EXHIBIT 10.1
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT, dated March 1, 2001 (this
"AGREEMENT"), by and between Change Technology Partners, Inc., a Delaware
corporation (the "COMPANY"), and the stockholders listed on Exhibit A hereto
(the "FOUNDER STOCKHOLDERS") and Exhibit B hereto (together with the Founder
Stockholders, collectively, the "IGUANA STOCKHOLDERS"). Capitalized terms used
in this Agreement and not otherwise defined shall have the meanings given to
them in the Merger Agreement (as defined below).
WHEREAS, pursuant to the Agreement and Plan of Merger, dated
the date hereof (the "MERGER AGREEMENT"), among the Company, Iguana Studios,
Inc., Iguana Studios I, Inc., and the Founder Stockholders, the Iguana
Stockholders have become the holders of shares of the Company's Common Stock,
par value $0.01 per share (the "SHARES"); and
WHEREAS, the parties hereto wish to restrict the transfer of
the Shares and to provide for, among other things, tag-along, drag-along and
preemptive rights and certain other rights under certain conditions,
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS.
1.1 DEFINITIONS. All references herein to Articles,
Sections and Exhibits shall be deemed to be references to Articles and Sections
of, and Exhibits to, this Agreement unless the context shall otherwise require.
All Exhibits attached hereto shall be deemed incorporated herein as if set forth
in full herein and, unless otherwise defined therein, all terms used in any
Exhibit shall have the meaning ascribed to such term in this Agreement. The
words "INCLUDE," "INCLUDES" and "INCLUDING" shall be deemed to be followed by
the phrase "WITHOUT limitation." The words "HEREOF," "HEREIN" and "HEREUNDER"
and words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement
unless the context shall otherwise require. Unless otherwise expressly provided
herein, any agreement, instrument or statute defined or referred to herein or in
any agreement or instrument that is referred to herein means such agreement,
instrument or statute as from time to time amended, modified or supplemented,
including (in the case of Agreement or instruments) by waiver or consent and (in
the case of statutes) by succession of comparable successor statutes and
references to all attachments thereto and instruments incorporated therein. All
references to specific numbers of shares of Capital Stock contained in this
Agreement shall be appropriately adjusted to take into account any stock splits,
stock dividends, subdivisions, reclassifications, combinations,
recapitalizations, or similar transactions involving Capital Stock, including a
stock dividend or distribution in the form of shares of Capital Stock. As used
in this Agreement, and unless the context requires a different meaning, the
following terms have the meanings indicated:
"AGREEMENT" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof
"BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"CAPITAL STOCK" means any and all shares, interests,
participations, rights in, or other equivalents (however designated and whether
voting or non-voting) of the Company's capital stock and any and all rights,
warrants or options exchangeable for or convertible into such capital stock.
"CHANGE OF CONTROL EVENT" means a sale, merger, tender offer
or other business combination in which the stockholders owning a majority of the
voting securities of the Company prior to such transaction do not own a majority
of the voting securities of the surviving Person after which such stockholders
no longer have the power to elect a majority of the Board of Directors or a sale
of all or substantially all of the assets of the Company.
"COMMON STOCK" means the Common Stock of the Company, par
value $0.01 per share.
"COMMON STOCK EQUIVALENTS" means any security or obligation
which is by its terms convertible into or exchangeable or exercisable for shares
of Common Stock or other Capital Stock, and any option, warrant or other
subscription or purchase right with respect to Common Stock or such other
Capital Stock.
"COMPANY" has the meaning set forth in the preamble to this
Agreement.
"CONTRACT DATE" has the meaning set forth in Section 3.1(e).
"DRAG-ALONG NOTICE" has the meaning set forth in Section
3.1(g).
"DRAG-ALONG RIGHTHOLDERS" has the meaning set forth in Section
3.1(g).
"DRAG-ALONG SELLERS" has the meaning set forth in Section
3.1(g).
"FAIR VALUE" has the meaning set forth in Section 3.2(b).
"FAMILY MEMBERS" has the meaning set forth in Section 2.2.
"GOVERNMENTAL AUTHORITY" means the government of any nation,
state, city, locality or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
2
"INITIAL PUBLIC OFFERING" means the first public offering of
shares of Capital Stock (or first public offering of the shares of a company
that is a successor by merger to the Company after the merger) pursuant to an
effective registration statement filed under the Securities Act.
"INVOLUNTARY TRANSFER" means any transfer, proceeding or
action by or in which a Stockholder shall be deprived or divested of any right,
title or interest in or to any of the Shares, including, without limitation, (i)
any seizure under levy of attachment or execution, (ii) any transfer in
connection with bankruptcy (whether pursuant to the filing of a voluntary or an
involuntary petition under the United States Bankruptcy Code of 1978, or any
modifications or revisions thereto) or other court proceeding to a debtor in
possession, trustee in bankruptcy or receiver or other officer or agency, (iii)
any transfer to a state or to a public officer or agency pursuant to any statute
pertaining to escheat or abandoned property and (iv) any transfer pursuant to a
divorce or separation agreement or a final decree of a court in a divorce
action.
"INVOLUNTARY TRANSFEREE" has the meaning set forth in Section
3.2(a).
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, lien (statutory or other) or preference,
priority, right or other security interest or preferential arrangement of any
kind or nature whatsoever (excluding preferred stock and equity related
preferences).
"LOCK-UP AGREEMENT" means the Lock-Up Agreement, dated the
date hereof, between the Company and each of the Iguana Stockholders.
"MERGER AGREEMENT" has the meaning set forth in the recitals
to this Agreement.
"OFFER PRICE" has the meaning set forth in Section 3.1(a).
"OFFERED SECURITIES" has the meaning set forth in Section
3.1(a).
"OFFERING NOTICE" has the meaning set forth in Section 3.1(a).
"OTHER STOCKHOLDERS" means each holder of Common Stock other
than an Iguana Stockholder.
"PERMITTED TRANSFEREE" has the meaning set forth in Section
2.2.
"PERSON" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, Governmental Authority or other entity of
any kind, and shall include any successor (by merger or otherwise) of such
entity.
"QUALIFIED INITIAL PUBLIC OFFERING" means an Initial Public
Offering covering the offer and sale of Capital Stock pursuant to an effective
registration statement filed under the Securities Act, covering the offer and
sale of Capital Stock for the account of the Company resulting in aggregate net
proceeds to the Company of at least Twenty Million Dollars ($20,000,000).
3
IGUANA STOCKHOLDERS" has the meaning set forth in the preamble
to this Agreement and any Permitted Transferee thereof to whom Shares are
transferred in accordance with Section 2.2 of this Agreement, and the term
"Iguana Stockholder" shall mean any such Person.
"RIGHTHOLDER(S)" has the respective meanings set forth in
Sections 3.1(c) and 3.2(a).
"RIGHTHOLDER OPTION PERIOD" has the meaning set forth in
Section 3.1(c).
"SECURITIES ACT" means the United States Securities Act of
1933 and the rules and regulations thereunder.
"SELLING STOCKHOLDER" has the meaning set forth in Section
3.1(a).
"SHARES" means, with respect to each Stockholder, all shares,
whether now owned or hereafter acquired, of Common Stock and any other Common
Stock Equivalents owned thereby.
"STOCKHOLDERS" means the Other Stockholders and the Iguana
Stockholders, and the term "Stockholder" shall mean any such Person.
"TAG-ALONG RIGHTHOLDER" has the meaning set forth in Section
3.1(f).
"THIRD PARTY PURCHASER" has the meaning set forth in Section
3.1(a).
"TRANSFER" has the meaning set forth in Section 2.1.
"TRANSFERRED SHARES" has the meaning set forth in Section
3.2(a).
ARTICLE II
PERMITTED TRANSFERS.
2.1 LIMITATION ON TRANSFER. No Iguana Stockholder shall
(i) sell, give, assign, hypothecate, pledge, encumber, offer, pledge, contract
to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase, lend, grant a
security interest in or otherwise dispose of (whether by operation of law or
otherwise) or otherwise transfer (each a "TRANSFER") any Shares or any right,
title or interest therein or thereto or (ii) enter into any swap or other
arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of any Shares (whether any such transaction described
in clause (i) or (ii) above is to be settled by delivery of any Shares or other
securities, in cash or otherwise), except in accordance with the provisions of
this Agreement, including, without limitation, Section 2.4. Any attempt to
transfer any Shares or any rights thereunder in violation of the preceding
sentence shall be null and void AB INITIO.
2.2 PERMITTED TRANSFERS. Notwithstanding anything to the
contrary contained in this Agreement, but subject to the Lock-Up Agreement, each
of the Iguana Stockholders may transfer all or a portion of his Shares to (i) a
member of such Iguana Stockholder's (or the
4
owner's of such Iguana Stockholder) immediate family, which shall include his
spouse, siblings, children or grandchildren or nieces or nephews ("FAMILY
MEMBERS") or (ii) a trust, corporation, partnership or limited liability
company, all of the beneficial interests in which shall be held by such Iguana
Stockholder or one or more Family Members of such Iguana Stockholder; PROVIDED,
HOWEVER, that during the period that any such trust, corporation, partnership or
limited liability company holds any right, title or interest in any Shares, no
Person other than such Iguana Stockholder or one or more Family Members of such
Iguana Stockholder may be or may become beneficiaries, stockholders, limited or
general partners or members thereof (the Persons referred to in the preceding
clauses (i) and (ii) are each referred to hereinafter as a "PERMITTED
TRANSFEREE"). A Permitted Transferee of Shares pursuant to this Section 2.2 may
transfer its Shares pursuant to this Section 2.2 only to the transferor
Stockholder or to a Person that is a Permitted Transferee of such transferor
Stockholder.
2.3 PERMITTED TRANSFER PROCEDURES. If any Iguana
Stockholder wishes to transfer Shares to a Permitted Transferee under Section
2.2, such Iguana Stockholder shall give notice to the Company of its intention
to make such a transfer not less than ten (10) days prior to effecting such
transfer, which notice shall state the name and address of each Permitted
Transferee to whom such transfer is proposed, the relationship of such Permitted
Transferee to such Stockholder, and the number of Shares proposed to be
transferred to such Permitted Transferee.
2.4 TRANSFERS IN COMPLIANCE WITH LAW, SUBSTITUTION OF
TRANSFEREE. Notwithstanding any other provision of this Agreement, no transfer
may be made pursuant to this Section 2 or Section 3 unless (a) the transferee
has agreed in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument substantially in the form attached hereto as EXHIBIT D
(b) the transfer complies in all respects with the applicable provisions of this
Agreement and (c) the transfer complies in all respects with applicable federal
and state securities laws, including, without limitation, the Securities Act. If
requested by the Company, an opinion of counsel to such transferring Stockholder
shall be supplied to the Company, at such transferring Stockholder's expense, to
the effect that such transfer complies with applicable federal and state
securities laws. Upon becoming a party to this Agreement, (i) the Permitted
Transferee of an Iguana Stockholder shall be substituted for, and shall enjoy
the same rights and be subject to the same obligations as, the transferring
Iguana Stockholder hereunder with respect to the Shares transferred to such
Permitted Transferee, (ii) an Other Stockholder shall be subject to the same
obligations as, but none of the rights of, the transferring Iguana Stockholder,
and (iii) the transferee of an Other Stockholder shall be substituted for, and
shall be subject to the same obligations as, the transferring Other Stockholder
hereunder with respect to the Shares transferred to such transferee.
ARTICLE III
TRANSFERS; TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS.
3.1 PROPOSED VOLUNTARY TRANSFERS.
(a) OFFERING NOTICE. Subject to Section 2 and the
Lock-Up Agreement, if any Iguana Stockholder (a "SELLING STOCKHOLDER") wishes to
transfer all or any
5
portion of his Shares to any Person (other than to a Permitted Transferee) (a
"THIRD PARTY PURCHASER") and such Selling Stockholder has received a bona fide
offer to purchase such Shares from a Third Party Purchaser, such Selling
Stockholder shall then offer such Shares to the Company, by sending written
notice (an "OFFERING NOTICE") to the Company, which shall state (i) the number
of Shares proposed to be transferred (the "OFFERED SECURITIES"); (ii) the
proposed purchase price per Share offered by the Third Party Purchaser for the
Offered Securities (the "OFFER PRICE"); and (iii) the terms and conditions of
such sale. Upon delivery of the Offering Notice, such offer shall be irrevocable
unless and until the rights of first refusal provided for herein shall have been
waived or shall have expired.
(b) NOTICE TO EACH OF THE OTHER STOCKHOLDERS. The
Company shall promptly deliver a copy of the Offering Notice to each of the
Other Stockholders.
(c) RIGHTHOLDER OPTION, EXERCISE. For a period of
thirty (30) days after the date upon which the Other Stockholders shall have
received written notice from the Company as described on Section 3.l(b) (the
"Rightholder Option Period"), and subject to any Company right to purchase the
Offered Securities, each of the Other Stockholders (for the purpose of Section
3.1, each, a "Rightholder" and collectively, the "Rightholders") shall have the
right to purchase their allocable portion of the Offered Securities (as
determined by this Section 3.1(c)) at a purchase price equal to the Offer Price
and upon the terms and conditions set forth in the Offering Notice. Each such
Rightholder shall have the right to purchase that percentage of the Offered
Securities determined by dividing (i) the total number of Shares then owned by
such Rightholder by (ii) the total number of Shares then owned by all such
Rightholders. If any Rightholder does not fully subscribe for the number or
amount of Offered Securities it or he is entitled to purchase, then each other
participating Rightholder shall have the right to purchase that percentage of
the Offered Securities determined by dividing (x) the total number of Shares
then owned by such fully participating Rightholder by (y) the total number of
Shares then owned by all fully participating Rightholders who elected to
purchase Offered Securities. The procedure described in the preceding sentence
shall be repeated until there are no remaining Offered Securities. If the
Rightholders do not purchase all of the Offered Securities pursuant to this
Section 3.l(c), then the Selling Stockholder may, subject to Section 3.l(f),
sell the Offered Securities to a Third Party Purchaser in accordance with
Section 3.1(e).
(i) The right of each Rightholder to purchase
all, or any portion, of the Offered Securities under subsection (i) above shall
be exercisable by delivering written notice of the exercise thereof, prior to
the expiration of the Rightholder Option Period, to the Selling Stockholder with
a copy to the Company. Each such notice shall state (a) the number of Shares
held by such Rightholder and (b) the number of Shares that such Rightholder is
willing to purchase pursuant to this Section 3.1(c). The failure of a
Rightholder to respond within the Rightholder Option Period to the Selling
Stockholder shall be deemed to be a waiver of such Rightholder's rights under
subsection (i) above; PROVIDED, HOWEVER, that each Rightholder may waive its
rights under subsection (i) above prior to the expiration of the Rightholder
Option Period by giving written notice to the Selling Stockholder, with a copy
to the Company.
(d) CLOSING. The closing of the purchases of
Offered Securities subscribed for by the Rightholders under Section 3.1(c) shall
be held at the executive office of the Company at 11:00 a.m., local time, on the
sixtieth (60th) day after the giving of the Offering
6
Notice pursuant to Section 3.1(a) or at such other time and place as the parties
to the transaction may agree. At such closing, the Selling Stockholder shall
deliver certificates representing the Offered Securities, duly endorsed for
transfer and accompanied by all requisite transfer taxes, if any, and such
Offered Securities shall be free and clear of any Liens (other than those
arising hereunder and those attributable to actions by the purchasers thereof
and the Selling Stockholder shall so represent and warrant, and shall further
represent and warrant that it is the sole beneficial and record owner of such
Offered Securities. Each Rightholder purchasing Offered Securities shall deliver
at the closing payment in full in immediately available funds for the Offered
Securities purchased by it or him. At such closing, all of the parties to the
transaction shall execute such additional documents as are otherwise necessary
or appropriate.
(e) SALE TO A THIRD PARTY PURCHASER. Unless the
Rightholders elect to purchase all, but not less than all, of the Offered
Securities under Section 3.1(c), the Selling Stockholder may, subject to Section
3.1(f), sell that number of Offered Securities not being purchased by the
Rightholders to a Third Party Purchaser on the terms and conditions set forth in
the Offering Notice; PROVIDED, HOWEVER, that such sale is bona fide and made
pursuant to a contract entered into within sixty (60) days after the earlier to
occur of (i) the waiver by all of the Rightholders of their options to purchase
the Offered Securities and (ii) the expiration of the Rightholder Option Period
(the "CONTRACT DATE"); and PROVIDED FURTHER, that such sale shall not be
consummated unless and until (x) such Third Party Purchaser shall represent in
writing to the Company and each Rightholder that it is aware of the rights of
the Company and the Stockholders contained in this Agreement and (y) prior to
the purchase by such Third Party Purchaser of any of such Offered Securities,
such Third Party Purchaser shall become a party to this Agreement and shall
agree to be bound by the terms and conditions hereof in accordance with Section
2.4 hereof. If such sale is not consummated within thirty (30) days after the
Contract Date for any reason, then the restrictions provided for herein shall
again become effective, and no transfer of such Offered Securities may be made
thereafter by the Selling Stockholder without again offering the same to the
Rightholders in accordance with this Section 3.1.
(f) TAG-ALONG RIGHTS (i) (i) If any Other
Stockholders are transferring any shares of Capital Stock ("TAG-ALONG
SECURITIES") to a Third Party Purchaser in a transaction constituting a Change
of Control Event, then each of the Iguana Stockholders (each, a "TAG-ALONG
RIGHTHOLDER") shall have the right to sell to such Third Party Purchaser, upon
the same terms and conditions as such Other Stockholders, that number of Shares
held by such Tag-Along Rightholder equal to that percentage of the Tag-Along
Securities determined by dividing (A) the total number of Shares then owned by
such Tag-Along Rightholder by (B) the sum of (x) the total number of Shares then
owned by all such Tag-Along Rightholders exercising their rights pursuant to
this Section 3.1(f) and (y) the total number of shares then owned by the Other
Stockholders. The Other Stockholders and the Tag-Along Rightholder(s) exercising
their rights pursuant to this Section 3.1(f) shall effect the sale of the
Tag-Along Securities and such Tag-Along Rightholder(s) shall sell the number of
Shares required to be sold by such Tag-Along Rightholder(s) pursuant to this
Section 3.1(f)(i).
(ii) The Other Stockholders shall give
notice to each Tag-Along Rightholder of each proposed sale by it of Tag-Along
Securities which gives rise to the rights of the Tag-Along Rightholders set
forth in this Section 3.1(f), at least fifteen (15) days prior to the
7
proposed consummation of such sale, setting forth the name of such Other
Stockholders, the number of Tag-Along Securities, the name and address of the
proposed Third Party Purchaser, the proposed amount and form of consideration
and terms and conditions of payment offered by such Third Party Purchaser, the
percentage of Shares that such Tag-Along Rightholder may sell to such Third
Party Purchaser (determined in accordance with Section 3.1(f)(i)), and a
representation that such Third Party Purchaser has been informed of the
"TAG-ALONG" rights provided for in this Section 3.1(f) and has agreed to
purchase Shares in accordance with the terms hereof. The tag-along rights
provided by this Section 3.1(f) must be exercised by any Tag-Along Rightholder
wishing to sell its Shares within ten (10) days following receipt of the notice
required by the preceding sentence, by delivery of a written notice to the Other
Stockholders indicating such Tag-Along Rightholder's wish to exercise its rights
and specifying the number of Shares (up to the maximum number of Shares owned by
such Tag-Along Rightholder required to be purchased by such Third Party
Purchaser) it wishes to sell; PROVIDED, HOWEVER, that any Tag-Along Rightholder
may waive its rights under this Section 3.1(f) prior to the expiration of such
ten (10) day period by giving written notice to the Other Stockholders, with a
copy to the Company. The failure of a Tag-Along Rightholder to respond within
such ten (10) day period shall be deemed to be a waiver of such Tag-Along
Rightholder's rights under this Section 3.1(f).
(g) DRAG-ALONG RIGHTS. If the Other Stockholders
(the "DRAG-ALONG RIGHTHOLDERS") receive a bona fide offer from a Third Party
Purchaser to purchase all or any portion of their Shares in a transaction
constituting a Change of Control Event, the Drag-Along Rightholders may send
written notice (the "DRAG-ALONG NOTICE") to the Company and the Iguana
Stockholders (the "DRAG-ALONG SELLERS") notifying the Drag-Along Sellers that
they will be required to sell a pro rata portion of their Shares in such sale
(or, in the case of an asset sale, vote in favor of such sale). Upon receipt of
a Drag-Along Notice, each Drag-Along Seller receiving such notice shall be
obligated to (i) sell a pro rata portion of their Shares contemplated by the
Drag-Along Notice on the same terms and conditions as the Drag-Along Sellers
(including payment of its pro rata share of all costs associated with such
transaction) and (ii) otherwise take all necessary action to cause the
consummation of such transaction, including voting its Shares in favor of such
transaction and not exercising any appraisal rights in connection therewith.
Each Drag-Along Seller further agrees to (A) take all actions (including
executing documents) in connection with the consummation of the proposed
transaction as may reasonably be requested of it by the Drag-Along Rightholders
and (B) appoint the Drag-Along Rightholders as its attorney-in-fact to do the
same on its behalf
3.2 INVOLUNTARY TRANSFERS.
(a) RIGHTS OF FIRST OFFER UPON INVOLUNTARY
TRANSFER. If an Involuntary Transfer of any Shares (the "TRANSFERRED SHARES")
owned by any Iguana Stockholder shall occur, then the Other Stockholders (for
the purpose of Section 3.2, each, a "RIGHTHOLDER" and collectively, the
"RIGHTHOLDERS") shall have the same rights as specified in Section 3.1(c) with
respect to such Transferred Shares as if the Involuntary Transfer had been a
proposed voluntary transfer by a Selling Stockholder and shall be governed by
Section 3.1 except that (i) the time periods shall run from the date of receipt
by the Company of actual notice of the Involuntary Transfer (and the Company
shall immediately give notice to the Rightholders of the date of receipt of such
notice), (ii) such rights shall be exercised by notice to the transferee of such
Transferred Shares (the "INVOLUNTARY TRANSFEREE") rather than to the Stockholder
who suffered or
8
will suffer the Involuntary Transfer and (iii) the purchase price per
Transferred Share shall be agreed upon by the Involuntary Transferee and
purchasing Rightholders purchasing a majority of the Transferred Shares;
PROVIDED, HOWEVER, that if such parties fail to agree as to such purchase price,
the purchase price shall be the Fair Value thereof as determined in accordance
with Section 3.2(b).
(b) FAIR VALUE. If the parties fail to agree
upon the purchase price of the Transferred Shares in accordance with Section
3.2(a) hereof, then the Rightholders shall purchase the Transferred Shares at a
purchase price equal to the Fair Value (as hereinafter defined) thereof. The
Fair Value of the Transferred Shares shall be determined by a panel of three
independent appraisers, which shall be nationally recognized investment banking
firms or nationally recognized experts experienced in the valuation of
corporations engaged in the business conducted by the Company. Within five (5)
Business Days after the date the applicable parties determine that they cannot
agree as to the purchase price, the Involuntary Transferee and the purchasing
Rightholders purchasing a majority of the Transferred Shares being purchased by
the purchasing Rightholders shall each designate one such appraiser that is
willing and able to conduct such determination. If either the Involuntary
Transferee or the purchasing Rightholders fails to make such designation within
such period, then the other party that has made the designation shall have the
right to make the designation on its behalf. The two appraisers designated
shall, within a period of five (5) Business Days after the designation of the
second appraiser, designate a mutually acceptable third appraiser. The three
appraisers shall conduct their determination as promptly as practicable, and the
Fair Value of the Transferred Shares shall be the average of the determination
of the two appraisers that are closer to each other than to the determination of
the third appraiser, which third determination shall be discarded; PROVIDED,
HOWEVER that if the determination of two appraisers are equally close to the
determination of the third appraiser, then the Fair Value of the Transferred
Shares shall be the average of the determination of all three appraisers. Such
determination shall be final and binding on the Involuntary Transferee and the
Rightholders. The Involuntary Transferee shall be responsible for the fees and
expenses of the appraiser designated by or on behalf of it, and the purchasing
Rightholders for the fees and expenses of the appraiser designated by or on
behalf of the Board of Directors. The Involuntary Transferee and the purchasing
Rightholders shall each share half the fees and expenses of the appraiser
designated by the appraisers. For purposes of this Section 3.2(b), the "FAIR
VALUE" of the Transferred Shares means the fair market value of such Transferred
Shares determined in accordance with this Section 3.2(b) based upon all
considerations that the appraisers determine to be relevant. All expenses of the
purchasing Rightholders shall be shared in proportion to the number of Shares
purchased.
(c) CLOSING. The closing of any purchase under
this Section 3.2 shall be held at the executive office of the Company at 11:00
a.m., local time, on the earlier to occur of (a) the fifth (5th) Business Day
after the purchase price per Transferred Share shall have been agreed upon by
the Involuntary Transferee and the purchasing Rightholders in accordance with
Section 3.2(a)(iii), or (b) the fifth (5th) Business Day after the determination
of the Fair Value of the Transferred Shares in accordance with Section 3.2(b),
or at such other time and place as the parties to the transaction may agree. At
such closing, the Involuntary Transferee shall deliver certificates, if
applicable, or other instruments or documents representing the Transferred
Shares being purchased under this Section 3.2, duly endorsed with a signature
guarantee for transfer and accompanied by all requisite transfer taxes, if any,
and such Transferred Shares shall be free and
9
clear of any Liens (other than those arising hereunder) arising through the
action or inaction of the Involuntary Transferee and the Involuntary Transferee
shall so represent and warrant, and further represent and warrant that it is the
beneficial owner of such Transferred Shares. Each Rightholder purchasing such
Transferred Shares shall deliver at closing payment in full in immediately
available funds for such Transferred Shares. At such closing, all parties to the
transaction shall execute such additional documents as are otherwise necessary
or appropriate.
(d) GENERAL. If the provisions of this Section
3.2 shall be held to be unenforceable with respect to any particular Involuntary
Transfer, the Rightholders shall have the rights specified in Section 3.1(c)
with respect to any transfer by an Involuntary Transferee of such Shares, and
each Rightholder agrees that any Involuntary Transfer shall be subject to such
rights, in which case the Involuntary Transferee shall be deemed to be the
Selling Stockholder for purposes of Section 3.1 of this Agreement and shall be
bound by the provisions of Section 3.1 and other related provisions of this
Agreement.
ARTICLE IV
AFTER-ACQUIRED SECURITIES
All of the provisions of this Agreement shall apply to all of
the Shares and Common Stock Equivalents now owned or which may be issued or
transferred hereafter to a Stockholder in consequence of any additional
issuance, purchase, exchange or reclassification of any of such Shares or Common
Stock Equivalents, corporate reorganization, or any other form of
recapitalization, consolidation, merger, share split or share dividend, or which
are acquired by a Stockholder in any other manner.
ARTICLE V
CONFIDENTIALITY
Each Iguana Stockholder agrees that it will not make use of or
divulge to any other person, firm or company, any trade or business secret,
process, method or means, or any other confidential information concerning the
business or policies of the Company, which it may have learned in connection
with any such Iguana Stockholder position as a Stockholder. The obligations of
each Iguana Stockholder under this Article 5 shall not apply to any information
which (i) is known publicly; (ii) is in the public domain or hereafter enters
the public domain without the fault of such Iguana Stockholder; (iii) is known
to the such Iguana Stockholder prior to its receipt of such information from the
Company, or (iv) is hereafter disclosed to such Iguana Stockholder or by a third
party not under an obligation of confidence to the Company.
ARTICLE VI
STOCK CERTIFICATE LEGEND
A copy of this Agreement shall be filed with the Secretary of
the Company and kept with the records of the Company. Each certificate
representing Shares now
10
held or hereafter acquired by any Stockholder shall for as long as this
Agreement is effective bear legends substantially in the following forms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), OR THE SECURITIES LAWS OF
ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND SUCH LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE
STOCKHOLDERS AGREEMENT, DATED MARCH 1, 2001, AMONG THE COMPANY AND THE
PERSONS NAMED THEREIN, A COPY OF WHICH MAY BE INSPECTED AT THE
COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE TRANSFER
OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE
TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE STOCKHOLDERS
AGREEMENT.
ARTICLE VII
MISCELLANEOUS.
7.1 NOTICES. All notices, demands and other
communications provided for or permitted hereunder shall be made in writing and
shall be by registered or certified first-class mail, return receipt requested,
telecopier, courier service or personal delivery:
if to the Iguana Stockholders:
c/o Iguana Studios I, Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇ PC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11
if to the Company:
Change Technology Partners, Inc.
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: (212) [ ]
with a copy to:
Rosenman & Colin LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, demands and other communications shall be
deemed to have been duly given when delivered by hand, if personally delivered;
when delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 7.2 designate another address or
Person for receipt of notices hereunder.
7.2 SUCCESSORS AND ASSIGNS, THIRD PARTY BENEFICIARIES.
This Agreement shall inure to the benefit of and be binding upon the successors
and permitted assigns of the parties hereto. No Person other than the parties
hereto and their successors and permitted assigns is intended to be a
beneficiary of this Agreement; provided, however, that the Other Stockholders
shall be deemed to be third-party beneficiaries of the Agreement for all
purposes.
7.3 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of the
Company or any other party hereto in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Company or any other party hereto at law,
in equity or otherwise.
(b) Any amendment, supplement or modification
of or to any provision of this Agreement, any waiver of any provision of this
Agreement and any consent to any departure by any party from the terms of any
provision of this Agreement, shall be effective only if it is made or given in
writing and signed by (i) the Company and (ii) the Iguana Stockholders holding a
majority of the voting power of the Shares held by the Iguana Stockholders. Any
such amendment, supplement, modification, waiver or consent shall be binding
upon the Company and all of the Iguana Stockholders.
12
7.4 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement. The parties hereto
confirm that any facsimile copy of another party's executed counterpart of this
Agreement (or its signature page thereof) will be deemed to be an executed
original thereof
7.5 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof
7.6 SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof
7.7 RULES OF CONSTRUCTION. Unless the context otherwise
requires, references to sections or subsections refer to sections or subsections
of this Agreement.
7.8 INTERPRETATION. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in the masculine, the feminine
or neuter gender shall include the masculine, the feminine and the neuter.
7.9 CERTAIN ACKNOWLEDGMENTS. Each of the parties hereto
acknowledge that it has been represented by legal counsel of its own choice
throughout all negotiations and preparation and review of this Agreement, and
that it has executed this Agreement voluntarily. Each of the parties hereto
acknowledge that it is sophisticated in transactions of the type contemplated by
this Agreement, and each party wishes to create a relationship based on the
terms set forth in this Agreement.
7.10 ENTIRE AGREEMENT. This Agreement, together with the
exhibit hereto, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, representations,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement, together with the exhibits hereto, supersede all prior Agreement
and understandings between the parties with respect to such subject matter.
7.11 SPECIFIC PERFORMANCE. The parties hereto intend that
each of the parties have the right to seek damages or specific performance if
any other party hereto fails to perform such party's obligations hereunder.
Therefore, if any party shall institute any action or other proceeding to
enforce the provisions hereof, any party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the plaintiff party
has an adequate remedy at law.
13
7.12 TERM OF AGREEMENT. This Agreement shall become
effective upon the execution hereof and shall terminate upon the earlier of
(a) the date upon which the Company closes its Qualified Initial Public Offering
or (b) the twentieth anniversary of the date hereof
7.13 FURTHER ASSURANCES. Each of the parties shall execute
such documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person) as may be reasonably required or desirable to carry out or to
perform the provisions of this Agreement.
7.14 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE PRINCEPLES OF CONFLICTS OF LAW THEREOF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
14
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Stockholders Agreement on the date first written
above.
CHANGE TECHNOLOGY PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
IGUANA STOCKHOLDERS
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, as attorney-in-fact
15
EXHIBIT A
---------
FOUNDER STOCKHOLDERS
--------------------
EXHIBIT B
---------
OTHER IGUANA STOCKHOLDERS
-------------------------
EXHIBIT C
---------
ACKNOWLEDGMENT AND AGREEMENT
The undersigned wishes to receive from [INSERT NAME]
("TRANSFEROR") certain shares or certain options, warrants or other rights to
purchase [INSERT NUMBER] shares, par value $.01 per share, of [Common Stock]
(the "SHARES") of Change Technology Partners, Inc., a Delaware corporation (the
"COMPANY");
The Shares are subject to the Stockholders Agreement, dated
March 1, 2001 (the "AGREEMENT"), among the Company and the other parties listed
on the signature pages thereto;
The undersigned has been given a copy of the Agreement and
afforded ample opportunity to read and to have counsel review it, and the
undersigned is thoroughly familiar with its terms;
Pursuant to the terms of the Agreement, the Transferor is
prohibited from transferring the Shares and the Company is prohibited from
registering the transfer of the Shares unless and until a transfer is made in
accordance with the terms and conditions of the Agreement and the recipient of
the Shares acknowledges the terms and conditions of the Agreement and agrees to
be bound thereby; and
The undersigned wishes to receive the Shares and have the
Company register the transfer of the Shares.
In consideration of the mutual promises contained herein and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and to induce the Transferor to transfer the Shares to
the undersigned and the Company to register such transfer, the undersigned does
hereby acknowledge and agree that (i) he[/she] has been given a copy of the
Agreement and afforded ample opportunity to read and to have counsel review it,
and the undersigned is thoroughly familiar with its terms, (ii) the Shares are
subject to the terms and conditions set forth in the Agreement, and (iii) the
undersigned does hereby agree fully to be bound thereby as [an IGUANA
STOCKHOLDER"] [an "OTHER STOCKHOLDER"] (as therein defined).
This ___________ day of ___________, ______.
________________________________