STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT ("AGREEMENT"), made and entered into as of
this 15th day of May, 1998, by and among each of the persons set forth on the
signature page hereto (each a "STOCKHOLDER" and collectively the
"STOCKHOLDERS") and Simplex Medical Systems. Inc., a Colorado corporation (the
"CORPORATION").
R E C I T A L S
A. The Stockholders own approximately __% of the issued and outstanding
common stock, $.0001 par value, of the Corporation (the "COMMON STOCK"); and
B. The Stockholders desire to provide for, among other things, the
manner in which they will vote their shares of Common Stock, the approval of
certain significant operating decisions, and for the imposition of certain
restrictions upon the disposition of shares of Common Stock held by the
Stockholders;
NOW, THEREFORE, in consideration of the mutual covenants and provisions
herein set forth, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
CORPORATE STRUCTURE AND OPERATION
1.1 BOARD OF DIRECTORS.
(a) BOARD SIZE. The Board of Directors of the Corporation shall at
all times consist of seven (7) directors, unless otherwise agreed to in
writing by Software and R&P.
(b) ELECTION OF DIRECTORS. At all meetings (and written actions in
lieu of meetings) of stockholders of the Corporation at which directors are to
be elected, each Stockholder shall vote all of such Stockholder's shares of
Common Stock to elect as directors of the Corporation the persons nominated in
accordance with the following provisions:
(i) Software & Healthcare Technology Fund, L.L.C., an
Illinois limited liability company ("SOFTWARE") and Robertson & Partners,
L.L.C., an Illinois limited liability company ("R&P") shall have the right to
nominate two persons (each, a "SOFTWARE DIRECTOR"), who initially shall be
Kenneth Robertson and Gerald Wochna.
(ii) Automated Health Technologies, Inc., a Florida
corporation ("AHT") shall have the right to nominate one person (an "AHT
DIRECTOR") who initially shall be Colin Jones.
(c) SELECTION OF NOMINEES. AHT and R&P shall notify the Corporation
of its nominees not less than forty-five (45) days prior to the Corporation's
annual meeting, and not less than forty-five (45) days prior to any special
meeting at which directors are to be elected. The Corporation agrees to
include the AHT nominee and the Software nominee in management's slate of
nominees to be elected to the Board of Directors and to recommend to the
stockholders of the Corporation the election of such persons.
(d) REMOVAL. Each Stockholder agrees to vote such Stockholder's
shares of Common Stock to remove a Software Director or a AHT Director upon
request at any time by Software or AHT respectively, provided, that Software
or AHT, as the case may be, shall simultaneously designate a replacement to
fill any vacancy so created.
(e) VACANCIES. Each Stockholder agrees to vote such Stockholder's
shares of Common Stock to fill any vacancy on the Board of Directors caused by
the death, disability, resignation or removal of any Software Director with a
nominee selected by Software and with respect to any AHT Director, with a
nominee selected by AHT.
1.2 MANAGEMENT PROVISIONS. Without limiting the actions that may be
required, by applicable law or otherwise, to be approved by the Board of
Directors, the parties expressly agree that, unless approved by the Software
Directors, the Corporation may not take or agree to take, and no Stockholder
shall cause the Corporation to take or agree to take, any of the following
actions:
(i) wind-up, liquidate, dissolve or reorganize the
Corporation or adopt a plan or proposal contemplating any of the foregoing;
(ii) redeem shares of the Corporation's capital stock; or
(iii) merge, consolidate or combine the Corporation with any person or sell
substantially all of its assets.
1.3 COMMITTEES. The Board of Directors may establish and at all times
maintain any committee that it may deem is in the Corporation's best interest;
provided, that at least one-third (1/3) of the members of any such committee
are Software Directors. The Board of Directors shall establish a Compensation
Committee consisting of three independent directors, who initially shall be
Kenneth Robertson, Joel Marcus and a third person chosen by the Board of
Directors. The Compensation Committee shall have the authority to set and
approve the compensation arrangement for the executive officers of the
Corporation.
1.4 AGREEMENT TO VOTE SHARES. Each Stockholder shall vote all of his
shares of Common Stock (or such other securities of the Corporation which
entitle such Stockholder to vote on such matters, including, but not limited
to, shares of any other class of stock of the Corporation entitling them to
vote on any matter, or otherwise obtain proxies or other rights to vote
capital stock of the Corporation), execute and deliver such further documents,
take such further action and cause its designees on the Board of Directors to
vote in such a manner as may be necessary or desirable to carry out the
purposes and intent of this Agreement, including, without limitation, any
amendments to the Articles of Incorporation or By-Laws which are required by
law or prudent business practices in order to make the terms of this Agreement
effective and binding on the Corporation and all of its stockholders or
otherwise to effectuate any of the terms, conditions, provisions or purposes
hereof.
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ARTICLE II
RESTRICTIONS UPON AND OBLIGATIONS WITH
RESPECT TO DISPOSITION OF SHARES
2.1 CERTAIN DEFINITIONS. The term "CORPORATION SECURITIES" as used
herein shall mean any shares of capital stock of the Corporation at any time
owned or subscribed for by any party hereto, and any subscriptions, options,
warrants, calls, commitments, or rights of any kind whatsoever to purchase or
otherwise acquire any shares of capital stock of the Corporation.
2.2 GENERAL RESTRICTION. During the term of this Agreement, each
Stockholder covenants and agrees that such Stockholder will not, directly or
indirectly, voluntarily or involuntarily, sell, assign, transfer, pledge,
hypothecate, encumber or otherwise dispose (each, a "TRANSFER") of the
Corporation Securities at any time owned by such Stockholder, or any interest
therein, except for (i) Transfers to Permitted Transferees (as hereinafter
defined), or (ii) Transfers in accordance with the terms and conditions of the
provisions of this Article II. Any attempted Transfer not in accordance with
the terms and conditions of this Agreement shall be void and of no force or
effect.
2.3 TAG ALONG RIGHTS. If any Stockholder (each, a "Selling Stockholder")
has received a bona fide written offer (an "Offer") to purchase a majority of
its Corporation Securities in a private transaction from any person other than
a Permitted Transferee (the "PROPOSED TRANSFEREE"), and such Selling
Stockholder desires to accept such Offer, each Stockholder shall have the
right to elect to participate in the contemplated transaction. The Selling
Stockholder shall give the Corporation and each Stockholder written notice of
the Offer within three days of receipt of the Offer, and each Stockholder
shall have thirty (30) days from the date of receipt of such notice to notify
the Selling Shareholder of its election to participate. If any Stockholders
elect to participate in the proposed sale, such Stockholder shall have the
right to sell, at the same price and on the same terms as set forth on the
Offer, that number of shares of Corporation Securities equal to the product of
(i) the number of shares of Corporation Securities owned by it, and (ii) the
number obtained by dividing (A) the number of shares of Corporation Securities
to be sold to the Proposed Transferee pursuant to the Offer by (B) the
aggregate number of shares owned by the Selling Stockholder (the "TAG-ALONG
SHARES"). The Tag-Along Shares shall either (i) be purchased by the Proposed
Transferee in addition to the Selling Stockholder's shares, or (ii) be
purchased by the Proposed Transferee in lieu (and reduction) of the number of
shares being sold by the Selling Stockholder. The Selling Stockholder will use
his best efforts to obtain the agreement of the Proposed Transferee to the
participation of the electing Stockholders in such sale. The Selling
Stockholder will be prohibited from transferring any of his shares of
Corporation Securities to the Proposed Transferee if the Proposed Transferee
declines to allow the participation of the other Stockholders.
2.4 RESTRICTIVE LEGEND ON SECURITIES. Each stock certificate or
instrument representing any Corporation Securities shall be endorsed with the
following legend:
"The transfer and voting of the shares represented by
this Certificate is restricted under the terms of a
Stockholders' Agreement dated May 15, 1998 by and
among the Corporation and certain of its Stockholders,
a copy of which is available in the office of the
Corporation."
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2.5 PERMITTED TRANSFERS.
(a) Notwithstanding anything contained in Section 2.2 to the
contrary, a Stockholder may transfer any or all of his Corporation Securities
to a Permitted Transferee, as defined below, subject to the terms and
conditions contained in this Section 2.5.
(b) A "PERMITTED TRANSFEREE" of a Stockholder is hereby defined as
and construed to mean any one or more of the following:
(i) an executor(s), administrator(s) or conservator(s) of the
Stockholder;
(ii) a beneficiary of a deceased Stockholder's will or trust;
(iii) any other Stockholder;
(iv) a trustee or trustees of a trust or a beneficiary or
beneficiaries of a trust created by a Stockholder, but only if (A) the
beneficiary or beneficiaries of such trust are one or more of a group
consisting of the Stockholder, the spouse of the Stockholder and the
descendants and/or the adopted children of the Stockholder or the
Stockholder's parents, and (B) the trustee or other person exercising dominion
or control over such trust is a Stockholder or former Stockholder; and
(v) a Transferee of a Permitted Transferee if the transfer
would have been permissible under the provisions hereof if made by the
Stockholder who originally transferred the Corporation Securities to the
Permitted Transferee.
(c) All Permitted Transferees shall execute an appropriate
counterpart to this Agreement pursuant to which the Permitted Transferee
agrees to be bound by this Agreement. Until a Permitted Transferee shall
execute such a counterpart to this Agreement, the transfer and conveyance of
the Corporation Securities to such Permitted Transferee shall be void and of
no effect and he or she shall not be deemed a Stockholder hereunder and shall
have none of the rights and benefits of a Stockholder hereunder.
2.6 PERMITTED SALES. Notwithstanding anything contained in Section 2.2
to the contrary, a Stockholder may Transfer during each calendar quarter
during the term hereof up to that number of his, her or its Corporation
Securities permitted under the quarterly volume limitations of Rule 144 of the
Securities Act of 1933, as amended, regardless of whether Rule 144 is
applicable to such Corporation Securities being transferred.
2.7 REQUIREMENTS FOR TRANSFER. No Corporation Securities shall be
transferred upon the books of the Corporation, nor shall any sale or transfer
or any other disposition thereof be effective, unless and until (a) all of the
terms and conditions of this Agreement and applicable law have been first
complied with and, with respect to compliance with applicable law, the
Corporation has been provided with an opinion of counsel in form and substance
satisfactory to the Corporation's counsel, and (b) the transferees shall have
executed an agreement in form and substance satisfactory to counsel for the
Corporation to assume and become subject to all of the rights and obligations
hereunder of the party whose Corporation Securities it has acquired,
including, without limitation, the obligation to make payment for any unpaid
stock subscriptions and the obligations and restrictions under Article II
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hereof with respect to disposition of the Corporation Securities with the same
full force and effect as if originally a signatory hereto. This Section 2.7
shall not be applicable to transfers permitted under Section 2.6.
2.8 RIGHTS AND OBLIGATIONS OF TRANSFEROR. Following disposition of all
of its Corporation Securities in compliance with this Agreement, a party
hereto shall have no further rights or obligations hereunder.
2.9 PREEMPTIVE RIGHTS. The Corporation shall not authorize in one
transaction or a series of related transactions, the sale or other issuance of
any Corporation Securities without first offering to each Stockholder (who
are, as defined in the first paragraph of this Agreement, all persons or
entities who sign this Agreement), the right to subscribe for and purchase
his, her or its pro rata portion of such Corporation Securities for the same
purchase price and upon the same terms as the Corporation shall desire to
issue and sell such Corporation Securities; provided, however, that preemptive
rights hereunder shall not apply to Corporation Securities issued to any
director, officer or employee of the Corporation in connection with the
compensation of such individual pursuant to an established employee benefit or
other compensation plan, or in connection with the issuance of Corporation
Securities for services or assets (other than cash or notes). To the extent
that any Stockholder elects not to acquire his, her or its portion of such
Corporation Securities pursuant to the foregoing sentence, the Corporation
shall have the right to issue and sell such Corporation Securities to any
person or entity (including another Stockholder); provided, however, that (i)
the terms and conditions of the issuance and sale of such Corporation
Securities shall be substantially similar to those initially offered to the
Stockholders pursuant to the foregoing sentence and (ii) the per share
purchase price of such Corporation Securities shall not be less than the per
share purchase price initially offered to the Stockholders. The offer to each
Stockholder under this Section 2.8 shall be effected by delivery of written
notice thereof by the Corporation to each of the Stockholders and such offer
shall remain open for twenty (20) days after delivery of such notice. Notice
of any Stockholder's intention to accept the offer made pursuant to this
Section 2.8 shall be made in writing to the Corporation accepting such offer
prior to the end of the twenty (20) day period of such offer. Failure of any
Stockholder to timely accept such offer shall be deemed to be a rejection of
such offer. No offer needs to be made to any Stockholder if such offer would
result in a violation of any local, state or federal law or regulation.
2.10 PIGGY-BACK REGISTRATION RIGHTS. If the Corporation proposes to file
a registration statement effecting an underwritten public offering of any of
Corporation's capital stock under the Securities Act of 1933, as amended (the
"Act") on its behalf or any of its stockholders, then the Corporation shall in
each case give written notice of such proposed filing to Software and R&P at
least twenty (20) days before the anticipated filing date, and subject to
underwriter approval, such notice shall offer Software and R&P the opportunity
to register such number of Corporation Securities as they may request. The
Corporation Securities to be included in such offering (the "INCLUDED SHARES")
shall be offered on the same terms and conditions as any similar securities of
the Corporation included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of such offering delivers an opinion to
Software and R&P that the total number of Included Shares which they or the
Corporation and any other persons intend to be included in such offering is so
large as to materially and adversely affect the success of such offering
(including, without limitation, the price at which such Corporation Securities
may be sold) then: (a) the Corporation may reduce the total amount of
Corporation Securities to be included in such offering to the amount
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recommended by such managing underwriter (the "RECOMMENDED AMOUNT"); and (b)
the amount of Corporation Securities to be offered for the account of each
person selling shares in the offering shall be reduced pro rata on the basis
of the amount of Corporation Securities requested to be included in such
offering with respect to such person, to the extent necessary to reduce the
total amount of Corporation Securities to be included in such offering to the
Recommended Amount.
ARTICLE III
GENERAL PROVISIONS
3.1 TERM OF THIS AGREEMENT. The provisions set forth in Sections 1.2,
1.3, and 1.4 and Sections 2.2 through 2.9 shall terminate on the later of (i)
May 15, 2000 or (ii) on the ninetieth (9Oth) consecutive day that the bid
price for a share of Common Stock (as reported on all national securities
exchanges reported through the automated quotation system of a registered
securities association) is greater than $4.00. The balance of this Agreement
shall terminate on May 15, 2005. No termination of any part of this Agreement,
by lapse of time or otherwise shall affect any rights or obligations created
by exercise of any option to purchase or sell the Corporation Securities in
accordance with any of the provisions of Article II hereof.
3.2 Remedies. Each of the parties to this Agreement acknowledges that
(a) the rights of the Stockholders concerning the restrictions on the transfer
of the Corporation Securities, and in the management and affairs of the
Corporation are unique, and (b) any failure of any Stockholder to perform any
of such party's obligations under this Agreement will cause irreparable harm
for which any remedies at law would be inadequate. Accordingly, each of the
parties agrees that, in the event of any actual or threatened or attempted
failure of any party to perform any of its obligations hereunder, each of the
other parties shall, in addition to all other remedies, be entitled to a
decree for specific performance of the provisions of this Agreement and to
temporary and permanent injunctions restraining such failure or commanding
performance of such obligations, without being required to show actual damage
or to furnish any bond or other security. In addition to any remedies a
Shareholder may have hereunder, if any Selling Stockholder breaches the
provisions of Section 2.3, such Selling Shareholder shall have the obligation
to purchase from the electing Stockholders that number of Tag-Along Shares
such Stockholders desire to sell.
3.3 NOTICES. All notices required or permitted hereunder shall be in
writing, signed by the party giving notice or an officer thereof, and shall be
deemed to have been given when delivered by personal delivery, by Federal
Express or similar courier service, by facsimile or three (3) days after
deposit in the United States mail, registered or certified, with postage
prepaid, addressed as follows:
(A) If to Software and R&P at:
Software & Healthcare Technology Fund, L.L.C.
1333 North Wabash
Chicago, Illinois 60611
Attn: Kenneth Robertson
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with a copy to:
SHEFSKY & FROELICH LTD.
444 North Michigan Avenue
Suite 2500
Chicago, Illinois 60611
Attn: Mitchell D. Goldsmith
Fax: (312) 527-4000
(B) If to a Stockholder, at his address as reflected on the
Corporation records.
(C) If to the Corporation, at:
430 Ansin Blvd. Suite G,
Hallandale, FL 33009
Attn: President
Fax: (954) 455-9008
or such other address as any party may designate for himself or itself by
notice given to the other parties from time to time in accordance with the
provisions hereof.
3.4 Legal Fees. In the event that any action is filed to enforce any of
the terms, covenants or provisions of this Agreement, the prevailing party in
such action shall be entitled to payment from the other party of all costs and
expenses, including reasonable attorney fees, court costs and ancillary
expenses incurred by such prevailing party in connection with such action.
3.5 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, successors and assigns.
3.6 GOVERNING LAW. This Agreement shall be controlled, construed and
enforced in accordance with the substantive laws of the United States and the
State of Illinois, notwithstanding any choice of law conflicts.
3.7 FURTHER ASSURANCES. Each party agrees to cooperate with the others,
and to execute and deliver, or cause to be executed and delivered, all such
other instruments, and to take all such other actions as it may be reasonably
required to take, from time to time, in order to effect the provisions and
purposes hereof.
3.8 COUNTERPARTS. This Agreement may be executed in any one or more
counterparts, each of which shall constitute an original, no other counterpart
needing to be produced and all of which, when taken together, shall constitute
but one and the same instrument.
3.9 HEADINGS. The headings of Articles and subdivisions herein are
merely for convenience of reference and shall not affect the interpretation of
any of the provisions hereof.
3.10 ENTIRE AGREEMENT. This Agreement contains the entire understanding
among the parties with respect to the subject matter of this Agreement. Any
modification hereof may be made only by an instrument in writing signed by all
of the parties hereto.
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3.11 SEVERABILITY. Whenever possible, each provision of this Agreement
shall be construed and interpreted in such a manner as to be effective and
valid under applicable law. If any provision of this Agreement or the
application thereof to any party or circumstance shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the
extent of such prohibition without invalidating the remainder of such
provision or any other provision of this Agreement or the application of such
provision to other parties or circumstances.
3.12 WAIVERS. No delay on the part of any party in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by any party or any remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
3.13 GENDER REFERENCES. Whenever appropriate, the singular form of a word
shall be interpreted in the plural and vice versa. All words and phrases shall
be construed as masculine, feminine or neuter gender, according to the
context.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on the day and year first above written.
SIMPLEX MEDICAL SYSTEMS, INC.,
a Colorado corporation
By: /s/ Colin Jones
-----------------------------------
Colin Jones, President
By: /s/Dr. Nicholas Levandoski
-----------------------------------
Dr. Nicholas Levandoski,
By: /s/ Henry B. Schur
-----------------------------------
Henry B. Schur
SOFTWARE & HEALTHCARE
TECHNOLOGY FUND, L.L.C.,
an Illinois limited liability company
By: Robertson & Partners, L.L.C., its manager
By: /s/ Kenneth H. Robertson
-------------------------------
ROBERTSON & PARTNERS, L.L.C.,
an Illinois limited liability company
By: /s/ Kenneth H. Robertson
-----------------------------------
AUTOMATED HEALTH TECHNOLOGIES, INC.
By: /s/ Robert D. Lohman
-----------------------------------
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Jennifer J Schur Trust
By: /s/ Debra L. Ross
---------------------------------------
/s/ Joel Marcus
---------------------------------------
Joel Marcus
/s/ Debra L. Ross
---------------------------------------
Debra L. Ross
/s/ Debra L. Ross
---------------------------------------
Debra L. Ross as custodian for
Jennifer J. Schur
/s/ Roger Taft
---------------------------------------
Roger Taft
/s/ Stuart Taft
---------------------------------------
Stuart Taft
Joel Marcus Irrevocable Trust
By: /s/ Joel Marcus
---------------------------------------
Name: Joel Marcus
---------------------------------------
Its: Trustee
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EXHIBIT B
The following are the executive officers and directors of Automated
Health Technologies, Inc., and their titles. The business address of each
person is 1025 NW 17th Avenue, Delray Beach, Florida 33445.
NAME TITLE
---- -----
Robert Lohman President and Director
Gerald Wochna Director
Colin Jones Director
Sherman Jones Director
Edward Tulley Director