EXHIBIT 5.
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Amended and
Restated Agreement"), dated as of January 23, 2006, is by and among
Aduromed
Corporation, a Delaware corporation ("Aduromed"), General Devices,
Inc.,
Delaware corporation ("GDI"), each holder of GDI Series A Preferred
and GDI
Series B Preferred (collectively, the "Preferred Holders") and the
Persons
holding a majority of the issued and outstanding shares of GDI's
Common Stock
set forth on Annex A hereto (collectively the "Common Holders" and
together with
the Preferred Holders, the "Stockholders"). Capitalized terms used
but not
otherwise defined herein shall have the respective meanings
ascribed thereto in
the Amended and Restated Securities Purchase Agreement (as defined
below).
WHEREAS, Aduromed, the Preferred Holders and certain other Persons
have heretofore entered into that certain Stockholders Agreement,
dated as of
September 30, 2005 (the "Original Agreement");
WHEREAS, Aduromed has heretofore entered into that certain Amended
and
Restated Agreement and Plan of Merger, dated as of January 23, 2006
(the "Merger
Agreement"), by and among Aduromed, GDI, GD MergerSub, Inc., a
Delaware
corporation, and GD MergerSub II, Inc., a Delaware corporation
("MergerSub"),
pursuant to which MergerSub agreed to merge with and into Aduromed
(the
"Merger"), with Aduromed as the surviving entity of the Merger;
WHEREAS, in connection with the Merger, GDI has issued to the
Preferred Holders certain shares of GDI Series A Preferred and
First Closing GDI
Warrants; and
WHEREAS, in connection with the Merger, Aduromed, GDI and the
Preferred Holders have heretofore entered into that certain Amended
and Restated
Securities Purchase Agreement, dated as of January 23, 2006 (the
"Amended and
Restated Purchase Agreement"), pursuant to which GDI has issued to
the Preferred
Holders certain shares of GDI Series B Preferred and Second Closing
GDI
Warrants; and
WHEREAS, pursuant to the Original Agreement, in connection with the
Merger, Aduromed is required to cause GDI to enter into this
Amended and
Restated Agreement with the Preferred Holders and the other parties
hereto;
NOW, THEREFORE, in consideration of the foregoing, the agreements
set
forth below, and other good and valuable consideration, the receipt
of which is
acknowledged, the parties hereto hereby agree that the Original
Agreement be,
and hereby is, amended and restated in its entirety as herein set
forth:
1. Definitions. As used in this Amended and Restated Agreement, the
following terms shall have the meanings set forth below:
"Aduromed" has the meaning set forth in the preamble to this
Amended and Restated Agreement.
"Affiliate" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under
the Exchange
Act. In addition, any limited partner or member, as the case may
be, of a
Stockholder shall be deemed to be an Affiliate of such Stockholder.
"Amended and Restated Agreement" means this Amended and Restated
Stockholders Agreement as the same may be amended, restated,
supplemented or
modified in accordance with the terms herein.
"Board of Directors" means the Board of Directors of GDI.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York are
authorized or
required by law or executive order to close.
"Charter Documents" means the certificate of incorporation and
bylaws of GDI as in effect from time to time.
"Commission" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities
Act.
"Common Holders" has the meaning set forth in the preamble to
this Amended and Restated Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
thereunder.
"GDI" has the meaning set forth in the preamble to this Amended
and Restated Agreement.
"Issuance Notice" has the meaning set forth in Section 2.3(a) of
this Amended and Restated Agreement.
"Management Designees" has the meaning set forth in Section
3.3(c) of this Amended and Restated Agreement.
"Permitted Securities" means (i) the GDI Series A Preferred, GDI
Series B Preferred and GDI Warrants issued or to be issued pursuant
to the
Merger Agreement and/or Amended and Restated Securities Purchase
Agreement, (ii)
the GDI Conversion Shares issuable upon conversion of the GDI
Series A Preferred
and GDI Series B Preferred, (iii) the GDI Warrant Shares issuable
upon exercise
of the GDI Warrants and (iv) any Securities issuable pursuant to an
employee
stock option plan approved by each of the Preferred Designees.
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"Person" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture,
joint stock
company, limited liability company or other entity of any kind, and
shall
include any successor (by merger or otherwise) of such entity.
"Preemptive Interests" has the meaning set forth in Section 2.3
of this Amended and Restated Agreement.
"Preemptive Purchaser" has the meaning set forth in Section
2.3(b)(i) of this Amended and Restated Agreement.
"Preferred Designees" has the meaning set forth in Section 3.3(b)
of this Amended and Restated Agreement.
"Preferred Holders" has the meaning set forth in the preamble to
this Amended and Restated Agreement.
"Pro Rata Share" means, with respect to any Preferred Holder, a
quotient, expressed as a percentage, (i) the numerator of which is
equal to the
aggregate number of shares of GDI Series A Preferred and GDI Series
B Preferred
then held by such Preferred Holder and (ii) the denominator of
which is equal to
the aggregate number of shares of GDI Series A Preferred and GDI
Series B
Preferred then held by all Preferred Holders.
"Response Notice" has the meaning set forth in Section 2.3(b)(i)
of this Amended and Restated Agreement.
"Securities" means, collectively, the Shares, the Warrants and
any other equity security of GDI now or hereafter issued and
outstanding.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated
thereunder.
"Shares" means, collectively, all shares, whether now owned or
hereafter acquired, of GDI Common Stock, GDI Series A Preferred,
GDI Series B
Preferred, GDI Warrant Shares, GDI Conversion Shares or of any
other series or
class of capital stock of GDI.
"Stockholders" means, collectively, (a) the Preferred Holders,
(b) the Common Holders and (c) any other Person that becomes a
party hereto and
has agreed to be or is bound by the terms and conditions of this
Amended and
Restated Agreement as a "Stockholder" hereunder.
"Stockholders Meeting" has the meaning set forth in Section 3.1
of this Amended and Restated Agreement.
"Subsequent Issuance Notice" has the meaning set forth in Section
2.3(b)(ii) of this Amended and Restated Agreement.
"Subsequent Response Notice" has the meaning set forth in Section
2.3(b)(ii) of this Amended and Restated Agreement.
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"Transfer" means any transfer, exchange, sale or other
disposition.
"Unrestricted Additional Securities" has the meaning set forth in
Section 2.3(c) of this Amended and Restated Agreement.
"Unrestricted Securities" has the meaning set forth in Section
2.3(b)(ii) of this Amended and Restated Agreement.
"Written Consent" has the meaning set forth in Section 3.1 of
this Amended and Restated Agreement.
2. After-Acquired Securities; Agreement to be Bound; Preemptive
Rights.
2.1 After-Acquired Securities. All of the provisions of this
Amended and Restated Agreement shall apply to all of the Securities
now owned or
which may be issued or Transferred hereafter to a Stockholder in
consequence of
any additional issuance, purchase, exchange or reclassification of
any of such
Securities, any exercise of any security convertible or exercisable
into a
Security, any corporate reorganization, or any other form of
recapitalization,
consolidation, merger, share split or share dividend, or which are
acquired by a
Stockholder in any other manner. No Stockholder may Transfer any
Security unless
the transferee thereof shall, as a condition precedent to such
Transfer, agree
in writing to be bound by the terms and conditions of this Amended
and Restated
Agreement as a "Stockholder" hereunder.
2.2 Agreement to be Bound. GDI shall not issue any Securities to
any Person not a party to this Amended and Restated Agreement
unless such Person
has agreed in writing to be bound by the terms and conditions of
this Amended
and Restated Agreement as a "Stockholder" hereunder. Upon becoming
a party to
this Amended and Restated Agreement, such Person shall be deemed to
be, and
shall be subject to the same obligations as, a Stockholder,
Preferred Holder or
Common Holder, as applicable, hereunder. Any issuance of Securities
by GDI in
violation of this Section 2.2 shall be null and void ab initio and
neither GDI
nor any transfer agent shall give effect in GDI's stock records to
such
attempted issuance. The foregoing provisions shall not, in any
case, be
applicable to any issuance or Transfer of Shares made to
underwriters in
connection with an underwritten public offering of such Shares
registered under
the Securities Act or any issuance or Transfer of Shares that is
conducted
publicly through one or more registered broker dealers over a stock
exchange or
interdealer quotation service where the Shares are listed or
quoted.
2.3 Preemptive Rights. After the date hereof, in the event that
GDI proposes to issue any Securities other than Permitted
Securities
(collectively, "Preemptive Interests"), GDI shall comply with the
provisions of
this Section 2.3.
(a) Issuance Notice. GDI shall give the Preferred Holders
written notice of GDI's intention to issue such Preemptive
Interests (the
"Issuance Notice"), describing the material terms of the Preemptive
Interests,
the price at which such Preemptive Interests will be issued or sold
and the
material terms upon which GDI proposes to issue or sell such
Preemptive
Interests, including the anticipated date of such issuance or sale.
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(b) Response Notice.
(i) Each Preferred Holder shall have thirty (30) days
from the date the Issuance Notice is received to agree to purchase
all (but not
less than all) of such Preferred Holder's Pro Rata Share of such
Preemptive
Interests by giving written notice to GDI of its desire to purchase
such
Preferred Holder's Pro Rata Share of such Preemptive Interests (the
"Response
Notice"). Such Response Notice shall constitute the irrevocable
agreement of
such Preferred Holder (a "Preemptive Purchaser") to purchase all
(but not less
than all) of such Preemptive Purchaser's Pro Rata Share of the
Preemptive
Interests at the price and upon the terms stated in the Issuance
Notice.
(ii) In the event any Preemptive Interests remain
unsubscribed thirty (30) days after delivery of the Issuance Notice
(the
"Unsubscribed Securities"), GDI shall promptly issue a subsequent
Issuance
Notice (the "Subsequent Issuance Notice") to each Preemptive
Purchaser. Each
Preemptive Purchaser shall have ten (10) days from the date the
Subsequent
Issuance Notice is received to agree to purchase all or any portion
of the
Unsubscribed Securities by giving a second Response Notice (the
"Subsequent
Response Notice") and stating therein the quantity of Unsubscribed
Securities to
be purchased. Such Subsequent Response Notice shall constitute the
irrevocable
agreement of such Preemptive Purchaser to purchase the quantity of
Unsubscribed
Securities indicated in such Subsequent Response Notice at the
price and upon
the terms stated in the Issuance Notice. If such Preemptive
Purchasers subscribe
for more than the Unsubscribed Securities available, the
Unsubscribed Securities
shall be allocated among each such Preemptive Purchaser in
proportion to each
such Preemptive Purchaser's respective Pro Rata Share.
(c) Unsubscribed Securities. In the event any Unsubscribed
Securities remain unsubscribed ten (10) days after delivery of the
Subsequent
Issuance Notice (the "Unrestricted Additional Securities"), GDI
shall have the
right, but not the obligation, to issue and sell such Unrestricted
Additional
Securities to any Person within ninety (90) days from the date of
the initial
Issuance Notice at a price and upon the terms that are not
materially less
favorable to GDI than those specified in the Issuance Notice. If
GDI proposes to
issue any Preemptive Interests after such 90-day period or at a
price or upon
terms that are materially less favorable to GDI than those
specified in the
Issuance Notice, it must again comply with this Section 2.3.
(d) Closings of Sales of Preemptive Interests. Any purchase
of Preemptive Interests by any Preemptive Purchaser pursuant to the
this Section
2.3 shall be consummated on the closing date specified in the
Issuance Notice
(or, if other Persons are purchasing Unrestricted Additional
Securities, the
date on which such Unrestricted Additional Securities are first
issued and sold
to such other Persons).
3. Corporate Governance.
3.1 General. From and after the execution of this Amended and
Restated Agreement, each Stockholder shall vote its Shares at any
regular or
special meeting of stockholders of GDI (a "Stockholders Meeting")
or in any
written consent executed in lieu of such a meeting of stockholders
(a "Written
Consent"), and shall take all other actions necessary,
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to give effect to the provisions of this Amended and Restated
Agreement
(including, without limitation, Section 3.3 hereof) and to ensure
that the
Charter Documents do not, at any time hereafter, conflict in any
respect with
the provisions of this Amended and Restated Agreement, it being
understood and
agreed by the parties hereto that the Charter Documents do not, as
of the date
hereof, conflict in any respect with the provisions of this Amended
and Restated
Agreement. In addition, each Stockholder shall vote its Shares at
any
Stockholders Meeting or act by Written Consent with respect to such
Shares, upon
any matter submitted for action by GDI's stockholders or with
respect to which
such Stockholder may vote or act by Written Consent, in conformity
with the
specific terms and provisions of this Amended and Restated
Agreement and the
Charter Documents.
3.2 Stockholder Actions. In order to effectuate the provisions of
this Section 4, each Stockholder (a) hereby agrees that when any
action or vote
is required to be taken by such Stockholder pursuant to this
Amended and
Restated Agreement, such Stockholder shall use its reasonable best
efforts to
call, or cause the appropriate officers and directors of GDI to
call, a
Stockholders Meeting, or to execute or ca
