EXHIBIT 10.1
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of March
13, 2002, to be effective as of the "Effective Date" (as hereinafter defined),
is entered into by and among 2KSOUNDS, INC., a California corporation (the
"Company"), WIRELESS SYNERGIES, INC., a Nevada corporation (the "Purchaser"),
MICHAEL NIXON, an individual ("Nixon"), MICHAEL BLAKEY, an individual
("Blakey"), JOHN GUIDON, an individual ("Guidon"), and BRUCE GLADSTONE, an
individual ("Gladstone"). Nixon, Blakey, Guidon and Gladstone are hereinafter
sometimes individually referred to as a "Stockholder" and collectively referred
to as the "Stockholders".
W I T N E S S E T H:
WHEREAS, on February 12, 2002, the Purchaser and 2KSOUNDS MERGER
CO., INC., a wholly-owned merger subsidiary of the Purchaser ("Mergerco")
entered into an agreement and plan of merger, as amended and restated as of
March 13, 2002 (the "Merger Agreement") with the Company and Messrs. Blakey,
Guidon and Gladstone, pursuant to which it is anticipated that on the Effective
Date, Mergerco will be merged with and into the Company, with the Company as the
surviving corporation of such merger (the "Merger"); and
WHEREAS, immediately prior to the Effective Date of the Merger,
Nixon has purchased from both the Company and from Messrs. Blakey, Guidon and
Gladstone an aggregate of 6,000,000 shares of the Company Common Stock (as
hereinafter defined) (to represent in the aggregate 2,546,726 shares of the
Purchaser Common Stock (as hereinafter defined) as of the Effective Date after
giving effect to the Merger), for an aggregate purchase price of $5,000,000,
pursuant to the terms of a subscription agreement, dated March 13, 2002 (the
"Subscription Agreement"); and
WHEREAS, as an inducement to cause Nixon to purchase the "Company
Stock" and the "Sellers Stock" (as those terms are defined in the Subscription
Agreement), and in order to foster orderly and harmonious relationships among
the Stockholders with respect to the ownership and governance of the Purchaser
and the Company, the parties are entering into this Agreement on and as of the
Effective Date;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS.
Unless otherwise defined in this Agreement, when used herein, all
capitalized terms shall have the same meaning as is defined in the Subscription
Agreement. In addition, as used herein, the following terms shall have the
following respective meanings:
"Affiliate" of any specified Person shall mean any other Person
directly or indirectly controlling or controlled by or under common control with
such specified Person. For purposes of this definition, "control" (including
with correlative meanings, the terms "controlling", controlled by" and "under
common control with"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise.
"Agreement" shall mean this Stockholders Agreement.
"Board" shall mean, as the context indicates, either or any of (a)
the Board of Directors of the Purchaser, and/or (b) the Board of Directors of
the Company and each Subsidiary of the Company, as from time to time hereafter
constituted.
"Business" shall mean the operation of an integrated music business
consisting of the location, development, promotion and marketing of musical
talent, and the production and distribution of their music in all genre and in
all formats, including recordings, tapes, dvd and live performances, through a
variety of methods, including joint ventures with major labels, sub-labeling and
partnerships on albums by existing artists.
"Company" shall mean 2KSounds, Inc., a California corporation,
and a wholly-owned Subsidiary of the Purchaser.
"Company Common Stock" shall mean the $0.001 par value common stock
of the Company.
"EBITDA" shall mean, as at the date of determination, the (i) net
income after tax of the Purchaser and its consolidated Subsidiaries, including
the Company, for the applicable twelve (12) calendar month period ending
December 31st (each a "Fiscal Year") during the "Measuring Period" (as
hereinafter defined), commencing as of January 1, 2002, PLUS (ii) all interest
on Indebtedness paid or accrued with respect to such Fiscal Year, PLUS (iii) all
income or other comparable taxes paid or accrued for such Fiscal Year, PLUS (iv)
all depreciation of fixed assets and amortization of intangible assets which
have been deducted for such Fiscal Year, all as set forth on a statement of
EBITDA for such Fiscal Year (the "EBITDA Statement").
"Effective Date" shall mean the date on which the certificate of
merger of Mergerco with and into the Company shall have been duly filed in the
Office of the Secretary of State of the State of California.
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"Family Member" shall mean, as to any Stockholder, his father,
mother, son, daughter, brother, sister, grandchild or other member of such
Person's immediate family (including adopted and step family members).
"Formula Value" shall mean that dollar amount which shall be equal
to (i) six (6) times the consolidated EBITDA of the Purchaser and its
consolidated Subsidiaries (including the Company) for the Fiscal Year ended
immediately prior to the date of any Triggering Event, LESS (ii) the outstanding
indebtedness for borrowed money (including capitalized lease obligations) owed
by the Purchaser and its consolidated Subsidiaries (including the Company), as
at the date of the applicable Triggering Event.
"Fully Diluted Common Stock" shall mean, as at the date of
determination (a) all shares of the Purchaser Common Stock then issued and
outstanding, PLUS (b) all shares of Purchaser Common Stock then issuable upon
(i) the exercise of any then outstanding options or warrants to purchase the
Purchaser Common Stock or (ii) the conversion of any then outstanding
convertible securities of the Purchaser into Purchaser Common Stock.
"Fundamental Transaction" at any time shall mean any of the
following bona fide transactions which in each case is consummated on an arm's
length basis: (a) the sale or issuance by the Purchaser to any Person who is not
the Purchaser or an Affiliate of the Purchaser (an "Unaffiliated Third Party")
of shares of the Purchaser Common Stock in any one or more transactions such
that the Purchaser Common Stock owned by such Person equals more than fifty
(50%) percent of the issued and outstanding shares of Purchaser Common Stock
issued and outstanding after such transaction; (b) the sale of all or
substantially all of the assets, properties and business of the Purchaser and
its Subsidiaries taken as a whole to any Unaffiliated Third Party; or (c) the
merger, consolidation or combination of the Purchaser with or into any
Unaffiliated Third Party or other Person, in each instance where the composition
of a majority of the members of the Board of the surviving corporation or other
Person of such merger, consolidation or combination shall no longer be the
Stockholders or otherwise under the direct influence and control of the
Stockholders.
"Measuring Period" shall mean the three (3) consecutive Fiscal Years
of twelve (12) months each, commencing as of January 1, 2002 and ending December
31, 2004.
"Permitted Transfer" shall have the meaning defined in Section 3.3
of this Agreement.
"Permitted Transferees" shall mean any of the Persons to whom a
Permitted Transfer may be made pursuant to Section 3.3 of this Agreement.
"Person" shall mean an individual or a corporation, limited
liability company, association, partnership, joint venture, organization,
business, individual, trust, or any other entity or organization, including a
government or any subdivision or agency thereof.
"Purchaser Common Stock" shall mean the common stock, $0.001 par
value per share, of the Purchaser.
"Put Notice" shall have the meaning set forth in Section 3.1(b) of
this Agreement.
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"Put Option" shall mean the option granted to Nixon and his
Permitted Transferees to compel the Purchaser to repurchase his and their
Purchaser Common Stock pursuant to the terms and conditions set forth in Section
3.1(a) hereof.
"Put Option Period" shall mean that period of time which shall
commence on the date of final determination of any Triggering Event and shall
continue thereafter until ninety (90) days following the date of final
determination of such Triggering Event.
"Put Option Price" shall mean the price which the Company shall be
required to pay to Nixon and/or any of his Permitted Transferees upon the timely
exercise of the Put Option, all as provided in Section 3.1(e) hereof.
"SEC" shall mean the United States Securities and Exchange
Commission, and any other or successor agency performing the functions thereof
at any time.
"Securities Act" shall mean, as of any date, the Securities Act of
1933, as amended, and the rules and regulations promulgated thereunder.
"Significant Subsidiary" shall mean any direct or indirect
Subsidiary of the Company which individually either (a) contributed twenty (20%)
percent or more to the consolidated net income before taxes of the Company and
its consolidated Subsidiaries, or (b) represented twenty (20%) percent or more
of the consolidated assets of the Company and its consolidated Subsidiaries, in
each case, as at the end of the most recent fiscal year of the Company and its
consolidated Subsidiaries.
"Stockholders" shall mean the individual or collective reference to
any one of Nixon, Guidon, Blakey and Gladstone, and any of their respective
Affiliates or Permitted Transferees owning Purchaser Common Stock from time to
time, and any other Person who subsequently acquires Purchaser Common Stock and
becomes a party to or otherwise bound by the provisions of this Agreement in
accordance with the terms hereof.
"Stockholder Common Stock" shall mean the shares of the Purchaser
Common Stock, which shall be owned of record or beneficially by each of the
Stockholders as of the Effective Date of the Merger, and shall represent the
percentages of the Fully-Diluted Common Stock of the Purchaser, all as set forth
below.
NAME OF THE STOCKHOLDER NUMBER OF SHARES PERCENTAGE OF
OF COMMON STOCK FULLY-DILUTED COMMON
STOCK
Michael Blakey 3,614,144 shares 18.071%
John Guidon 4,231,811 shares 21.159%
Bruce Gladstone 765,291 shares 3.826%
Michael Nixon 2,546,726 shares 12.734%
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"Subsidiary" shall mean, as to any Person, a corporation,
partnership, limited liability company or similar entity of which (a) a majority
of the outstanding shares of voting common stock, limited liability company
interests, equity capital or other similar securities are at the time owned,
directly or indirectly through one or more intermediaries, or both, by such
Person, or (b) such Person is the general partner or managing member (or
performs a role similar to a general partner or managing member).
"Tag-Along Offeree" shall have the meaning assigned to such term in
Section 4.1(b).
"Triggering Event" shall mean any of:
(a) the voluntary resignation of Blakey as an executive officer and
employee of the Purchaser and the Company for any reason, other than (i) his
death or disability, or (ii) a breach by the Purchaser or the Company of any of
the material terms of Blakey's employment (including, without limitation, the
failure by the Purchaser and/or the Company to pay Blakey his agreed upon
remuneration) which is set forth in any written employment agreement or other
compensation arrangement with Blakey which is approved by a majority of the
members of the Board of the Purchaser or the Company (including Nixon or his
designee, but with Blakey abstaining) and reflected in minutes of such Board
meeting (an "Employment Breach"); or
(b) a determination by a final order of a court of competent
jurisdiction from which no appeal can or has been taken, or the acknowledgement
in a written agreement between Blakey and the Purchaser, that, notwithstanding
the written request by the Board of the Purchaser or the Company to cease such
activities, Blakey has continued to either:
(i) directly or indirectly, whether individually or as a
stockholder, partner, joint venturer or equity owner of more than five (5%)
percent of the outstanding capital stock or equity of any Person, or employee,
consultant or agent of such Person, engage in any activities in the United
States which are in direct competition with the Business of the Company or the
Purchaser, or
(ii) solicit artists under contract with the Company or the
Purchaser or key employees of the Company or the Purchaser to cease being
associated or employed by the Company or the Purchaser; PROVIDED, HOWEVER, that
a Triggering Event under this paragraph (b) shall not be deemed to have occurred
if (A) Blakey engages in such activities after his resignation as an executive
officer and employee of Purchaser and the Company solely by reason on an
Employment Breach which is not cured by the Purchaser or the Company within
thirty (30) days of receipt of notice from Blakey of such Employment Breach, or
(B) such activities are otherwise approved by all of the members of the Board of
the Purchaser and the Company (with Blakey abstaining), including Nixon or his
designee, or
(d) a determination by a final order of a court of competent
jurisdiction from which no appeal can or has been taken, or the acknowledgement
in a written agreement between Blakey and the Purchaser, that Blakey has
misappropriated any corporate asset or opportunity of the Purchaser or the
Company.
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ARTICLE II.
CORPORATE GOVERNANCE
SECTION 2.1. CONSTITUTION OF THE BOARDS.
(a) The Stockholders, the Purchaser, and the Company each hereby
agree that, at all times after the Effective Date and prior to the consummation
of a Fundamental Transaction, for so long as a Stockholder shall own
beneficially two (2%) percent or more of the Fully-Diluted Common Stock of the
Purchaser, they shall take all actions within their power to cause the Board of
the Purchaser and the Board of the Company and the Board of the Subsidiaries of
the Company (collectively, the "Boards") to consist (i) solely and entirely of
Blakey, Guidon, Gladstone, and Nixon or their respective designees as described
in this Section 2.1(a), and (ii) such other Persons as independent directors who
shall be acceptable to a majority of the Stockholders. On the Effective Date,
and from time to time thereafter until the consummation of either a Fundamental
Transaction or a Stockholder shall cease to own beneficially two (2%) percent or
more of the Fully-Diluted Common Stock, the Stockholders shall take all such
actions as may be necessary or appropriate within their power to cause the
Stockholders or their respective designees to be elected or re-elected as all of
the members of each of the Boards and to be maintained in such positions at all
times. If any Stockholder shall cease to own beneficially two (2%) percent or
more of the Fully-Diluted Common Stock, the benefits of this Article II shall no
long apply to such Stockholder.
(b) The Stockholders, the Purchaser, and the Company each hereby
agree that, at all times after the Effective Date and prior to the consummation
of a Fundamental Transaction, such Stockholder, the Purchaser, or the Company,
as the case may be, will vote all Purchaser Common Stock, Company Common Stock,
or voting stock of each Subsidiary of the Company, as the case may be, owned or
held of record by it, at each annual or special meeting of the stockholders of
the Purchaser, and at each annual or special meeting of the stockholders of the
Company and at each annual or special meeting of the stockholders the
Subsidiaries of the Company at which directors of the Purchaser, the Company
and/or each Subsidiary of the Company are to be elected, in favor of, or take
all actions by written consent in lieu of any such meeting as are necessary to
cause, the election or re-election as members of the respective Boards of all of
the Stockholders or their respective designees as described in Section 2.1(a),
and to otherwise effect the intent of the provisions of Section 2.1(a). The
Stockholders, the Purchaser, and the Company agree that neither the Purchaser
nor the Company shall recognize any action taken in violation of Section 2.1(a).
(c) In the event that any Person designated in accordance with
Section 2.1(a) ceases to serve as a member of a Board for any reason (other than
as a result of the Person(s) previously entitled to designate such director no
longer being entitled to designate such director in accordance with Section
2.1(a)), the Stockholders, the Purchaser and the Company each hereby agrees to
take such actions within his power as will result in the election or appointment
of a new director in accordance with Section 2.1(a).
(d) At all times after the Effective Date and prior to the
consummation of a Fundamental Transaction, each committee of the Boards shall
consist of no more than Guidon, Blakey, Gladstone and Nixon, or their respective
designees.
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(e) At all times after the Effective Date and prior to the
consummation of a Fundamental Transaction, unless otherwise agreed by Nixon, the
Boards shall follow the following procedures:
(i) Meetings. Special meetings of any Board may be held at any
time upon the call of at least three directors, by oral, telephonic,
telegraphic or facsimile notice duly given or sent, or by written notice
sent by courier, in each case to be received at least three Business Days
before any telephonic meeting and at least five Business Days before any
in-person meeting to each director. Reasonable efforts shall be made to
ensure that each director actually receives timely notice of any meeting.
The annual meeting of each Board shall be held without notice immediately
following the annual meeting of the stockholders of the Purchaser and the
stockholders of the Company.
(ii) Agenda. A reasonably detailed agenda shall be supplied to
each director or invitee reasonably in advance of each meeting of a Board,
together with other appropriate documentation with respect to agenda items
calling for Board action, to inform adequately directors regarding matters
to come before the Board. Any director or invitee wishing to place a
matter on the agenda for any meeting of a Board may do so by communicating
with the chairman of the Board sufficiently in advance of the meeting of
such Board so as to permit timely dissemination to all directors of
information with respect to the agenda items.
(f) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director or invitee in connection with attending (i) meetings
of a Board and any committee thereof, and (ii) any other meetings held at the
request of the Purchaser or the Company.
SECTION 2.2. Removal of Directors. If a director is designated by a
Stockholder pursuant to Section 2.1(a) and the Stockholder which designated such
director requests by written notice to the other Stockholders that such director
be removed, then such director shall be removed upon the affirmative vote of the
Stockholder which designated such director. If a Stockholder or a director
designated by such Stockholder is no longer entitled to be a director pursuant
to Section 2.1(a), such director shall be removed upon the affirmative vote of
the Stockholders excluding the vote of the director subject to removal. Each
Stockholder hereby agrees promptly to vote all Purchaser Common Stock owned or
held of record by him or his Affiliates and to take all such other actions as
may be necessary or appropriate to effect such removal.
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ARTICLE III.
PUT OPTION AND RESTRICTION ON TRANSFERS OF COMMON STOCK
SECTION 3.1. PUT OPTION.
(a) In the event, and ONLY in the event, that a Triggering Event
shall have occurred and is continuing, during the Put Option Period, Nixon
and/or his Permitted Transferees shall have the right and option, but not the
obligation (the "Put Option"), to cause the Purchaser and/or Blakey to redeem
and repurchase, in whole or in part, all shares of Purchaser Common Stock owned
of record by Nixon and/or his Permitted Transferees, all upon the terms and
subject to the conditions hereinafter set forth.
(b) The Put Option may be exercised by Nixon and/or his Permitted
Transferee(s) only in the event and to the extent that a Triggering Event shall
have occurred and is continuing. Subject to the foregoing, the Put Option may be
exercised by written notice from Nixon and/or his Permitted Transferee(s) to the
Purchaser and Blakey (the "Put Notice"), which Put Notice shall set forth (i)
the name of the Person(s) exercising such Put Option, and (ii) the number of
shares of Purchaser Common Stock which Nixon and/or his Permitted Transferee
wishes the Purchaser and Blakey to redeem and repurchase.
(c) The Purchaser shall, not later than thirty (30) days from
receipt of the Put Notice, advise Nixon or his Permitted Transferee(s) in
writing (the "Put Response Letter") as to (i) the date of the proposed closing
of the redemption and repurchase of the aggregate number of shares of the
Purchaser Common Stock subject to the Put Option and included in the Put Notice
(the "Put Securities"), which date (the "Put Effective Date") shall be not later
than ten (10) days from the date the EBITDA Statement is mutually agreed to
between the parties; and (ii) the method of payment of the Put Option Price for
such Put Securities on the Put Effective Date, and if such payment shall not be
in cash by wire transfer of immediately available funds, appropriately detailed
terms of payment and reasons for the deferral. In addition, the Purchaser will
on or before the date of delivery of the Put Response Letter, instruct the
independent accountants engaged by the Purchaser to (i) audit its financial
statements, to conduct a special review and calculation of the EBITDA of the
Purchaser and its consolidated Subsidiaries for the relevant Fiscal Year, and
(ii) prepare and deliver the EBITDA Statement to the Purchaser and Nixon or his
Permitted Transferee(s) not later than 45 days from the date of the Put Response
Letter.
(d) Nixon and/or his Permitted Transferee(s) shall have the right to
review fully all work papers relating to the EBITDA Statement in order to
confirm that such EBITDA Statement has been determined as provided herein. Nixon
and/or his Permitted Transferee(s) shall complete their review of such EBITDA
Statement within thirty (30) days after such determination and related
documentation have been made available for its review. If Nixon and/or his
Permitted Transferee(s) believe that any adjustment should be made to such
EBITDA Statement in order for it be prepared in accordance with the requirements
of this Agreement, Nixon and/or his Permitted Transferee(s) shall give the
Purchaser written notice of such adjustments. If the Purchaser agrees with the
adjustments proposed by Nixon and/or his Permitted Transferee(s), the
adjustments shall be made to such EBITDA Statement. If there are proposed
adjustments which are disputed by the Purchaser, then the Purchaser and Nixon
and/or
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his Permitted Transferee(s) shall negotiate in good faith to resolve all
disputed adjustments. If, after a period of ten (10) days following the date on
which Nixon and/or his Permitted Transferee(s) gives the Purchaser written
notice of any proposed adjustments, any such adjustments still remain disputed,
Nixon and/or his Permitted Transferee(s) and the Purchaser will jointly engage a
nationally recognized independent accounting firm (other than the accounting
firm used by the Purchaser to prepare the EBITDA Statement) (the "Independent
Accountant") to resolve any remaining disputed adjustments in accordance with
this Agreement, and the decision of the Independent Accountant shall be final,
binding and nonappealable on the parties hereto and shall be deemed a final
arbitration award that is enforceable pursuant to the terms of the Federal
Arbitration Act. All fees and expenses of the Independent Accountant incurred in
connection with such resolution shall be split equally between the parties.
(e) The per share price which the Purchaser shall be required to pay
to Nixon or any of his Permitted Transferees upon the exercise of the Put Option
during the Put Option Period (the "Put Option Price") shall be equal to the
GREATER of (i) $1.96 per share, (ii) 100% of the Formula Value divided by the
issued and outstanding shares of Purchaser Common Stock, and (iii) the
arithmetic average of the closing price of a share of the Purchaser Common
Stock, as then traded on the National Association of Securities Dealers, Inc.
OTC-Bulletin Board, The Nasdaq Stock Exchange, the American Stock Exchange or
any other national securities exchange, for the twenty (20) consecutive trading
days ending on the last business day immediately preceding the closing of the
Put Effective Date (if publicly traded at such time).
(f) On each occasion that a Put Notice shall be given, the Purchaser
will undertake to pay the Put Option Price for the Put Securities in cash in
immediately available funds on the Put Effective Date. If, due to restrictions
under applicable law or any credit agreement binding upon the Purchaser, the
Purchaser shall be unable to pay all of the Put Option Price in cash, or if such
payment, if made by Purchaser, would have a substantial material adverse effect
on the liquidity and capital resources of the Purchaser, then and in either such
events, Blakey shall pay such unpaid portion of the Put Option Price in cash.
(g) Notwithstanding anything to the contrary, express or implied,
contained in this Agreement, the Put Option set forth in this Section 3.1 shall
(i) terminate and be of no further force or effect after December 31, 2004,
unless previously exercised in accordance with this Section 3.1, and (ii) may
not be assigned or otherwise Transferred by Nixon, except to a Permitted
Transferee. Upon any such permitted assignment, such Permitted Transferee shall
execute and deliver to the Purchaser such joinder or related agreement and
undertaking to be bound by and subject to all of the terms and conditions of
this Agreement.
SECTION 3.2 RESTRICTIONS ON TRANSFER. Each of the Stockholders
agrees that it will not directly or indirectly offer, sell, transfer, assign, or
otherwise dispose of, or make any exchange, gift, assignment or pledge of any
legal or beneficial interest in (collectively, for purposes of Articles III and
IV hereof only, a "Transfer") any Purchaser Common Stock prior to the
consummation of a Fundamental Transaction, except as provided in Section 3.3
below, or (b) in accordance with the requirements of Article IV.
SECTION 3.3. EXCEPTIONS TO TRANSFER RESTRICTIONS. The
provisions of Section 3.2 shall not apply to any of the following Transfers
(each a "Permitted Transfer"):
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(a) A Stockholder shall be entitled to effect the following
Transfers of his Purchaser Common Stock without first complying with the
provisions of this Agreement:
(i) Any Transfer to (A) a Family Member or Affiliate of such
Stockholder or Family Member and/or to a bona fide trust established under state
law of which there are and continue to be, during the term of this Agreement, no
trustees or principal beneficiaries other than Family Members or Affiliates of
such Stockholder or Family Members, (B) a corporation of which all record and
beneficial owners of capital stock are, and continue to be, during the term of
this Agreement, the Stockholder, his Family Members or Affiliates of such
Persons, (C) a general or limited partnership or limited liability company of
which all partners or members are and continue to be, during the term of this
Agreement, Family Members or Affiliates of such Stockholder or Family Members,
or (D) any Transfer of record title to any nominee or custodian, provided that
the Stockholder so Transferring such Purchaser Common Stock remains the
beneficial owner thereof with the right to vote and dispose of such securities;
or
(ii) if such Transfer is made as part of a sale of securities
pursuant to an effective registration statement under the 1933 Act; or
(iii) if such Transfer is made by will or pursuant to the
laws of descent and distribution; or
(iv) if such Transfer is pursuant to a Fundamental
Transaction.
(b) Any Transfer pursuant to Section 3.3(a)(i) or 3.3(a)(iii) hereof
shall be subject to the requirements that:
(i) the certificates representing the Purchaser Common
Stock in the name of the Transferee bear legends as provided in Section 3.4
hereof; and
(ii) as a condition precedent to the Transferee's acquisition
of the Purchaser Common Stock (or, in the case of a Transfer by gift, will or
pursuant to the laws of descent and distribution, as a condition precedent to
such Transferee's record ownership in the books and transfer records of the
Purchaser), the Transferee shall have executed and delivered to the Purchaser
and all other Stockholders an appropriate joinder agreement, in form and
substance reasonably satisfactory to the Purchaser and all other Stockholders,
confirming that such Transferee has acquired such Purchaser Common Stock subject
to, and that such Transferee agrees to be bound by and to comply with, all of
the terms and conditions of this Agreement applicable to Stockholders hereunder.
(c) Any Transferee entitled to receive Purchaser Common Stock
pursuant to a Transfer under this Section 3.3 shall for all purposes of this
Agreement be deemed a "Permitted Transferee" of such Purchaser Common Stock.
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SECTION 3.4. LEGENDING OF CERTIFICATES.
(a) In addition to any other legend which the Purchaser may
reasonably deem advisable under the Securities Act and applicable state
securities laws, the certificates representing all Purchaser Common Stock
subject to this Agreement shall be legended at all times during the term of this
Agreement as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE TRANSFERRED,
GIVEN, SOLD, ASSIGNED, CONVEYED, PLEDGED, HYPOTHECATED, OR OTHERWISE
DISPOSED OF UNLESS SUCH GIFT, SALE, ASSIGNMENT, TRANSFER, CONVEYANCE,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF
THE STOCKHOLDERS AGREEMENT DATED AS OF MARCH __, 2002 (AS FURTHER AMENDED,
SUPPLEMENTED OR OTHERWISE MODIFIED, THE "STOCKHOLDERS AGREEMENT") BY AND
AMONG THE COMPANY AND ITS STOCKHOLDERS. A COPY OF THE STOCKHOLDERS
AGREEMENT IS ON FILE WITH THE SECRETARY OF THE COMPANY.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE NOT REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES LAWS
OF ANY STATE, ARE SUBJECT TO THE PROVISIONS (INCLUDING THE RESTRICTIONS ON
TRANSFER) SET FORTH IN THE STOCKHOLDERS AGREEMENT, AND EXCEPT AS OTHERWISE
PROVIDED IN THE STOCKHOLDERS AGREEMENT, NO GIFT, SALE, ASSIGNMENT,
TRANSFER, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND ALL APPLICABLE STATE
SECURITIES OR "BLUE SKY" LAWS, OR (B) IF THE COMPANY HAS BEEN FURNISHED
WITH AN OPINION IN FORM AND FROM COUNSEL SATISFACTORY TO THE COMPANY TO
THE EFFECT THAT SUCH GIFT, SALE, ASSIGNMENT, TRANSFER, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF THE
ACT AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER AND IS NOT IN
VIOLATION OF APPLICABLE STATE SECURITIES LAWS.
THE HOLDER OF THIS CERTIFICATE, BY ACCEPTANCE OF THIS CERTIFICATE,
ACKNOWLEDGES THAT IT IS BOUND BY THE PROVISIONS OF THE STOCKHOLDERS
AGREEMENT TO THE EXTENT PROVIDED THEREIN."
(b) Except as otherwise expressly provided in this Agreement, all
certificates representing Purchaser Common Stock now or hereafter issued to or
acquired by any of the Stockholders or their successors hereunder shall bear the
legend set forth above and such Purchaser Common Stock shall be subject to the
applicable provisions of this Agreement. The
11
obligations of each Stockholder shall be binding upon each Transferee to whom
Purchaser Common Stock are Transferred by such Stockholder (including, without
limitation, any third party to whom Purchaser Common Stock are Transferred
pursuant to Article IV) except Purchaser Common Stock Transferred pursuant to a
Fundamental Transaction, to a Permitted Transferee in accordance with Section
3.3 (excluding Sections 3.3(a)(i) and 3.3(a)(iii)) or in compliance with Section
4.1 or Section 4.2 hereof. Prior to consummation of any applicable Transfer, the
transferring Stockholder shall cause the Transferee to execute an agreement, in
form and substance reasonably satisfactory to the other parties hereto,
providing that such Transferee shall be bound by and shall fully comply with the
terms of this Agreement.
SECTION 3.5. IMPROPER TRANSFER. Any attempt to Transfer any
Purchaser Common Stock other than in accordance with this Agreement shall be
null and void and neither the Purchaser nor any transfer agent shall give any
effect to such attempted Transfer in its stock records.
ARTICLE IV.
TAG ALONG AND DRAG ALONG RIGHTS.
SECTION 4.1 TAG-ALONG RIGHT TO JOIN IN SALE.
(a) If any one or more of the Stockholders or his or their Permitted
Transferees at any time prior to the expiration of the Measuring Period propose
to Transfer any Purchaser Common Stock, such Stockholder(s) or their Permitted
Transferees (collectively the "Selling Stockholders") shall refrain from
effecting such Transfer, unless, prior to the consummation thereof, all of the
other Stockholders or their Permitted Transferees shall have been afforded the
opportunity to join in such sale on a pro rata basis, as hereinafter provided;
provided that this Section 4.1 shall not apply to a Permitted Transfer permitted
pursuant to Section 3.3 hereof.
(b) Prior to consummation of any proposed Transfer (a "Sale") of
Purchaser Common Stock described in Section 4.1(a) (other than in a transaction
not subject to this Section 4.1 by virtue of the proviso in Section 4.1(a)), the
Selling Stockholders proposing to effect such Sale shall cause the Person or
group that proposes to acquire such Purchaser Common Stock (the "Proposed
Purchaser") to offer (the "Purchase Offer") in writing to all of the other
Stockholder(s) or his or their Permitted Transferees (each, a "Tag-Along
Offeree") to purchase Purchaser Common Stock owned by such Tag-Along Offeree(s)
proposed to be sold by the Selling Stockholders, such that the sum of the amount
of Purchaser Common Stock so offered to be purchased from such Tag-Along
Offeree(s) shall be equal to the product obtained by multiplying the aggregate
amount of Purchaser Common Stock to be purchased by the Proposed Purchaser from
the Selling Stockholders by a fraction, the numerator of which is the number of
shares of Purchaser Common Stock then owned by such Tag-Along Offeree(s), and
the denominator of which is the aggregate number of shares of Purchaser Common
Stock then owned by all Tag-Along Offerees and all Selling Stockholders. Such
purchase shall be made at the price per share and on such other terms and
conditions as the Proposed Purchaser has offered to purchase the Purchaser
Common Stock to be sold by the Selling Stockholders, each Tag-Along Offeree
shall have 20 calendar days from the date of receipt of the Purchase Offer in
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which to accept such Purchase Offer, and the closing of such purchase shall
occur at the same time as the closing of the Sale. The amount of Purchaser
Common Stock to be sold to the Proposed Purchaser by the Selling Stockholders
shall be reduced by the aggregate amount of Purchaser Common Stock purchased by
the Proposed Purchaser from the Tag-Along Offerees pursuant to the acceptance by
them of Purchase Offers in accordance with the provisions of this Section
4.1(b). The Selling Stockholders shall notify the Proposed Purchaser that the
Transfer is subject to this Section 4.1 and shall ensure that no Transfer is
consummated without the Proposed Purchaser first complying with this Section
4.1. It shall be the responsibility of each Selling Stockholder to determine
whether any transaction to which it is a party is subject to this Section 4.1.
SECTION 4.2. RIGHT TO COMPEL SALE.
(a) (i) If the Selling Stockholders propose to make a Transfer of
100% of their remaining Purchaser Common Stock at any time when (A) the Selling
Stockholders own at least 35% of the Fully Diluted Common Stock of the
Purchaser, and (B) the aggregate amount of Purchaser Common Stock proposed to be
Transferred in such transaction (including Purchaser Common Stock owned by
Stockholders who are not Selling Stockholders) constitutes at least 50% of the
Fully Diluted Common Stock, to a Person that is neither an Affiliate of the
Stockholders nor a Person with respect to which the Stockholders or any of their
Affiliates has a direct or indirect economic interest or contractual
relationship (any such Sale, a "Compelled Sale"), then the Selling Stockholders
shall have the right, exercisable as set forth below, to require all of the
other Stockholders or their Permitted Transferees (the "Remaining Stockholders")
to sell all Purchaser Common Stock then owned by such Remaining Stockholders
(the "Transfer Common Stock") to the proposed transferee of such Purchaser
Common Stock (the "Acquiror") on the same terms and for the same consideration
per share as is being paid to the Selling Stockholders and as allocated among
Purchaser Common Stock as set forth in clause (iii) below, which consideration
shall consist entirely of cash and/or marketable securities, and otherwise on
the same terms as are applicable to the Selling Stockholders.
(ii) Notwithstanding the provisions of Section 4.2(a)(i) above,
in connection with any such transaction (x) the Remaining Stockholders shall not
be required to make any representations or warranties except those relating to
(i) their own due execution and delivery of the relevant agreement, (ii) the
enforceability of the relevant agreement against them and absence of conflicts
with agreements and laws applicable to them and (iii) their ownership of
securities being sold by them, and (y) the Remaining Stockholders shall not be
required to provide any post-closing indemnities except as provided in clause
(z) below, and (z) in the event that a portion of the purchase price is placed
in escrow to support (A) purchase price adjustment obligations, (B) post-closing
indemnification for breaches of representations or warranties relating to the
Purchaser and its Subsidiaries and/or (C) post-closing indemnification for
liabilities of the Purchaser and its Subsidiaries, the Remaining Stockholders
will have a pro rata portion of their purchase price placed in such escrow to be
utilized to pay any such indemnification obligations. The terms and conditions
other than the consideration to be received by the Remaining Stockholders for
Purchaser Common Stock sold in a Compelled Sale shall be as set forth in the
applicable purchase agreement among the Selling Stockholders and the Acquiror.
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(b)(i) The Selling Stockholders shall cause the terms of the
Compelled Sale to be reduced to writing and shall provide a written notice (the
"Compelled Sale Transfer Notice") of such Compelled Sale to the Purchaser and
the Purchaser shall provide such Compelled Sale Transfer Notice to the Remaining
Stockholders. The Compelled Sale Transfer Notice shall contain written notice of
the exercise of the Selling Stockholders rights pursuant to Section 4.2(a)
hereof, setting forth the consideration to be paid by the Acquiror for the
Purchaser Common Stock and the other terms and conditions of the Compelled Sale.
Within 20 calendar days following the date of receipt of the Compelled Sale set
forth in the Compelled Sale Transfer Notice, each of the Remaining Stockholders
shall deliver to the Selling Stockholders (the "Notice Designee") certificates
representing the Purchaser Common Stock owned by such Remaining Stockholders,
duly endorsed, together with all other documents required to be executed in
connection with such Compelled Sale or, if such delivery is not permitted by
applicable law, an unconditional agreement to deliver such certificates pursuant
to this Section 4.2(b) at the closing for such Compelled Sale against delivery
to such Remaining Stockholders of the consideration therefor. Such certificates
shall be held by the Selling Stockholders in escrow for the benefit of the
appropriate Remaining Stockholders, the Selling Stockholders shall execute such
form of escrow agreement as is reasonably satisfactory to the Remaining
Stockholders, the Acquiror and the Purchaser and which assures that the relevant
Purchaser Common Stock is not considered property of the Selling Stockholders.
In the event that a Remaining Stockholders should fail to deliver such
certificates as aforesaid, the Purchaser shall cause the books and records of
the Purchaser to show that such Purchaser Common Stock is bound by the
provisions of this Section 4.2(b) and that such Purchaser Common Stock shall be
transferred only to the Acquiror upon surrender for Transfer by the Remaining
Stockholders thereof.
(ii) If, within 90 calendar days (or such longer period not
exceeding 180 calendar days but only to the extent required to comply with any
applicable provisions of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, or to obtain other required regulatory approval) after the
Selling Stockholders give the Compelled Sale Transfer Notice, they have not
completed the sale of all the Purchaser Common Stock owned by all Stockholders
to the Acquiror, the Selling Stockholders shall return to each of the Remaining
Stockholders all certificates delivered for sale pursuant hereto, and all the
restrictions on sale or other disposition contained in this Agreement with
respect to such Purchaser Common Stock and the Purchaser Common Stock owned by
the Selling Stockholders shall again be in effect.
(iii) Upon the consummation of the Compelled Sale, the Selling
Stockholders shall give notice thereof to the Remaining Stockholders, shall (or
shall cause the Acquiror to) remit to each of the Remaining Stockholders a net
amount with respect to the Purchaser Common Stock of such Remaining Stockholders
sold 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 such Remaining Stockholders, provided that if
the cash or the fair market value of any marketable securities payable to any
Remaining Stockholder exceeds $1,000,000, such Remaining Stockholder shall be
entitled to have such cash and/or marketable securities (net of any fees and
expenses that are paid to be deducted in accordance with this Section) paid
directly to the Remaining Stockholder by the Acquiror at the closing of the
Compelled Sale. The Selling Stockholders shall provide each Remaining
Stockholder with copies of all transaction documents entered into in connection
14
with the Compelled Sale and an accounting of all consideration paid, including a
description of sources and uses of funds.
ARTICLE V
PERFORMANCE OF CERTAIN OBLIGATIONS BY PURCHASER
SECTION 5.1 JOINDER AND UNDERTAKING OF THE PURCHASER. By its
execution and delivery of this Agreement, the Purchaser does hereby covenant,
agree and acknowledge that, as successor-in-interest to the Company by virtue of
the Merger, the Purchaser shall duly and faithfully perform for the benefit of
Nixon or his Permitted Transferees all of the obligations of the Company set
forth in the Subscription Agreement, including without limitation, the
registration obligations set forth in Section 5 of such Subscription Agreement,
in the same manner as thought the Purchaser were a party signatory to such
Subscription Agreement.
SECTION 5.2 ANTI-DILUTION PROTECTION. In the event that any
Stockholder receives any type of protection from the Purchaser against dilution
in the value or percentage ownership of his Purchaser Common Stock
("Anti-Dilution Protection"), then, as a condition to the provision of such
protection to such Stockholder, Nixon shall be afforded an identical level of
protection against dilution with respect to his shares of Purchaser Common
Stock. The term "Anti-Dilution Protection" shall include without limitation (a)
pre-emptive rights to purchase or acquire additional shares of Purchaser Common
Stock and (b) price protection in the event of the issuance of additional shares
of Purchaser Common Stock below a given price level.
ARTICLE VI.
TERMINATION.
SECTION 6.1. TERMINATION OF AGREEMENT.
(a) This Agreement and all of the provisions of this Agreement shall
terminate and be of no further force or effect on a date which shall be the
earlier to occur of (i) consummation of any Fundamental Transaction, or (ii) the
expiration of the Measuring Period.
(b) Notwithstanding the foregoing, and except as specifically
provided elsewhere in this Agreement, this Agreement shall in any event
terminate with respect to any Stockholder when such Stockholder no longer owns
any Purchaser Common Stock.
(c) The termination of this Agreement or any part hereof pursuant to
this Article VI shall not relieve any party of any liability for breach thereof
prior to the date of such termination.
15
ARTICLE VII
MISCELLANEOUS.
SECTION 7.1. SUCCESSORS AND ASSIGNS. All of the terms and provisions
of this Agreement shall be binding upon, shall inure to the benefit of and shall
be enforceable by the respective successors and assigns of the parties hereto.
No Stockholder may assign any of his or its rights hereunder to any Person other
than a Permitted Transferee that has complied with all requirements set forth in
this Agreement applicable to such Permitted Transferee. The Purchaser may assign
any of its rights hereunder to any Person succeeding to the assets, business or
properties of the Purchaser. If any Permitted Transferee of any Stockholder
shall acquire any Purchaser Common Stock in any manner, whether by operation of
law or otherwise, such Purchaser Common Stock shall be held subject to all of
the terms of this Agreement, and by taking and holding such Purchaser Common
Stock such Person shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement.
SECTION 7.2 RECAPITALIZATIONS, EXCHANGES, ETC., AFFECTING THE
PURCHASER COMMON STOCK. The provisions of this Agreement shall apply to the full
extent set forth herein with respect to the Purchaser Common Stock, and to any
and all equity or debt securities of the Purchaser or any successors or assigns
of the Purchaser (whether by merger, consolidation, sale of assets, or
otherwise) which may be issued in respect of, in exchange for, or in
substitution of, such Purchaser Common Stock or equity or debt securities, and
shall be appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, reclassifications, recapitalizations, reorganizations and the like
occurring after the date hereof.
SECTION 7.3 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 7.4 SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable, either in its entirety or by virtue of its scope or
application to given circumstances, such provision shall thereupon be deemed
modified only to the extent necessary to render same valid, or not applicable to
given circumstances, or excised from this Agreement, as the situation may
require; and this Agreement shall be construed and enforced as if such provision
had been included as so modified in scope or application, or had not been
included herein, as the case may be.
SECTION 7.5 HEADINGS. The Section headings and captions used in this
Agreement are included for purposes of convenience only, and shall not affect
the construction or interpretation of any of the provisions hereof.
SECTION 7.6 ENTIRE AGREEMENT; WAIVER. This Agreement constitutes the
entire agreement between the parties pertaining to the subject matter hereof,
and supersedes all prior agreements or understandings as to such subject matter.
No party hereto has made any representation or warranty or given any covenant to
the other except as set forth in this Agreement. No waiver of any of the
provisions of this Agreement shall be deemed, or shall
16
constitute, a waiver of any other provisions, whether or not similar, nor shall
any waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver.
SECTION 7.7 PARTIES IN INTEREST. Nothing in this Agreement, whether
expressed or implied, is intended to nor will it confer any rights or remedies
under or by reason of this Agreement on any persons other than the parties
hereto and their respective permitted successors and permitted assigns, nor is
anything in this Agreement intended to relieve, or discharge the obligations or
liability of any third persons to any party to this Agreement, nor shall any
provision give any third persons any right of subrogation or action over or
against any party to this Agreement.
SECTION 7.8 NOTICES. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service or facsimile transmission, if served
personally or by facsimile transmission, on the party to whom notice is to be
given, or on the third day after mailing if mailed to the party to whom such
notice is to be given by registered or certified mail, postage prepaid, and
properly addressed to the parties hereto as provided on the signature page of
this Agreement or to such other address and/or facsimile number as any party
shall have specified by notice in writing to the other party.
SECTION 7.9 AMENDMENTS AND MODIFICATIONS. No amendment or
modification of this Agreement shall be valid unless made in writing and signed
by the party to be charged therewith.
SECTION 7.10 BINDING EFFECT; ASSIGNMENT. Except as otherwise
provided herein, neither this Agreement, nor any of the rights or obligations of
the parties hereunder, shall be assignable by any party hereto (except by
operation of law) without the prior written consent of the other parties hereto.
This Agreement shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
SECTION 7.11 GOVERNING LAW. This Agreement shall be construed and
interpreted and the rights granted herein governed in accordance with the laws
of the State of California, without giving effect to conflicts of laws.
SECTION 7.12 SETTLEMENT OF DISPUTES. All disputes and controversies
of every kind and nature between the parties hereto arising out of or in
connection with this Agreement as to the construction, validity, interpretation
or meaning, performance, non-performance, enforcement, operation or breach shall
be submitted to final and binding arbitration pursuant to the following
procedures:
(a) After a dispute or controversy arises, either party may, in a
written notice delivered to the other party, demand such arbitration. Such
notice shall (i) demand that the dispute be submitted for final and
binding arbitration to JAMS or End-Dispute before a three-person panel of
arbitrators who shall be either retired federal judges, or other persons
experienced in resolving commercial disputes and who are acceptable to the
parties, and (ii) contain a reasonably detailed statement of the matter in
controversy;
17
(b) Within thirty (30) days after receipt of such demand, if the
parties are unable to resolve the controversy, the matter shall be
submitted to JAMS or End-Dispute in Los Angeles, California or, if an
action is initiated against Nixon or his Permitted Transferees, in
Atlanta, Georgia;
(c) Each party shall bear its own arbitration costs and expenses.
The arbitration hearing shall be held in Los Angeles, California or in the
event an action is initiated against Nixon in Atlanta, Georgia at a
location designated by the arbitration panel. The then prevailing rules of
JAMS or End-Dispute shall be incorporated by reference at such hearing,
and the substantive laws of the State of California (excluding conflict of
laws provisions) shall apply;
(d) The arbitration hearing shall be concluded within ten (10)
Business Days unless otherwise ordered by the arbitrators and the award
thereon shall be made as soon as practicable after the close of the
submission of evidence. An award rendered by a majority of the arbitrators
appointed pursuant to this Agreement shall be final and binding on all
parties to the proceeding, and judgment on such award may be entered by
either party in any court of competent jurisdiction, including, without
limitation, the United States District Court for the Northern District of
Georgia, and/or the United States District Court for the Southern District
of California; and, for the purposes of this Section 7.12, each of the
parties hereto do hereby irrevocably submit to the jurisdiction of any of
the foregoing courts; and
(e) The parties stipulate that the provisions of this Section 7.12
shall be a complete defense to any suit, action or proceeding instituted
in any federal, state or local court or before any administrative tribunal
with respect to any controversy or dispute arising out of this Agreement.
The arbitration provisions hereof shall, with respect to such controversy
or dispute, survive the termination or expiration of this Agreement.
Unless otherwise required to be disclosed by applicable federal or state
securities laws or pursuant to an order of any court of competent jurisdiction,
neither any party hereto nor the arbitrators may disclose the existence or
results of any arbitration hereunder without the prior written consent of the
other party; nor will any party hereto disclose to any third party any
confidential information disclosed by any other party hereto in the course of an
arbitration hereunder without the prior written consent of such other party.
Notwithstanding the foregoing, any party to this Agreement may seek
from a court any provisional remedy that may be necessary to protect any rights
or property of such party pending the establishment of the arbitral tribunal or
its determination of the merits of the controversy.
SECTION 7.13 ENFORCEMENT OF AGREEMENT. In the event that any party
hereto shall be required to take any action, at law or in equity, to enforce any
of the provisions of this Agreement, such party shall be entitled to be
reimbursed for any costs or expenses, including reasonable attorney's fees,
incurred in connection with such enforcement of this Agreement.
[THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first set forth above.
Address for Notices: WIRELESS SYNERGIES, INC.
- ------------------------------
By:
- ------------------------------ -----------------------------------
Name: John Guidon,
- ------------------------------ Title: President and CEO
Address for Notices: 2KSOUNDS, INC.
- ------------------------------
By:
- ------------------------------ -----------------------------------
Name: John Guidon,
- ------------------------------ Title: President and CEO
Address for Notices:
- ------------------------------
- ------------------------------
----------------------------------
- ------------------------------ MICHAEL BLAKEY
Address for Notices:
- ------------------------------
- ------------------------------
----------------------------------
- ------------------------------ JOHN GUIDON
Address for Notices:
- ------------------------------
- ------------------------------
----------------------------------
- ------------------------------ BRUCE GLADSTONE
Address for Notices:
- ------------------------------
- ------------------------------
----------------------------------
- ------------------------------ MICHAEL NIXON