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EXHIBIT 4.3.2
STOCKHOLDERS AGREEMENT
by and among
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
AND
THE STOCKHOLDERS OF ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
Dated: September 30, 1999
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS ........................................................ 1
1.1. Common Stock ....................................................... 1
1.2. Exchange Act........................................................ 1
1.3. Investors .......................................................... 1
1.4. Qualified IPO....................................................... 1
1.5. Registrable Securities ............................................. 1
1.6. Securities Act ..................................................... 2
1.7. Shares.............................................................. 2
ARTICLE II. REGISTRATION RIGHTS ............................................... 2
2.1. Piggyback Registration Rights ...................................... 2
2.2. Demand Registration Rights ......................................... 3
2.3. Registration Procedures ............................................ 3
2.4. Restrictions on Public Sale ........................................ 7
2.5. Registration Expenses .............................................. 8
2.6. Indemnification .................................................... 8
2.7. Rule 144 ........................................................... 10
2.8. Participation in Underwritten Registrations . ...................... 11
ARTICLE 111. MISCELLANEOUS .................................................... 11
3.1. Legend ............................................................. 11
3.2. Transferees; Additional Restriction on Transfer .................... 11
3.3. Specific Performance, Etc. ......................................... 11
3.4. Notices............................................................. 11
3.5. Entire Agreement; Amendments and Waivers ........................... 12
3.6. Termination ........................................................ 12
3.7. Recapitalizations, Exchange, Etc. Affecting the Company's Stock .... 13
3.8. Jurisdiction; Mediation; Attorneys' Fees ........................... 13
3.9. Multiple Counterparts .............................................. 13
3.10. Headings ........................................................... 13
3.11. Governing Law ...................................................... 13
3.12. Construction ....................................................... 14
3.13. Expenses ........................................................... 14
3.14. Invalidity ......................................................... 14
3.15. Cumulative Remedies ................................................ 14
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STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is entered into as of
______________, 1999 by and among ▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Colorado corporation
(the "Company"), and the stockholders of the Company listed as signatories to
this Agreement (the "Stockholders").
RECITALS
The parties hereto desire to enter into this Agreement for the purpose of
regulating certain aspects of the Stockholders' relationships with regard to
each other and with the Company.
AGREEMENT
NOW THEREFORE, in consideration of the above recitals and the mutual
covenants herein contained and for other good and valuable consideration, the
parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
As used herein, the following terms shall have the following meanings:
1.1. Common Stock. The term "Common Stock" shall mean common stock of the
Company, no par value per share.
1.2. Exchange Act. The term "Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
1.3. Investors. The term "Investors" shall mean the Stockholders of the
Company.
1.4. Qualified IPO. The term "Qualified IPO" shall mean the Company's
underwritten initial public offering of its Common Stock under the Securities
Act, provided that the gross proceeds to the Company in such offering exceed $10
million and that the Company's Common Stock is listed for trading on a national
securities exchange or is authorized for trading on the NASDAQ National Market
System at such time.
1.5. Registrable Securities. The term "Registrable Securities" shall mean
shares of Common Stock held by the investors; provided, however, that a
Registrable Security shall cease to be a Registrable Security at such time that
(i) the Registrable Security has been effectively registered under the
Securities Act and disposed of in accordance with the registration statement
covering it, (ii) has been sold to the public pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act and the legend
referred to in Section 3.1 hereof has been removed from the certificate
representing such Registrable Security, (iii) may be sold to
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the public pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act or (iii) one (1) year after a Qualified IPO.
1.6. Securities Act. The term "Securities Act" shall mean the Securities
Act of 1933, as amended.
1.7. Shares. The term "Shares" shall mean shares of capital stock of the
Company, preferred or common, and securities convertible into, or exercisable or
exchangeable for, shares of capital stock of the Company.
ARTICLE II
REGISTRATION RIGHTS
2.1. Piggyback Registration Rights.
(a) Right to Piggyback. Subject to the last sentence of this Section
2.1(a), whenever the Company proposes to register any shares of Common Stock (or
securities convertible into or exchangeable for, or options to purchase, Common
Stock) with the Securities and Exchange Commission (the "Commission") under the
Securities Act and the registration form to be used may be used for the
registration of the Registrable Securities (a "Piggyback Registration"), the
Company (i) will give written notice to all Stockholders who hold Registrable
Securities (collectively, "Holders") at least 30 days prior to the anticipated
filing date, of its intention to effect such a registration, which notice will
specify the proposed offering price, the kind and number of securities proposed
to be registered, the distribution arrangements and such other information that
at the time would be appropriate to include in such notice, and (ii) will,
subject to Section 2.1(b) below, include in such Piggyback Registration all
Registrable Securities with respect to which the Company has received written
requests for inclusion therein within 20 days after the date of the Company's
notice. Except as may otherwise be provided in this Agreement, Registrable
Securities with respect to which such request for registration has been received
will be registered by the Company and offered to the public in a Piggyback
Registration pursuant to this Article II on terms and conditions at least as
favorable as those applicable to the registration of shares of Common Stock to
be sold by the Company and by any other person selling under such Piggyback
Registration.
(b) Priority on Piggyback Registrations. If the managing underwriter
or underwriters, if any, advise the selling Holders in writing that in its or
their reasonable opinion or, in the case of a Piggyback Registration not being
underwritten, the Company shall reasonably determine (and notify the selling
Holders of such determination), after consultation with an investment banker of
nationally recognized standing, that the number or kind of securities proposed
to be sold in such registration (including Registrable Securities to be included
pursuant to subsection 2.1(a) above) is inconsistent with that which can be sold
in such registration without having a material effect on the success of the
offering (including, without limitation, an impact on the selling price or the
number of securities that any participant may sell), the Company will include in
such registration only the number of securities, if any, which, in the opinion
of such underwriter or underwriters, or the Company, as the case may be, can be
sold as follows: (i) first,
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the shares the Company proposes to sell, and (ii) second, the Registrable
Securities requested to be included in such registration by the Holders. To the
extent that the privilege of including Registrable Securities in any Piggyback
Registration must be allocated among the selling Holders pursuant to clause (ii)
above, the allocation shall be made pro rata based on the number of Registrable
Securities that each such Holder shall have requested to include therein.
(c) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the Company will (i) select a managing underwriter or
underwriters to administer the offering, which managing underwriter or
underwriters will be of nationally recognized standing, and (ii) determine the
terms under which such underwriting shall take place.
2.2. Registration Procedures. With respect to any Piggyback Registration
(generically, a "Registration"), the Company will, subject to Sections 2.1(b)
and 2.2(c), as expeditiously as practicable:
(a) prepare and file with the Commission, within 90 days after mailing
the applicable Notice, a registration statement or registration statements (the
"Registration Statement") relating to the applicable Registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Registrable Securities in accordance with the intended method or
methods of distribution thereof; provided, however, that the Company will
include in any Registration Statement on a form other than Form S-1 all
information that the selling Holders shall reasonably request and shall include
all financial statements required by the Commission to be filed therewith,
cooperate and assist in any filings required to be made with the National
Association of Securities Dealers, Inc. ("NASD"), and use its best efforts to
cause such Registration Statement to become effective; provided further, that
before filing a Registration Statement or prospectus related thereto (a
"Prospectus") or any amendments or supplements thereto, the Company will furnish
to the Holders covered by such Registration Statement and the underwriters, if
any, copies of all such documents proposed to be filed, which documents will be
subject to the reasonable review of such Holders and underwriters and their
respective counsel, and the Company will not file any Registration Statement or
amendment thereto or any Prospectus or any supplement thereto to which the
holders of a majority of the Registrable Securities covered by such Registration
Statement or the underwriters, if any, shall reasonably object;
(b) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep each Registration Statement effective for the applicable period, or such
shorter period which will terminate when all Registrable Securities covered by
such Registration Statement have been sold; cause each Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus; the Company shall not be deemed to have used its best efforts to
keep a Registration Statement effective during the applicable period if it
voluntarily takes any action that would result in selling Holders covered
thereby not being able to sell such Registrable
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Securities during that period unless such action is required under applicable
law, provided that the foregoing shall not apply to actions taken by the Company
in good faith and for valid business reasons, including, without limitation, the
acquisition or divestiture of assets, so long as the Company promptly thereafter
complies with the requirements of Section 2.3(k) below, if applicable;
(c) notify the selling Holders and the managing underwriters, if any,
promptly, and (if requested by any such person or entity) confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or post-effective
amendment has been filed, and, with respect to the Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any request
by the Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose, (D) if at any
time the representations and warranties of the Company contemplated by Section
2.3(n) below cease to be true and correct, (E) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (F) of the happening of any
event which makes any statement made in the Registration Statement, the
Prospectus or any document incorporated therein by reference untrue or which
requires the making of any changes in the Registration Statement, the Prospectus
or any document incorporated therein by reference in order to make the
statements therein not misleading;
(d) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(e) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporate in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein relating to the plan of distribution with respect to such Registrable
Securities, including, without limitation, information with respect to the
number of Registrable Securities being sold to such underwriters, the purchase
price being paid therefor by such underwriters and with respect to any other
terms of the underwritten offering of the Registrable Securities to be sold in
such offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(f) furnish to each managing underwriter and, if requested by the
holders of a majority of the Registrable Securities being sold, to each selling
Holder, without charge, at least one signed copy of the Registration Statement
and any amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including those
incorporated by reference);
(g) deliver to each selling Holder and the underwriters, if any,
without charge, as many copies of the Prospectus (including each preliminary
prospectus) and any
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amendment or supplement thereto as such Holder and underwriters may reasonably
request; the Company consents to the use of each Prospectus or any amendment or
supplement thereto by each of the selling Holders and the underwriters, if any,
in connection with the offering and sale of the Registrable Securities covered
by such Prospectus or any amendment or supplement thereto;
(h) prior to any public offering of Registrable Securities, register
or qualify or cooperate with the selling Holders, the underwriters, if any, and
their respective counsel in connection with the registration or qualification of
such Registrable Securities for offer and sale under the securities or "Blue
Sky" laws of such jurisdictions as any seller or underwriter reasonably requests
in writing, considering the amount of Registrable Securities proposed to be sold
in each such jurisdiction, and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the Registration Statement; provided, however, that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject;
(i) cooperate with the selling Holders and the managing underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any restrictive
legends and in such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
Registrable Securities to the underwriters;
(j) use its best efforts to cause the Registrable Securities covered
by the applicable Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof or the underwriters, if any, to consummate the
disposition of such Registrable Securities;
(k) upon the occurrence of any event contemplated by Section 2.3(c)(F)
above, prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Securities, the Prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading;
(1) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed, or cause such Registrable Securities to
be authorized for trading on the NASDAQ National Market System if any similar
securities issued by the Company are then so authorized, if requested by the
holders of a majority of such Registrable Securities or the managing
underwriters, if any;
(m) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the applicable Registration Statement;
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(n) enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith in order to facilitate
the disposition of such Registrable Securities as shall be reasonably necessary,
and in connection therewith, (A) make such representations and warranties to the
selling Holders and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary underwritten
offerings; (B) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the holders of a majority
of the Registrable Securities being sold) addressed to each selling Holder and
the underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be reasonably
requested by such Holders and underwriters; (C) obtain "cold comfort" letters
and updates thereof from the Company's independent certified public accountants
addressed to the underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters by
underwriters in connection with primary underwritten offerings; (D) if an
underwriting agreement is entered into, the same shall set forth in full the
indemnification provisions and procedures set forth in Section 2.6 below with
respect to all parties to be indemnified pursuant to said Section; and (E) the
Company shall deliver such documents and certificates as may be requested by the
holders of a majority of the Registrable Securities being sold and the managing
underwriters, if any, to evidence compliance with Section 2.3(c)(F) above and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement or as and to the extent required
thereunder;
(o) make available for inspection during normal business hours by a
representative of the holders of a majority of the Registrable Securities, any
underwriter participating in any disposition pursuant to such Registration, and
any attorney or accountant retained by the representative or underwriter, all
financial and other records, and pertinent corporate documents of the Company,
and cause the Company's officers, directors and employees to supply all
information reasonably requested by any such representative, underwriter,
attorney or accountant in connection with such Registration Statement; provided,
however, that any records, information or documents that are designated by the
Company in writing as confidential shall be kept confidential by such persons
unless disclosure of such records, information or documents is required by court
or administrative order or any regulatory body having jurisdiction;
(p) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make earnings statements satisfying the
provisions of Section 11(a) of the Securities Act generally available to its
security holders no later than 45 days after the end of any 12-month period (or
90 days, if such period is a fiscal year) (A) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in a
firm or best efforts underwritten offering, or (B) if not sold to underwriters
in such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement, which statements shall cover said 12-month periods; and
(q) promptly prior to the filing of any document that is to be
incorporated by reference into any Registration Statement or Prospectus (after
initial filing of the Registration Statement), provide copies of such document
to counsel to the selling Holders and to
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the managing underwriters, if any, make the Company's representatives available
for discussion of such document and make such changes in such document prior to
the filing thereof as counsel for such selling Holders or underwriters may
reasonably request.
The Company may require each seller of Registrable Securities as to which
any Registration is being effected to furnish to the Company such information
regarding the proposed distribution of such securities as the Company may from
time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 2.3(c)(F), such holder
will forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement until such holder's receipt of copies of the supplemented
or amended Prospectus as contemplated by Section 2.3(k), or until it is advised
in writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus, and, if so directed by the
Company, such holder will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such holder's possession, of
the Prospectus covering such Registrable Securities. In the event the Company
shall give any such notice, the three month time period referred to in 2.2(a)
shall be extended by the number of days during the period from and including the
date of the giving of such notice to and including the date when each seller of
Registrable Securities covered by such Registration Statement shall have
received the copies of the supplemental or amended prospectus contemplated by
Section 2.3(c)(F) or the Advice.
2.3. Restrictions on Public Sale.
(a) Public Sale by Stockholders and Holders. To the extent not
inconsistent with applicable law, (i) each Stockholder agrees not to effect any
public sale or distribution of Shares, including a sale pursuant to Rule 144 (or
any similar provision then in force) under the Securities Act, during the 90-day
period (or such shorter period as may be agreed to by the managing underwriter
or underwriters) following a Qualified IPO, and (ii) each Holder whose
Registrable Securities are included in a Registration Statement hereunder, if
requested by the managing underwriter or underwriters for such Registration,
agrees not to effect any public sale or distribution of Registrable Securities,
including a sale pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act, during the 15 business days prior to, and during the
90-day period (or such shorter period as may be agreed to by such underwriter or
underwriters) beginning on, the effective date of a Registration Statement
pursuant to such Piggyback Registration (except as part of such Piggyback
Registration).
(b) Public Sale by the Company. If requested by the managing
underwriter or underwriters for any underwritten Registration, (i) the Company
will not effect any public sale or distribution of Common Stock (or securities
convertible into or exchangeable or exercisable for Common Stock) for its own
account during the 15 business days prior to, and during the 90-day period
beginning on, the effective date of such Registration, and (ii) the Company will
use its reasonable efforts to cause each other holder of Common Stock (or
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securities convertible into or exchangeable for, or options to purchase, Common
Stock) purchased from the Company at any time after the date of this Agreement
(other than in a registered public offering) to agree not to effect any public
sale or distribution of any such securities during the period described in (i)
above (except as part of such Registration, if otherwise permitted).
(c) Other Registrations. If the Company has previously filed a
Registration Statement with respect to Registrable Securities, and if such
previous Registration has not been withdrawn or abandoned, the Company will not
file or cause to be effected any other registration of any of its Common Stock
(or securities convertible into or exchangeable for, or options to purchase,
Common Stock) under the Securities Act (except on Form S-8 or any similar
successor form), whether on its own behalf or at the request of any holder or
holders of Common Stock (or securities convertible into or exchangeable or
exercisable for Common Stock), until a period of at least three months has
elapsed from the effective date of such previous Registration; provided,
however, that if the holders of 50% or more of the aggregate number of
Registrable Securities included in such previous Registration shall agree in
writing, such period may be shortened by the Company.
2.4. Registration Expenses. All expenses incident to the Company's
performance of or compliance with the provisions of this Article II regarding
Piggyback Registration will be borne by the Company, including, without
limitation, all registration and filing fees, the fees and expenses of the
counsel and accountants for the Company (including the expenses of any "cold
comfort" letters and special audits required by or incident to the performance
of such persons), all other costs and expenses of the Company incident to the
preparation, printing and filing under the Securities Act of the Registration
Statement (and all amendments and supplements thereto) and furnishing copies
thereof and of the Prospectus included therein, the costs and expenses incurred
by the Company in connection with the qualification of the Registrable
Securities under the state securities or "Blue Sky" laws of various
jurisdictions, the costs and expenses associated with filings required to be
made with the NASD (including, if applicable, the fees and expenses of any
"qualified independent underwriter" and its counsel as may be required by the
rules and regulations of the NASD), the costs and expenses of listing the
Registrable Securities for trading on a national securities exchange or
authorizing them for trading on the NASDAQ National Market System and all other
costs and expenses incurred by the Company in connection with any Piggyback
Registration hereunder; provided, however, that, except as otherwise provided in
Section 2.6 below, the Company shall not bear the costs and expenses of any
selling Holder for underwriters' commissions, brokerage fees or transfer taxes,
or the fees and expenses of any counsel, accountants or other representative
retained by any selling Holder.
2.5. Indemnification.
(a) Indemnification by the Company. The Company agrees to indemnify,
to the full extent permitted by law, each Holder, its officers, directors and
agents and each person who controls such Holder within the meaning of the
Securities Act and the Exchange
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Act (each, an "Indemnified Holder"), against all losses, claims, damages,
liabilities and expenses caused by any untrue or alleged untrue statement of a
material fact contained in any Registration Statement, Prospectus or preliminary
Prospectus, or any omission or alleged omission to state therein a material fact
necessary to make the statements therein (in the case of a Prospectus or any
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, except to the extent that such untrue statement or
omission is caused by any information with respect to such Indemnified Holder
furnished in writing to the Company by such Indemnified Holder or its
representative expressly for use therein. The Company will also indemnify
underwriters, selling brokers, dealer managers and similar securities industry
professionals participating in the distribution, their officers and directors
and each person who controls such persons (within the meaning of the Securities
Act) to the same extent as provided above with respect to Indemnified Holders;
provided, however, that if pursuant to an underwritten public offering of
Registrable Securities, the Company and any underwriters enter into an
underwriting or purchase agreement relating to such offering that contains
provisions relating to indemnification and contribution between the Company and
such underwriters, such provisions shall be deemed to govern indemnification and
contribution as between the Company and such underwriters.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration, each Holder participating therein will furnish
to the Company in writing such information with respect to the Holder as the
Company reasonably requests for use in connection with any Registration
Statement, Prospectus or preliminary Prospectus, and agrees to indemnify, to the
full extent permitted by law, the Company, the directors and officers of the
Company signing the Registration Statement and each person who controls the
Company (within the meaning of the Securities Act and the Exchange Act) against
any losses, claims, damages, liabilities and expenses resulting from any untrue
statement of a material fact or any omission to state a material fact required
to be stated therein or necessary to make the statements in the Registration
Statement, Prospectus or preliminary Prospectus (in the case of the Prospectus
or any preliminary Prospectus, in light of the circumstances under which they
were made) not misleading, to the extent, and only to the extent, that such
untrue statement or omission is caused by any information with respect to the
Holder so furnished in writing by the Holder or its representative specifically
for inclusion therein. In no event shall the liability of any selling Holder
hereunder be greater in amount than the dollar amount of the proceeds received
by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation. The Company shall be entitled to receive indemnities
from underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, to the same extent as
provided above with respect to information with respect to such persons or
entities so furnished in writing by such persons or entities or their
representatives specifically for inclusion in any Registration Statement,
Prospectus or preliminary Prospectus.
(c) Conduct of Indemnification Proceedings. Any person or entity
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party after the receipt by the indemnified party of a written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such indemnified party will claim
indemnification or contribution pursuant to this Agreement; provided, however,
that the failure of any indemnified party to give notice as provided herein
shall not relieve the
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indemnifying party of its obligations under the preceding Section 2.6(a) or
2.6(b), as applicable, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest may exist between
such indemnified and indemnifying parties with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will be required to consent
to the entry of any judgment or to enter into any settlement that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
of a release from all liability in respect of such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel in any one jurisdiction for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
(d) Contribution. If for any reason the indemnification provided for
in the preceding Section 2.6(a) or 2.6(b), as applicable, is unavailable to an
indemnified party as contemplated by such Section, then the indemnifying party,
in lieu of indemnification, shall contribute to the amount paid or payable by
the indemnified party as a result of such loss, claim, damage, liability or
expense in such proportion as is appropriate to reflect not only the relative
benefits received by the indemnified party and the indemnifying party, but also
the relative fault of the indemnified party and the indemnifying party, as well
as any other relevant equitable considerations; provided, however, that no
selling Holder shall be required to contribute in an amount greater than the
difference between the net proceeds received by the Holder with respect to the
sale of Registrable Securities and all amounts already contributed by the Holder
with respect to such claims, including amounts paid for any legal or other fees
or expenses incurred by the Holder.
2.6. Rule 144. The Company agrees that at all times after it has filed a
registration statement pursuant to the requirements of the Securities Act
relating to any class of equity securities of the Company, it will file in a
timely manner all reports required to be filed by it pursuant to the Securities
Act and the Exchange Act and will take such further action as any Holder may
reasonably request in order that such Holder may effect sales of Registrable
Securities pursuant to Rule 144. At any reasonable time and upon request of a
Stockholder, the Company will furnish such Stockholder and others with such
information as may be necessary to enable the Stockholder to effect sales of
Common Stock pursuant to Rule 144 under the Securities Act and will deliver to
such Stockholder a written statement as to whether it has complied with such
requirements. Notwithstanding the foregoing, the Company may deregister any
class of its equity securities under Section 12 of the Exchange Act or suspend
its duty to file reports with respect to any class of its securities pursuant to
Section 15(d) of the Exchange Act if it is then permitted to do so pursuant to
the Exchange Act and the rules and regulations thereunder.
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2.7. Participation in Underwritten Registrations. No Holder may participate
in any underwritten registration hereunder unless such Holder (i) agrees to sell
its Registrable Securities on the basis provided in any underwriting
arrangements approved by the Company, and (ii) accurately completes in a timely
manner and executes all questionnaires, powers of attorney, underwriting
agreements and other documents customarily required under the terms of such
underwriting arrangements.
ARTICLE III.
MISCELLANEOUS
3.1. Legend. In addition to any legends required by federal or state
securities laws, the certificates representing the Shares shall bear the
following legend:
"The securities represented by this certificate are subject to certain
restrictions on transfer and voting set forth in a Stockholder Agreement dated
as of ___, 1999. A copy of such Agreement may be obtained from the Company upon
request."
Each of the parties hereto agrees that it will not transfer any Shares without
complying with each of the restrictions set forth herein and agrees that in
connection with any such transfer it will, if requested by the Company, deliver
at its expense to the Company an opinion of counsel (including in-house or
special counsel), in form and substance reasonably satisfactory to the Company
and counsel for the Company, that such transfer is not in violation of the
securities laws of the United States of America or any state thereof.
3.2. Transferees; Additional Restriction on Transfer. Each transferee of
Shares from an Investor or a subsequent transferee (including the transferee in
a transfer from one Investor to another Investor) shall take such Shares subject
to the same restrictions as existed in the hands of the transferor. Each
transferee of an Investor or a subsequent transferee shall be entitled to the
registration rights provided under Article II hereof. Shares sold to the public
pursuant to an effective Registration Statement shall no longer be subject to
any of the provisions of this Agreement.
3.3. Specific Performance, Etc. The Company and each Stockholder, in
addition to being entitled to exercise all rights provided herein, in the
Company's Certificate of Incorporation or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Each party agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agrees to waive the defense in any action for
specific performance that a remedy at law would be adequate.
3.4. Notices. All notices, requests, demands and other communications which
are required or may be given under this Agreement shall be in writing and shall
be deemed to have been duly given when received if personally delivered; when
transmitted if transmitted by telecopy, electronic or digital transmission
method; the day after it is sent, if sent for next day
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delivery to a domestic address by recognized overnight delivery service (e.g.,
Federal Express); and upon receipt, if sent by certified or registered mail,
return receipt requested. In each case notice shall be sent to:
If to an Investor, to the address set forth in Schedule I hereto
If to the Company, addressed to:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇ ▇▇▇▇▇, Esq.
or to such other place and with such other copies as either party may designate
as to itself by written notice to the others.
3.5. Entire Agreement: Amendments and Waivers. This Agreement constitutes
the entire agreement among the parties pertaining to the subject matter hereof
and supersedes all prior agreements, understandings, negotiations and
discussions, whether oral or written, of the parties hereto. The provisions of
this Agreement, including the provisions of this sentence, may not be amended,
modified or supplemented, and waivers of or consents to departures from the
provisions hereof may not be given unless approved by the Company in writing and
the Company has obtained the written consent of Stockholders holding at least
50% of the then outstanding Shares. This Agreement may be amended, modified,
waived or supplemented only by a written instrument executed by all the parties
hereto that are required to execute the same. No action taken pursuant to this
Agreement, including, without limitation, any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party taking such
action. The waiver by any party hereto of a breach of any provision of this
Agreement shall not operate or be construed as waiver of any preceding or
succeeding breach and no failure by any party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's rights or privileges
hereunder or shall be deemed a waiver of such party's rights to exercise the
same at any subsequent time or times hereunder.
3.6. Termination. If not terminated sooner pursuant to the terms hereof,
Article II of this Agreement (regarding registration rights) shall terminate and
cease to be of any further force or effect upon the Company's merger with and
into another corporation or other entity where, upon consummation of the merger,
the holders of the Company's voting stock
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immediately prior to the merger will hold less than 50% of the voting stock of
the surviving corporation immediately after the merger. If not terminated sooner
pursuant to the terms hereof Article II of this Agreement (regarding
registration rights) shall terminate and cease to be of any further force or
effect upon the Company's merger with and into another corporation where, in
connection with the merger, the Shares are exchanged exclusively for cash and/or
shares of capital stock or other securities that are publicly traded on a
national securities exchange or authorized for trading on the NASDAQ National
Market System.
3.7. Recapitalizations, Exchange, Etc. Affecting the Company's Stock. The
provisions of this Agreement shall apply, to the full extent set forth herein
with respect to the Shares, to any and all shares of capital stock of the
Company that may be issued in respect of, in exchange for, or in substitution of
the Shares and shall be appropriately adjusted for any stock dividends, splits,
reverse splits, combinations, recapitalizations and the like occurring after the
date hereof.
3.8. Jurisdiction; Mediation; Attorneys' Fees.
(a) Jurisdiction. Each party hereto agrees that any and all claims,
grievances, demands, controversies, causes of action, or disputes of any nature
whatsoever (including but not limited to tort and contract claims, and claims
upon any law, statute, order or regulation) (hereinafter "Claims") arising out
of in connection with or in relation to (i) the interpretation, performance or
breach of this Agreement, or (ii) any relationship before, at the time of
entering into, during the term of, or upon or after expiration or termination of
this Agreement, between the parties hereto, shall be brought in the United
States District Court for the Central District of California or, if such court
does not have jurisdiction or will not accept jurisdiction, in any court of
general jurisdiction in the County of Orange, State of California. Each party
hereto unconditionally and irrevocably consents to the jurisdiction of any such
court over any Claims and waives any objection which such party may have to the
laying of venue of any Claims in any such court.
(b) Attorneys' Fees. If a party brings a Claim in an action before a
court described in Section 3.8(a), the prevailing party in such action shall be
entitled to recover its costs and expenses, including, without limitation,
reasonable attorneys' fees, incurred in connection with such action, including
any appeal of such action.
3.9. Multiple Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.10. Headings. The headings of the Articles and Sections herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
3.11. Governing Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of _, without regard to
principles of conflict of laws.
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3.12. Construction. Differences in language as between similar provisions
covering similar matters may reflect differences in style rather than a
different substantive intent and should be construed accordingly.
3.13. Expenses. Except as otherwise specified in this Agreement, each party
hereto shall pay its own legal, accounting, out-of-pocket and other expenses
incident to this Agreement and to any action taken by such party in preparation
for carrying this Agreement into effect.
3.14. Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other document or instrument referred to
herein, shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such document or instrument.
3.15. Cumulative Remedies. All rights and remedies of either party hereto
are cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
IN WITNESS WHEREOF, the parties have executed this Stockholder Agreement as
of the day and year first written above.
▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC., a Colorado corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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IN WITNESS WHEREOF, the parties have executed this Stockholder Agreement as
of the day and year first written above.
Accepted and agreed to:
------------------------------------
Name of Stockholder
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
No. of Shares:
---------------------
Name and Address
of Stockholder
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Schedule 1
Names and Addresses of Stockholders
Name and Address
of Stockholder
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