EXHIBIT 10.4
SHAREHOLDERS' AGREEMENT
OF
NEWCOURT HOLDINGS, INC. AND SUBSIDIARIES
THIS SHAREHOLDER'S AGREEMENT (this "Agreement"), is made and entered into as of
this 2nd day of May 2003 by and among Newcourt Holdings, Inc. (the "Company"), a
Florida corporation, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, an individual, and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
an individual, ("Shareholders").
WHEREAS, the parties have entered into of that certain Agreement for the
Exchange of Securities ("Exchange Agreement") executed in conjunction with this
Agreement, in which the Company will exchange shares of a new series of its
preferred stock, par value $.01 per share, to be designated Series A Preferred
Stock ("Series A Preferred Stock") with the Shareholders for all the issued and
outstanding shares of common stock of Engineered Plastics, Inc. ("EPI") and
Quantum Pharmaceuticals, Inc. ("QPI"), each a wholly-owned subsidiary of the
Company, and
WHEREAS, the parties hereto deem it in their best interest to provide for
ultimate ownership of the Preferred shares of the Company and stock of EPI ("EPI
Stock") and QPI ("QPI Stock"), the Company's subsidiaries, or rights thereto,
including the right to transfer such stock and the right to purchase such stock
upon the occurrence of certain events;
NOW, THEREFORE, in consideration of the foregoing and in consideration of the
mutual promises set forth herein, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meaning set forth below:
(a) "Disposition" shall mean any sale, transfer, conveyance,
hypothecation, pledge or encumbrance, whether outright or as security, by
operation of law, with or without consideration, voluntary or involuntary,
direct or indirect of all or any part of any right, title or interest (including
but not limited to voting rights) in or to any Stock. In the case of
Shareholder, which is itself also a corporation, a Disposition of stock shall
also include a change in control of the stock of such Shareholder corporation.
(b) "Right of First Refusal Period" shall mean the thirty-six (36)
month period ("RFR Period") following the closing of the Exchange Agreement.
(c) "Stock" shall mean all shares of the Series A Preferred Stock of
the Corporation now and hereafter owned by the Shareholders.
SECTION 2
RFR PERIOD RESTRICTIONS ON DISPOSITION OF EPI AND QPI STOCK AND ASSETS
(a) Disposition of EPI and QPI Stock or Assets. During the RFR Period,
and as long as a Shareholder shall own at least ten percent (10%) of the Series
A Preferred Stock, the Company shall not dispose of any of its EPI Stock or
Assets and/or QPI Stock or Assets except as permitted in paragraph (b) below,
and any such attempted disposition shall be void and shall not be recognized or
registered upon the books of the Company.
(b) Right of First Refusal, EPI and/or QPI Stock or Assets. If during
the RFR Period, the Company desires to sell, assign, transfer, convey or
otherwise dispose of the shares or assets of either QPI or EPI, or both,
pursuant to a bona fide written offer ("Offer") to purchase by a third party,
the Company shall, as long as a Shareholder owns at least ten percent (10%) of
the Series A Preferred Stock, first give such Shareholder or Shareholders, as
the case may be, sixty (60) days' advance written notice (the "RFR Notice of
Sale") of the proposed sale (which RFR Notice of Sale shall include the name of
the party to whom the Company proposes to sell the Shares or Assets which are
the subject of the Notice of Sale (the "RFR Shares" or the "RFR Assets" ) and
the purchase price proposed to be paid by such party for each of the RFR Shares
or the RFR Assets, or both), within which sixty (60) day period (the "Election
Period") such Shareholder or Shareholders, as the case may be, shall have the
right to elect to purchase all and not less than all of the RFR Shares or the
RFR Assets, or both by delivering to the Company a written notice (the "Notice
of RFR Election") of their election to purchase all of the RFR Shares or the RFR
Assets or both on the same terms and conditions set forth in the Offer.
(c) Closing. The closing of the Shareholder's purchase of the RFR
Shares or RFR Assets which a Shareholder elects to purchase shall take place at
the offices of the Company on a date (the "RFR Sale Date") set forth in the
Notice of RFR Election which is not less than thirty (30) nor more than
forty-five (45) days following the date on which the Notice of RFR Election is
delivered to the Company. On the RFR Sale Date, such Shareholder or
Shareholders, as the case may be, shall pay the Company for the RFR Shares or
RFR Assets in accordance with the terms and conditions set forth in the Offer,
subject to the Company's discretion to accept a down payment and note with
interest in lieu of matching an all cash offer if the note interest rate
adequately compensates the Company for accepting deferred payment.
(d) Disposition by Company. If the Shareholders (i) elect not to
purchase the RFR Shares or RFR Assets, or (ii) fail to make a timely delivery of
an RFR Notice of Election, then the Company shall have the right to sell all of
the RFR Shares and RFR Assets which the Shareholders elected not to purchase or
failed to purchase on the same terms and conditions as in the RFR Notice of Sale
within thirty (30) days the expiration of the RFR Election Period.
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SECTION 3
RESTRICTIONS UPON THE TRANSFER OF THE STOCK OF
THE COMPANY
(a) Transfer Restricted; Pledges Not Permitted. During the RFR Period,
a Shareholder shall not have the right to make any Disposition of Stock except
as provided in this Agreement. A Shareholder shall not pledge encumber, or
otherwise hypothecate as security of collateral any of its shares unless
otherwise permitted, in writing, by the Company.
(b) Permitted Dispositions. A Shareholder may also transfer Stock to
one or more corporations, partnerships or trusts controlled by such Shareholder;
provided, however, that the transferor shall have obtained the written agreement
of the proposed transferee, that such transferee will be bound by, and the Stock
proposed to be transferred will be subject to, this Agreement. For purposes of
this Agreement, control means, in the case of a corporation or partnership,
ownership of not less than 50% of the vote or value of interests in such
corporation or partnership, and in the case of trusts, ownership of not less
than 50% of the actuarial interests in such trust. The term Disposition and
Permitted Dispositions shall include transfers of interests of entities to which
Shares have been transferred by the Shareholder (or subsequent shareholders).
(c) Consent of Shareholders. A Shareholder may make a Disposition to
which the Company consents in writing; provided, however, that the transferor
shall have obtained the written agreement of the proposed transferee, that such
transferee will be bound by, and the Stock proposed to be transferred will be
subject to, this Agreement.
(d) Right of First Offer. Except as otherwise hereinafter provided, if
a Shareholder shall desire to sell all or any portion of his Stock (the "Offered
Interest"), Shareholder (the "Offeror" for purposes of this Section 3(d) shall
first offer to sell the Offered Interest to the Non-Selling Shareholder (the
"Offeree") for purposes of this Section 3 (d) by delivering to the Offeree a
written notice of the proposed transfer. Such notice shall state the Stock
offered and the price and terms upon which the Offered Interest is proposed to
be transferred. The Offeree shall have the right to elect within sixty (60) days
thereafter to purchase all, but not less than all, of the Offered Interest at
the price and upon the terms and conditions contained in such offer by giving
notice to the Offeror within the sixty (60) day period. The transfer of an
interest pursuant to this Section 3 (d) shall occur on a date agreed upon by
Offeror and Offeree but in no event greater ninety (90) days from the election
to purchase, subject to a single extension of up to thirty (30) days (the
"Closing Date"). Any attempted conditional or partial acceptance of the offer by
the Offeree shall constitute a rejection.
(i) If the Offeree does not elect to purchase all of the
Offered Interest within the aforesaid period, or, if after accepting such offer,
the Offeree fails to purchase all of the Offered Interest in accordance
herewith, then, subject to the provisions of this Agreement, Offeror shall be
free to transfer all of the Offered Interest to any party; provided, however,
that such party shall be subject to the Company's prior approval, at not less
than the price and on the same terms and conditions (a) within thirty (30) days
from the failure of the Offeree, after having
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elected to acquire the Offered Interest, to make such purchase of the Offered
Interest on the Closing Date, or (b) within 60 days of the earlier of either
(aa) the expiration of the period within which the Offeree may elect to purchase
the Offered Interest (assuming the Offeree has not formally rejected such offer)
or (bb) the giving of written notice by the Offeree that it does not elect to
purchase all of the Offered Interest. Promptly after the execution of any
contract for the transfer of the Offered Interest, the Offeror shall deliver to
the Offeree a true and complete copy of such contract and all amendments
thereto, and such other information relating to the contract and the proposed
purchaser as the Offeree may reasonably request. Upon receipt of such
information the Offeree shall have an additional right, for the limited period
of ten (10) days, to elect to acquire the Offered Interest on the terms set
forth in such contract and in accordance with the procedure for electing and
closing which is set forth in Section 3(d)(i), above. Upon the consummation of
the transfer of the Offered Interest to the proposed third party purchaser, the
Offeror shall notify the Offeree thereof in writing, certifying the price and
terms and conditions upon which such transfer was made.
(ii) If the Offeror does not transfer all of the Offered
Interest within the periods specified in Section 3(d)(i), then the rights of the
Offeree under this Section 2(d)(ii) shall be fully restored and reinstated as if
such offer had never been made; provided, however, that the periods for sale of
the Offered Interest set forth in Section 2(d)(ii) shall be extended during any
period in which such sale is not completed as a result of an act of God, war,
emergencies or other force majeure of which the Offeree receives written notice
from the Offeror.
(e) Transferee Bound by Agreement. If all or any part of a
Shareholder's Stock has been transferred to a transferee, such transferee: (i)
shall take and hold the Stock subject to this Agreement and to all of the
obligations and restrictions arising hereunder upon the Shareholder from whom
such Stock was acquired; and (ii) shall observe and comply with this Agreement
and with all such obligations and restrictions including, without limitation,
the obligation to retransfer the Stock to the Company and/or other shareholders
as set forth herein.
SECTION 4
REPRESENTATIONS AND WARRANTIES
Each of the parties hereby represent and warrant to the other as
follows:
(a) Each party hereto is authorized to enter into, execute and deliver
this Agreement; and
(b) The execution and delivery of this Agreement by each party and the
consummation of the transactions contemplated hereby and the fulfillment of the
terms hereof will not conflict with or result in the breach of any of the terms,
conditions, or provisions of or constitute a default under: (i) the Articles of
Incorporation of such party, or any agreement, indenture or instrument to which
such party is a party; (ii) any judgment, decree, order, obligation, or award of
any court, governmental body, or arbitrator applicable to such party; or (iii)
any law, rule, regulation, license, or permit applicable to such party.
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SECTION 5
MISCELLANEOUS
(a) Termination. This Agreement shall terminate:
(i) If all Stock of the Company is owned by any one (1)
Shareholder; or
(ii) If the Company is adjudicated a bankrupt, the Company
executes an assignment for benefit of creditors, a receiver is
appointed for the Company or the Company voluntarily or involuntarily
dissolves; or
(iii) If all Shareholders agree to terminate this Agreement;
(b) Amendment. This Agreement may not be amended or terminated orally,
and no amendment, termination or attempted waiver shall be valid unless in
writing and signed by the party sought to be bound.
(c) Notice. Any and all notices, designations, consents, offers,
acceptances or any other communication under this Agreement shall be given in
writing and delivered by personal delivery, overnight courier, or by certified
mail, return receipt requested, postage and charges prepaid, which shall be
addressed, in the case of the Company, to its principal office, in the case of
any Shareholder, to the last address appearing on the stock books of the Company
or to such other address as may be designated. Notices delivered in person shall
be effective and deemed received on the date of delivery. Notices sent by mail
shall be effective and deemed received upon the date of actual receipt.
(d) Remedies. Stock subject to this Agreement is not readily
marketable, and, for that reason and other reasons, the parties will be
irreparably damaged if this Agreement is not specifically enforced. In this
regard, the parties declare that it is impossible to measure in money the
damages that will accrue to a person having rights under this Agreement by
reason of a failure of another to perform any obligation under this Agreement.
Therefore, this Agreement shall be enforceable by specific performance or other
equitable remedy cumulative with and not exclusive of any other remedy. If any
person shall institute any action or proceeding to enforce the provisions of
this Agreement, any person subject to this Agreement against whom such action or
proceeding is brought hereby waives the claim or defense that the person
instituting the action or proceeding has an adequate remedy at law, and no
person shall in any action or proceeding put forward the claim or defense that
an adequate remedy at law exists. Should any dispute concerning the transfer of
Stock arise under this Agreement, an injunction may be issued restraining the
transfer of such Stock pending the determination of such dispute.
(e) Applicable Law and Venue. This Agreement has been negotiated and
executed in the State of Florida, and this Agreement shall be construed and
enforced in accordance with the laws of the State of Florida, without regard to
the conflicts of laws provisions thereof. . In the event of any dispute arising
out of or relating to this Agreement, such dispute shall be settled by
arbitration in Miami-Dade County, Florida in accordance with the rules then
obtaining of the
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American Arbitration Association, and judgment upon the award rendered may be
entered in any court having jurisdiction thereof; provided, however, that the
provisions of this Sub-Section (e) shall in no way limit or impair the rights of
the parties to avail themselves of the remedies provided for in Sub-Section (d)
of this Agreement.
(f) Effect of Dispute/Attorneys' Fees and Costs. Any party to this
Agreement who challenges the effect or validity of a material term of this
Agreement before any court in any jurisdiction shall, if such challenge is
unsuccessful, be liable to every other party hereto for the amount of reasonable
attorneys' fees and costs incurred by the other party in defending against or
answering such challenge.
(g) Captions. Titles or captions of sections contained in this
Agreement are inserted only as a matter of convenience and for reference, and in
no way define, limit, extend or prescribe the scope of this Agreement or the
intent of any provision.
(h) Counterparts. This Agreement may be executed simultaneously in four
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
(i) Further Acts. Each party agrees to perform any further acts and to
execute and deliver any instruments or documents that may be necessary or
reasonably deemed advisable to carry out the purposes of this Agreement.
(j) Gender. Where the context so requires, the masculine gender shall
be construed to include the female, a corporation, a trust, or other entity, and
the singular shall be construed to include the plural and the plural the
singular.
(k) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Shareholders, their respective heirs,
successors, successors-in-title, legal representatives and lawful assigns. No
party shall have the right to assign this Agreement, or any interest under this
Agreement, without the prior written consent of the other parties.
Notwithstanding anything to the contrary contained in this Agreement, no
attempted Disposition of Stock shall be valid unless and until the acquirer of
such interest agrees in writing to accept and be bound by all the terms and
conditions of this Agreement, in which case all such terms and conditions shall
inure to the benefit of and be binding upon such acquirer, his successors,
personal representatives, heirs and permitted assigns to the same extent as if
such acquirer had originally been a party to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Shareholders'
Agreement, under seal, on the date and at the place first above written.
NEWCOURT HOLDINGS, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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