EXHIBIT 10.8
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TERMINATION
OF
STOCKHOLDERS AGREEMENT
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by and among
CASTLE DENTAL CENTERS, INC.,
a Delaware corporation
(the "Company"),
and
BANK OF AMERICA STRATEGIC SOLUTIONS, INC.,
a Delaware corporation
("B of A"),
FSC CORP.,
a Massachusetts corporation
("FSC"),
AMSOUTH BANK,
a national banking association
("Amsouth"),
XXXXXX FINANCIAL, INC.,
a Delaware corporation
("Xxxxxx"),
MIDWEST MEZZANINE FUND II, L.P.,
a Delaware limited partnership
("Midwest"),
and
Xxxxx X. Xxxxx
May 15, 2003
TERMINATION OF STOCKHOLDERS AGREEMENT
This Termination of Stockholders Agreement (this "Agreement") is entered
into as of May 15, 2003, by and among Castle Dental Centers, Inc., a Delaware
corporation (the "Company"), Xxxxxx Financial, Inc., a Delaware corporation
("Xxxxxx"), Midwest Mezzanine Fund II, L.P., a Delaware limited partnership
("Midwest"), and Xxxxx X. Xxxxx ("Xxxxx"). Capitalized terms used and not
otherwise defined in this Agreement have the respective meanings ascribed
thereto in the Stockholders Agreement dated as of July 19, 2002 (the
"Stockholders Agreement") between the parties to this Agreement.
RECITALS
WHEREAS, the parties to this Agreement have previously entered into the
Stockholders Agreement, none of the parties to this Agreement have transferred
any Restricted Securities, and no additional persons are entities have executed
a joinder agreement or otherwise become a party to the Stockholders Agreement;
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company has entered into a Preferred Stock Purchase Agreement
with Sentinel Capital Partners II, L.P., General Electric Capital Corporation,
the successor to Xxxxxx, Midwest, Xxxxxx Xxxxxxxxxxx, Xxxx X. Xxxxx, and Xxxxx
(the "Preferred Stock Purchase Agreement"), and, pursuant to Section 6.1(q) of
the Preferred Stock Agreement, the termination of the Stockholders Agreement is
a condition to closing of the Preferred Stock Purchase Agreement; and
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, the Company has entered into a Warrant Purchase Agreement with and
Banc of America Strategic Solutions, Inc., a Delaware corporation ("B of A"),
FSC Corp., a Massachusetts corporation ("FSC"), Amsouth Bank, a national banking
association ("Amsouth") (the "Warrant Purchase Agreement"), and, pursuant to
Section 6(b) of the Warrant Purchase Agreement, B of A, FSC and Amsouth agreed
to terminate the Stockholders Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
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ARTICLE I.
TERMINATION OF STOCKHOLDERS AGREEMENT
Section 1.01 Consent to Termination. Pursuant to Section 5.02 of the
Stockholders Agreement:
(a) The Company hereby consents to the termination of the Stockholders
Agreement.
(b) B of A, FSC, Amsouth, and Xxxxxx, who constitute all of the Bank
Stockholders and hold 100% of the Common Stock Equivalents currently held by
Bank Stockholders subject to the Stockholders Agreement, have consented to, or,
with respect to Xxxxxx, hereby consent to, the termination of the Stockholders
Agreement.
(c) Xxxxxx, Midwest and Xxxxx, who constitute all of the New Money
Stockholders and hold 100% of the Common Stock Equivalents currently held by New
Money Stockholders subject to the Stockholders Agreement, hereby consent to the
termination of the Stockholders Agreement.
(d) Xxxxxx and Midwest, who constitute all of the Preferred Stockholders
and hold 100% of the Common Stock Equivalents currently held by Preferred
Stockholders subject to the Stockholders Agreement, hereby consent to the
termination of the Stockholders Agreement.
Section 1.02 Termination. Pursuant to consents contained in Section 1.01 of this
Agreement, the Stockholders Agreement is hereby terminated.
ARTICLE II.
MISCELLANEOUS
Section 2.01 Governing Law; Submission to Jurisdiction.
(a) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of Delaware.
(b) Any legal action or proceeding with respect to this Agreement shall be
brought in the courts of the State of Delaware or of the United States of
America for the district of Delaware, and, by execution and delivery of this
Agreement, each of the parties to this Agreement hereby accepts for itself and
(to the extent permitted by law) in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Each of the parties
to this Agreement hereby irrevocably waives any objection, including, without
limitation, any objection to the laying of venue or based on the grounds of
forum non conveniens, which it may now or
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hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(c) Nothing herein shall affect the right of any holder to serve process in
any other manner permitted by law.
(d) Each of the parties to this Agreement hereby (i) irrevocably and
unconditionally waive, to the fullest extent permitted by law, trial by jury in
any legal action or proceeding relating to this Agreement and for any
counterclaim therein; (ii) irrevocably waive, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any such
litigation any special, exemplary, punitive or consequential damages, or damages
other than, or in addition to, actual damages; (iii) certify that no party
hereto nor any representative or agent of counsel for any party hereto has
represented, expressly or otherwise, or implied that such party would not, in
the event of litigation, seek to enforce the foregoing waivers, and (iv)
acknowledge that it has been induced to enter into this Agreement and the
transactions contemplated hereby among other things, the mutual waivers and
certifications contained in this Section 2.01.
Section 2.02 Entire Agreement; Amendments. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes any and all previous oral or written communications, representations
or agreements.
Section 2.03 Headings. The headings used in this Agreement have been inserted
for convenience of reference only and do not define or limit the provisions
hereof.
Section 2.04 Further Assurances. Each party hereto shall cooperate and shall
take such further action and shall execute and deliver such further documents as
may be reasonably requested by any other party in order to carry out the
provisions and purposes of this Agreement.
Section 2.05 Counterparts. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Termination of Stockholders Agreement as of the date first above written.
COMPANY
CASTLE DENTAL CENTERS, INC.
By:
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Name:
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Title:
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STOCKHOLDERS:
XXXXXX FINANCIAL, INC.
By:
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Name:
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Title:
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MIDWEST MEZZANINE FUND II, L.P.
By: ABN AMRO Mezzanine Management
II, L.P., its general partner
By: ABN AMRO Mezzanine Management
II, Inc., its general partner
By:
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Name:
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Title:
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Xxxxx X. Xxxxx
