Exhibit 10.22
AMERIFIRST, INC.
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (this "Agreement") is
executed and delivered as of the 31st day of December 2004 to be effective as of
the 9th day of September 2004 (the "Effective Date"), by and among AmeriFirst,
Inc., a Delaware corporation (the "Corporation") and the undersigned
shareholders of the Corporation. The undersigned shareholders and any other
shareholders of the Corporation subsequently executing this Agreement or a
counterpart of this Agreement are sometimes individually referred to herein as a
"Stockholder" or collectively as the "Stockholders."
Background
The Corporation is authorized to issue two thousand (2,000) shares of
common stock, par value $0.01 per share (the "Common Stock" or the "Shares");
and
WHEREAS, as of the Effective Date, all of the issued and outstanding
Shares are owned by the Stockholders; and
WHEREAS, the Corporation has made a Subchapter S election under Chapter 1
of the Subtitle A of the United States Internal Revenue Code of 1986, as amended
(the "Code"), and the Stockholders have determined that the Corporation should
terminate and revoke such election only in accordance with the terms of this
Agreement; and
WHEREAS, the Stockholders and the Corporation consider it to be in their
individual and mutual best interests to provide for certain restrictions on the
transferability of the Shares; and
WHEREAS, Florida Statutes, the parties hereto desire to make provisions
for the governance of the Corporation;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
set forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Stockholders and the
Corporation agree to the terms of this Agreement.
ARTICLE I
CAPITAL INTERESTS
By execution of this Stockholders' Agreement, each Stockholder hereby
agrees that the number of Shares set forth opposite each Stockholder's name in
Exhibit A attached hereto is true and correct.
ARTICLE II
MANAGEMENT
2.1 Board of Directors.
(a) Election of Directors. Until the fifth anniversary of the
Effective Date each of the Stockholders will vote all of the Shares owned by him
or her so as to elect, and thereafter for the term of this Agreement to continue
in office, a Board of Directors of the Corporation including: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, O. ▇▇▇ ▇▇▇▇▇, III, ▇▇▇▇ ▇. ▇▇▇▇▇ and such person as may be
designated by ▇▇▇▇ ▇. ▇▇▇▇▇. ▇▇▇▇▇ shall serve as the Chairman of the Board of
Directors (to serve until the earlier of his sale of his shares in the
Corporation, death, disability, election of his successor, or resignation)
(b) Irrevocable Proxy. Each Stockholder hereby grants to, and is
deemed to have executed in favor of, the other Stockholders an irrevocable proxy
to vote, or to give a written consent with respect to, all the stock of the
Corporation owned by the grantor of the proxy for the election to the Board of
Directors of those persons named in Section 2.1 hereof. This irrevocable proxy
is coupled with an interest and shall continue until the fifth anniversary of
the Effective Date.
2.2 Approval of Corporate Actions. Except as otherwise provided in this
Agreement or by Florida law, the exercise of any voting or other rights under
this Agreement or any other determination required by the Stockholders shall be
determined by the holders of a majority of the Shares held by such Stockholders.
2.3 Stockholder and Director Voting. The Stockholders covenant and agree
that they shall, at all times and from time to time, vote or cause to be voted
their Shares and, if applicable, vote as a director of the Corporation, to
propose or approve any action required to be taken by the Corporation pursuant
to this Agreement which may be necessary in order to lawfully effectuate any
actions specifically required to be taken by the Corporation or the Stockholders
pursuant to this Agreement.
2.4 Pre-emptive Rights. The Stockholders covenant and agree that they
shall take such action as may be necessary to amend the Corporation's Bylaws
and/or Certificate of Incorporation to grant pre-emptive rights to the
undersigned Stockholders.
ARTICLE III
RESTRICTIONS ON TRANSFERS TO THIRD PARTIES
3.1 Restrictions on Transfers. During the term of this Agreement, no
Stockholder, either directly or indirectly, shall transfer, assign, encumber,
alienate or in any way grant any right or interest in any of the Shares of the
Corporation now owned or hereafter acquired by any Stockholder, except as
permitted by this Agreement or by the consent of all of the parties hereto.
Without limiting the foregoing (and in addition to any other restrictions and
rights of first refusal contained herein), no Stockholder shall be permitted,
without the prior written consent of the holders of at least eighty percent
(80%) of the Shares, to transfer any Shares or any interest
therein, whether by gift, sale, assignment, pledge, encumbrance or otherwise
(including any involuntary transfer), if the effect of such transfer would be to
terminate the Subchapter S status of the Corporation. The Corporation may
require that any Stockholder provide to the Corporation, before the Corporation
is required to recognize or effect any proposed transfer of any of the Shares,
(i) a written statement (A) regarding the identity of the proposed transferee
sufficient to satisfy the Corporation that the transferee is not an ineligible S
corporation shareholder and (B) stating that the proposed transfer does not
result in an excessive number of shareholders of the Corporation such as would
result in disqualification or termination of the Subchapter S status of the
Corporation, and (ii) a written opinion of the transferring Stockholder's
counsel, in form and substance reasonably satisfactory to the Corporation's
counsel, that the proposed transferee is not, and (but for a change in the Code
or the residency status of a resident alien transferee) could never become, an
ineligible S corporation shareholder. Notwithstanding the foregoing,
Stockholders shall be permitted to make transfers to grantor trusts, children
and spouses, provided the effect of any such transfer would not be to terminate
the Subchapter S status of the Corporation.
3.2 Effect of Noncompliance. Any purported transfer of any of the Shares
other than in accordance with the terms of this Agreement shall be null and void
ab initio and shall not operate to transfer any interest or title in such
Shares, and the Corporation shall not recognize nor register any such purported
transfer in the corporate records. The purported transferee shall not be a
shareholder of the Corporation and shall not be entitled to receive a new stock
certificate, any dividends or any other distributions on or with respect to any
of the Shares, or to vote on any matters which are voted on by the Stockholders
from time to time.
3.3 Proposed Stock Transfers.
(a) Offer Notice. Prior to a proposed transfer by any Stockholder
(the "selling Stockholder") of all or a portion of the Shares owned by him to
any bona fide purchaser, the selling Stockholder shall give written notice
("Offer Notice") of such proposed transfer to the Secretary of the Corporation
and to all of the non-selling Stockholders. The Offer Notice shall set forth the
name and address of the proposed transferee, the number of Shares proposed to be
transferred (the "Offered Shares"), the purchase price payable per Share, which
shall be payable in cash or cash equivalents (e.g., promissory note, marketable
securities), and all other terms and conditions of the proposed transfer,
including, if available, any documents or draft documents relating to such
proposed transfer. The non-selling Stockholders shall be entitled to obtain any
other information that they may reasonably require regarding the proposed
transfer, including any information reasonably necessary to verify that the
proposed transfer is a bona fide transaction. Any offer from a third party
purchaser to acquire Shares shall be accompanied by a non-refundable cash
deposit equal to twenty-five percent (25%) of the total purchase price (the
"Deposit"). The Deposit shall be refunded to the prospective purchaser only if
the non-selling Stockholders exercise their right of first refusal pursuant to
Section 3.3(b).
(b) Right of First Refusal. The Offer Notice shall constitute an
offer by the selling Stockholder to sell all (but not less than all) of the
Offered Shares to the non-selling Stockholders in accordance with the terms of
the Offer Notice. The non-selling Stockholders may accept such offer by giving a
written notice (the "Acceptance Notice") signed by any of the
non-selling Stockholders who desire to purchase the Offered Shares (the
"Accepting Stockholders") to the selling Stockholder at any time before the
expiration of thirty-five (35) days after the date of receipt of the Offer
Notice. If there is more than one Accepting Stockholder, each of the Accepting
Stockholders will be entitled to purchase their pro rata share (in accordance
with the relative ownership percentages of the Accepting Stockholders) of the
Offered Shares (or in such other proportions as the Accepting Stockholders may
agree between themselves).
(c) Closing. Within thirty (30) days after the delivery of an
Acceptance Notice, the Accepting Stockholders shall close the purchase of such
Offered Shares at the principal office of the Corporation, or some other place
mutually agreeable to all parties, at which time the selling Stockholder shall
deliver the certificates representing the Offered Shares duly endorsed for
transfer and all other documents that are required to transfer the Offered
Shares to the Accepting Stockholders and the Accepting Stockholders shall
deliver to the selling Stockholder the consideration therefor in accordance with
the terms of the Offer Notice.
(d) Failure to Exercise Option or Close Purchase. If the non-selling
Stockholders do not elect to purchase all of the Offered Shares or if the
purchase transaction is not closed (other than because of the default of the
selling Stockholder) within the period set forth in Section 3.3(c) (the "Closing
Period"), the selling Stockholder may transfer the Offered Shares within ninety
(90) days following the end of the Closing Period to the original proposed
purchaser, at the price and on the terms specified in the Offer Notice;
provided, however, that any such Shares sold shall be transferred to the
purchaser subject to the provisions of this Agreement and shall not be
transferred unless and until such purchaser executes a counterpart of this
Agreement thereby agreeing to receive and hold the Offered Shares subject to all
of the terms and conditions contained herein (and provided further that any such
transfer shall be subject to the limitations contained in Section 3.1 hereof).
(e) Application to Unsold Shares. If the selling Stockholder does
not sell all of his Shares pursuant to the terms and conditions set forth in
Section 3.3(d), the Offered Shares shall again be subject to the provisions of
this Agreement and may not thereafter be transferred except in the manner and on
the terms specified herein.
(f) Drag-Along Right. In the event a majority of shareholders (the
Selling Group") elect to transfer all of the Shares owned by them to an
unaffiliated third party (a "Third Party") (including any transfer of Shares
that is being effected by a merger or consolidation of the Corporation with
another person), and provided the Selling Group has complied with the notice and
offer requirements of this Section 3.3 and Right of First Refusal has not been
exercised, then the Selling Group shall have the right (the "Drag-Along Right")
to cause each of the Stockholders as a group to transfer all of their respective
Shares to the Third Party (or to exchange such Shares pursuant to the terms of
such merger or consolidation) at the same price and on the same terms and
conditions as the Selling Group proposes to transfer their Shares.
(g) Tag-Along Right. In the event the Selling Group elects to
transfer all of the Shares owned by them to a Third Party and the Selling Group
has not exercised the Drag-
Along Right pursuant to Section 3.3(f) above, and provided the Selling Group has
complied with the notice and offer requirements of this Section 3.3 and Right of
First Refusal has not been exercised, then all other Stockholders as a group
shall have the right to cause the Selling Group to effect the transfer of all of
such Stockholders' respective Shares to the Third Party at the same price and on
the same terms and conditions as the Selling Group proposes to Transfer their
Shares to such Third Party (the "Tag-Along Right").
ARTICLE IV
STOCKHOLDER NON-COMPETES
Each of the Stockholders agrees to execute and deliver a Non-Compete
Agreement in substantially the form of Exhibit B, with the provision that such
Non-Compete Agreement shall be effective for a period of two (2) years following
the date of closing of the acquisition of the entirety of any Stockholders'
shares in the Corporation.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 Representations and Warranties of Stockholders. Each Stockholder
hereby represents and warrants to the Corporation and to each of the other
Stockholders that:
(a) This Agreement constitutes the legal, valid, and binding
obligation of such Stockholder.
(b) Neither the execution, delivery, and performance of this
Agreement nor the consummation by such Stockholder of the transactions
contemplated hereby (i) will conflict with, violate, or result in a breach of
any of the terms, conditions, or provisions of any law, regulation, order, writ,
injunction, decree, determination, or award of any court, any governmental
department, board, agency, or instrumentality, domestic or foreign, or any
arbitrator, applicable to such Stockholder, or (ii) will conflict with, violate,
result in a breach of, or constitute a default under any of the terms,
conditions, or provisions of any material agreement or instrument to which such
Stockholder is a party or by which such Stockholder is or may be bound or to
which any of his or her material properties or assets is subject.
(c) Such Stockholder is acquiring the Shares for investment purposes
only and not with a view to the distribution thereof (as such term is defined in
the Securities Act of 1933, as amended).
5.2 Representations and Warranties of the Corporation. The Corporation
hereby represents and warrants to each of the Stockholders that:
(a) This Agreement constitutes the legal, valid, and binding
obligation of the Corporation.
(b) Neither the execution, delivery, and performance of this
Agreement nor the consummation by the Corporation of the transactions
contemplated hereby (i) will conflict with, violate, or result in a breach of
any of the terms, conditions, or provisions of any law, regulation, order, writ,
injunction, decree, determination, or award of any court, any governmental
department, board, agency, or instrumentality, documents or foreign, or any
arbitrator, applicable to the Corporation, or (ii) will conflict with, violate,
result in a breach of, or constitute a default under any of the terms,
conditions, or provisions of the articles of incorporation or bylaws of the
Corporation, or of any material agreement or instrument to which the Corporation
is a party or by which the Corporation is or may be bound or to which any of its
material properties or assets is subject.
(c) The Corporation has made full and fair disclosure to the
Stockholders of all information material to an investment in the Corporation and
its business. No representation, statements, or warranty by the Corporation in
this Agreement or otherwise made to the Stockholders or contained in any
document delivered by the Corporation to the Stockholders contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements made not misleading.
ARTICLE VI
STOCKHOLDER APPROVAL OF CERTAIN ACTIONS
For so long as the Operational Loans, Non-Operational Loans or ▇▇▇▇▇ Loan
(as those terms are defined in that certain Recapitalization Agreement by and
among the Corporation and certain of its shareholders dated as of December 31,
2004) are outstanding and unpaid, the approval of a majority of the shareholders
of the Corporation (and thereafter the approval of the Board of Directors) shall
be required to:
(a) Approve any changes in the salaries of employees of the Corporation
(or its subsidiaries) making more than $50,000 per year; and
(b) Approve any deviation in excess of ten percent (10%) per annum from
the annual budget submitted to and approved by the Board of Directors of the
Corporation.
ARTICLE VII
GENERAL PROVISIONS
7.1 Term of Agreement. This Agreement shall be effective as of the date
and year first above written and shall terminate upon the occurrence of any of
the following events:
(a) Upon the mutual consent in writing of the holders of at least
eighty percent (80%) of the Shares;
(b) Upon the sale or other disposition of all of the Shares of the
Corporation held by the Stockholders in compliance with the terms hereof; or
(c) Upon any merger or consolidation of the Corporation in which the
Corporation is not the surviving corporation; or
(d) Upon the voluntary or involuntary dissolution (other than
involuntary dissolution for failure to file any report or pay any tax) of the
Corporation; provided, however, that in the event of the dissolution or
liquidation of the Corporation, the provisions of this Agreement shall continue
in effect for the period of winding up the business of the Corporation and
distributing its assets; or
(e) The expiration of fifty (50) years from the date of this
Agreement.
Nothing contained in this Section 7.1 shall affect or impair any rights or
obligations arising prior to the time of the termination of this Agreement, or
which may arise by reason of an event causing the termination or expiration of
this Agreement.
7.2 Scope of Agreement. This Agreement shall apply to all transfers by any
Stockholder of the Shares (including any legal or beneficial interest in, or
rights to, the Shares, whether now owned or hereafter acquired), whether
voluntary, involuntary or by operation of law, resulting from death or
otherwise. All of the provisions of this Agreement shall apply to all of the
Shares of the Corporation now owned or which may be issued or transferred
hereafter to a Stockholder, in consequence of any additional issuance, purchase,
exchange or reclassification of Shares, corporate reorganization or any other
form of recapitalization, or consolidation, merger, share split or share
dividend.
7.3 Further Assurances. Each party hereto 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.
7.4 Binding Effect. This Agreement shall inure to the benefit of and shall
be binding upon the parties hereto and their respective heirs, successors, legal
representatives and assigns and all persons acquiring Shares by, through or
under any party hereto, regardless of the method of acquisition of such Shares.
The Corporation shall not issue any additional capital stock to any person or
entity and shall not transfer any Shares on its books to any person or entity
unless and until such person or entity executes such documentation as the
Corporation may specify whereby the person or entity agrees to become a party
hereto.
7.5 Application of Agreement to After-Acquired Shares. All of the
provisions of this Agreement shall apply to all of the Shares now owned or which
may be issued or transferred hereunder to a Stockholder or to his transferees in
consequence of any additional issuance, purchase, exchange or reclassification
of Shares, corporate reorganization, or any other form of recapitalization, or
consolidation, or merger, or stock split, or stock dividend, or which are
acquired by a Stockholder in any other manner.
7.6 Specific Performance. Inasmuch as the Shares are closely held and the
market therefor is limited, irreparable damage would result if this Agreement is
not specifically enforced. Therefore, the rights and obligations of the parties
under this Agreement shall be
enforceable in a court of equity by a decree of specific performance, and
appropriate injunctive relief may be applied for and granted in connection
therewith, including without limitation, an injunction against the sale of
Shares to a transferee whose ownership would disqualify the Corporation's
Subchapter S status. Such remedies shall, however, be cumulative and not
exclusive and shall be in addition to any other remedies which any party may
have under this Agreement or otherwise.
7.7 Legend.
(a) Stock Certificate Legend. Each certificate representing Shares
of the capital stock of the Corporation shall have stamped, printed or typed
thereon, a legend reflecting the restrictions imposed by this Agreement as
follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, TRANSFERRED
OR OTHERWISE DISPOSED OF BY THE HOLDER WITHOUT AN EFFECTIVE REGISTRATION
STATEMENT BEING FILED UNDER OR PURSUANT TO SAID ACT OR AN OPINION OF
COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT AN EXEMPTION
FROM REGISTRATION IS AVAILABLE.
THIS CERTIFICATE IS SUBJECT TO THE PROVISIONS OF AN AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT DATED AS OF DECEMBER 31, 2004, THE ORIGINAL OF
WHICH IS ON FILE IN THE MINUTE BOOK OF THE COMPANY. ANY SALE, TRANSFER,
PLEDGE, ASSIGNMENT OR ENCUMBRANCE OF THE SHARES REPRESENTED BY THIS
CERTIFICATE NOT IN CONFORMITY WITH SAID AGREEMENT SHALL BE INVALID.
(b) Transfer Subject to Agreement. The Corporation hereby agrees
that it will not at any time permit any transfer to be made on its books or
records of the certificates representing the Shares owned by any of the
Stockholders unless such transfer is made pursuant to and in accordance with the
terms and conditions of this Agreement and in accordance with applicable
securities laws and unless the transferee has executed a counterpart of this
Agreement.
7.8 Articles of Incorporation; Bylaws.
(a) Agreement to Amendments. Each Stockholder agrees to consent to
and approve any amendment of the Articles of Incorporation or Bylaws of the
Corporation which may be necessary or advisable in order to conform any of the
provisions of this Agreement or any amendments hereto to the applicable laws of
the state of Florida as now or hereafter enacted.
(b) Further Assurances. Each Stockholder agrees to vote his Shares
of the Corporation and to execute and deliver such documents as may be necessary
in order to implement the provisions of the preceding subparagraph.
(c) Agreement Controlling. In the event of any inconsistency with
the provisions of the Recapitalization Agreement dated of even date herewith
between the Corporation and the Stockholders, this Agreement, the Amended and
Restated Notes (as defined in the Recapitalization Agreement), the Articles of
Incorporation and Bylaws of the Corporation, whether such Agreements, Articles
or Bylaws be presently in force or hereafter amended, the terms and conditions
of the Agreements and documents shall bind and control in all respects in the
order listed above.
7.9 Entire Agreement. This Agreement, the Recapitalization Agreement, the
Amended and Restated Notes, the exhibits and schedules hereto and thereto and
the other documents delivered pursuant hereto and thereto, respectively,
constitute the full and entire understanding and agreement between the parties
with regard to the subjects hereof and thereof, respectively, and supersedes and
replaces all previous agreements, oral or written, with respect to the subject
mater hereof and thereof. This Agreement can be amended, supplemented or
changed, and any provision hereof can be waived, only by written instrument
executed by all of the Stockholders.
7.10 Governing Law; Venue; Prevailing Party. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
Michigan without regard to its conflict of laws doctrine. The parties hereto (i)
agree that any suit, action or other legal proceeding arising out of or relating
to this Agreement shall be brought and heard in a court of competent
jurisdiction in the State of Michigan and the United States District Court for
the Eastern District of Michigan, (ii) consent to the jurisdiction of any such
court in any such suit, action or proceeding, and (iii) waive any objection to
the laying of venue of any such suit, action or proceeding in any such court.
All parties hereto waive any objection based on forum non conveniens and any
objection to venue in any action instituted hereunder.
7.11 Notices. All notices, offers, acceptances and other communications to
be made, served or given under or pursuant to the terms hereof shall be in
writing and shall be delivered personally or sent by nationally recognized
overnight courier. Any such notice shall be deemed given when so delivered,
addressed to the parties at their respective addresses as set forth in the
records of the Corporation.
7.12 Severability. If at any time subsequent to the date hereof, any term
or provision of this Agreement shall be held by any court of competent
jurisdiction to be illegal, void or unenforceable, such term or provision shall
be of no force and effect, but the illegality or unenforceability of such term
or provision shall have no effect upon and shall not impair the enforceability
of any other term or provision of this Agreement.
7.13 Counterparts. This Agreement may be executed by facsimile and in one
or more counterparts, each of which shall be deemed an original, but all of
which when taken together shall constitute one and the same instrument.
7.14 Attorneys' Fees and Costs. In any action brought to enforce the
provisions of this Agreement, the prevailing party shall be entitled to recovery
of the costs of such action, including all reasonable attorneys' fees, from the
non-prevailing party.
IN WITNESS WHEREOF, the parties hereto have duly executed this Amended and
Restated Stockholders' Agreement as of the date first written above.
CORPORATION:
AmeriFirst, Inc.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
President and CEO
▇▇▇▇▇: STRICKSTEIN:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ individually and on
behalf of: The ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Revocable Living Trust u/a/d 9/13/84, as
amended; (ii) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Revocable
Trust U/A/D 2/17/04; (iii) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, (iv) ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
(v) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, (vi) The
Strickstein Family Limited Partnership I
and (vii) The Strickstein Family Limited
Partnership II
▇▇▇▇▇▇▇: ▇▇▇▇▇:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ O. ▇▇▇ ▇▇▇▇▇, III
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually O. ▇▇▇ ▇▇▇▇▇, III
and on behalf of Dow Ridge
Associates, LLC