STOCKHOLDERS AGREEMENT
THIS
STOCKHOLDERS AGREEMENT (the “Agreement”) is made
as of October 16, 2009, by and among American Capital Acquisition
Corporation, a Delaware corporation (the “Company”), those
Persons listed on Schedule A hereto
(“Investors”)
and those Persons who, after the date of this Agreement, become party to this
Agreement as an “Investor” and/or a “Stockholder” by executing a joinder
agreement with the Company (a “Joinder Agreement”)
in the form set forth in Schedule B
hereto. Capitalized terms used but not otherwise defined herein are
defined in Section
10 hereof.
WHEREAS,
the Company and the Investors are entering into this Agreement for the purposes,
among others, of (i) initiating the Company’s creation, (ii) assuring continuity
of the management and ownership of the Company, (iii) limiting the manner and
terms under which Company Securities may be transferred, (iv) establishing
the composition of the Board and setting forth certain agreements regarding the
management of the Company and its Subsidiaries;
WHEREAS,
the Investors have agreed to purchase certain Company Securities pursuant to
that certain Stock Purchase Agreement dated as of the date hereof by and among
the Company and the Investors (as amended from time to time, the “Purchase Agreement”);
and
WHEREAS,
entering into this Agreement is a condition to the Investors’ purchase of such
Company Securities pursuant to the Purchase Agreement.
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, intending to be legally bound,
hereby agree as follows:
Section
1. Restrictions on Transfer of
Company Securities.
(a) In
General. No Stockholder shall sell, transfer, assign, pledge
or otherwise dispose of (whether with or without consideration and whether
voluntarily or involuntarily or by operation of law) any direct or indirect
interest in (a “Transfer”) such
Stockholder’s Company Securities, except with the unanimous prior written
consent of the other Investors; provided that such restriction shall expire with
respect to the Investors only after the third anniversary of the closing under
the Acquisition Agreement (as defined in the Purchase
Agreement). Furthermore, until the termination of the restrictions
set forth in this Section 1 pursuant to Section 1(d), all
Transfers of Company Securities shall be subject to Section 1(b) except
(i) pursuant to or as permitted by Sections 1(c) and
7(b), (ii) the
sale of Company Securities by a Tag-Along Investor pursuant to Section 1(b), (iii)
in a registered public offering in accordance with the Registration Rights
Agreement, and (iv) transfers following an IPO; provided in each case that all
other applicable requirements of this Agreement are otherwise
satisfied.
(b)
Tag-Along; Right of
First Refusal. Subject to the Transfer being permitted by
Section 1(a),
if one or more Stockholders desires to Transfer (the Stockholder(s) proposing
the Transfer being referred to in this Section 1(b) as the
“Transferring
Stockholders”) all or a portion of its Company Securities (other than
Transfers by Stockholders that are not subject to this Section 1(b) pursuant
to the second sentence of Section 1(a)), the
Transferring Stockholders shall first comply with the following terms and
conditions:
(i) The
Transferring Stockholders shall first deliver to each Investor a written notice
(the “Notice of
Proposed Transfer”) specifying the name and address of the proposed
transferee (and all known Affiliates and Associates and direct and indirect
financing sources of such transferee) of the Company Securities (hereinafter
sometimes referred to as the “Proposed Purchaser”),
the type and total number of such Company Securities that the Transferring
Stockholders then desire to Transfer to such Proposed Purchaser (the “Offered Securities”),
all of the terms, including the purchase price and the means of payment, upon
which the Transferring Stockholders propose to transfer the Offered Securities
to the Proposed Purchaser and such other information as any Investor reasonably
requests, and stating that each other Investor (collectively referred to in this
Section 1(b) as
the “Offerees”
and each as an “Offeree”) shall have
the right to participate in such Transfer or purchase the Aggregate Offered
Securities, as defined in clause (iii) below, at the price and in accordance
with the other terms and provisions specified in such Notice of Proposed
Transfer.
(ii) Each
Offeree may, within 20 days following receipt of the Notice of Proposed
Transfer, indicate its election to participate in such Transfer by giving to the
Company and the Transferring Stockholders a written notice (a “Tag-Along Notice”)
indicating the number of Company Securities held by it that it desires to sell
in such Transfer. An Offeree that elects to participate in a Transfer
pursuant to this section 1(b)(ii) is a “Tag-Along Investor.”
(iii) If
any Offeree has elected to participate in such Transfer as a Tag-Along Investor,
such election shall be irrevocable. As a condition to the
Transferring Stockholders’ right to sell the Company Securities of a given class
proposed to be Transferred, the Transferring Stockholders must, arrange for the
Transfer of Company Securities of the same class held by each Tag-Along
Investor, at the same price and on the same terms and conditions as stated in
the Notice of Proposed Transfer with respect to such Company Securities, in an
amount equal to the lesser of (x) the number of Company Securities of such class
that such Tag-Along Investor desires to Transfer, as indicated in its Tag-Along
Notice, or (y) the Tag-Along Investor’s Pro Rata Share of Company Securities of
such class. For purposes hereof, a Person’s “Pro Rata Share” of
Company Securities of a given class means a number of Company Securities equal
to (A) the quotient determined by dividing (1) the number of Company Securities
of such class held by such Person by (2) the aggregate number of Company
Securities of such class owned by the Stockholders participating in such sale
(including the Transferring Stockholders), multiplied by (B) the aggregate
number of Company Securities of such class to be sold in the contemplated
Transfer. At the end of the 20 day period specified in clause (ii)
above, the Transferring Stockholders shall provide written notice (the “Offered Securities
Notice”) to each of the Offerees and the Company, setting forth the
aggregate number of shares to be sold by the Transferring Stockholders and the
Tag-Along Investors (the “Aggregate Offered
Securities”).
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(iv) Those
Offerees not participating as Tag-Along Investors shall have the option, for a
twenty (20) consecutive day period commencing on the date the Offerees receive
the Offered Securities Notice, to purchase all or any portion of the Aggregate
Offered Securities at the same price and on the same terms specified in the
Notice of Proposed Transfer (subject to the provisions of Section 1(b)(ix)
below). The Offerees participating in the purchase of the Aggregate
Offered Securities (“Participating
Offerees”) must give written notice of their election to the Transferring
Stockholders, the Company and the Tag-Along Investors during such 20-day
period.
(v) Each
Participating Offeree shall have the right (but not the obligation) to purchase
up to that number of the Aggregate Offered Securities as shall be equal to the
number of Aggregate Offered Securities multiplied by a fraction, the numerator
of which shall be the number of Company Securities of such class then owned by such
Participating Offeree and the denominator of which shall be the aggregate number
of Company Securities of such class then owned by the Participating Offerees as
a group. The amount of such Aggregate Offered Securities that each
Participating Offeree is entitled to purchase under this Section 1(b) shall be
referred to as its “Pro Rata
Fraction.”
(vi) The
Participating Offerees shall have a right of oversubscription such that if any
Participating Offeree fails to elect to purchase its full Pro Rata Fraction of
the Aggregate Offered Securities, the remaining Participating Offerees shall
have the right to purchase up to the balance of such remaining Aggregate Offered
Securities not so purchased. The Participating Offerees may exercise
such right of oversubscription by electing to purchase more than their Pro Rata
Fraction of the Aggregate Offered Securities, but such election must be made in
the initial election notice given pursuant to clause
(iv) above. If, as a result thereof, such oversubscriptions by
Participating Offerees exceed the total number of the Aggregate Offered
Securities, the amount of Company Securities available to each oversubscribing
Participating Offeree shall be reduced on a pro rata basis in accordance with
each Participating Offerees’ respective Pro Rata Fraction, or as they may
otherwise agree among themselves.
(vii) If
the Participating Offerees have not elected to purchase all of the Aggregate
Offered Securities, then the Transferring Stockholders and the Tag-Along
Investors shall have the right, until the expiration of ninety (90) consecutive
days commencing on the first day immediately following the expiration of the
twenty (20) day period specified in Section 1(b)(iv)
above to Transfer that portion of the Aggregate Offered Securities not purchased
by the Participating Offerees to the Proposed Purchaser at the same price and on
the same terms specified in the Notice of Proposed Transfer. If for
any reason the Aggregate Offered Securities are not Transferred to the Proposed
Purchaser within such period and at such stated price and on such stated terms,
the right to Transfer in accordance with the Notice of Proposed Transfer shall
expire and the provisions of this Agreement shall continue to be applicable to
the Aggregate Offered Securities but the Transferring Stockholder shall have the
right, at any time thereafter, to deliver a new Notice of Proposed Transfer
complying with this Section
1(b).
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(viii) The
purchase price of the Aggregate Offered Securities shall be paid in the form
specified in such Notice of Proposed Transfer, provided, however, that if a
portion of the consideration to be paid includes non-cash consideration (other
than a promissory note providing for fixed payments of principal and interest on
fixed dates), the Participating Offerees shall be entitled to pay such portion
in cash in an amount equal to the fair market value of such non-cash
consideration. The fair market value of such non-cash consideration
shall be that which is agreed to by the holders of a majority of the Aggregate
Offered Securities and the holders of a majority of the Company Securities held
by the Participating Offerees (the “Majority Participating
Offerees”). If the holders of a majority of the Aggregate
Offered Securities and the Majority Participating Offerees (the “Interested Parties”)
fail to agree on the fair market value within the time period specified for
closing in Section 1(b)(ix)
below, then each Interested Party shall deliver to the other Interested Parties
its estimate of the fair market value in writing and they shall attempt to agree
upon an appraiser having appropriate experience to determine the fair market
value (the Person or Persons engaged to determine the fair market value
hereunder being referred to as an “Appraiser”). If,
within the ten (10) day period after the expiration of the time period specified
for closing in Section 1(b)(ix)
below, the Interested Parties agree upon an Appraiser to determine the fair
market value, then such Appraiser shall make such determination within thirty
(30) days of the date of such person’s engagement, and such determination shall
govern. If the Interested Parties do not, within such 10 day period,
agree as to a single Appraiser, or if the Appraiser appointed as provided above
fails to determine such fair market value within thirty (30) days of the date of
such person’s engagement, then each of the Interested Parties, by notice to the
other, shall appoint one Appraiser. If one of the Interested Parties
shall fail to appoint such an Appraiser within 10 days after the lapse of such
10 or 30 day period, as applicable, then the Appraiser appointed by the party
that does so appoint an Appraiser shall make the determination of such fair
market value and such determination shall govern. If two or more
Appraisers are appointed pursuant to the fifth sentence of this Section 1(b)(viii)
and they agree upon such fair market value, their joint determination shall
govern. If said Appraisers cannot reach an agreement within 30 days
after the appointment of the last Appraiser to be appointed, the Appraisers
selected shall each make an appraisal as to the fair market value and shall
promptly select a third Appraiser who shall make an appraisal as to the fair
market value within fifteen (15) days of the date of such person’s
appointment. In the event three or more Appraisers are appointed as
aforesaid, the fair market value shall be deemed to be an amount derived by
averaging the two appraised values that are closest to one
another. All decisions of the Appraiser(s) shall be rendered in
writing and shall be signed by the Appraiser(s). The fair market
value determined as herein provided shall be conclusive, final and binding on
the parties and shall be enforceable in any court having jurisdiction over a
proceeding brought to seek such enforcement. The cost of the fair
market value determinations shall be borne by the Interested Party whose
estimate of the fair market value was furthest from the fair market value
determined by the Appraiser(s).
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(ix) The
Participating Offerees purchasing the greatest percentage of the Aggregate
Offered Securities shall set the place, time and date for the closing of the
purchase of the Offered Securities, which closing shall not be later than the
later of (i) more than 20 days after the first day immediately following the
expiration of the 20-day period specified in Section 1(b)(iv) or
(ii) the second business day after the expiration or termination of all waiting
periods under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the “Xxxx-Xxxxx-Xxxxxx
Act”) applicable (if any) to such Transfer and after all required
consents of Regulatory Authorities have been obtained. At the
closing, the Participating Offerees and/or the Company, as appropriate, shall
deliver the consideration required by clause (viii) above, and the Transferring
Stockholders and Tag-Along Investors shall deliver an assignment of the
Aggregate Offered Securities and other instruments reasonably satisfactory to
the Participating Offerees, as appropriate, and their respective
counsel.
(c) Permitted Transfers. The
restrictions contained in Section 1(a) and
(b) shall not
apply with respect to any Transfer of Company Securities (i) pursuant to a
Public Sale, (ii) in the case of an Investor, to its Affiliates, Associates, or
beneficial owners (collectively, “Permitted
Transferees”); provided that the
restrictions contained in this Section 1 shall
continue to be applicable to such Company Securities after any such Transfer;
and provided
further that the applicable requirements specified in Sections 2 and 3 in connection with
such Transfer shall have been satisfied. Notwithstanding the
foregoing, no party hereto shall avoid the provisions of this Agreement by
making one or more Transfers to one or more Permitted Transferees and then
disposing of all or any portion of such party’s interest in any such Permitted
Transferee.
(d) Termination of
Restrictions. The restrictions on Transfer set forth in this
Section 1
shall terminate upon the earlier of the consummation of (i) a Sale of the
Company or (ii) a Qualified Public Offering.
Section
2. Additional Restrictions on
Transfer.
(a) Restricted Securities
Legend. The Company Securities have not been registered under
the Securities Act and, therefore, in addition to the other restrictions on
Transfer contained in this Agreement, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration is
then available. To the extent such Company Securities have been
certificated, each certificate evidencing Company Securities and each
certificate issued in exchange for or upon the Transfer of any Company
Securities (if such securities remain Company Securities as defined herein after
such Transfer) shall be stamped or otherwise imprinted with legends in
substantially the following form:
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD OR TRANSFERRED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED.
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THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER SPECIFIED IN A STOCKHOLDERS’ AGREEMENT DATED AS OF OCTOBER __, 2009, AS
SUCH AGREEMENT MAY BE AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN
OF ITS STOCKHOLDERS, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE TRANSFER
OF SUCH SECURITIES UNTIL SUCH CONDITIONS HAVE BEEN FULFILLED WITH RESPECT TO
SUCH TRANSFER. A COPY OF SUCH CONDITIONS SHALL BE FURNISHED BY THE
COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST AND WITHOUT
CHARGE.
The
Company shall imprint such legends on certificates (if any) evidencing Company
Securities. The legends set forth above shall be removed, in whole or
in part, from the certificates evidencing any Company Securities to the extent
the restrictions referred to therein are no longer applicable (for example, for
Permitted Transferees of Investors receiving pursuant to a distribution-in-kind,
once Rule 144 of the Securities Act is available for sales by the
applicable recipients).
(b) Opinion of
Counsel. No holder of Company Securities may Transfer any
Company Securities (other than pursuant to a Public Sale or pursuant to a
distribution-in-kind to Permitted Transferees of an Investor, once Transfers
pursuant to Rule 144(k) of the Securities Act become available to such
recipients, or any subsequent Public Sale by such Permitted Transferees) without
first delivering to the Company (unless waived by the Board with Unanimous Board
Approval) an opinion of counsel (reasonably acceptable in form and substance to
the Board) that neither registration nor qualification under the Securities Act
or any applicable state securities laws is required in connection with such
Transfer.
Section
3. Transfer. Prior
to Transferring any Company Securities (other than pursuant to a Public Sale or
pursuant to a distribution-in-kind to Permitted Transferees of an Investor, once
Transfers pursuant to Rule 144(k) of the Securities Act become available to such
recipients and the Company is a registrant under the Securities Exchange Act of
1934, as amended, or any subsequent Public Sale by such Permitted Transferees),
the Transferring holder of Company Securities shall cause the prospective
Transferee to be bound by this Agreement and the Registration Rights
Agreement. Any Transfer or attempted Transfer of any Company
Securities in violation of any provisions of this Agreement shall be void, and
the Company shall not record such Transfer on its books or treat any purported
Transferee of such Company Securities as the owner of such securities for any
purpose.
Section
4. Board
Composition.
(a) From
and after the date hereof, and until the provisions of this Section 4 cease
to be effective, each Stockholder shall vote all of its Company Securities 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 its
control (whether in its capacity as a Stockholder, stockholder, director, member
of a board committee or officer of the Company or otherwise, and including,
without limitation, 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:
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(i) the
authorized number of directors (each, a “Director”) on the
Board shall be established at three (3);
(ii) the
following individuals shall be elected to the Board:
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(A)
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two
(2) individuals designated by The Xxxxxxx Xxxxxxxxx 2005 Grantor Retained
Annuity Trust (“MKG”),
initially Xxxxxxx Xxxxxxxxx and Xxxxx Xxxxxxxxx (the “MKG
Directors”); and
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(B)
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one
(1) individual designated by AmTrust Financial Services, Inc. (“AFSI”) and
approved by the independent members of the Board of Directors of AFSI,
initially Xxxxxx XxXxxxx (the “AFSI
Director”);
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(iii) any
committees of the Board shall be created only upon Unanimous Board Approval and
shall include the AFSI Director;
(iv) the
removal from the Board or any committee thereof (with or without cause) of any
representative designated hereunder shall be, except as otherwise provided in
Section 4(d),
only at the written instruction of the Investor(s) entitled to designate such
representative; and
(v) in
the event that any representative designated hereunder ceases to serve as a
member of the Board during his term of office, the resulting vacancy on the
Board, and on each committee thereof, shall be filled within ninety-days of the
date on which the vacancy began by a representative designated by the Investor
originally entitled to designate such representative as provided
hereunder.
(b) The
quorum for meetings of the Board shall be two (2) directors, provided, however,
that the AFSI Director must be in attendance at all such meetings. No
meeting of the Board shall continue with the transaction of business in the
absence of a quorum.
(c) The
Company shall pay the reasonable out-of-pocket expenses incurred by the
Directors in connection with attending (i) the meetings of the Board and any
committee thereof and (ii) any other meetings at the request of any Company or
any of its Subsidiaries. The Company shall convene at least four (4)
Board meetings in a given calendar year. So long as any director
serves on the Board and for six years thereafter, the Company shall maintain
directors and officers indemnity insurance coverage satisfactory to each of the
Specified Investors, and the constituent documents of the Company and each of
its Subsidiaries, as appropriate, shall provide for indemnification and
exculpation of directors to the fullest extent permitted under applicable
law.
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(d) If
an Investor fails to designate a representative to fill a directorship vacancy
within the time required by Section 4(a)(v), the
Majority Investors may designate a Director to fill such Board position;
provided that the Company and the Stockholders shall take all necessary actions
to remove such individual if the party or parties which initially failed to
designate such director designates a Director in accordance with the terms of
this Section 4.
(e) The
provisions of this Section 4 shall
terminate upon the earlier to occur of the consummation of a Qualified Public
Offering or a Sale of the Company. Notwithstanding anything to the
contrary set forth in this Agreement (including Section 15), the
right to designate a director is not transferable.
(f) Except
as otherwise provided in Section 4(e), the
provisions of Section
4(a) shall not be amended in a manner to adversely affect an Investor’s
right to designate a Board member.
Section
5. Authority of the Company and
the Board.
(a) Notwithstanding
anything to the contrary contained in the constituent documents of the Company
or any of its Subsidiaries, the Company shall not, and the holders of Company
Securities shall vote their Company Securities and any other voting securities
of the Company over which such holders have voting control and take all other
reasonably necessary or desirable actions within their control so that the
Company shall not, and the Company shall cause its Subsidiaries not to, take any
of the following actions without Unanimous Board Approval:
(i) (a)
amend or materially deviate from the Company’s three (3)-year budget and
business plan that were agreed to by the Investors on the date hereof (such
budget and plan, as amended in accordance with its terms and this Agreement, and
any subsequent budgets and plans adopted by the Board and in effect from time to
time, the “Budget/Business
Plan”); or (b) make any capital expenditures (including, without
limitation, payments with respect to capitalized leases, as determined in
accordance with GAAP) except and to the extent, if any, provided in the
Budget/Business Plan;
(ii) issue
or sell any New Securities;
(iii) seek
capital contributions in addition to those required under the terms of the
Budget/Business Plan;
(iv) unless
provided for in the Budget/Business Plan or in the ordinary course of business,
borrow, guarantee, refinance or incur other indebtedness of the Company of more
than $5,000,000 in the aggregate or establish a line of credit in excess of
$5,000,000 in the aggregate ;
(v) unless
provided for in the Budget/Business Plan or in the ordinary course of business,
purchase or agree to purchase any asset, or make any investment, in each case
with a value of $1,000,000 or more, or commit to purchase in any one year assets
or make investments with an aggregate value of $1,000,000 or
more;
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(vi) unless
provided for in the Budget/Business Plan or in the ordinary course of business,
lease or sell or enter into any agreement for the lease or sale of substantially
all of the assets of the Company or its Subsidiaries, including any asset with a
value of $1,000,000 or more, or commit to lease or sell in any one
year assets with an aggregate value of $1,000,000 or more;
(vii) unless
provided for in the Budget/Business Plan, enter into, materially amend, override
or terminate any contract to which the Company or its Subsidiaries is a party
with a term greater than one (1) year, or a contract to which the Company or its
Subsidiaries is a party with a value (taking account of gross payments or
receipts over the life of the contact) of $1,000,000 or more;
(viii) enter
into, materially amend, override or terminate any agreement (including
employment agreements and compensation arrangements) between the Company or any
Subsidiary and any stockholder of the Company or an affiliate of a stockholder
of the Company, including but not limited to the AFSI Reinsurance Agreement (as
defined in Section
9(b)(i)), the AFSI Asset Management Agreement (as defined in Section 9(b)(ii))
and the AFSI IT Services Agreement (as defined in Section
9(b)(iii));
(ix) change
the strategic direction of the Company or its Subsidiaries from that
contemplated by the Budget/Business Plan or commence any new business other than
the Business;
(x) appoint
or remove the auditors of the Company or its Subsidiaries;
(xi) commit
to an IPO;
(xii) except
as required by law, approve any material tax election of the Company or its
Subsidiaries or substantial change in tax or accounting practices;
(xiii) appoint
or remove the chief executive officer, chief operating officer, or chief
financial officer of the Company or its Subsidiaries or make any amendment to
such officer’s compensation, incentive or other bonus plans;
(xiv) declare
or pay any dividends;
(xv) enter
into any arrangement to give any guarantee, mortgage, charge, lien or other
security over the assets of the Company or its Subsidiaries other than in the
ordinary course of business or as provided in the Budget/Business
Plan;
(xvi) commence
a voluntary liquidation,
dissolution or other winding up of the Company or file any petition in
bankruptcy;
(xvii) amend,
restate, modify, repeal or waive any provisions of the Company’s by-laws or the
Certificate of Incorporation;
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(xviii) effect
any reorganization, reclassification, reconstruction, consolidation or
subdivision of the capital of the Company or create any additional classes of
securities in the capital of the Company;
(xix) effect
a Sale of the Company;
(xx) allow
a holder of Company Securities to become a party to the Registration Rights
Agreement; or
(xx) agree
to any of the foregoing.
(b) The
provisions of this Section 5 shall
terminate upon the earlier to occur of the consummation of (i) a Qualified
Public Offering, or (ii) a Sale of the Company.
Section
6. Preemptive
Rights. The Company shall only issue New Securities in
accordance with the following terms and after compliance with Section 5(a)
hereof:
(a) The
Company shall not issue any New Securities unless it first delivers to each
Investor (each such Person being referred to in this Section 6 as a “Buyer”) a written
notice (the “Notice of
Proposed Issuance”) specifying the type and total number of such New
Securities that the Company then intends to issue (the “Offered New Shares”),
all of the terms, including the price upon which the Company proposes to issue
the Offered New Shares, and stating that the Buyers shall have the right to
purchase the Offered New Shares in the manner specified in this Section 6 for
the same price per share and in accordance with the same terms and conditions
specified in such Notice of Proposed Issuance.
(b) During
the ten (10) business day period commencing on the date the Company delivers to
all of the Buyers the Notice of Proposed Issuance (the “Offer Period”), the
Buyers shall have the option to purchase all or any portion of the Offered New
Shares at the same price per share and upon the same terms and conditions
specified in the Notice of Proposed Issuance. Each Buyer electing to
purchase Offered New Shares must give written notice of its election to the
Company prior to the expiration of the Offer Period.
(c) Each
Buyer shall have the right to purchase up to that number of the Offered New
Shares as shall be equal to the number of the Offered New Shares multiplied by a
fraction, the numerator of which shall be the number of Company Securities
(other than Incentive Common Stock) then owned by such Buyer and the denominator
of which shall be the aggregate number of outstanding Company Securities (other
than Incentive Common Stock). The amount of such Offered New Shares
that each Buyer is entitled to purchase under this Section 6(c) shall be
referred to as its “Proportionate
Share.”
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(d) Each
Buyer shall have a right of oversubscription such that if any other Buyer fails
to elect to purchase its full Proportionate Share of the Offered New Shares, the
other Buyer(s) shall, among them, have the right to purchase up to the balance
of such Offered New Shares not so purchased. The Buyers may exercise
such right of oversubscription by electing to purchase more than their
Proportionate Share of the Offered New Shares by so indicating in their written
notice given during the Offer Period. If, as a result thereof, such
oversubscription exceeds the total number of the Offered New Shares available in
respect to such oversubscription privilege, the oversubscribing Buyers shall be
cut back with respect to oversubscriptions on a pro rata basis in accordance
with their respective Proportionate Shares or as they may otherwise agree among
themselves.
(e) If
some or all of the Offered New Shares have not been purchased by the Buyers
pursuant to Sections
6(a)-(d) hereof, then the Company shall have the right, until the
expiration of ninety (90) days commencing on the first day immediately following
the expiration of the Offer Period, to issue such remaining Offered New Shares
to one or more third parties at not less than, and on terms no more favorable to
the purchasers thereof than the price and terms specified in the Notice of
Proposed Issuance. If for any reason the Offered New Shares are not
issued within such period and at such price and on such terms, the right to
issue in accordance with the Notice of Proposed Issuance shall
expire.
(f) The
Buyer purchasing the greatest percentage of the Offered New Shares shall set the
place, time and date for the consummation of the purchase of the Offered New
Shares (a “Closing”), which
closing shall occur not later than the later of (i) twenty (20) business days
after the first day immediately following the expiration of the Offer Period and
(ii) the second business day after the expiration or termination of all waiting
periods under the Xxxx-Xxxxx-Xxxxxx Act applicable (if at all) to such Transfer
and after all required consents of Regulatory Authorities (if any) have been
obtained. The purchase price for the Offered New Shares shall, unless
otherwise agreed to in writing by the parties to such transaction (including the
Company), be paid in immediately available funds on the date of the Closing. At
the Closing, the Buyers shall deliver the consideration required by this Section 6 and the
Company shall deliver certificates to the Buyers representing the Offered New
Shares.
(g) The
rights of the Investors under this Section 6 shall
terminate upon the earlier to occur of the consummation of (i) a Qualified
Public Offering or (ii) a Sale of the Company.
Section
7. Voting and Drag Along
Rights.
(a) Voting
Rights. In the event that a third party makes a bona fide
offer for a Sale of the Company, and such transaction has received Unanimous
Board Approval, each Stockholder shall take all necessary or desirable action
within such Person’s control (including, without limitation, the removal and
election of directors or managers, attendance at Stockholders’ or stockholders’
meetings in person or by proxy for the purposes of obtaining a quorum and the
execution of written consents in lieu of meetings) such that any proposal or
resolution requested by the Board in connection therewith shall be implemented
by the Company and if the Company’s Stockholders are entitled to vote on any
such matter, all of the voting securities of the Company over which such
Stockholder has voting control shall be voted in favor of the proposal or
resolution in connection with such sale being proposed by the
Board.
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(b) Drag Along
Rights. If there is a Sale of the Company as described in
Section 7(a)
above, and provided that, to the extent the sale is structured as a sale of
securities, the Stockholder is permitted to participate in such sale on terms
that are the same as those on which all other participating Stockholders
participate, such Stockholder will consent to and raise no objections against
the Board’s election to pursue such Sale of the Company. Furthermore,
to the extent such Sale of the Company is structured as a sale of securities,
such Stockholder shall sell the Company Securities held by it on the terms and
conditions approved by Unanimous Board Approval. Each Stockholder
will take all action necessary and desirable in connection with the consummation
of such Sale of the Company, including, without limitation, the waiver of all
appraisal rights available to any such Stockholder under applicable
law. Each Stockholder will bear its pro rata share of the cost of any
sale of equity securities pursuant to such Sale of the Company to the extent
such costs are incurred for the benefit of all Stockholders and are not
otherwise paid by the Company or the acquiring party. Costs incurred
by Stockholders on their own behalf will not be considered costs of the
transaction hereunder. Notwithstanding the foregoing, no Investor
shall be required to enter into any agreement or undertaking in connection with
a Sale of the Company limiting such Investor’s ability (or that of any of its
Affiliates or Associates) to compete with the Company or any of its Affiliates
or Associates or its (or its Affiliates’ or Associates’) ability to otherwise
engage in any commercial activity.
(c) The
provisions of this Section 7 shall terminate upon the earlier to occur of the
consummation of (i) a Qualified Public Offering, (ii) a Sale of the
Company.
Section
8. Other
Investments.
The
parties acknowledge that the Investors and their Affiliates and Associates are
in the business of making investments in, and have investments in, other
businesses similar to and that may compete with the businesses of the Company
and its Subsidiaries and Affiliates and Associates (“Competing
Businesses”) and reserve the right to make additional investments in
other Competing Businesses independent of their investments in the
Company. By virtue of a Investor holding shares of capital stock of
the Company or by having persons designated by or affiliated with such Investor
serving on the Board or otherwise, no Investor nor any Affiliate or Associate of
such Investor shall have any obligation to the Company, any Subsidiary or
Affiliate or Associates or any Stockholder to refrain from competing with the
Company and any Subsidiary or Affiliate or Associate, making investments in
Competing Businesses, or otherwise engaging in any commercial activity; and none
of the Company, any Subsidiary or Affiliate or Associate or any Stockholder
shall have any right with respect to any such other investments or activities
undertaken by such Investor or its Affiliates or Associates. Without
limitation of the foregoing, each Investor and its Affiliates or Associates may
engage in or possess an interest in other business ventures of any nature or
description, independently or with others, similar or dissimilar to the business
of the Company or any Subsidiary, and none of the Company, any Subsidiary or
Affiliate or Associate or any Stockholder (other than such Investor) shall have
any rights or expectancy by virtue of such Investor’s relationships with the
Company, this Agreement or otherwise in and to such independent ventures or the
income or profits derived therefrom; and the pursuit of any such venture, even
if such investment is in a Competing Business, shall not be deemed wrongful or
improper. No Investor nor any Affiliate or Associate of such Investor
shall be obligated to present any particular investment opportunity to the
Company or any Subsidiary or Affiliate and Associate even if such opportunity is
of a character that, if presented to the Company or a Subsidiary or Affiliate or
Associate, could be taken by the Company or such a Subsidiary or Affiliate or
Associate, and each Investor and its Affiliates and Associate shall continue to
have the right to take for their own account or to recommend to others any such
particular investment opportunity.
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Section
9. Company & Investor
Covenants.
(a) Right of First Refusal on
Commercial Automobile Insurance. In the event the Board, in
accordance with Section 5, proposes
to sell or reinsure all or a portion of its commercial automobile insurance
business (the “Commercial Auto
Business”) in response to a third party offer of otherwise (but for
clarity, other than in connection with a Sale of the Company), the Company shall
first comply with the following terms and conditions:
(i) The
Company shall first deliver to AFSI a written notice (the “Notice of Proposed
Transaction”) specifying the name and address of the proposed purchaser
or reinsurer of the Commercial Auto Business, all of the terms, including the
purchase price and the means of payment (if applicable), upon which the Company
proposes to sell or reinsure the Commercial Auto Business and such other
information as AFSI requests.
(ii) AFSI
may, within 30 days following receipt of the Notice of Proposed Transaction,
indicate its election to purchase or reinsure the Commercial Auto Business, as
applicable, by giving to the Company a written notice of such
election.
(iii) To
the extent AFSI elects to purchase the Commercial Auto Business, the purchase
price shall be paid in the form specified in such Notice of Proposed
Transaction, provided, however, that if a
portion of the consideration to be paid includes non-cash consideration (other
than a promissory note providing for fixed payments of principal and interest on
fixed dates), AFSI shall be entitled to pay such portion in cash in an amount
equal to the fair market value of such non-cash consideration. The
fair market value of such non-cash consideration shall be that which is agreed
to by AFSI and the Company. If AFSI and the Company fail to agree on
the fair market value within 10 days following the expiration of the 30-day
period specified in Section 9(a)(ii)
above, then such valuation shall be determined pursuant to the procedures set
forth in Section
1(b)(viii) hereof, mutatis
mutandis.
(iv) AFSI
shall set the place, time and date for the closing of the purchase of the
Commercial Auto Business, which closing or effective date shall not be later
than the time set forth in the Notice of Proposed Transfer or the effective date
of any reinsurance.
(b) AFSI
Covenants. The Company shall, and the holders of Company
Securities shall vote their Company Securities and any other voting securities
of the Company over which such holders have voting control and take all other
reasonably necessary or desirable actions within their control so that the
Company shall take the following actions:
(i) enter
into an agreement with AFSI pursuant to which AFSI or one of its affiliates will
reinsure 10% of the net premiums of the Company and its affiliates on terms no
less favorable than those generally available in the market for similar
transactions (the “AFSI Reinsurance
Agreement”);
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(ii) enter
into an agreement with AFSI pursuant to which AFSI will manage its assets for a
fee on terms no less favorable than those offered by AFSI to Maiden Holdings,
Ltd. (the “AFSI Asset
Management Agreement”);
(iii) enter
into an agreement with AFSI pursuant to which AFSI or one of its Affiliates will
provide the Company with information technology and services; such information
technology and services to be provided to the Company at one-hundred and twenty
percent (120%) of the cost to ASFI or its Affiliate, but provided that AFSI
shall be entitled to an additional fee of 1.25% of gross written premiums (net
of returns and cancellations) of the Company, at such time as information
technology currently being developed by AFSI is made available and implemented
by the Company (the “AFSI IT Services
Agreement”); and
(iv) provide
AFSI with access to its agency sales force to distribute AFSI’s products, and
the Company will use commercially reasonable efforts to have such agency sales
team appointed as AFSI agents.
(c) Protective
Provision. The Company shall not, nor shall the Company permit
any of its Subsidiaries to, amend the Certificate of Incorporation or the
by-laws of the Company so as to reduce the protections of Board members
contained in the exculpation and indemnification provisions thereof, or reduce
the scope or degree of such exculpation or indemnification, without Unanimous
Board Approval.
(d) Qualified Public
Offering. The Company shall, and the holders of Company
Securities shall vote their Company Securities and any other voting securities
of the Company over which such holders have voting control and take all other
reasonably necessary or desirable actions within their control, to cause the
Company to consider undertaking a Qualified Public Offering as soon as
commercially feasible. Rights and obligations relating to any
Qualified Public Offering are set forth in the Registration Rights
Agreement.
(e) Delivery of
Financial Statements. The Company
shall deliver to each Investor:
(i) as
soon as practicable, but in any event within forty-five (45) days after the end
of each fiscal year of the Company, (1) a balance sheet as of the end of such
year, (2) statements of income and of cash flows for such year, and a comparison
between (x) the actual amounts as of and for such fiscal year and (y) the
comparable amounts for the prior year and as included in the budget for such
year, with an explanation of any material differences between such amounts and a
schedule as to the sources and applications of funds for such year, and (3) a
statement of stockholders’ equity as of the end of such year, all such financial statements
audited and certified by the auditors of the Company;
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(ii) as soon as practicable, but in any event
within twenty-five (25) days after the end of each of the
first three (3) quarters of each fiscal year of the Company, unaudited
statements of income and of cash flows for such fiscal quarter, an unaudited
balance sheet and a statement of stockholders’ equity as of the end of such
fiscal quarter, all
prepared in accordance with GAAP (except that such financial statements may (i) be subject to normal year-end
audit adjustments and (ii) not contain all notes thereto that may be required in
accordance with GAAP);
(iii) as
soon as practicable, but in any event thirty (30) days before the end of each
fiscal year, a Budget/Business Plan for the next fiscal year, adopted with Unanimous Board Approval
and prepared on a monthly basis, including balance sheets, income
statements, and statements of cash flow for such months; and
(iv) with
respect to the financial statements called for in Section 9(e)(i)
and Section 9(e)(ii),
an instrument executed by the chief financial officer and chief executive
officer of the Company certifying that such financial statements were prepared
in accordance with GAAP consistently applied with prior practice for earlier
periods (except as otherwise set forth in Section 9(e)(ii)) and
fairly present the financial condition of the Company and its results of
operation for the periods specified therein.
(v) such
other information relating to the financial condition, business, prospects, or
corporate affairs of the Company as any Investor may from time to time
reasonably request; provided, however,
that the Company shall not be obligated under this Section 3.1 to
provide information (i) that the Company reasonably determines in good faith to
be a trade secret or confidential information (unless covered by an enforceable
confidentiality agreement, in form acceptable to the Company) or (ii) the
disclosure of which would adversely affect the attorney-client privilege between
the Company and its counsel.
Notwithstanding
the above, if requested by AFSI, the financial information required to be
delivered pursuant to this Section 9(e) shall be delivered to AFSI sooner and in
a timely manner to permit AFSI to reflect the Company's financial position and
results of operations in its periodic filings with the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended.
(f) Payment of
Dividends. The Company shall pay the Accruing Dividends (as
defined in the Certificate of Incorporation) out of funds legally available for
such purpose semi-annually on June 30 and December 31 of each year; provided,
however that the Company shall only be required to make any such payment if the
Board reasonably believes that there are funds available for such payment after
making appropriate reserves for the payment of the Purchase Price (as defined in
the Acquisition Agreement) and the Company’s working capital
requirements.
Section
10. Certain
Definitions.
“Acquisition
Agreement” means that certain Securities Purchase Agreement, dated as of
October 16, 2009, between the Company, GMAC Inc., GMAC Insurance Holdings Inc.
and Motors Insurance Corporation, as amended from time to time.
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“Affiliate” shall
mean, with respect to any Person (the “First Person”), any
other Person directly or indirectly controlling, controlled by or under direct
or indirect common control with the First Person. For purposes of
this definition, “control” means, as
applied to any Person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise,
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Associate” shall mean
with respect to a Person (a) any Person who is a director or directly or
indirectly the beneficial owner of at least 10% of the then outstanding capital
stock or other equity securities of the First Person and (b) any Person of which
the First Person or an Affiliate of the First Person shall, directly or
indirectly, either beneficially own at least 10% of the then outstanding equity
securities or constitute at least a l0% equity participant.
“Board” means the
Company’s Board of Directors as the same may be constituted from time to
time.
“Business” means the “Motor Club Business,” the
“Personal Lines Business,” the “Commercial Auto Business” and any other business
the Company enters into with Unanimous Board Consent. For purposes of
this definition, (i) “Motor Club Business” means the business of
soliciting, marketing or selling to automobile owners and consumers roadside
assistance services,
including without limitation towing, emergency fuel or flat tire
assistance or repair and ancillary travel-related benefits including, without
limitation, travel planning and member discounts, on a stand-alone basis in the
United States, (ii) “Personal Lines Business” means the business of soliciting,
marketing, selling, underwriting or servicing private passenger auto liability
and private passenger auto physical damage insurance in the United States, (iii)
“Commercial Auto Business” means the business of soliciting, marketing, selling,
underwriting or servicing commercial auto liability and auto physical damage
insurance for businesses and individuals, for vehicles used for business
purposes, sold through independent agents in the United States.
“Certificate of
Incorporation” means the Company’s Certificate of Incorporation, as
amended and/or restated from time to time.
“Common Stock” means
the shares of Common Stock, $0.01 par value per share, of the
Company.
“Company” has the
meaning set forth in the preamble to this Agreement.
“Company Securities”
means (i) any shares of Common Stock and Preferred Stock purchased or otherwise
acquired by any stockholder (including without limitation the Incentive Common
Stock), and (ii) any equity securities issued or issuable directly or indirectly
with respect to any of the shares of Common Stock and Preferred Stock referred
to in clause (i) above by way of a dividend or split or exchange or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. As to any particular Company Securities,
such securities shall cease to be Company Securities when they have been
disposed of in a Public Sale or repurchased by the Company or a
Subsidiary.
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“Consents” means all
filings, notices, licenses, consents, authorizations, accreditations, waivers,
approvals and the like.
“Incentive Common
Stock” means Common Stock or securities that are directly or indirectly
exercisable for, convertible into or exchangeable for shares of Common Stock
heretofore or hereafter issued to any employees of or consultants or service
providers to the Company pursuant to any incentive stock plan or other form of
incentive compensation arrangement approved by the Board, including shares of
Common Stock issued subject to a stock restriction agreement between the Company
and such employee or consultant.
"Independent Third
Party" means, immediately prior to the contemplated transaction, any
Person which (i) does not own in excess of 5% of the Company Securities
outstanding at such time, assuming the issuance of Common Stock pursuant to the
exercise, conversion or exchange of all outstanding securities exercisable,
convertible or exchangeable for Common Stock, and (ii) is not an Affiliate of
any such owner.
“Investor” and “Investors” means MKG,
AFSI and their respective Transferees that become a party to this Agreement in
accordance with Section
3.
“IPO” means the
initial sale pursuant to an underwritten registration statement filed under the
Securities Act of any equity securities of the Company, whether by the Company
or any holder of equity securities of the Company.
“Liens” means any
mortgage, pledge, security interest, encumbrance, lien or charge of any kind
(including, without limitation, any conditional sale or other title retention
agreement or lease in the nature thereof, any sale of receivables with recourse
against the Company, any Subsidiary or any Affiliate, any filing or agreement to
file a financing statement as debtor under the Uniform Commercial Code or any
similar statute other than to reflect ownership by a third party of property
leased to the Company or any Subsidiaries under a lease which is not in the
nature of a conditional sale or title retention agreement, or any subordination
arrangement in favor of another Person (other than any subordination arising in
the ordinary course of business)).
“Majority Investors”
means those Investors holding in excess of 50% of the issued and outstanding
Company Securities held by the Investors as a group.
“New Securities” means
any shares of capital stock or securities convertible into or exercisable or
exchangeable for shares of capital stock, whether now authorized or not; provided, however, that “New Securities” does
not include (i) securities offered to the public pursuant to a registration
statement filed under the Securities Act in connection with a Public Sale; (ii)
securities issued in consideration of an acquisition of another Person or
business by the Company by merger, consolidation, amalgamation, exchange of
shares, the purchase of substantially all of the assets or otherwise that has
been approved by Unanimous Board Approval; (iii) Incentive Common Stock; (iv)
equity securities issued to the holders of a class of equity securities upon any
stock split, stock dividend, combination or other similar event with respect to
such class of equity securities; (v) Company Securities issued pursuant to the
Purchase Agreement; (vi) securities issued as part of a sale of the Company’s or
a Subsidiaries’ debt obligations to a bank or commercial finance company or in a
registered public sale or sale pursuant to Rule 144A under the Securities Act or
otherwise issued to lenders as part of a bank or credit financing; and (vii)
shares of capital stock issued on conversion, exercise or exchange of securities
issued in compliance with or pursuant to the preemptive rights provided for in
Section 6.
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“Person” means any
individual, corporation, partnership, limited liability company, joint venture,
trust or unincorporated organization, or a government or any agency or political
subdivision thereof.
“Preferred Shares”
means the shares of Series A Preferred Stock, $0.01 per value per share, of the
Company.
“Public Sale” means
any sale of securities registered pursuant to a registration statement under the
Securities Act or pursuant to the provisions of Rule 144 or Rule 145 adopted
under the Securities Act or any substantially equivalent sale made in compliance
with successor provisions of the federal securities laws and regulations if
amended.
“Purchase Agreement”
has the meaning given such term in the recitals.
“Qualified Public
Offering” means, unless otherwise agreed to by Unanimous Board Approval,
the closing of a sale pursuant to an effective registration statement under the
Securities Act of the Common Stock in a firmly underwritten registered public
offering in which (i) the aggregate net proceeds to the Company (after deducting
Selling Expenses) equal or exceed $50,000,000, (ii) the offering price per
share of Common Stock to the public (before deducting Selling Expenses) reflects
a valuation of the Company (which for these purposes shall be equal to the per
share price to the public of the Company’s Common Stock in the public offering
multiplied by the number of shares of Common Stock outstanding as of
consummation of such offering, calculated on a fully diluted basis) at an amount
that equals or exceeds three (3) times the aggregate amount of the Investors’
invested capital to the date of the consummation of such offering, and (iii) the
Common Stock is listed on a nationally recognized U.S. stock exchange or the
Nasdaq National Market.
“Registration Rights
Agreement” means the Registration Rights Agreement dated as of the date
hereof among the Company and the Stockholders, as the same may be amended from
time to time.
“Regulatory Authority”
means a state or federal regulatory authority, governmental department, agency,
commission, board, tribunal, bureau, governmental instrumentality, or court,
judiciary or administrative authority with jurisdiction of the Business and/or
the Company and any Subsidiary.
“Related Agreements”
means the Purchase Agreement, Registration Rights Agreement and the Certificate
of Incorporation.
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“Sale of the Company”
shall mean a single transaction or group of related transactions (other than
transactions permitted by Section 1(c) or
the issuance of additional equity securities in a primary public or private
offering for the account of the Company) between the Company and/or the
Stockholders and one or more Independent Third Parties pursuant to which such
Person or Persons (A) acquire capital stock of the Company possessing the
voting power to elect a majority of the Board of Directors, (B) consummate
a merger or consolidation as a result of which the Stockholders who own Company
Securities and/or other voting securities prior to such transaction(s) shall own
less than 50% of the voting securities of the surviving Person or its parent or
(C) acquire (by sale, merger, consolidation or similar event) all or
substantially all of the Company’s assets (determined on a consolidated basis)
including by way of a transfer of shares or substantially all of the assets of
its Subsidiaries.
“Securities Act” shall
mean the Securities Act of 1933, as amended.
“Selling Expenses”
means all underwriting fees, discounts, selling commissions and stock transfer
taxes applicable to the Common Stock in an underwritten public
offering.
“Specified Investors”
means the Investors that have the authority to designate a Director pursuant to
Section 4(a)(ii) of this Agreement.
“Subsidiary” means any
Person of which the Company (now or hereafter) shall at the time own, directly
or indirectly through a Subsidiary, at least a majority of the outstanding
voting securities..
“Unanimous Board
Approval” means the vote or written consent of all three members of the
Board.
Section
11. Amendment and
Waiver. The rights and obligations of the Company and all
other parties hereto under this Agreement may be waived (either generally or in
a particular instance, either retroactively or prospectively, and either for a
specified period of time or indefinitely) or amended if and only if such waiver
or amendment is consented to in writing by the Company and by each of the
Specified Investors; provided, however, that if
any amendment would materially and adversely affect the rights of one or more
Stockholders (the “Adversely Affected
Holder”) in a way that is materially different from the manner in which
such specifically enumerated right or obligation is changed with respect to
other Stockholders, such amendment shall not be effective as to any Adversely
Affected Holder unless consented to by a majority in interest of the Adversely
Affected Holders measured by their relative holdings of Company Securities, as
the case may be. Each Stockholder shall be bound by any amendment or
waiver affected in accordance with this Section, whether or not such Stockholder
has consented to such amendment or waiver. Upon the effectuation of
each such waiver or amendment, the Company shall promptly give written notice
thereof to the Stockholders who have not previously consented thereto in
writing.
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Section
12. Representations and
Warranties of the Stockholders. Each Stockholder represents
and warrants (as to itself but not as to any other party) upon becoming a party
hereto as follows:
(a) Investment Intent;
Sophisticated Investor. Such Stockholder (A) is acquiring the
Company Securities for purposes of investment and without a view toward
distribution thereof in violation of applicable securities laws, (B) is an
accredited investor for purposes of applicable U.S. federal and state securities
laws and regulations, (C) acknowledges that the Company Securities have not been
registered under the Securities Act or applicable state securities laws and may
not be transferred absent such registration or the availability of an exemption
from registration and (D) acknowledges that the Company Securities are
speculative and illiquid, and such Stockholder is in a position to bear the
risks associated therewith; provided that nothing contained in this Section 12 shall
prevent any Stockholder or its direct or indirect transferee from transferring
such securities in compliance with Rule 144 of the Securities Act and in
accordance with the provisions of the Registration Rights Agreement and this
Agreement.
(b) No Broker’s or Finder’s
Fees. Such Stockholder is not obligated to pay any broker’s or
finder’s fees in connection with the consummation of the transactions
contemplated by the Purchase Agreement by reason of any arrangement made by the
Stockholder or any of its affiliates.
(c) Authorization; No
Breach. The execution, delivery and performance of this
Agreement and the other Related Agreements to which such Stockholder is a party
have been duly authorized by or on behalf of such Stockholder. This
Agreement and each Related Agreement to which such Stockholder is a party
constitutes a valid and binding obligation of such Stockholder, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, liquidation,
reorganization, moratorium, fraudulent transfer, or other similar laws affecting
creditor’s rights generally from time to time in effect and subject, as to
enforceability, to general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law. The
execution and delivery by such Stockholder of this Agreement and each Related
Agreement to which it is a party, and the fulfillment of and compliance with the
respective terms hereof and thereof by such Stockholder, do not and will not (a)
conflict with or result in a breach of the terms, conditions or provisions of,
(b) result in a violation of, or (c) require any Consent that has not been
obtained or made of, from, with or to, any Person pursuant to, the constituent
documents of such Stockholder, or any material agreement, instrument or other
documents, or any applicable material requirement of law to which such
Stockholder or any Affiliate or Associate is bound or to which any of such
Persons or its assets is subject.
(d) Record Owner;
Proxy. Such Stockholder (i) is the record owner of the number
of Company Securities set forth opposite its name on Schedule A
attached hereto and (ii) is not a party to any proxy, voting trust or other
agreement which is inconsistent with, conflicts with or violates any provision
of this Agreement. No holder of Company Securities shall grant any
proxy or become party to any voting trust or other agreement which is
inconsistent with, conflicts with or violates any provision of this
Agreement.
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(e) Confidentiality. Each
Stockholder agrees to maintain the confidentiality of the Company’s confidential
and proprietary information. The provisions of this Section 12 (e) shall
not be construed to prevent the Investors from disclosing any such information
(i) that has become publicly available, (ii) has been independently developed by
the Investor without violating its obligations hereunder, (iii) as part of the
Investor’s normal reporting, monitoring or review procedures or in connection
with normal marketing, informational or reporting activities or to their
auditors, attorneys, or other agents or (iv) as is required to be disclosed by
order of a court of competent jurisdiction, administrative agency of
governmental body or by subpoena or summons or by law, rule or regulation or
otherwise in connection with any legal process or administrative
proceeding.
Section
13. Representations and
Warranties of the Company. The Company represents and warrants
to each Stockholder upon such Stockholder becoming a party hereto as
follows:
(a) No Broker’s or Finder’s
Fees. The Company is not obligated to pay any broker’s or
finder’s fees in connection with the consummation of the transactions
contemplated by the Purchase Agreement by reason of any arrangement made by the
Company or any of its Affiliates.
(b) Authorization; No
Breach. The execution, delivery and performance of this
Agreement and the other Related Agreements to which the Company is a party have
been duly authorized by or on behalf of the Company. This Agreement
and each Related Agreement to which the Company is a party constitutes a legal,
valid and binding obligation of the Company, enforceable in accordance with its
terms, subject to bankruptcy, insolvency, liquidation, reorganization,
moratorium, fraudulent transfer, or other similar laws affecting creditor’s
rights generally from time to time in effect and subject, as to enforceability,
to general principles of equity, regardless of whether such enforceability is
considered in a proceeding in equity or at law. The execution and
delivery by the Company of this Agreement and each Related Agreement to which it
is a party, and the fulfillment of and compliance with the respective terms
hereof and thereof by the Company, do not and will not (a) conflict with or
result in a breach of the terms, conditions or provisions of, (b) result in a
violation of, or, (c) require any Consent that has not been obtained or made of,
from, with or to, any Person pursuant to, the constituent documents of the
Company, or any agreement, instrument or other document, or any applicable
material requirement of law, including the requirements of any Regulatory
Authority, to which the Company or any of its Affiliates or Associates is bound
or to which any of such Persons or its assets is subject.
Section
14. 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 the validity, legality or enforceability of
any other provision of this Agreement in such jurisdiction or affect the
validity, legality or enforceability of any provision in any other jurisdiction,
but this Agreement shall be reformed, construed and enforced in such
jurisdiction as if such invalid, illegal or unenforceable provision had not been
contained herein.
- 21
-
Section
15. 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 permitted assigns and the Stockholders and any subsequent holders
of Company Securities and the respective successors and permitted assigns of
each of them, so long as they hold Company Securities. The Company
may not assign any of its obligations under this Agreement (other than in
connection with a Sale of the Company permitted by other sections of this
Agreement) without the written consent of each of the Specified
Investors.
Section
16. Counterparts; Facsimile
Signatures. This Agreement may be executed in any number of
counterparts and by the parties hereto on separate counterparts and each
counterpart, when so executed and delivered, shall be an original, and all such
counterparts shall together constitute one and the same
instrument. Signatures sent by telecopy shall constitute original
signatures.
Section
17. Remedies. Each
party to this Agreement shall be entitled to enforce its 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 its
favor. The parties hereto agree and acknowledge that money damages
would not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company or any Stockholder may in its sole discretion
apply to any court of law or equity or 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.
Section
18. Notices. Any
notice provided for in this Agreement shall be in writing and shall be either
personally delivered, or sent by reputable overnight courier service (charges
prepaid) or sent by telecopy to the Company at the address set forth below and
to any other recipient at the address indicated on Schedule A
attached hereto 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,
or by electronic transmission to the Email address set forth
below. Notices shall be deemed to have been given hereunder when
delivered personally, when answer back is confirmed and sent by telecopy, and
one day after deposit with a reputable overnight courier service.
|
(i)
|
If
to the Company to:
|
American
Capital Acquisition Corporation
00 Xxxxxx
Xxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
Xxxxxxxxx
Tel:
000-000-0000
Fax:
000-000-0000
Email:
- 22
-
|
(ii)
|
If
to the Investors to:
|
Xxxxxxx
Xxxxxxxxx, Trustee
Xxxxxxx
Xxxxxxxxx 2005 G.R.A.T.
00 Xxxxxx
Xxxx, 0xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Tel:
000-000-0000
Fax:
000-000-0000
Email:
Xxxxxxx
Xxxxx
General
Counsel
00 Xxxxxx
Xxxx, 0xx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Tel:
000.000.0000
Fax:
000.000.0000
Email:
xxxxxx@xxxxxxxxxxxx.xxx
With a
concurrent copy, which shall not constitute notice, to:
Xxxxxxxx
Xxxxxxxxxxx
Xxxxxxx
Xxxxxx Xxxxxx & Dodge LLP
000
Xxxxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Phone:
000.000.0000
Fax:
000.000.0000
Email:
xxxxxxxxxxxx@xxxxxxx.xxx
Xxxxx
Xxxxxx
London
Xxxxxxx LLP
00 Xxxxxx
Xxxx, 00xx
Xxxxx
Xxx Xxxx,
XX 00000
Phone:
000-000-0000
Fax: 212-972-1030
Email:
XXxxxxx@xxxxxxxxxxxxx.xxx
Section
19. Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without giving effect to any
choice of law or conflict of law rules or provisions (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. Any dispute
relating thereto shall be heard in the state or federal courts of
Delaware.
- 23
-
Section
20. Consent to
Jurisdiction.
(a) THE
PARTIES HERETO HEREBY AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE
COURTS IN AND OF THE STATE OF NEW YORK AND TO JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND TO THE COURTS TO WHICH
AN APPEAL OF THE DECISIONS OF SUCH COURTS MAY BE TAKEN FOR THE PURPOSE OF ANY
SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING, WITHOUT
LIMITATION, ANY PROCEEDING RELATING TO ANCILLARY MEASURES IN AID OF ARBITRATION,
PROVISIONAL REMEDIES AND INTERIM RELIEF, OR ANY PROCEEDING TO ENFORCE ANY
ARBITRAL DECISION OR AWARD.
(b) EACH
PARTY HEREBY EXPRESSLY WAIVES ANY AND ALL RIGHTS TO BRING ANY SUIT, ACTION OR
OTHER PROCEEDING IN OR BEFORE ANY COURT OR TRIBUNAL OTHER THAN THE COURTS OF NEW
YORK AND COVENANTS THAT IT SHALL NOT SEEK IN ANY MANNER TO RESOLVE ANY DISPUTE
OTHER THAN AS SET FORTH IN THIS ARTICLE VI OR TO CHALLENGE OR SET ASIDE ANY
DECISION, AWARD OR JUDGMENT OBTAINED IN ACCORDANCE WITH THE PROVISIONS
HEREOF.
(c) EACH
OF THE PARTIES HERETO HEREBY EXPRESSLY WAIVES ANY AND ALL OBJECTIONS IT MAY HAVE
TO VENUE, INCLUDING, WITHOUT LIMITATION, THE INCONVENIENCE OF SUCH FORUM, IN ANY
OF SUCH COURTS. IN ADDITION, EACH OF THE PARTIES CONSENTS TO THE
SERVICE OF PROCESS BY PERSONAL SERVICE OR ANY MANNER IN WHICH NOTICES MAY BE
DELIVERED HEREUNDER IN ACCORDANCE WITH SECTION 18.
Section
21. Waiver of Jury
Trial. EACH OF THE PARTIES HERETO HEREBY VOLUNTARILY AND
IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER PROCEEDING BROUGHT IN
CONNECTION WITH THIS AGREEMENT.
Section
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. 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. The words “hereof,” “herein” and “hereunder” and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. Unless
otherwise specified herein, the term “or” has the inclusive
meaning represented by the term “and/or” and the term
“including” is
not limiting. All references as to “Sections,” “Subsections,” “Articles,” “Schedules” and “Exhibits” shall be to
Section, Subsections, Articles, Schedules and Exhibits, respectively, of this
Agreement unless otherwise specifically provided.
Section
23. No Strict
Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement and the Related
Agreements. In the event an ambiguity or question of intent or
interpretation arises, this Agreement and the Related Agreements 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 and any Related
Agreement.
- 24
-
Section
24. Conflicting Certificate of
Incorporation or By-Law Provisions. Each Stockholder shall
vote its Company Securities, and shall take all actions necessary, to ensure
that the Company's Certificate of Incorporation and by-Laws do not, from time to
time, conflict with the provisions of this Agreement.
Section
25. No Third Party
Beneficiaries. This Agreement is not intended to confer any
rights or remedies upon any Person other than the parties hereto and their
successors and permitted assigns.
Section
26. Termination of Restrictions
on Public Sale. A recipient of Company Securities in a Public
Sale shall not be bound by the terms of this Agreement.
Section
27. Complete
Agreement. This Agreement and the Related Agreements embody
the complete agreement and understanding among the parties 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.
[The
rest of this page is left blank intentionally.]
- 25
-
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement on the day and year first above
written.
|
COMPANY:
|
||
|
AMERICAN
CAPITAL ACQUISITION CORPORATION
|
||
|
By:
|
/S/ XXXXX XXXXXXXXX
|
|
|
Name: XXXXX
XXXXXXXXX
|
||
|
Title:
PRESIDENT
|
||
|
INVESTORS:
|
||
|
THE
XXXXXXX XXXXXXXXX 2005 GRANTOR RETAINED ANNUITY TRUST
|
||
|
By:
|
/S/ XXXXXXX XXXXXXXXX
|
|
|
Name: XXXXXXX
XXXXXXXXX
|
||
|
Title:
TRUSTEE
|
||
|
By:
|
/S/ XXXXX XXXXXXX
|
|
|
Name: XXXXX
XXXXXXX
|
||
|
Title:
CHIEF EXECUTIVE OFFICER
|
||
[Signature
Page to ACAC Stockholders Agreement]
SCHEDULE
A
COMPANY
SECURITIES
|
INVESTOR
|
COMMON SHARES
|
PREFERRED SHARES
|
||
|
Xxxxxxx
Xxxxxxxxx, Trustee
|
3
|
0
|
||
|
The
Xxxxxxx Xxxxxxxxx 2005 G.R.A.T
|
||||
|
00
Xxxxxx Xxxx, 0xx
Xxxxx
|
||||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||||
|
Tel:
000-000-0000
|
||||
|
Fax:
000-000-0000
|
||||
|
Email:
|
||||
|
1
|
0
|
|||
|
00
Xxxxxx Xxxx, 0xx Xxxxx
|
||||
|
Xxx
Xxxx, XX 00000
|
||||
|
Phone:
000.000.0000
|
||||
|
Fax:
000.000.0000
|
||||
|
Tel:
000-000-0000
|
||||
|
Fax:
000-000-0000
|
||||
|
Email:
xxxxxx@xxxxxxxxxxxx.xxx
|
|
|
SCHEDULE
B
FORM OF
JOINDER AGREEMENT
Joinder
Agreement
By its execution and delivery of this
Joinder Agreement, the undersigned party hereby joins in and agrees to be bound
by the terms and conditions of the Stockholders Agreement dated as of October
___, 2009 (as amended from time to time, the “Stockholders
Agreement”) by and among American Capital Acquisition Corporation, a
Delaware corporation, and the parties named therein [as an “Investor”][as a
“Stockholder”] under and as defined in the Stockholders Agreement.
|
Additional
Party
|
||
|
By:
|
|
|
|
Address:
|
|
|
|
|
||
|
Date:
|
|
|
* * *
*
Agreed on
____________________, 20__.
AMERICAN
CAPITAL ACQUISITION CORPORATION
By: /S/
XXXXX XXXXXXXXX
Authorized
Signatory
