AGREEMENT AMONG SHAREHOLDERS
OF
VEEARE CITY THE XXXXX.XXX, INC.
This is an Agreement executed as of this day of August 31, 1999,
between and among NorStar Group, Inc., Com Odyssey, Inc. (Each a
"Shareholder"), each of whom own shares of stock of VeeAre City The Xxxxx.Xxx,
Inc., a Delaware corporation (the "Company"), which collectively total 100% of
said shares.
WITNESSETH:
WHEREAS, the parties have caused to be organized under the laws
of the state of Delaware corporation named VeeAre City The Xxxxx.Xxx,
Inc., (the Corporation with an authorized capital stock consisting of
3,000 shares of common stock of par value of .01 (the "Stock"); and
WHEREAS, the parties have negotiated concerning certain rights and
restrictions they wish to place on the Stock the allocation or obligations and
responsibilities and the distribution of revenue; and
WHEREAS, the parties have reached an understanding that they wish to
reduce to this writing.
Now, THEREFORE, in consideration of the foregoing, the mutual covenants
herein, and intending to be legally bound, the parties agree as follows:
1. RESTRICTION DURING LIFE
No Shareholder shall assign, encumber, pledge, transfer, or otherwise
dispose of any of his or her shares of the Stock to any person without first
receiving the written consent of the other Shareholders, unless the Shareholder
desiring to make the transfer or encumbrance (the "Transferor") makes an offer
to sell in accordance with the provisions of this paragraph, and such offer is
not accepted.
a. Offer by Transferor. The offer shall be given to the other
Shareholders and shall consist of a written offer to which shall be attached (1)
a statement of Intention to transfer or encumber, (2) the name and address of
the prospective purchaser or lienor (3) the number of shares of the Stock
involved in the proposed transfer or encumbrance, and 4) the terms of such
transfer or encumbrance.
b. Acceptance of Offer. Within 30 days after the receipt of such offer,
the other Shareholders may elect to purchase the offered shares, but
collectively not less than all, of the shares of the Stock involved in the
proposed transfer or encumbrances, the other Shareholders shall exercise an
election to purchase by giving notice to the Transferor. Such notice shall
specify the amount of shares to be
purchased. The closing of the purchase shall be not more than 60 days after the
30-day notice period. If the Shareholders electing to purchase indicate
collectively an intent to purchase an amount of shares in excess of that
offered, they must allocate the purchase equally among them. So long as the
lowest amount involved for purchase was equal to or greater than the amount
found by spreading the available shares among the electing Shareholders,
otherwise, the shares shall be allocated among the electing Shareholders prorata
based on their notice.
c. Purchase Price of Offer. The purchase price for the shares of the Stock to be
acquired from the Transferor (the "Shares") shall be as set forth in Paragraph 3
below.
d. Closing Purchase. The closing of the purchase shall take place at the
principal office of the Corporation.
e. Release From Restriction. If the offer to sell is not accepted by the other
Shareholders, the Transferor may make a transfer or encumbrance to the
prospective purchaser or honor named in the statement attached to the offer. If
the Transferor fails to make such transfer or encumbrance within 30 days
following the expiration of the time provided above for election by the other
Shareholders, the Shares shall again become subject to all the restrictions of
this Agreement.
f. Exceptions to Restrictions. Notwithstanding any of the foregoing, or any
other provision contained in this Agreement, any Shareholder shall be permitted
to transfer his or her shares to a wholly-owned entity or trust in which the
transferor is the senior so long as such transferee is subject to all the
restrictions and obligations herein and the stock certificates have a legend so
indicating. It is specifically the intent of the Shareholders that the form of
ownership in which the Shareholder holds the stock may be changed so long as no
other parties are added who can either vote the stock or succeed to the
Shareholder's interest hereunder. It is permissible, however, that a successor
owner for purposes of estate planning can exist for a limited period of time.
Upon such succession, however, it shall be incumbent upon the other Shareholders
and the corporation or promptly value the corporation and pay the succeeding
heirs the full value for said shares. Valuation of such shares shall be as
provided elsewhere herein.
2. PURCHASE UPON DEATH
Upon the death of an individual Shareholder (the "Decedent"), all the Shares of
the Stock owned by him or her, and to which the shareholder, the shareholder's
personal representative or successor Trustee shall be entitled (the "Decedent's
Shares shall be sold and purchased as herein provided.
a. Obligation To Purchase. The other Shareholders shall purchase from the
Decedent's successor in interest and the Decedent's successor in interest,
including but not limited to a personal representative shall sell to the other
Shareholders, all the Decedent's Shares at the purchase price set forth in
Paragraph 3.
b. Closing. The closing of the purchase and shall take place at the principal
office of the Corporation on a date selected by the other
Shareholder, which shall not be more than 90 days following the date of the
qualification of the personal representative or more than 15 days following the
collection of any and all insurance proceeds from any insurance policy carried
over by the other Shareholder an the life of the Decedent, whichever is later.
C. Insurance. If the other Shareholders shall receive any proceeds of any
policy on the life of the Decedent, such proceeds shall be paid to the
Decedent's personal representative or successor in interest to the extent of the
purchase price of the Decedent's Share against delivery of the certificates to
the other Shareholders Payment thereof shall be deferred until 90 days after the
date of qualification of the Decedent's personal representative, or 16 days
following the collection of insurance proceeds, whichever is later. However if
the proceeds are Insufficient to pay for all the Decedent's Shares, the balance
shall be purchased as set forth in subparagraph d below.
d. Balance of Purchase Price. The balance of the purchase price remaining
after credit for any insurance proceeds shall be made at the closing.
3. PURCHASE PRICE
The Shareholders agree that the value of each share of the Stock at the
date of this Agreement is $ 0.01. The Shareholders may at any time reconsider
the value of each share owned by the Shareholders and any agreement on a new
value shall be endorsed on Schedule "a" attached hereto and made a part hereof.
If the Shareholders have not unanimously agreed on a value within a three-year
period, the value of each share shall be determined and agreed upon by the
personal representative of a Decedent or a Transferor, as the case may be, and
the purchaser, If they are unable to come to an agreement within 10 days after
the option or obligation to purchase Shares arisen, the value of each share
shall be determined by arbitration as follows: the purchaser(s) and the personal
representative of Decedent or the Transferor, as the case may be. Shall each
name one arbitrator. If the two arbitrators cannot agree upon tile value of the
shares, they shall appoint a third arbitrator, pursuant to the commercial
arbitration rules of the American Arbitration Association, and the decision of a
majority of the three arbitrators shall be binding on all parties.
4. INSURANCE
NOT APPLICABLE
5. PURCHASE OF INSURANCE POLICIES ON TERMINATION
NOT APPLICABLE
6. RESTRICTIVE LEGEND DEPOSIT OF CERTIFICATES
The Shares of stock Issued to NorStar Group, Inc., and Com Odyssey,
Inc. will have a restrictive legend indicating such shares are subject to the
requirements of this Agreement.
7. RESTRICTION ON THE ISSUANCE OF NEW SHARES.
The Shareholders agree that no new Shares, common or preferred, shall
be issued with respect to the corporation without the express written consent of
100% of all of Shareholders. It is
specifically the intent of the parties hereto to prevent any dilution of the
ownership or equity interest of the Shareholders. All other constraining
documents for the corporation shall be prepared, or amended, to conform to this
prohibition.
8. COMPENSATION PAYMENTS
The Shareholders also specifically agree that available income shall be
paid from the corporation pursuant to the provisions contained in the various
Employment Agreements with the employees of the corporation who, in each
Instance, also happen to be Shareholders. It is the intent of the Shareholders
that the services being provided by these employees/Shareholders is the value of
the enterprise and the compensation paid to the individuals is paramount for
corporate purposes. Accordingly, no other distributions or other participation
In the profits of the corporation shall be available to the Shareholders.
9. TERMINATION
This Agreement shall terminate upon anyone of the following events:
a. The written agreement of all Shareholders;
b. The dissolution, bankruptcy, or insolvency of the Corporation; or
c. At such time as only one Shareholder remains the Stock of the others
having been transferred or redeemed.
10. ENDORSEMENT ON STOCK CERTIFICATES
Upon execution of this Agreement, the certificates of Stock subject
hereto shall be surrendered to the Corporation and endorsed as follows:
"This certificate is transferable only upon compliance with the
provisions of an agreement dated August, 1999, among the holder and others, a
copy of which is on file in the office of the Secretary of the issuer." All
certificates for Stock hereafter issued to the Shareholders shall bear the same
endorsement.
11. SPECIFIC PERFORMANCE
The Shareholders agree that the shares of Stock of the Corporation
cannot be readily purchased, sold, or evaluated in the open market, that they
have a unique and special value, and that they would be irreparably damaged if
the terms of this Agreement were not capable of being specifically enforced. For
this reason the Shareholders agree that the terms of this Agreement shall be
specifically enforceable. The Shareholders further agree that any sale or
disposition, including an Involuntary transfer or a transfer by operation of
law, that does not strictly comply with the terms and conditions of this
Agreement may be specifically restrained.
12. FURTHER ASSURANCES
Whenever a Shareholder shall, pursuant to this Agreement, purchase
Shares of Stock. Each Shareholder and the personal representatives of any
Decedent shall do all things, and execute and deliver all papers, necessary to
consummate the purchase. Each party agrees to perform any further acts and to
execute and deliver any
further documents that may be reasonably necessary to carry out the provisions
of this Agreement.
13. NOTICES
Any and all notices, designations, consents, offers, acceptances, or any
other communications provided for herein shall be given in writing by registered
or certified mail, which shall be addressed to the Shareholder as follows:
Name Address
---- -------
NORSTAR GROUP, INC. 0000 X.X. 0xx XXX
XXXX XXXXXXXXXX, XX 00000
COM.ODYSSEY, INC. P. O. XXX 0000
XXXXXXX, XX 00000-0000
14. SEVERABILITY
If any provision of this Agreement is held to be unenforceable or
invalid by any court of competent jurisdiction, the validity and enforceability
of the remaining provisions shall not be affected thereby.
15. CONSTRUCTION
Whenever used herein, the singular number shall include the plural, and the
plural number shall include the singular, and use of any gender shall include
all genders. The paragraph headings in this Agreement are for convenience of
reference only and shall not be used as an aid in the construction of any
provision. This Agreement shall be deemed to have been prepared by each of the
parties and there shall be no canon of construction applied hereto for or
against any party by reason of the preparation hereof.
16. GOVERNING LAW
This Agreement has been executed in and shall be governed by and construed
in accordance with the laws of the state of Delaware applicable to agreements
made and to be wholly performed in that state.
17. INUREMENT
Subject to the restrictions against transfer or assignment as herein
contained, the provisions of this Agreement shall inure to the benefit of and
shall be binding on the assigns, successors in interest, personal
representatives, estates, heirs, and legatees of each of the parties. Each
Shareholder agrees to insert in his or her Will a direction and authorization
to the personal representative to fulfill and comply with the provisions hereof,
and to sell his or her Shares in accordance herewith. Each Shareholder agrees
that he or she will not hypothecate or otherwise create or permit to exist any
lien, claim, or encumbrance upon any of his or her shares at any time subject
hereto, other than the encumbrance created by or an encumbrance permitted by
this Agreement.
18. AMENDMENT
This Agreement may be amended only by the written consent of all of the
parties to this Agreement at the time of the amendment.
19. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties
concerning the subject matter contained herein. There are representations,
agreements to be entered into, arrangements, and understandings, between and
among the parties relating to the subject matter of this Agreement that are to
be fully expressed in the "Director's Orientation Survey"; "Organization Data";
"Legal Compliance Survey"; "Officers and Directors"; "Professional Advisors";
"Key Personnel"; "Committees"; "Strategic Planning Survey"; "12 Month Goals";
"Projects to Complete Goals"; "6 Month Goals"; "Projects to Complete Goals"; "3
Month Goals"; "Projects to Complete Goals"; "Critical Issues"; "Key Project
Control"; "Project Activity Record"; "Project Review/Update Schedule"; "Board
Meeting Survey"; "Items For Board Action"; "Directors Meeting Schedule";
"Meeting Agenda"; "Executive Report Summary"; "Committee Report Summary";
"Minutes"; "Financial Management Survey"; "Pro-Forma Income Statements";
"Pro-Forma Balance Sheet"; "Projected Cash Flow Statement"; "Projected Income
Statement and Balance Sheet"; "Financial Comparison Analysis"; "Financial
Performance Analysis", copies of which are attached herein.
20. COUNTERPARTS
This Agreement may be executed in one or more counterparts and in making
proof of this Agreement it shall not be necessary to produce or account for more
than one fully executed counterpart hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
Attest: NorStar Group, INC.
By:
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President
Attest: Com.Odyssey, Inc.
By: /s/ illegible
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President
SHAREHOLDERS
The undersigned acknowledges receipt of certificates representing the
Stock of VeeAre City The Xxxxx.Xxx, Inc. owned by the Shareholders, as recited
in Paragraph 6 of the foregoing Shareholders Agreement.
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SCHEDULE "A"
SCHEDULE "B"
The undersigned Shareholders hereby agree in accordance with the
Agreement Among Shareholders dated September, 1999, that the value of
the stock of VEEARE CITY THE XXXXX.XXX, INC a Delaware corporation as of this
day of September 1999 is $ per share.
BY:
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By:
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