SHAREHOLDERS AGREEMENT, dated as of February 24, 2000, (the "Agreement")
by and among ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ (such individual, together with any successor,
being the "Contessa Nominee"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. Case and ▇▇▇▇▇ ▇.
▇▇▇ (collectively and together with any successors, the "Fullcomm Nominees" and,
each, a "Fullcomm Nominee"), Viking Investment Group II, Inc. ("Viking"),
Parenteau Corporation ("Parenteau"), Contessa Corporation ("Contessa"), the
three principal stockholders, Messrs. ▇▇▇▇▇▇▇, ▇▇▇ and ▇▇▇▇▇▇▇▇▇▇, of Fullcomm
(as hereinafter defined) (collectively, the "Principal Stockholders" and, each,
a "Principal Stockholder") whose signatures appear beside their names below, and
the "Ancillary Stockholders" as hereinafter defined, who consist of both natural
and legal persons whose signatures appear beside, or on behalf of, their
respective names below.
WHEREAS, the Principal Stockholders have "beneficial ownership" as that
term is defined under the Securities Exchange Act of 1934, as amended, (the
"Exchange Act") of an aggregate of 4,500,000 shares of common stock, no par
value per share, ("Fullcomm Shares") of Fullcomm, Inc., a New Jersey
corporation, ("Fullcomm") in the amounts set forth opposite their signatures;
WHEREAS, Viking and Parenteau are the largest stockholders of Contessa
prior to the Merger referred to below (Viking and Parenteau collectively being
the "Contessa Principal Stockholders");
WHEREAS, the Contessa Principal Stockholders wish to ensure that they will
have, at all times, a respective Contessa Nominee on the Board of Directors of
Contessa, and the Principal Stockholders wish to ensure that they will have, at
all times, respective Fullcomm Nominees on the Board of Directors of Contessa;
WHEREAS, ▇▇▇▇▇▇▇ ▇. Case, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
Securities, Inc. and ▇.▇. ▇▇▇▇▇ and Company have, as the case may be, entered
into the Case Employment Agreement, the ▇▇▇▇▇▇▇▇▇ Advisory Agreement, the
Tashenberg Advisory Agreement, the Grace Consulting Agreement and the Grace
Placement Agency Agreement, each as defined in that certain Amended and Restated
Merger Agreement and Plan of Merger dated as of January 28, 2000 (the "Merger
Agreement"), and these various agreements (which comprise some, but not all, of
the "Ancillary Agreements" under the Merger Agreement) involve the issuance of
common stock, $.0001 par value per share, of Contessa ("Contessa Common Stock")
which is intended to be restricted for a three year period as an essential
condition of the Merger;
WHEREAS, the recipients of such restricted stock under the Ancillary
Agreements are referred to herein as the "Ancillary Stockholders" and it is
desired to make the share transfer restrictions set forth in Article II hereof
applicable to such Ancillary Stockholders; and
WHEREAS, pursuant to the Merger Agreement, Fullcomm will be merged with
and into Fullcomm Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Contessa, also a Delaware
corporation, and the stockholders of Fullcomm shall receive one share of
Contessa Common Stock for each share of common stock they currently hold in
Fullcomm, and whereas it is a condition precedent, under the Merger Agreement,
that this Agreement be entered into.
NOW, THEREFORE, in consideration of the mutual promises contained herein,
the parties hereto agree as follows:
ARTICLE I. Agreement to Vote.
1.1 Voting by Principal Stockholders and Principal Contessa Stockholders;
Mutual Agreement to Vote.
Each of the Principal Stockholders agrees that, subject to Article III of
the Merger Agreement, each Principal Stockholder shall vote his respective
Contessa Common Stock, whether now owned or hereafter acquired, for the election
of the Contessa Nominee as a director in accordance with Section 3.3 of the
Merger Agreement at any meeting, whether regular or special, of Contessa's
stockholders at which directors are designated. Each of the Contessa Principal
Stockholders agrees that, subject to Article III of the Merger Agreement, each
Contessa Principal Stockholder shall vote his respective Contessa Common Stock,
whether now owned or hereafter acquired, for the election of the Fullcomm
Nominees as directors in accordance with Section 3.3 of the Merger Agreement at
any meeting, whether regular or special, of Contessa's stockholders at which
directors are designated. Without limiting the generality of the foregoing, the
Principal Stockholders and the Contessa Principal Stockholders agree to take any
and all actions (including, without limitation, nomination, setting of record
dates and the like) and to execute and deliver any and all documents, agreements
and instruments, including, without limitation, proxies, as Viking and Parenteau
shall reasonably request or that the Principal Stockholders shall reasonably
request, so that there shall be at all times a Contessa Nominee and three
Fullcomm Nominees, as the case may be, each sitting as a director of Contessa.
1.2 Special Meeting Upon Default.
In the event of a default under, or a breach of, this Agreement which (in
the reasonable judgment of the Contessa Principal Stockholders or the Principal
Stockholders, as the case may be) materially adversely affects the rights and
privileges bestowed hereunder, Contessa shall, upon the receipt of written
notice from the Contessa Principal Stockholders or the Principal Stockholders,
as the case may be, call a special meeting of the stockholders, all costs of
which shall be borne entirely by Contessa, and (i) the Contessa Principal
Stockholders each agree that they shall vote at such meeting in favor of the
Fullcomm Nominees and (ii) the Principal Stockholders each agree that they shall
at such meeting vote in favor of the Contessa Nominee. Each Contessa Principal
Stockholder and each Principal Stockholder, as the case may be, hereby agrees to
take no action to contravene, limit, prevent, frustrate or terminate the board
election mechanism provided for herein, or to cause the removal of any director
so elected .
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1.3 Preservation of Constituent Documents.
The provisions of Sections 1.1 and 1.2 above are in consonance with the
amendments to the Certificate of Incorporation and Bylaws of Contessa (the
"Constituent Documents") as set forth in the shareholder consents and
Certificate of Merger filed, or to be filed, in connection with the Merger,
attached hereto as Exhibits A and B, and incorporated herein by this reference
(the "Resolutions"). Contessa, the Contessa Principal Stockholders, and the
Principal Stockholders agree that they shall not introduce or vote for, any
amendment, alteration, or change to Contessa's Constituent Documents which would
have the effect of preventing, or hindering the presence of the Contessa
Nominee, or the Fullcomm Nominees, as the case may be, upon Contessa's Board of
Directors. If Contessa, its directors, or the stockholders of Contessa purport
to amend such Constituent Documents, notice shall be given to each Nominee, and
upon any Nominee's written demand therefor, a meeting of the Board of Directors
or a special meeting of the stockholders shall be called and Contessa hereby
agrees to pay all expenses in connection with any such meeting(s), and the
Contessa Principal Stockholders, and the Principal Stockholders, each agree that
they shall vote all of their Contessa Common Stock, whether now owned or
hereafter acquired, for the Constituent Documents to be restored to or retained,
as the case may be, to the form as set forth in the Resolutions.
ARTICLE II. Transfer Restrictions Upon Certain Shares
2.1 Restriction on Transfer of Contessa Common Stock by Principal
Stockholders and Ancillary Stockholders.
During the period commencing on the date hereof and continuing for three
years thereafter, each of the Principal Stockholders, and each of the Ancillary
Stockholders, agrees that he, or it, will not transfer, pledge or assign his, or
its, Contessa Common Stock, or any interest therein.
2.2 Legend on Principal Stockholder Stock Certificates.
Each Principal Stockholder shall submit to the Transfer Agent for the
Contessa Common Stock the certificates evidencing the Contessa Common Stock now
owned by such Principal Stockholder and Contessa shall cause the Transfer Agent
to imprint upon such certificates (or replacement certificates) a restrictive
legend as follows:
"The shares of stock represented by this certificate are subject to all of
the terms of that certain Shareholders Agreement dated February 24, 2000, a copy
of which is on file at the offices of the issuer of this certificate. The shares
are subject to certain voting and transfer restrictions. Any actions taken in
contravention to that Shareholders Agreement shall be null and void."
The terms of such endorsement and restrictions are hereby expressly
consented to and accepted.
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2.3 Legend on Ancillary Stockholder Stock Certificates.
Each Ancillary Stockholder shall submit to the Transfer Agent for the
Contessa Common Stock the certificates evidencing the Contessa Common Stock now
owned by such Ancillary Stockholder and Contessa shall cause the Transfer Agent
to imprint upon such certificates (or replacement certificates) a restrictive
legend as follows:
"The shares of stock represented by this certificate are subject to all of
the terms of that certain Shareholders Agreement dated February 24, 2000, a copy
of which is on file at the offices of the issuer of this certificate. The shares
are subject to certain transfer restrictions. Any actions taken in contravention
to that Shareholders Agreement shall be null and void."
The terms of such endorsement and restrictions are hereby expressly
consented to and accepted.
2.4 Shares of Contessa Principal Stockholders not restricted.
The shares of Contessa Common Stock currently held by the Contessa
Principal Stockholders shall not be subject to the foregoing restrictions upon
sale, and such shares may be sold or transferred in accordance with applicable
requirements under the Securities Act of 1933, as amended, (the "Securities
Act") and applicable rules thereunder, and various "Blue Sky" laws, and shall
not be required to bear any legend hereunder other than a standard Securities
Act legend.
ARTICLE III. Miscellaneous
3.1. Section of Merger Agreement deemed incorporated. Sections 1.3 and 3.3
of the Merger Agreement are hereby deemed to be incorporated herein, as if set
forth in haec verba, in order to effectuate the intent of the parties that the
director representation provisions so incorporated, be given effect throughout
the term of this Agreement.
3.2 Term. This Agreement shall terminate on the earlier to occur of (i)
ten (10) years from the Closing Date or (ii) the date upon which (A) Viking and
its affiliates and Parenteau and its affiliates no longer own, in the aggregate,
five percent (5%) of Contessa Common Stock or (B) the Principal Stockholders and
their respective affiliates no longer own, in the aggregate, five percent (5%)
of Contessa Common Stock. Notwithstanding the foregoing, the transfer
restrictions imposed under Article II hereof shall remain in effect for three
years irrespective of clause (ii) in the preceding sentence.
3.3 Further Assurances. From and after the date of this Agreement, the
parties hereto shall from time to time, at the request of any other party and
without further consideration, do execute and deliver, or cause to be done,
executed and delivered, all such further acts, things and instruments as may be
reasonably
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requested or required more effectively to evidence and give effect to the
transactions provided for in this Agreement.
3.4 Modifications. This Agreement may not be modified or discharged
orally, but only in writing duly executed by the party to be charged.
3.5 Successors and Assigns. All the covenants, stipulations, promises and
agreements in this Agreement shall bind the parties' respective heirs,
successors and assigns, whether so expressed or not.
3.6 Headings. The headings of the various sections of this Agreement are
for convenience of reference only and shall in no way modify any of the terms or
provisions of this Agreement.
3.7 Governing Law and Submission to Jurisdiction. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to instruments made and to be performed entirely within such State.
Notwithstanding the foregoing, each party hereto submits to the non-exclusive
jurisdiction of the federal court for the Southern District of New York, the
federal court for the district of New Jersey, and the state courts of New York
and New Jersey located in New York County and ▇▇▇▇▇▇ County, New Jersey,
respectively.
3.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same document. Facsimile transmission
shall be effective as manual delivery thereof.
3.9 Gender. All pronouns used herein are inserted for convenience only and
shall be applied in the masculine, feminine, or third person as appropriate for
each party signing hereto.
3.10 Defined Terms. Capitalized terms use in this Agreement but not
otherwise defined herein shall have the meanings given to them in the Merger
Agreement.
3.11. Obligations Several and not Joint. Notwithstanding any reference
herein to the Principal Stockholders, the Contessa Principal Stockholders or the
Ancillary Stockholders, all obligations imposed shall be several and not joint,
and there shall be no requirement of joinder of claims, or common proceedings,
in connection with any obligation hereunder, or the enforcement thereof.
3.12 Severability. If any provision of this Agreement is declared invalid,
unlawful, or ineffective, the remaining provisions shall be unaffected and shall
be construed so as to give effect to the intent of the parties as evidenced by
the original, entire Agreement.
3.13 No Requirement of Common Voting by Nominees. The mutual voting
obligations imposed on the Principal Stockholders and the Contessa Principal
Stockholders shall, in no way, obligate, either directly or by inference, either
the Contessa Nominee or the Fullcomm Nominee to act in accordance with
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the wishes of the other Nominee. Each Nominee shall remain free to act
independently and shall not be required to consult with, pre-approve, or reach
consensus with such other Nominee.
IV. Successor Nominees and Mutual Indemnification Provisions
4.1 Successor Nominees. The Contessa Nominee may resign at any time upon
the giving of written notice to Contessa delivered by mail, overnight express,
or facsimile transmission to the address of Contessa at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, tel. ▇▇▇-▇▇▇-▇▇▇▇, fax ▇▇▇-▇▇▇-▇▇▇▇, or at such other
address as Contessa shall have advised the Contessa Nominee. In such instance,
the Contessa Nominee shall be replaced by a successor Contessa Nominee to be
chosen from a list of candidates acceptable to Viking and Parenteau. Each
Fullcomm Nominee may likewise resign upon the giving of notice in a similar
manner, and in such instance, such Fullcomm Nominee shall be replaced by a
successor Fullcomm Nominee chosen from a list of candidates acceptable to two of
the three Principal Stockholders.
4.2. Mutual Indemnification. The Principal Stockholders agree to
indemnify, hold harmless, and reimburse the Contessa Nominee, and the Contessa
Principal Stockholders agree to indemnify, hold harmless, and reimburse the
Fullcomm Nominees, in either case, from any and all losses, liabilities, claims,
actions, damages, fees and expenses for all acts taken or not taken, in
connection with this Agreement and its performance.
[ SIGNATURE PAGES TO FOLLOW ]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date and year first above written.
________________________________ _________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, as original ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as original
Contessa Nominee Fullcomm Nominee
________________________________ _________________________________
▇▇▇▇▇▇▇ ▇. Case, as original ▇▇▇▇▇ ▇. ▇▇▇, as original
Fullcomm Nominee Fullcomm Nominee
THE PRINCIPAL STOCKHOLDERS:
________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually 1,800,000 Fullcomm shares
________________________________
▇▇▇▇▇ ▇. ▇▇▇, individually 1,125,000 Fullcomm shares
________________________________
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually 1,575,000 Fullcomm shares
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THE CONTESSA PRINCIPAL STOCKHOLDERS:
Viking Investment Group II, Inc.
By:__________________________________
Name:
Title:
Parenteau Corporation
By:__________________________________
Name:
Title:
Consented to, and the obligations set forth in Article I are hereby agreed to:
Contessa Corporation
By:__________________________________
Name:
Title:
THE ANCILLARY STOCKHOLDERS:
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_____________________________________
▇▇▇▇▇▇▇ ▇. Case, individually
_____________________________________
▇. ▇▇▇▇▇▇▇ Tashenberg, individually
_____________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, individually
Grace Securities, Inc.
By:__________________________________
Name:
Title:
▇.▇. ▇▇▇▇▇ and Company
By:__________________________________
Name:
Title:
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