1
SHAREHOLDERS AGREEMENT
SHAREHOLDERS AGREEMENT (this "Agreement"), dated as of August 4, 2000,
by and among BOB BINSKY ("Binsky"), A NOVO AMERICAS LLC, a Delaware limited
liability company ("Buyer"), and CABLE LINK, INC., an Ohio corporation (the
"Corporation").
R E C I T A L S
As of the date hereof, Binsky owns of record and beneficially 183,570
shares of the common stock of the Corporation, no par value (the "Common
Stock"), and options and warrants to purchase an additional 716,680 shares of
Common Stock as described in Schedule B to the Employment Agreement, dated as of
the date hereof, between Binsky and the Corporation.
Concurrently herewith, Buyer and the Corporation have entered into an
Investment Agreement dated as of the date hereof (the "Investment Agreement"),
pursuant to which Buyer is purchasing from the Corporation (the "Purchase")
3,040,666 newly issued shares of Common Stock.
It is a condition precedent to Buyer's consummation of the transactions
contemplated by the Investment Agreement that each of the parties hereto enter
into this Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and other terms set forth herein, the parties hereby agree as
follows:
1. CONSTRUCTION OF AGREEMENT.
1.1 Definitions. When used in this Agreement, the following
terms shall have the following meanings:
"Binsky Allocation" has the meaning set forth in Section 6.2.
"Binsky Convertible Securities" means, as of any date, all
options, warrants and convertible securities of the Corporation then owned by
Binsky of record or beneficially.
"Binsky Matters" with respect to any transaction described in
Section 6 or Section 7, means (i) matters relating to Binsky's unencumbered
ownership and right to dispose of the Binsky Shares to be included in the
transaction and (ii) affirmations, by way of representations, warranties,
covenants or commitments, to the effect that, except as specifically disclosed
in writing to the Investor or underwriters in the transaction, Binsky does not
have actual knowledge that any representation or warranty made by the
Corporation or Buyer in connection with the transaction is
1
2
untrue in any material respect when made or is untrue in any material respect as
of the closing of the transaction.
"Binsky Shares" means, as of any date, all shares of Common
Stock then owned by Binsky, of record or beneficially, including shares issuable
to Binsky upon exercise of then exercisable Binsky Convertible Securities.
"Board" means the Board of Directors of the Corporation.
"Buyer Shares" means, as of any date, all shares of Common
Stock then owned by Buyer of record or beneficially.
"Closing Date" means the date hereof.
"Closing Price" means, for each Trading Day, the last reported
sale price regular way of the Common Stock on the NASDAQ National Market or
NASDAQ SmallCap Market, as the case may be, or, if the Common Stock is not
quoted on the NASDAQ National Market or NASDAQ SmallCap Market, the closing bid
price of the Common Stock in the over-the-counter market as reported by
Bloomberg, the National Quotation Bureau or NASDAQ.
"Common Stock" has the meaning set forth in the Recitals to
this Agreement.
"Control (including, with correlative meaning, the terms
"Controlled by" and "under common Control with")" means the possession, direct
or indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or otherwise. A Person shall be presumed to have Control of Buyer if it
is a general partner, manager, executive officer or director of Buyer or the
legal or beneficial owner of a voting interest of 25 percent or more in Buyer.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Investment Agreement" has the meaning set forth in the
Recitals to this Agreement.
"Investor" means a Person that is not a Related Person.
"Market Price" means, as of any day, the average of the
Closing Prices over the 10 consecutive Trading Days immediately preceding the
day in question.
"Material Disposition" has the meaning set forth in
Section 6.1.
"Non-Market Transaction" means a negotiated transaction taking
place other than through the facilities of a securities exchange or in the
over-the-counter market.
2
3
"Permitted Transferee" means (i) any of Binsky's parents,
issue, grandchildren, siblings and spouse ("Family Members"), (ii) any trust
created for the benefit of one or more Family Members and controlled by Binsky,
(iii) any limited partnership whose limited partners are Family Members and
whose sole general partner is Binsky or is owned and controlled exclusively by
Binsky, and (iv) Binsky's legal representative (including, without limitation, a
guardian, executor, administrator or conservator) upon Binsky's death or
incompetency.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company, an unincorporated organization, or a governmental entity (or
any department, agency, or political subdivision thereof.
"Public Transaction" means the sale of securities through the
facilities of a securities exchange or in the over-the-counter market.
"Purchase" has the meaning set forth in the Recitals to this
Agreement.
"Related Person" means, with respect to Buyer, an officer or
director of Buyer, or a Person who, directly or indirectly through one or more
intermediaries, owns, Controls, is owned or Controlled by, or is under common
ownership or Control with, Buyer.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder" means any of the shareholders of the
Corporation.
"Term" has the meaning set forth in Section 2.1.
"Trading Day" means any day on which transactions are effected
on the New York Stock Exchange, the NASDAQ National Market and the NASDAQ
SmallCap Market.
"Transfer" as to any security means any sale, exchange,
assignment, the creation of any option or right to purchase, security interest
or other encumbrance, and any other disposition of any kind, whether voluntary
or involuntary, affecting title to, possession of or voting rights in respect of
such security, or any interest therein.
1.2 Interpretation. When a reference is made in this Agreement
to an Article, Section, Schedule or Exhibit, such reference shall be to an
Article, or Section of, or Schedule or Exhibit to, this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Whenever the words "include," "includes" or "including" are used
in this Agreement, they shall be deemed to be followed by the words "without
limitation." The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this
3
4
Agreement as a whole and not to any particular provision of this Agreement. The
definitions contained in this Agreement are applicable to the singular as well
as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
2. EFFECTIVENESS AND TERM OF AGREEMENT.
2.1 Term. The term of this Agreement (the "Term") shall
commence as of the date hereof and shall remain in effect until the earliest of
(i) dissolution of the Corporation; (ii) the voluntary agreement of all parties
who are then bound by the terms hereof; or (iii) the sale of substantially all
of the Corporation's assets; provided, however, that Sections 3, 4, 6, 7 and 8
shall earlier terminate and cease to be binding on the parties at any earlier
time when there are fewer than 100,000 Binsky Shares or fewer than 1,000,000
Buyer Shares (such numbers of shares to be adjusted appropriately in each case
to reflect changes in the Common Stock by way of combination or division of the
Common Stock and/or distributions of securities in respect of the Common Stock).
2.2 Effect of Termination. Expiration or termination of the
Term or any of the provisions hereof shall not affect or impair any rights or
obligations that arise prior to or at the time of such expiration or
termination, or which may arise by reason of an event causing such expiration or
termination, and all such rights and obligations, including the rights and
obligations under any provision of this Agreement which by their terms are to
survive expiration or termination, shall also survive. The rights and remedies
provided in this Agreement shall be cumulative and not exclusive and shall be in
addition to any other remedies which either Buyer or Binsky may have under this
Agreement or otherwise.
3. RESTRICTIONS ON TRANSFER OF SHARES. Binsky shall not Transfer any of
the Binsky Shares or Binsky Convertible Securities or any interest therein, or
cause the same to be subject, directly or indirectly, to Transfer by operation
of law or agreement, except (a) to a Permitted Transferee, provided that such
Permitted Transferee shall have complied with the provisions of Section 10.3
relating to assignment of Binsky's rights hereunder to a Permitted Transferee
(in which case all references hereunder to Binsky shall include such Permitted
Transferee so long as such Permitted Transferee holds Binsky Shares), or (b) as
otherwise expressly permitted by this Agreement. Any purported Transfer in any
other manner shall be void, and shall not be recognized or given effect by the
Corporation.
4. TRANSFER RESTRICTIONS.
4.1 Buyer's Rights of First Refusal. If at any time on or
after October 1, 2000 (a) Binsky desires to Transfer all or any of the Binsky
Shares otherwise than as required or permitted by Section 3, 4.3, 4.4, 6 or 7
(subject to section 10.3) and (b) he may then legally do so in compliance with
applicable securities laws and not in violation of his obligations under any
other agreement by which he is bound, he shall first submit a written offer (the
"Offer") to sell such shares (the "Offered Shares") to Buyer at the Market
Price. The Offer shall state the manner in which
4
5
Binsky proposes to Transfer the Offered Shares and, if such Transfer is to be
made in a Non-Market Transaction, the identity of the proposed Transferee and
the proposed terms of the Transfer.
4.2 Acceptance by Buyer. Buyer may elect to accept the Offer
as to any or all of the Offered Shares by giving Binsky written notice of such
election within 10 Trading Days after the date it receives the Offer ("Offer
Date"). Upon the giving of such notice by Buyer, Binsky and Buyer shall be
firmly bound to effect the sale and purchase of Offered Shares to the extent
specified in such notice, and Binsky shall sell, and Buyer shall purchase, such
Offered Shares at the Market Price in accordance with Section 4.5.
4.3 Sale to Third Party. If Buyer does not elect to purchase
all of the Offered Shares, the Offered Shares which Buyer does not elect to
purchase may be Transferred by Binsky in the manner specified in the Offer at
any time within 60 days after the Offer Date; provided, that no such sale in a
Non-Market Transaction shall be effected other than to the Transferee identified
in the Offer or, if the Offer is made at a time when Binsky is an executive
officer, director or affiliate of the Corporation, prior to the time such
Transferee shall have executed and delivered to the Corporation an appropriate
joinder agreement, in form approved by the Corporation and Buyer (neither of
which shall unreasonably withhold, delay or condition its approval), whereby
such Transferee shall have adopted and agreed to be bound by the provisions of
this Agreement with respect to the Offered Shares acquired by such Transferee in
the same manner as Binsky was bound hereunder with respect to such Offered
Shares (in which case all references hereunder to Binsky shall include such
Transferee so long as such Transferee holds Binsky Shares).
5
6
4.4 Quarterly Transfers of Up to 20,000 Binsky Shares.
Notwithstanding any of the preceding provisions in this Section 4 to the
contrary, if Binsky (a) desires to Transfer not more than 20,000 Binsky Shares
in Public Transactions to be effected during any period of 90 consecutive days
commencing on or after October 1, 2000 (a "Market Quarter") and (b) may then
legally do so in compliance with applicable securities laws and not in violation
of his obligations under any other agreement by which he is bound, he may submit
to Buyer written notice (the "Quarterly Notice") (i) stating his intention to
effect such transactions during such Market Quarter pursuant to this Section 4.4
(the day on which the Quarterly Notice is given to be treated for all purposes
as the first day of such Market Quarter) and (ii) specifying the number of
Binsky Shares (the "Quarterly Offered Shares") he proposes to Transfer in such
transactions during such Market Quarter. The Quarterly Notice shall constitute
an irrevocable offer by Binsky to sell the Quarterly Offered Shares to Buyer at
the Market Price. Buyer may, by giving written notice to Binsky at any time
within five Trading Days after its receipt of the Quarterly Notice, elect to
purchase all or any of the Quarterly Offered Shares. Upon the giving of such
notice by Buyer, Binsky and Buyer shall be firmly bound to effect the sale and
purchase of the Quarterly Offered Shares to the extent specified in such notice,
and Binsky shall sell, and Buyer shall purchase, such Quarterly Offered Shares
at the Market Price in accordance with Section 4.5. If Buyer does not elect to
purchase all of the Quarterly Offered Shares by giving notice to Binsky within
such five-day period, Binsky may, in one or more Public Transactions at any time
during the remainder of such Market Quarter, Transfer all or any of the
Quarterly Offered Shares which Buyer has not elected to purchase and shall,
within 10 days after the end of such Market Quarter, notify Buyer of the number
of shares so Transferred during such Market Quarter. Binsky may submit Quarterly
Notices with respect to successive Market Quarters, but he may not submit more
than one Quarterly Notice within a Market Quarter.
4.5 Closing of Sales to Buyer.(a) Unless otherwise agreed to
by Binsky and Buyer, the closing of any sale to Buyer of Offered Shares as
provided for in Section 4.3 or Quarterly Offered Shares as provided for in
Section 4.4 shall be held at the principal office of the Corporation at 10:00
a.m. on the first Trading Day that is more than five Trading Days after the
giving of Buyer's notice to purchase Offered Shares or Quarterly Offered Shares
in accordance with Section 4.2 or Section 4.4.
(b) At such closing, Binsky shall deliver to Buyer the Binsky
Shares to be sold to Buyer, free and clear of all security interests and other
rights of third parties, evidenced by certificate(s) representing such shares
duly endorsed and in proper form for transfer, or accompanied by stock powers
sufficient to effect transfer, and accompanied by evidence of payment of all
applicable transfer taxes, and Buyer shall pay for such shares by delivery to
Buyer of a bank cashier's check or, at Binsky's option, immediately available
funds delivered to an account designated by Binsky by notice given to Buyer at
least two Trading Days prior to such closing.
5. LEGEND. During the Term, except as herein otherwise provided, all
certificates representing outstanding Binsky Shares shall be endorsed with a
legend in substantially the following form:
6
7
THE TRANSFER OF THE SHARES REPRESENTED BY THIS CERTIFICATE, AND ALL
RIGHTS REPRESENTED BY SUCH SHARES, ARE SUBJECT TO, AND RESTRICTED BY,
THE TERMS OF A SHAREHOLDERS AGREEMENT AMONG THE CORPORATION AND CERTAIN
OF ITS SHAREHOLDERS DATED AS OF AUGUST 4, 2000, AS THE SAME MAY BE
AMENDED, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
CORPORATION AND WILL BE PROVIDED TO A SHAREHOLDER UPON REQUEST AND
WITHOUT CHARGE.
At such time as the provisions of Sections 3, 4, 6 and 7 shall cease to apply to
outstanding Binsky Shares, such legend shall no longer be required to be
endorsed on certificates representing outstanding Binsky Shares. From and after
such time, Binsky shall be entitled to submit certificates for outstanding
Binsky Shares bearing such legend to the Corporation for removal of such legend
and, without charge to Binsky, to receive in lieu thereof certificates
evidencing such shares without such legend.
6. TAG-ALONG RIGHTS.
6.1 Tag-Along Notice. If at any time Buyer desires to Transfer
any of the Buyer Shares to an Investor in (a) a Non-Market Transaction for value
in excess of $500,000 or (b) a transaction in which Buyer Shares are to be
Transferred to underwriters or otherwise for sale pursuant to a registration
statement under the Securities Act, Buyer shall not consummate such transaction
(a "Material Disposition") unless at least 20 days prior to the consummation of
the transaction it shall have given Binsky written notice of its intention to
participate in such transaction (the "Tag-Along Notice") setting forth, (i) in
the case of a Non-Market Transaction, the identity and address of the Investor,
the nature and value of the consideration to be received for each Buyer Share to
be Transferred in the transaction, and the other material terms of the
transaction, including the number of Buyer Shares that Buyer proposes to
Transfer, and (ii) in the case of a Transfer to be effected pursuant to a
registration statement under the Securities Act, the terms of such registration,
including any applicable underwriting arrangement, the likely effective time of
such registration and the number of Buyer Shares to be included in the
registration statement. For the avoidance of doubt, the term "a Non-Market
Transaction for value in excess of $500,000" shall include any transaction or
series of related transactions taking place within a period of 180 consecutive
days pursuant to a prearranged plan.
6.2 Tag-Along Option. Binsky shall have the right and option
to participate in any Material Disposition and may exercise such right by giving
Buyer written notice of such exercise within 10 days after the giving of the
Tag-Along Notice. If Binsky exercises such right, Buyer and Binsky shall each be
entitled to Transfer in the Material Disposition, at the same price and on the
same terms, a number of shares of Common Stock (such number, the "Binsky
Allocation") equal to the product of (i) the quotient determined by dividing (1)
the number of Binsky Shares determined as of the time of the transaction by (2)
the aggregate number of Buyer Shares and Binsky Shares determined as of the time
of the transaction and (ii) the aggregate number of Buyer Shares and Binsky
Shares to be Transferred in the transaction; provided, however, that for
purposes of
7
8
determining the number of shares to be included in a registration statement, the
time of the transaction shall be deemed to be the time of filing in accordance
with the Securities Act of the registration statement with respect to the
transaction. Notwithstanding the foregoing, Binsky shall not be entitled to
participate in any Material Disposition for which a registration statement is
required unless he shall be eligible to do so and shall timely provide to the
Corporation and to Buyer and/or any underwriters all information required by
them or by the SEC with respect to Binsky or the sale of the Binsky Shares to
cause the registration statement to become effective in accordance with the
requirements of the SEC and applicable state securities authorities.
For example: Buyer desires to Transfer 10,000 Buyer Shares in
a Non-Market Transaction at a time when Buyer holds 1,000,000
Buyer Shares and Binsky holds 100,000 Binsky Shares. If Binsky
exercises a Tag-Along right, then the Binsky Allocation shall
be 909 shares; therefore, Binsky may Transfer up to 909 shares
in the Transaction, and Buyer may Transfer the balance of the
10,000 shares to be Transferred. The Binsky Allocation is
determined thus:
100,000 x 10,000 = 909
-------------
1,100,000
6.3 Consummation of Proposed Transaction. If Binsky does not
elect to participate in a proposed Material Disposition by giving notice of
exercise in accordance with Section 6.2, Buyer shall be free, at any time within
180 days after the giving of the Tag-Along Notice (or any longer period required
to enable any registration statement to become effective or to consummate sales
pursuant to such registration statement once declared effective), to consummate
such transaction or a similar transaction, without further notice to or consent
of Binsky, on terms (including the financial capacity of the buyer or
underwriters to the extent relevant to the transaction) not materially more
favorable to Buyer than those described in the Tag-Along Notice. If Binsky
elects to participate in such transaction by giving notice of exercise in
accordance with Section 6.2, Binsky will cooperate in effecting the transaction
and, if requested by the Investor or the underwriters, will enter into
agreements with the Investor or such underwriters containing terms and
conditions relating to the transaction that are the same (subject to appropriate
modifications) as the terms and conditions of the agreements entered into by
Buyer in connection with the transaction, including representations and
warranties limited to Binsky Matters. Without limitation of the foregoing,
Binsky shall take all such further actions and execute and deliver all such
agreements and instruments as Buyer or the Investor or underwriters may deem
necessary, desirable or appropriate to do so, including but not limited to, the
prompt delivery to Buyer or the Investor or underwriters of the Binsky Shares to
be Transferred, free and clear of all security interests and other rights of
third parties, evidenced by certificate(s) representing such shares duly
endorsed and in proper form for transfer or accompanied by stock powers
sufficient to effect transfer; provided, however, that such actions and
agreements shall not impose upon Binsky any liability or obligation other than
with respect to Binsky Matters.
8
9
7. DRAG-ALONG RIGHTS.
7.1 Drag-Along Right.Notwithstanding the provisions of Section
6 and In lieu of affording to Buyer a Tag-Along Notice pursuant thereto, in the
event that, at any time after the second anniversary of the Closing Date, Buyer
determines to effect the disposition to an Investor in a Non-Market Transaction
of more than 50% of the Buyer Shares for value not less than the Market Price as
of the date Buyer becomes contractually bound (subject to customary conditions)
to consummate such disposition, Buyer may by written notice to Binsky given at
least 30 days prior to the consummation of such disposition (the "Drag-Along
Notice") require Binsky to participate in such disposition with respect to the
Binsky Allocation for the same consideration per share and otherwise on the same
terms and conditions as apply to Buyer in such disposition. Following the giving
of the Drag-Along Notice, Buyer shall keep Binsky promptly, regularly and fully
informed as to the terms and progress of such disposition, shall provide him
with copies of all documents and instruments to be executed and delivered by
Buyer in connection therewith and, in particular, shall give Binsky reasonable
advance notice of the time and place fixed for the consummation of such
disposition.
7.2 Consummation of Transaction. Binsky will cooperate in
effecting the disposition and, if requested by the Investor will enter into
agreements with the Investor containing terms and conditions relating to the
disposition that are the same (subject to appropriate modifications) as the
terms and conditions of the agreements entered into by Buyer in connection with
the disposition and representations and warranties limited to Binsky Matters.
Without limitation of the foregoing, Binsky shall take all such further actions
and execute and deliver all such agreements and instruments as Buyer or the
Investor may deem necessary, desirable or appropriate to do so, including but
not limited to, the conversion or exercise of Binsky Convertible Securities to
the extent required in connection with the disposition and the prompt delivery
to Buyer or Investor of the Binsky Shares to be Transferred, free and clear of
all security interests and other rights of third parties, evidenced by
certificate(s) representing such shares duly endorsed and in proper form for
transfer or accompanied by stock powers sufficient to effect transfer; provided,
however, that such actions and agreements shall not impose upon Binsky any
liability or obligation other than with respect to Binsky Matters..
7.3 Limitations on Binsky Obligation. Nothing in the foregoing
provisions of this Section 7 shall be construed to require Binsky to Transfer
Binsky Shares (a) in circumstances which in the written opinion of Binsky's
counsel would constitute a violation of law or (b) in circumstances which would
subject Binsky to liability under Section 16(b) of the Exchange Act except to
the extent Binsky shall be fully indemnified by Buyer or the Investor against
such liability.
9
10
8. VOTING AGREEMENTS.
8.1 Voting of Binsky Shares. Binsky agrees, upon any request
by Buyer and in accordance with such request and consistent with action to be
taken by Buyer with respect to Buyer Shares, to cause all Binsky Shares (a) to
be present and represented at, or absent from, any regular or special meeting of
Shareholders, (b) to be voted or not voted at any such meeting in favor of or
against any proposal submitted to a vote of Shareholders, and (c) to be voted or
not voted by written consent in favor of any action of Shareholders to be
effected by written consent.
8.2 Power of Attorney. Binsky hereby irrevocably appoints
Buyer, until the termination of this Agreement, as his attorney and proxy, with
full power of substitution, to vote in such manner as Buyer or its substitute
shall, in its sole discretion, deem proper and otherwise act (by written consent
or otherwise) with respect to the Binsky Shares which Binsky is entitled to vote
at any meeting of Shareholders (whether annual or special and whether or not an
adjourned or postponed meeting) or in respect of any consent in lieu of any such
meeting or otherwise. This proxy and power of attorney is irrevocable and
coupled with an interest in favor of Buyer. Binsky hereby revokes all other
proxies and powers of attorney with respect to the Binsky Shares which he may
have heretofore appointed or granted, and no subsequent proxy or power of
attorney shall be given or written consent executed (and if given or executed,
shall not be effective) by Binsky with respect thereto.
8.3 Indemnification by Buyer. Buyer agrees to defend,
indemnify and hold harmless Binsky from and against any and all liabilities,
losses, damages, claims, costs, expenses, judgments, interest and penalties
(including, without limitation, attorneys' fees and disbursements)
(collectively, "Losses") incurred as a result of, arising out of or resulting
from the performance by Binsky of his voting obligations under Sections 8.1 and
8.2. Binsky shall give prompt written notice to Buyer of any facts which might
give rise to a claim by him under this Section 8.3, stating the nature and basis
of the claim; provided, however, that failure to give such notice will not
affect Buyer's obligation to provide indemnification in accordance with this
Section 8.3 unless, and only to the extent that, Buyer is actually prejudiced by
the failure to give timely notice. In the event that any action, suit or
proceeding is brought against Binsky with respect to which Buyer may have
liability for indemnification under this Section 8.3, Buyer, upon its written
acknowledgment that such action, suit or proceeding is an indemnifiable Loss
within the meaning of this Section 8.3, shall have the right, at its cost and
expense, to defend such action in the name and on behalf of Binsky, and, in
connection with any such action, Buyer and Binsky agree to render to each other
such assistance as may reasonably be required in order to ensure proper and
adequate defense of such action, provided, however, that Binsky shall have the
right to retain his own counsel, whose fees and expenses shall be paid by Buyer,
if Binsky's representation by counsel retained by Buyer would, in the opinion of
counsel retained by Buyer, be inappropriate because of actual or potential
differing interests between Buyer and Binsky. If Buyer shall fail to defend such
action, suit or proceeding, then Binsky shall have the right, but not the
obligation, to defend such action without prejudice to his rights to
indemnification under this Section 8.3 and, in connection therewith, Buyer and
Binsky agree to render to each other such assistance as may reasonably be
required in order to ensure proper and adequate defense of such action. Binsky
shall not make any settlement of any claim which might
10
11
give rise to liability of Buyer under this Section 8.3 without Buyer's written
consent, Buyer agreeing hereby that it shall not unreasonably withhold, delay or
condition such consent.
8.4 Election of Binsky as Director. Buyer shall use its best
efforts to cause Binsky to be included in management's slate of nominees for
election as a director of the Corporation and shall vote all Buyer Shares in
favor of his election and continuation as a director of the Corporation, for so
long as Binsky shall be employed by the Corporation and shall own Binsky Shares
representing at least 5% of the fully-diluted equity capitalization of the
Corporation.
9. BUYER'S COVENANTS. Buyer covenants and agrees for the benefit of
Binsky (so long as Binsky Shares represent at least 1% of the fully-diluted
equity capitalization of the Corporation) and the Corporation, as follows:
(a) during the period of five years commencing on the Closing
Date, neither Buyer nor any Related Person shall, directly or
through any Person controlled by Buyer or such Related Person,
make any investment in equity or indebtedness of a Person,
other than the Corporation or a Person controlled by the
Corporation, that is principally engaged in the business of
providing repair services for cable television and direct
broadcasting satellite equipment within the United States,
Canada and/or Mexico or in buying and/or selling new and used
equipment to the cable television industry in the United
States, Canada and/or Mexico; provided, however, that nothing
in this provision shall be construed to prohibit the direct or
indirect acquisition or ownership by Buyer or any Related
Person of securities representing in the aggregate not more
than 1% of the outstanding equity ownership or indebtedness of
any Person; and
(b) during the period of two years commencing on the Closing
Date, neither Buyer nor any Related Person shall engage in a
"Rule 13e-3 Transaction" (as defined in Rule 13e-3 promulgated
under the Exchange Act) with respect to the Corporation in
which the implicit price paid per share of Common Stock is
less than $10 per share (as appropriately adjusted to reflect
changes by way of combination or division of the Common Stock
and/or distributions of securities in respect of the Common
Stock).
10. MISCELLANEOUS.
10.1 Entire Agreement. This Agreement supersedes all prior
oral and written agreements between the parties with respect to the subject
matter hereof, and this Agreement sets forth the entire agreement among the
parties with respect to the subject matter hereof.
10.2 Amendment. This Agreement may not be modified, amended or
terminated, nor may any provision hereof be waived, except by an instrument in
writing executed by or on behalf of each party or, in the case of any such
waiver, by the party or parties entitled to the benefit of the provision to be
waived.
11
12
10.3 Assignment. Neither this Agreement nor any rights or
obligations hereunder shall be assignable or otherwise transferable by any
party, voluntarily or by operation of law, without the prior written consent of
the other parties hereto, and any assignment or transfer without such consent
shall be null and void; provided, however, that the provisions hereof applicable
to Binsky (including the provisions of Sections 3 and 8) shall be binding upon
and inure to the benefit of (i) any Permitted Transferee to whom Binsky Shares
are Transferred as permitted by clause (a) of Section 3, upon receipt by the
Corporation and Buyer of evidence satisfactory to them in good faith that such
Transfer complies with Section 3 and (ii) any Transferee of Binsky Shares in a
Non-Market Transaction permitted by Section 4.3 which is conditioned upon the
Transferee's execution and delivery of a joinder agreement as provided in
Section 4.3, upon receipt by the Corporation and Buyer of evidence satisfactory
to them in good faith that such Transfer complies with Section 4.3.
10.4 Further Assurances. Each party shall, at any time and
from time to time after the date hereof, do, execute, acknowledge and deliver,
or cause to be done, executed, acknowledged and delivered, all such further
acts, deeds, assignments, transfers, conveyances, powers of attorney, receipts,
acknowledgments, acceptances and assurances as may be reasonably required to
procure for any party, and its successors and permitted assigns, its rights as
set forth herein.
10.5 Severability. If any provision of this Agreement is held
to be invalid, unlawful or incapable of being enforced by reason of rule of law
or public policy, all other conditions and provisions of this Agreement which
can be given effect without such invalid, unlawful or unenforceable provisions
shall, nevertheless, remain in full force and effect.
10.6 Notices. All notices, consents, instructions and other
communications required or permitted under this Agreement (collectively,
"Notice") shall be effective only if given in writing and shall be considered to
have been duly given and received when (i) delivered by hand, (ii) sent by
telecopier (with receipt confirmed), provided that a copy is mailed (on the same
date) by certified or registered mail, return receipt requested, postage
prepaid, or (iii) delivered to the addressee, if sent by Express Mail, Federal
Express or other reputable express delivery service (receipt requested), or by
first class certified or registered mail, return receipt requested, postage
prepaid. Notice shall be sent in each case to the appropriate addresses or
telecopier numbers set forth below (or to such other addresses and telecopier
numbers as a party may from time to time designate as to itself by notice
similarly given to the other parties in accordance herewith, which shall not be
deemed given until received by the addressee). Notice shall be given:
If to Binsky:
Bob Binsky
20185 East Country Club Drive
Apt. 206
North Miami Beach, Florida 33180
12
13
with a copy to:
Kenneth J. Warren
5920 Cromdale Dr. Ste. 1
Dublin, Ohio 43017
Telecopier: 614-766-1974
If to Buyer:
A Novo Americas LLC
20 Terrasse Page
Ile Bizard, Quebec
Canada
Attn: Manager
Telecopier No.: (514) 626-2891
With a copy to:
Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, New York 10036
Attn: Russell Berman
Telecopier No.: (212) 479-6275
If to the Corporation
Cable Link, Inc.
280 Cozzins Street
Columbus, Ohio 43215
Attn: Chief Executive Officer
Telecopier No.: (614) 222-0581
With a copy to:
Kronish Lieb Weiner & Hellman LLP
1114 Avenue of the Americas
New York, New York 10036
Attn: Russell Berman
Telecopier No.: (212) 479-6275
10.7 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
13
14
DELAWARE APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WHOLLY THEREIN.
10.8 Equitable Relief. Since the parties hereto may sustain
irreparable harm in the event there is a breach of the covenants provided in
this Agreement, in addition to any other rights or remedies which any party
hereto may have under this Agreement or otherwise, each party to this Agreement
shall be entitled to obtain specific performance or injunctive relief against
the breaching or defaulting party hereto pursuant to arbitration in accordance
with Section 10.9 or from any court of competent jurisdiction for the purposes
of restraining such breaching or defaulting party from any actual or threatened
breach of such covenants or to compel such breaching or defaulting party to
perform such covenants, without the necessity of proving irreparable injury or
the inadequacy of remedies at law or posting bond or other security.
10.9 Arbitration. (a) Any controversy, claim or dispute
arising out of or relating to this Agreement or the breach, termination,
enforceability or validity of this Agreement, including the determination of the
scope or applicability of the agreement to arbitrate set forth in this Section
10.9, shall be determined exclusively by binding arbitration in the City of
Wilmington, Delaware. The arbitration shall be governed by the rules and
procedures of the American Arbitration Association (the "AAA") under its
Commercial Arbitration Rules and its Supplementary Procedures for Large, Complex
Disputes; provided that persons eligible to be selected as arbitrators shall be
limited to attorneys-at-law each of whom (i) is on the AAA's Large, Complex Case
Panel or a Center for Public Resources ("CPR") Panel of Distinguished Neutrals,
or has professional credentials comparable to those of the attorneys listed on
such AAA and CPR Panels and (ii) has actively practiced law (in private or
corporate practice or as a member of the judiciary) for at least 15 years in the
State of Delaware and/or in the Borough of Manhattan in The City of New York
concentrating in either general commercial litigation or general corporate and
commercial matters. Any arbitration proceeding shall be before one arbitrator
mutually agreed to by the parties to such proceeding (who shall have the
credentials set forth above) or, if the parties are unable to agree to the
arbitrator within 15 business days of the initiation of the arbitration
proceedings, then by the AAA.
(b) No provision of, nor the exercise of any rights under,
this Section 10.9 shall limit the right of any party to request and obtain from
a court of competent jurisdiction in the State of Delaware (which shall have
exclusive jurisdiction for purposes of this Section 10.9) before, during or
after the pendency of any arbitration, provisional or ancillary remedies and
relief including injunctive or mandatory relief or the appointment of a
receiver. The institution and maintenance of an action or judicial proceeding
for, or pursuit of, provisional or ancillary remedies shall not constitute a
waiver of the right of any party, even if it is the plaintiff, to submit the
dispute to arbitration if such party would otherwise have such right. Each of
the parties hereby submits unconditionally to the exclusive jurisdiction of the
state and federal courts located in the State of Delaware for purposes of this
provision, waives objection to the venue of any proceeding in any such court or
that any such court provides an inconvenient forum and consents to the service
of process upon it in connection with any proceeding instituted under this
Section 10.9 in the same manner as provided for the giving of notice under this
Agreement.
14
15
(c) Judgment upon the award rendered may be entered in any
court having jurisdiction. The parties hereby expressly consent to the
nonexclusive jurisdiction of the state and federal courts situated in the State
of Delaware for this purpose and waive objection to the venue of any proceeding
in such court or that such court provides an inconvenient forum.
(d) The arbitrator shall have the power to award recovery of
all costs (including attorneys' fees, administrative fees, arbitrators' fees and
court costs) to the prevailing party. The arbitrator shall not have power, by
award or otherwise, to vary any of the provisions of this Agreement.
10.10 Conflicting Agreements. Binsky represents and warrants
to Buyer that Binsky has not granted and is not a party to any proxy, voting
trust or other agreement which is inconsistent with or conflicts with the
provisions of this Agreement, and he covenants and agrees that shall not grant
any proxy or become party to any voting trust or other agreement which is
inconsistent with or conflicts with the provisions of this Agreement.
10.11 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all of which
taken together shall constitute one and the same instrument. Confirmation of
execution by electronic transmission of a facsimile signature page shall be
binding upon any party so confirming.
10.12 Waiver. The failure or delay of any party at any time to
require performance by another party of any provision of this Agreement, even if
known, shall not affect the right of such party to require performance of that
provision or to exercise any right, power or remedy hereunder. Any waiver by any
party of any breach of any provision of this Agreement shall not be construed as
a waiver of any continuing or succeeding breach of such provision, a waiver of
the provision itself, or a waiver of any right, power or remedy under this
Agreement. No notice to or demand on any party in any circumstance shall, of
itself, entitle such party to any other or further notice or demand in similar
or other circumstances.
[Signature Page Follows]
15
16
IN WITNESS WHEREOF, the parties have executed this
Shareholders Agreement as of the date first written above.
/s/ Bob Binsky
-------------------------------------
BOB BINSKY
A NOVO AMERICAS LLC
By: /s/ Louis Brunel
----------------------------------
Louis Brunel, Manager
CABLE LINK, INC.
By: /s/ Bob Binsky
----------------------------------
Bob Binsky, Chairman of the Board
16