STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made and entered into
as of April 28, 1999, by and among COMPUCREDIT CORPORATION, a Georgia
corporation (the "Company"), XXXXX X. XXXXX, III, individually ("Xxxxx Xxxxx")
and as Trustee of BRAVO TRUST ONE, a Georgia trust, U/A dated October 15, 1993
("Trust One"), XXXXX X. XXXXX, individually ("Xxxxx Xxxxx") and as Trustee of
BRAVO TRUST TWO, a Georgia trust, U/A dated October 15, 1993 ("Trust Two"),
XXXXXXX X. XXXXXXX, an individual resident of the State of Georgia ("Xxxxxxx"),
and XXXXXXX X. HOUSE, an individual resident of the State of Georgia ("House"),
(Xxxxx Xxxxx, Trust One, Xxxxx Xxxxx, Trust Two, Xxxxxxx, and House being
referred to herein individually and collectively as "Stockholders").
W I T N E S S E T H:
WHEREAS, as of the date of this Agreement, the Stockholders and certain
other stockholders of the Company are terminating a prior Stockholders Agreement
with the Company dated as of August ___, 1997, and relating to all of the
then-outstanding shares of Common Stock of the Company; and
WHEREAS, after giving effect to the exchange of certain shares of
Preferred Stock of the Company for shares of Common Stock contemporaneously with
the effective date of this Agreement, each of the Stockholders is the record
holder of certain shares of Common Stock of the Company as set forth in Exhibit
A hereto (the shares of Common Stock of the Company outstanding at any time
being referred to as the "Common Stock" at such time and the shares of Preferred
Stock of the Company outstanding at any time being referred to as the "Preferred
Stock" at such time; the shares of Common Stock and Preferred Stock owned at any
time by any of the Stockholders or any of their Affiliates (as hereinafter
defined) being referred to as the "Shares" at such time); and
WHEREAS, the parties to this Agreement consider it to be in their
individual and mutual best interests to provide for certain take-along and
bring-along rights relating to the Shares held by the Stockholders and certain
other matters as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto, intending to be legally bound agree as follows:
1. TAG-ALONG AND BRING-ALONG RIGHTS.
1.01 EXERCISE OF "TAG-ALONG RIGHT".
(a) TRANSFERS BY THE STOCKHOLDERS. If one or
more of the Stockholders (the "Transferring Shareholder(s)" for purposes of
this Section 1.01) desires to accept a BONA FIDE
offer from an unaffiliated third party (a "Proposed Purchaser") to purchase
from the Transferring Shareholders (a "Transfer") more than fifty percent
(50%) of the total outstanding Common Stock (the "Offered Shares"), each of
the other Stockholders (a "Remaining Stockholder") may elect (the
"Tag-Along-Right") to sell to such Proposed Purchaser, on the same terms and
conditions as were offered to the Transferring Stockholders, a number of the
Shares then owned by each Remaining Stockholder equal to a percentage of the
Offered Shares, which percentage shall be equal to the result obtained by
dividing (i) the number of Shares of Common Stock owned by such Remaining
Stockholder by (ii) the total number of shares of Common Stock issued and
outstanding at the time of calculation. If any Remaining Stockholders
exercise their Tag-Along Right, the Transferring Stockholders shall be
entitled to sell that portion of the Transferring Stockholders' Shares of
Common Stock equal to the difference between (a) the Offered Shares and (b)
the shares of Common Stock which the Remaining Stockholders elect to sell
pursuant to the exercise of their Tag-Along-Along Right.
(b) NOTIFICATION OF PROPOSED TRANSFERS. In the
event of a proposed Transfer pursuant to this Section 1.01, the Transferring
Stockholder shall notify in writing all Remaining Stockholders of the
proposed Transfer. Such notice shall set forth: (i) the name of the Proposed
Purchaser and the number of shares of Common Stock that are to be
transferred, (ii) the proposed amount and form of consideration and terms and
conditions of payment offered by such proposed transferee, and (iii) that the
Proposed Purchaser has been informed of the Tag-Along Right provided for in
this Section 1.01 and has agreed to purchase Shares in accordance with the
terms hereof. The Transferring Stockholders shall include with the notice all
documents proposed to be executed by the Remaining Stockholders in connection
with the proposed Transfer, and shall, to the extent such documents are
modified prior to such Transfer, promptly transmit such proposed modification
to each Remaining Stockholder who has provided a written notice to the
Company (the "Tag-Along Notice"). The Tag-Along Right may be exercised by any
Remaining Stockholder by delivery of the Tag-Along Notice within 30 days
following receipt of the notice specified in the immediately preceding
sentence. The Tag-Along Notice shall state the number and class of the
Stockholder's Shares that the Remaining Stockholder wishes to include in such
transfer to the proposed transferee. In the event that the Proposed Purchaser
does not purchase such shares on the same terms and conditions as those set
forth in the notice delivered by the Transferring Stockholders then the sale
by the Transferring Stockholders to the Proposed Purchaser shall be invalid.
The provisions of this Section 1.01 shall not apply to any Transfer if the
terms of such Transfer provide for the purchase of all of the
then-outstanding Shares on the same terms and conditions as are offered to
the Transferring Stockholders.
1.02 EXERCISE OF "BRING-ALONG RIGHT".
(a) BRING-ALONG RIGHT. If Stockholders owning
more than fifty percent (50%) of the Common Stock (the "Transferring
Shareholders" for purposes of this Section 1.02) propose to Transfer all of
their Shares to a proposed unaffiliated third party transferee in a BONA
FIDE, arms-length transaction, then the Transferring Shareholders may, at
their option (the "Bring-Along Right"), require the other Stockholders to
sell all of the Shares owned by them (the "Designated Shares") to the
proposed transferee for the same consideration
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per share and otherwise on the same terms and conditions upon which the
Transferring Shareholders are selling their Shares.
(b) NOTIFICATION OF PROPOSED TRANSFER. The
Transferring Shareholders shall exercise their Bring-Along Right by sending
written notice of the exercise of the Bring-Along Right to each of the other
Stockholders. Such notice shall set forth: (i) the name and address of the
proposed transferee and the proposed amount and form of consideration per
Share to be paid by the proposed transferee and (ii) the terms and conditions
of such transaction. Such notice shall be accompanied by copies of all
documents required to be executed by the Stockholders in connection with such
transaction. Within 10 days following receipt of the notice, each of the
other Stockholders shall deliver to a representative of the Transferring
Shareholders, designated in the notice, certificates representing the
Designated Shares held by such Stockholder, duly endorsed, together with
fully executed copies of all other documents required to be executed in
connection with such transactions, including (if requested) customary legal
opinions from the counsel to such Stockholder. In the event that a
Stockholder should fail to deliver such certificates to the Transferring
Shareholders, the Company shall cause its books and records to show that such
Shares are bound by the provisions of this Section 1.02 and that such Shares
shall be transferred only to the third party purchaser upon surrender for
transfer by the holder thereof. If requested by the Transferring
Shareholders, each Stockholder also shall cause a representative that is duly
authorized to execute documents and to act on behalf of such Stockholder to
attend the closing of the transaction and to take such actions as are
reasonably requested by the Transferring Shareholders.
(c) RETURN OF DESIGNATED SHARES. If, within 120
days after the Transferring Shareholders give such notice, the sale of the
Designated Shares by the Transferring Shareholders in accordance herewith has
not been completed, the Transferring Shareholders shall return to each
Stockholder all certificates representing the Designated Shares that such
Stockholder delivered for sale pursuant hereto.
(d) PAYMENT FOR DESIGNATED SHARES. Simultaneously
with the consummation of the sale of the Designated Shares by the
Transferring Shareholders and the other Stockholders pursuant to this Section
1.02, the Transferring Shareholders shall remit to each of the Stockholders
the total sales price of the Designated Shares sold pursuant thereto (net of
the other Stockholders' pro rata share of any transaction expenses), and
shall furnish such other evidence of the completion and time of completion of
such sale or other disposition and the terms thereof as may be reasonably
requested by such Stockholders.
2. ENFORCEABILITY.
2.01 SPECIFIC PERFORMANCE. The parties hereto recognize and
hereby acknowledge that it is impossible to measure in money the damages
which would result to a party hereto by reason of a failure of any of the
parties hereto to perform any of the obligations imposed upon it or him under
this Agreement. Therefore, if any party hereto should institute an action or
proceeding to enforce the provisions hereof, any person, including the
Company, against whom such action or proceeding is thereby brought hereby
waives the claim or defense
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that such party has an adequate remedy at law, and such person shall not urge
in any action or proceeding the claim or defense that such a remedy at law
exists.
2.02 SEPARATE AGREEMENT. The parties hereto recognize,
acknowledge and agree that this Agreement constitutes a separate agreement
independently supported by good and adequate consideration, the receipt and
sufficiency of which are hereby acknowledged, and that this Agreement shall
be interpreted, construed, and enforced separate and apart from any other
agreements between or among the parties hereto. The parties hereto further
agree that no claim or cause of action of any party hereto against any other
party hereto arising under any other agreement between or among the parties
hereto or out of any set of facts shall constitute a defense to the
enforcement of this Agreement.
2.03 ATTEMPTED TRANSFERS IN CONTRAVENTION. Any attempted
Transfer in contravention of this Agreement shall be void and of no effect
and shall not bind or be recognized by the Company. In the case of an
attempted Transfer in violation of the terms of this Agreement, the parties
attempting to engage in such Transfer shall indemnify and hold harmless (and
hereby agree to indemnify and hold harmless), the Company and the other
Stockholders from all costs, liabilities, and damages that any of such
indemnified persons or entities may incur (including, without limitation,
incremental tax liability and attorneys' fees and expenses) as a result of
such attempted Transfer and efforts to enforce the indemnity granted hereby.
3. ADDITIONAL PARTIES HERETO.
3.01 TRANSFEREES. Upon and following any sale of any Shares
by a Stockholder in a public offering that is registered under the Securities
Act of 1933, as amended, or pursuant to Rule 144 under such act or pursuant
to a bona fide gift to a charitable trust or Corporation, such Shares shall
thereafter no longer be subject to any of the rights or restrictions set
forth in this Agreement, and no such transferee of a Stockholder shall have
any rights or obligations hereunder in respect of such Shares. Any other
transferee of a Stockholder (including any Affiliate of a Stockholder) who
hereafter becomes a holder of Shares shall and must become a party hereto by
executing a counterpart of this Agreement. Any such party executing this
Agreement shall thereafter be a party to this Agreement as fully and to the
same extent as if he or it had been an original signatory party hereof and
shall be deemed to be a Stockholder for the purposes hereof. Simultaneously
with any transfer, Exhibit A hereto will be amended as necessary and
delivered to each Stockholder. For purposes of this Agreement, an "Affiliate"
of a Stockholder (i) is any person or entity that, directly or indirectly,
controls, is controlled by or is under common control with such Stockholder
and (ii) shall be deemed also to include, in the case of any Stockholder who
is an individual, (A) any spouse or descendant of such Stockholder, or (B) an
estate or a trust, if all the beneficial interest in the Shares held by such
estate or trust is owned by the Stockholder and/or one of the persons
specified in clause (ii)(A). For the purposes of the definition of
"Affiliate," "control" shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
a person, whether through the ownership of more than 50% of the voting
securities, by contract or otherwise.
4. MISCELLANEOUS.
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4.01 LEGEND ON STOCK CERTIFICATES. Each certificate
representing Shares subject to this Agreement shall bear on its face in
conspicuous type the following legend:
The shares of stock represented by this certificate (and
certain transfers thereof) are subject to the terms of a
Stockholders Agreement, dated March __, 1999 (and all
amendments thereto), by and among certain Stockholders of the
Company and the Company, a copy of which is on file at the
main office of the Company. Any sale, assignment, transfer,
gift, pledge, encumbrance or other disposition of the shares
evidenced by this certificate not in conformity with said
Agreement shall be invalid.
In the event such legend cannot practically be placed on the face of such
certificate, such legend shall be set out in conspicuous type on the back of the
certificate, and notice thereof shall be given in conspicuous type on the front.
4.02 TERMINATION. Unless earlier terminated by the written
agreement of the parties hereto, including all of the Stockholders and such
of their transferees as may hereafter become party hereto, this Agreement
shall terminate upon the earlier of (i) a sale of all or substantially all of
the assets of the Company or the acquisition by a single person of all of the
outstanding capital stock of the Company, or (ii) the earliest date on which
all of the Stockholders hereunder shall no longer collectively hold at least
50% of the then-outstanding shares of Common Stock.
4.03 ENTIRE AGREEMENT; BINDING EFFECT; GOVERNING LAW. This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and, except as provided in Section 3.01 hereof, may not
be modified or amended except in a writing executed by all the parties
hereto. Except as otherwise provided herein, all covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the permitted transferees, successors
and assigns of the parties hereto whether expressed or not. This Agreement
shall be governed by and construed in accordance with the laws of the State
of Georgia (without regard to the conflict of laws principles thereof).
4.04 COUNTERPARTS. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
4.05 HEADINGS. Section headings are for purposes of
convenience and reference only and do not form a part of, nor are they to be
referred to in the interpretation or construction of this Agreement.
4.06 NOTICES. All notices, requests, consents and other
communications to be given under or by reason of this Agreement shall be in
writing and shall be delivered personally, by facsimile, by overnight courier
service or mailed by certified or first class registered mail, postage
prepaid, in any case addressed as follows:
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If to the Company, at
CompuCredit Corporation
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
if to any Stockholder, to such Stockholder at the address or facsimile number
set forth for such Stockholder on Exhibit A hereto, or, in any such case, at
such other address or addresses as shall have been furnished in writing by
such party to the others. Any such notice, payment, demand, or communication
shall be deemed to be delivered, given, and received for all purposes hereof
(x) on the date of receipt if delivered personally or by courier, (y) five
days after posting if transmitted by mail, or (z) the date of transmission if
by telecopy, provided that the party to whom the telecopy was sent
acknowledges that such telecopy was received by such party in legible form,
or that such party responds to the telecopy without indicating that any part
of it was received in illegible form, whichever shall first occur.
[Signatures appear on following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
BRAVO TRUST ONE, U/A
By: /s/ Xxxxx X. Xxxxx, III
-------------------------------
Xxxxx X. Xxxxx, III
Trustee
BRAVO TRUST TWO, U/A
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
Trustee
/s/ Xxxxx X. Xxxxx, III
-------------------------------
Xxxxx X. Xxxxx, III
/s/ Xxxxx X. Xxxxx
-------------------------------
Xxxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. House
-------------------------------
Xxxxxxx X. House
COMPUCREDIT CORPORATION
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer
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EXHIBIT A
SHARES OF
STOCKHOLDER COMMON STOCK
Bravo Trust One
Fax No.:
Address:
Bravo Trust Two
Fax No.:
Address:
Xxxxx X. Xxxxx, III
Fax No.:
Address:
Xxxxx X. Xxxxx
Fax No.:
Address:
Xxxxxxx X. Xxxxxxx
Fax No.:
Address:
Xxxxxxx X. House
Fax No.:
Address:
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