THIS
SHAREHOLDERS’ AGREEMENT is entered into this 28th day of
September, 2006, by and among Across America Real Estate Corp., a
Colorado corporation (the “ Company ”), BOCO
Investments, LLC, a Colorado limited liability company (“
BOCO ”) and GDBA Investments, LLLP, a Colorado limited
liability limited partnership (“ GDBA ”). BOCO
and GDBA are referred to herein as an “ Investor
” and together, the “ Investors”
.
WHEREAS, the
Investors are purchasing on the date hereof 500,000 shares of the
Company’s Series A Convertible Preferred Stock (the
“ Preferred Stock ”) and an aggregate principal
amount of $7,000,000 of the Company’s senior subordinated
notes (the “ Notes ”) and have agreed to
purchase from the Company up to an additional $7,000,000 principal
amount of the Notes in the future from time to time; and
WHEREAS, the
Company expects to receive substantial benefits as a result of the
purchase by the Investors of the Preferred Stock and the Notes;
and
WHEREAS, the
execution of this shareholders’ agreement relating to the
election of members to the Company’s board of directors (the
“ Board ”) is a condition to the purchase of the
Preferred Stock and Notes by the Investors;
NOW, THEREFORE, in
consideration of the mutual promises and covenants contained
herein, and for other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1.
Election of Directors .
(a) Until
the termination of this Agreement in accordance with Section 4
hereof, at each annual meeting of the shareholders of the Company
and at each special meeting of the shareholders of the Company
called for the purpose of the election of directors of the Company,
and at any other time at which shareholders of the Company will
have the right to or will vote for or consent in writing to the
election of directors of the Company, then each of the Investors
hereby covenants and agrees to vote all shares of capital stock
(including shares of Preferred Stock) of the Company now or
hereafter owned or controlled by it and otherwise use its
respective best efforts as a shareholder of the Company as
follows:
(i)
in favor of causing and maintaining the election to the Board of
Directors of the two (2) designated Investor Directors (as
provided in Section 1(c) and 1(d)); and
(ii)
against the election or continued service of any director (other
than the Investor Directors) who is an Affiliate of either of the
Investors.
(b) Promptly
after execution of this Agreement, but in any event within five
(5) days hereof, the Company shall take all necessary and
desirable actions within its control (including, without
limitation, calling special board meetings), so that the authorized
number of
directors on
the Board of Directors shall be increased to five directors and the
Initial BOCO Director (as defined in Section 1(c)) shall be
named to fill the vacancy created by reason of such increase in the
number of directors. At each annual meeting of shareholders, the
Company shall nominate for election to the Board of Directors the
individuals designated to be Investor Directors as provided in
Section 1(c) and 1(d).
(c) BOCO
shall be entitled to designate one individual to be nominated for
election to Board of Directors (the “ BOCO Director
”). The initial BOCO Director shall be Joseph C. Zimlich (the
“ Initial BOCO Director ”). Unless and until the
Company receives written notice from BOCO to the contrary, the
Initial BOCO Director shall be nominated by the Company for
election to the Board of Directors at each annual meeting of
shareholders.
(d) GDBA
shall be entitled to designate one individual to be nominated for
election to Board of Directors (the “ GDBA Director
” and together with the BOCO Director, the “
Investor Directors ”). The initial GDBA Director shall
be G. Brent Backman (the “ Initial GDBA Director
”). The Initial GDBA Director was previously appointed to and
is currently serving on the Board of Directors. Unless and until
the Company receives written notice from GDBA to the contrary, the
Initial GDBA Director shall be nominated by the Company for
election to the Board of Directors at each annual meeting of
shareholders as set forth in Section 1(b).
(e)
“ Affiliate ” for the purposes of this Agreement
shall mean a person or entity controlling, controlled by or under
common control with the Investors, including, without limitation,
any officer, employee or principal of an Investor.
(f) The
authorized number of directors on the Board of Directors shall not
be increased to more than five directors wi
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