|
Exhibit 4.2
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (the " Agreement ") is
effective as of January 22, 2007, among Consonus
Technologies, Inc., a Delaware corporation (the "
Company "), Knox Lawrence International, LLC, a Delaware
limited liability company (" KLI ") and those Persons listed
on Exhibit A attached hereto (each a " Significant
Stockholder "; KLI and each Significant Stockholder, a "
Stockholder ").
WHEREAS, the Company, Consonus Acquisition Corp., a Delaware
corporation (" Consonus "), Strategic
Technologies, Inc., a North Carolina corporation (" STI
"), CAC Merger Sub, Inc., a Delaware corporation and a wholly
and directly owned subsidiary of Company (" CAC Merger Sub
"), STI Merger Sub, Inc., a North Carolina corporation and a
wholly and directly owned subsidiary of Company (" STI Merger
Sub ") have entered into a merger agreement (the " Merger
Agreement ") dated October 18, 2006 pursuant to which
(i) CAC Merger Sub will be merged with and into Consonus, the
separate corporate existence of CAC Merger Sub will thereupon cease
and Consonus will continue as the surviving corporation and a
wholly owned subsidiary of the Company and (ii) STI Merger Sub
will be merged with and into STI, the separate corporate existence
of STI Merger Sub will thereupon cease and STI will continue as the
surviving corporation and a wholly owned subsidiary of the Company
(together, the " Mergers ").
WHEREAS, KLI owned approximately 92.1% of the outstanding
capital stock of Consonus and as a result of the Mergers received
2,818,247 Shares of the Common Stock of the Company, which
represents approximately 67% of the outstanding Common Stock of the
Company on the date of this Agreement.
WHEREAS, the Significant Stockholders collectively owned
approximately 76.5% of the outstanding capital stock of STI prior
to the Mergers and as a result of the Mergers received 874,266
Shares of the Common Stock of the Company, which represents
approximately 21% of the outstanding Common Stock of the Company on
the date of this Agreement.
WHEREAS, the Company and the Stockholders have agreed to enter
into this Agreement as a condition precedent for consummation of
the Mergers.
NOW, THEREFORE, in consideration of the mutual covenants,
representations, warranties and obligations set forth in this
Agreement, the parties hereto agree as follows:
1.
Transfers of Stock.
1.1
Restrictions on Transfers to Third Parties by any
Stockholder. Subject to any restrictions on transfer set
forth in the Certificate of Incorporation of the Company, prior to
the earlier of (a) the closing of a Qualified Public Offering,
or (b) a Change of Control of the Company (such period, the "
Restricted Period "), no shares of Stock or any interest
therein now or hereafter owned by any Stockholder may be
Transferred, except for any (i) Transfer to a Permitted
Transferee permitted under Section 1.2, (ii) sale to a
third party pursuant to, or otherwise permitted under,
Section 1.3, (iii) involuntary Transfer to a third party
permitted under Section 1.3, (iv) sale to a third party
pursuant to Section 2, or (v) the pledge of Stock by
Michael
G. Shook to KLI in connection with the promissory note of even
date herewith. The foregoing notwithstanding, no Stockholder shall
be permitted to Transfer any Stock pursuant to Section 1.2 or
Section 1.3 hereof to any Person that the Board determines in
good faith to be a direct or indirect competitor of the Company or
an Affiliate of a direct or indirect competitor of the Company.
1.2
Permitted Transferees. The Stockholders
may Transfer any shares of Stock (i) with the prior
consent of the Board, which consent shall not be unreasonably
withheld, to (A) such Stockholder’s Affiliates, spouse,
parents, lineal descendants, or any other Person(s) approved by the
Board, (B) a trust the beneficiaries of which are such
Stockholder, such Stockholder’s spouse, parents, or lineal
descendants, or any other Person(s) approved by the Board,
(C) a corporation the stockholders of which are only such
Stockholder, such Stockholder’s spouse, parents, or lineal
descendants, or any other Person(s) approved by the Board,
(D) a limited partnership, the general partner of which is
(1) such Stockholder, such Stockholder’s spouse,
parents, or lineal descendants, or any other Person approved by the
Board or (2) a corporation, limited partnership or limited
liability company, the majority of the voting power of which is
owned by such Stockholder, such Stockholder’s spouse,
parents, or lineal descendants, or any other Person(s) approved by
the Board, (E) a limited liability company, the majority of
the voting power of which is owned by such Stockholder, such
Stockholder’s spouse, parents, or lineal descendants, or any
other Person(s) approved by the Board, or (F) in the case of
KLI, transfers of up to an aggregate of fifteen percent (15%) of
the shares of Stock issued to KLI in the Mergers to any of
KLI’s investors; and (ii) in case of such
Stockholder’s death, by will or by the laws of intestate
succession to executors, administrators, testamentary trustees,
legatees or beneficiaries. In addition to the foregoing, any
Permitted Transferee of a Stockholder may Transfer shares of
Stock back to such transferring Stockholder or to another Permitted
Transferee of such transferring Stockholder, provided ,
however , that prior to any Permitted Transferee ceasing to
be a Permitted Transferee of the transferring Stockholder, such
Permitted Transferee shall be obligated to transfer such Stock back
to such transferring Stockholder or a Permitted Transferee of such
transferring Stockholder.
-
-
(a)
Each Stockholder may sell all or any portion of
such Stockholder’s shares of Stock to any third party who is
not a Permitted Transferee or Involuntary Transferee,
provided that no such Stockholder may so sell any
shares of Stock to any such third party during the Restricted
Period unless such Stockholder shall first have complied with the
provisions of this Section 1.3.
(b)
If any of the Stockholders (for purposes of this
Section 1.3, an " Offering Stockholder ") shall have
received a bona fide offer or offers from a third
party or parties, other than a Permitted Transferee, to purchase
shares of Stock held by such Offering Stockholder as of the date
hereof (other than pursuant to a Qualified Public Offering), then
prior to selling such shares of Stock to such third party or
parties, such Offering Stockholder shall deliver to the Company a
letter (the " Offer Letter ") signed by such Offering
Stockholder setting forth with respect to such Offering Stockholder
and third-party offeree(s) the following information:
2
-
-
(i)
the name of such third party or parties, including
with respect to a partnership or corporation, the names of all
general partners and all limited partners or stockholders owning
more than ten percent (10%) of any class of its partnership
interest, capital stock or voting power, as the case
may be;
(ii)
the prospective purchase price per share of
Stock;
(iii)
all other material terms and conditions contained in
the offer of such third party or parties;
(iv)
such Offering Stockholder’s offer (irrevocable
by its terms for sixty (60) days following receipt) to sell to the
Company all (but not less than all) of the shares of Stock covered
by the offer of the third party or parties (the " Offered
Stock "), for a purchase price per share of Stock, and on the
same terms and conditions contained in the offer of the third party
or parties (the " Offer "); and
(v)
closing arrangements and a closing date (not less
than sixty (60) nor more than ninety (90) days following the date
of such Offer Letter) for any purchase and sale that may be
effected by the Company or any of its assignees pursuant to this
Section 1.3.
For thirty (30) days following the receipt of the Offer Letter,
the Company shall have the right to purchase any or all of the
Offered Stock for the same price per share and on the same terms
and conditions set forth in the Offer.
If within thirty (30) days after receipt of the Offer Letter,
the Company has not elected to exercise its right of first refusal
to purchase all of the Offered Stock, the Company shall then cause
to be delivered to each Stockholder other than the Offering
Stockholder (each, an " Other Stockholder ") a copy of the
Offer Letter. For thirty (30) days following the receipt of the
Offer Letter, the Other Stockholders shall have the right to
purchase all, but not less than all, of the Offered Stock not
claimed for purchase by the Company for the same price per share
and on the same terms and conditions set forth in the Offer. Each
Other Stockholder may purchase the available Offered Stock in
the same proportion that the Stock owned by each Other Stockholder
desiring to purchase such Offered Stock bears to the total number
of shares of Stock owned by all Other Stockholders desiring to
purchase the available Offered Stock. Any amount of Offered Stock
not so purchased by an Other Stockholder entitled to purchase
may be purchased by other Other Stockholders proportionally to
their ownership of Stock, and so on until all of the Offered Stock
has been purchased or until none of the Other Stockholders desire
to further purchase any Offered Stock.
(c)
If the Company and/or the Other Stockholders
collectively accept the Offer to purchase all, but not less than
all, of the Offered Stock, the closing of the purchase and sale
pursuant to such acceptance shall take place at the offices of the
Company on the date set forth in the Offer Letter, or at such other
place or on such other date as the applicable parties
may agree or such later date as may be necessary to
obtain any required regulatory approvals. If, upon the expiration
of sixty (60) days following
3
-
-
receipt by the Company of the Offer Letter, less than all of the
Offered Stock is claimed for purchase by the Company and the Other
Stockholders, the Offering Stockholder may sell to such third
party or parties all, but not less than all, of the Offered Stock,
for the purchase price and on the other terms and conditions
contained in such Offer. Prior to consummating any such sale, the
Offering Stockholder shall, upon request from the Company or an
Offering Stockholder, provide the Company and the Offering
Stockholders with reasonable supporting documentation with respect
to the terms and conditions of any such sale to a third party so as
to demonstrate such Offering Stockholder’s compliance with
the provisions of the preceding sentence. If such sale has not been
completed within ninety (90) days after the date of the Offer
Letter, the Offered Stock covered by such Offer may not
thereafter be sold by such Offering Stockholder unless the
procedures set forth in this Section 1.3 shall have again been
complied with.
1.4
Involuntary Transfers. Any Transfer of title
or beneficial ownership of shares of Stock upon default,
foreclosure, forfeit, court order, or otherwise than by a voluntary
decision on the part of any Stockholder, other than any
Transfer upon death and other than a Transfer of title or
beneficial ownership in accordance with the terms of the pledge of
Stock by Michael G. Shook to KLI in connection with the promissory
note of even date herewith (an " Involuntary Transfer "),
shall be void unless such Stockholder complies with this
Section 1.4 and enables the Company and all other Stockholders
to exercise in full their rights hereunder. Upon any Involuntary
Transfer, the Company and the other Stockholders shall have the
right to purchase such shares pursuant to this Section 1.4 and
the Person to whom such shares have been transferred (the "
Involuntary Transferee ") shall have the obligation to sell
such shares in accordance with this Section 1.4. Upon the
Involuntary Transfer of any shares of Stock, such Stockholder shall
promptly (but in no event later than five days after such
Involuntary Transfer) furnish written notice to the Company and the
other Stockholders indicating that the Involuntary Transfer has
occurred, specifying the name of the Involuntary Transferee, giving
a detailed description of the circumstances giving rise to, and
stating the legal basis for, the Involuntary Transfer. Upon the
receipt of such notice, and for thirty (30) days thereafter, the
Company shall have the right to purchase, and the Involuntary
Transferee shall have the obligation to sell, any or all of the
shares of Stock acquired by the Involuntary Transferee for a
purchase price equal to the Fair Market Value of such shares of
Stock. If the Company fails to exercise within such thirty (30) day
period its rights hereunder to purchase all of the shares of Stock
acquired by the Involuntary Transferee, for a period of thirty (30)
days thereafter, the other Stockholders shall have the right to
purchase, and the Involuntary Transferee shall have the obligation
to sell, any of the shares of Stock acquired by the Involuntary
Transferee not claimed for purchase by the Company for a purchase
price equal to the Fair Market Value of such shares of Stock.
2.
Tag-Along and Drag-Along Rights.
2.1
Tag Along Rights. During the Restricted
Period, and subject to the prior right of first refusal set forth
in Section 1.3, the sale of any Stock by a Stockholder or a
Permitted Transferee thereof made pursuant to Section 1.3
shall be subject to the tag-along right set forth in this
Section 2.1. No Stockholder (for purposes of this
Section 2.1, the " Selling Stockholder ")
may Transfer any shares of Stock to any non-Affiliated third
party (except through a sale pursuant to a registered underwritten
public offering) if such shares, together with all shares of Stock
previously Transferred by such Selling Stockholder to third parties
(except through a sale
4
pursuant to an underwritten registered public offering), would
represent more than ten percent (10%) of the aggregate number of
shares of Stock held by the Selling Stockholder as of the date
hereof, unless each of the other Stockholders is offered the
right, on a pro rata basis (based on the number of shares of Stock
owned by such Stockholder) to participate in any such Transfer by
selling to such non-Affiliated third party its pro rata portion of
Stock for a purchase price per share of Stock and on other terms
and conditions, not less favorable to such Stockholder than those
applicable to the Selling Stockholder.
-
-
(a)
During the Restricted Period, if holders of shares
of Stock that represent an aggregate of eighty-six percent (86%) or
more of the shares of the outstanding Stock (the " Electing
Stockholders "), propose to sell or otherwise Transfer, shares
of Stock that represents shares constituting two-thirds or more of
their aggregate shares of Stock to any third party in a bona fide
arms-length transaction (except through a sale pursuant to a
Qualified Public Offering or to an Affiliate or Affiliates of such
Electing Stockholders) then, if requested by the Electing
Stockholders, each other holder of shares of Stock shall join the
Electing Stockholders in any such sale by selling the same
percentage of shares of Stock owned by such holder as are being
sold by the Electing Stockholders (the "Drag Percentage") by
complying fully with Section 2.2(b). The material terms and
conditions of such sale, including, without limitation, the
purchase price per share of Stock, shall be the same for all
holders of Stock.
(b)
Each Stockholder who is required to join the
Electing Stockholders in a sale pursuant to
Section 2.2(a) shall, at the request of the Electing
Stockholders, (i) Transfer, upon receipt of the purchase price
therefor, such Stockholder’s Drag Percentage to any third
party purchaser or purchasers free and clear of all security
interests, liens, claims or encumbrances, (ii) execute and
deliver any agreement being executed and delivered by the Electing
Stockholders (on no less favorable terms than the one being signed
by the Electing Stockholders); provided that such Stockholder shall
only be required to make representations and warranties relating
exclusively to such Stockholder’s ownership and title to its
shares of such transaction; and provided, further, that no
Stockholders shall be required to provide indemnification by such
Stockholder, in the aggregate, in an amount that is in excess of
the lesser of (A) its pro rata portion of the related
liability or (B) the purchase price to be received by such
Stockholder in such sale, except in the case of such
Stockholder’s fraudulent acts, or intentional
misrepresentations; (iii) v
|
