AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
This Amended and Restated Stockholders' Agreement (this "Agreement")
is made and entered into as of September 30, 1999, by and among the parties
listed on the signature pages attached hereto (the "Stockholders") and City
Truck Holdings, Inc., a Delaware corporation (the "Company").
RECITALS
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WHEREAS, the Stockholders, owning 97.95% of the outstanding shares of
Common Stock of the Company, par value $.01 per share ("Company Common Stock"),
95% of the outstanding shares of Series A Preferred Stock of the Company, par
value $.01 per share ("Series A Preferred"), and 100% of the outstanding shares
of Series B Preferred Stock of the Company, par value $.01 per share (together
with Series A Preferred, "Company Preferred Stock," and Company Preferred Stock
and Company Common Stock being referred to collectively as "Company Stock"), and
100% of the outstanding options to acquire Company Stock (the "Options"), desire
to enter into this Agreement for the purposes of amending and restating that
certain Stockholders' Agreement among the Company and certain of its
stockholders dated as of September 30, 1998, and regulating certain aspects of
their relationship on and after the date hereof;
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto, intending to be
legally bound hereby, agree as follows:
Section I. Authorization.
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Each Stockholder hereby represents and warrants to the Company and to
each other that (i) such Stockholder has full power and authority to execute and
deliver this Agreement and perform such Stockholder's obligations hereunder,
(ii) the execution and delivery of this Agreement has been duly and validly
authorized, and all necessary action has been taken, to make this Agreement a
valid and binding obligation of such Stockholder, enforceable in accordance with
its terms, except that the enforcement hereof may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and to general principles of
equity (regardless of whether such enforcement is considered in a proceeding in
equity or at law), and (iii) the execution and delivery of this Agreement, the
consummation of the transactions contemplated hereby in accordance with the
terms of this Agreement and the performance of such Stockholder's obligations
hereunder will not conflict with, or result in any violation of or default
under, any provision of any governing instrument applicable to such Stockholder
or any agreement or other instrument to which such Stockholder is a party or by
which such Stockholder or any of such Stockholder's properties are bound or any
permit, franchise, judgment, decree, statute, rule or regulation applicable to
such Stockholder or such Stockholder's properties or assets.
Section II. Certain Covenants of the Company.
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When it is first legally required to do so, the Company will register
the Company Common Stock under Section 12 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), will keep such registration effective and
will timely file such information, documents and reports as the Securities and
Exchange Commission (the "Commission") may require or prescribe under Section 13
of the Exchange Act, including the rules of the Commission promulgated
thereunder. From and after the effective date of any registration statement
filed by the Company under the Securities Act of 1933, as amended (the
"Securities Act"), the Company will timely file such information, documents and
reports as the Commission may require under Section 13 or 15(d) (whichever is
applicable) of the Exchange Act, including the rules of the Commission
promulgated thereunder. Immediately upon becoming subject to the reporting
requirements of either Section 13 or 15(d) of the Exchange Act, the Company will
forthwith upon request furnish any Stockholder (i) a written statement by the
Company that it has complied with such reporting requirements, (ii) a copy of
the most recent annual or quarterly report of the Company filed by the Company
with the Commission, and (iii) such other reports and documents filed by the
Company with the Commission as such Stockholder may reasonably request. The
Company acknowledges and agrees that the purpose of the requirements contained
in this Section II is to enable any such Stockholder to comply with the current
public information requirements contained in Commission Rule 144 and Rule 144A
under the Securities Act should such Stockholder ever wish to dispose of any
Company Stock without registration under the Securities Act in reliance upon
Rule 144 or Rule 144A (or any other similar exemptive provision) and such
disposition is permitted by the terms of this Agreement. In addition, the
Company will take such other measures and file such other information, documents
and reports, as shall hereafter be required by the Commission as a condition to
the availability of Rule 144 and Rule 144A under the Securities Act (or any
similar exemptive provision hereafter in effect).
Section III. Rights of First Refusal.
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A. Except as set forth in Section VII or the immediately following
sentence, before any shares of Company Stock, or any beneficial interest
therein, may be sold, transferred or assigned (including transfer by operation
of law) or pledged, hypothecated or encumbered by any Stockholder (a "Selling
Stockholder") such shares shall first be offered to the Company and other
Stockholders owning the same class or series of Company Stock (the "Applicable
Class Stockholders") in the manner set forth in this Section III. The
provisions of the immediately preceding sentence shall not apply to a transfer,
assignment or pledge to a bank or other lending institution to secure loans
extended by such bank or other lending institution for any purpose, provided
that, prior to such transfer, assignment or pledge, such bank or other lending
institution agrees in writing to be bound by the provisions of this Agreement
and delivers written notice of such agreement to the Company. Any purported
transfer in violation of the provisions of this Section III shall be void and
ineffective and shall not operate to transfer any interest in or title to the
shares of Company Stock to the purported transferee.
B. The Selling Stockholder shall deliver a notice (the "Selling
Stockholder Notice") to the Company stating (i) the Selling Stockholder's bona
fide intention to sell or transfer such shares, (ii) the number of shares
proposed to be sold or transferred (the "Noticed Shares"), (iii) the price for
which it is proposed to sell or transfer the Noticed Shares (in the case of a
transfer not involving a sale, such price shall be deemed to be the fair market
value of the
Noticed Shares as determined pursuant to Section III.D hereof), the terms of
payment of that price and the other terms and conditions of sale, and (iv) the
name and address of the proposed purchaser or transferee. Other than as
permitted by Section VII or as a bona fide gift, a Selling Stockholder shall not
effect, or attempt to effect, any sale or other transfer for value of the
Company Stock other than for money or an obligation to pay money.
C. For a period of thirty (30) days after receipt of the Selling
Stockholder Notice, the Company or its assignee or assignees (other than Aurora,
Aurora Overseas, BABF, HDA, QDEP or an Affiliate of Aurora, Aurora Overseas,
BABF, HDA or QDEP) (any such assignee being hereinafter referred to as
"Permitted Assignee") shall have the option, but not the obligation, to purchase
all, but not less than all, of the Noticed Shares. If the Company (including
its Permitted Assignee or Permitted Assignees) elects not to purchase all of the
Noticed Shares, it shall give written notice (the "Company Notice") to the other
Applicable Class Stockholders within the thirty (30) day period following
receipt of the Selling Stockholder Notice, and for a period of twenty (20) days
after receipt of the Company Notice, the other Applicable Class Stockholders
shall have the option, but not the obligation, to purchase all, but not less
than all, of the Noticed Shares not elected for purchase by the Company
(including its Permitted Assignee or Permitted Assignees), and such purchase,
unless otherwise agreed among the Applicable Class Stockholders that elect to
purchase such Noticed Shares, shall be pro rata in proportion to the number of
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shares of such class or series held by each Applicable Class Stockholder that
elects to purchase such Noticed Shares relative to the aggregate number of
shares of such class or series held by all of the Applicable Class Stockholders
that elect to purchase such Noticed Shares) on the same terms and conditions as
set forth in the Selling Stockholder Notice. The price per share of the Noticed
Shares purchased pursuant to this Section III.C shall be, in the case of a sale,
the price per share as set forth in the Selling Stockholder Notice and, in the
case of a transfer not involving a sale, the fair market value of such shares
determined pursuant to Section III.D hereof, and the purchase shall be in all
other material respects on the same terms and subject to the same conditions as
those set forth in the Selling Stockholder Notice.
D. In the case of a transfer of shares of Company Stock not
involving a sale, the fair market value of the shares shall be determined in
good faith by the Board of Directors of the Company (the "Board"), and such
determination will be final and binding upon all parties and persons claiming
under or through them; provided, however, if a Selling Stockholder is not
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satisfied with such determination of fair market value, the Selling Stockholder
may elect not to proceed with the proposed transfer of shares of Company Stock
not involving a sale and retain such shares under this Agreement.
E. If the Company (including its Permitted Assignee or Permitted
Assignees) and the other Applicable Class Stockholders do not elect to purchase
all of the Noticed Shares, then none of such shares shall be purchased, unless
the Selling Stockholder elects otherwise, and the Selling Stockholder may sell
or transfer all (but not less than all) of such shares (less any shares that
such Selling Stockholder has otherwise elected to sell pursuant to the election
permitted in the first part of this compound sentence) to the purchaser or
transferee named in the Selling Stockholder Notice at, in the case of a sale, at
a price and on terms no less favorable than those set forth in the Selling
Stockholder Notice, provided that such sale or transfer is
consummated within five (5) months following the date of the Selling Stockholder
Notice.
F. The provisions of this Section III shall terminate upon the
earlier of (i) the closing of an underwritten public offering of Company Common
Stock pursuant to a registration statement declared effective under the
Securities Act, following which the Company Common Stock is listed on a national
securities exchange or The Nasdaq Stock Market, provided that the net proceeds
of such offering are not less than $50,000,000 (such an offering being
hereinafter referred to as a "Qualified IPO"), or (ii) the transfer, by sale or
exchange of shares or merger, consolidation or other business combination
involving the Company or otherwise, of outstanding shares of the capital stock
of the Company representing more that 50% of the voting power in terms of the
election of directors of the Company; provided, however, that no such transfer
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shall be deemed to have occurred as the result of (1) any redemption by the
Company of all or any portion of any series of its outstanding preferred stock,
(2) any acquisition by the Company or an employee benefit plan (or related
trust) sponsored or maintained by the Company or any subsidiary of the Company,
or by the Brentwood Group or the Aurora Group or any of their respective
Affiliates, of shares of the capital stock of the Company or (3) a merger,
consolidation or other business combination involving the Company if,
immediately following such merger, consolidation or other business combination,
(a) all or substantially all of the individuals and entities that were the
beneficial owners (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of each class of the outstanding voting stock of the Company
immediately prior to such merger, consolidation or other business combination
directly or indirectly beneficially own more than 50% of the combined voting
power of each class of the then outstanding voting securities of the entity
resulting from such merger, consolidation or other business combination
(including but not limited to an entity that, as a result of such transaction,
owns the Company or all or substantially all of the Company's assets either
directly or indirectly or through one or more subsidiaries) in substantially the
same proportions, relative to each other, as their ownership of such class of
the voting stock of the Company immediately prior to such merger, consolidation
or other business combination, and (b) no individual, entity or group (within
the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (other than the
Company, the entity resulting from such merger, consolidation or other business
combination, any employee benefit plan (or related trust) sponsored or
maintained by the Company, a subsidiary of the Company or the entity resulting
from such merger, consolidation or other business combination or the Brentwood
Group, the Aurora Group or any of their respective Affiliates) directly or
indirectly beneficially owns 50% or more of the combined voting power of the
then outstanding voting securities of the entity resulting from such merger,
consolidation or other business combination.
G. (a) Each Stockholder shall notify the Company, Aurora and
Brentwood promptly upon the occurrence of an Involuntary Transfer of any shares
of Company Stock. If an Involuntary Transfer of any of the shares of Company
Stock owned by any Stockholder shall occur, the parties hereto shall have the
same rights of first refusal under this Section III with respect thereto (the
"Transferred Securities") as if the Involuntary Transfer had been a proposed
voluntary transfer by such Stockholder, the same procedures set forth above
shall apply, except that:
(i) the periods within which such rights must be exercised
shall run from the date that notice of the Involuntary Transfer is received
from the Stockholder or
its legal representative; and
(ii) such rights shall be exercised by notice (an "Involuntary
Transfer Notice") to the transferee of the Involuntary Transfer rather than
to the Stockholder with respect to which such Involuntary Transfer has
occurred.
(b) In the event that the provisions of this Section III.G shall be
held to be unenforceable with respect to any particular Involuntary Transfer of
shares of Company Stock, the parties hereto shall have the rights of first
refusal set forth in this Section III if the transferee of the Involuntary
Transfer subsequently obtains a bona fide offer for and desires to transfer such
Transferred Securities.
Section IV. Tag-Along Rights.
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A. If any Stockholder then owning 10% or more of the outstanding
shares of any class or series of Company Stock (in such capacity, a "Selling 10%
Stockholder") at any time or from time to time enter(s) into an oral or written
agreement to directly or indirectly transfer, sell or otherwise dispose of (a
"Tag-Along Sale") outstanding shares of any class or series of Company Stock or
any interest therein, then, in addition to the rights set forth in Section III,
each other Stockholder shall have the right, but not the obligation, to
participate in the Tag-Along Sale (and to displace the Selling 10% Stockholder
to the extent of such participation) by selling up to such Stockholder's pro
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rata share (in proportion to the number of shares of such class or series held
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by each other Stockholder so electing to participate) of the number of shares of
Company Stock (the "Stockholders' Allotment") equal to the product of (i) the
total number of shares of Company Stock proposed to be sold or otherwise
disposed of by the Selling 10% Stockholder in the Tag-Along Sale multiplied by
(ii) a fraction, the numerator of which shall equal the aggregate number of
shares of Company Stock owned immediately prior to the Tag-Along Sale by
Stockholders (other than the Selling 10% Stockholder) who have elected to
participate in the Tag-Along Sale, and the denominator of which shall equal the
sum of (1) the aggregate number of shares of Company Stock owned immediately
prior to the Tag-Along Sale by the Selling 10% Stockholder and (2) the aggregate
number of shares of such class of Company Stock owned immediately prior to the
Tag-Along Sale by Stockholders (other than the Selling 10% Stockholder) who have
elected to participate in such Tag-Along Sale. Each other Stockholder shall
only have the right to include shares of Company Stock of the same class or
classes as is or are being sold by the Selling 10% Stockholder. If the Selling
10% Stockholder is selling more than one class of Company Stock, the provisions
of this Section IV shall apply separately to each such class; provided, however,
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that no Stockholder may elect to participate in a Tag-Along Sale with respect to
one class of stock unless such stockholder elects to participate, on a pro rata
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basis, with respect to all other classes of Company Stock being transferred by
the Selling 10% Stockholder as well.
Any such sale by any Stockholder shall be on the same terms and
conditions as the proposed Tag-Along Sale by the Selling 10% Stockholder;
provided, however, that all selling Stockholders shall share pro rata, based
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upon the number of shares of each class or series of Company Stock being sold by
each such Stockholder (i) in any indemnity liabilities to the purchaser in the
Tag-Along Sale (other than liabilities for breaches of representations as to
unencumbered ownership of and ability to transfer the shares being sold in the
Tag-Along Sale ("Title Representations"), which shall be the sole responsibility
of the selling Stockholder who breaches any of such Stockholder's Title
Representations) and (ii) in any escrow for the purpose of satisfying any such
indemnity liabilities; provided, however, if a Selling 10% Stockholder is
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selling more than two-thirds of its total Company Preferred Stock or Company
Common Stock in the Tag-Along Sale, then the provisos in the second paragraph of
Section V.A shall apply to the Tag-Along Sale to limit the obligations of any
less than 10% Stockholder participating in the Tag-Along Sale.
B. The Selling 10% Stockholder shall promptly provide each
Stockholder with written notice (the "Tag-Along Sale Notice") not more than 60
days and not less than 20 days prior to the proposed date of the Tag-Along Sale
(the "Tag-Along Sale Date"). In order to facilitate the prompt delivery of the
Tag-Along Sale Notices, the Company hereby covenants to provide the Selling 10%
Stockholder access to the stock record books of the Company. Each Tag-Along
Sale Notice shall set forth (i) the name and address of each proposed transferee
or purchaser of shares of Company Stock in the Tag-Along Sale, (ii) the name and
address of the Selling 10% Stockholder and the number of shares of Company Stock
proposed to be transferred or sold by the Selling 10% Stockholder member, (iii)
the proposed amount and form of consideration to be paid for such shares and the
terms and conditions of payment offered by each proposed transferee or
purchaser, (iv) the aggregate number of shares of Company Stock held of record
as of the close of business on the date of the Tag-Along Sale Notice (the "Tag-
Along Notice Date") by the Stockholder to whom the notice is sent and the
aggregate number of such Stockholder's shares of Company Stock outstanding on
the Tag-Along Notice Date, (v) the aggregate number of shares of Company Stock
held of record as of the Tag-Along Notice Date by the Selling 10% Stockholder,
(vi) the maximum number of shares of Company Stock (the "Stockholder's
Allotment") that the Stockholder to whom the notice is sent is entitled to
include in the Tag-Along Sale assuming each Stockholder elected to participate
in the Tag-Along Sale and elected to sell the maximum number of shares owned by
each such Stockholder, (vii) the number of shares of each class of Company Stock
constituting the Stockholders' Allotment, (viii) confirmation that the proposed
purchaser or transferee has been informed of the "Tag-Along Rights" provided for
herein and has agreed to purchase shares of Company Stock in accordance with the
terms hereof, (ix) the estimated Tag-Along Sale Date and (x) confirmation that,
with respect to the shares of Company Stock to be acquired by the proposed
transferee or purchaser, the proposed transferee or purchaser agrees in writing
to be bound by, and covenants that each subsequent transferee of any such shares
shall be bound by, the provisions of this Agreement as if he or it were the
Selling 10% Stockholder.
Each Stockholder shall provide written notice (or oral notice
confirmed in writing within five (5) days) (the "Tag-Along Notice") of such
Stockholder's election to participate in the Tag-Along Sale to the Selling 10%
Stockholder no less than 10 days prior to the Tag-Along Sale Date. The Tag-
Along Notice shall set forth the number of shares of Company Stock, if any, that
such Stockholder desires to include in the Tag-Along Sale (which shall not
exceed such Stockholder's Allotment of each affected class of Company Stock).
The Tag-Along Notice shall
also specify the aggregate number of additional shares, if any, of each affected
class of Company Stock owned of record as of the Tag-Along Notice Date by such
Stockholder that such Stockholder desires to also include in the Tag-Along Sale
("Additional Shares") in the event that all Stockholders do not elect to
participate in the Tag-Along Sale or do not elect to sell or dispose of the
entire amount of their respective Stockholder's Allotment of each affected class
of Company Stock. In such event, the Selling 10% Stockholder shall apportion the
aggregate number of Additional Shares to Stockholders whose Tag-Along Notices
specified an amount of Additional Shares, which apportionment shall be on a pro
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rata basis among such Stockholders in accordance with the number of Additional
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Shares of each affected class of Company Stock specified by all such
Stockholders in their Tag-Along Notices.
The Selling 10% Stockholder shall determine the aggregate number of
shares of Company Stock to be sold by each participating Stockholder in any
given Tag-Along Sale in accordance with the terms hereof, and the Tag-Along
Notices given by the Stockholders shall constitute their respective binding
agreements to sell such shares on the terms and conditions applicable to such
sale (including the requirements of this Section IV). Except as otherwise
provided herein, if the proposed transferee or purchaser does not purchase all
of such shares on the same terms and conditions as are applicable to the Selling
10% Stockholder, then none shall be purchased.
If a Tag-Along Notice is not received by the Selling 10% Stockholder
from at least one other Stockholder within the ten (10) day period specified
above, the Selling 10% Stockholder shall have the right to sell or otherwise
transfer the number of shares of Company Stock specified in the Tag-Along Sale
Notice to the proposed purchaser or transferee without any participation by any
other Stockholder, but only on terms and conditions no more favorable to the
purchaser or transferee than those stated in the Tag-Along Sale Notice and only
if such sale occurs on a date within twenty (20) Business Days of the Tag-Along
Sale Date.
C. The provisions of this Section IV shall apply regardless of the
form of consideration received in the Tag-Along Sale. The provisions of this
Section IV shall not apply to (i) any transfer permitted by Section VII or (ii)
any transfer, assignment or pledge to a bank or other lending institution to
secure loans extended by such bank or other lending institution for any purpose,
provided that, prior to such transfer, assignment or pledge, such bank or other
lending institution agrees in writing to be bound by the provisions of this
Agreement and delivers written notice of such agreement to the Company.
D. The provisions of this Section IV shall terminate on the earlier
of (i) the closing of a Qualified IPO or (ii) the transfer, by sale or exchange
of shares or merger, consolidation or other business combination involving the
Company or otherwise, of outstanding shares of the capital stock of the Company
representing more that 50% of the voting power in terms of the election of
directors of the Company; provided, however, that no such transfer shall be
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deemed to have occurred as the result of (1) any redemption by the Company of
all or any portion of any series of its outstanding preferred stock, (2) any
acquisition by the Company or an employee benefit plan (or related trust)
sponsored or maintained by the Company or any subsidiary of the Company, or by
the Brentwood Group or the Aurora Group or any of their respective Affiliates,
of shares of the capital stock of the Company or (3) a merger, consolidation
or other business combination involving the Company if, immediately following
such merger, consolidation or other business combination, (a) all or
substantially all of the individuals and entities that were the beneficial
owners (within the meaning of Rule 13d-3 promulgated under the Exchange Act) of
the outstanding voting stock of the Company immediately prior to such merger,
consolidation or other business combination directly or indirectly beneficially
own more than 50% of the combined voting power of the then outstanding voting
securities of the entity resulting from such merger, consolidation or other
business combination (including but not limited to an entity that, as a result
of such transaction, owns the Company or all or substantially all of the
Company's assets either directly or indirectly or through one or more
subsidiaries) in substantially the same proportions, relative to each other, as
their ownership of the voting stock of the Company immediately prior to such
merger, consolidation or other business combination, and (b) no individual,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (other than the Company, the entity resulting from such merger,
consolidation or other business combination, any employee benefit plan (or
related trust) sponsored or maintained by the Company, a subsidiary of the
Company or the entity resulting from such merger, consolidation or other
business combination or the Brentwood Group, the Aurora Group or any of their
respective Affiliates) directly or indirectly beneficially owns 50% or more of
the combined voting power of the then outstanding voting securities of the
entity resulting from such merger, consolidation or other business combination.
Section V. Drag-Along Rights.
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A. In the event the Brentwood Group and the Aurora Group (in such
capacity, the Brentwood Group and the Aurora Group being referred to
collectively as the "Drag-Along Group") determine in writing to accept an offer
from an unaffiliated third party (other than an Affiliate of any member of the
Drag-Along Group) to acquire 100% of the outstanding shares of Company Stock,
then, subject to Section V.C below, at the option of the Drag-Along Group, each
of the other Stockholders shall sell, and shall cause any Affiliate of such
other Stockholder to sell, all shares of Company Stock held by such Stockholder
or Affiliate pursuant to such offer to purchase (the "Drag-Along Sale"). All
holders of Company Stock (i) shall receive in the Drag-Along Sale the same
consideration per share of each class of Company Stock, shall be subject to the
same terms and conditions of sale and shall otherwise be treated equally or,
where appropriate, pro rata based upon the number of shares of such class of
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Company Stock held by each Stockholder, and (ii) shall execute such documents
and take such other actions, including the voting of shares or acting by written
consent, as may be reasonably required by the Drag-Along Group in order to
effect the Drag-Along Sale.
Any such sale by any Stockholder shall be on the same terms and
conditions as the proposed Drag-Along Sale by the Drag-Along Group; provided,
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however, that all selling Stockholders shall share pro rata, based upon the
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number of shares of each class of Company Stock being sold by each Stockholder,
in any escrow or holdback (which shall be limited to 20% of the cash
consideration received by all Stockholders with respect to the shares of Company
Stock) established for the purpose of satisfying indemnity liabilities to the
purchaser in the Drag-Along Sale (other than liabilities for breaches of Title
Representations, which shall be the sole responsibility of the selling
further provided, however, except for breaches of Title Representations, each
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selling Stockholder's sharing obligation hereunder with respect to such
indemnity or other liabilities shall be limited to such escrow or holdback. In
no circumstance whatsoever, except breaches of Title Representations, shall any
recourse be had against any selling Stockholder, whether by levy or execution or
under any law or by the enforcement of any assessment or penalty or otherwise
(it being understood that, except with respect to breaches of Title
Representations, the sole source for enforcing a selling Stockholder's sharing
obligation hereunder shall be such escrow or holdback). Any amount returned to
selling Stockholders from such escrow or holdback shall be returned pro rata in
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proportion to the number of shares of Company Stock held by each of them.
The consideration for the Drag-Along Sale may be in any form;
provided, however, that such consideration must include cash (exclusive of cash
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deposited in escrow or holdback) in an amount sufficient to allow each
participant in the Drag-Along Sale to pay its federal and state taxes on the
transaction at assumed rates equal to the highest applicable federal and state
rates.
B. The Drag-Along Group members participating in a Drag-Along Sale
shall promptly provide each Stockholder with written notice (the "Drag-Along
Sale Notice") not more than sixty (60) days and not less than twenty (20) days
prior to the date of the Drag-Along Sale (the "Drag-Along Sale Date"). Each
Drag-Along Sale Notice shall set forth (i) the name and address of each proposed
transferee or purchaser of shares of Company Stock in the Drag-Along Sale, (ii)
the proposed amount and form of consideration to be paid for such shares and the
terms and conditions of payment offered by each proposed transferee or
purchaser, (iii) confirmation that the proposed purchaser or transferee has been
informed of the "Drag-Along Rights" provided for herein and has agreed to
purchase shares of Company Stock in accordance with the terms hereof, and (iv)
the estimated Drag-Along Sale Date.
C. The provisions of this Section V shall apply regardless of the
form of consideration received in the Drag-Along Sale, and if any non-cash
consideration is proposed in the Drag-Along Sale to each member of the Drag-
Along Group, each Stockholder shall accept such Stockholder's pro rata share of
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such non-cash consideration for Company Stock based upon such Stockholder's
proportional ownership of shares of each class of Company Stock. The provisions
of this Section V shall also apply to any exchange of Company Preferred Stock
for, or reclassification of Company Preferred Stock into, Company Common Stock,
as if such transaction were a sale subject to this Section V.
D. The provisions of this Section V shall terminate on the earlier
of (i) the closing of a Qualified IPO or (ii) the transfer, by sale or exchange
of shares or merger, consolidation or other business combination involving the
Company or otherwise, of outstanding shares of the capital stock of the Company
representing more that 50% of the voting power in terms of the election of
directors of the Company; provided, however, that no such transfer shall be
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deemed to have occurred as the result of (1) any redemption by the Company of
all or any portion of any series of its outstanding preferred stock, (2) any
acquisition by the Company or an employee benefit plan (or related trust)
sponsored or maintained by the Company or any subsidiary of the Company, or by
the Brentwood Group or the Aurora Group or any of their respective Affiliates,
of shares of the capital stock of the Company or (3) a merger, consolidation or
other business combination involving the Company if, immediately following such
merger,
consolidation or other business combination, (a) all or substantially all of the
individuals and entities that were the beneficial owners (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of the outstanding voting stock
of the Company immediately prior to such merger, consolidation or other business
combination directly or indirectly beneficially own more than 50% of the
combined voting power of the then outstanding voting securities of the entity
resulting from such merger, consolidation or other business combination
(including but not limited to an entity that, as a result of such transaction,
owns the Company or all or substantially all of the Company's assets either
directly or indirectly or through one or more subsidiaries) in substantially the
same proportions, relative to each other, as their ownership of the voting stock
of the Company immediately prior to such merger, consolidation or other business
combination, and (b) no individual, entity or group (within the meaning of
Section 13(d)(3) or 14(d)(2) of the Exchange Act) (other than the Company, the
entity resulting from such merger, consolidation or other business combination,
any employee benefit plan (or related trust) sponsored or maintained by the
Company, a subsidiary of the Company or the entity resulting from such merger,
consolidation or other business combination or the Brentwood Group, the Aurora
Group or any of their respective Affiliates) directly or indirectly beneficially
owns 50% or more of the combined voting power of the then outstanding voting
securities of the entity resulting from such merger, consolidation or other
business combination.
Section VI. Registration Rights.
-------------------
The Stockholders shall have the registration rights ("Registration
Rights",) set forth in Exhibit A hereto, which is hereby incorporated herein as
if set forth in full in this Agreement.
Section VII. Exempt Transfers.
----------------
The provisions of Section III and Section IV shall not apply to a
transfer by a Stockholder, either during such Stockholder's lifetime or by will
or intestacy upon his death, to (i) the Company or any subsidiary thereof; (ii)
such Stockholder's ancestors, descendants, spouse, brothers, sisters, nephews or
nieces; (iii) any custodian, guardian, trust or trustee for the account or
benefit of such Stockholder or such Stockholder's ancestors, descendants,
spouse, brothers, sisters, nephews or nieces; (iv) any organization which is
exempt from federal income taxation under the provisions of Section 501(c)(3) of
the Internal Revenue Code; provided, however, that the aggregate number of
-------- -------
shares of Company Stock transferred by such Stockholder pursuant to the
provisions of this clause (iv) shall not exceed 10% of the shares of Company
Stock owned by such Stockholder as of the date of this Agreement; (v) a trustee
or custodian of a trust described in Section 401(a) or (h) of the Internal
Revenue Code, or an Individual Retirement Account or custodial account within
the meaning of Section 408(a) or (h) of the Internal Revenue Code, for the
benefit of such Stockholder; (vi) as to any Stockholder that is a trust, all the
beneficiaries of which are natural persons, such beneficiaries or the grantor of
the trust; (vii) as to any Stockholder that is a limited partnership or limited
liability company, (a) any limited or general partner, member, officer, employee
or Affiliate of such Stockholder or (b) any
Affiliate of any limited or general partner or member of such Stockholder;
(viii) as to any member of the Aurora Group, any other member of the Aurora
Group; (ix) as to any member of the Brentwood Group, any other member of the
Brentwood Group; (x) any transferee under an effective registration statement;
or (xi) in the case of a Stockholder that is an entity, to any Person(s)
controlling, controlled by or under common control with such Stockholder and, if
such transfer is to a controlling Stockholder or controlling Stockholders, any
further transfer by any such Stockholder to an entity controlled by it (and, for
the purposes of this clause (xi) only, "control" and correlative terms mean
direct or indirect ownership of at least 66*% of the voting securities of the
applicable entity) or, in the case of a partnership, to another partnership with
the same general partner or under common control with the general partner of the
transferor partnership, so long as the transferee partnership was not formed for
the purpose of acquiring or holding the transferred securities); provided,
--------
however, that the transferee pursuant to all of the foregoing clauses (except
-------
clauses (i) and (x)) shall receive and hold such shares subject to the
provisions of this Agreement and there shall be no further transfer of such
shares except in accordance herewith; further provided, however, that the
--------------------------
transferee shall acknowledge and agree, in a writing satisfactory to the
Company, to be bound by the terms of this Agreement and shall execute and
deliver to the Company a letter to such effect. Furthermore, the provisions of
Section IV shall not apply to any sales or other transfers by any Stockholder
aggregating less than 1% of the outstanding shares of Company Common Stock or
Company Preferred Stock, as the case may be, in any six-month period.
Section VIII. Restriction on Public Sale.
--------------------------
Anything to the contrary herein notwithstanding, in the event that the
Company files a registration statement with respect to an underwritten public
offering under the Securities Act in which any class of the Company's equity
securities is offered, no Stockholder shall effect any public sale or
distribution (except pursuant to said registration statement) of any of the
shares of Company Stock (which shares, for the purposes of this Section VIII,
shall include any and all voting securities received by such Stockholder as a
stock dividend, stock split or other recapitalization or similar distribution on
or in respect of the shares of Company Stock) or any of the Company's other
equity securities, or of any securities convertible into or exchangeable for
such securities, during the period beginning ten (10) days before the filing of
such registration statement with the Commission and ending on the later of
ninety (90) days after such registration statement has become effective or ten
(10) days after it has been withdrawn. After the completion of two (2)
underwritten public offerings of the Company's equity securities, this Section
VIII shall cease to apply to any Stockholder who, at the time of any subsequent
registration, is not an Affiliate of the Company.
Section IX. Register of Securities: Removal of Restrictions on Transfer;
------------------------------------------------------------
Legends.
-------
A. Register of Securities. The Company or its duly appointed agent
----------------------
shall maintain separate registers for the shares of Preferred Stock and the
shares of Common Stock, in which it shall register the issuance and sale of all
such respective shares. The Company may issue stop transfer instructions to
such agent and make similar notations in such register to ensure that all
transfers of such securities are made in accordance with the provisions of this
Agreement. All transfers of such securities shall be recorded on the register
maintained by the Company or its agent, and the Company shall be entitled to
regard the registered holder of such securities as the
actual holder thereof until the Company or its agent is required to record a
transfer of such securities on its register.
B. Removal of Transfer Restrictions. Any legend endorsed on a
--------------------------------
certificate evidencing shares of Company Stock and the stop transfer
instructions and record notations with respect to such shares shall be removed,
and the Company shall issue a certificate without such legend to the holder of
such shares in the event that (i) such shares have been sold pursuant to an
effective registration statement under the Securities Act, (ii) a notification
under Regulation A under the Securities Act is in effect with respect thereto,
or (iii) such shares have been sold under Rule 144 or Rule 144A under the
Securities Act.
C. Legends. Subject to Section IX.B, all certificates evidencing
-------
the shares of Company Stock subject to this Agreement shall bear substantially
the following legends:
(i) "The securities represented by this certificate have not
been registered under the Securities Act of 1933, as amended (the "Act").
These securities have been acquired for investment and not with a view to
distribution or resale, and may not be sold, offered for sale, pledged or
hypothecated in the absence of an effective registration statement for such
shares under the Act or an opinion of counsel satisfactory in form and
content to the issuer that such registration is not required under such
Act."
(ii) "The securities represented by this certificate are subject
to restrictions on transfer, including, but not limited to, a right of
first refusal, tag-along rights, drag-along rights and certain other rights
in favor of certain stockholders, all as set forth in a Stockholders'
Agreement, as amended from time to time, between the issuer corporation and
the registered holder, or its predecessor in interest, a copy of which is
on file at the principal office of the issuer corporation and will be
furnished upon request to the holder of record of the shares represented by
this certificate."
(iii) Any legend required to be placed thereon by any applicable
state securities law.
Section X. Enforcement.
-----------
The parties acknowledge that the remedy at law for any breach or
violation of the provisions of this Agreement shall be inadequate and that, in
the event of any such breach or violation, the Company and the Stockholders (or
any one or more of them) shall be entitled to injunctive relief in addition to
any other remedy, at law or in equity, to which any such party may be entitled.
Section XI. Violation of Transfer Provisions.
--------------------------------
The Company shall not be required (i) to transfer on its books any
shares of Company Stock which shall have been sold, transferred, assigned or
pledged in violation of any of the provisions set forth in this Agreement, or
(ii) to treat as owner of such shares of Company Stock or to accord the right to
vote as such owner or to pay dividends to any transferee to whom such shares
shall have been so transferred in violation of this Agreement.
Section XII. Governance; Board of Directors.
------------------------------
A. Board of Directors. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") or, in the event
------------------
of ▇▇▇▇▇▇▇'▇ death or disability rendering him incapable of performing his
duties as a director, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (together with ▇▇▇▇▇▇▇, the "▇▇▇▇▇▇▇
Director") shall be entitled to be a member of the Board as long as ▇▇▇▇▇▇▇ and
his Affiliates own in the aggregate at least 45% of the 11,445 shares of Company
Common Stock held by ▇▇▇▇▇▇▇ and his Affiliates as of September 30, 1998, as
adjusted to reflect stock dividends, stock splits and other changes in the
capital structure of the Company. As long as the Company's Series C Special
Voting Preferred Stock (the "Series C Preferred") remains outstanding and the
▇▇▇▇▇▇▇ Director is entitled to be a member of the Board pursuant to the
immediately preceding sentence, the Aurora Group shall be entitled to nominate a
member of the Board who is not an employee of any member of the Aurora Group or
any of their respective Affiliates (the "Aurora Nonemployee Director").
B. Elections to Board. The Stockholders shall take appropriate
------------------
actions, including the voting of shares of Company Stock or the acting by
written consent, to cause the election of the ▇▇▇▇▇▇▇ Director and the Aurora
Nonemployee Director to become effective on the date of this Agreement. The
Stockholders shall vote all of the shares owned or held of record by them at all
annual and special meetings of the stockholders of the Company called or held
for the purpose of filling positions on the Board, and in each written consent
executed in lieu of such a meeting of stockholders, and each party hereto shall
take all actions otherwise necessary, to ensure (to the extent within the
parties' collective control) the election of (i) the ▇▇▇▇▇▇▇ Director and the
Aurora Nonemployee Director to the Board for the applicable periods set forth in
Section XII.A and (ii) the members of the Board as the directors of each of the
Company's subsidiaries.
C. Initial Public Offering. Notwithstanding the foregoing, the
-----------------------
parties agree to reconsider the composition of the Board as a whole and the
desirability of any voting arrangements at the time of a Qualified IPO;
provided, however, that no party will have any liability for failure to reach an
-------- --------
agreement as a result of such reconsideration.
Section XIII. Affiliate Transactions.
----------------------
From the date of this Agreement until the closing of a Qualified IPO,
the Company shall not enter into or engage in an Affiliate Transaction without
Requisite Board Approval (as defined in Section 1(d) of Article III of the
Amended and Restated Bylaws of the Company; provided, however, that no such
-----------------
approval or further such approval shall be required for the Company to enter
into or engage in, or continue to engage in, an Affiliate Transaction that (a)
prior to the date of this Agreement, the Company was contractually obligated to
enter into or engage in or (b) is expressly contemplated by the Agreement and
Plan of Merger dated as of September 3, 1999, among QDSP Holdings, Inc., the
Company and Fleetpride Acquisition Corporation (the "Merger Agreement"), and any
Affiliate Transaction referred to in clause (a) or (b) of this sentence shall be
permitted. Notwithstanding the definition of "Affiliate" in Section
XV, for the purposes of this Section XIII and the definition of "Affiliate
Transaction" in Section XV, each member of the Aurora Group shall be deemed to
be an Affiliate of the Company as long as the Aurora Group retains at least 45
percent of the total combined voting power represented by the shares of capital
stock of the Company held by Aurora, Aurora Overseas and QDEP, collectively,
immediately following the consummation of the transactions contemplated by the
Merger Agreement, and each member of the Brentwood Group shall be deemed to be
an Affiliate of the Company as long as the Brentwood Group retains at least 45
percent of the total combined voting power represented by the shares of capital
stock of the Company held by BABF immediately following the consummation of the
transactions contemplated by the Merger Agreement.
Section XIV. General Provisions.
------------------
A. After-Acquired Shares. All of the provisions of this Agreement
---------------------
shall apply to (i) all of the shares of Company Stock now owned or which may be
transferred hereafter to, or owned by, any Stockholder and (ii) all securities
and instruments (1) received by a Stockholder as a dividend on or other payment
made to holders of Company Stock, or (2) issued in connection with a split of
Company Stock or as a result of any exchange for or reclassification of Company
Stock or a reorganization, recapitalization, consolidation or merger. In
addition, any person or entity who does not presently own but subsequently
acquires newly-issued shares of Company Stock or securities convertible into or
exercisable or exchangeable for Company Stock may become a party to and be bound
by this Agreement to such extent as the Company and such person or entity may
agree.
B. Rights and Obligations of Transferees. If a Stockholder
-------------------------------------
transfers any or all of its shares of Company Stock to any Person, that Person
and each subsequent transferee thereof shall have the same rights hereunder as
are given to such Stockholder, and shall be subject to the same obligations as
are imposed upon such Stockholder by the terms hereof (and all references herein
to a Stockholder shall include such transferee), unless otherwise provided
herein. The Company will not record any transfer of Company Stock that was made
in violation of any provision of this Agreement.
C. Owner of Stockholder Shares. The person in whose name shares of
---------------------------
Company Stock are registered in the stock books of the Company may be treated as
the owner thereof for all purposes, including without limitation, the giving of
notices under this Agreement.
D. Notices. All notices, requests, consents and other
-------
communications required or permitted hereunder shall be in writing and shall be
deemed to have been duly given and made and served either by personal delivery
to the person for whom it is intended or if deposited, postage prepaid,
registered or certified mail, return receipt requested, in the United States
mail:
(i) if to any Stockholder, addressed to such Stockholder at its
address shown on the stock register maintained by the Company or at such
other address as such Stockholder may specify by written notice to the
Company, with copies to such other Person(s) as such Stockholder may
designate, or
(ii) if to the Company, c/o HDA Parts System, Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, or to
such other address as the Company may specify by written notice to the
Stockholders, with copies to (1) Brentwood City Corp., c/o Brentwood
Associates, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, and (2) Aurora Equity Partners
II, L.P., c/o Aurora Capital Group, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy to
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(telecopier: 213-229-7520), Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇.
Each such notice, request, consent or other communication shall be deemed to
have been given upon receipt thereof or, if sooner, five (5) days after such has
been deposited as described above. The addresses for the purposes of this
Section XIV.D. may be changed by giving written notice of such change in the
manner provided herein for giving notice. Unless and until such written notice
is received, the address provided herein shall be deemed to continue in effect
for all purposes hereunder.
E. Choice of Law. This Agreement shall be governed by and construed
-------------
in accordance with the internal laws, and not the laws of conflicts of laws, of
the State of Delaware. Each of the parties to this Agreement hereby irrevocably
and unconditionally (i) agrees to be subject to, and hereby consents and submits
to, the jurisdiction of the courts of the State of Delaware and of the federal
courts sitting in the State of Delaware for the limited purpose of enforcing
this Agreement, (ii) to the extent such party is not otherwise subject to
service of process in the State of Delaware, hereby appoints The Corporation
Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as such parry's
agent in the State of Delaware for acceptance of legal process and (iii) agrees
that service made on such agent shall have the same legal force and effect as if
served upon such party personally within the State of Delaware.
F. Severability. The parties hereto agree that the terms and
------------
provisions in this Agreement are reasonable and shall be binding and enforceable
in accordance with the terms hereof and that, in any event, the terms and
provisions of this Agreement shall be enforced to the fullest extent permissible
under law. In the event that any term or provision of this Agreement shall for
any reason be adjudged to be unenforceable or invalid, then such unenforceable
or invalid term or provision shall not affect the enforceability or validity of
the remaining terms and provisions of this Agreement, and the parties hereto
hereby agree to replace such unenforceable or invalid term or provision with an
enforceable and valid term or provision that, in its economic effect, shall be
as close as possible to the unenforceable or invalid term or provision.
G Parties in Interest. All the terms and provisions of this
-------------------
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the respective successors and assigns of the parties hereto, whether so
expressed or not.
H Modification, Amendment and Waiver. Except as expressly
----------------------------------
provided below, this Agreement may be modified, amended or waived only by a
written agreement signed by (i) the Company, (ii) Aurora, so long as the Series
C Preferred remains outstanding, (iii)
Brentwood, so long as the Company's Series D Special Voting Preferred Stock
remains outstanding, and (iv) the holders of at least a majority of the
outstanding Company Stock; provided, however, that any modification or amendment
-----------------
that would materially increase any Stockholder's obligations hereunder, or would
deprive any Stockholder of the realization in all material respects of any
material benefit granted herein to such Stockholder by name, or would grant a
benefit to any Stockholder by name, or would not be applicable pro rata to all
--------
Stockholders, shall not be effective against any adversely affected Stockholder
without such Stockholder's written consent. Modifications or amendments that
make only clarifying changes may be made by the Company acting alone. Each
Stockholder will receive prompt notice of any amendment to the Agreement with
respect which the Stockholder has not already consented in writing. The failure
at any time to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
any of the parties thereafter to enforce each and every provision hereof in
accordance with its terms. Notwithstanding the foregoing, the Company shall have
the right, in the sole discretion of the Board, to issue shares of Company Stock
(or options or warrants to purchase, or securities convertible into, such
shares), to any Person, regardless of whether such Person is already party to
this Agreement, and to cause such securities and such Persons (to the extent not
already subject to this Agreement) to become subject to this Agreement as shares
of Company Stock and as a Stockholder, respectively.
I Integration. This Agreement (together with Exhibit A hereto; the
-----------
letter agreement dated June 19, 1998, among City Truck and Trailer Parts, Inc.,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, The ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ Trust dated November 1, 1990, The
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Trust dated November 1, 1990, The ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Grandchildren's Trust dated April 30, 1997, and ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇; the letter
agreement dated June 19, 1998, between City Truck and Trailer Parts, Inc. and
Stone Heavy Duty, Inc.; the confirmation letter dated August 27, 1998, from HDA
Parts System, Inc. and the Company to ▇▇▇▇▇ ▇▇▇▇▇▇▇; the confirmation letter
dated August 27, 1998, from HDA Parts System, Inc. and the Company to ▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.; and the letter agreement dated January 11, 1999,
from the Company to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustees of The
Seewack Family Trust dated November 19, 1997, and ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇,
as Trustees of the ▇▇▇▇▇▇ Family Trust dated May 4, 1990) constitutes the entire
agreement of the parties with respect to the subject matter hereof and thereof
and supersedes all prior agreements and negotiations with respect thereto.
J Headings. The headings of the sections and paragraphs of this
--------
Agreement have been inserted for convenience of reference only and do not
constitute a part of this Agreement.
K Counterparts. This Agreement may be executed in any number of
------------
counterparts and by different parties hereto in separate counterparts, with the
same effect as if all parties had signed the same document. All such
counterparts shall be deemed an original, shall be construed together and shall
constitute one and the same instrument.
Section XV. Definitions.
-----------
As used in this Agreement, the following terms have the following
meanings:
An "Affiliate" of a specified Person means a Person that controls, is
controlled by, or is under common control with, the specified Person, and
in this context, "control", "controls" and "controlled" mean the direct or
indirect power to direct the management and policies or affairs of a Person
through the ownership of voting securities or by contract or otherwise and,
in the case of a limited partnership, shall include, but shall not be
limited to, all of the limited partnership's general partners and their
respective Affiliates.
"Affiliate Transaction" means (i) any sale, lease, transfer or other
disposition by the Company or any of its subsidiaries (which, for the
purposes of this definition, shall include all partnerships, corporations,
joint ventures, limited liability companies or other entities in which the
Company has an equity interest, regardless of whether such interest is a
controlling interest) of any of their respective properties or assets to,
(ii) any purchase of property or assets by the Company or any of its
subsidiaries from, (iii) any investment by the Company or any of its
subsidiaries directly or indirectly (including by way of a purchase of
capital stock of any Person from another Person) in, (iv) any agreement by
the Company or any of its subsidiaries with or for the benefit of, or (v)
any other transaction between the Company or any of its subsidiaries and
any of the following: (1) an Affiliate of the Company or any subsidiary of
the Company, (2) any Associate of any Affiliate described in the preceding
clause (1), or (3) any Person that is either an Affiliate of any Associate
described in the preceding clause (2) or is individually or collectively
under the control of any Associate described in the preceding clause (2).
An "Associate" of a specified Person means (i) a Person of which the
specified Person is a director, officer, general or managing partner or
member or is the direct or indirect beneficial owner of 10 percent or more
of any class of equity securities issued by such Person, (ii) a trust or
estate in which the specified Person has a substantial beneficial interest
or as to which the specified Person serves as a trustee or in a similar
fiduciary capacity, and (iii) a relative or spouse of, who shares the same
residence as, the specified Person.
"Aurora" means Aurora Equity Partners II, L.P.
"Aurora Group" means Aurora, Aurora Overseas and QDEP and any of their
respective Affiliates.
"Aurora Overseas" means Aurora Overseas Equity Partners II, L.P.
"BABF" means BABF City Corp.
"Brentwood Group" means BABF and its Affiliates.
"Brentwood" means Brentwood Associates Buyout Fund II, L.P.
"Business Day" means any day other than a Saturday, Sunday or legal
holiday.
"Involuntary Transfer" means any transfer, proceeding or action (other
than as set forth in Section VII) by or in which a Stockholder shall be
deprived or divested of any right, title or interest in or to any shares of
Company Stock, including, without limitation, (i) any seizure under levy of
attachment or execution, (ii) any foreclosure upon a pledge of such shares
of Company Stock, (iii) any transfer in connection with bankruptcy (whether
pursuant to the filing of a voluntary or an involuntary petition under the
Federal Bankruptcy Code of 1978, or any modifications or revisions thereto
or any similar state laws) or other court proceeding to a debtor in
possession, trustee in bankruptcy or receiver or other officer or agency,
(iv) any transfer to a state or to a public officer or agency pursuant to
any statute pertaining to escheat or abandoned property, (v) any transfer
to such Stockholder, with respect to the disposition of the community
property interest of such Stockholder's spouse in all or any part of the
shares of Company Stock upon the death of such spouse, and any transfer
occasioned by the incompetence of such Stockholder, or (vi) any transfer to
a Stockholder's spouse as a result of the termination of the marital
relationship of the Stockholder and the Stockholder's spouse.
"Person" means any individual, corporation, joint venture, limited
liability company, partnership, trust, unincorporated organization or other
entity.
"QDEP" means Quality Distribution Equity Partners, L.P.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
CITY TRUCK HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President and Chief Executive Officer
BABF CITY CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President
AURORA EQUITY PARTNERS II L.P.
By: Aurora Capital Partners II L.P.,
general partner
By: Aurora Advisors II LLC,
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
AURORA OVERSEAS EQUITY PARTNERS II, L.P.
By: Aurora Capital Overseas Partners II L.P.,
general partner
By: Aurora Overseas Advisors II LDC,
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
HDA PARTNERS I, L.P.
By: Brentwood Associates Buyout Fund II, L.P.,
general partner
By: Brentwood Private Equity LLC,
general partner
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
QUALITY DISTRIBUTION EQUITY PARTNERS L.P.
By: Aurora Advisors II LLC,
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
dated November 1, 1990
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
_____________________________
▇▇▇▇ ▇▇▇▇▇▇ as Trustee
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ TRUST
dated November 1, 1990
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
_____________________________
▇▇▇▇ ▇▇▇▇▇▇ as Trustee
THE ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
GRANDCHILDREN'S TRUST
dated April 30, 1997
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
_____________________________
▇▇▇▇ ▇▇▇▇▇▇ as Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
_____________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
_____________________________
▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
/s/ A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
______________________________
A. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇▇
______________________________
▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇
______________________________
▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
THE VINGIANO FAMILY LIMITED
PARTNERSHIP
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: General Partner
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ SPRAY TRUST
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
Trustee
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ SPRAY TRUST
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
Trustee
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ SPRAY TRUST
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as
Trustee
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
THE SEEWACK FAMILY TRUST
dated November 19, 1997
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as Trustee
THE ▇▇▇▇▇▇ FAMILY TRUST
dated May 4, 1990
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
-----------------------------
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as Trustee
THE ▇▇▇▇▇▇ FAMILY REVOCABLE
LIVING TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_____________________________
L. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TAG INVESTMENT L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
/s/ ▇▇▇▇ ▇. ▇▇▇▇
---------------------------
▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CTH/▇▇▇▇ ▇.▇.
By: Aurora Advisors II LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice
President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ REVOCABLE TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇ ▇. AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
INTER VIVOS PERSONAL TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Advisory
Board
ALLENWOOD VENTURES, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: President
THE ▇▇▇▇ FAMILY TRUST U/A DTD
9/6/91
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
By: ______________________________
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Trustee
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
__________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ FAMILY LIMITED
PARTNERSHIP
By: /s/ ▇▇▇▇ ▇▇▇▇
_______________________________
Name: ▇▇▇▇ ▇▇▇▇
Title: General Partner