SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT, made as of this 31st day of August, 1999
(this "Agreement"), by and among BONUSBOULEVARD, INC., a New York corporation
with offices at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Corporation"), ▇▇▇▇▇ ▇▇▇▇▇, ▇▇., residing at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
#▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, residing at ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("▇▇▇▇▇▇▇▇▇▇▇")(▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇
being herein collectively referred to as the "Shareholders" and individually as
a "Shareholder").
WHEREAS, the Corporation is authorized to issue up to 275,000,000
shares of Class B Common Stock, par value $.0001 per share (the "Common Stock"),
80,000,000 shares of which are currently issued and outstanding;
WHEREAS, the Shareholders own all of the issued and outstanding shares
of the Class B Common Stock of the Corporation, in the amounts set forth on
Exhibit A annexed hereto; and
WHEREAS, the Shareholders and the Corporation desire to regulate the
management of the Corporation, the transfer of the shares of Common Stock now
owned or hereafter acquired by the Shareholders (such shares being hereinafter
referred to as the "Shares"), the purchase by the Corporation and/or the
Shareholders of the Shares in certain circumstances and certain other matters
relating to the Corporation, all in accordance with the terms and subject to the
conditions of this Agreement.
In consideration of the mutual promises and covenants set forth
herein, the parties hereto hereby agree as follows:
1. Representations of the Shareholders.
Each Shareholder represents to and agrees with the other Shareholders
and the Corporation that such Shareholder is the legal holder and beneficial
owner of the Shares currently owned by such Shareholder, that such Shares and
the Shares hereafter acquired by such Shareholder will be owned free and clear
of all liens, claims, charges, options and encumbrances other than restrictions
on transfer under this Agreement, and applicable federal and state securities
laws, and that such Shareholder will have the right to transfer such Shares upon
the terms and subject to the conditions of this Agreement.
2. Corporate Governance and Related Matters.
Each Shareholder hereby agrees, during the term of this Agreement, to
vote the Shares owned by such Shareholder in the following manner:
(a) each of the Shareholders shall vote such Shareholder's Shares so
as to elect ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ as directors of the Corporation. In the event
either ▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇▇ shall be unable or unwilling to serve as a director
of the Corporation or the size of the Board is increased, the Shareholders shall
vote all of their Shares so as to elect such replacement or additional nominees
as the party who is unable to serve shall designate.
(b) each Shareholder shall vote such Shareholder's Shares in favor of
any amendment of the Certificate of Incorporation or By-laws of the Corporation
necessary to permit, effect and further carry out the transactions contemplated
hereby. In addition, ▇▇▇▇▇▇▇▇▇▇▇ agrees to vote his Shares as ▇▇▇▇▇ shall
designate in connection with any other corporate action for which shareholder
approval is sought or required.
3. Restriction on Transfer of Shares.
(a) The Corporation and the Shareholders wish to avoid the transfer of
Shares to outside third parties who do not have a knowledge of the Corporation's
business and who may disrupt the management of the Corporation. Each Shareholder
hereby agrees that such Shareholder shall not, as long as this Agreement is in
effect, directly or indirectly sell, assign, mortgage, hypothecate, transfer,
pledge, lien, encumber, give or in any way otherwise dispose of (collectively, a
"Transfer") any of the Shares (or any interest therein) except as may be
expressly permitted by this Agreement. The Corporation shall not transfer on its
books any certificates for the Shares nor issue any certificate in lieu of the
Shares unless, in the opinion of counsel to the Corporation, there has been
compliance with all of the material conditions hereof affecting the Shares. Any
purported disposition of any Shares made other than in full compliance with the
terms of this Agreement shall be null and void and of no force or effect, and
shall not be recognized by the Corporation.
(b) Notwithstanding the general prohibition on Transfers contained in
Section 3(a) hereof, the Corporation and the Shareholders agree that any of the
following Transfers shall be permitted under this Agreement:
(i) a Transfer to a trust or custodial account for the benefit of
Shareholder or the spouse or children of any Shareholder (the "Trust"),
provided that such Shareholder is trustee of the Trust and retains sole
voting power with respect to the Shares held in trust and such Trust
documents provide for compliance with the provisions of this Agreement;
(ii) a Transfer in accordance with Sections 4, 5 or 6 hereof; or
(iii) a Transfer by ▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇▇▇ of not more than one
percent (1%) of the Shares owned by them.
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(c) Upon the execution of this Agreement, each Shareholder shall
surrender to the Corporation his stock certificate representing the Shares,
which stock certificate shall be imprinted with the following legend:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and cannot be
offered or sold except pursuant to an effective registration statement
under such Act or an exemption from registration under such Act which,
in the opinion of counsel for the holder, which counsel and opinion
are reasonably satisfactory to counsel for the corporation, is
available.
The shares represented hereby are also subject to the terms of a
Shareholders' Agreement, dated as of August 31, 1999, by and among
BonusBoulevard Inc., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇., and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, a
copy of which is on file at the principal office of the corporation,
and any sale, pledge, gift, transfer, assignment, encumbrance or other
disposition of the shares represented by this certificate in violation
of said Agreement shall be void and of no effect."
(d) As a further condition of any Transfer pursuant to this Agreement,
each transferee shall, prior to such Transfer, agree in writing to be bound by
all of the provisions of this Agreement and no such transferee shall be
permitted to make any Transfer that the original transferor was not permitted to
make.
4. Right of First Refusal.
(a) In the event that (i) either Shareholder shall receive a bona fide
written offer or enter into an agreement (the "Offer") for the purchase of his
Shares (as hereinafter defined) or (ii) either Shareholder shall receive an
Offer for the purchase of some but not all of the Shares owned by such
Shareholder, in either case from an independent third party (the "Outside
Party"), such Shareholder (the "Offering Shareholder") shall, within three (3)
business days of receipt of the Offer by the Offering Shareholder, give notice
(the "Option Notice") to the Corporation and the other Shareholder (the
"Remaining Shareholder") containing the name and address of the Outside Party
and accompanied by a copy of the Offer or a summary thereof. The Shares subject
to such Offer are referred to herein as the "Offered Shares."
(b) Upon the giving by an Offering Shareholder of an Option Notice,
the Remaining Shareholder shall have the right (the "First Refusal Right") to
purchase, at the price less a discount of 15%, on the terms and subject to the
conditions specified in the Offer, any or all of the Offered Shares covered by
the Option Notice. Within twenty (20) days after the date of the Option Notice,
the Remaining Shareholder shall notify the Offering Shareholder and the
Corporation (the "First Refusal Notice") whether and to what extent the
Remaining Shareholder intends to exercise the First Refusal Right. Failure to
deliver the First Refusal Notice within such period shall constitute a waiver of
the First Refusal Right.
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(c) In the event that the Remaining Shareholder does not exercise the
First Refusal Right as to all of the Offered Shares, the Corporation, to the
extent permitted by law, shall have the right (the "Repurchase Right") to
purchase, at the price, on the terms and subject to the conditions specified in
the Offer, all or part of the remaining Offered Shares covered by the Option
Notice. Within thirty (30) days after the date of the Option Notice, the
Corporation shall notify each Shareholder (the "Repurchase Notice") whether and
to what extent it intends to exercise the Repurchase Right. Failure to deliver
the Repurchase Notice within such period shall constitute a waiver of the
Repurchase Right.
(d) Each Offering Shareholder shall have the obligation to sell to the
Remaining Shareholder and/or the Corporation, as the case may be, such Offered
Shares as are covered by the notices referred to in Sections 4(b) and 4(c)
hereof, and the Offering Shareholder may sell the balance of the Offered Shares
(or all of the Offered Shares if no such notices have been given) to the Outside
Party on terms not more favorable to such Outside Party than those contained in
the Offer. In the event that such terms are more favorable or if such sale to
the Outside Party is not consummated within the time period specified in Section
4(e) hereof, the Offered Shares shall again be subject to the restrictions
contained in this Agreement.
(e) The closing for any purchase of Shares by the Remaining
Shareholder and/or the Corporation shall be held at 10:00 a.m. at the offices of
the Corporation on the sixtieth (60th) day after the date of the Option Notice
or at such other time and place as the parties shall agree. The closing of a
purchase of Shares by an Outside Party shall occur within sixty (60) days after
the giving of the Option Notice. At the closing, the Remaining Shareholder, the
Corporation or the Outside Party, as the case may be, shall pay for the Shares
in accordance with the terms of the Offer, the Offering Shareholder shall
deliver certificates representing the Shares free and clear of all liens,
charges and encumbrances (other than those set forth herein or in any
subscription agreement relating to the Shares) and properly endorsed for
transfer and, if such Shares are being purchased by an Outside Party, such
person shall agree to be bound by the terms of this Agreement in accordance with
Section 3(d) hereof.
5. Rights of Inclusion; Rights to Compel Sale.
(a) Rights of Inclusion (Tag Along).
(i) Neither Shareholder shall, in any one transaction or any
series of similar transactions, directly or indirectly sell to any third party
or otherwise dispose of more than fifty percent (50%) of the Shares owned by him
unless the terms and conditions of such sale or other disposition to such third
party shall include an offer to the other Shareholder (the "Tag Along
Shareholder") to include, at the Tag Along Shareholder's option, in the sale or
other disposition to the third party, the Tag Along Shareholder's ratable share
of the Shares covered by such disposition. If either Shareholder receives a bona
fide offer from a third party to purchase or otherwise acquire more than fifty
percent (50%) of the Shares owned by him, such
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Shareholder shall then cause the third party's offer to be reduced to writing
(which writing shall include an offer to purchase or otherwise acquire Shares
from the Tag Along Shareholder according to the terms and conditions of Section
5(a)(ii) below) and shall send written notice of the third party's offer (the
"Inclusion Notice") to the Tag Along Shareholder. The Inclusion Notice shall be
accompanied by a true and correct copy of the third party's offer. At any time
within thirty (30) days after receipt of the Inclusion Notice, the Tag Along
Shareholder may accept the offer included in the Inclusion Notice for up to his
proportionate share by furnishing written notice of such acceptance to the
selling Shareholder and delivering to the selling Shareholder the certificate or
certificates representing the Shares to be sold or otherwise disposed of
pursuant to such offer by the Tag Along Shareholder (which certificate or
certificates shall be held in escrow pending the consummation of the sale),
together with a limited power-of-attorney authorizing the selling Shareholder to
sell or otherwise dispose of such Shares pursuant to the terms of such third
party's offer.
(ii) The purchase from the Tag Along Shareholder pursuant to this
Section 5(a) shall be on the same terms and conditions, including the per Share
price (which shall in all events be paid directly to the Tag Along Shareholder
by bank cashier's or certified check or by wire transfer of immediately
available funds) and the date of sale or other disposition, as are received by
the selling Shareholder and stated in the Inclusion Notice provided to the Tag
Along Shareholder by the selling Shareholder.
(iii) Simultaneously with the consummation of the sale or other
disposition of the Shares of the selling Shareholder and the Tag Along
Shareholder to the third party pursuant to the third party's offer, the selling
Shareholder shall notify the Tag Along Shareholder of the consummation of the
sale, shall cause the purchaser to remit directly to the Tag Along Shareholder
the total consideration for the Tag Along Shareholder's Shares sold or otherwise
disposed of pursuant thereto and the selling Shareholder shall furnish such
other evidence of the completion and time of completion of such sale or other
disposition and the terms thereof as may be reasonably requested by the Tag
Along Shareholder.
(iv) If within thirty (30) days after the receipt of the Inclusion
Notice, the Tag Along Shareholder has not accepted the offer contained in the
Inclusion Notice, The Tag Along Shareholder shall be deemed to have waived any
and all rights with respect to the sale or other disposition of the Shares
described in the Inclusion Notice and the selling Shareholder shall have sixty
(60) days after receipt of the Inclusion Notice in which to sell or otherwise
dispose of not more than the amount of Shares described in the Inclusion Notice,
on terms not more favorable to the selling Shareholder than were set forth in
the Inclusion Notice. If the sale or disposition is not consummated within sixty
(60) days, the selling Shareholder shall comply with the provisions of this
Section 5(a) for all proposed future sales or dispositions that are described in
Section 5(a)(i). If, at the end of ninety (90) days following the receipt of the
Inclusion Notice, the selling Shareholder has not completed the sale or other
disposition of his Shares and those of The Tag Along Shareholder in accordance
with the terms of the third party's offer, the selling Shareholder shall return
all certificates of The Tag Along Shareholder representing the Shares
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which The Tag Along Shareholder delivered for sale or other disposition pursuant
to this Section 5(a), and all the restrictions on sale or other disposition
contained in this Agreement with respect to Shares owned by the selling
Shareholder shall again be in effect.
(b) Rights to Compel Sale (Drag Along).
(i) If ▇▇▇▇▇ proposes to sell all of the Shares then owned by him
to a third party in an arms-length transaction in which the consideration to be
received for such Shares consists of cash and/or marketable securities, then
▇▇▇▇▇ may require ▇▇▇▇▇▇▇▇▇▇▇ to sell all of the Shares owned by ▇▇▇▇▇▇▇▇▇▇▇
(the "Designated Shares") to the third party for the same consideration per
Share and otherwise on the same terms and conditions upon which ▇▇▇▇▇ is selling
his Shares pursuant to the provisions set forth below.
(ii) ▇▇▇▇▇ shall send written notice of the exercise of such
rights pursuant to this Section 5(b) to ▇▇▇▇▇▇▇▇▇▇▇, setting forth the
consideration per Share to be paid by the third party and the other terms and
conditions of such transaction. Within twenty (20) days following the date of
the notice, ▇▇▇▇▇▇▇▇▇▇▇ shall deliver to ▇▇▇▇▇ certificates representing the
Designated Shares held by him duly endorsed, together with all other transfer
documents reasonably required to be executed in connection with such
transaction. In the event that ▇▇▇▇▇▇▇▇▇▇▇ should fail to deliver such
certificates to ▇▇▇▇▇, the Corporation shall cause the books and records of the
Corporation to show that such Shares are bound by the provisions of this Section
5(b) and that such Shares shall be transferred only to the third party upon
surrender for transfer by the holder thereof.
(iii) If, within ninety (90) days after ▇▇▇▇▇ gives such notice,
the sale of all of ▇▇▇▇▇▇▇▇▇▇▇'▇ Shares in accordance herewith has not been
completed, ▇▇▇▇▇ shall return to ▇▇▇▇▇▇▇▇▇▇▇ all certificates representing
Shares that ▇▇▇▇▇▇▇▇▇▇▇ delivered for sale, and all the restrictions on sale or
other disposition contained in the Agreement with respect to Shares owned by
▇▇▇▇▇ shall again be in effect.
(iv) Simultaneously with the consummation of the sale of Shares of
▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇▇ pursuant to this Section 5(b), ▇▇▇▇▇ shall notify
▇▇▇▇▇▇▇▇▇▇▇ of the consummation of the sale, shall cause the purchaser to remit
directly to ▇▇▇▇▇▇▇▇▇▇▇ the total consideration for ▇▇▇▇▇▇▇▇▇▇▇'▇ Shares sold or
otherwise disposed of pursuant thereto and shall furnish such other evidence of
the completion and time of completion of such sale or other disposition and the
terms thereof as may be reasonably requested by ▇▇▇▇▇▇▇▇▇▇▇.
6. Right to Purchase.
(a) Upon the death of either Shareholder (such deceased Shareholder
being referred to as the "Former Shareholder"), the other Shareholder shall be
obligated to purchase, and the representatives or estate of the Former
Shareholder shall be obligated to sell, fifty percent (50%) of the Shares owned
by such Former Shareholder, or, at the option of the representatives
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or estate of the Former Shareholder exercised in writing to the purchasing
Shareholder within ninety (90) days of the date of death of the Former
Shareholder, all of the Shares owned by such Former Shareholder for the Section
6 Purchase Price (as hereinafter defined) and in accordance with the procedures
set forth in Section 4 hereof and this Section 6.
(b) Upon the termination of the employment of either Shareholder by
the Corporation for "Cause", as defined in the employment agreement between such
Shareholder and the Corporation as then in effect, (such terminated Shareholder
being referred to as the "Terminated Shareholder"), the other Shareholder shall
have the right, but not the obligation, to purchase, and Terminated Shareholder
shall be obligated to sell, any or all of the Shares owned by such Terminated
Shareholder for the Section 6 Purchase Price, less a discount of 15%, in
accordance with the procedures set forth in Section 4 hereof and this Section 6.
At the option of the purchasing Shareholder payment of the Section 6 Purchase
Price for the Shares purchased pursuant to this Section 6(b) may be made in up
to thirty-six (36) equal monthly installments as determined by the purchasing
Shareholder in his sole discretion, with the first such installment to be paid
at the closing of the purchase of such Shares and the remaining installments to
be paid on the first day of each month thereafter. The obligation to make the
installment payments shall be evidenced by a promissory note bearing interest at
a rate equal to the prime rate of interest set forth in The Wall Street Journal
at the time of issuance and delivery of such promissory note.
(c) In the event that either Shareholder becomes disabled and does not
work for 180 days in any 18 month period, the non-disabled Shareholder shall be
entitled, at his option exercised in writing to the disabled Shareholder within
sixty (60) days of the 180th day of non-work, to purchase, and the disabled
Shareholder shall be obligated to sell, any or all of the Shares owned by such
disabled Shareholder for the Section 6 Purchase Price (as hereinafter defined)
and in accordance with the procedures set forth in Section 4 hereof and this
Section 6. The non-disabled Shareholder shall be entitled to pay the Section 6
Purchase Price to the disabled Shareholder in twelve equal monthly installments
as determined by the purchasing Shareholder in his sole discretion, with the
first such installment to be paid at the closing of the purchase of such Shares
and the remaining installments to be paid on the first day of each month
thereafter. The obligation to make the installment payments shall be evidenced
by a promissory note bearing interest at a rate equal to the prime rate of
interest set forth in The Wall Street Journal at the time of issuance and
delivery of such promissory note.
(d) In the event the other Shareholder does not elect to purchase all
of the Shares owned by the Terminated Shareholder or the disabled Shareholder,
as the case may be, the Corporation shall have the right, but not the
obligation, to purchase, and the Terminated Shareholder or the disabled
Shareholder shall sell, the remaining Shares owned by such Terminated
Shareholder or disabled Shareholder for the Section 6 Purchase Price and in
accordance with the procedures set forth in Section 4(d) hereof and this Section
6. The Corporation shall have the right to pay the Section 6 Purchase Price in
installments as provided in Sections 6(b) and 6(c) with respect to the
purchasing Shareholder.
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(e) The purchase price for the Shares purchased pursuant to this
Section 6 shall be determined by the Shareholders semi-annually. Such
determination shall be on a basis to be determined by the Shareholders. The
determination shall be recorded as a schedule to be attached hereto and made a
part hereof. If for any reason the Shareholders fail to redetermine the purchase
price for any particular six-month period, the last previously stipulated
purchase price shall control. In the event the purchase price has not been
redetermined for three consecutive six-month periods, then the purchase price
shall be equal to the last stipulated price multiplied by a fraction, the
numerator of which is the net asset value per share as of the close of the most
recent six-month period of the Corporation and the denominator of which is the
net asset value per share as of the close of the six-month period of the
Corporation ending immediately prior to the determination of the last stipulated
purchase price, both as reflected on the Corporation's balance sheet prepared by
the Corporation's then engaged independent certified public accountants prepared
in accordance with generally accepted accounting principles consistently
applied. The Shareholders hereby agree that, in the event that the Corporation
consummates an offering of its equity securities yielding aggregate proceeds to
the Corporation of $500,000 or more, the purchase price for the Shares purchased
pursuant to this Section 6 shall be determined by the Shareholders based upon
the valuation assigned to the Corporation by the investors in such equity
financing. The purchase price for the Common Stock purchased pursuant to this
Section 6 is hereinafter referred to as the "Section 6 Purchase Price."
(f) The closing for any purchase of Shares pursuant to this Section 6
shall be held at 10:00 a.m. at the offices of the Corporation on the ninetieth
(90th) day after the date that the remaining Shareholder and/or the Corporation
notifies the representatives of the Former Shareholder or disabled Shareholder
that he or it is exercising his or its right to purchase the Shares pursuant to
this Section 6 or at such other time and place as the parties shall agree. At
the closing, the purchasing Shareholder or the Corporation shall pay for the
Shares in full and the Former Shareholder or disable Shareholder, as the case
may be, shall deliver certificates representing the Shares free and clear of all
liens, charges and encumbrances and properly endorsed for transfer.
7. Insurance.
Either Shareholder, at his option, may purchase and cause to be
maintained life insurance policies in amounts determined by the Shareholder on
the life of the other Shareholder with the Shareholder purchasing such life
insurance named as owner and beneficiary thereof for the purpose of meeting his
obligations under Section 6 hereof. Either Shareholder may, from time to time,
purchase such additional amounts of insurance as he deems appropriate in light
of increases in the book value of the Common Stock of the Corporation. The
Shareholders shall cooperate in connection with the purchase and maintenance of
any such insurance policy, including without limitation, the submission to any
medical examinations reasonably required to obtain and maintain any such policy.
8. Injunctive Relief; Specific Performance.
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Each of the Shareholders acknowledges that his interest in the
Agreement is unique to him, that his Shares cannot be readily purchased or sold
in the open market and that the other Shareholder and the Corporation will be
irreparably damaged in the event of a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by either Shareholder which
damages will not be measurable or compensable in money damages unless this
Agreement shall be specifically enforced. In addition to any other remedy to
which the other Shareholder or the Corporation may be entitled, the other
Shareholder or the Corporation shall be entitled to a preliminary and permanent
injunction, without showing any actual damage or threat of irreparable injury,
and/or a decree for specific performance, without any bond or other security
being required in connection therewith, in accordance with the provisions
hereof.
9. Corporate Surplus.
If the Corporation shall not have sufficient surplus to permit it to
lawfully make payment of the purchase price for the Shares purchased by it under
this Agreement, the entire available surplus shall be paid on account, and each
Shareholder or the legal representative of any Shareholder's estate shall
promptly take such measures to vote the respective holdings of Shares owned by
the Shareholder to reduce the capital of the Corporation or to take such other
steps as may be appropriate or necessary in order to enable the Corporation to
lawfully make payment of the purchase price for Shares purchased by it.
10. Shareholder Inspection of Corporate Books
The Corporation shall keep complete and correct books and records of:
shareholder proceedings board and committee meetings; and the names and
addresses of all shareholders, including the number and class of shares held by
each shareholder and the dates when they became owners thereof (collectively
called the "books and records").
Each Shareholder shall have the right to inspect the books and records
of the Corporation upon providing the Corporation or its designated agent with
ten (10) days written notice.
11. Miscellaneous.
(a) Each party hereto acknowledges that it or he has read this
Agreement, understands it, and agrees to be bound by its terms, and further
acknowledges and agrees that it is the complete and exclusive statement of the
agreement and understanding of the parties regarding the subject matter hereof,
which supersedes and merges all prior proposals, agreements and understandings,
oral and written, relating to the subject matter hereof. This Agreement may not
be changed orally, but only by an agreement in writing signed by the party
against whom enforcement of any waiver, change, modification, extension or
discharge is sought.
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(b) No waiver of any breach or default hereunder shall be considered
valid unless in writing, and no such waiver shall be deemed a waiver of any
subsequent breach or default of the same or similar nature.
(c) If any provision of this Agreement shall be held invalid or
unenforceable, such invalidity or unenforceability shall attach only to such
provision and shall not in any manner affect or render invalid or unenforceable
any other severable provision of this Agreement, and this Agreement shall be
carried out as if any such invalid or unenforceable provision were not contained
herein. In the event that any provision is declared invalid or unenforceable,
the Shareholders and the Corporation agree to substitute for such invalid or
unenforceable provision a new provision which reflects, to the closest extent
possible, the intent of the parties.
(d) Except as otherwise expressly provided herein, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors, estates, heirs, legal representatives and permitted
assigns and transferees.
(e) The section headings contained herein are for the purposes of
convenience only and are not intended to define or limit the contents of said
actions.
(f) This Agreement shall be governed by the laws of the State of New
York (without giving effect to principles of conflicts of law). The Shareholders
and the Corporation consent and agree that jurisdiction and venue for all legal
proceedings relating to the subject matter of this Agreement shall lie
exclusively with the appropriate federal or state court sitting within the State
of New York, County of New York.
(g) A copy of this Agreement shall be filed with the Secretary of the
Corporation and kept with the records of the Corporation.
(h) Any notice or other communication to be given hereunder shall be
in writing and delivered personally or sent by certified or registered mail,
postage prepaid, if to the Corporation, addressed to the Corporation at its
then-principal business address, and if to any Shareholder, addressed to him at
his address as it appears in the stock records of the Corporation, or to such
other address as any party may have furnished to the others in writing. Unless
otherwise provided in this Agreement, notice given pursuant to this section
shall be deemed given as of the date of its receipt.
(i) 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 instrument.
(j) All representations, warranties and agreements contained herein
shall survive the execution and delivery of this Agreement.
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(k) This Agreement and the restrictions on transfer set forth herein
shall terminate upon the occurrence of any of the following events: (i)
cessation of the Corporation's business, (ii) bankruptcy, receivership or
dissolution of the Corporation, (iii) the voluntary agreement of all parties who
are bound by the terms hereof or (iv) consummation of a public offering of the
Corporation's Common Stock (other than the public offering described in the
registration statement initially filed with the Securities and Exchange
Commission on July 2, 1999). Upon termination of this Agreement, each
Shareholder shall surrender to the Corporation the certificates for his shares
and the Corporation shall issue to him, her or it, in lieu thereof, new
certificates for an equal number of shares without the second of the two legends
set forth in Section 3(c) hereof.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
BONUSBOULEVARD, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
Chairman and
Chief Executive Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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EXHIBIT A
Name of Number of
Shareholder Class of Stock Shares Owned
----------- -------------- ------------
▇▇▇▇▇ ▇▇▇▇▇, ▇▇. Class B Common Stock 48,000,000
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Class B Common Stock 32,000,000
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Schedule 6(e)
Date of Determination Stipulated Section 6 Purchase Price
--------------------- -----------------------------------
Initial Valuation The Shareholders have initially agreed that
their combined equity position in the
Corporation is to be valued at an aggregate
stipulated value of $1,000,000.
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