EXHIBIT 10.8
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this "Agreement") is made as of April
29, 2005 by and among (i) Triad Holdings Inc., a Delaware corporation (the
"Company"), (ii) Triad Holdings, LLC, a Delaware limited liability company (the
"LLC"), (iii) Xxxxx X. Xxxxx ("Xxxxx") and any other executive employee of the
Company or its Subsidiaries who, at any time, acquires securities of the Company
in accordance with Section 10 hereof and executes a counterpart of this
Agreement or otherwise agrees to be bound by this Agreement (each, an
"Executive" and collectively, the "Executives"), and (iv) each of the other
Persons set forth from time to time on the attached Schedule of Stockholders
under the heading "Other Stockholders" who, at any time, acquires securities of
the Company in accordance with Section 9 or 10 hereof and executes a counterpart
of this Agreement or otherwise agrees to be bound by this Agreement. The LLC,
the Executives and the other Persons listed on the Schedule of Stockholders are
collectively referred to herein as the "Stockholders" and individually as a
"Stockholder." Capitalized terms used but not otherwise defined herein are
defined in Section 8 hereof.
WHEREAS, the Company is a Subsidiary of the LLC.
WHEREAS, Goldman, GTCR and HGF (collectively, the "Investors") and
the LLC are parties to a Unit Purchase Agreement of even date herewith (the
"Unit Purchase Agreement") pursuant to which the Investors will purchase equity
securities directly from the LLC and thereby acquire an indirect equity interest
in the Company. Pursuant to certain stock option agreements or other documents
between the Company and the Executives, the Executives may, from time to time,
purchase shares of the Company's Common Stock, par value $.01 per share (the
"Common Stock"); and
WHEREAS, the Company and the Stockholders desire to enter into this
Agreement for the purposes, among others, of (i) limiting the manner and terms
by which shares of capital stock of the Company may be transferred, and (ii)
assuring continuity in the ownership of the Company. The execution and delivery
of this Agreement is a condition to the Investors' purchase of equity securities
pursuant to the Unit Purchase Agreement and certain provisions of this Agreement
are intended for the benefit of, and will be enforceable by, the Investors.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Board of Directors.
(a) Number and Designation. From and after the Closing (as
defined in the Unit Purchase Agreement) and until the provisions of this Section
1 cease to be effective, each holder of Stockholder Shares shall vote all of
his, her or its Stockholder Shares and any other voting securities of the
Company over which such holder has voting control and shall take all other
necessary or desirable actions within his control (whether in his capacity as a
stockholder, director, member of a board committee or officer of the Company or
otherwise, and including, without limitation, removal of Board members in
accordance with the terms of this
Agreement, attendance at meetings in person or by proxy for purposes of
obtaining a quorum and execution of written consents in lieu of meetings), and
the Company shall take all necessary or desirable actions within its control
(including, without limitation, calling special board and stockholder meetings),
so that:
(i) the authorized number of directors on the Board shall be
initially established at eleven (11), and thereafter adjusted to conform
with the aggregate number of directors available for designation in
accordance with this Section 1(a) below;
(ii) the following individuals shall be elected to the Board:
(A) three (3) representatives designated by Goldman, who
initially shall be Xxxxx X. Xxxxx, Xxxxx X. Xxxx and Xxxxxx X.
Xxxx, so long as Goldman and its Affiliates continue to hold
at least 50% of the Common Units of the LLC purchased by
Goldman and its Affiliates under the Unit Purchase Agreement
(the "Goldman Common Units"), and thereafter, two (2)
representatives designated by Goldman so long as Goldman and
its Affiliates continue to hold at least 25% of the Goldman
Common Units, and thereafter, one (1) representative
designated by Goldman so long as Goldman and its Affiliates
hold at least one (1) Goldman Common Unit (collectively, the
"Goldman Directors"); provided that so long as GS Capital
Partners 2000, L.P. continues to hold at least one (1) Goldman
Unit, at least one Goldman Director shall be designated
exclusively by GS Capital Partners 2000, L.P.; provided
further that if Goldman and its Affiliates continue to hold at
least 50% of the Goldman Common Units and GTCR and its
Affiliates no longer hold any GTCR Common Units, then Goldman
shall have the right to designate one (1) additional
representative (for a total of four (4) representatives) so
long as Goldman and its Affiliates continue to hold at least
50% of the Goldman Common Units;
(B) three (3) representatives designated by GTCR
(provided that at least one such representative shall be
designated by GTCR Fund VIII, and at least one by GTCR Fund
VIII/B), which representatives initially shall be Xxxxxx X.
Xxxxxxxx, Xxxxx X. Xxxxxxx and Xxxxx X. Xxxxxxxx, so long as
GTCR and its Affiliates continue to hold at least 50% of the
Common Units of the LLC purchased by GTCR and its Affiliates
under the Unit Purchase Agreement (the "GTCR Common Units"),
and thereafter, two (2) representatives designated by GTCR
(provided that at least one such representative shall be
designated by GTCR Fund VIII, and at least one by GTCR Fund
VIII/B) so long as GTCR and its Affiliates continue to hold at
least 25% of the GTCR Common Units, and thereafter, one (1)
representative designated by GTCR so long as GTCR and its
Affiliates hold at least one (1) GTCR Common Unit
(collectively, the "GTCR Directors"); provided that if GTCR
and its Affiliates continue to hold at least 50% of the GTCR
Common Units and Goldman and its Affiliates no longer hold any
Goldman Common Units, then GTCR shall
2
have the right to designate one (1) additional representative
(for a total of four (4) representatives) so long as GTCR and
its Affiliates continue to hold at least 50% of the GTCR
Common Units;
(C) three (3) representatives designated by HGF, who
initially shall be Xxxxxx X. Xxxxxxx, J. Xxxxx Staff and Xxxx
X. Xxxx, so long as HGF and its Affiliates continue to hold at
least 50% of the Common Units of the LLC purchased by HGF and
its Affiliates under the Unit Purchase Agreement (the "HGF
Common Units"), and thereafter, two (2) representatives
designated by HGF so long as HGF and its Affiliates continue
to hold at least 25% of the HGF Common Units, and thereafter,
one (1) representative designated by HGF so long as HGF and
its Affiliates hold at least one (1) HGF Common Unit
(collectively, the "HGF Directors" and, together with the
Goldman Directors and the GTCR Directors, the "Investor
Directors");
(D) the LLC's chief executive officer, who shall
initially be Xxxxxx X. Xxxx; and
(E) the Company's chief executive officer, who shall
initially be Xxxxx X. Xxxxx (the "Executive Director").
(iii) the removal, with or without cause, from the Board or
any board of directors, or similar governing body, of any of the Company's
Subsidiaries (each, a "Sub Board") of any Goldman Director, GTCR Director
or HGF Director shall be upon (and only upon) the written request of the
Persons entitled to designate such director to serve on such Board or Sub
Board;
(iv) if any Investor becomes ineligible to designate a
representative to fill a director position pursuant to the terms of
subparagraph (ii)(A) through (C) above, or if any Investor fails to
designate a representative to fill a directorship pursuant to the terms of
this Section 1, then such director position shall remain vacant and such
Investor shall promptly identify its designee(s) who, as a result, will be
automatically removed from the Board;
(v) if any director elected pursuant to subparagraph (ii)(D)
above ceases to be the chief executive officer of the LLC for any reason,
he shall be removed as a director promptly after such cessation and he
shall not be removed under any other circumstances;
(vi) if any director elected pursuant to subparagraph (ii)(E)
above ceases to be the chief executive officer of the Company for any
reason, he shall be removed as a director promptly after such cessation
and he shall not be removed under any other circumstances; and
(vii) in the event that any representative under subparagraph
(ii) for any reason ceases to serve as a member of the Board or Sub Board
(other than as the result of an Investor becoming ineligible to designate
one or more representatives to the Board or
3
Sub Board pursuant to the terms of subparagraph (ii)), (A) the resulting
vacancy on the Board or Sub Board shall be filled by a Person designated
by the Investor originally entitled to designate such director pursuant to
subparagraph (ii) above (provided that, if any party fails to designate a
person to fill a vacancy on the Board or Sub Board pursuant to the terms
of this subparagraph (vii), such vacant directorship shall remain vacant
until such directorship is filled pursuant to this subparagraph (vii)),
and (B) such designee shall be removed promptly after such time from each
committee of the Board or Sub Board.
(b) Subsidiary Boards. Each Sub Board shall be composed of such
directors or other Persons as determined from time to time by the Board. If each
of Goldman, GTCR and HGF have representatives on a Sub Board, then the Executive
Director shall also be a member of such Sub Board.
(c) Committees. The Board may, from time to time, designate one or
more committees of the Board or any Sub Board. Each Investor that is entitled to
designate at least one (1) director to the Board pursuant to Section 1(a)(ii)
shall be entitled to designate at least one (1) of its designated directors to
each material committee of the Board, each Sub Board and any Sub Board's
material committees. Any such committee of the Board or Sub Board, to the extent
provided in an enabling resolution or in the articles of incorporation or bylaws
of the Company or similar governing documents of a Subsidiary, respectively,
shall have and may exercise all of the authority of the Board or Sub Board,
respectively. At every meeting of any such committee, the presence of a majority
of all the members thereof shall constitute a quorum, and the affirmative vote
of a majority of the members present shall be necessary for the adoption of any
resolution. The Board may dissolve any committee of the Board or any Sub Board
at any time, unless otherwise provided in the articles of incorporation or
bylaws of the Company or similar governing documents of any Subsidiary. In
addition, the Board may establish an audit committee to select the Company's and
any Subsidiary's independent accountants and to review the annual audit of the
Company's and its Subsidiaries' financial statements conducted by such
accountants.
(d) Director Expenses. The Company shall pay the reasonable
out-of-pocket expenses incurred by each director in connection with attending
the meetings of the Board or any Sub Board and any committee thereof.
(e) Termination. The provisions of this Section 1 will terminate
upon the first to occur of (i) the consummation of a Sale of the Company and
(ii) the consummation of a Qualified IPO.
(f) Investor Directors. Whenever this Agreement calls for or refers
to the consent or approval of any matter by an Investor, such consent or
approval shall be deemed given by the Investor if each of such Investor's
designees on the Board has, in his capacity as a director of the Company, given
his consent or approval with respect to such matter at a duly convened meeting
of the Board or pursuant to an effective written consent of the Board, unless,
with respect to any given matter, such Investor notifies the Company in writing
that the consent or approval at the Board level by such Investor's designees on
the Board does not constitute the consent or approval by such Investor itself.
4
2. Restrictions on Transfer.
(a) Transfer of Stockholder Shares. No holder of Stockholder Shares
shall Transfer any interest in Stockholder Shares, without the prior written
consent of the LLC, except Transfers to a Permitted Transferee in accordance
with Section 2(b) or pursuant to Sections 3, 4 or 5 of this Agreement. In
addition, notwithstanding any other provision of this Agreement, prior to the
first anniversary of the Acquisition Closing, no holder of Stockholder Shares
shall Transfer any interest in any Stockholder Shares other than to a Control
Affiliate (as defined in the Acquisition Agreement) and in compliance with the
other provisions of this Agreement.
(b) Permitted Transfers. The restrictions set forth in Section 2(a)
shall not apply to (i) any Transfer of Stockholder Shares by any Stockholder to
or among its Affiliates or Family Group, (ii) any Transfer of Stockholder Shares
to the LLC, or (iii) a repurchase of Stockholder Shares by the Company; provided
that the restrictions contained in this Agreement will continue to be applicable
to the Stockholder Shares after any Transfer pursuant to clause (i) above and
the transferee of such Stockholder Shares shall agree in writing to be bound by
the provisions of this Agreement. Upon the Transfer of Stockholder Shares
pursuant to clause (i) of the previous sentence, the transferees will deliver a
written notice to the Company, which notice will disclose in reasonable detail
the identity of such transferee. A transferee permitted pursuant to this Section
2(b) who receives a transfer of Stockholder Shares in accordance with this
Agreement shall be referred to herein as a "Permitted Transferee."
(c) Termination of Restrictions. The restrictions on the Transfer of
Stockholder Shares set forth in this Section 2 shall continue with respect to
each Stockholder Share until the earlier of (i) the consummation of a Qualified
IPO or a Sale of the Company or (ii) the date on which such Stockholder Share
has been transferred in a Public Sale.
3. Rights of First Offer.
(a) Prior to making any Transfer of Stockholder Shares (other than a
Transfer in a Public Sale of type referred to in clause (i) of the definition
thereof or a Sale of the Company), any Stockholder desiring to make such
Transfer (the "Transferring Stockholder") will give written notice (the "Offer
Notice") to the Company and the other Stockholders (collectively, the "Other
Stockholders"). The Offer Notice will disclose in reasonable detail the number
of Stockholder Shares to be offered for sale and the terms and conditions of the
proposed sale. Such Transferring Stockholder will not consummate any Transfer
until 45 days after the Offer Notice has been given to the Other Stockholders,
unless the parties to the Transfer have been finally determined pursuant to this
Section 3 prior to the expiration of such 45-day period. (The date of the first
to occur of such events is referred to herein as the "Authorization Date".)
(b) The Other Stockholders may elect to purchase all (but not less
than all) of the Stockholder Shares to be sold upon the same terms and
conditions as those set forth in the Offer Notice by giving written notice of
such election to such Transferring Stockholder within 25 days after the Offer
Notice has been given to the Other Stockholders. If more than one Other
Stockholder elects to purchase the Stockholder Shares to be transferred, the
Stockholder Shares to be sold shall be allocated among the electing Other
Stockholders pro rata according to the number of shares of such class of
Stockholders Securities owned by each electing Other
5
Stockholder on a Fully Diluted Basis. If the Other Stockholders do not elect to
purchase all of the Stockholder Shares specified in the Offer Notice, the
Transferring Stockholder may transfer the Stockholder Shares specified in the
Offer Notice at a price and on terms no more favorable to the transferee(s)
thereof than specified in the Offer Notice during the 90-day period immediately
following the Authorization Date. Any Stockholder Shares not Transferred within
such 90-day period will be subject to the provisions of this Section 3 upon
subsequent Transfer.
(c) The restrictions of this Section 3 will not apply with respect
to Transfers to Permitted Transferees.
(d) Notwithstanding anything herein to the contrary, except pursuant
to clause (c) above, in no event shall any Transfer of Stockholder Shares
pursuant to this Section 3 be made for any consideration other than cash payable
upon consummation of such Transfer.
(e) The restrictions set forth in this Section 3 shall continue with
respect to each Stockholder Share until the earlier of (i) the date on which
such Stockholder Share has been transferred in a Public Sale, (ii) the
consummation of an Approved Sale, (iii) the consummation of a Qualified IPO,
(iv) the date on which such Stockholder Share has been transferred pursuant to
this Section 3 (other than pursuant to Section 3(c) and other than a transfer to
a Stockholder purchasing from a Transferring Stockholder pursuant to Section
3(b)).
4. Participation Rights.
(a) At least 30 days prior to any Transfer of shares of any class of
Stockholder Shares by the LLC, the LLC shall deliver a written notice (the
"Tag-Along Notice") to the Company and the other Stockholders (the "Tag-Along
Stockholders") specifying in reasonable detail the identity of the prospective
transferee(s) and the terms and conditions of the Transfer (which notice may be
included in and given at the same time as the Offer Notice under Section 3). The
Tag-Along Stockholders may elect to participate in the contemplated Transfer by
delivering written notice to the LLC within 30 days after delivery of the
Tag-Along Notice. The LLC and such Tag-Along Stockholders will be entitled to
sell in the contemplated Transfer, at the same price and on the same terms, a
number of shares of such class of Stockholder Shares proposed to be transferred
equal to the product of (A) the quotient determined by dividing the number of
shares of such class of Stockholder Shares owned by such Person on a
Fully-Diluted Basis by the aggregate number of outstanding shares of such class
of Stockholder Shares owned by the LLC and the Tag-Along Stockholders
participating in such sale on a Fully-Diluted Basis and (B) the number of shares
of such class of Stockholder Shares to be sold in the contemplated Transfer on a
Fully-Diluted Basis.
(b) The LLC will use reasonable commercially reasonable efforts to
obtain the agreement of the prospective transferee(s) to the participation of
the Tag-Along Stockholders in any contemplated Transfer, and the LLC will not
transfer any of its Stockholder Shares to the prospective transferee(s) unless
(A) the prospective transferee(s) agrees to allow the participation of the
Tag-Along Stockholders electing to participate in such Transfer or (B) the LLC
agrees to purchase the number of such class of Stockholder Shares from the
Tag-Along Stockholders that the Tag-Along Stockholders electing to participate
in such Transfer that such Tag-Along Stockholders would have been entitled to
sell pursuant to this Section 4(b) for the consideration
6
per share to be paid to the LLC by the prospective transferee(s).
Notwithstanding anything in this Section 4 to the contrary, (i) if the LLC
intends to simultaneously Transfer a combination of more than one class of
Stockholder Shares and/or other debt or equity securities, and any Tag-Along
Stockholder holds or has the right to acquire both such classes of Stockholder
Shares and/or other debt or equity securities, such Tag-Along Stockholder may
only participate in such Transfer if such Tag-Along Stockholder Transfers all
such classes of Stockholder Shares and/or other debt or equity securities in
accordance with the formulae set forth in this Section 4 above and (ii) to the
extent Xxxxx holds vested options to acquire Stockholder Shares which have a per
share exercise price less than the per share Transfer price, the LLC will use
commercially reasonable efforts to facilitate transfer of the Stockholder Shares
underlying such options, in lieu of requiring Xxxxx to first exercise the option
and then transfer such Stockholder Shares and, in such event, Xxxxx will receive
the difference between the per share Transfer price and the per share option
exercise price. This may be accomplished by enabling him simultaneously exercise
the option and sell such underlying Stockholder Shares, or otherwise.
(c) If a Person who hold units of the LLC sells such units in a
transaction which gives rise to tag-along rights under Section 10.3 ("Section
10.3") of the Limited Liability Company Agreement of the LLC (the "LLC
Agreement"), a copy of which section is attached hereto as Exhibit B, then Xxxxx
will be entitled to sell in the transfer under Section 10.3 an aggregate amount
of Stockholder Shares (including through the sale of options as described above)
equal in value to the value of Stockholder Shares (including options eligible
for sale) that would have been sold by Xxxxx if the sale under Section 10.3 had
instead been a sale by the holder of LLC units of a portion of the Stockholders
Shares which had a value equal to the value of the LLC units being sold by such
LLC unitholder in the sale under Section 10.3. For example, if (i) the LLC owned
90% of the Company shares and Xxxxx owned 10% of the Company shares, (ii) the
LLC unitholder offered to sell its entire interest in the LLC in a sale under
Section 10.3 which represented 40% of the aggregate value of the LLC units, such
sale of LLC units would be the economic equivalent of the sale of 36% of the
Company shares (.4 x .9=.36). In such event, Xxxxx would be entitled to sell
3.6% of the Stockholder Shares (10% x 36%) and the selling LLC unitholder would
be entitled to sell units representing 32.4% of the underlying Stockholder
Shares (90% x 36%) or units equal to 32.4% of the value of the LLC units. The
Persons who are parties to the LLC Agreement agree not to permit Section 10.3 to
be amended in any manner which disproportionately disadvantages Stockholders who
are not holders of LLC units when compared to the disadvantage incurred by
Stockholders who are holders of LLC units.
(d) The provisions of this Section 4 will terminate upon the first
to occur of (i) the consummation of a Sale of the Company and (ii) the
consummation of a Qualified IPO.
5. Sale of the Company.
(a) If the Board and the LLC approve a Sale of the Company (an
"Approved Sale"), each holder of Stockholder Shares shall vote for, consent to
and raise no objections against such Approved Sale. If the Approved Sale is
structured as a (i) merger or consolidation, each holder of Stockholder Shares
shall waive any dissenters' rights, appraisal rights or similar rights in
connection with such merger or consolidation or (ii) sale of Units, each holder
of Stockholder Shares shall agree to sell all of his, her or its Stockholder
Shares or rights to acquire
7
Stockholder Shares on the terms and conditions approved by the Board and the
LLC. Each holder of Stockholder Shares shall take all necessary or desirable
actions in connection with the consummation of the Approved Sale as requested by
the Company.
(b) If either the Company or the holders of any class of Stockholder
Shares enter into a negotiation or transaction for which Rule 506 (or any
similar rule then in effect) promulgated by the Securities and Exchange
Commission may be available with respect to such negotiation or transaction
(including a merger, consolidation or other reorganization), the holders of
Stockholder Shares will, at the request of the Company, appoint a purchaser
representative (as such term is defined in Rule 501) reasonably acceptable to
the Company. If any holder of Stockholder Shares appoints a purchaser
representative designated by the Company, the Company will pay the fees of such
purchaser representative, but if any holder of Stockholder Shares declines to
appoint the purchaser representative designated by the Company such holder will
appoint another purchaser representative, and such holder will be responsible
for the fees of the purchaser representative so appointed.
(c) Holders of Stockholder Shares will bear their pro rata share
(based upon the number of shares of Common Stock sold) of the costs of any sale
of such Stockholder Shares pursuant to an Approved Sale to the extent such costs
are incurred for the benefit of all holders of Stockholder Shares and are not
otherwise paid by the Company or the acquiring party. For purposes of this
Section 5(c), costs incurred in exercising reasonable efforts to take all
actions in connection with the consummation of an Approved Sale in accordance
with Section 5(a) shall be deemed to be for the benefit of all holders of
Stockholder Shares. Costs incurred by holders of Stockholder Shares on their own
behalf will not be considered costs of the transaction hereunder. Each
Stockholder transferring Stockholder Shares pursuant to an Approved Sale shall
be obligated, severally, not jointly, to join on a pro rata basis (based on the
number of shares of Common Stock to be sold) in any indemnification or other
obligations that are part of the terms and conditions of the Approved Sale
(other than any such obligations that relate specifically to a particular
Stockholder, such as indemnification with respect to representations and
warranties given by a Stockholder regarding such Stockholder's title to and
ownership of Stockholder Shares) (the "Company Indemnity Obligations").
Notwithstanding the foregoing, no Stockholder shall be obligated in connection
with any Approved Sale to agree to indemnify or hold harmless the transferees
with respect to Company Indemnity Obligations in an amount in excess of the net
proceeds paid to such Stockholder in connection with the Approved Sale.
(d) In connection with an Approved Sale, each holder of Stockholder
Shares shall perform, to the extent reasonably required by the LLC, such
additional services as may be related to such Approved Sale (including, without
limitation, participating in and/or cooperating with any post-closing purchase
price adjustment or the defense and/or settlement of indemnification claims)
prior to and following the time of the consummation of such Approved Sale for no
additional consideration. In addition, any such holder of Stockholder Shares
shall, to the extent reasonably required by the LLC, have a portion of his, her
or its proceeds from the Approved Sale held-back, set-aside and/or escrowed as
security for such holders' obligations pursuant to this Section 5(d).
(e) In order to secure each Stockholder's obligation to vote his or
its Stockholder Shares entitled to vote thereon and other voting securities of
the Company in
8
accordance with the provisions of this Section 5, each Stockholder (other than
the LLC) hereby appoints the LLC's chief executive officer (the "Proxy") as his
true and lawful proxy and attorney-in-fact, with full power of substitution, to
vote all of his Stockholder Shares and other voting securities of the Company
for the matters expressly provided for in this Section 5. The Proxy may exercise
the irrevocable proxy granted to him hereunder at any time any Stockholder
(other than the LLC) fails to comply with the provisions of this Section 5. The
proxies and powers granted by each Stockholder (other than the LLC) pursuant to
this Section 5(e) are coupled with an interest and are given to secure the
performance of such Stockholder's obligations under this Section 5. Such proxies
and powers shall be irrevocable and shall survive the death, incompetency,
disability or bankruptcy of such Stockholder and the subsequent holders of his
or its Stockholder Shares.
(f) In the event of an Approved Sale, each Stockholder shall receive
in exchange for the Stockholder Shares held by such Stockholder the same portion
of the aggregate consideration from such sale or exchange that such Stockholder
would have received if such aggregate consideration had been distributed by the
Company pursuant in complete liquidation pursuant to the rights and preferences
set forth in the Company's certificate of incorporation as in effect immediately
prior to such sale or exchange. Each holder of Stockholder Shares shall take all
necessary or desirable actions in connection with the distribution of the
aggregate consideration from such sale or exchange as requested by the Company
in order to effectuate the provisions of this Section 5.
6. Approval Rights.
(a) Negative Covenants. The Company shall not, without the prior
written consent of the LLC:
(i) directly or indirectly declare or pay any dividends or
make any distributions upon any of its equity securities;
(ii) enter into, or permit any Subsidiary to enter into, any
joint venture or similar transaction;
(iii) enter into any agreement or arrangement that materially
limits or otherwise restricts the Company or any of its Subsidiaries from
engaging or competing in any material line of business or in any material
geographic area;
(iv) enter into, or permit any Subsidiary to enter into, any
transaction with any of its or any Subsidiary's officers, directors,
members, employees or Affiliates or any individual related by blood,
marriage or adoption to any such Person or any entity in which any such
Person or individual owns a beneficial interest, except for normal
employment arrangements and benefit programs on reasonable terms and
except as otherwise expressly contemplated by this Agreement and the
agreements contemplated hereby;
(v) directly or indirectly redeem, purchase or otherwise
acquire, or permit any Subsidiary to redeem, purchase or otherwise
acquire, any equity securities of the Company or any Subsidiaries
(including, without limitation, warrants, options and
9
other rights to acquire such equity securities), other than repurchases of
common stock from employees of the Company or any Subsidiary upon
termination of employment pursuant to contractual arrangements approved by
the Board;
(vi) except as expressly contemplated by this Agreement,
authorize, issue, sell or enter into any agreement providing for the
issuance (contingent or otherwise), or permit any Subsidiary to authorize,
issue, sell or enter into any agreement providing for the issuance
(contingent or otherwise) of, (i) any notes or debt securities containing
equity features (including, without limitation, any notes or debt
securities convertible into or exchangeable for equity securities, issued
in connection with the issuance of equity securities or containing profit
participation features) or (ii) any class, series, shares or units of
equity securities (or any securities convertible into or exchangeable for
any equity securities) of the Company or any Subsidiaries or rights,
warrants or options to acquire or any security convertible into any equity
securities of the Company or any Subsidiaries, other than the issuance of
equity securities by a Subsidiary to the Company or another Subsidiary and
other than the issuance of equity securities pursuant to the Company's
2005 Long-Term Incentive Plan as approved by the Board;
(vii) create, incur, assume, refinance or suffer to exist, or
permit any Subsidiary to create, incur, assume, refinance or suffer to
exist, third party Indebtedness exceeding an aggregate principal amount of
$50,000,000 outstanding at any time on a consolidated basis (whether by
way of authorizing, issuing or entering into any agreement providing for
the issuance (contingent or otherwise) of, any notes or debt securities or
entering into any contract or agreement regarding third party debt
financing or otherwise), except for Indebtedness secured by receivables or
financial assets (including, without limitation, Indebtedness incurred
pursuant to the Warehouse Facilities, the Residual Facilities, the HFI
Term Loan and the High Yield Debt); provided that entry into any agreement
for the refinancing of more than $200,000,000 of such Indebtedness secured
by receivables or financial assets shall require the prior written consent
of the holders of the Required Interest;
(viii) merge or consolidate with any Person or permit any
Subsidiary to merge or consolidate with any Person (other than a
wholly-owned Subsidiary);
(ix) sell, lease or otherwise dispose of, or permit any
Subsidiary to sell, lease or otherwise dispose of, more than 10% of the
consolidated assets of the Company and its Subsidiaries (computed on the
basis of book value, determined in accordance with United States generally
accepted accounting principles consistently applied, or fair market value,
determined by the Board in its reasonable good faith judgment) in any
transaction or series of related transactions (other than sales of motor
vehicle installment sales contracts and installment loans in the ordinary
course of business);
(x) voluntarily initiate a liquidation, dissolution or winding
up of the Company or any Subsidiary, or a recapitalization or
reorganization of the Company or any Subsidiary in any form of transaction
(including, without limitation, any reorganization into a corporation or a
partnership), or permit the commencement of a
10
proceeding for bankruptcy, insolvency, receivership or similar action with
respect to the Company or any of its Subsidiaries;
(xi) change the corporate or organizational structure of the
Company or any of its Subsidiaries;
(xii) acquire, or permit any Subsidiary to acquire, any
interest in any business (whether by a purchase of assets, purchase of
securities, merger or otherwise) involving aggregate consideration
(including, without limitation, the assumption of liabilities) exceeding
$35,000,000;
(xiii) acquire portfolios of securities (including auto loan
portfolios) for aggregate consideration of more than $100,000,000 in any
transaction or series of related transactions;
(xiv) enter into the ownership, active management or operation
of any business other than the ownership of the securities of its
Subsidiaries or permit any Subsidiary to enter into the ownership, active
management or operation of any business other than a business in the
automobile loan industry;
(xv) become subject to, or permit any of its Subsidiaries to
become subject to, any agreement or instrument that by its terms would
(under any circumstances) restrict (A) the right of any Subsidiary to make
loans or advances or pay dividends to, transfer property to, or repay any
Indebtedness owed to, the Company or any Subsidiary or (B) the Company's
right to perform the provisions of this Agreement and the agreements
contemplated hereby;
(xvi) amend, alter or repeal, or permit the Company or any
Subsidiary to amend, alter or repeal, by merger, consolidation,
combination, reclassification or otherwise, the certificate of
incorporation or bylaws of the Company or any of its Subsidiaries;
(xvii) except as expressly contemplated by this Agreement,
make any amendment to the Company's certificate of incorporation;
(xviii) terminate the employment of, appoint or hire, or enter
into, amend or modify any employment agreement or arrangement with, the
Chief Executive Officer of the Company, other than a termination of
employment and/or modification to such agreement or arrangement that does
not materially change the severance or other terms of such agreement or
arrangement;
(xix) settle or compromise any pending or threatened suit,
action or claim of the Company or any of its Subsidiaries in excess of
$5,000,000;
(xx) appoint or remove the independent auditor of the Company
or any of its Subsidiaries;
11
(xxi) approve the annual budget (and significant variances
from the budget) of the Company and its Subsidiaries;
(xxii) make, or permit any Subsidiary to make, any capital
expenditures (including, without limitation, payments with respect to
capitalized leases, as determined in accordance with generally accepted
accounting principles consistently applied) exceeding an amount that is
$1.0 million greater than the amount set forth in the then current annual
budget approved pursuant to paragraph (xxi) above in the aggregate on a
consolidated basis during any twelve-month period; or
(xxiii) make any material changes in the accounting policies
of the Company or any of its Subsidiaries.
(b) Other Covenants.
(i) The Company shall not, nor shall it permit any Subsidiary
to, disclose any Person's name or identity as a direct or indirect
investor in the Company in any press release or other public announcement
or in any document or material filed with any governmental entity, without
the prior written consent of the LLC, unless such disclosure is required
by applicable law or governmental regulations or by order of a court of
competent jurisdiction, in which case prior to making such disclosure the
Company shall give written notice to the LLC describing in reasonable
detail the proposed content of such disclosure and shall permit the LLC to
review and comment upon the form and substance of such disclosure.
(ii) In connection with any transaction in which the Company
is involved that is required to be reported under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended from time to time (the "HSR
Act"), the Company shall prepare and file all documents with the Federal
Trade Commission and the United States Department of Justice which may be
required to comply with the HSR Act, and shall promptly furnish all
materials thereafter requested by any of the regulatory agencies having
jurisdiction over such filings, in connection with such transaction. The
Company shall take all reasonable actions and shall file and use
reasonable best efforts to have declared effective or approved all
documents and notifications with any governmental or regulatory bodies, as
may be necessary or may reasonably be requested under federal antitrust
laws for the consummation of such transaction. Notwithstanding the
foregoing, if any direct or indirect investor in the Company, rather than
the Company, is required to make a filing under the HSR Act in connection
with such a transaction, the Company will provide to such investor all
necessary information for such filing, will facilitate such filing and
will pay all fees and expenses associated with such filing.
(c) Special Board Approval. The Company shall not, without specific
Board approval, enter into, or permit any Subsidiary to enter into, any
agreement or arrangement that provide for payments to or from the Company or any
Subsidiary in excess of $35,000,000 (other than securitization transactions in
the ordinary course of business).
12
7. Legend. Each certificate evidencing Stockholder Shares and each
certificate issued in exchange for or upon the transfer of any Stockholder
Shares (if such securities remain Stockholder Shares as defined herein after
such transfer) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO A
STOCKHOLDERS AGREEMENT DATED AS OF APRIL 29, 2005 AMONG THE ISSUER
OF SUCH SECURITIES (THE "COMPANY") AND CERTAIN OF THE COMPANY'S
STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST."
The Company shall imprint such legend on certificates evidencing Stockholder
Shares outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any securities which cease to be
Stockholder Shares.
8. Definitions.
"Acquisition Agreement" means the Stock Purchase Agreement, dated as
of December 23 , 2004, by and among Fairlane Credit LLC, a Delaware limited
liability company, Ford Motor Credit Company, a Delaware corporation, the
Company and Triad Acquisition Corp., a Delaware corporation, pursuant to which
Triad Acquisition Corp. will acquire all of the outstanding stock of Triad
Financial Corporation, as amended or modified from time to time in accordance
with the terms thereof.
"Acquisition Closing" means the closing of the transactions
contemplated by the Acquisition Agreement.
"Affiliate" means, (i) with respect to any Person, any Person that
controls, is controlled by or is under common control with such Person or an
Affiliate of such Person, and (ii) with respect to any Investor, any general or
limited partner of such Investor, any employee or owner of any such partner, or
any other Person controlling, controlled by or under common control with such
Investor.
"Board" means the Board of Directors of the Company.
"Family Group" means a Person's spouse and descendants (whether
natural or adopted), and any trust, family limited partnership, limited
liability company or other entity wholly owned, directly or indirectly, by such
Person or such Person's spouse and/or descendants that is and remains solely for
the benefit of such Person and/or such Person's spouse and/or descendants and
any retirement plan for such Person.
"Goldman" means GS Capital Partners 2000, L.P., a Delaware limited
partnership, GS Capital Partners 2000 Employee Fund, L.P., a Delaware limited
partnership, GS Capital Partners 2000 Offshore, L.P., a Cayman Islands exempted
limited partnership, Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P., a Delaware
limited partnership, GS Capital Partners
13
2000 GmbH & Co. Beteilgungs KG, a German limited partnership, and MTGLQ
Investors, L.P., a Delaware limited partnership.
"GTCR" means GTCR Fund VIII, L.P., GTCR Fund VIII/B, L.P. and GTCR
Co-Invest II, L.P., each of which is a Delaware limited partnership.
"HFI Term Loan" means the note issued by Triad Financial Corporation
to Ford Motor Credit Company on the Initial Closing Date in the initial
aggregate principal amount of approximately $114.1 million and the HFI Note and
Security Agreement between Triad Financial Corporation and Ford Motor Credit
Company dated as of the Initial Closing Date referenced in such note, each as
amended or modified from time to time in accordance with the terms thereof.
"HGF" means Xxxxxx'x Xxxx/Ford Ltd., a Texas limited partnership.
"High Yield Debt" means the $150 million aggregate principal amount
of 11.125% Senior Notes due 2013 originally issued under the indenture dated as
of the Initial Closing Date, among the Purchaser, as issuer, and JPMorgan Chase
Bank, N.A., as trustee, as amended or modified from time to time in accordance
with the terms thereof.
"Indebtedness" means at a particular time, without duplication, (i)
any indebtedness for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) any indebtedness for the deferred
purchase price of property or services with respect to which a Person is liable,
contingently or otherwise, as obligor or otherwise (other than trade payables
and other current liabilities incurred in the ordinary course of business, and
(iv) any commitment by which a Person assures a creditor against loss (including
contingent reimbursement obligations with respect to letters of credit).
"on a Fully Diluted Basis" means all issued and outstanding shares
of any class and all shares of such class which could be obtained under any
vested options for which the option exercise price is less than the per share
price receivable pursuant to the subject Transfer.
"Initial Closing Date" means April 29, 2005.
"Investments" as applied to any Person means (i) any direct or
indirect purchase or other acquisition by such Person of any notes, obligations,
instruments, stock, securities or ownership interest (including partnership
interests and joint venture interests) of any other Person and (ii) any capital
contribution by such Person to any other Person.
"Person" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, an investment fund, any other business
entity and a governmental entity or any department, agency or political
subdivision thereof.
"Public Offering" means the sale in an underwritten public offering
registered under the Securities Act of the equity securities of the Company (or
any successor thereto) approved by the Board.
14
"Public Sale" means any sale of Stockholder Shares (i) to the public
pursuant to an offering registered under the Securities Act or (ii) to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 (other than Rule 144(k) prior to a Public Offering) adopted under the
Securities Act.
"Qualified IPO" means an underwritten initial public offering of the
common stock of the Company with gross proceeds of at least $50.0 million in a
firm commitment underwriting.
"Residual Facilities" means, collectively, (i) the Master Residual
Loan Agreement between Triad Financial Residual Special Purpose LLC, Xxxxxxx
Xxxxx Mortgage Company and XX Xxxxxx Chase Bank, N.A. dated as of the Initial
Closing Date and (ii) the Master Residual Loan Agreement between Triad Financial
Residual Special Purpose LLC and Citigroup Global Markets Realty Corp. and XX
Xxxxxx Xxxxx Bank, N.A. dated as of the Initial Closing Date, each as amended or
modified from time to time in accordance with the terms thereof.
"Sale of the Company" means any transaction or series of
transactions pursuant to which any Person or group of related Persons (other
than the Investors and their Affiliates) in the aggregate acquire(s) (i) equity
securities of the Company possessing the voting power (other than voting rights
accruing only in the event of a default or breach) to elect a majority of the
Company's board of directors (whether by merger, liquidation, consolidation,
reorganization, combination, sale or transfer of the Company's equity
securities, stockholder or voting agreement, proxy, power of attorney or
otherwise) or (ii) all or substantially all of the Company's assets determined
on a consolidated basis; provided that a Public Offering shall not constitute a
Sale of the Company.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Stockholder Shares" means (i) any of the Company's Common Stock
purchased or otherwise acquired by any Stockholder, (ii) any equity securities
issued or issuable directly or indirectly with respect to the Stockholder Shares
referred to in clause (i) above by way of share dividend or share split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization, and (iii) any other shares of any class or series of
equity securities of the Company held by a Stockholder. As to any particular
equity securities constituting Stockholder Shares, such Stockholder Shares will
cease to be Stockholder Shares when they have been (x) effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them or (y) sold to the public through a broker, dealer or
market maker pursuant to Rule 144 (or any similar provision then in force) under
the Securities Act.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association, or business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers, or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association, or other business entity (other
than a corporation), a majority of
15
partnership or other similar ownership interest thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more Subsidiaries
of that Person or a combination thereof. For purposes hereof, a Person or
Persons shall be deemed to have a majority ownership interest in a limited
liability company, partnership, association, or other business entity (other
than a corporation) if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association, or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association, or other business
entity. For purposes hereof, references to a "Subsidiary" of any Person shall be
given effect only at such times that such Person has one or more Subsidiaries,
and, unless otherwise indicated, the term "Subsidiary" refers to a Subsidiary of
the Company.
"Transfer" means to sell, transfer, assign, pledge or otherwise
dispose of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law, including, without limitation, transfers
in connection with death, divorce or bankruptcy), but explicitly excluding
exchanges of one class of Stockholder Shares to or for another class of
Stockholder Shares.
"Warehouse Facilities" means, collectively, (i) the Warehouse
Lending Agreement among Triad Financial Corporation, as originator and servicer,
Triad Financial Warehouse Special Purpose LLC, as borrower, and Xxxxxxx Sachs
Mortgage Company, as lender, dated as of the Initial Closing Date and (ii) the
Warehouse Lending Agreement among Triad Financial Corporation, as originator and
servicer, Triad Financial Warehouse Special Purpose LLC, as borrower, and
Citigroup Global Markets Realty Corp., as lender, dated as of the Initial
Closing Date, each as amended or modified from time to time in accordance with
the terms thereof.
9. Transfers; Transfers in Violation of Agreement. Prior to
Transferring any Stockholder Shares to any person or entity, the Transferring
Stockholder shall cause the prospective transferee to execute and deliver to the
Company, the LLC and the Other Stockholders a counterpart of this Agreement. Any
Transfer or attempted Transfer of any Stockholder Shares in violation of any
provision of this Agreement shall be void, and the Company shall not record such
Transfer on its books or treat any purported transferee of such Stockholder
Shares as the owner of such securities for any purpose.
10. Additional Stockholders. In connection with the issuance of any
additional equity securities of the Company to any Person, the Company may
permit such Person to become a party to this Agreement and succeed to all of the
rights and obligations of a "Stockholder" under this Agreement by obtaining an
executed joinder to this Agreement, a form of which is attached hereto as
Exhibit A and, upon such execution, such Person shall for all purposes be a
"Stockholder" party to this Agreement.
11. Representations and Warranties. Each Stockholder represents and
warrants that (i) this Agreement has been duly authorized, executed and
delivered by such Stockholder and constitutes the valid and binding obligation
of such Stockholder, enforceable in accordance with its terms, and (ii) such
Stockholder has not granted and is not a party to any proxy, voting trust or
other agreement that is inconsistent with, conflicts with or violates any
provision of this Agreement. No holder of Stockholder Shares shall grant any
proxy or become a
16
party to any voting trust or other agreement that is inconsistent with,
conflicts with or violates any provision of this Agreement.
12. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company, the LLC and the
holders of a majority of the Common Stock; provided that no such amendment or
modification that would adversely affect one class or group of holders of
Stockholder Shares in a manner different than any other class or group of
holders of Stockholder Shares shall be effective against such class or group of
holders of Stockholder Shares without the prior written consent of at least a
majority of such class or group adversely affected thereby. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
13. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
14. Entire Agreement. This Agreement, those documents expressly
referred to herein and other documents of even date herewith embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
15. Inconsistent Agreements Neither the Company nor any of its
Subsidiaries will hereafter enter into any agreement with respect to its
securities that is inconsistent with or violates the rights granted to
Stockholders in this Agreement without the prior written consent of the
Investors.
16. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Stockholders and any subsequent
holders of Stockholder Shares and the respective successors and assigns of each
of them, so long as they hold Stockholder Shares, except that the rights of the
Investors to designate directors pursuant to Section 1(a) and any other rights
expressly vested solely in the initial Investors shall not be assignable without
the written consent of the holders of a majority of the Common Stock held by the
non-assigning stockholders.
17. Counterparts. This Agreement may be executed in separate
counterparts (including by means of telecopied signature pages) each of which
shall be an original and all of which taken together shall constitute one and
the same agreement.
17
18. Remedies. The Company and each Stockholder shall be entitled to
enforce their rights under this Agreement specifically to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company and each Stockholder may in
its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
19. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when (i) delivered
personally to the recipient, (ii) sent to the recipient by reputable express
courier service (charges prepaid), (iii) mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid, or (iv)
telecopied to the recipient (with hard copy sent to the recipient by reputable
overnight courier service (charges prepaid) that same day) if telecopied before
5:00 p.m. Chicago, Illinois time on a business day, and otherwise on the next
business day. Such notices, demands and other communications shall be sent to
the to the Company at the addresses indicated below and to any other recipient
at the address indicated on the schedules hereto and to any subsequent holder of
Stockholder Shares subject to this Agreement at such address as indicated by the
Company's records, or at such address or to the attention of such other Person
as the recipient party has specified by prior written notice to the sending
party:
If to the Company:
Triad Holdings Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: ____________________
with copies to:
Triad Holdings, LLC
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
20. Governing Law. The Delaware General Corporation Law shall govern
all issues concerning the relative rights of the Company and its stockholders.
All other questions concerning the construction, validity and interpretation of
this Agreement and the exhibits and schedules hereto shall be governed by and
construed in accordance with the internal laws of the State of Delaware, without
giving effect to any choice of law or other conflict of law provision or
18
rule (whether of the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
21. MUTUAL WAIVER OF JURY TRIAL. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED
BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND
FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT
THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY
JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN
OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS
AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED HEREBY.
22. Descriptive Headings; Interpretation. The descriptive headings
of this Agreement are inserted for convenience only and do not constitute a
substantive part of this Agreement. Whenever required by the context, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine, or neuter forms, and the singular form of nouns, pronouns, and verbs
shall include the plural and vice versa. The use of the word "including" in this
Agreement shall be, in each case, by way of example and without limitation. The
use of the words "or," "either," and "any" shall not be exclusive. Reference to
any agreement, document, or instrument means such agreement, document, or
instrument as amended or otherwise modified from time to time in accordance with
the terms thereof, and, if applicable, hereof.
23. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any of the provisions of this Agreement.
24. Delivery by Facsimile. This Agreement, the agreements referred
to herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute original forms thereof and deliver them to all
other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
* * * * *
19
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement on the day and year first written above.
TRIAD HOLDINGS INC.
By: /s/ J. Xxxxx Staff
------------------------------------
Name: J. Xxxxx Staff
Its: CEO
TRIAD HOLDINGS, LLC
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Its: CEO
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
XXXXXXX XXXXX DIRECT INVESTMENT FUND 2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
GS CAPITAL PARTNERS 2000 GmbH & CO. BETEILGUNGS KG
By: Xxxxxxx Sachs Management GP GmbH
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxx X. Xxxx
Its: Vice President
MTGLQ INVESTORS, L.P.
By: MLQ L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxx
Its: Vice President
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
GTCR FUND VIII, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR FUND VIII/B, L.P.
By: GTCR Partners VIII, L.P.
Its: General Partner
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
GTCR CO-INVEST II, L.P.
By: GTCR Xxxxxx Xxxxxx XX, L.L.C.
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
Its: Principal
XXXXXX'X XXXX/FORD LTD.
By: /s/ Xxxxxx X. Xxxx
---------------------------------------------
Name: Xxxxxx X. Xxxx
Its: General Partner
/s/ Xxxxx X. Xxxxx
---------------------------------------------------
Xxxxx X. Xxxxx
SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT
SCHEDULE OF STOCKHOLDERS
Triad Holdings, LLC
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Xxxxx X. Xxxxx
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxxxx 00000
EXHIBIT A
STOCKHOLDERS AGREEMENT
JOINDER
The undersigned is executing and delivering this Joinder pursuant to
the Stockholders Agreement dated as of April 29, 2005 (as the same may hereafter
be amended, the "Stockholders Agreement"), among Triad Holdings Inc., a Delaware
corporation (the "Company"), Triad Holdings, LLC, a Delaware limited liability
company, and the other persons named as parties therein from time to time.
By executing and delivering to the Company this Joinder, the
undersigned hereby agrees to become a party to, to be bound by, and to comply
with the provisions of the Stockholders Agreement as a Stockholder in the same
manner as if the undersigned were an original signatory to the Stockholders
Agreement.
Accordingly, the undersigned has executed and delivered this Joinder
as of the ___ day of _______, 20__.
[Stockholder]
By: _____________________________________
Name: _____________________________________
Its: _____________________________________
EXHIBIT B
Section 10.3. Tag-Along Rights.(a)At least 30 days prior to any
Transfer of any Units or other interests in the LLC (other than to a Permitted
Transferee) by one or more of the Unitholders (each, a "Transferring
Unitholder"), such Transferring Unitholders shall deliver a written notice (the
"Tag-Along Notice") to the LLC and the other Unitholders (the "Tag-Along
Unitholders") specifying in reasonable detail the identity of the prospective
transferee(s) and the terms and conditions of the Transfer (which notice may be
included in and given at the same time as the Offer Notice under Section
10.2(a)). The Tag-Along Unitholders may elect to participate in the contemplated
Transfer by delivering written notice to each of the Transferring Unitholders
within 30 days after delivery of the Tag-Along Notice. The Transferring
Unitholder and such Tag-Along Unitholders will be entitled to sell in the
contemplated Transfer, at the same price and on the same terms, a number of such
class of Units proposed to be transferred equal to the product of (A) the
quotient determined by dividing the number of units of such class of Units owned
by such Person by the aggregate number of outstanding units of such class of
Units owned by the Transferring Unitholder and each such Tag-Along Unitholder
participating in such sale and (B) the number of such class of Units to be sold
in the contemplated Transfer.
(b) The Transferring Unitholder will use reasonable commercially
reasonable efforts to obtain the agreement of the prospective transferee(s) to
the participation of the Tag-Along Unitholders in any contemplated Transfer, and
the Transferring Unitholder will not transfer any of its Units to the
prospective transferee(s) unless (A) the prospective transferee(s) agrees to
allow the participation of the Tag-Along Unitholders or (B) the Transferring
Unitholder agree to purchase the number of such class of Units from the
Tag-Along Unitholders that the Tag-Along Unitholders would have been entitled to
sell pursuant to this Section 10.3(b) for the consideration per unit to be paid
to the Transferring Unitholder by the prospective transferee(s).
(c) Notwithstanding the foregoing, the participants, amounts and
types of securities sold in any transfer hereunder will be adjusted to take
account of the rights of any holders of Triad Holdings Inc. securities pursuant
to Section 4(c) of the Stockholders Agreement of even date herewith between
Triad Holdings Inc. and certain of its stockholders.
(d) The provisions of this Section 10.3 will terminate upon the
first to occur of (i) the consummation of a Sale of the Company and (ii) the
consummation of a Qualified IPO.
