Shareholders owning Voting Common Stock of the Corporation. The Drag Along
Notice shall include the price per share being paid to the Controlling
Shareholders by such third party purchaser and the other material terms and
conditions of such sale. Upon its receipt of a Drag Along Notice, each of the
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other Shareholders hereby covenant and agree to take or cause to be taken all
actions and steps to effect such sale as the Controlling Shareholders may deem
necessary, desirable or appropriate, including without limitation, the prompt
delivery to the Controlling Shareholders of duly endorsed stock powers with
respect to all of the shares of Voting Common Stock at such time owned by such
Shareholder.
3. Purchase of Voting Common Stock Upon the Death of Bannon, Eatman, or
▇▇▇▇▇▇▇▇.
Subject to prior termination of the Pledge Agreement, upon the death
of Bannon, Eatman, or ▇▇▇▇▇▇▇▇, the Corporation shall redeem and the deceased
Shareholder hereby covenants and agrees for and on behalf of his or her personal
representative, heirs, beneficiaries, or other successors to sell, all of the
shares of Voting Common Stock of the Corporation owned by the deceased
Shareholder at the time of his or her death for the purchase price and in
accordance with the terms set forth in Paragraphs 10 and 11(b) hereunder.
4. Purchase of Restricted Shares.
(a) Notwithstanding anything to the contrary expressed herein, the
Key Employees shall not sell, assign, encumber, pledge, gift, transfer or
otherwise dispose of any of the Restricted Shares except in compliance with the
provisions of this paragraph 9.
(b) The Restricted Shares, shall be subject to repurchase by the
Corporation from a Key Employee upon the Key Employee's termination of
employment with the Corporation for any reason other than as provided in
paragraph (c) below, for the purchase price and in accordance with the terms set
forth in Paragraphs 10 and 11 hereunder.
(c) The Corporation shall purchase the Restricted Shares from a Key
Employee upon either: (i) Employee's termination of Employment for cause (as
defined in such Key Employee's employment agreement with the Corporation) or
(ii) upon the Key Employee's voluntary termination of Employment prior to
January 1, 2000. The Corporation shall purchase such shares from the Key
Employee at a price which is equal to the lesser of: (a) the purchase price paid
by the Employee for such Restricted Shares or (b) the formula price set forth
below. For purposes of this Agreement, the formula price shall be an amount per
share equal to the net book value thereof determined as of the last day of the
Corporation's most recently completed fiscal year by the accountant regularly
employed by the Corporation, in accordance with accounting principles normally
used by the accountant in preparing the financial statements of the Corporation,
and the accountant's determination shall be binding and conclusive upon the
parties hereto, their personal representatives and successors, and all other
persons involved.
5. Determination of Purchase Price.
(a) Purchase Price of Voting Common Stock. Except as otherwise
provided herein, the purchase price per share of Voting Common Stock for
purposes of this agreement shall be the "Appraised Value" of such shares
determined by appraisal under the provisions of this Paragraph.
(i) Procedure for Appraisal. For purposes of this agreement,
whenever it is necessary to compute the Appraised Value of shares of Voting
Common Stock, the Appraised Value shall be determined by an appraiser selected
by a majority of the non-selling Shareholders. The value contained in the
written report of the appraiser shall constitute the Appraised Value of the
shares of Voting Common Stock.
(ii) Assumptions. An appraiser making any appraisal pursuant to
this Paragraph shall assume an all-cash sale with respect to the shares of
Voting Common Stock to be sold and shall assume that the restrictions on
transfer specified in this agreement and any applicable federal or state
securities law restrictions on transfer are not applicable to the shares of
Stock. In determining Appraised Value for any sale of shares pursuant to this
agreement, no appraiser shall consider the effect, to the business or business
prospects of the Corporation, of the death of a Shareholder or the termination
of employment of a Shareholder for any other reason. Furthermore, no appraiser
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shall consider life insurance proceeds, if any, received by the Corporation in
valuing any shares of Voting Common Stock, and there shall be no control
premiums or minority ownership discounts in valuing any shares of Voting Common
Stock. Any appraiser appointed shall be provided with all available financial
statements of the Corporation and any other information reasonably necessary to
make the appraisal and shall have full access to all books and records of the
Corporation.
(iii) Qualifications. Any appraiser appointed shall be
experienced in appraising businesses similar to Corporation's.
(iv) Cost of Appraisal. The fees and other costs of the
appraisal shall be borne by the Corporation.
(b) Purchase Price for Series A Preferred Stock. The purchase price
for Series A Preferred Stock shall be $1,000 per share plus any unpaid and
accrued dividends in respect of the stock.
(c) Purchase Price for Warrants. The Purchase price for the
respective Warrants shall be determined by the excess of the aggregate fair
market value of the Voting Common Stock subject to the exercise of the Warrants
(determined pursuant to the provisions of subparagraph (a)) over the aggregate
exercise price of the Warrants.
6. Terms of Sale of Securities.
(a) Disposition by a Shareholder.
(i) Unless otherwise provided in this agreement, the purchase
price of Securities sold pursuant to this agreement, except pursuant to
paragraph 8, shall be paid in cash at closing or, at the option of the
purchaser, shall be paid by a cash down payment of not less than ten percent
(10%) of the purchase price at closing with the balance payable in thirty-six
(36) equal monthly installments together with interest on the unpaid principal
balance computed at a rate equal to the interest rate being charged to its prime
customers by the bank with which the Corporation does a majority of its business
as of the date immediately preceding the date of closing.
(ii) The obligation of the purchaser for the deferred portion of
the purchase price (if any) shall be represented by a promissory note containing
the terms described above and providing for the right of prepayment at any time
without premium or penalty. Such promissory note shall be secured by a pledge
of the Securities purchased.
(b) Disposition Upon Death of Controlling Shareholder. Unless
otherwise agreed upon by the Corporation, the purchase price of the Securities
sold pursuant to paragraph 8 above shall be paid by a purchase-money promissory
note providing for principal balance payable in sixty (60) equal monthly
installments together with interest on the unpaid balance computed at a rate
equal to the interest rate being charged to its prime customers by the bank with
which the Corporation does a majority of business as of the date immediately
preceding the date of closing. Such promissory note shall be secured by a
pledge of the Voting Common Stock purchased. The Corporation shall have the
option of making a cash down payment of any amount.
7. Conflict with Restrictive Covenants. Notwithstanding anything to the
contrary expressed in this Agreement, neither ▇▇▇▇▇▇, ▇▇▇▇▇▇ nor ▇▇▇▇▇▇▇▇ shall
have the right to sell their Voting Common Stock pursuant to paragraphs 5, 6 or
7 herein nor will the Corporation purchase Voting Common Stock upon the death of
▇▇▇▇▇▇, ▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ pursuant to paragraph 8 herein if such a transaction
would violate the terms of the Series A Preferred Stock, the Pledge Agreement or
any restrictive covenant within the Collateral Agreements regarding the transfer
of such Voting Common Stock.
8. Insufficient Corporate Surplus. If the Corporation shall not have
sufficient surplus at closing hereunder to permit it to lawfully purchase the
Securities pursuant to this agreement, the Shareholders shall promptly take such
measures to vote their respective holdings of the shares of Voting Common Stock
of the Corporation to reduce the capital of the Corporation or to take such
other steps as may be appropriate or necessary in order to enable the
Corporation lawfully to purchase and pay for all of the shares of Voting Common
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Stock to be purchased by the Corporation pursuant to this agreement;
notwithstanding the foregoing, the Shareholders shall not be required to
contribute additional capital to the Corporation in order to enable the
Corporation to lawfully purchase the Securities.
9. Transfer in Violation. A sale, gift, transfer, pledge, encumbrance or
other disposition of a Security in violation of any of the provisions of this
agreement shall be null and void.
10. Specific Performance. The Securities of the Corporation cannot be
readily purchased or sold in the open market, and for that reason, among others,
the parties hereto will be irreparably damaged in the event that this agreement
is not specifically enforced. Should any dispute arise concerning the sale,
encumbrance or disposition of the Securities, an injunction may be issued
restraining any sale, encumbrance or disposition pending the determination of
such controversy. In the event of any controversy concerning the right or
obligation to purchase or sell any of the Securities, such right or obligation
shall be enforced in a court of competent jurisdiction by a decree of specific
performance. Such remedy shall, however, be cumulative and not exclusive and
shall be in addition to any other remedy which the parties may have. If any
party hereto, or the personal representative of any deceased Shareholder, shall
institute any action or proceeding to enforce the provisions hereof, that person
against whom such action or proceeding is brought hereby waives the claim or
defense therein that such person has an adequate remedy at law, and such person
shall not urge in any such action or proceeding the claim or defense that such
remedy at law exists.
11. After-Acquired Securities. Whenever any Shareholder or other person
acquires any additional Securities other than the Securities owned by him at the
date of this agreement, or at the time such person becomes bound by the terms of
this agreement, such Securities shall be subject to all the terms of this
agreement.
12. Future Shareholders. Unless otherwise agreed by each of the parties
hereto, the Corporation shall not issue Securities to any person, unless such
person assumes and agrees in writing to be bound by all the terms and conditions
of this agreement, including any amendment to this Agreement made on or prior to
the date of such issuance.
13. Endorsement of Stock Certificates. Upon the execution of this
agreement all certificates for shares of Voting Common Stock of the Corporation
and Series A Preferred Stock shall be surrendered to the Corporation and
endorsed as follows:
The shares of stock in this Corporation may be transferred
by the owner hereof only by fully complying with the
Shareholders Agreement dated , 1996,
together with any amendments thereto, a copy of which is on
file in the office of the Corporation. Any person who
purchases or acquires such shares of stock in this
Corporation (including by gift or by pledge) accepts such
shares of stock subject to such conditions.
After endorsement, the certificates shall be returned to the Shareholders. All
certificates for shares of Voting Common Stock or Series A Preferred Stock of
this Corporation hereafter issued, including those shares of Voting Common Stock
issued upon the effective exercise of the Warrants, shall bear the endorsement
set forth above.
1. Corporation's Exercise of Option. Any decision by the Corporation
regarding its option to purchase hereunder or regarding the price, terms of
purchase, closing date or any other decision hereunder, including but not
limited to decisions regarding whether to enforce the provisions of this
agreement by the bringing of an action or proceeding, shall be made by vote of
the holders of a majority of the outstanding shares of Voting Common Stock of
the Corporation; provided, however, that any Shareholder (or the personal
representative of a deceased Shareholder) whose shares of Voting Common Stock
JAH\CSW\AGRE\207135.10
are the subject of the option or decision shall not have a vote in such
decision, and such shares of Voting Common Stock shall not be included in
determining the number of outstanding shares for purposes of such determination.
2. Termination of Agreement. This agreement shall commence as of the
effective date hereof, and shall continue in full force and effect until
terminated by the mutual agreement of the parties hereto or the cessation of the
Corporation's business, by the bankruptcy, receivership or dissolution of the
Corporation, or upon exercise by Handex of its rights under the Pledge
Agreement. Upon termination of this agreement, the Shareholders shall surrender
to the Corporation the certificates for their shares of Voting Common Stock and
the Corporation shall issue to them in lieu thereof new certificates for an
equal number of shares of Voting Common Stock without the endorsement set forth
in Paragraph 18 hereof.
3. Notices. All notices, offers, acceptances, requests, demands and any
other communications provided for herein shall be given in writing and shall be
sent by United States certified mail, return receipt requested, postage prepaid,
to each party's last known address. Notice shall be deemed effectively given
hereunder when deposited in the United States Mail, postage prepaid, certified,
return receipt requested.
4. Prior Agreements. This agreement supersedes any and all prior
agreements which may exist among the Controlling Shareholders and the
Corporation affecting the shares of Voting Common Stock of the Corporation and
any such prior agreements are hereby terminated.
5. Benefit. This agreement shall be binding upon and inure to the
benefit of the parties, their heirs, legal representatives, successors and
assigns.
6. Completeness of Agreement. This agreement, the Stock Purchase
Agreement, the terms of the Series A Preferred Stock, the Collateral Agreements,
and the Pledge Agreement constitute the entire agreement and understanding among
the parties hereto concerning the subject matter hereof. This agreement may be
amended only by instrument in writing, duly executed with the same formalities
of this document.
7. Attorney's Fees. If any party hereto, including the Corporation,
institutes any action or proceeding to enforce this agreement and such party
prevails in such action or proceeding, then such party shall be entitled to
collect from the nonprevailing party or parties (which may include a transferee
with notice of this agreement) reasonable attorney's fees and the costs and
expenses of such action.
8. Severability. If any provision of this agreement shall be declared
invalid or unenforceable, the invalidity or unenforceability of such provision
shall not affect the remainder of this agreement, and this agreement shall be
construed and enforced as if such invalid or unenforceable provision had not
been contained herein.
9. Survive Closing. The terms, conditions, obligations and covenants in
this agreement shall survive (a) its execution by the parties hereto, (b) the
closing of any transactions contemplated herein, and (c) the execution of all
contracts hereafter entered into between them, except to the extent that such
transactions and contracts may be inconsistent with this agreement.
10. Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of Florida.
IN WITNESS WHEREOF, the parties have executed this agreement as of the date
first above written.
Witnesses: ECB, INC., a Florida corporation
By:
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As to Corporation "Corporation"
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▇▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇▇
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S. C. ▇▇▇▇▇▇▇▇, Jr.
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HANDEX CORPORATION, a
Delaware corporation
By:
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SOUTHCOAST CAPITAL CORPORATION,
a corporation
By:
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As to Shareholders "Shareholders"
JAH\CSW\AGRE\207135.10
