Exhibit 10.15
STOCKHOLDERS' AGREEMENT
This STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of
August 1, 2000, by and among AmeriCom USA, Inc., a Delaware corporation (the
"Corporation"), Robert M. Cezar and those other stockholders and beneficial
owners of the Corporation whose names are set forth on the signature pages below
(together, the "Stockholders"), and Giacomo Torrente (the "Stockholder
Representative").
WHEREAS, each Stockholder is currently the beneficial owner of
the number of shares of common stock of the Corporation set forth opposite such
Stockholder's name on Exhibit A attached hereto;
WHEREAS, the Stockholder Representative is providing a
personal guarantee of a short-term loan extended by Sterling National Bank of
New York to the Corporation; and
WHEREAS, in recognition of the Stockholder Representative's
willingness to provide such guarantee for the benefit of the Corporation and in
order to induce certain Investors (as defined below) to purchase certain shares
of capital stock of the Company in the Private Placement (as defined below), the
Stockholders and the other parties hereto have agreed to enter into this
Agreement for the benefit of the Corporation.
NOW THEREFORE, in consideration of the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties intending
to be legally bound hereto hereby agree as follows:
1. Definitions. The following terms shall have the following
meanings when used herein:
"Cezar Trust Shares" shall mean the 50,000 Shares held by The
Robert and Dianne Cezar Grandchildrens' Trust Dated 1/25/98
and the 475,883 Shares held by the Robert & Dianne Cezar
Irrevocable Trust Dated 1/25/98.
"Delivery Event" shall occur if the Market Price per share of
the shares of common stock of the Corporation purchased by the
Investors in the Private Placement is less than the purchase
price per share (appropriately adjusted for splits or
dividends, combinations, recapitalizations, reorganizations
and like events occurring after the consummation of the
Private Placement) paid by the Investors for such shares.
"Escrow Agent" shall mean Kramer Levin Naftalis & Frankel LLP
or such other person or entity mutually designated by the
Stockholder Representative, on behalf of the Stockholders, and
the Investors to act as escrow agent.
<PAGE>
"Market Price" of any security shall mean as of the date of
determination, (a) the average of the closing bid and asked
prices of such security for the sixty (60) consecutive trading
days immediately preceding such date, as officially reported
on the principal national securities exchange on which such
security is then listed or admitted to trading; or (b) if such
security is not then listed or admitted to trading on any
national securities exchange but is designated as a national
market system security by the National Association of
Securities Dealers, Inc., the average closing trading price of
such security for the sixty (60) consecutive trading days
immediately preceding such date; or (c) if such security is
not so designated, the average of the reported closing bid and
asked prices of such security in the over-the-counter market
for the sixty (60) consecutive trading days immediately
preceding such date as shown by the National Market System of
the National Association of Securities Dealers, Inc. Automated
Quotation System and reported by any member firm of the New
York Stock Exchange selected by the Corporation. If the
security is not publicly held or so listed or traded, "Market
Price" shall mean the fair value of the security as determined
in good faith by the Board of Directors of the Corporation,
whose determination shall be conclusive.
"Private Placement" shall mean the currently contemplated
offering of shares of common stock of the Corporation to
certain persons (the "Investors"), with gross proceeds to the
Corporation of up to $25,000,000, with a minimum commitment
amount of $10,000,000 on or before October 30, 2000.
"Shares" shall mean: (i) the issued and outstanding shares of
capital stock of the Corporation listed on Exhibit A attached
hereto, (ii) any additional shares of capital stock hereafter
issued to any Stockholder, and (iii) any shares of capital
stock of the Corporation into which such shares may be
converted, reclassified or exchanged or for which they may be
exchanged or exercised.
2. The Escrow.
(a) Upon the earlier of (i) October 30, 2000 or (ii) the
funding of the Private Placement and for a period of two years thereafter, as a
guarantee of the value of the shares of common stock of the Corporation
purchased by the Investors in the Private Placement, each of the Stockholders
shall transfer, assign and deliver to and deposit with the Escrow Agent such
Stockholder's Shares, except the Cezar Trust Shares, and shall deliver or cause
to be delivered immediately upon the consummation of the Private Placement to
the Escrow Agent the certificates evidencing such Shares, duly endorsed in blank
(or with duly executed blank stock powers) for transfer. Each Stockholder hereby
represents and warrants that the number of shares of common stock of the
Corporation set forth opposite such Stockholder's name on Exhibit A includes all
shares of such Common Stock beneficially owned by such Stockholder, whether
issued in such Stockholder's name or otherwise. The Stockholders hereby agree to
execute and deliver to the Escrow Agent an escrow agreement and such additional
assignments and other instruments as may be necessary or required by the Escrow
Agent to confirm and make effective such transfer, assignment, delivery and
deposit.
-2-
<PAGE>
(b) On the second anniversary of the consummation of the
Private Placement, if a Delivery Event has occurred and is in effect on such
date, the Escrow Agent shall deliver to the Investors or their respective
designees, that number of Shares whose Market Price, taken as a whole, would
represent the difference between (i) the aggregate purchase price paid by the
Investors for the shares of common stock of the Corporation purchased by the
Investors in the Private Placement and (ii) the Market Price of the common stock
multiplied by such number of shares of common stock of the Corporation purchased
by the Investors in the Private Placement, to the extent the Investors or their
affiliates still own such shares. To the extent that any Shares shall be
delivered to the Investors pursuant to this Section 2(b), such Shares shall be
taken (w) first, from the escrowed Shares of Robert M. Cezar, except for the
Cezar Trust Shares, and Giacomo Torrente on a pro rata basis in proportion to
their holdings set forth on Exhibit A hereto (excluding the Cezar Trust Shares)
and (x) then, to the extent necessary, from the escrowed Shares of the other
Stockholders on a pro rata basis in proportion to their holdings set forth on
Exhibit A hereto. The balance of the Shares in escrow shall then be distributed
(y) first, pro rata to the Stockholders, in proportion to and to the extent of
their holdings set forth on Exhibit A hereto, and (z) then, pro rata to Robert
M. Cezar and Giacomo Torrente in proportion to their holdings set forth on
Exhibit A hereto (excluding the Cezar Trust Shares).
(c) From and after the date hereof and during the existence of
the escrow created pursuant to this Section 2, no Stockholder shall sell,
assign, transfer, give, bequeath, devise, donate or otherwise dispose of, or
pledge, deposit or otherwise encumber, in any way or manner whatsoever, whether
voluntarily or involuntarily, any of the Shares now or hereafter owned (of
record or beneficially) by him, her or it, except as expressly provided in the
escrow agreement and in accordance with its terms and conditions.
Notwithstanding the preceding sentence, following the first anniversary of the
consummation of the Private Placement, each Stockholder, other than Robert M.
Cezar and Giacomo Torrente, may sell up to an aggregate of ten percent (10%) of
such Stockholder's Shares prior to the delivery or distribution of the Shares to
the Investors or Stockholders, as the case may be, pursuant to Section 2(b)
hereof; provided, however, that any such Stockholder who is not in breach of
this Agreement may waive his, her or its right to sell any or all of such ten
percent (10%) and may assign in writing such waived portion to any other
Stockholder, other than Robert M. Cezar and Giacomo Torrente, such that the
number of Shares that such waiving Stockholder could otherwise have sold, had
he, she or it not waived such right, may be sold by such assignee in addition to
the ten percent (10%) that such assignee may sell pursuant to this Section 2(c);
provided, further, that in no event shall all such Stockholders, as a group,
sell in the aggregate more than ten percent (10%) of the total of such
Stockholders' Shares prior to the delivery or distribution of the Shares to the
Investors or Stockholders, as the case may be, pursuant to Section 2(b) hereof.
(d) The duties and obligations of the Escrow Agent shall be
determined solely by the express provisions of the escrow agreement to be
entered into by the Stockholders, the Investors and the Escrow Agent.
3. Powers of the Stockholder Representative.
(a) During the existence of the escrow created by Section 2,
the Stockholder Representative shall possess an irrevocable proxy, and in his
sole discretion shall be entitled to exercise all rights and powers to vote the
Shares and to assent to or dissent from any corporate or
-3-
<PAGE>
stockholder action of any kind whatsoever, whenever such vote, assent or dissent
is required or permitted by law or otherwise, including, without limitation, the
election of directors, amendment or repeal of the Certificate of Incorporation
and By-Laws of the Corporation, or any proposed increase, decrease or change in
the classification of the capital stock of the Corporation or any proposed
dissolution and liquidation or merger or consolidation of the Corporation into
or with another corporation or corporations, or any sale, lease, transfer,
conveyance, mortgage or encumbrance of all or any substantial part of the assets
of the Corporation. The Stockholders hereby agree to execute and deliver to the
Stockholder Representative such additional agreements and other instruments as
may be necessary or required by the Stockholder Representative or the Investors
to confirm and make effective such irrevocable proxy.
(b) In voting the Shares or in otherwise assenting or
dissenting to any matter pursuant to his authority pursuant to this Agreement,
or in performing any act in respect of the control or management of the
Corporation or its affairs, the Stockholder Representative shall exercise his
best judgment in the interests of the Corporation. In the event of the
Stockholder Representative's death or incapacitation, the Board of Directors of
the Corporation (the "Board"), or a committee of directors designated by the
Board, shall assume the duties of the Stockholder Representative as set forth
herein and, in the performance of such duties, shall exercise its best judgment
in the interests of the Corporation. As used herein, the term "Stockholder
Representative" shall include Giacomo Torrente and, to the extent applicable as
set forth in this Section 3(b), the Board or a designated committee thereof.
(c) The Stockholder Representative shall be entitled to the
advice of legal counsel and may employ counsel who, in the discretion of the
Stockholder Representative, may be counsel for the Corporation or for any
Stockholder individually; and the Stockholder Representative may act in relation
to this Agreement upon the opinion or advice of any such legal counsel, whether
retained or selected by him, by the Corporation or otherwise. The Stockholder
Representative shall not be responsible for any loss resulting from any action
or non-action in accordance with any such opinion or advice. The Stockholder
Representative shall not be personally liable or responsible for the payment of
the fees of any such legal counsel or for other costs or expenses in case of any
litigation arising hereunder or in connection with this Agreement.
(d) The Corporation shall reimburse the Stockholder
Representative for all reasonable costs, expenses and other charges (including
reasonable attorneys' fees and disbursements) incurred in connection with this
Section 3 and in administering the irrevocable proxy created hereby and in
enforcing or defending the validity of this Agreement or any part hereof, as the
Stockholder Representative deems necessary and proper. The Corporation may seek
contribution from the Stockholders to the extent such costs, expenses and other
charges are incurred by the Stockholder Representative in enforcing or defending
this Agreement or any part hereof.
(e) Notwithstanding anything to the contrary set forth herein,
the Stockholder Representative shall not be required to perform any act, matter
or thing or incur any liability or expense under this Agreement without such
further indemnity as the Stockholder Representative from time to time may
request from the Corporation.
-4-
<PAGE>
(f) The Stockholder Representative may serve as director,
officer and employee of the Corporation, and may vote or cause votes to be cast
in favor of his own election, appointment or employment as such director,
officer or employee, with the same rights as he would have had if such
Stockholder Representative were not a Stockholder Representative pursuant to
this Agreement.
(g) The Stockholder Representative shall not be liable for any
error of judgment or for any act of commission or omission, or for any mistake
of law or fact, or for anything which he may do or refrain from doing in good
faith, nor generally shall he have any accountability hereunder, except for his
own willful misconduct or gross negligence.
(h) The proxy created by this Section 3 shall be irrevocable
and shall terminate upon the termination of the escrow created pursuant to
Section 2.
14. Termination. This Agreement shall terminate only upon the earlier
of (i) two years from the date of the consummation of the Private Placement,
(ii) the unanimous written consent of the Investors in their sole and absolute
discretion, and (iii) six months from the date hereof if the Private Placement
is not consummated.
15. Rights, Obligations and Remedies. The Shares are unique, and
recognizing that the remedy at law for any breach or threatened breach by a
party hereto of the covenants and agreements set forth in this Agreement would
be inadequate and that any such breach or threatened breach would cause such
immediate and permanent damage as would be irreparable and the exact amount of
which would be impossible to ascertain, the parties hereto agree that in the
event of any breach or threatened breach of any such covenant or agreement, in
addition to any and all other legal and equitable remedies which may be
available, any party hereto may specifically enforce the terms of this Agreement
and may obtain temporary and/or permanent injunctive relief without posting any
bond and without the necessity of proving actual damage by reason of any breach
or threatened breach hereof and, to the extent permissible under the applicable
statutes and rules of procedure, a temporary injunction may be granted
immediately upon the commencement of any such suit and without notice.
19. General Provisions.
(a) Notice. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally-recognized overnight courier or first class-registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below, or such other address, telecopy number or person's
attention, as may hereafter be designated in writing by such party to the other
parties:
If to the Corporation: AmeriCom USA, Inc.
825 Buckley Road, Suite B
San Luis Obispo, California 93401
Attention: Chief Financial Officer
Facsimile: (805) 820-6228
-5-
<PAGE>
with a copy (which copy shall
not constitute notice) to: Kramer Levin Naftalis & Frankel LLP
919 Third Avenue
New York, New York 10022
Attention: Bruce Rabb, Esq.
Facsimile: (212) 715-8000
If to any Stockholder, to the address set forth in Exhibit A, or such
other address as the Stockholder may designate by notice.
If to the Stockholder Representative: Giacomo Torrente
c/o Silvia Quarnstrom
51 West 69th Street, Apt. 5D
New York, New York 10023
Facsimile: (212) 208-0944
All such notices, requests, consents and other communications shall be deemed to
have been delivered (i) in the case of personal delivery or delivery by
telecopy, on the date of such delivery, (ii) in the case of dispatch by
nationally-recognized overnight courier, on the next business day following such
dispatch and (iii) in the case of mailing, on the fifth business day after the
posting thereof.
(b) Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof contain
the entire agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes any and all negotiations, prior
discussions, or prior agreements and understandings.
(c) Amendment; Waivers. The terms and provisions of this
Agreement may not be modified or amended, nor may any of the provisions hereof
be waived, temporarily or permanently, except pursuant to a written instrument
executed by all the parties hereto.
(d) Further Assurances. Each of the parties hereto shall
execute and deliver such documents, instruments and agreements and take such
further actions as may be reasonably required or desirable to carry out the
provisions of this Agreement and the transactions contemplated hereby, and each
of the parties hereto shall cooperate with each other in connection with the
foregoing.
(e) Successors. This Agreement shall inure to the benefit of
and bind, as the case may require, the parties hereto and their respective
heirs, executors, administrators, successors and assigns, and each person to
whom any stock certificate representing the Shares is issued, transferred,
assigned or hypothecated (whether by testamentary disposition, inheritance,
order of court or otherwise) shall take the same subject to each and all of the
terms and conditions hereof, and by such person's acceptance of such stock
certificate shall be bound by this Agreement in the same manner and to the same
extent as though such person had signed this Agreement as one of the parties
hereto.
-6-
<PAGE>
(f) Severability. If any one or more provisions of this
Agreement should be or become contrary to law, then such provision or provisions
only shall be null and void and shall be deemed separable from the remaining
provisions hereof, and its or their invalidity shall not in any way affect the
validity of this Agreement as a whole or of any other provision or portion
thereof.
(g) Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the internal laws of the
State of New York without regard to its choice of law principles. Each of the
parties hereto submits to the jurisdiction of any federal or state court sitting
in the State of New York in any action or proceeding arising out of or relating
to this Agreement, and agrees that all claims in respect of the action or
proceeding may be heard and determined in any such court. Each party also agrees
not to bring any action or proceeding arising out of or relating to this
Agreement in any other court. Each of the parties waives any defense of
inconvenient forum to the maintenance of any action or proceeding so brought and
waives any bond surety, or other security that might be required of any other
party with respect thereto.
(h) Waiver of Jury Trial. The parties hereto hereby
irrevocably waive all right to a trial by jury in any action, proceeding or
counterclaim arising out of or relating to this Agreement.
(i) Counterparts. This Agreement may be executed in facsimile
in any number of counterparts with the same force and effect as though all of
the parties hereto had signed but one instrument.
(j) Headings. The headings of the several paragraphs of this
Agreement are inserted solely for convenience of reference, and are not a part
of and are not intended to govern or aid in the construction of any of the terms
or provisions thereof.
-7-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement as of the date first above written.
AMERICOM USA, INC.
By: /s/ Thomas J. Hopfensperger
Name: Thomas J. Hopfensperger
Title: Chief Executive Officer
STOCKHOLDER REPRESENTATIVE
/s/ Giacomo Torrente
--------------------------
Giacomo Torrente
STOCKHOLDERS:
MEGAWEB TRADING LTD.
By: /s/ Giacomo Torrente
-----------------------
Giacomo Torrente
HELEN E. COOPER TRUSTEES,
HELEN E. COOPER TRUST
By: /s/ Helen E. Cooper
-----------------------
Name: Helen E. Cooper
Title: Trustee
/s/ Helen E. Cooper
--------------------------
Helen E. Cooper
/s/ Craig D. Machado
--------------------------
Craig D. Machado
/s/ Marcia M. Machado
--------------------------
Marcia M. Machado
-8-
<PAGE>
DAVID H. LOOMIS & SHERRY
LOOMIS TRUSTEES FOR THE
BENEFIT OF DAVID H. LOOMIS &
SHERRY LOOMIS FAMILY TRUST
UNDER AGREEMENT DATED 4/17/00
By: /s/ David H. Loomis
--------------------------
Name: David H. Loomis
Title: Trustee
/s/ David H. Loomis
--------------------------
David H. Loomis
/s/ Sherry Loomis
--------------------------
Sherry Loomis
KELKE INVESTMENTS LTD.,
C/O TWA, COCHRANE & SKATFELD
By its Director
Logberg Directors Ltd.
By: /s/ Bruce Twa
-------------------------
Name: Bruce Twa
Title: Authorized Signatory
/s/ Jayson Schwartz
--------------------------
Jayson B. Schwarz
-9-
<PAGE>
STRAIT VENTURE INC.
By: /s/ Winston Lee
-------------------------
Name: Winston Lee
Title: Managing Director
STRAIT VENTURES LTD.,
C/O TWA, COCHRANE & SKATFELD
By its Director
Logberg Directors Ltd.
By: /s/ Bruce Twa
-------------------------
Name: Bruce Twa
Title: Authorized Signatory
JESSDER HOLDINGS LTD.,
C/O TWA, COCHRANE & SKATFELD
By its Director
Logberg Directors Ltd.
By: /s/ Bruce Twa
-------------------------
Name: Bruce Twa
Title: Authorized Signatory
/s/ Winston Lee
--------------------------
Winston Lee
-10-
<PAGE>
THE ROBERT & DIANNE CEZAR
GRANDCHILDRENS' TRUST DATED
1/25/98
By: /s/ David H. Loomis
------------------------
Name: David H. Loomis
Title: Trustee
ROBERT & DIANNE CEZAR
IRREVOCABLE TRUST DATED
1/25/98
By: /s/ David H. Loomis
------------------------
Name: David H. Loomis
Title: Trustee
ROBERT M. CEZAR TRUSTEE,
ROBERT M. CEZAR IN TRUST
By: /s/ Robert M. Cezar
-------------------------
Name: Robert M. Cezar
Title: Trustee
/s/ Robert M. Cezar
--------------------------
Robert M. Cezar
/s/ Dianne Cezar
--------------------------
Dianne Cezar
-11-
<PAGE>
EXHIBIT A
Shares
<TABLE>
<CAPTION>
Stockholder Address Number of Shares
----------- ------- ----------------
<S> <C> <C>
Robert M. Cezar 1003 Acorn Drive 7,833,733
Arroyo Grande, CA 93420
The Robert & Dianne Cezar Grandchildrens' Trust 1003 Acorn Drive 50,000
Dated 1/25/98 Arroyo Grande, CA 93420
Robert & Dianne Cezar Irrevocable Trust
Dated 1/25/98 1003 Acorn Drive 475,883
Arroyo Grande, CA 93420
Robert M Cezar Trustee, Robert M. Cezar in Trust 1003 Acorn Drive 5,803,396
Arroyo Grande, CA 93420
Helen E. Cooper 1940 Carmel Court 328,229
Grover Beach, CA 93433
Helen E. Cooper Trustee, Helen E. Cooper Trust 1940 Carmel Court 665,690
Grover Beach, CA 93433
David H. Loomis & 613 Myrtle Street 2,260,684
Sherry Loomis Trustees For the Benefit of David & Arroyo Grande, CA 93420
Sherry Loomis Family Trust Under Agreement Dated
4/17/00
Craig D. Machado 21 La Gaviota 20,000
Pismo Beach, CA 93449
Craig D. Machado & Marcia M. Machado Joint Tenants 21 La Gaviota 531,121
Pismo Beach, CA 93449
Jayson B. Schwarz Schwarz & Gillen 5,000
2040 Yonge Street Suite 220
Toronto, Ontario M4S 1Z9
Canada
Kelke Investments Ltd., c/o Twa,
Cochrane & Skatfeld Chancery Court, Leeward Highway, 665,690
Providenciales, Turks and Caicos, BWI
Winston Lee 1080 Karina Way 25,000
Arroyo Grande, CA 93420
<PAGE>
<S> <C> <C>
Strait Venture Inc. Chancery Court, Leeward Highway, 5,590
Providenciales, Turks and Caicos, BWI
Strait Ventures Ltd., c/o Twa, Cochrane & Skatfeld Chancery Court, Leeward Highway, 460,391
Providenciales, Turks and Caicos, BWI
Jessder Holdings Ltd., c/o Twa, Cochrane & Skatfeld Chancery Court, Leeward Highway, 200,000
Providenciales, Turks and Caicos, BWI
Megaweb Trading Ltd. c/o Silvia Quarnstrom 520,000
(Giacomo Torrente) 51 West 69th Street, Apt. 5D
New York, NY 10023
Total Number of Shares: 19,850,407
</TABLE>
-ii-
