<PAGE>
EXHIBIT 4.1
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
DATED AS OF MARCH 19, 2003
AMONG
DEALERTRACK HOLDINGS, INC.
AND THE
STOCKHOLDERS IDENTIFIED HEREIN
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TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<C>
SECTION 1.
DEFINITIONS.....................................................................
2
SECTION 2.
LIMITATIONS ON TRANSFERS OF STOCK AND INVESTMENTS IN COMPETITORS
...............
13
SECTION 3. RIGHT
OF FIRST
REFUSAL..........................................................
14
SECTION 4. RIGHT
OF
CO-SALE................................................................
15
SECTION 5.
REPURCHASE
RIGHT................................................................
16
SECTION 6.
PREEMPTIVE
RIGHTS...............................................................
20
SECTION 7. PUT
PROVISIONS; SALE OF THE
CORPORATION......................................... 21
SECTION 8.
COVENANTS OF THE
CORPORATION....................................................
27
SECTION 9.
APPROVED SALE OF THE
CORPORATION................................................
28
SECTION 10. ELECTION
OF DIRECTORS;
VOTING...................................................
29
SECTION 11. REGULATORY
MATTERS..............................................................
32
SECTION 12.
REPRESENTATION OF THE
STOCKHOLDERS..............................................
34
SECTION 13. LEGEND;
OPINION OF
COUNSEL......................................................
34
SECTION 14. ADDITIONAL
SHARES OF
STOCK......................................................
35
SECTION 15. DURATION
OF
AGREEMENT...........................................................
35
SECTION 16. JOINDERS;
AMENDMENT OF ANNEX
I..................................................
36
SECTION 17.
SEVERABILITY; GOVERNING
LAW.....................................................
37
SECTION 18. SUCCESSORS
AND
ASSIGNS..........................................................
37
SECTION 19.
NOTICES.........................................................................
37
SECTION 20.
MODIFICATION;
WAIVER............................................................
43
SECTION 21.
VOTING..........................................................................
43
SECTION 22. REMEDIES
.......................................................................
44
SECTION 23. NO
DISCLOSURE
OBLIGATIONS.......................................................
44
SECTION 24.
HEADINGS........................................................................
45
SECTION 25. NOUNS AND
PRONOUNS..............................................................
45
SECTION 26. ENTIRE
AGREEMENT................................................................
45
SECTION 27.
COUNTERPARTS....................................................................
45
SECTION 28. AMENDED
AND RESTATED
AGREEMENT..................................................
45
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Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
i
<PAGE>
FOURTH AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (the
"Agreement"), dated as of March 19, 2003, among:
I. DEALERTRACK HOLDINGS, INC., a Delaware corporation (the
"Corporation");
II. the STOCKHOLDERS of the Corporation identified on Annex I
(each,
a "Stockholder" and, collectively, the "Stockholders"); and
III. DEALERTRACK, INC., WEBALG, INC. and CREDIT ONLINE, INC. each
a
Delaware corporation and a wholly-owned Subsidiary (as defined
below) of the
Corporation (the Corporation, Stockholders, DealerTrack, Inc.,
webalg, inc. and
Credit Online, Inc. together, the "Parties").
WHEREAS,
the Corporation and certain of the Parties hereto have entered
into those certain Stock Purchase Agreements dated as of January
30, 2003, among
the respective parties thereto (the "Stock Purchase Agreements"),
pursuant to
which the Corporation shall issue (i) to the Series A-2
Stockholders (as defined
below) shares of the Corporation's Series A-2 Preferred Stock (as
defined below)
and (ii) to the Series C-3 Stockholders (as defined below) shares
of the
Corporation's Series C-3 Preferred Stock (as defined below);
WHEREAS,
the Corporation and certain of the Parties hereto have entered
into that certain Series C-2 Securities Purchase Agreement, dated
as of December
4, 2002, among the Corporation and the Series C-2 Stockholders (as
defined
below) (the "Series C-2 Securities Purchase Agreement") pursuant to
which the
Corporation issued to such Series C-2 Stockholders shares of the
Corporation's
Series C-2 Preferred Stock (as defined below);
WHEREAS,
the Corporation and certain of the Parties hereto have entered
into a Series C-1 Securities Purchase Agreement, dated as of April
22, 2002,
among the Corporation and the Series C-1 Stockholders (as defined
below) (the
"Series C-1 Securities Purchase Agreement"), pursuant to which the
Corporation
issued to such Series C-1 Stockholders shares of the Corporation's
Series C-1
Preferred Stock (as defined below);
WHEREAS,
the Corporation and certain of the Parties hereto have entered
into a Securities Purchase Agreement, dated as of December 28,
2001, among the
Corporation and the Series C Stockholders (as defined below),
pursuant to which
the Corporation issued to such Series C Stockholders shares of the
Corporation's
Series C Preferred Stock (as defined below);
WHEREAS,
the Corporation and certain of the Parties hereto have entered
into a Stock Exchange Agreement, dated as of August 10, 2001,
pursuant to which
the Corporation issued to such parties shares of the Corporation's
Series A
Preferred Stock, Series A-1 Preferred Stock, Series B Preferred
Stock and Series
B-1 Preferred Stock (each, as defined below), as applicable;
WHEREAS,
as a condition to and in connection with the execution of the
Stock Purchase Agreements, the Parties hereto desire to amend and
restate the
Third Amended and Restated Stockholders' Agreement, dated as of
December 4,
2002, among the Corporation and the holders of the Series A
Preferred Stock,
Series A-1 Preferred Stock, Series B Preferred Stock,
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
<PAGE>
the Series B-1 Preferred Stock, the Series C Preferred Stock,
Series C-1
Preferred Stock, Series C-2 Preferred Stock and Common Stock (the
"Prior
Stockholders' Agreement");
WHEREAS,
each Stockholder owns, on the date hereof, that number of
shares
of Stock (as defined below) set forth opposite such Stockholder's
name on Annex
I hereto; and
WHEREAS,
it is deemed to be in the best interest of the Corporation and
the Stockholders that provision be made for the continuity and
stability of the
business and policies of the Corporation, and, to that end, the
Corporation and
the Stockholders hereby set forth their agreement with respect to
the shares of
Stock owned by the Stockholders.
NOW,
THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the Parties hereto
hereby agree
as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following respective meanings:
"Adjusted
Treasury Stock Basis" means assuming the conversion of all
then-outstanding securities convertible into Common Stock, the
exercise of all
then-outstanding vested (or which vests as a result of any
transaction
contemplated by Section 7 herein) stock options for Common Stock
pursuant to the
Stock Option Plan, and the exercise of all then-outstanding options
(other than
pursuant to the Stock Option Plan to avoid duplication), warrants
and other
rights, if any, exercisable then at any point in the future for
Common Stock.
All exercises of options, warrants or any other rights, if any,
hereunder shall
be calculated pursuant to the treasury stock method in accordance
with GAAP.
"Affiliate" means, with respect to any Person, any (a) director,
officer
or stockholder holding 5% or more of the capital stock (on a Fully
Diluted
Basis) of such Person, (b) spouse, parent, sibling or descendant of
such Person
(or a spouse, parent, sibling or descendant of a director, officer,
or partner
of such Person) or (c) other Person that, directly or indirectly,
through one or
more intermediaries, controls, or is controlled by, or is under
common control
with, such Person. The term "control" includes, without limitation,
the
possession, directly or indirectly, of the power to direct the
management and
policies of a Person, whether through the ownership of voting
securities, by
contract or otherwise.
"ALG"
means Automotive Lease Guide (alg), LLC.
"ALG
Observer" shall have the meaning set forth in Section 10(d)
hereof.
"AmeriCredit" means ACF Investment Corp.
"AmeriCredit Director" shall have the meaning set forth in
Section
10(a)(iii) hereof.
"Appraiser
Trigger Date" shall have the meaning set forth in Section
7(a)(ii) hereof.
"Approved
Sale" shall have the meaning set forth in Section 9(a) hereof.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
2
<PAGE>
"Board"
means the board of directors of the Corporation.
"Board
Observer" shall have the meaning set forth in Section 10(d)
hereof.
"Broker"
shall have the meaning set forth in Section 7(d) hereof.
"Business
Day" means each day other than Saturday, Sunday, any federal
holiday or state recognized holiday in the State of New York.
"By-Laws"
means the by-laws of the Corporation, as amended from time to
time.
"Capital
One" means Capital One Auto Finance, Inc.
"Capital
One Director" shall have the meaning set forth in Section
10(a)(iv) hereof.
"Cause",
with respect to a Management Stockholder, (a) shall have the
meaning ascribed to such term in a then-effective written agreement
between such
Management Stockholder and the Corporation or any of its
Subsidiaries, or (b) in
the absence of such then-effective written agreement, shall mean
(1) the
commission by such Management Stockholder of any act of fraud,
theft or
financial dishonesty with respect to the Corporation or any of its
Subsidiaries,
including the misappropriation (or attempted misappropriation) of
any of the
funds or property of the Corporation or any Subsidiary thereof, (2)
such
Management Stockholder has been convicted of, or plead guilty to, a
felony, the
procedural equivalent thereof or any crime involving moral
turpitude or
dishonesty on the part of such Management Stockholder, (3) any
material breach
by such Management Stockholder of any agreement or understanding
between the
Corporation or any Subsidiary thereof, on the one hand, and such
Management
Stockholder, on the other hand (whether written or oral),
including, without
limitation, the willful and continued failure or refusal of such
Management
Stockholder to perform the material duties required of such
Management
Stockholder as a director, officer or employee of, or as an
advisor, independent
consultant or independent contractor to, the Corporation or any
Subsidiary
thereof, other than as a result of such Management Stockholder
having a
Disability (as defined in the Stock Option Plan)), (4) gross
negligence or
willful misconduct with respect to the business and affairs of the
Corporation
or any Subsidiary or Affiliate thereof (other than neglect solely
due to such
Management Stockholder's Disability (as defined in the Stock Option
Plan),
including such Management Stockholder's violation of any material
policy of the
Corporation and (5) incompetence or negligence in the performance
of such
Management Stockholder's duties in the reasonable opinion of the
Board.
"Causing
Stockholder" shall have the meaning set forth in Section 11(b).
"Certificate" means the Fourth Restated Certificate of
Incorporation of
the Corporation, as amended from time to time.
"Closing
Date" shall mean the date hereof.
"CMSI"
means First American Credit Management Solutions, Inc., a
Delaware
corporation.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
3
<PAGE>
"Committee
Observer" shall have the meaning set forth in Section 10(c)
hereof.
"Common
Stock" means the Common Stock, $0.01 par value per share, of
the
Corporation.
"Common
Stock Equivalent Basis" means the conversion of all classes of
Preferred Stock of the Corporation convertible into Common Stock,
but not the
exercise of any options or warrants for Common Stock.
"Common
Stockholders" means all holders of Common Stock, including all
Management Stockholders.
"Corporation" shall have the meaning set forth in the caption to
this
Agreement.
"Corporation Group" shall have the meaning set forth in Section
5(a)
hereof.
"Corporation Put Period" shall have the meaning set forth in
Section
7(a)(iv) hereof.
"DealerTrack Regulatory Problem" shall have the meaning set forth
in
Section 11(b).
"Decedent"
shall have the meaning set forth in Section 5(b) hereof.
"Designated Shares" shall have the meaning set forth in Section
5(a)(ii)
hereof.
"Designation Notice" shall have the meaning set forth in Section
5(a)(ii)
hereof.
"Designee"
shall have the meaning set forth in Section 5(a)(ii) hereof.
"DGCL"
means the General Corporation Law of the State of Delaware.
"Documents" means this Agreement, the Certificate, the Registration
Rights
Agreement and the Stock Purchase Agreements.
"Election
Notice" shall have the meaning set forth in Section 5(a)(ii)
hereof.
"Equity
Financing" shall have the meaning set forth in Section 6(a)
hereof.
"Excluded
Securities" shall have the meaning set forth in Section 6(f)
hereof.
"Exempt
Transfers" means any Transfer (i) by a party hereto to a member
of
such party's Group who agrees in writing to be bound by the
provisions of this
Agreement to the same extent as applicable to such transferring
party or (ii)
pursuant to Section 7 hereof.
"FAC"
shall have the meaning set forth in Section 10(a)(vii) hereof.
"FAC
Director" shall have the meaning set forth in Section
10(a)(vii)
hereof.
"Fair
Market Value" means the per share fair market value of the
outstanding Common Stock of the Corporation, as last determined in
good faith by
the Board prior to the Repurchase
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
4
<PAGE>
Event or, if the Board determines in good faith that such fair
market value has
materially changed since such determination, the fair market value
as determined
in good faith by the Board as of the most recent practicable date
prior to the
Repurchase Event. The Fair Market Value of Common Stock as of the
date of this
Agreement and until the first determination of the Fair Market
Value thereof by
the Board shall, for purposes of this paragraph, be deemed to be
$2.80.
"First
Potential Put Closing Date" shall have the meaning set forth in
Section 7(e) hereof.
"FMV
Determination Date" shall have the meaning set forth in Section
5(a)(i) hereof.
"Fraction"
shall have the meaning set forth in Section 7(a)(v) hereof.
"Fully
Diluted Basis" means assuming the conversion of all
then-outstanding securities convertible into Common Stock, the
exercise of all
stock options then-issued or issuable for Common Stock pursuant to
the Stock
Option Plan, and the exercise of all then-outstanding options
(other than
pursuant to the Stock Option Plan to avoid duplication), warrants
and other
rights, if any, exercisable then or at any point in the future for
Common Stock.
"GAAP"
means U.S. generally accepted accounting principles.
"Governmental Entity" means any domestic or foreign federal,
state,
municipal, or other government, governmental department,
commission, board,
bureau, agency or instrumentality, or any court or tribunal.
"Group"
means:
(a) in the
case of any Stockholder who is an individual, (A) such
Stockholder and any Person one hundred percent (100%) of whose
outstanding
securities and equity and beneficial interests are directly or
indirectly owned,
controlled or held by such Stockholder, (B) the siblings, spouse,
lineal
descendants, adopted children, parents and grandparents of such
Stockholder and
(C) any trust for the benefit of any of the foregoing;
(b) in the
case of any Stockholder which is a partnership, (A) such
partnership and any of its limited or general partners, (B) any
corporation or
other business organization to which such partnership shall sell
all or
substantially all of its assets or with which it shall be merged,
(C) any
Affiliate of such partnership and (D) with the approval of the
Board, which
approval shall not be unreasonably withheld, any employee of such
Stockholder or
Affiliate;
(c) in the
case of any Stockholder that is a limited liability company,
(A) such limited liability company and any of its members, (B) any
corporation
or other business organization to which such limited liability
company shall
sell all or substantially all of its assets or with which it shall
be merged,
(C) any Affiliate of such limited liability company and (D) with
the approval of
the Board, which approval shall not be unreasonably withheld, any
employee of
such Stockholder or Affiliate; and
(d) in the
case of any Stockholder which is a corporation, (A) such
corporation, (B) any corporation or other business organization to
which such
corporation shall sell or transfer all or substantially all of its
assets or
with which it shall be merged, (C) any Affiliate of such
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
5
<PAGE>
corporation and (D) with the approval of the Board, which approval
shall not be
unreasonably withheld, any employee of such Stockholder or
Affiliate.
"GRP"
means, collectively, GRP II, L.P., GRP II Partners, L.P. and GRP
II
Investors, L.P.
"GRP
Director" shall have the meaning set forth in Section 10(a)(vi)
hereof.
"Initial
Allocation Period" shall have the meaning set forth in Section
7(b) hereof.
"Investor
Director" means, for the purpose of the reference made to such
term by Article IX of the Certificate and this Agreement, the
AmeriCredit
Director, the Capital One Director, the FAC Director, each J.P.
Morgan Director,
the WF Director, the WFS Director, the GRP Director and any other
director who
is an Affiliate of an Investor.
"Information" shall have the meaning set forth in Section 23(a)
hereof.
"Investors" means ADP, AmeriCredit, ALG, Capital One, CMSI, GRP,
J.P.
Morgan, Wells Fargo, Wells Financial, WFS and their respective
permitted
transferees in accordance with Section 2, with each of the
foregoing an
"Investor."
"J.P.
Morgan" means J.P. Morgan Partners (23A SBIC), LLC.
"J.P.
Morgan Director" shall have the meaning set forth in Section
10(a)(i) hereof.
"Joinder"
shall have the meaning set forth in Section 2(a) hereof.
"Law"
means as to any Person, any constitution, law, statute, treaty,
rule, ordinance, permit, certificate, directive, requirement,
regulation or
Order of any Governmental Entity.
"Life
Insurance Proceeds" shall have the meaning set forth in Section
5(b)
hereof.
"Liquidity
Attempt Period" shall have the meaning set forth in Section
7(d) hereof.
"Liquidity
Event" shall have the meaning set forth in the Certificate.
"Management Group" shall have the meaning set forth in Section
5(a)
hereof.
"Management Stockholders" means all employees, officers and
directors of
and consultants to the Corporation who hold shares of Common Stock,
including,
without limitation, any Person who exercises an option to purchase
Common Stock
pursuant to the Stock Option Plan.
"Non-Allocated Put Shares" shall have the meaning set forth in
Section
7(b) hereof.
"Non-Purchased Put
Shares" shall have the meaning set forth in Section
7(b) hereof.
"Notice of
Acceptance" shall have the meaning set forth in Section 6(b)
hereof.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
6
<PAGE>
"Offer"
shall have the meaning set forth in Section 6(a) hereof.
"Offered
Securities" shall have the meaning set forth in Section 6(a)
hereof.
"Orders"
means judgments, writs, decrees, injunctions, orders,
compliance
agreements or settlement agreements of or with any Governmental
Entity or
arbitrator.
"Original
Cost" means the Option Price (as such term is defined in the
Stock Option Plan) at which each share of Common Stock subject to
an option is
granted under the Stock Option Plan or the purchase price per share
of a
security, as applicable, in each case, as adjusted from time to
time for stock
splits, stock dividends and the like.
"Other
Regulated Investor" shall have the meaning set forth in Section
11(a)(ii).
"Other
Regulatory Problem" shall have the meaning set forth in Section
11(a)(ii).
"Participating Put Offerees" shall have the meaning set forth in
Section
7(b) hereof.
"Person"
shall be construed in the broadest sense and shall include any
natural person, company, partnership, joint venture, corporation,
limited
liability company, business trust, unincorporated organization,
other entity or
Governmental Entity.
"Preferred
Stock" shall have the meaning set forth in the Certificate.
"Preferred
Stockholders" means the Series A Stockholders, the Series A-1
Stockholders, the Series A-2 Stockholders, the Series B
Stockholders, the Series
B-1 Stockholders, the Series C Stockholders, the Series C-1
Stockholders, the
Series C-2 Stockholders and the Series C-3 Stockholders.
"Prior
Stockholders' Agreement" means that certain Third Amended and
Restated Stockholders' Agreement of the Corporation, dated as of
December 4,
2002, among the Parties.
"Proportionate Percentage" means:
(a) for
the purposes of Section 3 hereof, the pro rata percentage of
Stock
being offered by a Selling Group pursuant to Section 3 that each
Stockholder
shall be entitled to purchase, and shall be the percentage figure
which
expresses the ratio, on a Common Stock Equivalent Basis, between
the number of
shares of Stock owned by such Stockholder and the aggregate number
of shares of
Stock owned by all Stockholders at the date of determination;
(b) for
the purposes of Section 4 hereof, the pro rata percentage of
the
number of shares of Stock to which a Section 4 Offer relates that
each
Stockholder shall be entitled to Transfer to the Section 4 Offeror,
and shall be
the percentage figure which expresses the ratio, on a Common Stock
Equivalent
Basis, between the number of shares of Stock owned by such
Stockholder and the
aggregate number of shares of Stock owned by all Stockholders;
(c) for
the purposes of Section 5 hereof, the pro rata percentage of
Common Stock being designated by the Corporation pursuant to
Section 5 that each
Investor shall be entitled to
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
7
<PAGE>
purchase, and shall be the percentage figure which expresses the
ratio, on a
Common Stock Equivalent Basis, between the number of shares of
Stock owned by
such Investor and the aggregate number of shares of Stock owned by
all
Investors, at the date of determination;
(d) for
the purposes of Section 6 hereof, the pro rata percentage of
Stock
subject to purchase pursuant to Section 6 that each Preferred
Stockholder shall
be entitled to purchase, and shall be the percentage figure which
expresses the
ratio, on a Common Stock Equivalent Basis, between the number of
shares of Stock
owned by such Preferred Stockholder and the aggregate number of
shares of Stock
owned by all Preferred Stockholders, at the date of determination;
and
(e) for
the purposes of Section 7 hereof, the pro rata percentage of
Non-Purchased Put Shares subject to purchase during the Stockholder
Put Period
pursuant to Section 7 that each Investor (other than GRP) shall be
entitled to
purchase, and shall be the percentage figure which expresses the
ratio, on a
Common Stock Equivalent Basis, between the number of shares of
Stock owned by
such Investor and the aggregate number of Shares of Stock owned by
all Investors
(other than GRP), at the date of determination.
"Put Fair
Market Value" shall have the meaning set forth in Section
7(a)(ii) hereof.
"Put FMV
Determination Date" shall have the meaning set forth in Section
7(a)(ii) hereof.
"Put
Period" shall have the meaning set forth in Section 7(a)
hereof.
"Put
Purchase Price per Put Share" shall have the meaning set forth
in
Section 7(a)(v) hereof.
"Put
Repurchase Right" shall have the meaning set forth in Section
7(a)(iv) hereof.
"Put
Reallocation Notice" shall have the meaning set forth in Section
7(b)
hereof.
"Put
Shares" shall have the meaning set forth in Section 7(a)
hereof.
"Qualified
Investor" shall have the meaning set forth in Section 8(b)
hereof.
"Qualified
Public Offering" shall have the meaning set forth in the
Certificate.
"Refused
Securities" shall have the meaning set forth in Section 6(d)
hereof.
"Registration Rights Agreement" means that certain Fourth Amended
and
Restated Registration Rights Agreement, dated as of the date
hereof, among the
Corporation and Investors.
"Regulated
Investor" shall have the meaning set forth in Section 11(a)(i)
hereof.
"Regulatory Sideletter" means that certain Regulatory Sideletter,
dated
August 10, 2001, among the Corporation, J.P. Morgan and Wells Fargo
and attached
hereto as Exhibit A.
"Repurchase Designation" shall have the meaning set forth in
Section
5(a)(ii) hereof.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
8
<PAGE>
"Repurchase Event" shall have the meaning set forth in Section
5(a)
hereof.
"Repurchase Notice" shall have the meaning set forth in Section
5(a)(i)
hereof.
"Repurchase Period" shall have the meaning set forth in Section
5(a)(i)
hereof.
"Repurchase Right" shall have the meaning set forth in Section
5(a)(i)
hereof.
"Repurchase Shares" shall have the meaning set forth in Section
5(a)(i)
hereof.
"Requisite
Designated Preferred Stockholders" shall have the meaning set
forth in the Certificate.
"Sale of
the Corporation" means (i) a sale of all or substantially all
of
the assets of the Corporation, (ii) any merger or other business
combination
unless in any such case the Corporation's stockholders immediately
prior to such
transaction hold more than fifty percent (50%) of the equity of the
surviving
entity and the certificate of incorporation or other similar
instrument provides
for the preservation of substantially all of the relative rights
and preferences
of the Series A Preferred Stock, the Series A-1 Preferred Stock,
the Series A-2
Preferred Stock, the Series B Preferred Stock, the Series B-1
Preferred Stock,
the Series C Preferred Stock, the Series C-1 Preferred Stock, the
Series C-2
Preferred Stock and the Series C-3 Preferred Stock or (iii) a sale
of capital
stock or other securities of the Corporation possessing the voting
power to
elect a majority of the Board (whether by merger, consolidation or
issuance,
sale or transfer of the Corporation's capital stock).
"Sale
Period" shall have the meaning set forth in Section 7(d)(iii)
hereof.
"Sale
Price" shall have the meaning set forth in Section 7(d)(vi)
hereof.
"Sale
Request" shall have the meaning set forth in Section 7(a)
hereof.
"Second
Potential Put Closing Date" shall have the meaning set forth in
Section 7(f) hereof.
"Section 3
Offer" shall have the meaning set forth in Section 3(a) hereof.
"Section 3
Offer Notice" shall have the meaning set forth in Section 3(a)
hereof.
"Section 4
Notice" shall have the meaning set forth in Section 4(a)
hereof.
"Section 4
Offer" shall have the meaning set forth in Section 4(a) hereof.
"Section 4
Offeree" shall have the meaning set forth in Section 4(a)
hereof.
"Section 4
Offeror" shall have the meaning set forth in Section 4(a)
hereof.
"Section 7
Put Offer" shall have the meaning set forth in Section 7(a)(i)
hereof.
"Section 7
Put Offer Notice" shall have the meaning set forth in Section
7(a)(i) hereof.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
9
<PAGE>
"Securities Act" means the Securities Act of 1933 or any successor
Federal
statute, and the rules and regulations of the U.S. Securities and
Exchange
Commission thereunder, all as the same shall be in effect from time
to time.
"Selling
Group" means a Stockholder or a member of the Group of a
Stockholder proposing to Transfer its Stock, or which has delivered
a notice of
intention to Transfer, pursuant to Section 3 hereof.
"Series A
Preferred Stock" means the Convertible Series A Participating
Preferred Stock, $.01 par value per share, of the Corporation.
"Series
A-1 Preferred Stock" means the Convertible Series A-1
Participating Preferred Stock, $.01 par value per share, of the
Corporation.
"Series
A-2 Preferred Stock" means the Convertible Series A-2
Participating Preferred Stock, $.01 par value per share, of the
Corporation.
"Series A
Stockholders" means the holders of the Series A Preferred
Stock,
and shall include any successor to, or assignee or transferee of
Series A
Preferred Stock of any of the Series A Stockholders (in accordance
with the
terms of this Agreement) who shall agree in writing to be treated
as a Series A
Stockholder and to be bound by the terms and to comply with the
provisions of
this Agreement.
"Series
A-1 Stockholders" means the holders of the Series A-1 Preferred
Stock, and shall include any successor to, or assignee or
transferee of Series
A-1 Preferred Stock of any of the Series A-1 Stockholders (in
accordance with
the terms of this Agreement) who shall agree in writing to be
treated as a
Series A-1 Stockholder and to be bound by the terms and to comply
with the
provisions of this Agreement.
"Series
A-2 Stockholders" means the holders of the Series A-2 Preferred
Stock, and shall include any successor to, or assignee or
transferee of Series
A-2 Preferred Stock of any of the Series A-2 Stockholders (in
accordance with
the terms of this Agreement) who shall agree in writing to be
treated as a
Series A-2 Stockholder and to be bound by the terms and to comply
with the
provisions of this Agreement.
"Series B
Preferred Stock" means the Convertible Series B Participating
Preferred Stock, $.01 par value per share, of the Corporation.
"Series
B-1 Preferred Stock" means the Convertible Series B-1
Participating Preferred Stock, $.01 par value per share, of the
Corporation.
"Series B
Stockholders" means the holders of the Series B Preferred
Stock,
and shall include any successor to, or assignee or transferee of
Series B
Preferred Stock of any of the Series B Stockholders (in accordance
with the
terms of this Agreement) who shall agree in writing to be treated
as a Series B
Stockholder and to be bound by the terms and to comply with the
provisions of
this Agreement.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
10
<PAGE>
"Series
B-1 Stockholders" means the holders of the Series B-1 Preferred
Stock, and shall include any successor to, or assignee or
transferee of Series
B-1 Preferred Stock of any of the Series B-1 Stockholders (in
accordance with
the terms of this Agreement) who shall agree in writing to be
treated as a
Series B-1 Stockholder and to be bound by the terms and to comply
with the
provisions of this Agreement.
"Series C
Preferred Stock" means the Convertible Series C Preferred
Stock,
$.01 par value per share, of the Corporation.
"Series
C-1 Preferred Stock" means the Convertible Series C-1 Preferred
Stock, $.01 par value per share, of the Corporation.
"Series
C-2 Preferred Stock" means the Convertible Series C-2 Preferred
Stock, $.01 par value per share, of the Corporation.
"Series
C-3 Preferred Stock" means the Convertible Series C-3 Preferred
Stock, $.01 par value per share, of the Corporation.
"Series
C-1 Securities Purchase Agreement" shall have the meaning set
forth in the third recital hereto.
"Series
C-2 Securities Purchase Agreement" shall have the meaning set
forth in the second recital hereto.
"Series C
Stockholders" means the holders of the Series C Preferred
Stock,
and shall include any successor to, or assignee or transferee of
Series C
Preferred Stock of any of the Series C Stockholders (in accordance
with the
terms of this Agreement) who shall agree in writing to be treated
as a Series C
Stockholder and to be bound by the terms and to comply with the
provisions of
this Agreement.
"Series
C-1 Stockholders" means the holders of the Series C-1 Preferred
Stock, and shall include any successor to, or assignee or
transferee of Series
C-1 Preferred Stock of any of the Series C-1 Stockholders (in
accordance with
the terms of this Agreement) who shall agree in writing to be
treated as a
Series C-1 Stockholder and to be bound by the terms and to comply
with the
provisions of this Agreement.
"Series
C-2 Stockholders" means the holders of the Series C-2 Preferred
Stock, and shall include any successor to, or assignee or
transferee of Series
C-2 Preferred Stock of any of the Series C-2 Stockholders (in
accordance with
the terms of this Agreement) who shall agree in writing to be
treated as a
Series C-2 Stockholder and to be bound by the terms and to comply
with the
provisions of this Agreement.
"Series
C-3 Stockholders" means the holders of the Series C-3 Preferred
Stock, and shall include any successor to, or assignee or
transferee of Series
C-3 Preferred Stock of any of the Series C-3 Stockholders (in
accordance with
the terms of this Agreement) who shall agree in writing to be
treated as a
Series C-3 Stockholder and to be bound by the terms and to comply
with the
provisions of this Agreement.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
11
<PAGE>
"Stock"
means (i) the presently issued and outstanding shares of Common
Stock, Series A Preferred Stock, Series A-1 Preferred Stock, Series
A-2
Preferred Stock, Series B Preferred Stock, Series B-1 Preferred
Stock, Series C
Preferred Stock, Series C-1 Preferred Stock, Series C-2 Preferred
Stock and
Series C-3 Preferred Stock and any options or stock subscription
warrants
exercisable therefor (which options and warrants shall be deemed to
be that
number of outstanding shares of Stock for which they are
exercisable), (ii) any
additional shares of capital stock of the Corporation hereafter
issued and
outstanding and (iii) any shares of capital stock of the
Corporation into which
such shares may be converted or for which they may be exchanged or
exercised.
"Stockholder Put Period" shall have the meaning set forth in
Section 7(b)
hereof.
"Stockholders" means those persons identified on Annex I and shall
include
all Series A Stockholders, Series A-1 Stockholders, the Series A-2
Stockholder,
Series B Stockholders, Series B-1 Stockholders, Series C
Stockholders, Series
C-1 Stockholders, Series C-2 Stockholders, Series C-3 Stockholders
and Common
Stockholders and any other person who agrees in writing with the
Parties hereto
to be bound by and to comply with all applicable provisions of this
Agreement as
a Stockholder hereunder.
"Stock
Option Plan" means the Corporation's 2001 Stock Option Plan, as
amended from time to time.
"Stock
Purchase Agreements" shall have the meaning in the first
recital
hereto.
"Subsidiary" means with respect to any Person ("Owner"), a Person
of which
the Owner or one or more of its Subsidiaries holds securities or
other interests
having the power to elect a majority of that Person's board of
directors or
similar governing body, or otherwise having the power to direct the
business and
policies of that Person (other than securities or other interests
having such
power only upon the happening of some contingency that has not
occurred).
"Third
Party Offer" shall have the meaning set forth in Section
7(d)(v)
hereof.
"Transfer", as to any Stock, means to sell, or in any other way
transfer,
assign, pledge, distribute, encumber or otherwise dispose of, such
Stock, either
voluntarily or involuntarily and with or without consideration.
"Wells
Fargo" means Wells Fargo Small Business Investment Company,
Inc.
"Wells
Financial" means Wells Fargo Financial, Inc.
"WF
Director" shall have the meaning set forth in Section 10(a)(ii)
hereof.
"WFS"
shall mean WFS Web Investments.
"WFS
Director" shall have the meaning set forth in Section 10(a)(v)
hereof.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
12
<PAGE>
SECTION 2.
LIMITATIONS ON TRANSFERS OF STOCK AND INVESTMENTS IN
COMPETITORS.
(a) During the term of this Agreement, no Stockholder shall
Transfer
any Stock (i) unless such Transfer is in accordance with all
applicable
securities laws or pursuant to an exemption therefrom and (ii)
without first
complying with the provisions of this Section 2. Any Transfer or
attempted
Transfer of any Stock in violation of any of the provisions of this
Section 2
shall be void, and the Corporation shall not record such Transfer
on its books
or treat any purported transferee of such Stock as the owner of
such Stock for
any purpose. In furtherance and not in limitation of the foregoing,
no Transfer
of Stock shall become effective unless and until the transferee
executes and
delivers to the Corporation a Joinder to this Agreement pursuant to
Section 16
below (a "Joinder"), agreeing to be treated in the same manner as
the
transferring Stockholder (i.e., as a Preferred Stockholder, a
Management
Stockholder or a Common Stockholder), with respect to the Stock so
Transferred.
(b) Except as permitted by Section 5 of the Regulatory
Sideletter,
prior to August 10, 2003, no Preferred Stockholder shall Transfer
any shares of
Stock, whether voluntarily, by operation of law or otherwise,
without the prior
approval of the Board; provided, however, that a Preferred
Stockholder may make
an Exempt Transfer of Stock without such prior approval of the
Board if the
recipient of such stock shall agree in writing with the Parties to
this
Agreement to be bound by and to comply with all applicable
provisions of this
Agreement and to be deemed a Preferred Stockholder.
(c) In addition to and not in limitation of Sections 2(a) and
(b),
during the term of this Agreement:
(i) each Stockholder shall not, at any time during the term of
this Agreement, Transfer any Stock without first complying with the
provisions
of Section 3; provided, that a Stockholder may make an Exempt
Transfer of Stock
without complying with Section 3 if the recipient of such Stock
shall agree in
writing with the Parties to this Agreement to be bound by and to
comply with all
applicable provisions of this Agreement and to be deemed a
Preferred
Stockholder, a Management Stockholder or a Common Stockholder, as
the case may
be; and
(ii) each Preferred Stockholder shall not, at any time during
the term of this Agreement, Transfer any Stock without first
complying with the
provisions of Section 4; provided, that a Preferred Stockholder may
make an
Exempt Transfer of Stock without complying with Section 4 if the
recipient of
such Stock shall agree in writing with the Parties to this
Agreement to be bound
by and to comply with all applicable provisions of this Agreement
and to be
deemed a Preferred Stockholder.
(d) Notwithstanding the foregoing, no Stockholder shall, at any
time
during the term of this Agreement, Transfer any Stock to any
competitor of the
Corporation (whether such Person is a competitor to be determined
in good faith
by the Board) unless, in the case of a Preferred Stockholder, the
proposed
recipient of such Stock is a Subsidiary of the ultimate parent
entity of such
Preferred Stockholder or the ultimate parent entity of such
Preferred
Stockholder.
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
13
<PAGE>
In addition, the provisions of this Agreement shall in any case be
subject in
all respects to the rights and restrictions contained in the
Certificate and the
By-Laws.
SECTION 3. RIGHT OF FIRST REFUSAL.
Except as otherwise provided in Section 2, each Stockholder
hereby
agrees that he or it shall not Transfer any Stock (other than
Exempt Transfers),
except in accordance with the following procedures:
(a) In the event such Stockholder receives and determines to
accept
a bona fide arms length offer from a Person who is not an Affiliate
of such
Stockholder to acquire any Stock of such Stockholder, the Selling
Group shall
first deliver to the Corporation and each other Stockholder a
written notice
(the "Section 3 Offer Notice"), which shall be irrevocable for a
period of 15
Business Days after delivery thereof, offering (the "Section 3
Offer") all of
the Stock proposed to be Transferred by the Selling Group at the
purchase price
and on the terms specified therein (such Notice of Offer shall
include the
foregoing information and all other relevant terms of the proposed
Transfer).
The Corporation shall have the right and option, for a period of 5
Business Days
after receipt of the Section 3 Offer Notice, to accept all, but not
less than
all, of the Stock so offered at the purchase price and on the terms
stated in
the Section 3 Offer Notice. Such acceptance shall be made by
delivering a
written notice to the Selling Group within said 5 Business Day
period.
(b) If the Corporation fails to accept all of the Stock offered
for
sale pursuant to, or shall reject in writing, the Section 3 Offer,
then the
other Stockholders shall have the right and option, for a period of
10 Business
Days after the expiration of the 5 Business Day period in Section
3(a), to
accept all, but not less than all, of the Stock so offered at the
purchase price
and on the terms stated in the Section 3 Offer Notice. Each
Stockholder may
exercise such purchase option and purchase all or any portion of
its
Proportionate Percentage of the Stock, by notifying the Corporation
and the
Selling Group in writing within 10 Business Days as to the shares
of Stock (up
to its full Proportionate Percentage) that it wishes to purchase.
If one or more
of the Stockholders do not fully exercise their right to purchase
their
respective Proportionate Percentage of the Stock pursuant to this
subparagraph
(b), the Corporation shall give written notice (the "Reallocation
Notice")
within 2 Business Days to all Stockholders, including the Selling
Group of such
fact, and the Stockholders who have elected to exercise their
rights to purchase
all of their Proportionate Percentage of the Stock pursuant to this
subparagraph
(b) (the "Participating Offerees") shall have the opportunity to
purchase all of
the shares of Stock with respect to which the right to purchase was
not
exercised pursuant to this subparagraph (b) (the "Non-Allocated
Stock"). The
Participating Offerees shall negotiate in good faith a written
agreement with
each other as to the reallocation of the right to purchase the
Non-Allocated
Stock and any such agreement shall be final and binding for
purposes of this
Section 3; provided, however, that if the Participating Offerees
cannot agree as
to the appropriate reallocation of such Non-Allocated Stock within
3 Business
Days after receipt of the Reallocation Notice, because one or more
Participating
Offerees desire to purchase more than their respective pro rata
share of the
Non-Allocated Stock, then the portion of the Non-Allocated Stock
that each such
Participating Offeree shall be entitled to purchase shall be
reduced in
proportion to its respective outstanding ownership interest in the
Corporation
on the date of the Reallocation Notice until the sum of the amounts
allocated to
the Participating Offerees is equal in total to the
Non-Allocated
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
14
<PAGE>
Stock; provided further, that such Participating Offeree that
desires to
purchase up to its full pro rata share of the Non-Allocated Stock
shall be
allocated the amount it desires to purchase. For purposes of this
subparagraph
(b), each Participating Offeree's pro rata share shall be a
fraction of the
Non-Allocated Stock, the numerator of which is the shares of Common
Stock, on a
Common Stock Equivalent Basis, on the date of the Reallocation
Notice held by
each Participating Offeree who desires to purchase any portion of
the
Non-Allocated Stock and the denominator of which is the sum of the
shares of
Common Stock, on a Common Stock Equivalent Basis, of all such
Participating
Offerees. The Participating Offerees shall have until the end of
the 10 Business
Day period specified in the first sentence of this subparagraph (b)
to accept
all, but not less than all, of the Stock and to deliver to the
Corporation and
the Selling Group a written agreement with respect to the purchase
of the
Non-Allocated Stock pursuant to the terms of this subparagraph
(b).
(c) A notice of acceptance delivered by either the Corporation or
a
Stockholder, as the case may be, pursuant to Section 3(a) or
Section 3(b), shall
be an irrevocable and binding commitment to purchase the Stock
referred to
therein.
(d) Transfers of Stock under the terms of Sections 3(a) and
3(b)
shall be made at the offices of the Corporation on a mutually
satisfactory
Business Day within 10 days after the expiration of the last
applicable period
described in Section 3(b) above. Delivery of certificates or other
instruments
evidencing such Stock duly endorsed for transfer shall be made on
such date
against payment of the purchase price therefor.
(e) If effective acceptance shall not be received pursuant to
Sections 3(a) or 3(b) with respect to all Stock offered for sale
pursuant to the
Section 3 Offer Notice, then the Selling Group may Transfer all,
but not less
than all, of the Stock so offered and not so accepted, but only in
compliance
with Section 2(b) hereof and upon terms and conditions in all
material respects,
including, without limitation, price and interest rates, which are
no more
favorable, in the aggregate, to the purchaser thereof than those
set forth in
the Section 3 Offer Notice, at any time within 90 days after the
expiration of
the offer required by Sections 3(a) and 3(b). In the event that the
Stock is not
Transferred by the Selling Group during such 90-day period, the
right of the
Selling Group to Transfer such Stock shall expire and the
obligations of this
Section 3 shall be reinstated.
SECTION 4. RIGHT OF CO-SALE.
(a) In the event that any Preferred Stockholder (hereinafter,
the
"Section 4 Offeree") receives and determines to accept a bona fide
arms length
offer (the "Section 4 Offer") from a third party that is not an
Affiliate of
such Preferred Stockholder (the "Section 4 Offeror") to purchase
all or any
portion of the shares of Stock held by such Preferred Stockholder
(other than
Exempt Transfers) for a specified price payable in cash or
otherwise and on
specified terms and conditions, such Section 4 Offeree shall
promptly forward a
notice complying with Section 4(b) (the "Section 4 Notice") to the
other
Stockholders. Subject to Section 4(c), the Section 4 Offeree shall
not Transfer
any Stock to the Section 4 Offeror unless the terms of the Section
4 Offer are
extended to the other Stockholders with respect to their
Proportionate
Percentage of the aggregate number of shares of Stock to which the
Section 4
Offer relates, whereupon each other Stockholder shall be entitled
to Transfer to
the Section 4 Offeror pursuant to the Section 4 Offer,
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
15
<PAGE>
such other Stockholder's Proportionate Percentage of the aggregate
number of
shares of Stock to which the Section 4 Offer relates.
(b) The Section 4 Notice shall set forth (i) the number of shares
of
Stock to which the Section 4 Offer relates and the name of the
Section 4
Offeree, (ii) the name and address of the Section 4 Offeror, (iii)
the proposed
amount and type of consideration (including, if the consideration
consists in
whole or in part of non-cash consideration, such information
available to the
Section 4 Offeree as may be reasonably necessary for the
Stockholders to
properly analyze the economic value and investment risk of such
non-cash
consideration) and the terms and conditions of payment offered by
the Section 4
Offeror and (iv) that the Section 4 Offeror has been informed of
the co-sale
rights provided for in this Section 4 and has agreed to purchase
Stock in
accordance with the terms of this Section 4.
(c) Anything contained herein to the contrary notwithstanding,
but
subject to Section 2, the Section 4 Offeree shall, in addition to
complying with
the provisions of this Section 4, comply with the provisions of
Section 3 (it
being understood that the Section 3 Offer Notice contemplated by
Section 3(a)
and the Section 4 Notice may be included in a single notice), and
each
Stockholder, prior to Transferring any Stock to the Section 4
Offeror, shall
comply with the provisions of Section 3.
SECTION 5. REPURCHASE RIGHT.
(a) Repurchase of Common Stock in the Event of Termination of
Employment. In the event of a termination of a Management
Stockholder's
employment by or service to the Corporation for any reason
whatsoever other than
the death of such Management Stockholder (a "Repurchase Event"),
such Management
Stockholder and the transferee(s) thereof following an Exempt
Transfer pursuant
to the terms of this Agreement, if any (collectively, the
"Management Group"),
shall be required to offer to sell to the Corporation and its
Designees (as
defined below, and collectively with the Corporation, the
"Corporation Group")
the Common Stock held by such Management Group pursuant to the
terms of this
Section 5.
(i) In the event a Repurchase Event occurs, the Corporation
shall have
the right (but not the obligation) (the "Repurchase Right")
during the
90-day period following such Repurchase Event (the "Repurchase
Period")
to purchase all or any portion of all of the Stock held by the
Management
Group (the "Repurchase Shares") in accordance with the
provisions
of this Section 5(a). During the Repurchase Period, the
Corporation shall provide written notice of the occurrence of a
Repurchase
Event to
the Board and the Management Group, which notice shall include
the number
of Repurchase Shares held by the Management Group (the
"Repurchase Notice"). The Corporation shall, as promptly as
practicable
after a
Repurchase Event, provide written notice to the Management
Group
of the
determination of the Fair Market Value of the Repurchase
Shares,
with the
date of determination thereof pursuant to the terms of this
Agreement
being hereinafter referred to as the "FMV Determination Date."
The
Corporation may initially elect to purchase all, or any portion,
of
the
Repurchase Shares at a price equal to the Fair Market Value thereof
by
delivering
a written notice of such election to the Management Group at
any time
during the Repurchase Period; provided, however, that in the
event of a
Repurchase Event caused by the termination for Cause of the
Management
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
16
<PAGE>
Stockholder, the purchase price of the Repurchase Shares shall be
equal to
the lower
of the Original Cost and the Fair Market Value thereof;
provided
further,
however, that the Corporation's right to repurchase the Stock
at
the lower
of Original Cost and the Fair Market Value shall lapse at the
rate of
20% of the shares of Stock per year from the date the option to
purchase
such shares of Stock was granted (without respect to the date
the
option was
exercised or became exercisable). Notwithstanding the
foregoing,
the Corporation's Repurchase Right shall expire on the date the
Corporation's securities become publicly traded.
(ii) If the Corporation elects to purchase less than all of
the
Repurchase Shares, the Corporation shall be permitted to
designate
(the
"Repurchase Designation") to one or more designees (each, a
"Designee") the right (but not the obligation) to purchase from
the
Management
Group the Repurchase Shares not being purchased by the
Corporation (such shares being the "Designated Shares"), subject to
terms
of this
paragraph and Section 16 below. The Corporation shall, as
promptly
as
practicable after a Repurchase Designation, provide written notice
(the
"Designation Notice") to each Investor of the number of Designated
Shares,
the name
and address of each Designee and the Fair Market Value of the
Designated
Shares. Each Investor may elect to purchase up to such
Investor's
Proportionate Percentage of the Designated Shares at a price
equal to
the purchase price for such Designated Shares determined
pursuant
to Section
5(a)(i) above by delivering a written notice of such election
(the
"Election Notice") to the Corporation within 10 Business Days
of
receipt of
the Designation Notice. If the Corporation receives an Election
Notice
from an Investor, then the Corporation shall designate to such
Investor
the right to purchase that number of Designated Shares set
forth
in the
Election Notice, subject to the limitations set forth in the
preceding
sentence. The number of Repurchase Shares shall be reduced by
the
aggregate number of Designated Shares set forth in the Election
Notices, if any,
received by the Corporation from the Investors. Each
Designee
shall only be permitted to purchase the number of Repurchase
Shares (if
any) equal to such Designee's pro rata portion of the aggregate
number of
Designated Shares, minus the aggregate number of shares for
which
Election Notices were received by the Corporation.
(iii) The number of shares of Stock to be purchased by the
Corporation, the Designees and/or the Investors (as applicable)
shall
first be
satisfied to the extent possible from the Repurchase Shares
held
by the
Management Stockholder at the time of the distribution by the
Corporation of the Repurchase Notice. If the number of Repurchase
Shares
then held
by the Management Stockholder is less than the total number of
Repurchase
Shares the Corporation, the Designees and/or the Investors (as
applicable) have elected to purchase, the Corporation, the
Designees
and/or the
Investors (as applicable) shall purchase the remaining
Repurchase
Shares elected to be purchased from the other members of the
Management
Group pro rata according to the number of Repurchase Shares
held by
such other members of the Management Group at the time of
distribution of such Repurchase Notice (determined as nearly as
practicable to the nearest share).
(b) Repurchase Upon Death of Management Stockholder. In the event
of
the death of any Management Stockholder (including a death that
occurs while the
Management
Fourth Amended and Restated
EXECUTION
Stockholders' Agreement
17
<PAGE>
Stockholder is employed or retained by the Corporation or an
Affiliate thereof)
(a "Decedent"), the provisions of paragraph (a) above shall apply
as if a
Repurchase Event had occurred; provided, however, that (i) the
Repurchase Notice
required to be delivered by the Corporation to the Board shall be
delivered to
the personal representative of the Decedent promptly after being
appointed as
such, (ii) the Management Stockholder, for purposes of Section 5(a)
above, shall
be the Decedent's personal representative and (iii) the Management
Group shall
include the Decedent and the transferee(s) thereof following an
Exempt Transfer.
The Corporation may, at its option, maintain life insurance on the
lives of any
Management Stockholder for the purpose of financing the acquisition
of all or a
portion of Shares being repurchased from such Management
Stockholder pursuant to
this Section 5(b). The proceeds of any such life insurance (the
"Life Insurance
Proceeds") shall be payable to the Corporation. Each Management
Stockholder
agrees to reasonably cooperate with the Corporation in connection
with obtaining
any such life insurance.
(c) Payment of Purchase Price.
(i) In the event that the Corporation terminates the
Management
Stockholder's employment or service without Cause, the purchase
price
payable by the Corporation, the Designees and/or the Investors
(as
applicable) pursuant to Section 5(a) or (b) above shall be payable
in cash
within 90
days after delivery of the Repurchase Notice.
(ii) In the event that the Management Stockholder terminates
his
employment with the Corporation or the Corporation terminates
such
employment
for Cause, the purchase price payable by the Corporation, the
Designees
and/or the Investors (as applicable) pursuant to Section 5(a)
or
(
