EXHIBIT 10.03
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS'
AGREEMENT (this "Agreement"), dated as of November
30, 2006 (the
"Effective Date"),
is by and among
Mortgage Assistance
Center
Corporation, a Florida
corporation (the
"Company"),
those certain holders
of
Common Stock (as
hereinafter defined)
of the Company as set forth on Exhibit A
(individually, a
"Stockholder," and collectively, the "Stockholders") and each
of the existing Series A Preferred Stock (as hereinafter
defined) investors
and
holders of warrants as set forth on Exhibit B (individually,
an "Investor," and
collectively, the "Investors").
RECITALS:
A. The Company has an authorized capitalization consisting of (i)
Fifty
million (50,000,000)
shares of common
stock, $0.001 par value per share
(the
"Common Stock"), and
(ii) Four million
(4,000,000) shares of
preferred stock,
$0.001 par
value per share, including the designation of Three million
(3,000,000) shares
of Series A
Preferred Stock, $0.001 par value per share
("Series A
Preferred Stock"), pursuant to the Company's Articles of
Incorporation, as amended (collectively, the "Articles of
Incorporation").
B. The record and
beneficial ownership
of the issued and
outstanding
shares of the Common
Stock, the Series A
Preferred Stock and warrants (the
"Warrants") to purchase Common Stock (the "Warrant Shares")
(collectively,
the
"Capital Stock") held
by the Stockholders
and the Investors are set forth on
Exhibits A and B.
C. The Company and the Investors are parties to the Company's
Series A
Preferred Stock and
Common Stock Warrant
Purchase Agreement,
dated as of the
Effective Date (the
"Purchase Agreement"),
pursuant to which the
Company will
sell Series A Preferred Stock and the Warrants to the
Investors.
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual covenants and
agreements
contained in this Agreement, and intending to be legally bound
hereby, each of
the parties covenants and agrees as follows:
ARTICLE I
STOCK CERTIFICATES
The Stockholders and the Investors agree that the stock
certificate or
certificates from
time to time
representing
their respective shares of the
Company's Capital
Stock shall be registered in the name of the Stockholders and
the Investors
and shall bear,
in addition to any
other legend required
to be
placed thereon, a conspicuous legend substantially stating the
following:
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THE SHARES REPRESENTED
HEREBY ARE SUBJECT TO
A STOCKHOLDERS'
AGREEMENT DATED AS OF
NOVEMBER 30, 2006, AS MAY BE AMENDED OR
RESTATED, AMONG THE
COMPANY AND CERTAIN STOCKHOLDERS AND
INVESTORS OF
THE COMPANY. A COPY OF SUCH STOCKHOLDERS'
AGREEMENT IS AVAILABLE
FOR INSPECTION
AT THE OFFICES OF
THE
COMPANY AND MAY BE REVIEWED UPON REQUEST.
Upon execution and delivery of this Agreement, the Stockholders agree to
return
to the Secretary of the Company any stock certificate or
certificates previously
delivered to it so that such legend shall be placed thereon.
The Company agrees
that it shall not remove, and shall not permit to be
removed, such legend
from
any certificate,
and the Company shall
place or cause to be placed such legend
on any new certificate issued.
ARTICLE II
TRANSFER RIGHTS AND RESTRICTIONS
Section 2.1 General
Restriction on Common
Stock. Except as
otherwise
expressly permitted
by this Agreement, none of the Stockholders may sell,
exchange, give,
encumber, pledge, hypothecate or otherwise dispose of
("Transfer"),
either voluntarily,
involuntarily
or by operation of law
(including any
Transfer pursuant to equitable distribution proceedings or
pursuant to a divorce decree) any of the Common Stock held by such
Stockholders,
or any rights or interest appertaining thereto, whether now owned or hereafter
acquired.
Section 2.2 Transfers of Preferred Stock. Subject to the requirements
of Section 2.3(i) below, the Investors may freely
Transfer any of the
Series A
Preferred Stock held by such Investors, or any rights or interest
appertaining
thereto, whether now
owned or hereafter
acquired, upon receiving the prior
written approval of the Company, such approval not to be
unreasonably withheld.
Section 2.3 Transfer
Requirements. A
Stockholder may
Transfer Common
Stock under and as
permitted by this Section 2.3, but not otherwise. For
purposes of this Section 2.3, an "Investor" who exercises his or its
Warrant(s)
shall be deemed a
"Stockholder" with
respect to the
Warrant Shares upon the
exercise of such Warrant and issuance of the Warrant Shares.
(a) First Offer
Rights. If a Stockholder shall desire to
Transfer any shares of Common Stock held by him or it, such
Stockholder
(the "Selling
Stockholder")
shall first offer such
Common Stock (the
"Offered Stock") to the Investors and then to the Company in
accordance
with the provisions of this Section 2.3 (the "First Offer
Right").
(b) Notice.
The Selling Stockholder shall give a written
notice (the "Offer
Notice") to each of the Investors and the Company
setting forth (i) the class or series, and number of shares, of
Common
Stock proposed to be Transferred (the "Offered Stock"),
(ii) the terms
and conditions (the "Offer Terms"), including the proposed sale
price,
upon which the Selling
Stockholder proposes
to Transfer
the Offered
Stock, and (iii) the name of the proposed transferee.
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(c) Option to the
Investors.
The Investors shall have the
exclusive right during the period of twenty (20) days following
receipt
of such Offer
Notice (the "Investor Refusal Period") to elect to
collectively purchase
any or all of the Offered Stock proposed to be
sold in accordance with the Offer Terms; provided, however, that, an
election by the
Investors to purchase less than all of the Offered
Stock shall not be
effective unless the option in Section
2.3(d) is
exercised as to all of the Offered Stock not elected to be
purchased by
the Investors under
this Section 2.3(c).
In the event that more
than
one Investor wishes to purchase the Offered Stock to be sold, the
right
to purchase shall be
allocated (i) first among such Investors who hold
shares of Series A Preferred Stock in proportion to their respective
ownership of Series A
Preferred Stock, then (ii) to the extent the
Investors who hold
Series A Preferred
Stock do not acquire all of the
Offered Stock,
or if there are no
shares of Series A Preferred Stock
outstanding at such time, among such other Investors in proportion to
their ownership of
Common Stock
Equivalent Shares.
The term "Common
Stock Equivalent
Shares" held by any
Investor shall be all
shares of
the Company's
Common Stock held by such Investor and all shares of
Common Stock issuable upon conversion or exchange of any
convertible or
exchangeable security
held by such Investor
or issuable upon exercise
of any option,
warrant, or other right held by such Investor, in each
case whether or not such security, option, warrant, or right is by
its
terms then convertible, exchangeable, or exercisable. Any election
by
an Investor
to purchase Offered Stock shall be binding upon such
Investor and may not
be withdrawn without
the written consent of
the
Company and the Selling Stockholder.
(d) Option to the
Company. If the
Investors do not
exercise
their right to purchase all of the Offered Stock proposed to be sold
pursuant to Section
2.3(c), the Investors shall give notice to the
Company of such fact during the twenty (20) day period provided for in
Section 2.3(c). The
Company shall then have the exclusive right during
the period of twenty (20) days following receipt of such Offer Notice
(the "Company Refusal
Period") to elect to purchase all of the Offered
Stock proposed to be
sold and not purchased by the Investors pursuant
to Section
2.3(c) in accordance with the Offer Terms and Section
2.3(g).
(e) Co-Sale Right
(i) To the extent that neither the Investors nor the
Company exercise their
respective First Offer
Rights in full
with respect
to the Offered Stock under Sections 2.3(a)
through (d) above,
then each Investor (a "Co-Sale Investor")
that notifies the Selling Stockholder in writing within ten
(10) days after the
expiration of the Company Refusal Period
will have the right to participate in such Selling
Stockholder's proposed sale of Offered Stock on the same terms
and conditions
as the Offer
Terms (the "Co-Sale Right").
Co-Sale Investors
shall have the right to include their
outstanding shares of
Series A Preferred
Stock in exercising
their Co-Sale Right pursuant to this Section 2.3(e)(i) to the
extent that the Offered Stock, when aggregated with all other
sales of Offered Stock pursuant to this Section 2.3,
represents at least
ten percent
(10%) of the
total Common
Stock outstanding as of the date of such sale.
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(ii) A Co-Sale
Investor may include
in the proposed
transfer Capital Stock
held by such Investor (A) with respect
to Series A Preferred
Stock, all shares of Series A Preferred
Stock held by such Co-Sale Investor, and (B) with respect to
all other Capital
Stock other than Series A Preferred Stock,
in an amount not to exceed the product obtained by multiplying
(i) the aggregate
number of shares of Offered Stock by (ii) a
fraction, the
numerator of which is the number of shares
of
Common Stock Equivalent Shares owned by such Co-Sale
Investor
immediately before
consummation of the
proposed Transfer and
the denominator
of which is, in the aggregate, the total
number of shares of Common Stock Equivalent Shares owned by
all Investors
electing to exercise their Co-Sale Rights
immediately prior to the consummation of the proposed Transfer
and the total number of Offered Stock that represents Capital
Stock owned by the Selling Stockholder immediately prior to
the consummation of the proposed Transfer.
(iii) A Co-Sale Investor shall effect its
participation in the
proposed Transfer by
delivering to the
Selling Stockholder,
no later than ten (10) days after a
Co-Sale Investor's exercise of its Co-Sale Rights, one or more
stock
certificates,
properly
endorsed for
transfer or
accompanied by
executed stock powers to the prospective
transferee, representing the number of shares of Capital Stock
that a Co-Sale
Investor elects to
include in the proposed
Transfer.
(iv) Except
for representations regarding its
ownership of the Capital Stock it requests to sell pursuant to
this Section 2.3(e), a
Co-Sale Investor shall not be required
to make any
representation or covenant in connection with its
participation in the proposed Transfer, and its
indemnification
obligations shall be
limited to the proceeds
received by it in such sale.
(v) Each stock certificate a Co-Sale Investor
delivers to the Selling Stockholder pursuant to subparagraph
(iii) above will be transferred to the prospective transferee
against payment
therefor in
consummation of the
sale of the
Offered Stock
pursuant to the Offer
Terms, and the Selling
Stockholder shall concurrently therewith remit to each Co-Sale
Investor the portion of the sale proceeds to which the Co-Sale
Investor is entitled
by reason of its
participation in
such
sale. To the extent a Co-Sale Investor desires to include
his
or its shares of Series A Preferred Stock in exercising its
Co-Sale Right,
the sales price for such Series A Preferred
Stock shall be the
Redemption Price (as
such term is defined
in the Articles of Incorporation). If any prospective
transferee or
transferees
refuse(s) to purchase
securities
subject to
the Co-Sale Right from a Co-Sale Investor
exercising its Co-Sale Rights hereunder, no Stockholder may
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sell any Capital
Stock to such prospective transferee or
transferees unless and until, simultaneously with such sale,
such Stockholder
purchases all
securities that such
Co-Sale
Investor is entitled
to sell to the
prospective
transferee
pursuant to their Co-Sale Rights.
(f)
Non-Exercise. If
the Investors and the Company
collectively fail to
elect to exercise the rights granted under
Sections 2.3(a)
through (e) above,
then the Selling
Stockholder may
sell the shares of Offered Stock so offered hereunder to the proposed
transferee set forth in the Offer Notice under Section 2.3(a) on
terms,
including the sale price, no more favorable to such proposed
transferee
than the Offer Terms.
However, if the Selling Stockholder does not
effect such sale
within thirty
(30) days after the
termination
(by
passage of time or
default) of the first
refusal and co-sale
rights
created under Sections 2.3(a) through (e), the Selling Stockholder may
not thereafter
transfer any such shares without again complying with
the provisions of this Section 2.3.
(g) Closing. All
purchase transactions
between and among the
parties hereto (or their assignees) pursuant to this Section 2.3
shall
be consummated
at a closing
to be held not later
than five (5) days
after the
expiration of the ten (10) day period provided for in Section
2.3(e). At the
closing, the purchaser
shall deliver to the seller the
consideration (cash or
other, as set forth in the Offer Terms) against
delivery of the
appropriate
stock certificate(s) (or voting trust
certificate(s)) duly endorsed for transfer.
(h) Exempted Transfers. Except as otherwise set forth in
this
Section 2.3(h),
the provisions of Section 2.3 shall
not apply to the
transfer or retransfer
of, and each
Stockholder or Investor who is an
individual may
transfer or retransfer
any Capital Stock held
by such
Stockholder or
Investor to or for the benefit of (i) any spouse,
parent, child,
grandchild,
lineal
descendant
(including
adopted
children and stepchildren), siblings, aunts, uncles, nieces,
nephews or
in-laws (collectively,
"Relatives") of such holder (including, without
limitation, trustee(s)
of a trust exclusively
for the benefit of
the
Stockholder or Investor or any of the foregoing); (ii) any trustee or
other fiduciary
holding securities for
the benefit of the Stockholder
or Investor upon
retirement; (iii) any
partnership,
corporation
or
limited liability
company of which there are no owners other than such
Stockholder or
its Relatives; or (iv) any legal representative,
devisee, or heir of a
Stockholder
or Investor
upon his or her
death
(collectively,
"Permitted
Transferees");
provided, that
all such
transferees
shall take
such Capital Stock subject to all the
restrictions, terms,
and conditions of this Agreement and shall comply
with Section 5.1; and provided further, that there shall be no further
Transfer of
such Capital Stock except in accordance with this
Agreement.
(i) Securities Law Compliance. Notwithstanding anything to the
contrary in this
Section 2.3, no Capital Stock may be Transferred
unless such Transfer is made in compliance with all applicable
federal
and state securities laws.
Section 2.4 Transfers in Violation of this Agreement. Any transfer of
Capital Stock in violation of the terms of this Agreement will be
void and of no
effect, and the
purported transferee of such shares will not
be recognized as
the owner or holder of the Capital Stock purportedly transferred. The
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Stockholders consent
to the notation of
"Stop Transfer"
restrictions
in the
Company's stock
transfer books with
respect to their holdings of Capital Stock
in order to assist in
the enforcement
of the restrictions set forth in this
Agreement.
Section 2.5 Compelled Sale Right.
(a) Compelled
Sale. If any Investor or group of Investors
shall desire to
Transfer all or substantially all of the Series A
Preferred Stock and Common Stock Equivalent Shares held by them, which
Series A Preferred Stock and Common Stock Equivalent Shares represent
at least fifty percent (50%) of each of the outstanding Series A
Preferred Stock and Common Stock (the "Majority Holders"), to any
third
party other than a Permitted Transferee (the "Third Party
Purchaser"),
then all the other Stockholders and Invest
