Exhibit 10.1
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT(this "Agreement") is made and entered into
as of August , 1997, by and among COMPUCREDIT CORPORATION, a Georgia
corporation (the "Company"), COMPUCREDIT MANAGEMENT CORP., a Georgia
corporation ("CCMC"), XXXXX X. XXXXX, III, as Trustee of BRAVO TRUST ONE, a
Georgia trust, U/A dated October 15, 1993 ("Trust One"), XXXXX X. XXXXX, as
Trust of BRAVO TRUST TWO, a Georgia trust, U/A dated October 15, 1993 ("Trust
Two"), XXXXX X. XXXXXX, an individual resident of the State of Georgia
("Xxxxxx"), XXXXXXX X. XXXXXXX, an individual resident of the State of Georgia
("Xxxxxxx"), XXXXXXX X. HOUSE, an individual resident of the State of Georgia
("House"), XXXXXX X. XXXXXXX, an individual resident of the State of Georgia
("Xxxxxxx"), and ATLANTIC EQUITY CORPORATION, a North Carolina corporation
("AEC")(CCMC, Trust One, Trust Two, Samsky, Gilbert, House, Xxxxxxx and AEC
being referred to herein collectively as the "Stockholders").
WITNESSETH
WHEREAS, CCMC (the "General Partner"), Trust One, Trust Two, Samsky,
Gilbert, House and Xxxxxxx (collectively, the "Limited Partners") previously
held those units of partnership interests in a limited partnership,
CompuCredit, L.P., organized under the laws of Georgia (the "Partnership"),
set forth on Exhibit A hereto; and
WHEREAS, the Company and the Partnership have entered that certain
Agreement and Plan of Merger, dated the date hereof, pursuant to which the
Class A Units and the Class C Units held by the General Partner and certain
of the Limited Partners were converted into shares of Common Stock and
Preferred Stock in the Company and the Class B Units held by certain of the
Limited Partners were converted into shares of Common Stock in the Company,
in each case as set forth on Exhibit B hereto; and
WHEREAS, AEC has entered into that certain Stock Purchase Agreement,
dated the date hereof, pursuant to which it has purchased from the Company
those shares of Common Stock set forth opposite its name on Exhibit B hereto
(the shares of Common Stock of the Company outstanding at any time being
referred to as the "Common Stock" at such time and the shares of Preferred
Stock of the Company outstanding at any time being referred to as the
"Preferred Stock" at such time; the shares of Common Stock and Preferred
Stock owned at any time by any of the Stockholders or any of their Permitted
Transferees (as hereinafter defined) being referred to as the "Shares" at
such time); and
WHEREAS, the parties to this Agreement consider it to be in their
individual and mutual best interests to provide for (i) certain restrictions
on transfer pertaining to the Shares
held by the Stockholders, (ii) take-along and bring-along rights relating to
the Shares held by the Stockholders, and (iii) certain other matters as
hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth below and other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto, intending to be legally bound agree as follows:
1. RESTRICTIONS ON TRANSFER OF SHARES.
1.01 Transfer of Shares. Except as otherwise permitted herein, no
Stockholder shall sell, assign, transfer, give (whether by inter vivos
transfer or, upon the death of such Stockholder by testamentary disposition or
pursuant to the laws of intestate succession), pledge, encumber or otherwise
dispose of all or any part of such Stockholder's Shares to any person, trust,
association, partnership, firm, corporation or other legal entity (a
"Transfer") without the consent of the Stockholders owning a majority of the
Common Stock owned by the Stockholders and their Permitted Transferees,
unless such Stockholder complies with the provisions of this Article 1. A
Stockholder may Transfer all of any part of his or its Shares to any
Permitted Transferee (as hereinafter defined); provided, that prior to
effecting such a Transfer, the Permitted Transferee shall execute a
counterpart of this Agreement in accordance with Section 4.01 hereof, thereby
evidencing that the Shares held by such Permitted Transferee remain subject
to this Agreement and that such Permitted Transferee has become, for the
purposes of this Agreement, a Stockholder and is bound by the terms of this
Agreement. For the purposes of this Agreement, a "Permitted Transferee" of a
Stockholder shall mean (i) any person or entity that, directly or indirectly,
controls, is controlled by or is under common control with such Stockholder
(an "Affiliate") so long as such person or entity remains an Affiliate, or
(ii) in the case of a Stockholder who is an individual, (A) any spouse or
descendant of such Stockholder, or (B) an estate or a trust, if all the
beneficial interest in the Shares held by such estate or trust is owned by
the Stockholder and/or one of the persons specified in clause (ii)(A). For
the purposes of the definition of "Affiliate," "control" shall mean
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of more than fifty percent (50%) of the voting securities, by
contract or otherwise.
1.02 Termination of Transfer Restrictions. The transfer restrictions
set forth in this Article 1 with respect to the Shares shall terminate upon
the earlier of (i) the termination of this Agreement pursuant to Section 6.02
hereof and (ii) the date of the initial public offering of the Company's
Common Stock.
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2. TAG-ALONG AND BRING-ALONG RIGHTS.
2.01 Exercise of "Tag-Along Right".
(a) Transfers by the Stockholders. If one or more of the
Stockholders (the "Transferring Shareholders" for purposes of this Section
2.01) desires to accept a bona fide offer from a third party (a "Proposed
Purchaser") to purchase from the Transferring Shareholders more than fifty
percent (50%) of the total outstanding Common Stock (the "Offered Shares"),
each of the other Stockholders (a "Remaining Stockholder") may elect (the
"Tag-Along Right") to sell to such Proposed Purchaser, on the same terms and
conditions as were offered to the Transferring Stockholders, a number of the
Shares then owned by each Remaining Stockholder equal to a percentage of the
Offered Shares, which percentage shall be equal to the result obtained by
dividing (i) the number of Shares of Common Stock owned by such Remaining
Stockholder by (ii) the total number of shares of Common Stock issued and
outstanding at the time of calculation. If any Remaining Stockholders
exercise their Tag-Along Right, the Transferring Stockholders shall be
entitled to sell that portion of the Transferring Stockholders' Shares of
Common Stock equal to the difference between (a) the Offered Shares and (b)
the shares of Common Stock which the Remaining Stockholders elect to sell
pursuant to the exercise of their Tag-Along Right.
(b) Notification of Proposed Transfers. In the event of a
proposed Transfer pursuant to this Section 2.01, the Transferring
Stockholders shall notify in writing all Remaining Stockholders of the
proposed Transfer. Such notice shall set forth: (i) the name of the Proposed
Purchaser and the number of shares of Common Stock that are to be
transferred, (ii) the proposed amount and form of consideration and terms and
conditions of payment offered by such proposed transferee, and (iii) that the
Proposed Purchaser has been informed of the Tag-Along Right provided for in
this Section 2.01 and has agreed to purchase Shares in accordance with the
terms hereof. The Transferring Stockholders shall include with the notice all
documents proposed to be executed by the Remaining Stockholders in connection
with the proposed Transfer, and shall, to the extent such documents are
modified prior to such Transfer, promptly transmit such proposed modification
to each Remaining Stockholder who has provided a written notice to the
Company (the "Tag-Along Notice"). The Tag-Along Right may be exercised by any
Remaining Stockholder by delivery of the Tag-Along Notice within 30 days
following receipt of the notice specified in the immediately preceding
sentence. The Tag-Along Notice shall state the number and class of the
Stockholder's Shares that the Remaining Stockholder wishes to include in such
transfer to the proposed transferee. In the event that the Proposed Purchaser
does not purchase such shares on the same terms and conditions as those set
forth in the notice delivered by the Transferring Stockholders then the sale
by the Transferring Stockholders to the Proposed Purchaser shall be invalid.
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2.02 Exercise of "Bring-Along Right"
(a) Transfers by the Fund. If Stockholders owning more than
fifty percent (50%) of the Common Stock (the "Transferring Shareholders" for
purposes of this Section 2.02) propose to Transfer all of their Shares to a
proposed third party transferee in a bona fide, arms-length transaction,
then the Transferring Shareholders may, at their option, require (the
"Bring-Along Right") the other Stockholders to sell all of the Shares owned
by them (the "Designated Shares") to the proposed transferee for the same
consideration per share and otherwise on the same terms and conditions upon
which the Transferring Shareholders are selling their Shares.
(b) Notification of Proposed Transfer. The Transferring
Shareholders shall exercise their Bring-Along Right by sending written notice
of the exercise of the Bring-Along Right to each of the other Stockholders.
Such notice shall set forth: (i) the name and address of the proposed
transferee and the proposed amount and form of consideration per Share to be
paid by the proposed transferee and (ii) the terms and conditions of such
transaction. Such notice shall be accompanied by copies of all documents
required to be executed by the Stockholders in connection with such
transaction. Within 10 days following receipt of the notice, each of the
other Stockholders shall deliver to a representative of the Transferring
Shareholders, designated in the notice, certificates representing the
Designated Shares held by such Stockholder, duly endorsed, together with
fully executed copies of all other documents required to be executed in
connection with such transactions, including (if requested) customary legal
opinions from the counsel to such Stockholder. In the event that a
Stockholder should fail to deliver such certificates to the Transferring
Shareholders, the Company shall cause its books and records to show that such
Shares are bound by the provisions of this Section 2.02 and that such Shares
shall be transferred only to the third party purchaser upon surrender for
transfer by the holder thereof. If requested by the Transferring
Shareholders, each Stockholder also shall cause a representative that is duly
authorized to execute documents and to act on behalf of such Stockholder to
attend the closing of the transaction and to take such actions as are
reasonably requested by the Transferring Shareholders.
(c) Return of Designated Shares. If, within 120 days after the
Transferring Shareholders give such notice, the sale of the Designated Shares
by the Transferring Shareholders in accordance herewith has not been
completed, the Transferring Shareholders shall return to each Stockholder all
certificates representing the Designated Shares that such Stockholder
delivered for sale pursuant hereto.
(d) Payment for Designated Shares. Simultaneously with the
consummation of the sale of the Designated Shares by the Transferring
Shareholders and the other Stockholders pursuant to this Section 2.02, the
Transferring Shareholders shall remit to each of the Stockholders the total
sales price of the Designated Shares sold pursuant thereto (net of the other
Stockholders' pro rata share of any transaction expenses), and shall furnish
such
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other evidence of the completion and time of completion of such sale or other
disposition and the terms thereof as may be reasonably requested by such
Stockholders.
2.03 Certain Restrictions on Issuance of Capital Stock.
(a) Preemptive Rights. Except for issuances of Common
Stock (i) to employees of the Company or any subsidiary of the Company or
(ii) as consideration in connection with the acquisition of another company or
business to the seller or sellers thereof, if at any time after the date
hereof, the Company determines to issue additional Common Stock (including,
without limitation, options, warrants or securities convertible into Common
Stock) (collectively, "New Securities") to non-employee third parties, the
Company shall give written notice to AEC (i) stating the aggregate number of
such New Securities, the terms upon which such New Securities are to be
issued and the consideration (including any loans or other extensions of
credit made in connection therewith) to be paid therefor, (ii) stating the
date proposed for issuance of such New Securities (which date, the "Tender
Date", shall be not less than ten (10) business days after the date on which
such notice is given), and (iii) requesting that AEC indicate in writing
within seven (7) business days whether it will purchase a pro rata share of
such New Securities (based on its percentage ownership of aggregate Common
Stock outstanding immediately prior to such issuance of New Securities) on
the Tender Date. On or before the date which is seven (7) business days after
the date on which such notice was given, AEC shall respond to the Company in
writing indicating whether or not it wishes to purchase such pro rata share.
AEC shall purchase its New Securities on the same terms and for the same
price as specified in the notice, unless such terms have been modified with
respect to the third-party purchaser, in which event AEC shall purchase its
New Securities on the terms and for the price paid by such third-party
purchaser; provided, however, that if the modified terms are not acceptable
to AEC, AEC may revoke its election to purchase. Unless otherwise agreed, the
closing of such purchase shall occur on the Tender Date. Notwithstanding
anything herein to the contrary, the rights and obligations of the Company
and AEC under this Section 2.03(a) shall terminate upon the earlier of (i)
the fifth anniversary of the execution of this Agreement and (ii) the date of
the initial public offering of the Company's Common Stock registered under
the Securities Act (as defined below).
(b) Other Restrictions. Without the prior written
consent of the holders of ninety percent (90%) of the Common Stock of the
Corporation, the Corporation shall not be permitted to issue additional
shares of Common Stock to Xxxxx X. Xxxxx, III, Xxxxx X. Xxxxx or any of their
Affiliates.
3. ENFORCEABILITY.
3.01 Specific Performance. The parties hereto recognize and
hereby acknowledge that it is impossible to measure in money the damages
which would result to a party hereto by reason of a failure of any of the
parties hereto to perform any of the obligations imposed upon it or him under
this Agreement. Therefore, if any party hereto should institute an
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action or proceeding to enforce the provisions hereof, any person, including
the Company, against whom such action or proceeding is thereby brought hereby
waives the claim or defense that such party has an adequate remedy at law,
and such person shall not urge in any action or proceeding the claim or
defense that such a remedy at law exists.
3.02 Separate Agreement. The parties hereto recognize,
acknowledge and agree that this Agreement constitutes a separate agreement
independently supported by good and adequate consideration, the receipt and
sufficiency of which are hereby acknowledged, and that this Agreement shall
be interpreted, construed, and enforced separate and apart from any other
agreements between or among the parties hereto. The parties hereto further
agree that no claim or cause of action of any party hereto against any other
party hereto arising under any other agreement between or among the parties
hereto or out of any set of facts shall constitute a defense to the
enforcement of this Agreement.
3.03 Attempted Transfers in Contravention. Any attempted Transfer
in Contravention of this Agreement shall be void and of no effect and shall
not bind or be recognized by the Company. In the case of an attempted
Transfer not permitted hereby, the parties attempting to engage in such
Transfer shall indemnify and hold harmless (and hereby agree to indemnify and
hold harmless), the Company and the other Stockholders from all costs,
liabilities, and damages that any of such indemnified persons or entities may
incur (including, without limitation, incremental tax liability and
attorneys' fees and expenses) as a result of such attempted Transfer and
efforts to enforce the indemnity granted hereby.
4. ADDITIONAL PARTIES HERETO.
4.01 Transferees. Any transferee of a Stockholder who hereafter
becomes a holder of Shares shall and must become a party hereto by executing
a counterpart of this Agreement. Any such party executing this Agreement
shall thereafter be a party to this Agreement as fully and to the same extent
as if he or it had been an original signatory party hereof and shall be
deemed to be a Stockholder for the purposes hereof. Simultaneously with any
transfer, Exhibit B hereto will be amended and delivered to each Stockholder.
5. REGISTRATION RIGHTS.
5.01 Piggyback Registration. If at any time after the
consummation of the first underwritten public offering of its Common Stock
under the Securities Act of 1933, as amended (the "Securities Act"), the
Company proposes to register any of its Common Stock or other securities
under the Securities Act for sale to the public, whether for its own account
or for the account of other security holders or both (except with respect to
registration statements on Form S-8 or another form not available for
registering the Common Stock for sale to the public), each such time it will
give written notice to AEC of its intention so to do. Upon the written
request of
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AEC, given within 30 days after receipt of any such notice, to register any
of its Common Stock (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Common Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent requisite to permit
the sale or other disposition by AEC (in accordance with its written request)
of such Common Stock so registered. In the event that any registration
pursuant to this Section 5 shall be, in whole or in part, an underwritten
public offering of Common Stock, any request by AEC pursuant to this Section
5 to register Common Stock shall specify that either (i) such Common Stock
is to be included in the underwriting on the same terms and conditions as the
Common Stock otherwise being sold through underwriters under such
registration, or (ii) such Common Stock is to be sold in the open market
without any underwriting, on terms and conditions comparable to those
normally applicable to offerings of common stock in reasonably similar
circumstances. If and to the extent the managing underwriter shall be of the
reasonable opinion that the inclusion in any registration effected pursuant to
this Agreement of some or all of the Common Stock sought to be registered by
AEC would adversely affect the marketing of the securities to be sold by the
Company therein, the Common Stock AEC is permitted to include in the
registration will be reduced pro rata among AEC and each other stockholder of
the Company seeking to exercise registration rights similar to those granted
pursuant to this Section 5.01.
5.02 Registration Procedure and Expenses. If and whenever the
Company is required by the provisions of this Article 5 to use its best
efforts to effect the registration under the Securities Act of any of the
Common Stock held by AEC, the Company will, as promptly as practicable:
(a) prepare and file with the SEC a registration statement
with respect to such securities and use its best efforts to cause such
registration to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) Prior to the filing described in paragraph (a) above,
furnish to AEC copies of the registration statement and any amendments or
supplements thereto and any prospectus forming a part thereof, which
documents will be made available on a timely basis, for review by AEC's
counsel;
(c) notify AEC, promptly after the Company shall receive
notice thereof, of the time when the registration statement becomes effective
or when any amendment or supplement or any prospectus forming a part of the
registration statement has been filed;
(d) notify AEC promptly of any request by the SEC for the
amending or supplementing of the registration statement or prospectus or for
additional information;
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(e) (i) advise AEC after the Company shall receive notice
or otherwise obtain knowledge of the issuance of any order by the SEC
suspending the effectiveness of the registration statement or amendment
thereto or of the initiation or threatening of any proceeding for that
purpose and (ii) promptly use its reasonable efforts to prevent the issuance
of any order suspending the effectiveness of the registration statement or
amendment thereto or to obtain its withdrawal promptly if such an order
should be issued;
(f) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective for the period specified in paragraph (a) above and to comply with
the provisions of the Securities Act with respect to the disposition of all
AEC's Common Stock covered by such registration statement in accordance with
AEC's intended method of disposition set forth in such registration statement
for such period;
(g) furnish to AEC and to each underwriter such number of
copies of the registration statement and the prospectus included therein
(including each preliminary prospectus) and such other documents, as such
persons may reasonably request in order to facilitate the public sale or
other disposition of AEC's Common Stock covered by such registration statement;
(h) use its reasonable efforts to register or qualify
AEC's Common Stock covered by such registration statement under the
securities or blue sky laws of such jurisdictions as AEC, or, in the case of
an underwritten public offering, the managing underwriter, shall reasonably
request;
(i) immediately notify AEC under such registration
statement and each underwriter, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus contained in such
registration statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and, at the request of AEC, prepare
a supplement or amendment to the registration statement so that the
registration statement shall not, to the Company's knowledge, contain an
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading.
(j) make available for inspection by each seller, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such
seller or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with
such registration statement; and
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(k) cooperate and assist in any filings required to be made
with the National Association of Securities Dealers, Inc. (the "NASD") and
any performance of any due diligence investigation by any underwriter
(including any "qualified independent underwriter" as required to be
retained in accordance with the rules and regulations of the NASD).
In connection with each registration hereunder, AEC will furnish to the
Company in writing such information with respect to itself and the proposed
distribution by it as shall be reasonably necessary in order to assure
compliance with federal and applicable state securities laws. Compliance with
the obligation to furnish such information shall be a condition to the rights
afforded a AEC under this Article 5.
5.03 Expenses. All expenses incurred by the Company in complying with
this Article 5, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and disbursements of counsel in
connection with registration under state securities laws, fees of the NASD or
any stock exchange, transfer taxes, fees of transfer agents and registrars
and costs of insurance (if any), but excluding any Selling Expenses (as
defined below), are herein called "Registration Expenses." All underwriting
discounts and selling commissions applicable to the sale of AEC's Common
Stock are herein called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to this Article 5. All Selling Expenses
in connection with any registration statement filed pursuant to Section 5.01
hereof shall be borne by AEC in proportion to the number of shares sold by
AEC.
5.04 Indemnification.
(a) In the event of a registration of any of the Common Stock
of AEC under the Securities Act pursuant to Section 5.01 hereof, the Company
will indemnify and hold harmless AEC and its directors, officers, general
partners and agents, and each underwriter of such stock thereunder and its
agents, and each other person, if any, who controls AEC or underwriter within
the meaning of the Securities Act, against any losses, claims, damages, or
liabilities, joint or several, to which AEC or such underwriter or director,
officer, general partner or agent or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any effective registration statement under which such
Common Stock was registered under the Securities Act pursuant to Section
5.01, any final prospectus contained therein, or any post-effective amendment
or supplement thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therin not misleading, and will
reimburse AEC, each such underwriter, each such director, officer, general
partner or agent and each such controlling person for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such
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loss, claim, damage, liability or action; provided, however, that the Company
will not be liable in any such case if and to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by AEC, such underwriter, such
director, officer, general partner or agent or such controlling person in
writing specifically for use in such registration statement or prospectus.
(b) In the event of a registration of any of Common Stock of
AEC under the Securities Act pursuant to Section 5.01 hereof, AEC will
indemnify and hold harmless the Company, its agents and each person, if any,
who controls the Company within the meaning of the Securities Act, each
officer of the Company who signs the registration statement, each director of
the Company, each underwriter and each person who controls any underwriter
within the meaning of the Securities Act, against all losses, claims, damages
or liabilities, joint or several, to which the Company or such agent or
officer or director or underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in any effective registration statement under which such
Common Stock was registered under the Securities Act pursuant to Section
5.01, any final prospectus contained therein, or any post-effective amendment
or supplement thereof, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse the Company and each such officer, director, underwriter and
controlling person for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that AEC will be liable
hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with information pertaining to AEC, as such, furnished
in writing to the Company by AEC specifically for use in such registration
statement or prospectus; provided, further, however, that the liability of
AEC hereunder shall be limited to the proceeds received by NCI from the sale
of Common Stock covered by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against the indemnifying party
hereunder, notify the indemnifying party in writing thereof, but the omission
so to notify the indemnifying party shall not relieve it from any liability
which it may have to any indemnified party other than under this Section
5.04. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the
indemnifying party to such indemnified party of its election so to assume and
undertake the defense thereof, the indemnifying party shall not be liable to
such indemnified party under this Section 5.04 for any legal expenses
subsequently
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incurred by such indemnified party in connection with the defenses thereof
other than reasonable costs of investigation and of liaison with counsel so
selected; provided, however, that, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be
reasonable defenses available to it which are different from or additional to
those available to the indemnifying party or if the interests of the
indemnified party reasonably may be deemed to conflict with the interests of
the indemnifying party, the indemnified party shall have the right to select a
separate counsel and to assume such legal defenses and otherwise to
participate in the defense of such action, with the expenses and fees of such
separate counsel and other expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
5.05 Limitations on Registration Rights of Others. The Company
covenants and agrees that, from and after the date hereof, the Company will
not, without the prior written consent of AEC, enter into any agreement with
any equity holder of the Company to grant to such equity holder registration
rights more favorable to such equity holder than those granted hereunder to
AEC.
6. MISCELLANEOUS.
6.01 Legend on Stock Certificates. Each certificate representing
Shares subject to this Agreement shall bear on its face in conspicuous type
the following legend:
The shares of stock represented by this certificate (and
all transfers thereof) are subject to the terms of a
Stockholders Agreement, dated August , 1997 (and all
amendments thereto), by and among certain Stockholders of
the Company and the Company, a copy of which is on file
at the main office of the Company. Any sale, assignment,
transfer, gift, pledge, encumbrance or other disposition
of the shares evidenced by this certificate not in
conformity with said Agreement shall be invalid.
In the event such legend cannot practically be placed on the face of such
certificate, such legend shall be set out in conspicuous type on the back of
the certificate, and notice thereof shall be given in conspicuous type on the
front.
6.02 Termination. Unless earlier terminated by the written
agreement of the parties hereto, including all of the Stockholders and their
transferees who may hereafter become party hereto, this Agreement shall
terminate upon the sale of all or substantially all of the assets of the
Company or the acquisition of a single person of all of the outstanding
capital stock of the Company.
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6.03 Entire Agreement: Binding Effect: Governing Law. This
Agreement constitutes the entire agreement of the parties with respect to the
subject matter hereof and,except as provided in Section 4.01 hereof, may not
be modified or amended except in a writing executed by all the parties
hereto. Except as otherwise provided herein, all covenants and agreements
contained in this Agreement by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the permitted transferees, successors
and assigns of the parties hereto whether expressed or not. This Agreement
shall be governed by and construed in accordance with the laws of the State
of Georgia (without regard to the conflict of laws principles thereof).
6.04 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.05 Headings. Section headings are for purposes of convenience
and reference only and do not form a part of, nor are they to be referred to
in the interpretation or construction of this Agreement.
6.06 Notices. All notices, requests, consents and other
communications to be given under or by reason of this Agreement shall be in
writing and shall be delivered personally, by facsimile, by overnight courier
service or mailed by certified or first class registered mail, postage
prepaid, in any case addressed as follows:
If to the Company, at
CompuCredit Corporation
Xxx Xxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
if to any Stockholder, to such Stockholder at the address or facsimile number
set forth for such Stockholder on Exhibit B hereto, or, in any such case, at
such other address or addresses as shall have been furnished in writing by
such party to the others. Any such notice, payment, demand, or communication
shall be deemed to be delivered, given, and received for all purposes hereof
(x) on the date of receipt if delivered personally or by courier, (y) five
days after posting if transmitted by mail, or (z) the date of transmission if
by telecopy, provided that the party to whom the telecopy was sent
acknowledges that such telecopy was received by such party in legible form,
or that such party responds to the telecopy without indicating that any part
of it was received in illegible form, whichever shall first occur.
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
BRAVO TRUST ONE, U/A
By: /s/Xxxxx X. Xxxxx, III
-----------------------------------
Xxxxx X. Xxxxx, III
Trustee
BRAVO TRUST TWO, U/A
By: /s/Xxxxx X. Xxxxx
-----------------------------------
Xxxxx X. Xxxxx
Trustee
/s/Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
/s/Xxxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxxx
/s/Xxxxxxx X. House
--------------------------------------
Xxxxxxx X. House
/s/Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
COMPUCREDIT CORPORATION
By: /s/Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer
13
COMPUCREDIT MANAGEMENT CORP.
By: /s/Xxxxx X. Xxxxxx
-----------------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer
ATLANTIC EQUITY CORPORATION
By: /s/Xxxxxx X. Xxxxxx, Xx.
-----------------------------------
Xxxxxx X. Xxxxxx, Xx.
Executive Vice President
14
EXHIBIT A
Series A Series B Series C
Partner Units Units Units
------- ---------- ---------- ----------
Bravo Trust One 41.5210
Bravo Trust Two 41.5210
Xxxxx X. Xxxxxx 2.9580 1.7755
Xxxxxxx X. Xxxxxxx 9.8639
Xxxxxxx X. House 2.0182
Xxxxxx X. Xxxxxxx 0.2523
CompuCredit Management Corp. 1.0000
15
EXHIBIT B
Common Preferred
Stockholder Stock Stock
----------- ---------- ---------
Bravo Trust One 411,466 95,451
Bravo Trust Two 411,466 95,451
Xxxxx X. Xxxxx, III 411,466
Xxxxx X. Xxxxx 411,466
Xxxxx X. Xxxxxx 93,816 6,800
Xxxxxxx X. Xxxxxxx 195,500
Xxxxxxx X. House 40,000
Xxxxxx X. Xxxxxxx 5,000
CompuCredit Management Corp. 19,820 2,298
Atlantic Equity Corporation 61,855
---------- ---------
2,061,855 200,000
COUNTERPART TO STOCKHOLDERS AGREEMENT
In consideration of the transfer of the 411,466 shares to me, Xxxxx X.
Xxxxx, III, from Bravo Trust One and in accordance with Section 4.01 of that
certain Stockholders Agreement, dated August 29, 1997, by and among
CompuCredit Corporation and its stockholders (the "Stockholders Agreement"),
I hereby become a party to the Stockholders Agreement and acknowledge that I
am bound by its terms and conditions to the same extent as if I had been
an original signatory party thereto.
Date: September 19, 1997
------------------
In Presence of: /s/ Xxxxx X. Xxxxx, III
------------------------
Xxxxx X. Xxxxx, III
/s/ Xxxxx X. Xxxxxx
-------------------------
COUNTERPART TO STOCKHOLDERS AGREEMENT
In consideration of the transfer of the 411,466 shares to me, Xxxxx X.
Xxxxx, from Bravo Trust Two and in accordance with Section 4.01 of that
certain Stockholders Agreement, dated August 29, 1997, by and among
CompuCredit Corporation and its stockholders (the "Stockholders Agreement"),
I hereby become a party to the Stockholders Agreement and acknowledge that I
am bound by its terms and conditions to the same extent as if I had been
an original signatory party thereto.
Date: September 19, 1997
------------------
In Presence of: /s/ Xxxxx X. Xxxxx
-------------------
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------
STOCK POWER
Xxxxx X. Xxxxx, III, as Trustee of Bravo Trust One under agreement
with Vail X. Xxxxx dated October 15, 1993, does hereby distribute, assign and
transfer unto Xxxxx X. Xxxxx, III, in his individual capacity, 411,466 shares
of the Common Stock of CompuCredit Corporation, a Georgia corporation (the
"Company"), standing in the name of said Trust on the books of said Company
represented by Certificate No. 2 herewith and does hereby irrevocably
constitute and appoint_______________as attorney-in-fact to transfer the said
stock on the books of the within named Company with full power of
substitution in the premises.
Date: September 19, 1997 BRAVO TRUST ONE
------------------
In Presence of: By: /s/ Xxxxx X. Xxxxx, III
---------------------------
Xxxxx X. Xxxxx, III
/s/ Xxxxx X. Xxxxxx
------------------------- Trustee
STOCK POWER
Xxxxx X. Xxxxx, as Trustee of Bravo Trust Two under agreement with Vail
X. Xxxxx dated October 15, 1993, does hereby distribute, assign and transfer
unto Xxxxx X. Xxxxx, in his individual capacity, 411,466 shares of the Common
Stock of CompuCredit Corporation, a Georgia corporation (the "Company"),
standing in the name of said Trust on the books of said Company represented
by Certificate No. 3 herewith and does hereby irrevocably constitute and
appoint ______________________________ as attorney-in-fact to transfer the
said stock on the books of the within named Company with full power of
substitution in the premises.
Date: September 19, 1997 BRAVO TRUST TWO
---------------------------------
In Presence of: By: /s/ Xxxxx X. Xxxxx
---------------------------
Xxxxx X. Xxxxx
Trustee
/s/ Xxxxx X. Xxxxxx
---------------------------------------
