FORM OF STOCKHOLDERS’ AGREEMENT DATED AS OF , 2019 AMONG EXETER FINANCE CORPORATION AND THE OTHER PARTIES HERETO
Exhibit 10.4
FORM OF
DATED AS OF , 2019
AMONG
EXETER FINANCE CORPORATION
AND
THE OTHER PARTIES HERETO
Table of Contents
| Page | ||||||
| Article I |
| |||||
| INTRODUCTORY MATTERS |
| |||||
| 1.1 |
Defined Terms |
1 | ||||
| 1.2 |
Construction |
4 | ||||
| Article II |
| |||||
| CORPORATE GOVERNANCE MATTERS |
| |||||
| 2.1 |
Election of Directors |
4 | ||||
| 2.2 |
Compensation |
6 | ||||
| 2.3 |
Other Rights of Stockholder Designees |
6 | ||||
| Article III |
| |||||
| INFORMATION; VCOC |
| |||||
| 3.1 |
Books and Records; Access |
7 | ||||
| 3.2 |
Certain Reports |
7 | ||||
| 3.3 |
VCOC |
7 | ||||
| Article IV |
| |||||
| ADDITIONAL COVENANTS |
| |||||
| 4.1 |
Pledges |
10 | ||||
| 4.2 |
Spin-Offs or Split-Offs |
10 | ||||
| Article V |
| |||||
| GENERAL PROVISIONS |
| |||||
| 5.1 |
Termination |
11 | ||||
| 5.2 |
Notices |
11 | ||||
| 5.3 |
Amendment; Waiver |
12 | ||||
| 5.4 |
Further Assurances |
12 | ||||
| 5.5 |
Assignment |
12 | ||||
| 5.6 |
Third Parties |
13 | ||||
| 5.7 |
Governing Law |
13 | ||||
| 5.8 |
Jurisdiction; Waiver of Jury Trial |
13 | ||||
| 5.9 |
Specific Performance |
13 | ||||
| 5.10 |
Entire Agreement |
13 | ||||
i
| 5.11 |
Severability |
13 | ||||
| 5.12 |
Table of Contents, Headings and Captions |
13 | ||||
| 5.13 |
Grant of Consent |
14 | ||||
| 5.14 |
Counterparts |
14 | ||||
| 5.15 |
Effectiveness |
14 | ||||
| 5.16 |
No Recourse |
14 |
ii
This Stockholders’ Agreement is entered into as of , 2019 by and among Exeter Finance Corporation, a Delaware corporation (the “Company”), and each of the other parties identified on the signature pages hereto (the “Investor Parties”).
NOW, THEREFORE, the parties agree as follows:
ARTICLE I
1.1 Defined Terms. In addition to the terms defined elsewhere herein, the following terms have the following meanings when used herein with initial capital letters:
“Affiliate” has the meaning set forth in Rule 12b-2 promulgated under the Exchange Act, as in effect on the date hereof.
“Agreement” means this Stockholders’ Agreement, as the same may be amended, supplemented, restated or otherwise modified from time to time in accordance with the terms hereof.
“Beneficially Own” has the meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
“Blackstone Designator” means the Blackstone Party, or any group of Blackstone Parties collectively, then holding of record a majority of Outstanding Exeter Interests held of record by all Blackstone Parties.
“Blackstone Designee” has the meaning set forth in Section 2.1(a) hereof.
“Blackstone Entities” means the entities comprising the Blackstone Parties and their Affiliates and their respective successors and Permitted Assigns.
“Blackstone Parties” means the entities listed on the signature pages hereto under the heading “Blackstone Parties” and any other Blackstone Entities that may from time to time become parties hereto.
“Board” means the board of directors of the Company.
“Class A Common Stock” means the shares of Class A common stock, par value $0.0001 per share, of the Company, and any other capital stock of the Company into which such stock is reclassified or reconstituted.
“Class B Common Stock” means the shares of Class B common stock, par value $0.0001 per share, of the Company, and any other capital stock of the Company into which such stock is reclassified or reconstituted.
“Closing Date” means the date of the closing of the IPO.
“Common Stock” means collectively the Class A Common Stock and the Class B Common Stock.
“Company” has the meaning set forth in the Preamble.
“Control” (including its correlative meanings, “Controlled by” and “under common Control with”) means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise) of a Person.
“Director” means any director of the Company.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as the same may be amended from time to time.
“Exeter Finance LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Exeter Finance LLC, dated on or about the date hereof, as such agreement may be amended from time to time.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Information” has the meaning set forth in Section 3.1 hereof.
“Investor Parties” has the meaning set forth in the Preamble.
“IPO” has the meaning set forth in the Recitals.
“Law” means any statute, law, regulation, ordinance, rule, injunction, order, decree, governmental approval, directive, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or administration of any of the foregoing by, any Governmental Authority.
“LLC Units” means common units and any other class of units or interests that is established in Exeter Finance LLC.
“Navigation” means Navigation Capital Partners II LP.
2
“Navigation Designee” has the meaning set forth in Section 2.1(a) hereof.
“Navigation Entity” means Navigation, its Affiliates and their respective successors and Permitted Assigns.
“Outstanding Exeter Interests” means, collectively, (i) the outstanding shares of Class A Common Stock and (ii) the LLC Units held by Persons other than the Company. For purposes of calculating any proportion of Outstanding Exeter Interests, the number of Outstanding Exeter Interests held by any Person shall consist of the sum of (a) the number of shares of Class A Common Stock held by such Person and (b) the number of shares of Class A Common Stock such Person would receive upon the exchange of all LLC Units held by such Person in accordance with the Exeter Finance LLC Agreement.
“Permitted Assigns” means, with respect to each Blackstone Entity and Navigation Entity, a Transferee of shares of Common Stock that agrees to become party to, and to be bound to the same extent as its Transferor by the terms of, this Agreement.
“Person” means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, or other form of business organization, whether or not regarded as a legal entity under applicable Law, or any Governmental Authority or any department, agency or political subdivision thereof.
“Plan Asset Regulation” has the meaning set forth in Section 3.3(a) hereof.
“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or other business entity of which: (i) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, representatives or trustees thereof is at the time owned or Controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof; or (ii) if a limited liability company, partnership, association or other business entity, a majority of the total voting power of stock (or equivalent ownership interest) of the limited liability company, partnership, association or other business entity is at the time owned or Controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or Control the managing member, managing director or other governing body or general partner of such limited liability company, partnership, association or other business entity.
“Stockholder Designator” means, collectively, the Blackstone Designator and Navigation.
“Stockholder Designee” means, collectively, the Blackstone Designees and the Navigation Designee.
3
“Total Number of Directors” means, as of any time of determination, the total number of directors then constituting the full Board (including any vacancies).
“Transfer” (including its correlative meanings, “Transferor,” “Transferee” and “Transferred”) shall mean, with respect to any security, directly or indirectly, to sell, contract to sell, give, assign, hypothecate, pledge, encumber, grant a security interest in, offer, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose of any economic, voting or other rights in or to such security. When used as a noun, “Transfer” shall have such correlative meaning as the context may require.
“VCOC Investor” has the meaning set forth in Section 3.3(a) hereof.
1.2 Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party. Unless the context otherwise requires: (a) “or” is disjunctive but not exclusive, (b) words in the singular include the plural, and in the plural include the singular, and (c) the words “hereof,” “herein,” and “hereunder” and words of similar import when used in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement, and Section references are to this Agreement unless otherwise specified.
ARTICLE II
(a) Following the Closing Date, the Company shall take all such action in accordance with this Agreement as shall be necessary to ensure that (1) the number of Blackstone Designees serving as Directors of the Company will be equal to: (i) if the Blackstone Entities collectively Beneficially Own 50% or more of the total Outstanding Exeter Interests, the lowest whole number that is greater than 50% of the Total Number of Directors; (ii) if the Blackstone Entities collectively Beneficially Own at least 40% (but less than 50%) of the total Outstanding Exeter Interests, the lowest whole number that is greater than 40% of the Total Number of Directors; (iii) if the Blackstone Entities collectively Beneficially Own at least 30% (but less than 40%) of the total Outstanding Exeter Interests, the lowest whole number that is greater than 30% of the Total Number of Directors; (iv) if the Blackstone Entities collectively Beneficially Own at least 20% (but less than 30%) of the total Outstanding Exeter Interests, the lowest whole number that is greater than 20% of the Total Number of Directors; and (v) if the Blackstone Entities collectively Beneficially Own at least 5% (but less than 20%) of the total Outstanding Exeter Interests, the lowest whole number that is greater than 10% of the Total Number of Directors and (2) so long as the Navigation Entities collectively Beneficially Own at least 5% of the total Outstanding Exeter Interests, one Navigation Designee shall serve as a Director of the Company. In furtherance of the foregoing, in connection with any vote or consent of the stockholders of the Company with respect to the election of Directors, the Blackstone Designator and Navigation, as applicable, shall have the right, but not the obligation,
4
to designate, and the individuals nominated for election as Directors by or at the direction of the Board or a duly-authorized committee thereof shall include, a number of individuals such that, upon the election of each such individual, and each other individual nominated by or at the direction of the Board or a duly-authorized committee of the Board as a Director, and taking into account any Director continuing to serve as such without the need for re-election, the number of Blackstone Designees and Navigation Designees serving as Directors of the Company will be equal to the number of Blackstone Designees and Navigation Designees required by the preceding sentence, determined based on the total Outstanding Exeter Interests that are Beneficially Owned by each of the Blackstone Entities collectively and the Navigation Entities collectively as of the record date for such vote or consent. The Company shall, to the fullest extent permitted by Law, include in the slate of nominees recommended by the Board at any meeting of stockholders called for the purpose of electing Directors, the persons designated pursuant to this Section 2.1(a) and use its best efforts to cause the election of each such designee to the Board, including nominating each such individual to be elected as a Director as provided herein, recommending such individual’s election and soliciting proxies or consents in favor thereof. In the event that any Blackstone Designee or Navigation Designee shall fail to be elected to the Board at any meeting of stockholders called for the purpose of electing directors (or consent in lieu of meeting), the Company shall use is best efforts to cause the Blackstone Designee or Navigation Designee, as the case may be (or a new designee), to be elected to the Board, as soon as possible, and the Company shall take or cause to be taken, to the fullest extent permitted by law, at any time and from time to time, all actions necessary to accomplish the same, including, without limitation, actions to effect an increase in the Total Number of Directors. Each individual whom the Blackstone Designator shall actually designate pursuant to this Section 2.1 and who is thereafter elected and qualifies to serve as a Director shall be referred to herein as a “Blackstone Designee,” and each individual whom Navigation shall actually designate pursuant to this Section 2.1 and who is thereafter elected and qualifies to serve as a Director shall be referred to herein as a “Navigation Designee.”
(b) If at any time any of the Blackstone Designator or Navigation has designated fewer than the total number of individuals that it is then entitled to designate pursuant to Section 2.1(a) hereof, the Blackstone Entities or Navigation, as applicable, shall have the right, at any time and from time to time, to designate such additional individuals which it is entitled to so designate, in which case, any individuals nominated by or at the direction of the Board or any duly-authorized committee thereof for election as Directors to fill any vacancy on the Board shall include such designees, and the Company shall use its best efforts to (i) effect the election of such additional designees, whether by increasing the size of the Board or otherwise, and (ii) cause the election of such additional designees to fill any such newly-created vacancies or to fill any other existing vacancies.
(c) Directors are subject to removal pursuant to the applicable provisions of the certificate of incorporation of the Company; provided, however, for as long as this Agreement remains in effect, other than for cause, the Blackstone Designees may only be removed with the consent of the Blackstone Designator and the Navigation Designee may only be removed with the consent of Navigation, in each case delivered in accordance with Section 5.13 hereof.
5
(d) In the event that a vacancy is created at any time by the death, disability, retirement, removal (with or without cause), disqualification, resignation or removal of any Blackstone Designee or Navigation Designee or by an increase in the size of the Board, any individual nominated by or at the direction of the Board or any duly-authorized committee thereof to fill such vacancy shall be, and the Company shall use its best efforts to cause such vacancy to be filled, as soon as possible, by, a new designee of the Blackstone Designator, if such Director was designated by the Blackstone Designator, or Navigation, if such Director was designated by Navigation, and the Company shall take, to the fullest extent permitted by Law, at any time and from time to time, all actions necessary to accomplish the same.
(e) Each Investor Party hereby agrees to vote in favor of and to consent to the Blackstone Designees and the Navigation Designee in connection with each vote taken or written consent executed in connection with the election of Directors to the Board, and each Investor Party agrees not to seek to remove or replace the Blackstone Designees or the Navigation Designee.
(f) In addition to any vote or consent of the Board or the stockholders of the Company required by applicable Law or the certificate of incorporation or bylaws of the Company, and notwithstanding anything to the contrary in this Agreement, for so long as this Agreement is in effect, any action by the Board to increase or decrease the Total Number of Directors (other than any increase in the Total Number of Directors in connection with the election of one or more Directors elected exclusively by the holders of one or more classes or series of the Company’s stock other than Common Stock) shall require the prior written consent of the Blackstone Designator, delivered in accordance with Section 5.13 hereof.
2.2 Compensation. Except to the extent any Stockholder Designator may otherwise notify the Company, the Stockholder Designees shall be entitled to compensation consistent with the compensation received by other non-employee Directors, including any fees and equity awards, provided, that (x) to the extent any Director compensation is payable in the form of equity awards, at the election of a Stockholder Designee, in lieu of any equity award, such compensation shall be paid in an amount of cash equal to the value of the equity award as of the date of the award, with any such cash subject to the same vesting terms, if any, as the equity awarded to other Directors and (y) at the election of a Stockholder Designee, any Director compensation (whether cash, equity awards and/or cash in lieu of equity as may be designated by the electing Stockholder Designee) shall be paid to a Stockholder or an Affiliate thereof specified by such Stockholder Designee rather than to such Stockholder Designee. If the Company adopts a policy that Directors own a minimum amount of equity in the Company, Stockholder Designees shall not be subject to such policy.
2.3 Other Rights of Stockholder Designees. Except as provided in Section 2.2, each Stockholder Designee serving on the Board shall be entitled to the same rights and privileges applicable to all other members of the Board generally or to which all such members of the Board are entitled. In furtherance of the foregoing, the Company shall indemnify, exculpate, and reimburse fees and expenses of the Stockholder Designees (including by entering into an indemnification agreement in a form substantially similar to the Company’s form director indemnification agreement) and provide the Stockholder Designees with director and officer insurance to the same extent it indemnifies, exculpates, reimburses and provides insurance for the other members of the Board pursuant to the certificate of incorporation or bylaws of the Company, applicable law or otherwise.
6
ARTICLE III
3.1 Books and Records; Access. The Company shall, and shall cause its Subsidiaries to, (a) permit the Blackstone Entities and their respective designated representatives (or other designees), at reasonable times and upon reasonable prior notice to the Company, to review the books and records of the Company or any of such Subsidiaries and to discuss the affairs, finances and condition of the Company or any of such Subsidiaries with the officers of the Company or any such Subsidiary and (b) provide the Blackstone Entities all information of a type, at such times and in such manner as is consistent with the Company’s past practice or that is otherwise reasonably requested by such Blackstone Entities from time to time (all such information so furnished pursuant to this Section 3.1, the “Information”). Notwithstanding the foregoing, that the Company shall not be required to disclose any privileged Information of the Company so long as the Company has used commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Blackstone Entities without the loss of any such privilege.
3.2 Certain Reports. Company shall deliver or cause to be delivered to the Blackstone Entities at their request:
(a) to the extent otherwise prepared by the Company, operating and capital expenditure budgets and periodic information packages relating to the operations and cash flows of the Company and its Subsidiaries; and
(b) to the extent otherwise prepared by the Company, such other reports and information as may be reasonably requested by the Blackstone Entities; provided, however, that the Company shall not be required to disclose any privileged information of the Company so long as the Company has used commercially reasonable efforts to enter into an arrangement pursuant to which it may provide such information to the Blackstone Entities without the loss of any such privilege.
3.3 VCOC.
(a) With respect to each Blackstone Entity that is intended to qualify its direct or indirect investment in the Company as a “venture capital investment” as defined in the Department of Labor regulations codified at 29 CFR Section 2510.3-101 (the “Plan Asset Regulation”) (each, a “VCOC Investor”), for so long as the VCOC Investor, directly or through one or more Subsidiaries, continues to hold any shares of Common Stock (or other securities of the Company into which such shares of Common Stock may be converted or for which such shares of Common Stock may be exchanged), without limitation or prejudice of any of the rights provided to the Blackstone Entities hereunder, the Company shall, with respect to each such VCOC Investor:
7
(i) provide each VCOC Investor or its designated representative with:
| (A) | upon reasonable notice and at mutually convenient times, the right to visit and inspect any of the offices and properties of the Company and its Subsidiaries and inspect and copy the books and records of the Company and its Subsidiaries; |
| (B) | as soon as available and in any event within 45 days after the end of each of the first three quarters of each fiscal year of the Company, consolidated balance sheets of the Company and its Subsidiaries as of the end of such period, and consolidated statements of income and cash flows of the Company and its Subsidiaries for the period then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, and subject to the absence of footnotes and to year-end adjustments; |
| (C) | as soon as available and in any event within 120 days after the end of each fiscal year of the Company, a consolidated balance sheet of the Company and its Subsidiaries as of the end of such year, and consolidated statements of income and cash flows of the Company and its Subsidiaries for the year then ended prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis, except as otherwise noted therein, together with an auditor’s report thereon of a firm of established national reputation; |
| (D) | to the extent the Company is required by Law or pursuant to the terms of any outstanding indebtedness of the Company to prepare such reports, any annual reports, quarterly reports and other periodic reports pursuant to Section 13 or 15(d) of the Exchange Act, actually prepared by the Company as soon as available; and |
| (E) | upon written request by the VCOC Investor, copies of all materials provided to the Board, subject to appropriate protections with respect to confidentiality and preservation of attorney-client privilege; |
provided that, in each case, if the Company makes the information described in clauses (B), (C) and (D) of this Section 3.3(a)(i) available through public filings on the ▇▇▇▇▇ System or any successor or replacement system of the U.S. Securities and Exchange Commission, the requirement to deliver such information shall be deemed satisfied;
8
(ii) make appropriate officers and/or Directors of the Company available, and cause the officers and directors of its Subsidiaries to be made available, periodically and at such times as reasonably requested by each VCOC Investor, upon reasonable notice and at mutually convenient times, for consultation with such VCOC Investor or its designated representative with respect to matters relating to the business and affairs of the Company and its Subsidiaries;
(iii) to the extent that the VCOC Investor requests to receive such information and rights, and to the extent consistent with applicable Law or listing standards (and with respect to events which require public disclosure, only following the Company’s public disclosure thereof through applicable securities law filings or otherwise), inform each VCOC Investor or its designated representative in advance with respect to any significant corporate actions, and to provide (or cause to be provided) each VCOC Investor or its designated representative with the right to consult with the Company and its Subsidiaries with respect to such actions should the VCOC Investor elect to do so; provided, however, that this right to consult must be exercised within five (5) days after the Company informs the VCOC Investor of the proposed corporate action; provided, further, that the Company shall be under no obligation to provide the VCOC Investor with any material non-public information with respect to such corporate action; and
(iv) provide each VCOC Investor or its designated representative with such other rights of consultation which the VCOC Investor’s counsel may determine in writing to be reasonably necessary under applicable legal authorities promulgated after the date hereof to qualify its investment in the Company as a “venture capital investment” for purposes of the Plan Asset Regulation; provided that the parties agree that any such rights of consultation shall be of a nature consistent with those granted above and nothing in this Agreement shall be deemed to require the Company to grant to the VCOC Investor any additional rights with respect to the governance or management of the Company.
(b) The Company agrees to consider, in good faith, the recommendations of each VCOC Investor or its designated representative in connection with the matters on which it is consulted as described above in this Section 3.3, recognizing that the ultimate discretion with respect to all such matters shall be retained by the Company.
(c) In the event a VCOC Investor or any of its Affiliates Transfers all or any portion of their investment in the Company to an Affiliated entity that is intended to qualify as a “venture capital operating company” (as defined in the Plan Asset Regulation), such Transferee shall be afforded the same rights with respect to the Company afforded to the VCOC Investor hereunder and shall be treated, for such purposes, as a third party beneficiary hereunder.
(d) In the event that the Company ceases to qualify as an “operating company” (as defined in the first sentence of 2510.3-101(c)(1) of the Plan Asset Regulation), or the investment in the Company by a VCOC Investor does not qualify as a “venture capital investment” as defined in the Plan Asset Regulation, then the Company and each Blackstone Entity will cooperate in good faith to take all reasonable actions necessary, subject to applicable Law, to preserve the VCOC status of each VCOC Investor or the qualification of the investment as a “venture capital investment,” it being understood that such reasonable actions shall not require a VCOC Investor to purchase or sell any investments.
9
(e) For so long as the VCOC Investor, directly or through one or more Subsidiaries, continues to hold any shares of Common Stock (or other securities of the Company into which such shares of Common Stock may be converted or for which such shares of Common Stock may be exchanged) and upon the written request of such VCOC Investor, without limitation or prejudice of any the rights provided to the Blackstone Entities hereunder, the Company shall, with respect to each such VCOC Investor, furnish and deliver, and in its capacity as the managing member of Exeter Finance LLC, cause Exeter Finance LLC to furnish and deliver, a letter covering the matters set forth in Sections 3.3(a), 3.3(b), 3.3(c) and 3.3(d) hereof in a form and substance satisfactory to such VCOC Investor.
ARTICLE IV
4.1 Pledges or Transfers. Upon the request of any Blackstone Entity or Navigation Entity that wishes to (x) pledge, hypothecate or grant security interests in any or all of the shares of Common Stock or LLC Units held by it, including to banks or financial institutions as collateral or security for loans, advances or extensions of credit or (y) transfer any or all of the shares of Common Stock or LLC Units held by it, including to a third party investor, the Company agrees to cooperate with each such Blackstone Entity or Navigation Entity in taking any action reasonably necessary to consummate any such pledge, hypothecation, grant or transfer, including without limitation, delivery of letter agreements to lenders in form and substance reasonably satisfactory to such lenders (which may include agreements by the Company in respect of the exercise of remedies by such lenders) and instructing the transfer agent to transfer any such shares of Common Stock subject to the pledge, hypothecation or grant into the facilities of The Depository Trust Company without restricted legends and cooperating in diligence or other matters as may reasonably be requested by any Blackstone Entity or Navigation Entity in connection with a proposed transfer.
4.2 Spin-Offs or Split-Offs. In the event that the Company effects the separation of any portion of its business into one or more entities (each, a “NewCo”), whether existing or newly formed, including without limitation by way of spin-off, split-off, carve-out, demerger, recapitalization, reorganization or similar transaction, and any Investor Parties will receive equity interests in any such NewCo as part of such separation, the Company shall cause any such NewCo to enter into a stockholders agreement with the Investor Parties that provides the Investor Parties with rights vis-á-vis such NewCo that are substantially identical to those set forth in this Agreement.
10
ARTICLE V
5.1 Termination. Except for Section 3.3 hereof, this Agreement shall terminate on the earlier to occur with respect to each of the Blackstone Entities and the Navigation Entities, as the case may be, of (i) such time as the Blackstone Designator or Navigation, as the case may be, is no longer entitled to designate a Director pursuant to Section 2.1(a) hereof and (ii) the delivery of a written notice by the Blackstone Designator and Navigation to the Company requesting that this Agreement terminate with respect to such party. The VCOC Investors shall advise the Company when they collectively first cease to Beneficially Own any shares of Common Stock (or other securities of the Company into which such shares of Common Stock may be converted or for which such shares of Common Stock may be exchanged), whereupon Section 3.3 hereof shall terminate.
5.2 Notices. Any notice, designation, request, request for consent or consent provided for in this Agreement shall be in writing and shall be either personally delivered, or mailed first class mail (postage prepaid) or sent by reputable overnight courier service (charges prepaid) to the Company at the address set forth below and to any other recipient at the address indicated on the Company’s records, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Notices and other such documents will be deemed to have been given or made hereunder when sent by facsimile (receipt confirmed) delivered personally, five (5) days after deposit in the U.S. mail and one (1) day after deposit with a reputable overnight courier service.
The Company’s address is:
Exeter Finance Corporation
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Executive Vice President, General Counsel & Secretary
Email: ▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Fax:
with a copy (not constituting notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Belkhayat
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Blackstone Entities’ address is:
The Blackstone Group L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Email: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Fax:
11
with a copy (not constituting notice) to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Belkhayat
Email: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Navigation Entities’ address is:
Navigation Capital Partners
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
with a copy (not constituting notice) to:
DLA Piper LLP (US)
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
5.3 Amendment; Waiver. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the Company and the other parties hereto. Neither the failure nor delay on the part of any party hereto to exercise any right, remedy, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege preclude any other or further exercise of the same or of any other right, remedy, power or privilege, nor shall any waiver of any right, remedy, power or privilege with respect to any occurrence be construed as a waiver of such right, remedy, power or privilege with respect to any other occurrence. No waiver shall be effective unless it is in writing and is signed by the party asserted to have granted such waiver.
5.4 Further Assurances. The parties hereto will sign such further documents, cause such meetings to be held, resolutions passed, exercise their votes and do and perform and cause to be done such further acts and things necessary, proper or advisable in order to give full effect to this Agreement and every provision hereof. To the fullest extent permitted by Law, the Company shall not directly or indirectly take any action that is intended to, or would reasonably be expected to result in, Blackstone, any Blackstone Entity, Navigation or any Navigation Entity being deprived of the rights contemplated by this Agreement.
5.5 Assignment. This Agreement will inure to the benefit of and be binding on the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned without the express prior written consent of the other parties hereto, and any attempted assignment, without such consents, will be null and void; provided, however, that, without the prior written consent of the Company, each Blackstone Entity and Navigation Entity may assign this Agreement, in whole or in part, to any of its Permitted Assigns.
12
5.6 Third Parties. Except as provided for in Article II, Section 3.3 and Section 4.1 hereof with respect to any Blackstone Entity and Navigation Entity, this Agreement does not create any rights, claims or benefits inuring to any Person that is not a party hereto nor create or establish any third party beneficiary hereto.
5.7 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws thereof.
5.8 Jurisdiction; Waiver of Jury Trial. In any judicial proceeding involving any dispute, controversy or claim arising out of or relating to this Agreement, each of the parties unconditionally accepts the jurisdiction and venue of the courts of the State of Delaware or if jurisdiction over the matter is vested exclusively in federal courts, the United States District Court for the District of Delaware, and the appellate courts to which orders and judgments thereof may be appealed. In any such judicial proceeding, the parties agree that in addition to any method for the service of process permitted or required by such courts, to the fullest extent permitted by law, service of process may be made by delivery provided pursuant to the directions in Section 5.2 hereof. EACH OF THE PARTIES HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
5.9 Specific Performance. Each party hereto acknowledges and agrees that in the event of any breach of this Agreement by any of them, the other parties hereto would be irreparably harmed and could not be made whole by monetary damages. Each party accordingly agrees to waive the defense in any action for specific performance that a remedy at law would be adequate and agrees that the parties, in addition to any other remedy to which they may be entitled at law or in equity, shall be entitled to specific performance of this Agreement without the posting of bond.
5.10 Entire Agreement. This Agreement sets forth the entire understanding of the parties hereto with respect to the subject matter hereof. There are no agreements, representations, warranties, covenants or understandings with respect to the subject matter hereof or thereof other than those expressly set forth herein and therein. This Agreement supersedes all other prior agreements and understandings between the parties with respect to such subject matter.
5.11 Severability. If any provision of this Agreement, or the application of such provision to any Person or circumstance or in any jurisdiction, shall be held to be invalid or unenforceable to any extent, (i) the remainder of this Agreement shall not be affected thereby, and each other provision hereof shall be valid and enforceable to the fullest extent permitted by law, (ii) as to such Person or circumstance or in such jurisdiction such provision shall be reformed to be valid and enforceable to the fullest extent permitted by law, and (iii) the application of such provision to other Persons or circumstances or in other jurisdictions shall not be affected thereby.
5.12 Table of Contents, Headings and Captions. The table of contents, headings, subheadings and captions contained in this Agreement are included for convenience of reference only, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
13
5.13 Grant of Consent. Any vote, consent or approval of, or designation by, or other action of, the Blackstone Designator or Navigation hereunder shall be effective if notice of such vote, consent, approval, designation or action is provided in accordance with Section 5.2 hereof by the Blackstone Entities or the Navigation Entities, as applicable, holding of record a majority of the Outstanding Exeter Interests then held of record by Blackstone Entities or the Navigation Entities, as applicable, as of the latest date any such notice is so provided.
5.14 Counterparts. This Agreement and any amendment hereto may be signed in any number of separate counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one Agreement (or amendment, as applicable).
5.15 Effectiveness. This Agreement shall become effective upon the Closing Date.
5.16 No Recourse. This Agreement may only be enforced against, and any claims or cause of action that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement may only be made against the entities that are expressly identified as parties hereto and no past, present or future Affiliate, director, officer, employee, incorporator, member, manager, partner, stockholder, agent, attorney or representative of any party hereto shall have any liability for any obligations or liabilities of the parties to this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby.
[Remainder of Page Intentionally Left Blank]
14
| EXETER FINANCE CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Exeter Finance Corporation Stockholders’ Agreement]
| BLACKSTONE PARTIES: | ||
| [SIGNATURE BLOCKS TO COME] | ||
| NAVIGATION CAPITAL PARTNERS II LP. | ||
| By: |
| |
| Name: | ||
| Title: | ||
[Signature Page to Exeter Finance Corporation Stockholders’ Agreement]