Attached files
| file | filename |
|---|---|
| 8-K - CURRENT REPORT - Bonds.com Group, Inc. | bonds-8k_0112.htm |
| EX-3.1 - CERTIFICATE OF DESIGNATION - Bonds.com Group, Inc. | ex-3_1.htm |
| EX-10.1 - UNIT PURCHASE AGREEMENT - Bonds.com Group, Inc. | ex-10_1.htm |
| EX-10.2 - FORM OF PREFERRED STOCK RIGHTS CERTIFICATE - Bonds.com Group, Inc. | ex-10_2.htm |
Exhibit
10.3
EXECUTION
VERSION
STOCKHOLDERS’
AGREEMENT
This STOCKHOLDERS’ AGREEMENT (this
“Agreement”) is
entered into as of January 11, 2010, by and among Bonds.com Group, Inc., a
Delaware corporation (the “Company”), Fund
Holdings LLC, a Florida limited liability company (“Holdings”), John J.
Barry III and Holly A.W. Barry (“John & Holly
Barry”), Duncan Family, LLC, a Florida limited liability company (“Duncan LLC”), John J.
Barry III and Holly A.W. Barry, as co-trustees of the Duncan Family Revocable
Trust (“Duncan
Trust” and, collectively with John & Holly Barry and Duncan LLC, the
“JBIII
Stockholders”), Otis Angel, LLC, a Florida limited liability company
(“Otis Angel”),
Siesta Capital, LLC, a Florida limited liability company (“Siesta Capital”),
Bond Partners, LLC, a Florida limited liability company (“Bond Partners”), John
J. Barry IV, as trustee of the John J. Barry IV Revocable Trust u/a/d November
9, 2001 (“J. Barry IV
Trust” and, collectively with Otis Angel, Siesta Capital and Bond
Partners, the “JBIV
Stockholders”), Laidlaw Venture Partners III, LLC, a Delaware limited
liability company (“LVCIII”), Laidlaw
& Company (UK) Ltd. (“LCUK” and,
collectively with LVCIII, “Laidlaw”), and UBS
Americas Inc., a Delaware corporation (“UBS” and together
with Holdings, the JBIII Stockholders and the JBIV Stockholders, the “Stockholders”).
A. The
Company and UBS are parties to that certain Unit Purchase Agreement, dated as of
the date hereof (the “Purchase Agreement”),
pursuant to which UBS is purchasing certain Units (as defined therein) of the
Company (the “Transaction”).
B. The
execution of this Agreement by the Company and the Stockholders is a condition
precedent to the consummation of the Transaction.
C. In
consideration of the benefits to be derived by the Company and the Stockholders
from the consummation of the Transaction, the Company and the Stockholders
desire to enter into this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
1. Definitions.
(a) “Board” means the
Company’s board of directors.
(b) “Business Day” means a
day on which the New York Stock Exchange is open for business.
(c) “Certificate of
Designation” means that certain Certificate of Designation for the Series
A Preferred Stock of the Company.
(d) “Change of Control”
means (i) a sale, transfer, lease, license or other disposition of all or
substantially all of the Company’s assets or business, (ii) any merger,
consolidation, reorganization or other business combination transaction of the
Company with or into another Person, other than a transaction in which the
holders of at least a majority of the shares of voting capital stock of the
Company outstanding immediately prior to such transaction continue to hold
(either by such shares remaining
outstanding
or by their being converted into shares of voting equity of the surviving
Person) a majority of the total voting power represented by the shares of voting
capital stock or other voting equity of the Company or the surviving Person
outstanding immediately after such transaction, or (iii) the direct or indirect
acquisition (including by way of new issuance by the Company (other than
issuances of shares in respect of options or warrants existing as of the date
hereof, but solely to the extent that the issuance triggered a Change of Control
without factoring in any additional purchases made by such Person subsequent to
the date hereof (other than purchases pursuant to the foregoing options and
warrants)), re-sales of stock by existing shareholders to persons or entities
that are not then parties to this Agreement, or a tender or exchange offer), in
a single transaction or series of related transactions, by any Person, or
Persons acting as a group, of beneficial ownership or a right to acquire
beneficial ownership of shares of the Company’s capital stock representing at
least a majority of the voting power of the then outstanding shares of capital
stock of the Company.
(e) “Common Stock” means
the common stock, par value $0.0001 per share, of the Company.
(f) “Derivatives
Transaction” means the sale, purchase or grant of any contract to
purchase, contract to sell, option, forward, swap, warrant, scrip, right to
subscribe to, call or commitment of any character whatsoever or in any
combination, relating to, or securities or rights convertible into, or
exercisable or exchangeable for, or the value of which is dependent (in whole or
in part) on the value of, any shares of capital stock of the Company, whether
such transaction may be settled in cash, securities or otherwise.
(g) “Market Sale” means
any sale, transfer or other disposition of Securities in (i) a “brokers’
transaction” (as defined in Rule 144 promulgated under the Securities Act of
1933, as amended, but excluding clause (4) of such definition for purposes
hereof), or (ii) a Public Sale using a broker and where clauses (1) and (3) of
such definition of “brokers’ transaction” would be satisfied notwithstanding
that it’s a Public Sale, in each case, occurring in an exchange or other
recognized market (the “Market”) where the
average daily volume of the Company’s stock over the prior four weeks has been
at least 50,000 shares.
(h) “Permitted Transferee”
means:
(i) as
to any Stockholder who is a natural person, (A) the successors in interest
to such Stockholder, in the case of a transfer upon the death of such
Stockholder, provided
that such successors in interest would be a Permitted Transferee under
clauses (i)(B) or (i)(D) of this definition, (B) such Stockholder’s
spouse, parents and descendants (whether by blood or adoption, and including
stepchildren) and the spouses of such persons, (C) such Stockholder, with
respect to the disposition of the community property interest of such
Stockholder’s spouse in all or any part of the Securities upon the death of such
spouse, and any transfer occasioned by the incompetence of such Stockholder and
(D) in the case of a transfer during such Stockholder’s lifetime, any
Person in which no Person has any interest (directly or indirectly) except for
any of such Stockholder, such Stockholder’s spouse, parents and descendants
(whether by blood or adoption, and including stepchildren) and the
spouses
2
of such
persons; provided,
however, that in
respect of any transfer by any Stockholder during such Stockholder’s lifetime
pursuant to clause (B) or (D), such Stockholder shall retain voting power
over all of the outstanding Shares being transferred;
(ii) as
to any Stockholder that is a trust, all the beneficiaries of which are natural
persons, such beneficiaries or the grantor of the trust; provided, however, that if such trust
is a Permitted Transferee under clause (i)(A) or (i)(D) of this definition,
each such beneficiary or grantor of such trust is a Person who would be
permitted to have an interest in such trust under such clause (i)(A) or
(i)(D);
(iii) as
to any Stockholder that is a limited partnership or limited liability company,
(A) any limited or general partner, member, officer, employee or affiliate
of such Stockholder or (B) any affiliate of any limited or general partner
or member of such Stockholder; and
(iv) as
to any Stockholder that is a corporation, all affiliates of such
Stockholder.
(i)
“Person” means
an individual, corporation, partnership, limited partnership, trust, association
or other legal entity.
(j)
“Private Sale”
means any sale, transfer or other disposition of Securities by a Selling
Stockholder that is not a Market Sale or a Public Sale.
(k) “Public Sale” means
(i) a primary sale of any equity securities of the Company by the Company
pursuant to a registration statement in which one or more Selling Stockholders
participates as a selling stockholder, or (ii) a secondary sale of equity
securities of the Company by Selling Stockholders pursuant to a registration
statement filed either by the Company for the benefit of such Selling
Stockholders or by such Selling Stockholders. For avoidance of doubt,
a Public Sale may also be a Market Sale if it satisfies clause (ii) of the
definition thereof.
(l)
“Sales” means
Private Sales, Public Sales and Market Sales, and includes Derivative
Transactions.
(m) “Securities” means
Shares and Warrants.
(n) “Selling Stockholder”
means any Stockholder other than UBS and Laidlaw.
(o) “Series A Preferred
Stock” means the Series A Participating Preferred Stock, par value
$0.0001 per share, of the Company.
(p) “Shares” means the
shares of Series A Preferred Stock and the shares of Common Stock.
3
(q) “Warrants” means
warrants and other rights issued by the Company to purchase Shares.
2. UBS Tag-Along
Rights.
(a) Private
Sales.
(i) If,
at any time after the date of this Agreement, a Selling Stockholder desires to
sell or otherwise transfer, directly or indirectly, through a Derivatives
Transaction or otherwise, in a Private Sale all or any portion of such Selling
Stockholder’s Securities then UBS shall have the right to participate in the
proposed Private Sale by such Selling Stockholder as provided in this Section
2(a). The Selling Stockholder shall give written notice (the “Tag-Along Notice”) to
UBS of each proposed Sale at least ten (10) days prior to the proposed effective
date of such Private Sale. The Tag-Along Notice shall set forth the terms and
conditions of the Private Sale, including the number of Securities that the
Selling Stockholder proposes to sell (the “Offered
Securities”),
the proposed timing of the Private Sale, the consideration to be paid for the
Offered Securities, the identity of the proposed purchaser, and all other
material terms and conditions of the Private Sale, including the proposed form
of written agreement, if any. UBS shall have the right to sell
to such transferee(s) a portion of its Securities equal to the product of (A)
the number of Securities then held by UBS and (B) a fraction (1) the numerator
of which shall be the number of Offered Securities, and (2) the denominator of
which shall be the total number of Securities held as of the date of this
Agreement by the Selling Stockholder(s) participating in such Sale (as adjusted
for stock splits, combinations and the like and as reduced by any Sales
previously made by such Selling Stockholder(s) subsequent to the date of this
Agreement). The price per share of Series A Preferred Stock to be
paid by such transferee(s) shall be equal to one hundred (100) times the price
to be paid by such transferee(s) for each share of Common Stock (subject to
equitable adjustment for stock splits, combinations and the like that are made
with respect to the Series A Preferred Stock where no corresponding adjustment
is made to the Common Stock).
(ii) The
tag-along rights provided in this Section 2(a) must be exercised by UBS within
ten (10) days after its receipt of the Tag-Along Notice, by delivery of a
written notice to the Selling Stockholder, with a copy to the Company,
indicating UBS’ desire to exercise its rights and specifying the number of
Securities (the “Tagging Securities”)
it wishes to sell. The Tagging Securities shall be in the same
proportion of Shares and Warrants as the Offered Securities. The
number of Securities that the Selling Stockholder may sell pursuant to this
Section 2 shall be reduced by the equivalent amount of the Tagging Securities,
unless (A) the transferee(s) have indicated their willingness to buy all of the
Securities that the Selling Stockholder and UBS desire to sell, (B) the Company,
at its sole option, elects to redeem such Tagging Securities or (C) the Selling
Stockholder elects to purchase such Tagging Securities. At the closing of such
Sale, UBS shall deliver (A) all documents required to be executed in connection
with such Private Sale and (B) the certificates for the Securities being sold to
the purchaser(s) thereof against receipt of the purchase price therefor paid by
certified or bank check or wire transfer.
(iii) In
lieu of the transferee(s) purchasing the Tagging Securities pursuant to this
Section 2(a), (A) the Company may, at its sole option, elect to redeem such
Tagging Securities at the same price per share as such transferee(s) would have
paid pursuant to the
provisions of Section 2(a) and/or (B) the Selling Stockholder may elect to
purchase such Tagging Securities at the same price per share as such
transferee(s) would have paid pursuant to the provisions of Section
2(a). Any such redemption by the Company or purchase by the Selling
Stockholder shall be completed prior to or simultaneously with the proposed
Sale.
4
(iv) If
UBS properly exercises its tag-along rights under this Section 2(a) and the
Tagging Securities are not (A) purchased by the purchaser of the Offered
Securities, (B) redeemed by the Company or (C) purchased by the Selling
Stockholder, then the Selling Stockholder shall not be permitted to consummate
the proposed Sale of the Securities, and any such attempted Sale shall be null
and void.
(v) Any
notice given by UBS in which it elects to exercise its tag-along rights provided
in this Section 2(a) shall be irrevocable and shall constitute a binding
agreement to sell (to either the proposed transferee(s) or the Selling
Stockholder) or submit for redemption to the Company such Tagging Securities as
are included therein on the terms and conditions applicable to such sale or
redemption.
(b) Market
Sales.
(i) If,
at any time after the date of this Agreement, a Selling Stockholder desires to
sell or otherwise transfer, directly or indirectly, through a Derivatives
Transaction or otherwise, in a Market Sale all or any portion of such Selling
Stockholder’s Securities then UBS may request that the Company redeem certain
Securities held by UBS as provided in this Section 2(b), and the right of the
Selling Stockholder to sell or otherwise transfer any Securities in such Market
Sale shall be subject to the Company agreeing, at its sole option, to redeem
such Securities pursuant to this Section 2(b). The Selling
Stockholder shall give a Tag-Along Notice to UBS and the Company of each
proposed Market Sale at least one (1) Business Day prior to the proposed
effective date of such Market Sale, subject to the timing set forth in Section
2(b)(iii) below. The Tag-Along Notice shall set forth the terms and
conditions of the Market Sale, including the number of Offered Securities and
the proposed timing of the Market Sale and the price per share (the
“Redemption
Price”) at which the shares of Series A Preferred Stock will be redeemed
(which shall be equal to one hundred (100) times the volume weighted average for
shares of Common Stock on the Market on the proposed date of such Market Sale
(subject to equitable adjustment for stock splits, combinations and the like
that are made with respect to the Series A Preferred Stock where no
corresponding adjustment is made to the Common Stock)). The Tag-Along
Notice shall be delivered by hand delivery to the addresses set forth on Exhibit B hereto and
confirmed telephonically to the Head of Strategic Investments for Equities and
Fixed Income at (203) 719-4155, as such addresses and telephone numbers may be
updated from time to time by UBS upon written notice to the Company and the
Stockholders.
(ii) If
UBS exercises its tag-along redemption rights in accordance with Section
2(b)(iii) below, UBS shall request the Company to redeem a portion of its
Securities equal to the product of (A) the number of Securities then held by UBS
and (B) a fraction (1) the numerator of which shall be the number of Offered
Securities, and (2) the denominator of which shall be the total number of
Securities held as of the date of this Agreement by the Selling Stockholder(s)
participating in such Sale (as adjusted for stock splits, combinations and the
like and as
reduced by any Sales previously made by such Selling Stockholder(s) subsequent
to the date of this Agreement).
5
(iii) If
the Tag-Along Notice is delivered prior to 10 a.m. New York time, the tag-along
redemption rights provided in this Section 2(b) must be exercised by UBS prior
to 5 p.m., New York time, on the date of the Tag-Along Notice and if the
Tag-Along Notice is delivered at or after 10 a.m. New York time, the tag-along
redemption rights provided in this Section 2(b) must be exercised by UBS prior
to 5 p.m., New York time, on the Business Day following its receipt of the
Tag-Along Notice. The tag-along redemption rights shall be exercised
by delivery of a written notice (the “Redemption Notice”)
to the Selling Stockholder, with a copy to the Company, indicating UBS’ desire
to exercise its rights and specifying the number of Tagging Securities it
requests to have the Company redeem. The Tagging Securities shall be
in the same proportion of Shares and Warrants as the Offered
Securities. The Company must notify the Selling Stockholder and UBS
whether it agrees, in its sole option, to effect the requested redemption within
the following applicable timeframe: (A) if the Company receives UBS’ Redemption
Notice at least two hours prior to 5 p.m., New York time, on the date of the
Redemption Notice, then it must provide such notification prior to 5 p.m., New
York time, on such date, or (B) if the Company receives UBS’ Redemption Notice
less than two hours prior to 5 p.m. or after 5 p.m., New York time, on the date
of the Redemption Notice, then it must provide such notification prior to 11:00
AM, New York time, on the Business Day following the date on which it received
UBS’ Redemption Notice. If the Company agrees, at its sole option, to
redeem such Tagging Securities, it shall do so within four Business Days of the
receipt by the Company of the Redemption Notice at the price per share set forth
in the Tag-Along Notice; provided, however, that if the Selling Stockholder does
not consummate the Market Sale set forth in the Tag-Along Notice, the Company
shall not be required to redeem the Tagging Securities and for the purposes of
this Agreement, the Tag-Along Notice shall be treated as having been
withdrawn.
(iv) If
UBS properly exercises its tag-along redemption rights under this Section 2(b)
and the Company does not agree to redeem the Tagging Securities, then the
Selling Stockholder(s) may elect to purchase the Tagging Securities at a price
per share equal to the Redemption Price.
(v) If
UBS properly exercises its tag-along redemption rights under this Section 2(b)
and (A) the Company does not agree to redeem the Tagging Securities and (B) the
Selling Stockholder(s) does not elect to purchase such Tagging Securities, then
the Selling Stockholder(s) shall not be permitted to consummate the proposed
Sale of the Securities, and any such attempted Sale shall be null and
void.
(vi) If
UBS properly exercises its tag-along redemption rights under this Section 2(b)
and the Company agrees to redeem the Tagging Securities but fails to do so for
any reason, then the Selling Stockholder(s) shall, within two Business Days of
such failure by the Company, purchase the Tagging Securities at the Redemption
Price.
(vii) Any
notice given by UBS in which it elects to exercise its tag-along redemption
rights provided in this Section 2(b) shall be irrevocable and shall constitute a
binding agreement to submit for redemption or sell to the Selling Stockholder
such Tagging Securities
as are included therein on the terms and conditions applicable to such
redemption or sale.
6
(c) Public
Sales. If at any time any Selling Stockholder proposes a
Public Sale that is not also a Market Sale (a “Subject Public
Sale”), the Company or the Selling Stockholder, as the case may be, shall
provide written notice (the “Offering Notice”) of
the Subject Public Sale to UBS at least twenty (20) Business Days prior to the
proposed effective date of the Subject Public Sale (the “Offering Date”),
setting forth the anticipated terms and conditions of the Subject Public
Sale. Upon receipt of an Offering Notice, UBS may elect to request
that the Company redeem a portion of its Securities equal to the product of (i)
the number of Securities then held by UBS and (ii) a fraction (A) the numerator
of which shall be the number of Securities to be sold by the Selling
Stockholder(s), and (B) the denominator of which shall be the total number of
Securities held by the Selling Stockholder(s) participating in such Sale as of
the date of this Agreement (as adjusted for stock splits, combinations and the
like and as reduced by any Sales previously made by such Selling
Stockholder(s)). The redemption rights provided in this Section 2(c)
must be exercised by UBS within ten (10) Business Days of the delivery of the
Offering Notice by delivering a written notice (an “Offering Redemption
Notice”) to the Company, with a copy to the Selling Stockholder, stating
the number of Securities requested to be redeemed pursuant thereto. The
Securities requested to be redeemed shall be in the same proportion of Shares
and Warrants as the Securities proposed to be sold in the Subject Public
Sale. The redemption price per share shall be equal to one hundred
(100) times the price per share of Common Stock received in the Public Sale by
the Selling Stockholder(s), before underwriter discounts or commissions (subject
to equitable adjustment for stock splits, combinations and the like that are
made with respect to the Series A Preferred Stock where no corresponding
adjustment is made to the Common Stock) (the “Offering Redemption
Price”). Upon receiving an Offering Redemption Notice pursuant
to this Section 2(c), the Company shall have two (2) Business Days to notify UBS
and the Selling Stockholder whether it will, at its sole option, redeem the
Securities requested in the Offering Redemption Notice. If it agrees
to redeem such Securities, it shall also within such time frame set a date for
redemption (the “Redemption Date”),
which date shall be no later than five (5) Business Days prior to the Offering
Date. If the Company does not agree to redeem any Securities subject
to an Offering Redemption, then the Selling Stockholder may elect to purchase
such Securities at a price per share equal to the Offering Redemption
Price. If (A) the Company does not agree to redeem any Securities
subject to an Offering Redemption and (B) the Selling Stockholder does not elect
to purchase such Securities, or if after having so agreed, the Company fails to
redeem or the Selling Stockholder fails to purchase, any Securities subject to
an Offering Redemption Notice pursuant to this Section 2(c), the Selling
Stockholder(s) may not consummate the Subject Public Sale. Any notice
given by UBS in which it elects to exercise its offering redemption rights
provided in this Section 2(c) shall be irrevocable and shall constitute a
binding agreement to submit for redemption or sell to the Selling Stockholder
such Securities as are included therein on the terms and conditions applicable
to such redemption or sale
(d) Exclusions. The
tag-along and redemption rights provided in this Section 2 shall not apply: (i)
in the case of a transfer to a Permitted Transferee, (ii) to a pledge that
creates a mere security interest, provided that the pledgee thereof agrees in
writing in advance to be bound by and comply with all applicable provisions of
this Agreement to the same extent as if it were the Stockholder making such
pledge, or (iii) any lien or pledge outstanding as of the date of this
Agreement; provided that in the case of
clause(s) (i) or (ii), the Stockholder shall deliver notice to UBS of such
pledge, gift or transfer and such Securities shall at all times remain subject
to the terms and restrictions set forth in this Agreement and such transferee
shall, as a condition to such transfer or pledge, deliver a counterpart
signature page to this Agreement as confirmation that such transferee shall be
bound by all the terms and conditions of this Agreement as a Stockholder (but
only with respect to the securities so transferred to the
transferee). For the purposes of any calculation in this Section 2
using the number of Securities held as of the date of this Agreement, such
calculations shall, for a transferee pursuant to this Section 2(c), instead use
the number of Securities received by such transferee pursuant
hereto.
7
(e) Volume
Exclusions. In addition to the exclusions set forth in Section
2(d) above, the tag-along rights and related obligations of the Company with
respect to redemptions provided in Sections 2(a), 2(b) and 2(c) shall not apply
to (i) Sales by Holdings of up to (A) 17.5% of the Securities held by such
Stockholder as of the date that such Stockholder first became party to this
Agreement in any consecutive twelve month period and (B) 35% in the aggregate of
the Securities held by such Stockholder as of the date that such Stockholder
first became party to this Agreement, (ii) Sales by the JBIII Stockholders of up
to (A) 25% in the aggregate of the Securities held by such Stockholders as of
the date that such Stockholders first became party to this Agreement in any
consecutive twelve month period and (B) 45% each in the aggregate of the
Securities held by such Stockholders as of the date that such Stockholders first
became party to this Agreement, and (iii) Sales by the JBIV Stockholders of up
to (A) 25% in the aggregate of the Securities held by such Stockholders as of
the date that such Stockholders first became party to this Agreement in any
consecutive twelve month period and (B) 45% each in the aggregate of the
Securities held by such Stockholders as of the date that such Stockholders first
became party to this Agreement. The following calculation shall be
used in determining the percentage of a Stockholder’s Securities that are being
sold or otherwise transferred in any given Sale: (x) the number of Securities
previously sold pursuant to this Section 2(e) and proposed to be sold by a
Stockholder divided by (y) the total number of Securities held by the Selling
Stockholder as of the date of this Agreement (as adjusted for stock splits,
combinations and the like).
3. Sales to UBS
Competitors.
(a) Restriction on Sale of
Shares. The Company and each Stockholder agrees that, prior to
the first anniversary of the date of this Agreement, it will not issue, sell or
otherwise transfer, directly or indirectly, any Securities to any bank, bank
holding company, broker-dealer or any Person controlling, controlled by or under
common control with any of them (a “UBS Competitor”)
unless agreed in writing by UBS.
(b) Exclusions. The
restriction contained in Section 3(a) shall not apply to:
(i) Market
Sales (including Public Sales that are Market Sales) so long as the Selling
Stockholder is reasonably unaware that it is selling Securities to a UBS
Competitor;
(ii) The
sale by the Company of up to an additional 690 Common Units (as defined below)
for $690,000 to LVCIII only if (x) such securities are sold by the Company
on economic terms not more favorable to LVCIII than those contemplated by the
Unit Purchase Agreement, dated as of December 31, 2009 (the “Unit Purchase
Agreement”), by and among the Company and LVCIII and (y) the
Non-Competition Agreement between the Company and LCUK remains in full force and
effect and has not been amended since the date hereof without UBS’
consent.
8
(iii) On
a Change of Control; provided that holders of Common Stock receive cash
consideration of at least $4.00 per share and holders of Series A Preferred
Stock receive cash consideration for all of their shares of Series A Preferred
Stock equal to no less than the greater of (i) $400.00 per share or (ii) 100
times the consideration per share received by holders of Common Stock in such
Change of Control. For the avoidance of doubt, the exclusion set forth in
this Section 3(b)(iii) shall only apply if all shares of Series A Preferred
Stock then held by UBS are being purchased. The prices set forth in
this Section 3(b)(iii) are subject to equitable adjustment for stock splits,
combinations and the like.
(iv) The
issuance by the Company of shares of Common Stock upon the exercise of Warrants
which were acquired by LVCIII or LCUK pursuant to the transactions described in
the Unit Purchase Agreement or any additional Warrants which are acquired
pursuant to clause (ii) above; provided that the Warrants to be issued to LCUK
may be allocated to its officers and employees.
(v) The
distribution of the Securities owned by Laidlaw to its members.
(c) Definitions. For
purposes of this Section 3, a “Common Unit shall
consist of (i) 2,667 shares of Common Stock and (ii) the right, within three
years from the date of sale of the Common Units, to purchase 7,200 additional
shares of Common Stock.
4. Board
Composition. The Company and each Stockholder hereby agrees
that at no time while UBS continues to own any Shares will the Company and/or
the Stockholders appoint or vote in favor of, as applicable, any nominee to the
Board that is affiliated with a UBS Competitor unless UBS agrees thereto in
writing; provided, however, that the foregoing restriction shall not apply to
Edwin L. Knetzger or Michael Sanderson.
5. Certain
Sales. At any time on or after January 11, 2015, to the extent
UBS holds any shares of Series A Preferred Stock or Warrants for
shares of Series A Preferred Stock (the “Remaining
Securities”), UBS may provide notice to the Company of its desire to sell
all or any portion of the Remaining Securities. Upon receipt of such
notice, the Company will use its commercially reasonable efforts to assist UBS
in facilitating a sale, transfer or other disposition of the Remaining
Securities (which, for avoidance of doubt, shall not include any obligation to
pursue or consummate a Change of Control). Alternatively, upon
receipt of such notice, the Company may, at its sole option, redeem the
Remaining Securities at a price per share equal to 100 times the fair market
value of a share of Common Stock as determined in accordance with Section 3(d)
of the Certificate of Designation (subject to equitable adjustment for stock
splits, combinations and the like that are made with respect to the Series A
Preferred Stock where no corresponding adjustment is made to the Common
Stock).
9
6. No Mandatory
Redemption. For avoidance of doubt and notwithstanding
anything to the contrary herein, any redemption of Shares or other securities by
the Company referenced herein shall not be mandatory and shall be made only at
the Company’s sole and exclusive option, unless and then only to the extent
specifically agreed to by the Company (at its sole and exclusive option) in
writing in response to a redemption request made under this
Agreement.
7. Increase of Authorized
Common Stock. Each of the JBIII Stockholders and JBIV
Stockholders hereby covenant and agree that he, she or it, as the case may be,
will not withdraw his, her or its consent to the adoption and approval of the
Certificate of Amendment to Certificate of Incorporation of the Company to
increase the authorized shares of Common Stock to 300,000,000.
8. [Intentionally
Omitted]
9. Non-Competition
Agreement. The Company hereby agrees that it will not amend or
waive, or otherwise approve any exception to, any provision of the
Non-Competition Agreement, dated as of the date hereof, by and between the
Company and LCUK, without the prior written consent of UBS (the “Non-Competition
Agreement”).
10. Miscellaneous
(a) Notices. Any
notices, consents, waivers or other communications required or permitted to be
given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon
receipt, when sent by facsimile (provided confirmation of transmission is
mechanically or electronically generated and kept on file by the sending party);
or (iii) one business day after deposit with an overnight courier service prior
to such service’s deadline for next-business day delivery to the recipient (all
delivery charges prepaid), in each case properly addressed to the party to
receive the same. The addresses and facsimile numbers for such
communications shall be:
If to the
Company:
Bonds.com
Group, Inc.
1515
Federal Highway
Suite
212
Boca
Raton, Florida 33432
Phone:
(561) 953-5343
Fax:
(561) 395-3212
Attention:
Chief Executive Officer
10
with a
copy (for informational purposes only) to:
Hill Ward
Henderson
3700 Bank
of America Plaza
101 East
Kennedy Boulevard
Tampa,
Florida 33602
Telephone:
(813) 227-8484
Facsimile: (813)
221-2900
Attention: Mark
A. Danzi, Esq.
If to any
Stockholder, at the address and facsimile number set forth on Exhibit A
hereto,
or to
such other address, facsimile number and/or email address and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender’s facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by an overnight courier service shall
be rebuttable evidence of personal service, receipt by facsimile or receipt from
an overnight courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(b) Further Instruments and
Actions. The Company and each Stockholder shall execute such
further instruments and take such further action as may reasonably be necessary
to carry out the intent of this Agreement and to enforce rights and obligations
pursuant hereto. No Stockholder shall vote any Shares, or to take any
other action, that would defeat, impair, be inconsistent with or adversely
affect the stated intentions of the parties under this Agreement.
(c) Additional
Stockholders. Notwithstanding
anything to the contrary contained herein, if after the date hereof, any
stockholder of the Company acquires additional Shares so that such stockholder
owns twenty percent (20%) or more of any class of the outstanding voting capital
stock of the Company, the Company shall use its reasonable best efforts to have
such stockholder become a party to this Agreement by executing and delivering an
additional counterpart signature page to this Agreement and such stockholder
shall thereafter be deemed a “Stockholder” for all purposes
hereunder. In addition, the Company will not issue any Shares such
that the recipient thereof would own twenty percent (20%) or more of any class
of the outstanding voting capital stock of the Company unless such stockholder
becomes a party to this Agreement by executing and delivering an additional
counterpart signature page to this Agreement and such stockholder shall
thereafter be deemed a “Stockholder” for all purposes hereunder No
action or consent by the Stockholders shall be required for such joinder to this
Agreement by such additional stockholder(s), so long as such additional
stockholder has agreed in writing to be bound by all of the obligations as a
“Stockholder” hereunder.
(d) Successors and
Assigns. This Agreement and the rights and obligations of the
parties hereunder shall inure to the benefit of, and be binding upon, their
respective successors, assigns and legal representatives. The rights
of the Stockholders hereunder are only assignable
or transferable in connection with the transfer of any shares held by such
Stockholder. The rights of UBS hereunder shall only be transferable
to an affiliate of UBS.
11
(e) Governing Law; Jurisdiction;
Jury Trial. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
the internal laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State of New York or
any other jurisdictions) that would cause the application of the laws of any
jurisdictions other than the State of New York. Each party hereby
irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in the City of New York, Borough of Manhattan for the adjudication of
any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of any such court, that such suit, action
or proceeding is brought in an inconvenient forum or that the venue of such
suit, action or proceeding is improper. Each party hereby irrevocably
waives personal service of process and consents to process being served in any
such suit, action or proceeding by mailing a copy thereof to such party at the
address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY WAIVES
ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
(f) Counterparts. This
Agreement may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party;
provided that a facsimile signature shall be considered due execution and shall
be binding upon the signatory thereto with the same force and effect as if the
signature were an original, not a facsimile signature.
(g) Headings. The
headings of this Agreement are for convenience of reference and shall not form
part of, or affect the interpretation of, this Agreement.
(h) Severability. If
any provision of this Agreement is prohibited by law or otherwise determined to
be invalid or unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall be deemed
amended to apply to the broadest extent that it would be valid and enforceable,
and the invalidity or unenforceability of such provision shall not affect the
validity of the remaining provisions of this Agreement so long as this Agreement
as so modified continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the prohibited
nature, invalidity or unenforceability of the provision(s) in question does not
substantially impair the respective expectations or reciprocal obligations of
the parties or the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good faith
negotiations to replace the prohibited, invalid or unenforceable provision(s)
with a valid
provision(s), the effect of which comes as close as possible to that of the
prohibited, invalid or unenforceable provision(s).
12
(i) Entire Agreement;
Amendments. This supersedes all other prior oral or written
agreements between the Company, the Stockholders, their affiliates and Persons
acting on their behalf with respect to the matters discussed herein, and this
Agreement contains the entire understanding of the parties with respect to the
matters covered herein and therein. No provision of this Agreement
may be amended other than by an instrument in writing signed by the Company, the
Stockholders and any of their respective successors or assigns. No
provision hereof may be waived other than by an instrument in writing signed by
the party against whom enforcement is sought.
(j) No Third Party
Beneficiaries. This Agreement is intended for the benefit of
the parties hereto and their respective permitted successors and assigns, and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person.
(k) Injunctive
Relief. Without limiting the right of any party to seek any
remedy available to such party for the breach or threatened breach of this
Agreement, the parties agree that injunctive relief may be sought by any party
to enjoin any breach or threatened breach of this Agreement without having to
prove irreparable harm or actual damages and each party hereto waives any
defense to any such action for injunctive relief that there is an adequate
remedy at law for such breach or threatened breach.
(l) Copies of this
Agreement. The Company shall supply, free of charge, a copy of
this Agreement to any Stockholder upon written request from such Stockholder to
the Company at its principal office.
(m) Termination. The
provisions of this Agreement shall terminate upon the earlier to occur of (i)
the date UBS no longer owns any Shares or (ii) a Change of Control pursuant to
which UBS Securities are treated in accordance with Section 3 of the Certificate
of Designation relating to the Series A Preferred Stock.
[The
remainder of this page has been intentionally left blank.]
13
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
|
BONDS.COM
GROUP, INC.
|
|||
|
By:
|
/s/ Christopher Loughlin | ||
|
Name:
|
Christopher Loughlin | ||
|
Title:
|
Chief Operating Officer | ||
|
UBS
AMERICAS INC.
|
|||
|
By:
|
/s/ Carolyn Wind | ||
|
Name:
|
Carolyn Wind | ||
|
Title:
|
Managing Director | ||
|
By:
|
/s/ Joan Lavis | ||
|
Name:
|
Joan Lavis | ||
|
Title:
|
Managing Director Strategy & Business Development |
[Signature
Page to the Stockholders’ Agreement]
|
FUND
HOLDINGS LLC
|
|||
|
By:
|
/s/ Edwin L. Knetzger, III | ||
|
Name:
|
Edwin L. Knetzger, III | ||
|
Title:
|
Manager | ||
[Signature
Page to the Stockholders’ Agreement]
|
JOHN
J. BARRY III AND
HOLLY A.W. BARRY
|
||
| /s/ John J. Barry III | ||
|
John
J. Barry III
|
| /s/ Holly A.W. Barry | ||
|
Holly
A.W. Barry
|
|
DUNCAN
FAMILY, LLC
|
|||
|
By:
|
/s/ John J. Barry III | ||
|
John
J. Barry III, Managing Member
|
|||
|
By:
|
/s/ Holly A.W. Barry | ||
|
Holly
A.W. Barry, Managing Member
|
|
DUNCAN
FAMILY REVOCABLE TRUST
|
|||
|
By:
|
/s/ John J. Barry III | ||
|
John
J. Barry III, Co-Trustee
|
|||
|
By:
|
/s/ Holly A.W. Barry | ||
|
Holly
A.W. Barry, Co-Trustee
|
|
OTIS
ANGEL, LLC
|
|||
|
By:
|
/s/ John J. Barry IV | ||
|
John
J. Barry IV, Authorized Person
|
|||
[Signature
Page to the Stockholders’ Agreement]
|
SIESTA
CAPITAL, LLC
|
|||
|
By:
|
/s/ John J. Barry IV | ||
|
John
J. Barry IV, Authorized Person
|
|||
|
BOND
PARTNERS, LLC
|
|||
|
By:
|
/s/ John J. Barry IV | ||
|
John
J. Barry IV, Authorized Person
|
|||
|
JOHN
J. BARRY IV REVOCABLE TRUST
U/A/D
NOVEMBER 9, 2001
|
|||
|
By:
|
/s/ John J. Barry IV | ||
|
John
J. Barry IV, Trustee
|
|||
|
LAIDLAW
VENTURE PARTNERS III, LLC
|
|||
|
By:
|
/s/ Michael Sanderson | ||
|
Name:
|
Michael Sanderson | ||
|
Title:
|
Executive Director | ||
[Signature
Page to the Stockholders’ Agreement]
|
LAIDLAW
& COMPANY (UK) LTD.
|
|||
|
By:
|
/s/ Hugh Regan | ||
|
Name:
|
Hugh Regan | ||
|
Title:
|
President | ||
[Signature
Page to the Stockholders’ Agreement]
Exhibit
A
Stockholders
Stockholder Name and Notice
Address
UBS
AMERICAS INC.
677
Washington Boulevard
Stamford,
CT 06901
Telephone: (203)
719-5427
Facsimile: (203)
719-5627
Attention: Head
of Traded Products – Legal
with a
copy (for informational purposes only) to:
Bingham
McCutchen LLP
399 Third
Avenue
New York,
New York 10022
Telephone: (212)
705-7278
Facsimile: (212)
702-3645
Attention: Kenneth
A. Kopelman, Esq.
FUND
HOLDINGS LLC
c/o
DivcoWest
575
Market Street, 35th
Floor
San
Francisco, California 94105
Telephone: (415)
284-5700
Facsimile: (415)
995-5555
Attention: Edwin
L. Knetzger, III
with a
copy (for informational purposes only) to:
Gibson,
Dunn & Crutcher LLP
2029
Century Park East
Los
Angeles, California 90067
Telephone: (310)
552-8580
Facsimile: (310)
552-7038
Attention: Mark
S. Lahive, Esq.
TO ANY OF
THE JBIII STOCKHOLDERS:
c/o
Bonds.com Group, Inc.
1515
Federal Highway
Suite
212
Boca
Raton, Florida 33432
Phone: (561)
953-5343
Fax: (561)
395-3212
Attention:
John Barry, III and John J. Barry IV
TO ANY OF
THE JBIV STOCKHOLDERS:
c/o
Bonds.com Group, Inc.
1515
Federal Highway
Suite
212
Boca
Raton, Florida 33432
Phone: (561)
953-5343
Fax: (561)
395-3212
Attention: John
J. Barry IV
LAIDLAW
VENTURE PARTNERS III, LLC
90 Park
Avenue, 31st
Floor
New York,
NY 10016
Attn: Hugh
Regan, President
Phone: (212)
697-5200
Fax: (212)
297-0670
LAIDLAW
& COMPANY (UK) LTD.
90 Park
Avenue, 31st
Floor
New York,
NY 10016
Attn: Hugh
Regan, President
Phone: (212)
697-5200
Fax: (212)
297-0670
Exhibit
B
Notice Addresses for
Tag-Along Notice
UBS
AMERICAS INC.
677
Washington Blvd.
Stamford,
CT 06901
Attention: Head
of Strategic Investments for Equities and Fixed Income
UBS
AMERICAS INC.
100
Liverpool St.
EC2M 2RH
London, UK
Attention: Head
of Global eBusiness, Fixed Income
UBS
AMERICAS INC.
677
Washington Boulevard
Stamford,
CT 06901
Attention: Head
of Traded Products – Legal
BINGHAM
MCCUTCHEN LLP
399 Third
Avenue
New York,
New York 10022
Attention: Kenneth
A. Kopelman, Esq.