EXHIBIT 10.3
FOURTH AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of May 18,
1998 among JEEPERS! INC., a Delaware corporation (the "Company"), and the
stockholders listed on the signature pages hereto (individually, a "Stockholder"
and, collectively, the "Stockholders").
RECITALS
A. The Company and the Stockholders are parties to a Third Amended and
Restated Stockholders and Voting Agreement dated as of December 26, 1996 (the
"Predecessor Agreement").
B. The Company intends to commence an underwritten initial public
offering (the "Offering") of its shares of Common Stock (as defined herein) and
the Company and the Stockholders desire to amend and restate the Predecessor
Agreement upon the terms and conditions set forth herein.
Accordingly, the parties hereto agree that the Predecessor Agreement
shall be amended and restated as follows:
ARTICLE 1.
DEFINITIONS
1.1. Defined Terms. The following terms are defined as
-------------
follows:
(a) "Affiliate" shall mean, with respect to any person, any
other person which directly or indirectly controls, is controlled by, or is
under common control with such person, including any limited partner, the
general partner of which is any such other person.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(d) "Common Stock" shall mean the Company's Common Stock, par
value $.01 per share.
(e) "Common Stock Equivalents" shall mean, with respect to any
Stockholder, the number of shares of Common Stock owned by such Stockholder and
the number of shares of Common Stock into or for which any Convertible
Securities owned by such Stockholder shall be convertible, exchangeable or
exercisable (other than in respect of accrued and unpaid dividends) as of the
date of determination thereof.
(f) "Convertible Securities" means any options, warrants,
convertible notes or other securities or rights convertible, exchangeable or
exercisable, with or without the payment of additional consideration, into or
for shares of Common Stock, directly or indirectly.
(g) "Preferred Stock" means, collectively, the Company's
Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series F Preferred Stock, in each case having par
value $1.00 per share.
(h) "Securities Act" shall mean the Securities Act of 1933, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
(i) "Shares" shall mean any shares of capital stock of the
Company, including Common Stock and Preferred Stock, now or hereafter issued.
ARTICLE 2.
REGISTRATION RIGHTS
2.1. Demand Registration Rights. At any time and from time to
--------------------------
time, after 180 days following the consummation of the Offering, if the Company
receives written notice from Stockholders representing not less than 800,000 of
the outstanding shares of Common Stock held by the Stockholders (as such number
may be adjusted to reflect any subdivision, combination or recapitalization of
the Common Stock occurring following the date of this Agreement), which notice
demands the registration of all or any portion of the Common Stock held by such
Stockholders and specifies the intended methods of disposition thereof
2
(the "Registration Demand"), then, subject to the provisions of this Agreement,
the Company shall promptly (and in any event within 10 days after its receipt of
the Registration Demand) provide notice thereof to the other Stockholders and
cause to be prepared a registration statement, file and obtain a receipt for the
registration statement as soon as practicable (but not later than 90 days after
the date of the Registration Demand), and exercise its best efforts to file a
final registration statement and obtain a receipt therefore as soon as
practicable thereafter, in each case under the Securities Act and such other
securities laws as shall be directed by such holders, to the end that such
Shares may be sold thereunder as soon as practicable after the receipt of such
Registration Demand; provided, however, that the Company shall not be obligated
to take any action to effect such registration, qualification or compliance
pursuant to this Section 2.1, (i) from the initial filing date until 180 days
immediately following the effective date of any registration statement that had
been filed (and not withdrawn) prior to the date of the Registration Demand and
pertains to a firmly underwritten offering of equity securities of the Company
unless otherwise consented to by the managing underwriter of such offering; or
(ii) unless such registration may be effected pursuant to Form S-3 or any or
successor form promulgated under the Securities Act, after the Company has
effected three requested registrations pursuant to this Agreement which either
have been declared or ordered effective and the Shares offered pursuant to such
registrations have been sold or have been terminated by the selling Stockholders
for reasons other than a material adverse change in the business, condition
(financial or otherwise) or prospects of the Company (except that any such
terminated registration shall not constitute one of the three demand
registrations provided herein if the selling Stockholders shall have reimbursed
the Company for all expenses incurred by the Company in connection with such
terminated registration). Any such registration shall hereinafter be called a
"Demand Registration".
2.2. "Piggyback" Registration Rights. Subject to applicable
-------------------------------
stock exchange rules and securities regulations, prior to any public offering of
any class of its equity securities for the account of the Company or any other
person (other than a registration statement on Form S-4 or S-8 (or any successor
forms under the Securities Act) or other registrations relating solely to
employee benefit plans or any transaction governed by Rule 145 of the Securities
Act), including pursuant to the exercise of any Demand Registration pursuant to
Section 2.1, the Company shall give written notice of such proposed filing and
of the proposed date thereof to each Stockholder and if, on or before the
twentieth (20th) day following the date on which such notice is given, the
Company shall receive a written request from any Stockholder requesting that the
Company include among the securities covered by such registration statement any
Shares owned by such Stockholder for offering for sale in a manner and on terms
set forth in such request, the Company shall include such Shares in such
registration statement, if filed, so as to permit such Shares to be sold or
disposed of in the manner and on the terms of the offering thereof set forth in
such request, subject to the
3
provisions of this Agreement. Such registration shall hereinafter be called a
"Piggyback Registration".
2.3. Terms and Conditions of Registration or Qualification. In
-----------------------------------------------------
connection with any registration statement filed pursuant to Section 2.1 or 2.2
hereof, the following provisions shall apply:
(a) Each selling Stockholder shall, if requested by the
managing underwriter, agree not to sell publicly any Shares held by such
Stockholder (other than the Shares so registered) for such period of time
following the effective date of the registration statement relating to such
offering, but in no event in excess of 180 days, as the managing underwriter may
require and the Company shall agree.
(b) If the managing underwriter advises that the inclusion in
such registration or qualification of some or all of the Shares sought to be
registered exceeds the number (the "Saleable Number") that can be sold in an
orderly fashion within a price range acceptable to the Company, if such
registration is being effected at the Company's determination, or the selling
Stockholders, in the case of a Demand Registration, then the number of Shares
offered shall be limited to the Saleable Number and shall be allocated as
follows:
(i) if such registration is being effected at the
Company's determination to sell Shares for its own account, (1) first,
all the Shares the Company proposes to register and (2) second, the
difference between the Saleable Number and the number to be included
pursuant to clause (1) above, allocated among all selling Stockholders
pro rata on the basis of the relative number of Shares offered for sale
by each such Stockholder; and
(ii) if the registration is being effected pursuant
to a Demand Registration, (1) first, the entire Saleable Number
allocated among all selling Stockholders pro rata on the basis of the
relative number of Shares offered for sale by each such Stockholder and
(2) second, the difference (if positive) between the Saleable Number
and the number to be included pursuant to clause (1) above, allocated
to the Company.
(c) The selling Stockholders shall promptly provide the
Company with such information as the Company shall reasonably request in order
to prepare such registration statement and, upon the Company's request, each
such Stockholder shall provide such information in writing and signed by such
holder and stated to be specifically for inclusion in the registration
statement. In the event that the distribution of the Shares covered by the
4
registration statement shall be effected by means of an underwriting, the right
of any Stockholder to include its Shares in such registration shall be
conditioned on such Stockholder's execution and delivery of a customary
underwriting agreement with respect thereto; provided, however, that except with
respect to information concerning such Stockholder and such Stockholder's
intended manner of distribution of the Shares, no Stockholder shall be required
to make any representations or warranties in such agreement as a condition to
the inclusion of its Shares in such registration.
(d) All expenses in connection with the preparation of any
registration statement filed pursuant to Section 2.1 or 2.2 hereof (other than
underwriting fees, discounts or commissions with respect to Shares of the
selling Stockholders or fees and disbursements of counsel for such Stockholders)
shall be borne solely by the Company.
(e) Following the effective date of such registration
statement, the Company shall, upon the request of the selling Stockholders,
forthwith supply such number of prospectuses (including preliminary prospectuses
and amendments and supplements thereto) meeting the requirements of the
Securities Act or such other securities laws where the registration statement or
prospectus has been filed and such other documents as are referred to in the
registration statement as shall be requested by the selling Stockholders to
permit such Stockholders to make a public distribution of their Shares, provided
that such Stockholders furnish the Company with such appropriate information
relating to such holders' intentions in connection therewith as the Company
shall reasonably request in writing.
(f) The Company shall use its best efforts to register or
qualify the Shares of the selling Stockholders covered by any such registration
statement under such securities or blue sky laws in such jurisdictions as the
Stockholders may request; provided, however, that the Company shall not be
required to execute a general consent to service of process or to qualify to do
business as a foreign corporation in any jurisdiction where it is not so
qualified in order to comply with such request.
(g) In connection with any registration pursuant to Article 2,
the Company will as expeditiously as possible:
(i) cause the Shares covered by such registration
statement to be registered with or approved by such other governmental
agencies or authorities as may be necessary by virtue of the business
and operations of the Company to enable the selling Stockholders to
consummate the disposition of such Shares;
(ii) cause all Shares covered by the registration
statement to be listed on each securities exchange on which similar
securities issued by the Company
5
are then listed, and, unless the same already exists, provide a
transfer agent, registrar and CUSIP number for all such Shares not
later than the effective date of the registration statement;
(iii) enter into such customary agreements (including
an underwriting agreement in customary form) and take all such other
actions as the holders of a majority of the voting power of the Shares
being sold or the underwriters retained by such holders, if any,
reasonably request in order to expedite or facilitate the disposition
of such Shares;
(iv) make available for inspection by any selling
Stockholder, any underwriter participating in any disposition pursuant
to such registration statement, and any attorney, accountant or other
agent retained by any such seller or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company as shall be necessary to enable
them to exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all information
requested by any such Inspector in connection with such registration
statement;
(v) obtain "cold comfort" letters and updates thereof
from the Company's independent public accountants and an opinion from
the Company's counsel in customary form and covering such matters of
the type customarily covered by "cold comfort" letters and opinions of
counsel, respectively, as the holders of a majority of the voting power
of the Shares of the selling Stockholders shall request; and
(vi) otherwise comply with all applicable rules and
regulations of the Commission, and make available to its
securityholders, as soon as reasonably practicable, an earnings
statement covering a period of 12 months, beginning within three months
after the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder.
(h) Notwithstanding anything herein to the contrary, the
Company shall not be required to register any Shares (i) representing less than
5% of the outstanding Common Stock Equivalents with respect to which the Company
shall furnish an opinion of counsel reasonably acceptable to the holder thereof
that such Shares may be distributed in the manner contemplated by the holder
without registration under Rule 144(k) promulgated under the Securities Act, or
(ii) pursuant to any Registration Demand in accordance with Section 2.1 if the
gross proceeds from such registration and intended distribution are not
reasonably
6
anticipated to exceed $10,000,000 (or, in the case of any registration pursuant
to Form S-3, $5,000,000 or such lesser amount of proceeds as may be obtained in
a registration of all remaining Shares owned by any Stockholder).
2.4. Registration to Be Kept Effective. (a) In connection with
---------------------------------
any registration of Shares pursuant to this Article 2, subject to Section
2.4(b), the Company shall, at its expense, keep effective and maintain such
registration and any related qualification of Shares under state securities laws
for such period not exceeding 90 days as may be necessary for the selling
Stockholders, underwriters and selling agents to dispose of such Shares, from
time to time to amend or supplement the prospectus used in connection therewith
to the extent necessary to comply with applicable laws, and to furnish to such
Stockholders such number of copies of the registration statement, the prospectus
constituting part thereof, and any amendment or supplement thereto as such
Stockholders may reasonably request in order to facilitate the disposition of
the registered Shares.
(b) The Company shall give written notice to the selling
Stockholders (which notice shall be accompanied by an instruction to suspend the
use of the prospectus until the requisite changes have been made):
(i) of any request by the Commission for amendments
or supplements to the registration statement or the prospectus included
therein or for additional information;
(ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the registration statement or the
initiation of any proceedings for that purpose;
(iii) of the receipt by the Company or its legal
counsel of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose; and
(iv) of the happening of any event that requires the
Company to make changes in the registration statement or the prospectus
in order that the registration statement or the prospectus do not
contain an untrue statement of a material fact nor omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the prospectus, in light of the
circumstances under which they were made) not misleading, which written
notice need not provide any detail as to the nature of such event.
7
(c) Upon the occurrence of any event contemplated by clauses
(i) through (iv) above during the period for which the Company is required to
maintain an effective registration statement, the Company shall as promptly as
practicable prepare and file a post-effective amendment to the registration
statement or an amendment or supplement to the related prospectus and any other
required document so that, as thereafter delivered to the selling Stockholders
or purchasers of Shares, the prospectus will not contain an untrue statement of
a material fact or omit to state any material fact required to be stated herein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, provided in the case of clause (iv) the
Company's obligation pursuant to this Section 2.4(c) may be suspended for a
period of up to 30 days in the aggregate for any registration if the Board has
determined in good faith and using reasonable judgment that disclosure of
information sufficient to ensure that the registration statement and related
prospectus contain no such misstatement or omission would be significantly and
materially disadvantageous to the Company's financial condition, business or
prospects. If the Company notifies the selling Stockholders in accordance with
paragraphs (i) through (iv) above to suspend the use of the prospectus until the
requisite changes to the prospectus have been made and such suspension is
consistent with this paragraph, then the selling Stockholders shall suspend use
of such prospectus. The number of days during which use of the prospectus is
suspended shall be added to the end of the period referred to in Section 2.4(a)
during which registration shall remain effective.
2.5. Postponement of Registration.
----------------------------
Notwithstanding anything herein to the contrary, the Company
shall be entitled to postpone for a reasonable period of time up to 60 days the
filing of any registration statement otherwise required to be prepared and filed
by it pursuant to Section 2.1 hereof, if the Board determines, in its reasonable
judgment and in good faith, that such registration and offering would materially
interfere with any material financing, acquisition, corporate reorganization or
other material transaction involving the Company, and the Company gives the
selling Stockholders written notice including an explanation of such
determination. If the Company shall so postpone the filing of a registration
statement, the selling Stockholders shall have the right to withdraw the
Registration Demand by giving written notice to the Company within 30 days after
receipt of the notice of postponement (and, in the event of such withdrawal,
such Registration Demand shall not be counted for purposes of the Demand
Registration right to which the Stockholders are entitled pursuant to Section
2.1 hereof). The exercise by the Company of its rights under this Section 2.5
shall not affect the timeliness of a Registration Demand made prior to such
exercise that is not so withdrawn.
8
2.6. Indemnification.
---------------
(a) In the event of the registration or qualification of any
Shares of the Stockholders under the Securities Act or any other applicable
securities laws pursuant to the provisions of this Article 2, the Company agrees
to indemnify and hold harmless each Stockholder thereby offering such Shares for
sale (a "Seller"), underwriter, broker or dealer, if any, of such Shares, and
each other person, if any, who controls any such Seller, underwriter, broker or
dealer within the meaning of the Securities Act or any other applicable
securities, from and against any and all losses, claims, damages or liabilities
(or actions in respect thereof), joint or several, to which such Seller,
underwriter, broker or dealer or controlling person may become subject under the
Securities Act or any other applicable securities laws or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any registration statement under which such
Shares were registered or qualified under the Securities Act or any other
applicable securities laws, any preliminary prospectus or final prospectus
relating to such Shares, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or any violation by the Company of any rule or regulation under
the Securities Act or any other applicable securities laws applicable to the
Company or relating to any action or inaction required by the Company in
connection with any such registration or qualification and will reimburse each
such Seller, underwriter, broker or dealer and each such controlling person for
any legal or other expenses reasonably incurred by such Seller, underwriter,
broker or dealer or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or omission made in such registration statement, such preliminary
prospectus, such final prospectus or such amendment or supplement thereto in
reliance upon and in conformity with written information furnished to the
Company by such Seller, underwriter, broker, dealer or controlling person
specifically and expressly for use in the preparation thereof.
(b) In the event of the registration or qualification of any
Shares of the Stockholders under the Securities Act or any other applicable
securities laws for sale pursuant to the provisions hereof, each selling
Stockholder, each underwriter, broker and dealer, if any, of such Shares, and
each other person, if any, who controls any such Stockholder, underwriter,
broker or dealer within the meaning of the Securities Act, agrees severally, and
not jointly, to indemnify and hold harmless the Company, each person who
controls the Company within the meaning of the Securities Act, and each officer
and director of the Company from and against any losses, claims, damages or
liabilities, joint or several, to
9
which the Company, such controlling person or any such officer or director may
become subject under the Securities Act or any other applicable securities laws
or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement of any
material fact contained in any registration statement under which such Shares
were registered or qualified under the Securities Act or any other applicable
securities laws, any preliminary prospectus or final prospectus relating to such
Shares, or any amendment or supplement thereto, or arise out of or are based
upon an untrue statement or the omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, which untrue statement or omission was made therein in reliance upon
and in conformity with written information furnished to the Company by such
selling Stockholder, underwriter, broker, dealer or controlling person
specifically for use in connection with the preparation thereof, and will
reimburse the Company, such controlling person and each such officer or director
of any legal or any other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that no selling Stockholder shall be liable under
this Section 2.6(b) for any amount in excess of the net proceeds to such
Stockholder of Shares sold by it.
(c) Promptly after receipt by a person entitled to
indemnification under this Section 2.6 (an "indemnified party") of notice of the
commencement of any action or claim relating to any registration statement filed
under Section 2.1 or 2.2 hereof or as to which indemnity may be sought
hereunder, such indemnified party will, if a claim for indemnification hereunder
in respect thereof is to be made against any other party hereto (an
"indemnifying party"), give written notice to such indemnifying party of the
commencement of such action or claim, but the omission to so notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than pursuant to the provisions of this Section
2.6 and shall also not relieve the indemnifying party of its obligations under
this Section 2.6 except to the extent that the indemnifying party is actually
prejudiced thereby. In case any such action is brought against an indemnified
party, and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled (at its own expense) to participate in and,
to the extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense, with counsel reasonably satisfactory
to such indemnified party, of such action and/or to settle such action and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof, other
than the reasonable cost of investigation; provided, however, that no
indemnifying party shall enter into any settlement agreement without the prior
written consent of the indemnified party unless such indemnified party is fully
released and discharged from any such liability. Notwithstanding the foregoing,
the indemnified party
10
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of such counsel shall have been authorized in writing
by the indemnifying party in connection with the defense of such suit, action,
claim or proceeding, (ii) the indemnifying party shall not have employed counsel
(reasonably satisfactory to the indemnified party) to take charge of the defense
of such action, suit, claim or proceeding, or (iii) such indemnified party shall
have reasonably concluded, based upon the advice of counsel, that there may be
defenses available to it which are different from or additional to those
available to the indemnifying party which, if the indemnifying party and the
indemnified party were to be represented by the same counsel, could result in a
conflict of interest for such counsel or materially prejudice the prosecution of
the defenses available to such indemnified party. If any of the events specified
in clauses (i), (ii) or (iii) of the preceding sentence shall have occurred or
shall otherwise be applicable, then the fees and expenses of one counsel or firm
of counsel selected by a majority in interest of the indemnified parties (and
reasonably acceptable to the indemnifying party) shall be borne by the
indemnifying party. If, in any such case, the indemnified party employs separate
counsel, the indemnifying party shall not have the right to direct the defense
of such action, suit, claim or proceeding on behalf of the indemnified party and
the indemnified party shall assume such defense and/or settle such action;
provided, however, that, an indemnifying party shall not be liable for the
settlement of any action, suit, claim or proceeding effected without its prior
written consent, which consent shall not be unreasonably withheld.
ARTICLE 3.
ADDITIONAL AGREEMENTS
3.1. Amendments to Certificate of Incorporation. Each
------------------------------------------
Stockholder agrees that such Stockholder shall vote all of such Stockholder's
Shares entitled to vote in favor of any one or more amendments to or
restatements of the Restated Certificate of Incorporation of the Company, as
amended, which are deemed desirable by the Board in connection with the
Offering, including, but not limited to,
(a) providing for the automatic conversion of all
outstanding shares of the Preferred Stock immediately prior to
the closing of the Offering, taking into account dividends
accrued on such shares of Preferred Stock until such date as
determined by the Board;
(b) eliminating all previously issued series of
Preferred Stock from the Company's authorized capital stock;
and
11
(c) authorizing such number of shares of undesignated
preferred stock as shall be determined by the Board and
empowering the Board to issue such preferred stock from time
to time in one or more classes or series and to fix the
rights, priorities, privileges, qualifications, limitations
and restrictions of such preferred stock.
ARTICLE 4.
MISCELLANEOUS
4.1. Certificate Legend. Upon execution of this Agreement, the
------------------
certificates representing Shares and Convertible Securities held by the
Stockholders shall contain substantially the following legend, in addition to
any other legends deemed appropriate or necessary by the Company:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE
SECURITIES LAWS OF ANY STATE. SUCH SECURITIES MAY NOT BE SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT SUCH REGISTRATION, EXCEPT
UPON DELIVERY TO THE COMPANY OF SUCH EVIDENCE AS MAY BE SATISFACTORY TO
COUNSEL FOR THE COMPANY TO THE EFFECT THAT ANY SUCH TRANSFER SHALL NOT
BE IN VIOLATION OF THE SECURITIES ACT OF 1933, AS AMENDED, OR
APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION PROMULGATED
THEREUNDER."
4.2. Specific Performance. The parties hereto recognize that
--------------------
the parties hereto would be irreparably damaged if this Agreement is not
specifically enforced in the event of a breach hereof. If this Agreement is
breached, the parties hereto hereby agree that remedies at law might be
inadequate and that, therefore, this Agreement, shall be enforceable by specific
performance. The remedy of specific performance shall not be an exclusive
remedy, but shall be cumulative of all other rights and remedies of the parties
hereto at law, in equity or under this Agreement.
4.3. Transferees. Any Stockholder may cause any transferee of
-----------
any Shares or Convertible Securities that is not already a party to this
Agreement to execute a consent in form and substance reasonably acceptable to
the Company to be bound by the terms and conditions of the Agreement and upon
execution thereof, such transferee shall be entitled to the rights of an owner
of the Shares or Convertible Securities held by a Stockholder
12
hereunder, provided that the foregoing shall not apply to Shares or Convertible
Securities that have been sold pursuant to an effective registration statement
under the Securities Act or Rule 144 thereunder.
4.4. Notices. Any notices or other communications required or
-------
permitted hereunder shall be sufficiently given if in writing and delivered in
person, transmitted by telecopier or sent by registered or certified mail
(return receipt requested) or recognized overnight delivery service, postage
pre-paid, addressed as follows, or to such other address as any such party may
notify to the other parties in writing:
(a) if to the Company:
Jeepers! Inc.
00 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: President
Facsimile No.: (000) 000-0000
(b) if to a Stockholder, at the address set forth on the
stock transfer ledger of the Company.
A notice or communication will be effective (i) if delivered in person or by
overnight courier, on the business day it is delivered, (ii) if transmitted by
telecopier, on the business day of actual confirmed receipt by the addressee
thereof, and (iii) if sent by registered or certified mail, three business days
after dispatch.
4.5. Binding Effect; Assignment. This Agreement shall be
--------------------------
binding upon the parties hereto, together with their respective executors,
administrators, successors, personal representatives, heirs and assigns.
4.6. Governing Law. The Agreement shall be governed by, and
-------------
construed in accordance with, the laws of the State of Delaware.
4.7. Severability. If any provision of this Agreement is held
------------
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provisions shall be fully severable and this
Agreement shall be construed and enforced as if such illegal, invalid or
unenforceable provision never comprised a part hereof; and the remaining
provisions hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, in
13
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
4.8. Entire Agreement. This Agreement embodies the entire
----------------
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to the subject matter hereof. This Agreement constitutes an amendment
and restatement of, and supersedes and supplants, the Predecessor Agreement in
all respects.
4.9. Counterparts. This Agreement may be executed in
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one instrument.
4.10. Amendments. This Agreement may be amended, modified or
----------
supplemented only by a written instrument executed by (i) the Company and (ii)
the Stockholders holding not less than two-thirds of the Common Stock
Equivalents held by the Stockholders; provided, however, that no amendment,
modification or supplement shall be effected that shall adversely affect any
Stockholder without such Stockholder's written consent, unless such amendment,
modification or supplement shall affect all Stockholders equally.
4.11. Captions. The captions of this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect any of the
terms or provisions hereof.
4.12. Termination of Registration Rights; Waiver of
---------------------------------------------
Preemptive Rights.
-----------------
(a) The Company and each of the Stockholders hereby agree that
any right of any Stockholder to demand registration of its Shares pursuant to
federal or state securities laws or to require the inclusion of any of its
Shares in any such registration of securities for the account of the Company or
any other person, including pursuant to any agreement to which the Company and
any one or more Stockholders is a party (other than such rights granted pursuant
to this Agreement), in each case existing as of the date hereof, shall be
terminated and of no further force or effect.
(b) Each Stockholder hereby irrevocably waives any preemptive
rights or rights of first refusal that may now exist or that heretofore existed
with respect to the issuance by the Company of any and all shares its capital
stock.
14
4.13. Pronouns. Any masculine personal pronoun shall be
--------
considered to mean the corresponding feminine or neuter personal pronoun, and
vice versa, as the context requires.
4.14. Effectiveness. This Agreement shall be effective upon
-------------
(i) the execution thereof by the Company and by the Stockholders holding not
less than two-thirds of the Common Stock Equivalents held by the Stockholders
and (ii) the consummation of the Offering, provided that the Offering shall be
consummated on or prior to August 31, 1998; provided, however, that Article 3
hereof shall be effective upon the execution of this Agreement in accordance
with clause (i) above.
15
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SIGNATURE PAGE
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
THE COMPANY:
JEEPERS! INC.
By: /s/ Xxxxxxx X. Xxxxxxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxxxxxx,
Chief Financial Officer
CENTRE PARTIES:
CENTRE CAPITAL INVESTORS L.P.
By: Centre Partners L.P., as general partner
By: Park Road Corporation, its general partner
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title:
CENTRE CAPITAL INVESTORS II, L.P.
CENTRE CAPITAL OFFSHORE INVESTORS II, L.P.
CENTRE CAPITAL TAX-EXEMPT INVESTORS II, L.P.
By: Centre Partners II, L.P., as general
partner of such partnerships
By: Centre Partners Management LLC,
attorney-in-fact
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title:
16
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SIGNATURE PAGE
CENTRE PARTNERS COINVESTMENT, L.P. CENTRE
PARALLEL MANAGEMENT PARTNERS, L.P.
By: Centre Partners II, LLC, as general partner
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title:
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Centre Parallel Management Partners L.P.
By: Centre Partners Management LLC,
attorney-in-fact
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxx
Title:
GENERATION PARTIES:
GENERATION CAPITAL PARTNERS L.P.
By: Generation Partners L.P., as General
Partner
By: Generation Capital Company LLC, its general
partner
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
17
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SIGNATURE PAGE
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Generation Parallel Management Partners
L.P., as Manager
By: Generation Capital Company LLC, as General
Partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
GENERATION PARALLEL MANAGEMENT PARTNERS L.P.
By: Generation Capital Company LLC, as General
Partner
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title:
JPM PARTIES:
X.X. XXXXXX INVESTMENT CORPORATION
By: /s/ X.X. Xxxxxxxx
--------------------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
SIXTY WALL STREET SBIC FUND L.P.
BY: SIXTY WALL STREET SBIC CORPORATION, ITS
GENERAL PARTNER
By: /s/ X.X. Xxxxxxxx
--------------------------------------
Name: X.X. Xxxxxxxx
Title: Vice President
18
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SIGNATURE PAGE
XXXXXXXXX PARTIES:
XXXXXXXXX & CO., L.P.
By: Xxxxxxxxx Partners, L.P.
By: Dicksteun Partners Inc.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX INTERNATIONAL LIMITED
By: Xxxxxxxxx Partners, L.P.
By: Dicksteun Partners Inc.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX FOCUS FUND L.P.
By: Xxxxxxxxx Partners, L.P.
By: Dicksteun Partners Inc.
By: /s/ Xxxx Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXXXX PARTNERS, L.P. SAVING PLAN
/s/ Xxxx Xxxxxxxxx
-----------------------------------------------
Xxxx Xxxxxxxxx, Trustee
19
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SIGNATURE PAGE
XXXXXXX CAPITAL MANAGEMENT L.P.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Partner
XXXXXX XXXXXXXXX & XXXXXXX XXXXXXX,
AND XXXX XXXXXX TTEES u/t/d 12/27/88
By: /s/ Xxxx X Xxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Trustee
/s/ XXXX XXXXXXXXX
-----------------------------------------------
XXXX XXXXXXXXX
/s/ XXXX XXXXXX
-----------------------------------------------
XXXX XXXXXX
/s/ XXXX XXXXXXX
-----------------------------------------------
XXXX XXXXXXX
20
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
SIGNATURE PAGE
BRAEMAR PARTIES:
BRAEMAR CAPITAL PARTNERS I, LP
By: Braemar Management I LLC, as general
partner
By: /s/ Xxxx X. Susuak
-------------------------------------------
Name: Xxxx X. Susuak
Title: Managing Director
HPB ASSOCIATES, L.P.
By: HPB Group, LLC, as general partner
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: General Partner
OTHER PARTIES:
SHAD RUN -- JJ NOMINEE CORPORATION
By: /s/ Xxxx X. Xxxxxxxxxxx
-------------------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: President
/s/ XXXXX X. EL-XXXX
-----------------------------------------------
XXXXX X. EL-XXXX
/s/ XXXX XXXXX
-----------------------------------------------
XXXX XXXXX
21
