Exhibit 10.7
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
OF RENT-A-CENTER, INC.
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the "AGREEMENT"),
is effective as of the 8th day of October 2001, and is entered into by and
among (i) each of Apollo Investment Fund IV, L.P., a Delaware limited
partnership, and Apollo Overseas Partners IV, L.P., an exempted limited
partnership registered in the Cayman Islands acting through its general partner
(individually and collectively with their Permitted Transferees (defined below),
"APOLLO"), (ii) J. Xxxxxx Xxxxxx, an individual ("XXXXXX"), (iii) Xxxx X.
Xxxxxx, an individual ("XXXXXX"), (iv) Rent-A-Center, Inc., a Delaware
corporation (the "COMPANY"), (v) each Person (defined below) named in Exhibit A
attached hereto (the "XXXXXX OTHER PARTIES" and together with Xxxxxx, the
"XXXXXX GROUP"), (vi) each Person named in Exhibit B attached hereto (the
"XXXXXX OTHER PARTIES" and together with Xxxxxx, the "XXXXXX GROUP"), and (vii)
each other Person who becomes a party to the Agreement in accordance with the
terms hereof (all of the foregoing, collectively, the "PARTIES"). Terms with
initial capital letters used but not otherwise defined herein shall have the
meanings given in Section 1.1.
W I T N E S S E T H
WHEREAS, the Parties are also parties to that certain Stockholders
Agreement, dated as of August 5, 1998 (the "ORIGINAL AGREEMENT"), entered into
in connection with the closing of the transactions contemplated by the Stock
Purchase Agreement (defined below);
WHEREAS, the Parties desire to amend and restate the Original
Agreement, to reflect the agreement of the Parties to, among other things: (a)
provide for the repurchase of Common Stock (as defined below) from the Xxxxxx
Group pursuant to the Stock Repurchase Agreement (as defined below), (b) set
forth certain agreements with respect to the Transfer and voting of the Shares
following the Effective Date, and (c) reflect the current capital structure of
the Company and beneficial ownership of the Company's capital stock by the
Parties;
WHEREAS, the authorized capital stock of the Company consists of
125,000,000 shares of common stock, $.01 par value (the "COMMON STOCK"), and
5,000,000 shares of preferred stock, $.01 par value (the "PREFERRED STOCK") of
which 400,000 shares are designated Series A Preferred Stock, $.01 par value
(the "SERIES A PREFERRED STOCK"), and 400,000 shares are designated Series B
Preferred Stock, $.01 par value, and (ii) as of September 30, 2001, the issued
and outstanding capital stock of the Company consists of 26,682,119 shares of
Common Stock, 289,725 shares of Series A Preferred Stock and no shares of Series
B Preferred Stock, with approximately 21,402,375 shares of Common Stock reserved
for issuance upon the exercise of certain stock options and upon conversion of
the Series A Preferred Stock;
WHEREAS, as of October 8, 2001 (i) Apollo beneficially owns 278,596
shares of Series A Preferred Stock, (ii) the Xxxxxx Group owns 2,948,166 shares
of Common Stock, and (iii) the Xxxxxx Group collectively owns 1,176,832 shares
of Common Stock;
WHEREAS, the Parties desire to restrict the Transfer of the Shares,
including both issued and outstanding Shares as well as Shares that may be
issued or otherwise acquired
hereafter, to provide for certain rights and obligations in respect to the
Shares and the Company as hereinafter provided;
WHEREAS, the Company and Xxxxxx and certain members of the Xxxxxx
Group have entered into that Common Stock Purchase Agreement, as of even date
herewith (as amended from time to time the "STOCK REPURCHASE AGREEMENT") whereby
the Company has agreed to repurchase and Xxxxxx and such members have agreed to
sell $25 million worth of Common Stock and have granted the Company the right
from time to time to acquire any or all of the remaining Xxxxxx Included Shares,
in each case under the terms and conditions specified therein;
WHEREAS, under the Original Agreement, the consummation of the
transactions contemplated by the Stock Repurchase Agreement requires the consent
of all the Parties to it and delivery of this Agreement is a condition to
closing the transactions contemplated by the Stock Repurchase Agreement; and
WHEREAS, the Parties desire that this Agreement become effective
immediately;.
NOW THEREFORE, the Parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms have the following meanings:
"AFFILIATE" as applied to any specified Person, shall mean any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person and, in the case of a Person
who is an individual, shall include (i) members of such specified Person's
immediate family (as defined in Instruction 2 of Item 404(a) of Regulation S-K
under the Securities Act) and (ii) trusts, the trustee and all beneficiaries of
which are such specified Person or members of such Person's immediate family as
determined in accordance with the foregoing clause (i). For the purposes of this
definition, control when used with respect to any Person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "AFFILIATED," "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing. Notwithstanding the foregoing, Apollo and its
Affiliates shall not be deemed Affiliates of the Company for purposes of this
Agreement.
"APOLLO NOMINEES" shall have the meaning set forth in Section
4.1(a).
"BENEFICIAL OWNER" of a security shall mean any Person who, directly
or indirectly, through any contract, arrangement, understanding, relationship,
or otherwise has (i) the power to vote, or to direct the voting of, such
security or (ii) the power to dispose, or to direct the disposition of, such
security.
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"BOARD OF DIRECTORS" shall mean the Board of Directors of the
Company.
"BUSINESS DAY" shall mean each day other than Saturdays, Sundays and
days when commercial banks are authorized to be closed for business in New York,
New York.
"CERTIFICATE OF DESIGNATION" shall mean the Certificate of
Designation of the Series A Preferred Stock in the form attached as an exhibit
to the Stock Purchase Agreement.
"CHARTER DOCUMENTS" shall mean the Amended and Restated Certificate
of Incorporation and Amended and Restated By-Laws of the Company, each as
amended to date, as included as exhibits (or incorporated therein) to the
Company's periodic reports filed with the Commission under the Exchange Act.
"COMMISSION" shall mean the United States Securities and Exchange
Commission.
"COMMON STOCK" shall have the meaning set forth in the recitals.
"COMPANY" shall have the meaning set forth in the preamble.
"COMPANY NOMINEES" shall have the meaning set forth in Section
4.1(a).
"CREDIT AGREEMENT" shall mean that certain Amended and Restated
Credit Agreement, dated as of August 5, 1998 and amended and restated as of June
29, 2000, by and among the Company, Comerica Bank, Bank of America, N.A. and The
Chase Manhattan Bank, as amended from time to time.
"EFFECTIVE DATE" shall mean October 8, 2001.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"GROUP MEMBER" shall mean a member of the Xxxxxx Group or a member
of the Xxxxxx Group, as applicable.
"INDEBTEDNESS" shall mean with respect to any person, without
duplication, all liabilities of such person (a) for borrowed money (whether or
not the recourse of the lender is to the whole of the assets of such person or
only to a portion thereof), (b) evidenced by bonds, notes, debentures or similar
instruments or representing the balance deferred and unpaid of the purchase
price of any property (other than any such balance that represents an account
payable or any other monetary obligation to a trade creditor (whether or not an
Affiliate)), or (c) for the payment of money relating to a capitalized lease
obligation.
"IRR" shall have the meaning set forth in Section 4.2(b).
"MD&A" shall mean a management's discussion and analysis of the
Company's financial condition and results of operation comparable to the
discussion that is required to be included in periodic reports filed under the
Exchange Act.
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"NOTICES" shall have the meaning set forth in Section 6.5.
"PIK SHARES" means any Shares issued in lieu of cash dividends
pursuant to the Certificate of Designations.
"PECUNIARY INTEREST" in any security shall mean the opportunity,
directly or indirectly, to profit or share in any profit derived from a
transaction in such security, and shall include securities owned by an
individual's spouse or issue or any trust solely for the benefit of such
individual, spouse or issue.
"PERMITTED TRANSFEREE" shall mean:
(a) in the case of Apollo (i) any officer, director or partner
of, or Person controlling, Apollo, (ii) any other Person that is (x) an
Affiliate of the general partners, investment managers or investment advisors of
Apollo, (y) an Affiliate of Apollo or a Permitted Transferee of an Affiliate or
(z) an investment fund, investment account or investment entity whose investment
manager, investment advisor or general partner thereof is Apollo or a Permitted
Transferee of Apollo or (iii) if a Permitted Transferee of a Person set forth in
the foregoing clauses (i) and (ii) is an individual, (x) any spouse or issue of
such individual, or any trust solely for the benefit of such individual, spouse
or issue, and (y) upon such individual's death, any Person to whom Shares are
transferred in accordance with the laws of descent and/or testamentary
distribution, in each case in a bona fide distribution or other transaction not
intended to avoid the provisions of this Agreement;
(b) in the case of a Group Member, (i) any Person that is
solely controlled by such Group Member, (ii) upon a bona fide liquidation of, or
a bona fide withdrawal from, such Group Member, in each case, not intended to
avoid the provisions of this Agreement, the shareholders, partners or
principals, as the case may be, of such Group Member, or (iii) if such Group
Member is an individual, (x) any spouse or issue of such individual, or any
trust or limited partnership solely for the benefit of such individual, spouse
or issue, and (y) upon such individual's death, any Person to whom Shares are
transferred in accordance with the laws of descent and/or testamentary
distribution; and
(c) any Person who is a party to this Agreement.
"PERSON" shall mean an individual or a corporation, limited
liability company, partnership, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PREFERRED STOCK" shall have the meaning set forth in the recitals.
"REGISTRATION RIGHTS AGREEMENT" shall mean the Series A Registration
Rights Agreement, dated as of August 5, 1998, by and between the Company and
Apollo.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"SERIES A PREFERRED STOCK" shall have the meaning set forth in the
recitals.
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"SHARES" shall mean, collectively, the Common Stock and the
Preferred Stock, whether now owned or acquired after the date hereof. Whenever
this Agreement refers to a number or percentage of Shares, such number or
percentage shall be calculated as if each of the Shares (including, in the case
of Apollo, any PIK Shares) had been exchanged or converted into shares of Common
Stock immediately prior to such calculation regardless of the existence of any
restrictions on such exchange or conversion.
"XXXXXX GROUP" shall have the meaning set forth in the preamble.
"XXXXXX INCLUDED SHARES" shall mean those 1,176,832 shares of Common
Stock owned by the Xxxxxx Group as of the Effective Date.
"XXXXXX OTHER PARTIES" shall have the meaning set forth in the
preamble.
"STOCK PURCHASE AGREEMENT" shall mean the Stock Purchase Agreement,
dated as of August 5, 1998, between the Company and Apollo.
"STOCK REPURCHASE AGREEMENT" shall have the meaning set forth in the
recitals.
"SUBSIDIARY" shall mean, with respect to any Person, (a) a
corporation a majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by a Subsidiary of such Person, or by such Person and one or
more Subsidiaries of such Person, (b) a partnership in which such Person or a
Subsidiary of such Person is, at the date of determination, a general partner of
such partnership, or (c) any other Person (other than a corporation) in which
such Person, a Subsidiary of such Person or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof, has (i) at least a majority ownership interest or (ii)
the power to elect or direct the election of the directors or other governing
body of such Person.
"XXXXXX GROUP" shall have the meaning set forth in the preamble.
"XXXXXX INCLUDED SHARES" shall mean those 2,948,166 shares of Common
Stock owned by the Xxxxxx Group as of the Effective Date.
"XXXXXX OTHER PARTIES" shall have the meaning set forth in the
preamble.
"TRANSFER" shall mean (i) when used as a noun: any direct or
indirect transfer, sale, assignment, pledge, hypothecation, encumbrance or other
disposition and (ii) when used as a verb: to directly or indirectly transfer,
sell, assign, pledge, hypothecate, encumber, or otherwise dispose of; provided,
however, Transfer shall not include a pledge in connection with a recourse, bona
fide loan transaction that is not intended to avoid the provisions of this
Agreement.
"TRANSFEREE" shall mean any Person to whom Shares have been
Transferred in compliance with the terms of this Agreement.
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ARTICLE II
RESTRICTIONS ON TRANSFERS
Section 2.1 Transfers in Accordance with this Agreement. Any attempt
to Transfer, or purported Transfer of, any of the Xxxxxx Included Shares or the
Xxxxxx Included Shares in violation of the terms of this Agreement shall be null
and void and the Company shall not register upon its books, and shall direct its
transfer agent not to register on its books any such Transfer. A copy of this
Agreement shall be filed with the Secretary of the Company and the Company's
transfer agent and kept with the records of the Company.
Section 2.2 Agreement to be Bound.
(a) No party hereto (other than the Company, Apollo and their
Permitted Transferees) shall Transfer any Shares except (i) to a Permitted
Transferee or (ii) as specifically provided herein.
(b) No member of the Xxxxxx Group or its Permitted Transferees
shall Transfer its respective pecuniary interests in any of the Xxxxxx Included
Shares to any party other than a Permitted Transferee of the Xxxxxx Group,
except that Xxxxxx, the other members of the Xxxxxx Group and their Permitted
Transferees may sell shares of Common Stock under and pursuant to the terms of
the Stock Repurchase Agreement. Notwithstanding the foregoing, after February 5,
2002, the Xxxxxx Group and its Permitted Transferees shall be permitted to
Transfer their respective pecuniary interests in the Xxxxxx Included Shares
without restrictions imposed by this Agreement, other than those Xxxxxx Included
Shares that members of the Xxxxxx Group or its Permitted Transferees have an
obligation to sell to the Company as a result of the Company properly and timely
delivering an Exercise Notice (as defined in the Stock Repurchase Agreement).
(c) No member of the Xxxxxx Group or its Permitted Transferees
shall Transfer its respective pecuniary interests in any of the Xxxxxx Included
Shares to any party other than a Permitted Transferee of the Xxxxxx Group,
except that during any twelve-month period the Xxxxxx Group and its Permitted
Transferees shall be entitled to Transfer up to 300,000 Shares in aggregate
through sales pursuant to Rule 144 under the Securities Act, or otherwise.
Notwithstanding the foregoing, in no case shall the Xxxxxx Group or its
Permitted Transferees (i) Transfer any Xxxxxx Included Shares prior to or on
August 5, 2002, (ii) Transfer more than 50% of the Xxxxxx Included Shares during
the one year period commencing on August 6, 2002 or (iii) Transfer any Shares if
such Transfer would trigger default or change-in-control provisions under the
Certificate of Designation or any material debt instrument of the Company.
(d) No Transfer to a Permitted Transferee of Apollo or of any
party as provided in the foregoing clauses (a), (b) and (c) of this Section 2.2
shall be permitted unless (i) the certificates representing such Shares issued
to the Transferee bear the legend provided in Section 2.3 and (ii) the
Transferee (if not already a party hereto) has executed and delivered to each
other party hereto, as a condition precedent to such Transfer, an instrument or
instruments, reasonably satisfactory to the Company, confirming that the
Transferee agrees to be bound by
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the terms of this Agreement in the same manner as such Transferee's transferor,
except as otherwise specifically provided in this Agreement.
Section 2.3 Legend. Apollo and each Group Member hereby agree that
(i) each outstanding certificate representing Shares issued to any of them prior
to the Effective Date, shall bear a legend reading substantially as set forth in
Section 2.3 of the Original Agreement; and (ii) each outstanding certificate
representing Shares issued to any of them after the Effective Date, or any
certificate issued after the Effective Date in exchange for or upon conversion
of any similarly legended certificate, shall bear a legend reading substantially
as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR AN EXEMPTION FROM
REGISTRATION IS AVAILABLE. THE HOLDER OF THESE SHARES MAY BE REQUIRED TO DELIVER
TO THE COMPANY, IF THE COMPANY SO REQUESTS, AN OPINION OF COUNSEL (REASONABLY
SATISFACTORY IN FORM AND SUBSTANCE TO THE COMPANY) TO THE EFFECT THAT AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (OR FROM REGISTRATION OR
QUALIFICATION UNDER STATE SECURITIES LAWS) IS AVAILABLE WITH RESPECT TO ANY
TRANSFER OF THESE SHARES THAT HAS NOT BEEN SO REGISTERED (OR QUALIFIED).
THE SHARES REPRESENTED BY THIS CERTIFICATE ALSO ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AND OBLIGATIONS, TO WHICH ANY TRANSFEREE
AGREES BY HIS ACCEPTANCE HEREOF, AS SET FORTH IN THE AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, AS AMENDED FROM TIME TO TIME, A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY. NO TRANSFER OF SUCH SHARES WILL BE MADE ON THE BOOKS
OF THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF
SUCH AGREEMENT AND BY AN AGREEMENT OF THE TRANSFEREE TO BE BOUND BY THE
RESTRICTIONS SET FORTH IN THE AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, AS
AMENDED FROM TIME TO TIME.
ARTICLE III
ADDITIONAL RIGHTS AND OBLIGATIONS OF
APOLLO AND THE COMPANY
Section 3.1 Access to Information; Confidentiality. Upon the request
of Apollo, the Company shall afford Apollo and its accountants, counsel and
other representatives reasonable access to all of the properties, books,
contracts, commitments and records (including, but not limited to, tax returns)
of the Company and its Subsidiaries that are reasonably requested. Apollo will,
and will cause its agents to, conduct any such investigations on reasonable
advance notice, during normal business hours, with reasonable numbers of persons
and in such a manner as not to interfere unreasonably with the normal operations
of the Company and its Subsidiaries.
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Except as otherwise required by applicable law, neither the Company
nor any of its Subsidiaries shall be required to provide access to or to
disclose information where such access or disclosure would violate or prejudice
the rights of any customer or other Person, would jeopardize the attorney-client
privilege of the Person in possession or control of such information, or would
contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or
binding agreement entered into prior to the date hereof. The Parties will make
appropriate substitute disclosure arrangements under circumstances in which the
restrictions of the preceding sentence apply.
Apollo shall, and shall use its best efforts to cause their
representatives to, keep confidential all such information to the same extent
such information is treated as confidential by the Company, and shall not
directly or indirectly use such information for any competitive or other
commercial purpose. The obligation to keep such information confidential shall
not apply to (i) any information that (x) was already in Apollo's possession
prior to the disclosure thereof by the Company (other than through disclosure by
any other Person known by Apollo to be subject to a duty of confidentiality),
(y) was then generally known to the public, or (z) was disclosed to Apollo by a
third party not known by Apollo to be bound by an obligation of confidentiality
or (ii) disclosures made as required by law or legal process or to any person
exercising regulatory authority over such Apollo or its Affiliates. If in the
absence of a protective order or the receipt of a waiver hereunder, Apollo is
nonetheless, in the opinion of their counsel, compelled to disclose information
concerning the Company to any tribunal or governmental body or agency or else
stand liable for contempt or suffer other censure or penalty, Apollo may
disclose such information to such tribunal or governmental body or agency
without liability hereunder. In addition, in the event that any information
disclosed by the Company to Apollo is material nonpublic information, Apollo
agrees to comply with its obligations under the applicable Federal and state
securities laws with respect thereto, including but not limited to, the laws
pertaining to the possession, dissemination and utilization of such material
nonpublic information.
Section 3.2 Furnishing of Information. (a) The Company shall deliver
to Apollo, as long as Apollo shall own any Shares:
(i) As promptly as practical, but in no event later than 30
days after the end of each calendar month, a copy of the monthly financial
reporting package for such month customarily prepared for the Company's
Chief Executive Officer.
(ii) As promptly as practical, but in no event later than 60
days after the close of each of its first three quarterly accounting
periods during any fiscal year of the Company, the consolidated balance
sheet of the Company as at the end of such quarterly period, and the
related consolidated statements of operations, stockholders' equity and
cash flows for such quarterly period, and for the elapsed portion of the
fiscal year ended with the last day of such quarterly period, and in each
case setting forth comparative figures for the related periods in the
prior fiscal year (if such comparative figures are available without
unreasonable expense), all of which shall be certified by the chief
financial officer of the Company, to have been prepared in accordance with
generally accepted accounting principles, subject to year-end audit
adjustments, together with an MD&A;
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(iii) As promptly as practical, but in no event later than 105
days after the close of each fiscal year of the Company, the consolidated
balance sheet of the Company as of the end of such fiscal year and the
related consolidated statements of operations, stockholders' equity and
cash flows for such fiscal year, in each case setting forth comparative
figures for the preceding fiscal year, and certified by independent
certified public accountants of recognized national standing, together
with an MD&A; and
(iv) All reports, if any, filed by the Company or any
Subsidiary of the Company with the Commission under the Exchange Act, as
promptly as practical, but in no event later than 15 days after filing any
such reports with the Commission.
(b) The provisions of Sections 3.2(a)(ii) and (iii) above
shall be deemed to have been satisfied if the Company delivers the reports
timely filed by the Company with the Commission on Form l 0-Q or 10-K, as
applicable, for such periods promptly, but in no event later than 15 days after
filing any such Form with the Commission.
ARTICLE IV
CORPORATE GOVERNANCE AND VOTING
Section 4.1 Board of Directors of the Company.
(a) As of the Effective Date, the number of directors
constituting the entire Board of Directors of the Company shall be eight (8).
Thereupon the Company shall be entitled, but not required, to nominate up to
five (5) members to the Board of Directors and Apollo (or any representative
thereof designated by Apollo) shall be entitled, but not required, to nominate
up to three (3) members to the Board of Directors (collectively, the "APOLLO
NOMINEES"), two of whom shall be the directors elected by the holders of the
Series A Preferred Stock so long as the holders of the Series A Preferred Stock
have the right to elect two (2) directors. One Apollo Nominee shall be
classified as a Class I Director of the Company, who will be one of the
directors elected by the holders of the Series A Preferred Stock, one Apollo
Nominee shall be classified as a Class II Director of the Company, who will be
one of the directors elected by the holders of the Series A Preferred Stock, and
one Apollo Nominee shall be classified as a Class III Director of the Company,
who will not be one of the directors elected by the holders of the Series A
Preferred Stock.
(b) The Xxxxxx Group and the Xxxxxx Group shall vote all of
the Shares owned or held of record by them at all regular and special meetings
of the stockholders of the Company called or held for the purpose of filling
positions on the Board of Directors, and in each written consent executed in
lieu of such a meeting of stockholders, and, to the extent entitled to vote
thereon, each party hereto shall take all actions otherwise necessary to ensure
(to the extent within the Parties' collective control) that the Apollo Nominees
are elected to the Board of Directors.
(c) The Company, the Xxxxxx Group and the Xxxxxx Group shall
use their respective best efforts to call, or cause the appropriate officers and
directors of the
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Company to call, a special meeting of stockholders of the Company, as
applicable, and to vote all of the Shares owned or held of record by them for,
or to take all actions by written consent in lieu of any such meeting necessary
to cause, the removal (with or without cause) of any Apollo Nominee if Apollo
requests such director's removal in writing for any reason. Apollo shall have
the right to designate a new nominee in the event any Apollo Nominee shall be so
removed under this Section 4.1(c) or shall vacate his directorship for any
reason.
Except as provided in this Section 4.1(c), each Group Member hereto
agrees that, at any time that it is then entitled to vote for the election or
removal of directors, it will not vote in favor of the removal of Apollo Nominee
unless (i) such removal shall be at the request of Apollo or (ii) the right of
Apollo to designate such director has terminated in accordance with clause (e)
below.
(d) The Company shall not, and shall not permit any of its
Subsidiaries to, without the consent of holders of a majority of the Shares held
by Apollo, take any action under Section 4.2(b) of this Agreement that requires
the approval of the Apollo Nominees, if any of the Apollo Nominees are Persons
whose removal from the Board of Directors has been requested at or prior to the
time of such action by Apollo. Each party hereto shall use reasonable efforts to
prevent any action from being taken by the Board of Directors, during the
pendency of any vacancy due to death, resignation or removal of a director,
unless the Person entitled to have a person nominated by it elected to fill such
vacancy shall have failed, for a period of ten (10) days after notice of such
vacancy, to nominate a replacement.
(e) At such time as Apollo, together with any and all of its
Permitted Transferees, cease to hold in aggregate 50% or more of the Shares
issued to Apollo on August 5, 1998, Apollo shall be entitled, but not required,
to nominate only two Apollo Nominees in accordance with this Section 4, one of
whom shall be one of the directors elected by the holders of the Series A
Preferred Stock if any shares of the Series A Preferred Stock are outstanding.
At such time as Apollo, together with any and all of its Permitted Transferees,
cease to hold in aggregate 33.33% or more of the Shares owned by Apollo on
August 5, 1998, Apollo shall be entitled, but not required, to nominate only one
Apollo Nominees in accordance with this Section 4, who shall be the one director
elected by the holders of the Series A Preferred Stock if any shares of the
Series A Preferred Stock are outstanding. At such time as Apollo, together with
any and all of its Permitted Transferees, cease to hold in aggregate 10% or more
of the Shares owned by the Apollo on August 5, 1998, the Apollo shall no longer
be entitled to nominate any Apollo Nominees in accordance with this Section 4.
(f) In the event the Company establishes an Executive
Committee of the Board of Directors, it shall be comprised of such persons as a
majority of the Board of Directors shall approve, provided, however, such
committee shall also include at least one Apollo Nominee, who shall be one of
the directors elected by the holders of the Series A Preferred Stock so long as
any shares of the Series A Preferred Stock are outstanding. The Executive
Committee shall have authority, subject to applicable law, to take all actions
that (A) are ancillary to or arise in the normal course of the businesses of the
Company, or (B) implement and are consistent with resolutions of the Board of
Directors provided, however, that such Executive Committee shall not be
authorized to take any action which, if proposed to
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be taken by the full Board of Directors would require the affirmative vote of
the Apollo Nominees in accordance with Section 4.2.
(g) Unless otherwise approved in advance in writing by all the
Apollo Nominees, each and every committee of the Board of Directors shall be
comprised of three directors, one of whom shall be an Apollo Nominee and at
least one of whom is selected by the Board of Directors but who is not also a
member of management of the Company. The Apollo Nominee on the Finance
Committee, the Audit Committee and Compensation Committee, shall be one of the
directors elected by the holders of the Series A Preferred Stock so long as any
shares of the Series A Preferred Stock are outstanding.
(h) Each committee of the Board of Directors, to which
authority has been delegated, shall keep complete and accurate minutes and
records of all actions taken by such committee, prepare such minutes and records
in a timely fashion and promptly distribute such minutes and records to each
member of the Board of Directors.
(i) The Parties agree that upon the request of Apollo, the
Company shall cause the Board of Directors of any wholly-owned subsidiary of the
Company to include such number of individuals designated by Apollo (or any
representative thereof designated by Apollo) in the same proportion of the total
number of members of the Board of Directors of such subsidiary as the proportion
of the Company's Board of Directors to which Apollo is entitled pursuant to
Section 4.1(a).
Section 4.2 Action by the Board of Directors.
(a) Except as provided below, all decisions of the Board of
Directors shall require the affirmative vote of a majority of the directors of
the Company then in office, or a majority of the members of an Executive
Committee of the Board of Directors, to the extent such decisions may be
lawfully delegated to an Executive Committee pursuant to Section 4.1(f).
(b) The Company shall not, and it shall cause each of its
Subsidiaries not to, take (or agree to take) any action regarding the following
matters, directly or indirectly, including through a merger or consolidation
with any other corporation or otherwise, without the affirmative vote of the
Apollo Nominees: (i) increase the number of authorized shares of Preferred Stock
or authorize the issuance or issue of any shares of Preferred Stock other than
to existing holders of Preferred Stock, (ii) issue any new class or series of
equity security, (iii) amend, alter or repeal, in any manner whatsoever, the
designations, preferences and relative rights and limitations and restrictions
of the Series A Preferred Stock; (iv) amend, alter or repeal any of the
provisions of the Charter Documents or the Certificate of Designation in a
manner that would negatively impact the holders of the Series A Preferred Stock,
including (but not limited to) any amendment that is in conflict with the
approval rights set forth in this Section 4.2; (v) directly or indirectly,
redeem, purchase or otherwise acquire for value (including through an exchange),
or set apart money or other property for any mandatory purchase or other
analogous fund for the redemption, purchase or acquisition of any shares of
Common Stock or Junior Stock (as defined in the Certificate of Designation), or
declare or pay any dividend or make any distribution (whether in cash, shares of
capital stock of the Company, or other property) on shares of Common Stock or
Junior Stock; (vi) cause the number of directors of the Company to
11
be greater than eight (8); (vii) enter into any agreement or arrangement with or
for the benefit of any Person who is an Affiliate of the Company with a value in
excess of $5 million in a single transaction or series of related transactions;
(viii) effect a voluntary liquidation, dissolution or winding up of the Company;
(ix) sell or agree to sell all or substantially all of the assets of the
Company, unless such transaction (1) occurs after August 5, 2002, (2) is a sale
for cash and (3) results in an internal rate of return ("IRR") to Apollo of 30%
compounded quarterly or greater with respect to each Share issued to Apollo on
August 5, 1998; or (x) enter into any merger or consolidation or other business
combination involving the Company (except a merger of a wholly-owned subsidiary
of the Company into the Company in which the Company's capitalization is
unchanged as a result of such merger) unless such transaction (1) occurs after
August 5, 2002, (2) is for cash and (3) results in an IRR to Apollo of 30%
compounded quarterly or greater with respect to each Share issued to Apollo on
August 5, 1998.
(c) Notwithstanding the foregoing Section 4(b), if Apollo owns
less than 33 1/3% of the Shares owned by them on August 5, 1998, the provisions
of Section 4(b) shall cease to exist and shall be of no further force or effect.
(d) While any shares of Series A Preferred Stock are
outstanding, the Company shall not and it shall cause each of its Subsidiaries
not to, issue any debt securities of the Company with a value in excess of $10
million (including any refinancing of existing indebtedness) without the
majority affirmative vote of the Finance Committee.
(e) While any shares of Series A Preferred Stock are
outstanding, the Company shall not, and it shall cause each of its Subsidiaries
not to, issue any equity securities of the Company with a value in excess of $10
million (including any refinancing of existing indebtedness) without the
unanimous affirmative vote of the Finance Committee; provided, however, that the
following equity issuances shall require only a majority affirmative vote of the
Finance Committee: (A) an offering of Common Stock in which the selling price is
equal to or greater than the price that would imply a 25% or greater IRR
compounded quarterly on the Conversion Price (as defined below) and (B) an
issuance of equity in connection with an acquisition if the issuance is equal to
or less than 10% of the outstanding Common Stock (calculated post-issuance of
such shares of Common Stock).
Section 4.3 Charter Documents. (a) Except with respect to any
amendments to the Charter Documents properly adopted at the Board of Directors
meeting on October 8, 2001, the Charter Documents most recently included (or
incorporated therein) as exhibits to the Company's periodic reports filed with
the Commission are the Charter Documents as in effect on the Effective Date.
(b) The Company covenants that it will act, and each Group
Member and Apollo agrees to use its best efforts to cause the Company to act, in
accordance with its Charter Documents and Certificate of Designation in all
material respects and to cause compliance with all provisions contained herein.
Each Group Member and Apollo shall vote all the Shares owned or held of record
by it at any regular or special meeting of stockholders of the Company or in any
written consent executed in lieu of such a meeting of stockholders, and shall
take all action necessary, to ensure (to the extent within the Parties'
collective control) that (i) the Charter Documents and Certificate of
Designation of the Company do not, at any time, conflict
12
with the provisions of this Agreement, and (ii) unless an amendment is approved
by the Board of Directors in accordance with Section 4.2, the Charter Documents
of the Company continue to be in effect in the forms most recently included as
exhibits to the Company's periodic reports filed with the Commission and the
Certificate of Designation continues to be in effect in the form attached as
exhibits to the Stock Purchase Agreement.
ARTICLE V
TERMINATION
Section 5.1 Termination. Except as otherwise provided herein with
respect to certain specific provisions, this Agreement shall terminate upon the
earlier to occur of:
(i) the mutual agreement of the Parties,
(ii) with respect to any party hereto other than the Company,
such party ceasing to own, beneficially or otherwise, any Shares,
(iii) such time as less than 10% of the Shares continue to be
subject to the provisions of this Agreement, or
(iv) with respect to any party hereto other than the Xxxxxx
Group or its Permitted Transferees, on August 5, 2009.
ARTICLE VI
MISCELLANEOUS
Section 6.1 No Inconsistent Agreements. Each party hereto hereby
consents to the termination of any prior written or oral agreement or
understanding, including without limitation the Original Agreement, restricting,
conditioning or limiting the ability of any party to transfer or vote Shares.
Each of the Company and the Group Members represents and agrees
that, as of the Effective Date, there is no (and from and after the Effective
Date they will not, and will cause their respective Subsidiaries and Affiliates
not to, enter into any) agreement with respect to any securities of the Company
or any of its Subsidiaries (and from and after the Effective Date neither the
Company nor any Group Members shall take, or permit any of their Subsidiaries or
Affiliates to take, any action) that is inconsistent in any material respect
with the rights granted to Apollo in this Agreement.
Without limiting the foregoing and other than the Original
Agreement, the Company represents that there are no existing agreements relating
to the voting or registration of any equity securities of the Company or any of
its Subsidiaries, and there are no other existing agreements between the Company
and any other holder of Shares relating to the transfer of any equity securities
of the Company or any of its Subsidiaries.
13
Section 6.2 Recapitalization, Exchanges. etc. If any capital stock
or other securities are issued in respect of, in exchange for, or in
substitution of, any Shares by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the Shares or any other change in capital
structure of the Company, appropriate adjustments shall be made with respect to
the relevant provisions of this Agreement so as to fairly and equitably
preserve, as far as practicable, the original rights and obligations of the
Parties under this Agreement and the terms "COMMON STOCK," "PREFERRED STOCK" and
"SHARES," each as used herein, shall be deemed to include shares of such capital
stock or other securities, as appropriate. Without limiting the foregoing,
whenever a particular number of Shares is specified herein, such number shall be
adjusted to reflect stock dividends, stock-splits, combinations or other
reclassifications of stock or any similar transactions.
Section 6.3 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Parties, and their respective
successors and permitted assigns; provided that (i) neither this Agreement nor
any rights or obligations hereunder may be transferred or assigned by the
Company (except by operation of law in any permitted merger); (ii) neither this
Agreement nor any rights or obligations hereunder may be transferred or assigned
by the Group Members or Apollo except to any Person to whom it has Transferred
Shares in compliance with this Agreement and who has become bound by this
Agreement pursuant to Section 2.2 hereof; and (iii) the rights of the Parties
under Article IV hereof may not be assigned to any Person except as explicitly
provided therein.
Section 6.4 No Waivers: Amendments. (a) No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
(b) This Agreement may not be amended or modified, nor may any
provision hereof be waived, other than by a written instrument signed by the
Parties.
Section 6.5 Notices. All notices, demands, requests, consents or
approvals (collectively, "NOTICES") required or permitted to be given hereunder
or which are given with respect to this Agreement shall be in writing and shall
be personally delivered or mailed, registered or certified, return receipt
requested, postage prepaid (or by a substantially similar method), or delivered
by a reputable overnight courier service with charges prepaid, or transmitted by
hand delivery or facsimile, addressed as set forth below, or such other address
(and with such other copy) as such party shall have specified most recently by
written notice. Notice shall be deemed given or delivered on the date of service
or transmission if personally served or transmitted by facsimile. Notice
otherwise sent as provided herein shall be deemed given or delivered on the
third business day following the date mailed or on the next business day
following delivery of such notice to a reputable overnight courier service.
14
To the Company or the Xxxxxx Group:
Rent-A-Center, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxx Xxxxx
Xxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxxxx & Xxxxxx P.C.
5400 Renaissance Tower
0000 Xxx Xxxxxx
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: (000)000-0000
To the Xxxxxx Group:
J. Xxxxxx Xxxxxx
0000 Xxxxx Xxxx
Xxxxx Xxxxx, Xxxxx 00000
To Apollo:
Apollo Investment Fund IV, L.P. and/or
Apollo Overseas Partners IV, L.P.
c/o Apollo Management IV, L.P.
1999 Avenue of the Stars, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Facsimile: (000)000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx X. Xxxxxxxx, Esq.
Fax: (000)000-0000
Section 6.6 Inspection. So long as this Agreement shall be in
effect, this Agreement and any amendments hereto and waivers hereof shall be
distributed to all Parties after becoming effective and shall be made available
for inspection at the principal office of the Company by Apollo.
Section 6.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS
15
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS, EXCEPT AS TO MATTERS OF CORPORATE GOVERNANCE,
WHICH SHALL BE INTERPRETED IN ACCORDANCE WITH THE GENERAL CORPORATION LAW OF THE
STATE OF DELAWARE. EACH PARTY HERETO CONSENTS TO THE NON-EXCLUSIVE JURISDICTION
OF THE FEDERAL AND STATE COURTS WITHIN THE STATE OF NEW YORK.
Section 6.8 Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
Section 6.9 Entire Agreement. This Agreement, together with the
Stock Purchase Agreement, the Certificate of Designation and the Registration
Rights Agreement, constitutes the entire agreement and understanding among the
Parties with respect to the subject matter hereof and thereof and supersedes the
Original Agreement and any and all prior agreements and understandings, written
or oral, relating to the subject matter hereof.
Section 6.10 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdictions, it
being intended that all rights and obligations of the Parties hereunder shall be
enforceable to the fullest extent permitted by law.
Section 6.11 Counterparts. This Agreement may be signed in
counterparts, each of which shall constitute an original and which together
shall constitute one and the same agreement.
Section 6.12 Required Approvals. If approval of this Agreement or
any of the transactions contemplated hereby shall be required by any
governmental or supra-governmental agency or instrumentality or is considered to
be necessary or advisable to all the Parties, all Parties shall use their best
efforts to obtain such approval.
Section 6.13 Public Disclosure. The Company shall not, and shall not
permit any of its Subsidiaries to, make any public announcements or disclosures
relating or referring to Apollo, any of its affiliates, or any of their
respective directors, officers, partners, employees or agents (including,
without limitation, any Person designated as a director of the Company pursuant
to the terms hereof) unless Apollo has consented to the form and substance
thereof, which consent shall not be unreasonably withheld except to the extent
such disclosure is, in the opinion of counsel, required by law or by stock
exchange regulation, provided that (i) any such required disclosure shall only
be made, to the extent consistent with the law, after consultation with Apollo
and (ii) no such announcement or disclosure (except as required by law or by
stock exchange regulation) shall identify any such Person without Apollo's prior
consent.
Section 6.14 Payment of Costs and Expenses. The Company shall pay
Apollo's reasonable and documented costs and expenses (including attorneys'
fees) associated with
16
negotiation, documentation and completion of this Agreement, the Stock
Repurchase Agreement and the transactions contemplated herein and therein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
17
IN WITNESS WHEREOF, the Parties have executed this Amended and
Restated Stockholders Agreement as of the date first above written.
RENT-A-CENTER, INC.
a Delaware corporation
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxxx
-----------------------------------------
Title: President
----------------------------------------
APOLLO INVESTMENT FUND IV, L.P.
a Delaware limited partnership
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
APOLLO OVERSEAS PARTNERS IV, L.P.
an exempted limited partnership registered
in the Cayman Islands
By: Apollo Advisors IV, L.P.
its General Partner
By: Apollo Capital Management IV, Inc.
its Managing General Partner
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Vice President
-------------------------------
/s/ J. Xxxxxx Xxxxxx
----------------------------------------------
J. Xxxxxx Xxxxxx
/s/ Xxxx X. Xxxxxx
----------------------------------------------
Xxxx X. Xxxxxx
/s/ Xxxx Xxx Xxxxxx
----------------------------------------------
Xxxx Xxx Xxxxxx
18
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
XXXXXX 1999 TRUST
By:/s/ J. Xxxxxx Xxxxxx
--------------------------------
J. Xxxxxx Xxxxxx, as Trustee
XXXX XXXXXX 2000 GRANTOR RETAINED
ANNUITY TRUST
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx, as Trustee
XXXXXXX XXXXXX 2000 GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Xxxx X. Xxxxxx, as Trustee
XXXXXXX XXXXXXX XXXXXX 2000
REMAINDER TRUST
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx, as Trustee
XXXXXXX XXXXXXXXX XXXXXX 2000
REMAINDER TRUST
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx, as Trustee
XXXXXX XXXXXXX XXXXXX 2000
REMAINDER TRUST
By: /s/ Xxxxxxx Xxxxx
--------------------------------
Xxxxxxx Xxxxx, as Trustee
19
EXHIBIT A
XXXXXX OTHER PARTIES
Xxxx Xxx Xxxxxx
Xxxxxx 1999 Trust
EXHIBIT B
XXXXXX OTHER PARTIES
Xxxxxxx Xxxxxx
Xxxx Xxxxxx 2000 Grantor Retained Annuity Trust
Xxxxxxx Xxxxxx 2000 Grantor Retained Annuity Trust
Xxxxxxx Xxxxxxx Xxxxxx 2000 Remainder Trust
Xxxxxxx Xxxxxxxxx Xxxxxx 2000 Remainder Trust
Xxxxxx Xxxxxxx Xxxxxx 2000 Remainder Trust
21
