EXHIBIT 10.24
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is entered into as of
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August 2, 1999, by and among Xxxxxx X. Xxxxxx ("Xxxxxx"), Creditrust
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Corporation, a Maryland corporation (the "Company"), the Lenders set forth on
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the signature pages hereto (each Lender, together with its successors and
assigns, being a "Tag-Along Investor" and, collectively, the "Tag-Along
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Investors"). The shares of Common Stock, $0.01 par value per share, of the
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Company (together with securities convertible or exchangeable therefor, the
"Common Stock") now owned and hereafter acquired by the Tag-Along Investors,
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together with any securities exercisable for or convertible into or exchangeable
for shares of Common Stock, are sometimes referred to herein as the "Shares" (it
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being understood that all securities exercisable for or convertible into or
exchangeable for shares of Common Stock shall be treated on any date as if they
had been exercised, converted or exchanged into Common Stock on that date and
shall be deemed to represent the number of shares of Common Stock that would be
issued upon such exercise, conversion or exchange). Capitalized terms that are
used but not defined herein have the meanings assigned to them in the Bridge
Loan Agreement referred to below.
RECITALS
WHEREAS, the Company, the Administrative Agent, the Borrower, Capital
and the Lenders referred to therein have entered into a Bridge Loan Agreement,
dated as of August 2, 1999 (as amended, restated or otherwise modified from time
to time, the "Bridge Loan Agreement"), providing for certain bridge loans to be
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made by the Lenders thereunder to the Borrower (the "Bridge Loans").
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WHEREAS, the Company has issued warrants to purchase on a fully-
diluted basis 10.0% of its Common Stock in blank to Norwest Bank Minnesota,
National Association, as Escrow Agent under that certain Escrow Agreement, dated
as of August 2, 1999, among Norwest Bank Minnesota, National Association, the
Company, Capital, the Borrower and the Administrative Agent (the "Escrow
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Agreement") to be held pursuant to the terms of the Escrow Agreement as required
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by the Bridge Loan Agreement.
WHEREAS, the Tag-Along Investors desire to enter into this Agreement
for the purpose of regulating certain aspects of the Tag-Along Investors'
relationships with regard to each other and the Company in connection with their
ownership of the Shares.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the Tag-Along Investors
agree as follows:
Section 1. Tag-Along Right. For purposes of this Agreement, a
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"Covered Transaction" shall mean any sale or contract or series of sales or
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contracts to sell Common Stock of the Company beneficially owned by Xxxxxx (as
that term is defined in Rule 13d-1 of the Exchange Act) (a) entered into or
consummated by Xxxxxx or an Affiliate or immediate family member of Xxxxxx on or
after the Conversion Date and in which the counterparty is a person other than
(i) an Affiliate of Xxxxxx that assumes all of the obligations of Xxxxxx
hereunder with respect to such shares of Common Stock or (ii) a transferee
pursuant to a transaction entered into by Xxxxxx solely in good faith for estate
planning purposes (the sole beneficiary of such transferee being Xxxxxx or an
immediate family member of Xxxxxx) that assumes all of the obligations of Xxxxxx
hereunder with respect to such shares of Common Stock (a "proposed purchaser")
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and (b) resulting in or contemplating proceeds (whether in cash, securities or
other property) the fair market value of which is at least $15.0 million. With
respect to any Covered Transaction, each Tag-Along Investor shall each have the
right (the "Tag-Along Right") to require the proposed purchaser to purchase
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all or any portion of such Tag-Along Investor's Pro Rata Allocation (as defined
below) of the shares Common Stock proposed to be transferred simultaneously with
consummating the proposed transfer. A Tag-Along Investor's "Pro Rata Allocation"
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of the number of Shares proposed to be transferred in any proposed transfer
shall equal the total number of shares of Common Stock proposed to be
transferred by Xxxxxx multiplied by a fraction the numerator of which is the
total number of Shares held by such Tag-Along Investor and the denominator of
which is the total number of shares of Common Stock held by Xxxxxx and the Tag-
Along Investors. Any Shares purchased from Tag-Along Investors pursuant to this
Section 1 shall be purchased at the same price per Share and upon the same terms
and conditions as such proposed transfer by Xxxxxx, it being agreed, however,
that such terms and conditions shall not include the making of any
representations and warranties, indemnities or other similar agreements other
than representations and warranties with respect to title of the Shares being
sold and authority to sell such Shares and indemnities related thereto ("Title
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Representations"). Xxxxxx shall, not less than 30 nor more than 60 business days
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prior to each proposed transfer, notify, or cause to be notified, each Tag-Along
Investor in writing of each such proposed transfer. Such notice (the "Transfer
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Notice") shall set forth: (i) the name of the transferor and the number and
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description of shares of Common Stock proposed to be transferred, (ii) the name
and address of the proposed purchaser, (iii) the proposed amount and form of
consideration and terms and conditions of payment offered by such proposed
purchaser, (iv) each Tag-Along Investor's Pro Rata Allocation of the shares of
Common Stock proposed to be transferred and (v) that the proposed purchaser has
been informed of the Tag-Along Right provided for in this Section 1 and has
agreed to purchase shares of Common Stock in accordance with the terms hereof.
Xxxxxx hereby agrees not to transfer any shares of Common Stock, directly or
indirectly, in a manner that would be inconsistent with the essential intent of
this Section 1. For purposes of this Section 1, any transfer of an equity
interest of an entity that was formed for the purpose of acquiring shares of
Common Stock shall be deemed to be a transfer of the shares of Common Stock
owned by such entity.
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The Tag-Along Right may be exercised by any Tag-Along Investor within
15 business days following its receipt of the Transfer Notice by delivery of a
written notice to Xxxxxx proposing to sell Shares (the "Tag-Along Notice"). The
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Tag-Along Notice shall state the number of Shares (the "Tag-Along Shares") that
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such Tag-Along Investor proposes to include in such transfer to the proposed
purchaser, which number of Shares shall not exceed such Tag-Along Investor's Pro
Rata Allocation of the shares of Common Stock proposed to be transferred.
Delivery of the Tag-Along Notice by any Tag-Along Investor shall constitute an
agreement by such Tag-Along Investor to sell, on the terms and conditions
specified in the Transfer Notice, the Tag-Along Shares to the proposed purchaser
specified in the Transfer Notice. In the event that the proposed purchaser does
not purchase the Tag-Along Shares from the Tag-Along Investors on the same terms
and conditions as specified in the Transfer Notice, then Xxxxxx shall not be
permitted to sell any shares of Common Stock to the proposed purchaser in the
proposed transfer. If no Tag-Along Notice is received during the 15-business
day period referred to above, Xxxxxx shall have the right thereafter, prior to
the expiration of 30 business days from the date of the Transfer Notice, to
transfer the shares of Common Stock specified in the Transfer Notice (or a
portion thereof) on terms and conditions no more favorable than those stated in
the Transfer Notice and in accordance with the provisions of this Section 1.
Any attempt to transfer any shares of Common Stock in violation of
this Agreement will be null and void, and the Company agrees not to effect any
transfer of Common Stock by Xxxxxx and to instruct the transfer agent for the
Common Stock not to effect any such transfer of Common Stock, until the Company
and the transfer agent have received evidence reasonably satisfactory to it that
the Tag-Along Right, if applicable to such transfer, has been complied with.
Section 2. Miscellaneous.
(a) Legend. Xxxxxx, the Company and the Tag-Along Investors agree
that, on and after the Conversion Date, each certificate representing shares of
Common Stock held by Xxxxxx and the Tag-Along Investors shall bear the following
legend until such time as the same is no longer applicable:
"THE SHARES OF COMMON STOCK OR OTHER SECURITIES REPRESENTED
BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF, AND ARE
ENTITLED TO THE BENEFITS SET FORTH IN, A STOCKHOLDERS
AGREEMENT, DATED AUGUST 2, 1999, A COPY OF WHICH IS ON FILE
AT THE OFFICE OF THE COMPANY. THE COMPANY WILL FURNISH A
COPY OF SUCH STOCKHOLDERS AGREEMENT TO THE RECORD HOLDER
HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY AT
ITS PRINCIPAL PLACE OF BUSINESS OR REGISTERED OFFICE."
(b) Successors, Assigns and Transferees. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, heirs, legatees, successors and assigns including any
party to which Xxxxxx or any of his
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permitted assigns has transferred or sold shares of Common Stock. Each
transferee of Shares from a Tag-Along Investor shall take such Shares subject to
the same restrictions and entitled to the same benefits as existed in the hands
of the transferor and references herein to a Tag-Along Investor shall include
any such transferee, except that Shares sold to the public pursuant to an
effective registration statement shall no longer be subject to any of the
provisions of this Agreement.
(c) Specific Performance, Etc. Each Tag-Along Investor, in addition
to being entitled to exercise all rights provided herein, in the Company's
Certificate of Incorporation or granted by law, including recovery of damages,
will be entitled to specific performance of its rights under this Agreement.
Xxxxxx and each of the Tag-Along Investors agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach of the
provisions of this Agreement and hereby agrees to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAW OF THE STATE OF NEW YORK UNLESS THE
MANDATORY LAW OF THE STATE OF MARYLAND APPLIES.
(e) Interpretation. The headings of the sections contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
(f) Notices. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given and received when delivered by overnight courier or hand delivery to the
parties at the following addresses (or at such other address for any party as
shall be specified by like notice, provided that notices of a change of address
shall be effective only upon receipt thereof).
(i) If to the Company or Xxxxxx, at:
Creditrust Corporation
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
with copies to:
Xxxxx & Xxxxxxx L.L.P.
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
(ii) If to a Tag-Along Investor, at:
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Its address as shown in the stock register of the Company
with copies to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(g) Recapitalizations, Exchange, Etc. Affecting the Company's Stock.
The provisions of this Agreement shall apply, to the full extent set forth
herein with respect to the Common Stock, to any and all shares of capital stock
of the Company or any successor or assign of the Company (whether by merger,
consolidation, sale of assets, or otherwise) that may be issued in respect of,
in exchange for, or in substitution of the Common Stock and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
(h) Inspection and Compliance with Law. Copies of this Agreement
will be available for inspection or copying by any Tag-Along Investor at the
offices of the Company through the Secretary of the Company. The Company shall
take all reasonable action to insure that the provisions of New York Law
relating to agreements similar to this Agreement are promptly complied with.
(i) Counterparts. This Agreement may be executed in one or more
counterparts, by the original parties hereto and any successor in interest, each
of which shall be deemed to be an original and all of which together shall be
deemed to constitute one and the same agreement.
(j) Termination. This Agreement shall terminate and cease to be of
any further force or effect upon the earliest of (i) the fifth anniversary of
the date hereof or (ii) the return to the Company of all Shares (or warrants
therefor) held in escrow pursuant to the Escrow Agreement.
(k) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be in any way
impaired thereby.
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IN WITNESS WHEREOF, the parties have executed this Stockholders
Agreement as of the date first above written.
Creditrust Corporation
By:_______________________________________
Name:
Title:
Accepted and agreed to:
U.S. Bancorp Investments, Inc.
By:_______________________________________
Name:
Title:
Xxxxx Xxxxxx & Co., Inc.
By:_______________________________________
Name:
Title:
Whippoorwill Associates, inc.
By:_______________________________________
Name:
Title:
Everest Capital
By:_______________________________________
Name:
Title:
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[new lender]
By:_______________________________________
Name:
Title:
Xxxxxx X. Xxxxxx
By:_______________________________________
Name:
Title:
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