================================================================================
Exhibit 10.3
- ------------
AGREEMENT
THIS AGREEMENT entered into as of the 1st day of JULY, 2010 (this
"Agreement"), by and between ANTHONY D. TROLIO ("Trolio"), and DYNATRONICS
CORPORATION, a corporation organized and existing under the laws of the State of
Utah (the "Company").
WHEREAS, Trolio is an employee and shareholder of the Company; and
WHEREAS, Trolio desires to sell back to the Company and the Company
desires to redeem certain shares of Common Stock of the Company issued to and
held by Trolio; and
WHEREAS, the parties desire that, upon the terms and subject to the
conditions contained herein, the Company shall purchase, from time to time as
provided herein, and Trolio shall sell, up to Three Hundred Thousand Dollars
($300,000) of Common Stock (as defined below).
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings specified or indicated (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Agreement" shall have the meaning specified in the preamble hereof.
"Articles" shall mean the Articles of Incorporation of the Company, as
amended to date.
"Bylaws" shall mean the bylaws of the Company, as amended to date.
"Closing" shall mean one of the closings of a Redemption pursuant to
Section 2.3.
"Closing Bid Price" shall mean the closing bid price as reported by the
Principal Market.
"Common Stock" shall mean the Company's common stock, no par value per
share, and any shares of any other class of common stock whether now or
hereafter authorized, having the right to participate in the distribution of
dividends (as and when declared) and assets (upon liquidation of the Company).
"Company" shall have the meaning specified in the preamble to this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder.
"FINRA" shall mean the Financial Industry Regulatory Authority, Inc.
"Market Price" shall mean the Closing Bid Price on the trading day
immediately preceding the Redemption Date.
"Material Adverse Effect" shall mean any effect on the business,
operations, properties, or financial condition of the Company that is material
and adverse to the Company and/or any condition, circumstance, or situation that
would prohibit or otherwise materially interfere with the ability of the Company
to enter into and perform its obligations under this Agreement.
1
"Maximum Redemption Amount" shall mean, with respect to all Redemptions
permitted under this Agreement, shares having an aggregate Purchase Price of
Three Hundred Thousand Dollars ($300,000).
"Principal Market" shall mean the Nasdaq Stock Market, or other principal
exchange which is at the time the principal trading exchange or market for the
Common Stock.
"Purchase Price" shall mean the Market Price on such date on which the
Purchase Price is calculated in accordance with the terms and conditions of this
Agreement.
"Redemption" shall mean the right of Trolio to require the Company to
purchase shares of Common Stock, subject to the terms and conditions of this
Agreement, for proceeds of up to $100,000 in any twelve-month period commencing
July 1, 2010, 2011, or 2012, and up to $300,000 in the aggregate.
"Redemption Date" shall mean any Trading Day that a Redemption Notice is
deemed delivered pursuant to Section 2.2(b).
"Redemption Notice" shall mean a written notice to the Company setting
forth the Redemption amount with respect to which Trolio intends to require the
Company to purchase shares of Common Stock pursuant to the terms of this
Agreement.
"Redemption Shares" shall mean all shares of Common Stock redeemable
pursuant to a Redemption that has been exercised or may be exercised in
accordance with the terms and conditions of this Agreement.
"Regulation D" shall mean Regulation D promulgated under the Securities
Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall have the meaning specified in the recitals of this
Agreement.
"SEC Documents" shall mean, as of a particular date, all reports and other
documents file by the Company pursuant to Section 13(a) or 15(d) of the Exchange
Act since the beginning of the Company's then most recently completed fiscal
year as of the time in question (provided that if the datein question is within
ninety days of the beginning of the Company's fiscal year, the term shall
include all documents filed since the beginning of the second preceding fiscal
year).
"Short Sales" shall mean all "short sales" as defined in Rule 200 of
Regulation SHO under the Exchange Act.
"Trading Day" shall mean a day on which the Principal Market shall be open
for business.
ARTICLE II
PURCHASE AND SALE OF COMMON STOCK
Section 2.1 Redemptions.
(a) Upon the terms and conditions set forth herein, at any time
during the term of this Agreement, subject to the provisions of Section 2.2(a),
below, Trolio may require the Company to purchase shares of Common Stock then
held by Trolio (up to the Maximum Redemption Amount), which shares were acquired
by Trolio in connection with the sale of his distribution business to the
Company in 2007, by the delivery of a Redemption Notice. The Redemption Notice
shall specify the dollar value of the Redemption Shares (the "Redemption
Amount") Trolio desires to sell and the Company is required to purchase pursuant
to this Agreement. The number of Redemption Shares that the Company shall
purchase pursuant to such Redemption shall be determined by dividing the
Redemption Amount specified in the Redemption Notice by the Purchase Price with
respect to such Redemption Notice.
2
(b) Trolio may redeem shares with an aggregate Purchase Price of
$100,000 in the first year of this Agreement, up to $200,000 in the second year
(less any amount purchased in the first year), and up to $300,000 in the third
year (less any amount purchased in the first two years), until the Maximum
Redemption Amount has been redeemed.
Section 2.2 Mechanics.
(a) Redemption Notice. At any time and from time to time during the
first five (5) business days of a fiscal quarter of the Company, Trolio may
deliver a Redemption Notice to the Company, which shall not exceed the amounts
indicated in Section 2.1(b).
(b) Date of Delivery of Redemption Notice. A Redemption Notice shall
be deemed delivered on (i)the Trading Day it is received by facsimile or
otherwise by the Company if such notice is received on or prior to 12:00 noon
Utah time, or (ii) the immediately succeeding Trading Day if it is received by
facsimile or otherwise after 12:00 noon Utah time on a Trading Day or at anytime
on a day which is not a Trading Day.
Section 2.3 Closings. On or prior to each Closing Date for any Redemption,
(a) Trolio shall deliver to the Company one or more certificates representing
the Redemption Shares purchased by the Company pursuant to Section 2.1 herein,
registered in the name of Trolio and (b) the Company shall deliver the
Redemption Amount specified in the Redemption Notice by check or wire transfer
of immediately available funds to an account designated by Trolio within ten
(10) days of receipt of the Redemption Shares. In addition, on or prior to such
Closing Date, each of the Company and Trolio shall deliver to each other all
documents, instruments and writings required to be delivered by either of them
pursuant to this Agreement in order to implement and effect the transactions
contemplated herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TROLIO
Trolio represents and warrants to the Company that:
Section 3.1 No Legal Advice from the Company. Trolio acknowledges that he
has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with his own legal counsel and investment and tax
advisors. Trolio is relying solely on such counsel and advisors and not on any
statements or representations of the Company or any of its representatives or
agents for legal, tax or investment advice with respect to this investment, the
transactions contemplated by this Agreement or the securities laws of any
jurisdiction.
Section 3.2 Sophisticated Investor. Trolio is a sophisticated investor (as
described in Rule 506(b)(2)(ii) of Regulation D) and an accredited investor (as
defined in Rule 501 of Regulation D), and Trolio has such experience in business
and financial matters that he is capable of evaluating the merits and risks of
an investment in the Common Stock. Trolio acknowledges that an investment in the
Common Stock is speculative and involves a high degree of risk.
3
Section 3.3 Authority.
(a) Trolio has the requisite power and authority to enter into and
perform his obligations under this Agreement and the transactions contemplated
hereby in accordance with its terms;
(b) The execution and delivery of this Agreement and the
consummation by Trolio of the transactions contemplated hereby and thereby have
been duly authorized by all necessary action and no further consent or
authorization is required; and
(c) This Agreement has been duly authorized and validly executed and
delivered by Trolio and constitutes a valid and binding obligation of Trolio
enforceable against him in accordance with its terms, subject to applicable
bankruptcy, insolvency, or similar laws relating to, or affecting generally the
enforcement of, creditors' rights and remedies or by other equitable principles
of general application.
Section 3.4 Not an Affiliate. Trolio is not an officer, director or
"affiliate" (as that term is defined in Rule 405 of the Securities Act) of the
Company.
Section 3.5 Absence of Conflicts. The execution and delivery of this
Agreement and any other document or instrument contemplated hereby, and the
consummation of the transactions contemplated hereby and thereby, and compliance
with the requirements hereof and thereof, will not:
(a) violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on Trolio,
(b) violate any provision of any indenture, instrument or agreement
to which Trolio is a party or is subject, or by which Trolio or any of his
assets is bound, or conflict with or constitute a material default thereunder,
(c) result in the creation or imposition of any lien pursuant to the
terms of any such indenture, instrument or agreement, or constitute a breach of
any fiduciary duty owed by Trolio to any third party, or
(d) require the approval of any third-party (that has not been
obtained) pursuant to any material contract, instrument, agreement, relationship
or legal obligation to which Trolio is subject or to which any of his assets,
operations or management may be subject.
Section 3.6 Disclosure and Access to Information. Trolio has had an
opportunity to review copies of the SEC Documents filed on behalf of the Company
and has had access to all publicly available information with respect to the
Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Trolio that, except as disclosed in
the SEC Documents:
4
Section 4.1 Organization. The Company is a corporation duly organized and
validly existing and in good standing under the laws of the State of Utah and
has all requisite power and authority to own, lease and operate its properties
and to carry on its business as now being conducted. The Company is duly
qualified as a foreign corporation to do business and is in good standing in
every jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, other than those in which the
failure so to qualify would not have a Material Adverse Effect.
Section 4.2 Authority.
(a) The Company has the requisite corporate power and authority to
enter into and perform its obligations under this Agreement;
(b) The execution and delivery of this Agreement by the Company and
the consummation by it of the transactions contemplated hereby and thereby have
been duly authorized by all necessary corporate action and no further consent or
authorization of the Company or its Board of Directors or stockholders is
required; and
(c) This Agreement has been duly executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or similar
laws relating to, or affecting generally the enforcement of, creditors' rights
and remedies or by other equitable principles of general application.
Section 4.3 Common Stock. The Company has registered the Common Stock
pursuant to Section 12(b) or 12(g) of the Exchange Act and is in full compliance
with all reporting requirements of the Exchange Act, and the Company has
maintained all requirements for the continued listing or quotation of the Common
Stock, and such Common Stock is currently listed or quoted on the Principal
Market. The Company has taken no action designed to, or which to its knowledge
is likely to have the effect of, terminating the registration of the Common
Stock under the Exchange Act nor has the Company received any notification that
the SEC is contemplating terminating such registration.
Section 4.4 SEC Documents. The Company may make available to Trolio true
and complete copies of the SEC Documents (including, without limitation, proxy
information and solicitation materials). To the Company's knowledge, the Company
has not provided to Trolio any information that, according to applicable law,
rule or regulation, should have been disclosed publicly prior to the date hereof
by the Company, but which has not been so disclosed. As of their respective
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Act or the Exchange Act, as the case may be, and other
federal, state and local laws, rules and regulations applicable to such SEC
Documents, and none of the SEC Documents contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The financial
statements of the Company included in the SEC Documents comply as to form and
substance in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC or other applicable rules and
regulations with respect thereto. Such financial statements have been prepared
in accordance with generally accepted accounting principles applied on a
consistent basis during the periods involved (except (a) as may be otherwise
indicated in such financial statements or the notes thereto or (b) in the case
of unaudited interim statements, to the extent they may not include footnotes or
may be condensed or summary statements) and fairly present in all material
respects the financial position of the Company as of the dates thereof and the
results of operations and cash flows for the periods then ended (subject, in the
case of unaudited statements, to normal year-end audit adjustments).
5
Section 4.5 No Conflicts. The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the transactions
contemplated hereby, do not and will not
(a) result in a violation of the Articles or Bylaws, or
(b) conflict with, or constitute a material default (or an event
that with notice or lapse of time or both would become a material default)
under, or give to others any rights of termination, amendment, acceleration or
cancellation of, any material agreement, indenture, instrument or any "lock-up"
or similar provision of any underwriting or similar agreement to which the
Company is a party, or
(c) result in a violation of any federal, state or local law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or by which any property or
asset of the Company is bound or affected (except for such conflicts, defaults,
terminations, amendments, accelerations, cancellations and violations as would
not, individually or in the aggregate, have a Material Adverse Effect) nor is
the Company otherwise in violation of, conflict with or in default under any of
the foregoing. The business of the Company is not being conducted in violation
of any law, ordinance or regulation of any governmental entity, except for
possible violations that either singly or in the aggregate do not and will not
have a Material Adverse Effect. The Company is not required under federal, state
or local law, rule or regulation to obtain any consent, authorization or order
of, or make any filing or registration with, any court or governmental agency in
order for it to execute, deliver or perform any of its obligations under this
Agreement; provided that, for purposes of the representation made in this
sentence, the Company is assuming and relying upon the accuracy of the relevant
representations and agreements of Trolio herein.
Section 4.6 No Material Adverse Change. Since June 30, 2009 no event has
occurred that would have a Material Adverse Effect on the Company, except as
disclosed in the SEC Documents.
Section 4.7 No Undisclosed Liabilities. The Company has no liabilities or
obligations that are material, individually or in the aggregate, and that are
not disclosed in the SEC Documents or otherwise publicly announced, other than
those incurred in the ordinary course of the Company's businesses since June 30,
2009 and which, individually or in the aggregate, do not or would not have a
Material Adverse Effect on the Company.
Section 4.8 No Undisclosed Events or Circumstances. Since June 30, 2009,
no event or circumstance has occurred or exists with respect to the Company or
its businesses, properties, operations or financial condition, that, under
applicable law, rule or regulation, requires public disclosure or announcement
prior to the date hereof by the Company but which has not been so publicly
announced or disclosed in the SEC Documents.
Section 4.9 Litigation and Other Proceedings. Except as may be set forth
in the SEC Documents, there are no lawsuits or proceedings pending or to the
knowledge of the Company threatened, against the Company, nor has the Company
received any written or oral notice of any such action, suit, proceeding or
investigation, which would have a Material Adverse Effect. Except as set forth
in the SEC Documents, no judgment, order, writ, injunction or decree or award
has been issued by or, so far as is known by the Company, requested of any
court, arbitrator or governmental agency which would have a Material Adverse
Effect.
6
Section 4.10 Material Non-Public Information.
The Company is not in possession of, nor has the Company or its agents
disclosed to Trolio, any material non-public information that
(a) if disclosed, would reasonably be expected to have a materially
adverse effect on the price of the Common Stock or
(b) according to applicable law, rule or regulation, should have
been disclosed publicly by the Company prior to the date hereof but which has
not been so disclosed.
ARTICLE V
COVENANTS OF TROLIO
Section 5.1 Compliance with Law; Trading in Securities. Trolio's trading
activities with respect to shares of the Common Stock will be in compliance with
all applicable state and federal securities laws, rules and regulations and the
rules and regulations of FINRA and the Principal Market on which the Common
Stock is listed or quoted.
Section 5.2 Short Sales and Confidentiality. Neither Trolio nor any
affiliate of Trolio acting on its behalf or pursuant to any understanding with
it will execute any Short Sales during the period from the date hereof to the
final redemption hereunder. Other than to other persons party to this Agreement,
Trolio has maintained the confidentiality of all disclosures made to it in
connection with this transaction (including the existence and terms of this
transaction).
ARTICLE VI
COVENANTS OF THE COMPANY
Section 6.1 Notice of Certain Events Affecting Securities; Suspension of
Right to Make a Redemption. The Company shall promptly notify Trolio upon the
occurrence of any of the following events in respect of a Redemption which has
not otherwise been publicly disclosed by the Company through a press release or
any filing made by the Company under the Exchange Act:
(a) receipt of any request by the SEC or any other federal or state
governmental authority;
(b) the issuance by the SEC or any other federal or state
governmental authority of any stop order suspending the trading of the Company's
securities or the initiation of any proceedings for that purpose;
(c) receipt of any notification with respect to the suspension of
the qualification or exemption from qualification of any of the Company's
securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or
(d) the happening of any event that makes any statement made in the
Company's SEC Documents or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in the SEC Documents so that they will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the related prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
ARTICLE VII
NOTICES
Section 7.1 Notices. All notices, demands, requests, consents, approvals,
and other communications required or permitted hereunder shall be in writing
and, unless otherwise specified herein, shall be (a) personally served, (b)
deposited in the mail, registered or certified, return receipt requested,
postage prepaid, (c) delivered by reputable air courier service with charges
prepaid, or (d) transmitted by hand delivery, telegram, or facsimile, addressed
as set forth below or to such other address as such party shall have specified
most recently by written notice given in accordance herewith. Any notice or
other communication required or permitted to be given hereunder shall be deemed
effective (i) upon hand delivery or delivery by facsimile, with accurate
confirmation generated by the transmitting facsimile machine, at the address or
number designated below (if delivered on a business day during normal business
hours where such notice is to be received), or the first business day following
such delivery (if delivered other than on a business day during normal business
hours where such notice is to be received) or (ii) on the second business day
following the date of mailing by express courier service or on the fifth
business day after deposited in the mail, in each case, fully prepaid, addressed
to such address, or upon actual receipt of such mailing, whichever shall first
occur.
The addresses for such communications shall be:
If to the Company:
Dynatronics Corporation
7030 Park Centre Drive
Salt Lake City, Utah 84121
Attn: Robert Cardon
Tel: (801) 568-7000
Fax: (801) 568-7711
With a copy (which shall not constitute notice) to:
Durham Jones & Pinegar, P.C.
Attention: Kevin R. Pinegar
111 East Broadway, Suite 900
Tel: (801) 415-3000
Fax: (801) 415-3500
If to Trolio:
Anthony D. Trolio
445 Fifth Avenue
Hubbard, OH 44425
Tel: (330) 719-8130
8
Either party hereto may from time to time change its address or facsimile number
for notices under this Section 7.1 by giving at least ten (10) days' prior
written notice of such changed address or facsimile number to the other party
hereto.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Governing Law; Jurisdiction. This Agreement shall be governed
by and interpreted in accordance with the laws of the State of Utah without
regard to the principles of conflicts of law. Each of the Company and Trolio
hereby submit to the exclusive jurisdiction of the United States Federal and
state courts located in Salt Lake County, Utah with respect to any dispute
arising under this Agreement, the agreements entered into in connection herewith
or the transactions contemplated hereby or thereby.
Section 8.2 Jury Trial Waiver. The Company and Trolio hereby waive a trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other in respect of any matter arising out of or in
connection with this Agreement.
Section 8.3 Assignment. This Agreement shall be binding upon and inure to
the benefit of the Company and Trolio and their respective successors and
permitted assigns. Neither this Agreement nor any rights of Trolio or the
Company hereunder may be assigned by either party to any other person without
the prior written consent of the other party, which shall not be unreasonably
withheld.
Section 8.4 No Third Party Beneficiaries. This Agreement is intended for
the benefit of the Company and Trolio and their respective successors and
permitted assigns, and is not for the benefit of, nor may any provision hereof
be enforced by, any other person.
Section 8.5 Termination. Trolio may terminate this Agreement at any time
by written notice to the Company. Additionally, this Agreement shall terminate
on June 30, 2013 or such earlier date as the Maximum Redemption Amount
($300,000) has been purchased by the Company, or as otherwise provided herein
(unless extended by the agreement of the Company and Trolio).
Section 8.6 Entire Agreement, Amendment, No Waiver. This Agreement and the
instruments referenced herein contain the entire understanding of the Company
and Trolio with respect to the matters covered herein and therein and, except as
specifically set forth herein or therein, neither the Company nor Trolio makes
any representation, warranty, covenant or undertaking with respect to such
matters. No provision of this Agreement may be waived or amended other than by
an instrument in writing signed by the party to be charged with enforcement.
Section 8.7 Fees and Expenses. Each of the Company and Trolio agrees to
pay its own expenses in connection with the preparation of this Agreement and
performance of its obligations hereunder.
Section 8.8 Counterparts. This Agreement may be executed in multiple
counterparts, each of which may be executed by less than all of the Parties and
shall be deemed to be an original instrument which shall be enforceable against
the parties actually executing such counterparts and all of which together shall
constitute one and the same instrument. This Agreement may be delivered to the
other parties hereto by facsimile transmission of a copy of this Agreement
bearing the signature of the parties so delivering this Agreement.
9
Section 8.9 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provision; provided that such severability shall be
ineffective if it materially changes the economic benefit of this Agreement to
any party.
Section 8.10 No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties to express their mutual
intent, and no rules of strict construction will be applied against any party.
Section 8.11 Title and Subtitles. The titles and subtitles used in this
Agreement are used for the convenience of reference and are not to be considered
in construing or interpreting this Agreement.
Section 8.12 Reporting Entity for the Common Stock. The reporting entity
relied upon for the determination of the Closing Bid Price of the Common Stock
on any given Trading Day for the purposes of this Agreement shall be the
Principal Market or any successor thereto. The written mutual consent of Trolio
and the Company shall be required to employ any other reporting entity.
Section 8.13 Publicity. The Company and Trolio shall consult with each
other in issuing any press releases or otherwise making public statements with
respect to the transactions contemplated hereby and no party shall issue any
such press release or otherwise make any such public statement without the prior
written consent of the other parties, which consent shall not be unreasonably
withheld or delayed, except that no prior consent shall be required if such
disclosure is required by law, in which such case the disclosing party shall
provide the other parties with prior notice of such public statement. Trolio
acknowledges that this Agreement and all or part of the Transaction Documents
may be deemed to be "material contracts" as that term is defined by Item
601(b)(10) of Regulation S-K, and that the Company may therefore be required to
file such documents as exhibits to reports or registration statements filed
under the Securities Act or the Exchange Act. Trolio further agrees that the
status of such documents and materials as material contracts shall be determined
solely by the Company, in consultation with its counsel.
[SIGNATURES ON FOLLOWING PAGE]
10
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by the undersigned, thereunto duly authorized, as of the date first set
forth above.
/s/ Tony Trolio
------------------------------------
Anthony D. Trolio
Dynatronics Corporation
By: /s/ Kelvyn H. Cullimore, Jr.
---------------------------------
Its: President and CEO
--------------------------------
11
- --------------------------------------------------------------------------------