EXHIBIT 10.1
EXECUTION COPY
VMC HOLDING CORPORATION
STOCKHOLDERS' AGREEMENT
This Agreement is executed as of the 28th day of April, 2005 (the
"EFFECTIVE DATE"), by and among VMC Holding Corporation, a Delaware corporation
(the "COMPANY"), Transportation Resource Partners, LP ("TRP"), United Auto
Group, Inc. ("UAG"), Penske Truck Leasing Co., L.P. ("PTL"), and Opus Ventures
General Partner Limited ("OPUS" and collectively with TRP, UAG and PTL, the
"INITIAL INVESTORS," and each a "INITIAL INVESTOR") (each, together with any
transferee of their respecting Shares that is permitted hereunder, a
"STOCKHOLDER" and collectively, the "STOCKHOLDERS").
WHEREAS, the Company has 10,000 shares of authorized capital stock (these
shares together with any other class or series of common or preferred stock that
may be authorized, designated or issued by the Company from time to time, the
"SHARES");
WHEREAS, the Shares currently consist of: 10,000 Shares of Common Stock
(the "COMMON SHARES"), of which 5,000 are issued and outstanding;
WHEREAS, the Stockholders are the collective holders of all issued and
outstanding Shares; and
WHEREAS, the Stockholders desire to provide for the ongoing management of
the Company in accordance with the wishes of the Stockholders, for certain
restrictions on the transfer of Shares, and otherwise to establish their
relationship as Stockholders and their and the Company's rights and obligations
with respect to the Shares.
NOW, THEREFORE, in consideration of the mutual agreements contained herein
and for other valuable consideration, and intending to be legally bound, the
parties hereby agree as follows:
ARTICLE 1. ELECTION OF DIRECTORS
1.1 COMPOSITION OF BOARD; VOTING AGREEMENT. Subject to the terms of this
Agreement, the Board of Directors of the Company shall have four members. TRP
shall have the right to designate two directors, UAG shall have the right to
designate one director, and Laurence Vaughan shall have the right to serve as a
director. Each of the Stockholders shall vote all Shares held by it (including
any Shares that may be hereafter acquired and Shares, if any, in respect of
which that Stockholder has been granted a proxy) at any meeting of the
Stockholders of the Company called and held for that purpose, and shall sign any
consent of Stockholders presented for that purpose, for the election as a
director of the Company of each of the following persons:
A. Each of the two persons designated by TRP;
B. The person designated by UAG; and
C. Laurence Vaughan, subject to the limitations set forth below.
The right of each of TRP and UAG to designate one or more directors set forth
above shall terminate at the time that the relevant Stockholder (together with
its Controlled Affiliates as defined below) holds of record less than 10% of the
issued and outstanding Common Shares and shall not thereafter be restored by any
subsequent acquisition of Common Shares, except that (subject to the second
succeeding paragraph below) if a Stockholder whose rights to nominate a director
have lapsed, subsequently acquires all of the Common Shares held by another
Stockholder having a right to nominate a director at the time of transfer, the
transferee of such Shares shall acquire also that right.
Subject to the next succeeding paragraph below, if the rights of any
Stockholder to designate a director under this SECTION 1.1 cease, in accordance
with the terms of these Sections, the director that that Stockholder had a right
to designate shall be nominated by the Company's Board of Directors and elected
by the affirmative vote of a majority of the then outstanding Common Shares
voting as a single class. Any Stockholder that loses its right to appoint one or
more directors pursuant to this SECTION 1.1, due to holding of record less than
10% of the issued and outstanding Common Shares, shall have the right to appoint
one observer (without participation or voting rights of any kind) to all Board
meetings as long as such Stockholder holds of record 5% of the issued and
outstanding Common Shares, after which the right to appoint an observer shall
cease. So long as PTL holds of record at least 5% of the issued and outstanding
Common Shares it shall have the right to appoint one observer (without
participation or voting rights of any kind) to all Board meetings.
The rights of Laurence Vaughan to serve as a director pursuant to
this SECTION 1.1 are personal to him. Thus, these rights do not transfer with
any Transfer of Shares permitted hereunder held by Opus or that he may acquire,
notwithstanding any other provision of this Agreement, and lapse upon the first
to occur of (A) his death, (B) his disability, or (C) him (and his Controlled
Affiliates, including Opus) ceasing to hold of record a majority of the Shares
originally issued to Opus. If Laurence Vaughan's rights to serve as a director
lapse as provided herein, the Board of Directors of the Company, except as
otherwise permitted in SECTION 2.1B, shall consist of three directors, two of
whom shall be designated by TRP pursuant to SECTION 1.1A and one of whom shall
be designated by UAG pursuant to SECTION 1.1B.
1.2 TRANSFERABILITY. Any person's right to designate a director (or
appoint an observer) under SECTION 1.1 may be transferred only in connection
with a transfer of all of the Common Shares then held by the person having that
right, except that Laurence Vaughan's right to serve as a director may not be
transferred.
1.3 REMOVAL OF DIRECTORS. The directors designated (or observers
appointed) pursuant to SECTION 1.1 may be removed with or without cause by, and
only by, the affirmative vote of a majority of the Common Shares entitled to
vote for their election, given either at a special meeting of the holders of
such Shares duly called for that purpose, or by written consent of those holders
in accordance with Delaware law.
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ARTICLE 2. CERTAIN COMPANY ACTIONS REQUIRING SPECIAL APPROVAL;
CERTAIN AGREEMENTS
2.1 SPECIAL APPROVAL RIGHTS. In addition to any requirements that may from
time to time be imposed under the Company's Certificate of Incorporation or
Bylaws or under applicable law, each of the following actions shall require
special approval as set forth below:
A. UAG. The following actions shall require the approval of the
director nominated by UAG, and, if requested by that director, the approval of a
majority of the then outstanding Common Shares now held by UAG, voting as a
single class by written consent or at a special meeting called for that purpose
in accordance with Delaware law:
(i) Any material change to the Company's Certificate of
Incorporation or Bylaws, without regard as to whether the change would otherwise
require the approval of the Company's Stockholders;
(ii) The declaration or payment by the Company of any dividend
or distribution on its Common Shares other than a distribution payable solely in
cash or Common Shares ratably to all holders of Common Shares;
(iii) The redemption, acquisition, or purchase ("REPURCHASE")
by the Company of any Shares of its capital stock or any options, warrants, or
rights exercisable for or convertible into such Shares, other than redemptions,
purchases, or acquisitions effected pursuant to the terms of issuance of such
Shares or other securities or rights, and approved at the time of such issuance
by UAG;
(iv) Any acquisition of or investment in any person that in
the reasonable business judgment of UAG competes, directly or indirectly, with
the business of UAG as at the date of investment or acquisition or that could
reasonably be expected to impair UAG's business relationships with original
equipment manufacturers;
(v) The guarantee by the Company of the obligations of any
person other than a wholly-owned direct or indirect subsidiary outside the
ordinary course of the business;
(vi) Except in accordance with a divestiture otherwise
specifically contemplated by ARTICLE 4 of this Agreement, the divestiture by the
Company of any material business unit;
(vii) Any transaction or series of related transactions
(including, without limitation, the sale, purchase, exchange, or lease of
assets, property, or services) with any affiliate (other than a wholly-owned
direct or indirect subsidiary or UAG) unless (x) such transaction or series of
related transactions is on terms that are no less favorable to the Company or
its subsidiary, as applicable, than would be available in a comparable
transaction in arm's-length dealings with an unrelated third party and (y) such
transaction or series of related transactions involves payments of not more than
$100,000 in the aggregate; provided, however, that this restriction shall not
apply to the payment of reasonable and customary fees to directors of the
Company or its subsidiaries; to the Company's employee compensation and other
benefit arrangements, or to payments, or services
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provided, under the Management Agreement among the Company, PTL, Transportation
Resource Advisors, LLC, UAG and Opus dated as of the date hereof; and
(viii) The execution of any agreement or the adoption by the
Company of any resolution to do any of the foregoing unless such agreement or
resolution is expressly conditioned on receipt of the requisite approval.
The rights of UAG under this SECTION 2.1A are not transferable.
B. UAG and TRP. The expansion or contraction of the Board of
Directors to a number above four or, if the rights of Laurence Vaughan to serve
as a director lapse, below three, shall require the approval of the directors
nominated by each of UAG and TRP, and if requested by any of those directors,
the approval of the majority of the outstanding Common Shares then held by them,
voting as separate classes by written consent or at a special meeting called for
that purpose in accordance with Delaware law.
2.2 CERTAIN SECURITY ISSUANCES. If TRP, in its reasonable business
judgment, concludes that it is necessary for the Company to raise additional
equity capital in order for the Company to avoid a covenant default under its
then principal credit facility or to comply with legal regulations applicable to
it, then each of the directors and Stockholders shall vote to approve such
issuance and take such other actions, such as approving an amendment to the
Company's Certificate of Incorporation to increase or change its authorized
capital to effect the offering, as may be reasonably necessary to effectuate the
offering; provided that the securities offered are offered at fair market value,
as determined in accordance with reasonable procedures and methods established
by the Board of Directors, and each Stockholder is offered the pre-emptive
rights provided for in this Agreement.
2.3 CERTAIN DEFINITIONS AND CLARIFICATIONS. For the purposes of this
Agreement:
A. The term "AFFILIATE" shall have the meaning set forth in Rule
12b-2 of the regulations promulgated under the Securities Exchange Act of 1934,
as amended.
B. The term "CONTROLLED AFFILIATE" shall mean an Affiliate of which
the pertinent person has the right by virtue of the ownership of Equity
Securities in that Affiliate to elect a majority of the Board of Directors or
similar governing body.
C. The term "EQUITY SECURITIES" shall mean, as applicable, any
Common or Preferred Stock of the Company, and any security, right or interest,
directly or indirectly convertible into or exchangeable or exercisable for
Common or Preferred Stock of the Company, including, without limitation, rights,
warrants, or options to subscribe for or to purchase Common or Preferred Stock.
D. The term "HOLD OF RECORD" shall include for any Stockholder,
Shares held of record by a Controlled Affiliate of such Stockholder.
E. For the purposes of SUBSECTION 2.1(A)(vi) above, the term
"MATERIAL" shall mean assets constituting 10.0% or more of the Company's
consolidated assets as of the end of the
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immediately preceding fiscal quarter, or assets or operations accounting for 10%
of the Company's consolidated revenues for the twelve (12) months ending on the
last day of the immediately preceding fiscal quarter determined in each case by
reference to the Company's regularly prepared financial statements .
F. The term "OPTION PLAN" shall mean any employee option plan
(providing, together with all other such plans previously adopted by the
Company) for the issuance of not more than 10% of the Company's then outstanding
Common Shares, whether as options, restricted stock, stock appreciation rights,
or similar equity interests to employees and service providers to the Company
approved by the Board of Directors.
ARTICLE 3. PRE-EMPTIVE AND RELATED RIGHTS
3.1 GRANT OF RIGHTS. If the Company hereafter proposes to issue or sell
any Equity Securities (other than (A) as a dividend payable solely and ratably
in Common Stock on its outstanding shares of Common Stock, (B) in connection
with an acquisition, or (C) pursuant to an Option Plan), the Company shall first
offer to each of the Stockholders a portion of the number or amount of such
securities proposed to be so sold equal to the product of (x) the number of
Shares or amount proposed to be so issued and sold (on an as converted basis, if
applicable) multiplied by (y) a fraction, the numerator of which is the number
of issued and outstanding Shares then owned by such Stockholder prior to such
issuance and the denominator of which is the total number of issued and
outstanding Shares then issued and outstanding and held by persons having
pre-emptive and related rights under this SECTION 3.1, for the same price and
upon the same terms and conditions as the securities are being offered in such
transaction.
3.2 PROCEDURES.
A. If, in accordance with this ARTICLE 3, the Company determines to
issue additional Equity Securities, it shall cause an officer to give each
Stockholder having pre-emptive and related rights hereunder notice, specifying
in reasonable detail the nature and type of securities being offered and the
price at which they are being offered, at least twenty-one (21) days before
issuing any such securities. Within twenty (20) days of the receipt of that
notice, each Stockholder shall have the right, by giving notice to the
designated officer, but not the obligation, to purchase the securities being
offered as provided herein.
B. Any Stockholder desiring to exercise its pre-emptive and related
rights hereunder must give to the Company written notice of its election to
purchase up to a specified number of the securities proposed to be offered by
the close of business on the twentieth day after the notice required by SECTION
3.2 was given to it. Such response shall set forth the Stockholder's acceptance
of the offer and designate a number of Shares (or, if applicable, a value of
securities) to be purchased by such Stockholder, which number may be fewer than,
equal to, or more than the number of Shares that such Stockholder has a right to
purchase under SECTION 3.1. If any Stockholder does not elect to purchase all of
the offered Equity Securities that it has right to purchase under SECTION 3.1,
the securities remaining shall be allocated to each other electing Stockholder
in one or more successive allocations, up to the number or amount of securities
specified in the election, pro rata, in the same proportion as the total number
of Common Shares
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held by that electing Stockholder bears to the total number of issued and
outstanding Shares held by all electing Stockholders electing to purchase more
than the maximum number of shares that they are entitled to purchase.
C. Not later than ten (10) days after the date on which this offer
of rights expires, the Company shall notify each electing Stockholder of the
time and place of closing, the number or amount of securities allotted to it,
and the purchase price therefor, whereupon each such electing stockholder shall
become legally obligated to purchase such securities at the price and on the
terms offered.
D. Following the expiration of the offer and the giving of the
notice required by SECTION 3.2A, the Company may thereafter offer and sell any
of the Equity Securities not purchased by the Stockholders for a period of one
hundred twenty (120) days on the terms and conditions set forth in the original
notice to the Stockholders. Any of the Equity Securities not sold during that
period may not thereafter be sold without first complying with the requirements
of this ARTICLE 3.
ARTICLE 4. PROVISIONS RESTRICTING AND RELATING
TO THE TRANSFER OF SHARES
4.1 GENERAL RESTRICTION ON TRANSFER. In addition to any other restriction
under applicable federal or state securities laws, no Stockholder shall
transfer, give, donate, pledge, hypothecate, or otherwise encumber, alienate, or
dispose of (or agree to do any of the foregoing) ("TRANSFER") to any person,
whether voluntarily or by operation of law (subject to ARTICLE 5), any Shares
now held or hereafter acquired by such Stockholder, except for Permitted
Transfers under SECTION 4.2 or sales made in accordance with the terms and
conditions hereafter set forth in this Agreement. Notwithstanding any other
provision of this Agreement, no Stockholder will, except by operation of law,
Transfer any Shares of Common Stock that it may hold prior to the second annual
anniversary of the Effective Date.
4.2 PERMITTED TRANSFERS. Subject to all provisions of this ARTICLE 4
relevant to the Transfer, any Stockholder may Transfer Shares held by it to a
Controlled Affiliate or to the Company. Any person to whom Shares held by a
Stockholder are transferred in accordance with this SECTION 4.2 is hereinafter
referred to as a "PERMITTED TRANSFEREE." The Transfer to a Permitted Transferee
shall activate only SECTIONS 4.7 and 4.8 of this ARTICLE 4.
4.3 RIGHTS OF FIRST OFFER.
A. Subject to the terms and conditions specified in this SECTION
4.3, and applicable securities laws, in the event any Stockholder proposes to
offer or sell any Shares other than to a Permitted Transferee or other than in a
transaction to which SECTION 4.4 applies, the selling Stockholder shall no less
than thirty (30) days prior to effecting such sale make an offer of such Shares
to each of the Initial Investors in accordance with the following provisions of
this SECTION 4.3. An Initial Investor shall be entitled to apportion the right
of first offer hereby granted it among itself and its Controlled Affiliates in
such proportions as it deems appropriate.
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B. The selling Stockholder shall deliver a notice (the "Offer
Notice") to each of the Initial Investors stating (i) its bona fide intention to
offer such Shares, and (ii) the number of such Shares to be offered and the
terms and price on which they will be offered.
C. By written notification received by the Company, within twenty
(20) calendar days after mailing of the Offer Notice, each of the Initial
Investors may elect to purchase or obtain, at the price, if any, and on the
terms specified in the Offer Notice (if a price is specified), up to that
portion of such Shares which equals the proportion that the number of Shares of
issued and outstanding Common Stock, then held, by such Initial Investor bears
to the total number of Shares of issued and outstanding Common Stock of the
Company then held by all Initial Investors. The selling Stockholder shall
promptly, in writing, inform each Initial Investor that elects to purchase all
the Shares available to it (each, a "FULLY-EXERCISING INVESTOR") of any other
Initial Investor's willingness or failure to do likewise. During the ten (10)
day period commencing after receipt of such information, each Fully-Exercising
Investor shall be entitled to obtain that portion of the Shares for which
Initial Investors were entitled to subscribe but which were not subscribed for
by the Initial Investors which is equal to the proportion that the number of
Shares of Common Stock issued and then held, by such Fully-Exercising Investor
bears to the total number of shares of Common Stock issued and held by all
Fully-Exercising Investors who wish to purchase such unsubscribed shares.
D. If all the Shares referred to in the Offer Notice are not elected
to be purchased or obtained on the terms set forth in the Offer Notice, the
selling Stockholder may, during the one hundred twenty (120) day period
following the expiration of the period provided in SECTION 4.3C hereof, offer
all of the Shares to any person or persons at a price not less than, and upon
terms no more favorable to the offeree than, those specified in the Offer
Notice. If the Seller does not enter into an agreement for the sale of these
Shares within such period, or if such agreement is not consummated within thirty
(30) days of the execution thereof, the right provided hereunder shall be deemed
to be revived and such Shares shall not be offered unless first reoffered to the
Initial Investors in accordance with this SECTION 4.3.
E. The provisions of this SECTION 4.3 shall not apply to any sale
effected pursuant to SECTIONS 4.4 OR 4.6 hereof.
4.4 TRP TAKE-ALONG RIGHTS.
A. Subject to the rights of UAG in SECTION 4.4D, if at any time
after the fourth annual anniversary of the effective date of this Agreement, TRP
wishes to sell all, but not less than all, of the Shares then held by it in one
transaction or a series of similar transactions (a "CONTROL TRANSACTION"), TRP
may in its sole discretion, require each other Stockholder (in such capacity, a
"TAKE-ALONG STOCKHOLDER") to sell all (but not less than all) of the Shares then
held by it to such purchaser in accordance with this SECTION 4.4; provided that
such Take-Along Stockholder shall only be required to sell its Shares at the
same price per Share and upon substantially the same terms as TRP.
B. If TRP elects to exercise its Take-Along Right in connection with
a Control Transaction, it shall deliver a notice to each Take-Along Stockholder
and to the Company, setting
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forth the terms of the Control Transaction (including the proposed closing date
for its consummation, which shall not be fewer than sixty (60) days after the
effective date of such notice) and all documents required to be executed by each
Take-Along Stockholder to consummate that Control Transaction. Each Take-Along
Stockholder shall deliver to TRP at least seven (7) days prior to the proposed
closing date, all documents previously furnished to the Take-Along Stockholder
for execution in connection with the Control Transaction. If any Take-Along
Stockholder fails to deliver these documents and the transaction is subsequently
consummated, the Company shall cause its books and records to show that the
Shares represented by the defaulting Stockholder are bound by the provisions of
this section and that Shares held by it shall be transferred only to the third
party who purchased the Shares in the Control Transaction.
C. TRP shall have one hundred eighty (180) days from the date of its
notice referred to above to consummate any Control Transaction and, promptly
after such consummation, shall notify the Company and each Take-Along
Stockholder to that effect and furnish evidence of the sale (including the time
of sale) and of the terms thereof as any Take-Along Stockholder may reasonably
request. TRP shall also cause to be remitted to each Take-Along Stockholder the
proceeds of the sale attributable to the sale of that Take-Along Stockholder's
Shares not later than the second business day following the sale (subject to any
agreed holdbacks or escrows in connection with such sale. If any Control
Transaction is not consummated prior to the expiration of the one hundred eighty
(180) day period referred to in this section, TRP may not thereafter consummate
the proposed Control Transaction and shall return to each Take-Along Stockholder
all documents previously delivered to TRP in connection with that Control
Transaction.
D. TRP shall notify UAG not less than thirty (30) days prior to any
anticipated exercise of its rights under this SECTION 4.4. Within such thirty
(30) day period, UAG shall have the right to make an offer, which must remain
open for not less than thirty (30) days, to purchase all, but not less than all,
of the Company's outstanding Shares by giving notice to TRP, which notice shall
include the price (the "UAG OFFER PRICE") and other material terms of such
offer. If such offer is accepted by TRP while the offer is open, TRP and the
other Stockholders shall sell their respective Shares to UAG, and UAG shall
purchase all of such Shares, at the UAG Offer Price and on the other terms and
conditions set forth in UAG's notice. The mechanics regarding sale, closing
procedures and other matters (including as to escrows, holdbacks, and the
delivery of purchase price and Shares to be sold) set forth in SECTIONS 4.4B AND
4.4C shall be applicable to the UAG purchase. If UAG does not exercise its right
to make an offer to purchase (or affirmatively declines to make such an offer)
within the thirty (30) day period specified above, or if TRP does not accept
UAG's offer to purchase Shares, TRP may thereafter for a period of one hundred
and eighty (180) days sell the Shares and exercise its rights under the terms
hereof, provided however, that prior to any sale under this SECTION 4.4 at a
price below the UAG Offer Price or on terms materially less favorable to TRP
than those set forth in the UAG Offer, TRP shall again comply with the terms of
this SECTION 4.4D.
E. Notwithstanding anything in this SECTION 4.4 to the contrary, (i)
there shall be no liability on the part of TRP to any Stockholder if any sale of
Shares pursuant to this SECTION 4.4 is not consummated for whatever reason, and
(ii) there shall be no liability on the part of UAG to any Stockholder, except
for its failure to comply with the terms of its offer (if any) under SECTION
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4.4D. It is understood that TRP, in its sole discretion, shall determine whether
to effect a sale of Shares to any person pursuant this SECTION 4.4.
F. If the provisions of both this SECTION 4.4 and SECTION 4.6 apply
to a transaction, the provisions of SECTION 4.6 shall govern.
4.5 OTHER STOCKHOLDER TAG-ALONG RIGHTS.
A. If at any time, any Stockholder wishes to sell all but not less
than all, of the Shares then held by it to any person (other than a sale by TRP
to UAG pursuant to SECTION 4.4D above), then each other Stockholder (in such
capacity, a "TAG-ALONG STOCKHOLDER") may, in its discretion, require the selling
Stockholder to sell all of such Tag-Along Stockholder's Shares pursuant to such
sale at the same price and substantially upon the same terms as the selling
Stockholder proposes to sell its Shares.
B. If at any time, any Stockholder (in such capacity, the "SELLING
STOCKHOLDER") wishes to sell less than all of the Shares then held by it to any
person, then each Tag-Along Stockholder may, in its discretion, require the
Selling Stockholder to sell a portion of such Tag-Along Stockholder's Shares
pursuant to such sale at the same price and substantially upon the same terms as
the Selling Stockholder proposes to sell its Shares. In connection with such
sale, each Tag-Along Stockholder shall have the right to sell up to that number
of Shares (such Tag-Along Stockholder's "INCLUDED AMOUNT") equal to the product
of X multiplied by Y, where:
X = the total number of Shares proposed to be sold by the
Selling Stockholder, and
Y = a fraction, the numerator of which is the number of Shares
owned by such Tag-Along Stockholder and the denominator of
which is the number of Shares owned by all Tag-Along
Stockholders who wish to participate in the sale of shares
pursuant to this SECTION 4.5B plus the total number of Shares
owned by the Selling Stockholder.
C. In connection with a sale under this SECTION 4.5, the Selling
Stockholder shall deliver a written notice to each other Stockholder and the
Company (i) setting forth the terms of any sales to which this Section applies,
(ii) offering such other Stockholder the right (the "TAG-ALONG RIGHT") to have
such Stockholder's Shares included in such sale in accordance with SECTION 4.5A
OR B above, and (iii) specifying the number of Shares equal to such Tag-Along
Stockholder's Included Amount (which in the case of a sale of all of the Shares
under SECTION 4.5A shall be all of such Tag-Along Stockholder's Shares) with
respect to such sale, together with all documents required to be executed by
such Tag-Along Stockholder in order to include such Tag-Along Stockholder's
Shares in such sale. If any Tag-Along Stockholder exercises its Tag-Along Right
in connection with any sale, such Tag-Along Stockholder shall deliver to the
Selling Stockholder, prior to the expiration of the thirty (30) day period
commencing on the date of the Selling Stockholder's notice, the certificate or
certificates representing the number of Shares such Tag-Along Stockholder
desires to include in such sale (which number may be less than such Tag-Along
Stockholder's Included Amount with respect to a sale under SECTION 4.5B only),
duly
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endorsed, together with all documents previously furnished to such Tag-Along
Stockholder for execution in connection with such sale. Delivery by any
Tag-Along Stockholder of such certificate or certificates representing Shares
and such other documents shall constitute an irrevocable exercise by the
Tag-Along Stockholder of its Tag-Along Right with respect to such sale. To the
extent any Tag-Along Stockholder exercises its Tag-Along Right with respect to a
sale under SECTION 4.5B, the number of Shares proposed to be sold by the Selling
Stockholder Seller pursuant to such sale shall be correspondingly reduced.
D. The Selling Stockholder shall have up to one hundred eighty (180)
days from the date of its notice referred to in SECTION 4.5C above to consummate
any sale and, promptly after such consummation, shall notify the Company and
each Tag-Along Stockholder to that effect and shall furnish evidence of such
sale (including the time of sale) and of the terms thereof as the Company or
such Tag-Along Stockholder may reasonably request. No later than the fifth day
following such sale, the Selling Stockholder shall cause to be remitted (subject
to any escrows or agreed holdbacks) to each Tag-Along Stockholder the proceeds
of such sale attributable to the sale of such Tag-Along Stockholder's Shares. If
any such sale is not consummated prior to the expiration of the 180-day period
referred to in this SECTION 4.5D, the Selling Stockholder may not consummate
such sale unless the Selling Stockholder again provides the Tag-Along Rights
contemplated above to the other Stockholders and shall return to each Tag-Along
Stockholder all certificates representing Shares that such Tag-Along Stockholder
previously delivered to the Selling Stockholder in connection with such sale.
E. Notwithstanding anything in this SECTION 4.5 to the contrary,
there shall be no liability on the part of any Selling Stockholder to any
Stockholder if any sale of Shares pursuant to this SECTION 4.5 is not
consummated for whatever reason. It is understood that each Selling Stockholder,
in its sole discretion, shall determine whether to effect a sale of Shares to
any person pursuant this SECTION 4.5.
F. If the provisions of both this SECTION 4.5 and SECTION 4.6 apply,
SECTION 4.6 shall control.
4.6 DRAG-ALONG RIGHTS. Notwithstanding any other provision of this ARTICLE
4, if TRP and UAG together agree to Transfer for value all, but not less than
all, of the Shares then held by them, or if the Board of Directors approves a
sale of substantially all of the assets of the Company (which approval may only
be granted in accordance with Article 2 hereof, then each Stockholder will
consent to and raise no objections against the sale (the "APPROVED COMPANY
SALE"). If the Approved Company Sale is structured as a sale of assets, a merger
or a consolidation, then each Stockholder shall vote for, consent to, and waive
any dissenters' or similar rights in connection with that sale, merger, or
consolidation. If the Approved Company Sale is structured as a Transfer of
Shares, then each Stockholder shall be obligated to sell all of its Shares and
to participate in the Approved Company Sale and otherwise to take all necessary
action to cause the Company and the Stockholders to consummate the Approved
Company Sale, so long as all Stockholders receive the same consideration per
Share on the same terms and conditions.
4.7 COOPERATION. The Company and the Stockholders shall use their
respective commercially reasonable best efforts to aid in the consummation of
any Control Transition or
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Approved Company Sale, and in connection therewith, shall execute and deliver if
so required a purchase agreement pursuant to which each Stockholder will
severally (but not jointly) make representations and warranties relating to its
ownership of and title to the Shares and provide indemnification in respect of
such representations or warranties; provided that the sole source for payment of
any such indemnity will be funds from the net proceeds otherwise distributed to
the Stockholders. All Stockholders will bear their respective share of the costs
of any actual or proposed Approved Company Sale to the extent such costs are
incurred for the benefit of all Stockholders and not otherwise paid by the
Company or the acquiring party. Costs incurred by Stockholders for their own
behalf will not be considered costs of the Approved Company Sale; provided, that
in any event, the Company will pay the reasonable attorneys' fees of one counsel
chosen by the Stockholders to represent their interests.
4.8 OBLIGATIONS UPON TRANSFER. No Transfer (which, as used in this
Agreement, shall include Transfers to Permitted Transferees) of any Shares
permitted under this Agreement shall be effective unless the Company shall have
received the favorable opinion of legal counsel of the Company or of other legal
counsel acceptable to the Company to the effect that such Transfer is made in
compliance with or is exempt from applicable securities laws. No Transfer of any
Shares shall relieve the transferor from any of its obligations to the Company
hereunder except to the extent that such obligations are assumed by the
transferee in a legally valid and binding agreement and such transferee has
complied with all provisions of this SECTION 4.8. All Transfers shall be by
instrument in form and substance satisfactory to the Company's Board of
Directors and shall include (A) a written, legally binding agreement of the
transferee accepting all of the terms and conditions of this Agreement and an
executed counterpart of this Agreement, as then in effect; (B) suitable
representations by the transferee, including a representation by the transferee
that such Transfer was made in accordance with all applicable laws and
regulations and covering such other matters as the Company's Board of Directors
may reasonably require; and (C) all such other instruments and agreements as the
Company's Board of Directors may reasonably deem to be necessary or desirable to
effectuate such Transfer.
4.9 INVALID TRANSFERS. Any purported Transfer of Shares not in accordance
with the provisions of this Agreement shall be void and ineffective and shall
not operate to Transfer any interest or title in such Shares to the purported
transferee. The Company shall not cause or permit any Transfer of any Shares to
be registered on its books unless such Transfer is made in accordance with the
terms of this Agreement. The Company shall be protected in relying on the record
of Stockholders maintained by it or on its behalf for all purposes,
notwithstanding any notice of any purported Transfer to the contrary.
4.10 RIGHTS TO SEEK A SALE. Each of UAG and PTL shall have the right, at
any time after the fourth anniversary of the Effective Date of this Agreement,
to require TRP to use commercially reasonable best efforts to identify a
purchaser for TRP's Shares and, in connection therewith, to exercise its rights
pursuant to SECTION 4.4 in the event a sale of TRP's interests results.
Notwithstanding the foregoing sentence, TRP shall not be required to sell its
Shares and neither UAG nor PTL shall have the rights provided for in SECTION 4.3
or 4.4C in connection with any such sale.
-11-
ARTICLE 5. RIGHTS TO PURCHASE
5.1 RIGHT TO PURCHASE. The Company and each Initial Investor shall have
the rights set forth below to purchase all, but not less than all, of the Shares
held by any Stockholder (which for the purposes of this ARTICLE 5 shall include
any Shares acquired by the Stockholder or his or her personal representative
prior to the closing of a purchase by the Company or the other Stockholders and
after the date of the event giving rise to the rights to purchase) in accordance
with the provisions of this ARTICLE 5.
A. If Shares owned by any Stockholder shall become subject to sale
or other Transfer by reason of (i) bankruptcy or insolvency proceedings, whether
voluntary or involuntary, (ii) attachment or garnishment; (iii) divorce; or (iv)
distraint, levy, execution or other involuntary transfer (other than in
accordance with the laws of descent and distribution), then such Stockholder or
his or her personal representative shall give the Company written notice thereof
promptly upon the occurrence of such event, stating the terms of such proposed
Transfer, the identity of the proposed transferee, the price or consideration,
if any, for which the Shares are proposed to be transferred, and the number of
Shares and type and number of other interest to be Transferred. Upon receipt of
such notice, or, failing such receipt, when the Company otherwise obtains actual
knowledge of such Transfer, the Company shall have the right to purchase from
the Stockholder, his or her personal representative, and the transferee, and,
upon exercise of this option, the Stockholder, his or her personal
representative, and the transferee shall be obligated to sell, all of the Shares
owned by such persons and acquired from the Stockholder immediately prior to the
occurrence of such event (or subsequently acquired as provided above), as shall
be specified in the notice of exercise, for the price and upon such terms as set
forth in SECTION 5.1A.
If any Shares held by a Stockholder or his or her personal
representative are transferred by operation of law (e.g., in the event of the
bankruptcy or death or disability of a Stockholder or the attachment or
garnishment of Shares), the transferee shall receive such Shares subject to the
provisions of this Agreement, including, but not limited to, the rights granted
to the Company and the other Stockholders to acquire such Shares.
B. Fair market value shall be determined in good faith by the Board
of Directors and promptly communicated to all Stockholders; provided that if the
Stockholder whose Shares are to be purchasable for fair market value believes
that the value determined by the Board is less than the actual value of the
Shares, such Stockholder shall be entitled to request a valuation by an
appraiser or investment banker reasonably acceptable to both that Stockholder
and the Board of Directors, and the fair market value as determined by that
appraiser or investment banker shall be final and binding on parties as the fair
market value for the Shares. Any request for such an evaluation must be made
within ten (10) days after notice of the Board of Directors' determination of
fair market value has been delivered to the Selling Stockholder, and any
valuation shall be made within thirty (30) days of the date on which it is
requested, promptly communicated to the Company and to all Stockholders. Within
ten (10) business days after the completion of any such valuation, the Company
and any Stockholder shall have the right to revoke any exercise of its right to
purchase such Shares (if made previously) by delivering written notice of
revocation to the Selling Stockholder and all other Stockholders and the
Company. The fees and expenses of any valuation pursuant to the preceding
section shall be borne equally by the Company and the Selling
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Stockholder requesting it, unless the appraisal indicates that the fair market
value of the Shares is greater than 125% of the initial fair market value
established by the Board of Directors, in which case the Company shall pay the
cost of the appraisal, or if the fair market value determined by the appraisal
is less than 75% of the initial fair market value as established by the Board,
the Stockholder requesting that appraisal shall pay its entire cost.
The Company shall immediately notify each Initial Investor when any
right to purchase Shares arises pursuant to SECTION 5.1 and shall keep the
Initial Investors fully and timely apprised of any decision that it may make to
exercise or not exercise its right to purchase Shares (subject, in each case to
required approvals under Article 2 hereof). If the Company does not exercise its
right to purchase all Shares that it is entitled to purchase, the Initial
Investors shall have the right to purchase any such Shares not purchased by the
Company in a manner and proportion that fairly reflects their then ownership
interest in the Shares pursuant to procedures established by the Board of
Directors.
If the Company and/or the Initial Investors do not together exercise
their right to purchase all Shares held by the Selling Stockholder, or his
estate, as applicable, within the specified time periods, that option shall
terminate and the Shares proposed to be transferred may be transferred.
5.2 EXERCISE; TIMING. The purchase option arising pursuant to SECTION 5.1
must be exercised by the Company (or the Stockholders) by giving written notice
to the Stockholder (or his or her personal representative, if applicable) within
thirty (30) days after the right to purchase has accrued under SECTION 5.1.
5.3 CLOSING; CONSIDERATION TO BE PAID.
A. At closing of any sale pursuant to this ARTICLE 5, the selling
Stockholder or his or her personal representative (as applicable) shall deliver
the Share certificates that are the subject of the sale free and clear of all
liens, restrictions and encumbrances (except those arising from this Agreement),
duly endorsed, and (if required by the Purchaser) with signature guaranteed, and
accompanied by all documents necessary to effect such transfer. In consideration
therefor, the purchaser(s) shall pay the purchase price.
B. If at the date of closing the seller has any outstanding monetary
obligation to the Company or to another purchaser, the Company and any such
purchaser shall have the right to set-off any such obligations against the
purchase price to be paid to the Seller by it, and that purchase price shall be
reduced accordingly. The calculation of such setoff and the identification and
amount of the obligation shall be given to the seller in a notice not less than
five (5) days prior to the Closing.
ARTICLE 6. MISCELLANEOUS.
6.1 REGISTRATION RIGHTS. Immediately prior to the closing of the Company's
first firm commitment underwritten public offering of its Common Stock
registered under the Securities Act
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of 1933, as amended, the Company and each Stockholder shall enter into a
Registration Rights Agreement providing, among other things, that commencing one
hundred eighty (180) days after the completion of that public offering, each
Stockholder and any group of Stockholders holding 15% or more of the Company's
then outstanding Common Stock shall have the right to multiple "demand"
registrations of their Common Stock on Form S-3 or a successor form thereto
which permits incorporation by reference in, at the election of the Stockholders
exercising registration rights, an underwritten public offering, or at their
election, on a shelf registration statement. In addition, the Stockholders shall
have the right under the Registration Rights Agreement to three (3) piggyback
registrations, subject to customary cutbacks and other provisions. In connection
with any registration, the Company shall agree to use its commercially
reasonable best efforts to file, cause the registration statement to become
effective, and cause the registration statement to remain effective in each case
promptly. The selling Stockholders shall be responsible for paying, in
connection with any registration, federal and state registration fees
attributable to their shares, costs and expenses of any counsel retained to
represent them as contrasted with the Company, underwriting discounts
attributable to their Shares, and, in the case of an underwritten offering,
printing and similar costs associated with the preparation and distribution of
the registration statement and related prospectus. The Registration Rights
Agreement shall include customary terms relating to the accuracy of information
provided by the Company and the selling Stockholders, blackout periods,
suspension of the prospectus upon notice from the Company, and indemnification
by the Company and the selling Stockholders.
6.2 "MARKET STAND-OFF" AGREEMENT. In the event of the Company's first firm
commitment underwritten public offering of its common stock registered under the
Securities Act of 1933, as amended, each Stockholder hereby agrees that such
Stockholder shall not sell or otherwise transfer or dispose of any Company
securities held by such Stockholder (other than those included in the
registration relating to such offering) for a period specified by the
representative of the underwriters of the common stock being sold in such
offering, which period shall not exceed one hundred eighty (180) days following
the effective date of the registration statement of the Company filed under the
Securities Act of 1933, as amended, relating to such offering. In furtherance of
the foregoing, (A) each Stockholder agrees to execute and deliver such other
agreements as may be reasonably requested by the Company or the underwriter(s)
which are consistent with the foregoing or which are necessary to give further
effect thereto, and (B) the Company is authorized to impose stop-transfer
instructions with respect to the securities subject to the foregoing restriction
until the end of the applicable period.
6.3 EQUITABLE RELIEF. The parties acknowledge that the Shares are unique,
and that any violation of this Agreement cannot be compensated for in damages
alone. Therefore, in addition to all of the other remedies which may be
available under applicable law, any party hereto shall have the right to
equitable relief, including, without limitation, the right to enforce
specifically the terms of this Agreement by obtaining injunctive relief against
any actual or threatened violation or non-performance hereof.
6.4 GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the internal laws of the State of Delaware (and United States
federal law, to the extent applicable) without giving effect to principles of
conflicts of law.
-14-
6.5 NOTICES. All demands, notices, requests, consents and other
communications required or permitted under this Agreement shall be in writing
and shall be personally delivered or sent by facsimile machine (with a
confirmation copy sent by one of the other methods authorized in this section),
commercial (including Federal Express) or U.S. Postal Service overnight delivery
service, or deposited with the U.S. Postal Service mailed first class,
registered or certified mail, postage prepaid, as follows:
If to the Company:
VMC Holding Corporation
2555 Telegraph Road
Bloomfield Hills, MI 48302
Attention: David Mitchell
Telecopier: (248) 648-2210
If to TRP:
Transportation Resource Partners
2555 Telegraph Road
Bloomfield Hills, MI 48302
Attention: Steven Carrel
Telecopier: (248) 648-2105
If to UAG:
United Auto Group, Inc.
2555 Telegraph Road
Bloomfield Hills, MI 48302
Attention: General Counsel
Telecopier: (248) 648-2515
If to PTL:
Penske Truck Leasing Co., L.P.
Route 10, Green Hills
Reading, PA 19603-0563
Attention: Vice President & Treasurer
Telecopier: 610-856-1055
with copy to:
Sr. Vice President & General Counsel
Telecopier: 610-775-6330
If to Opus:
Opus Ventures General Partner Limited
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The Giraffe House
Burrough Court
Burrough on the Hill
Leicestershire
LE142QS
Attention: Laurence Vaughan
Telecopier: +44(0)1664 452815
Notices shall be deemed given upon the earlier to occur of (A)
receipt by the party to whom such notice is directed; (B) if sent by facsimile
machine, the day (other than a Saturday, Sunday or legal holiday in the
jurisdiction to which such notice is directed) such notice is sent if sent (as
evidenced by the facsimile confirmed receipt) prior to 5:00 p.m. U.S. Eastern
Time, or the day (other than a Saturday, Sunday or legal holiday in the
jurisdiction to which such notice is directed) after which such notice is sent
if sent after 5:00 p.m. U.S. Eastern Time; (C) if sent by overnight delivery
service, the first business day (other than a Saturday, Sunday or legal holiday
in the jurisdiction to which such notice is directed) following the day the same
is deposited with the commercial carrier or U.S. Postal Service; or (D) if sent
by first class mail, registered or certified, postage prepaid, the fifth day
(other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) following the day the same is deposited with the U.S.
Postal Service. Each party, by notice duly given in accordance herewith, may
specify a different address for the giving of any notice hereunder.
6.6 LEGENDS. Each certificate for Shares held by any Stockholder shall be
delivered to the Company by each Stockholder and shall be noted conspicuously
with the following legend:
The transfer of this certificate and the Shares it represents,
as well as certain rights with respect to such Shares, are
restricted by an Agreement between this Company and its
Stockholders dated April 28, 2005, as it may be amended from
time to time, the terms of which Agreement, as it may be
amended, are incorporated herein by reference, and a copy of
which may be inspected at the principal office of the Company.
6.7 ARBITRATION.
A. Each and every dispute, difference, controversy or claim, whether
based on contract, tort, common law, statute or equity (a "DISPUTE") arising out
of or in connection with or related or incidental to, or question occurring
under this Agreement shall be finally settled in accordance with the JAMS
Comprehensive Arbitration Rules and Procedures (the "RULES") by a single
arbitrator selected by mutual agreement of the parties to the Dispute within ten
(10) days of receipt of a notice of arbitration of a Dispute or, if the parties
fail to select an arbitrator by mutual agreement within such ten (10) day
period, by JAMS in accordance with its Rules and this SECTION 6.5. Any
arbitrator selected by JAMS shall be an attorney or retired judge experienced in
corporate transactions. Arbitration of a Dispute shall be commenced by notice
provided in accordance with this Agreement and the Rules. Each party to any
arbitration proceeding hereunder
-16-
shall bear its own expenses in connection with such arbitration, including those
of attorneys and experts, and each party thereto shall bear an equal percentage
of the costs of the arbitrator and arbitration proceeding, e.g., the arbitration
facilities and transcript. Failure to pay the fees of JAMS and the arbitrator
when due shall constitute a separate breach of this Agreement for which the
damages shall be awarded by the arbitrator and shall consist of the reasonable
attorneys fees and costs incurred to obtain payment of such fees. The award of
the arbitrator shall be rendered in the form of a reasoned award and shall be in
writing. The arbitrator appointed pursuant to this SECTION 6.5, rather than a
court, shall determine any and all challenges and disputes with respect to the
arbitrability of a Dispute and the scope of the arbitration obligation under
this Agreement. Furthermore, the arbitrator shall, rather than a court,
determine all challenges to the enforceability of this Agreement and the
obligation to arbitrate a Dispute.
B. The location of all arbitration shall be Detroit, Michigan or any
other place mutually agreed to by the parties to the arbitration proceeding.
However, the arbitrator may hold an arbitration hearing at any location in or
outside the State of New York when necessary to obtain the testimony or
documents of third parties.
C. The parties hereby exclude any right of appeal to any court on
the merits of the Dispute. The provisions of this SECTION 6.5 may be enforced in
any court having jurisdiction over the award or any of the parties or any of
their respective assets, and judgment on the award (including without limitation
equitable relief required for enforcement of the award) may be entered in any
such court.
D. The arbitration of Disputes under this SECTION 6.5 shall be
governed, construed and enforced solely pursuant to the United States
Arbitration Act, 9 U.S.C. Section 1 et seq. The arbitration laws of the states
shall not apply. The law governing all substantive matters pertaining to his
Agreement shall be that set forth in SECTION 4.2, above.
6.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Agreement shall become binding when
one or more counterparts hereof, individually or taken together, shall bear the
signature of the Company and all of the Stockholders. An executed counterpart of
this Agreement and all amendments hereto shall be kept at the principal office
of the Company and shall be made available for inspection by any interested
party during regular business hours.
6.9 ASSIGNMENTS AND TRANSFERS.
A. Subject to the restrictions on Transfer set forth herein and
SECTION 6.12 hereof, this Agreement shall be binding upon and inure to the
benefit of the respective parties hereto, and their personal representatives,
estates, successors, and assigns, including any transferee of the Shares subject
to this Agreement. As a condition to any sale of Equity Securities, the
purchaser thereof shall agree to be bound by the terms hereof and any transfer
or issuance not in compliance with this SECTION 6.9 shall be given the effect
set forth in SECTION 4.9 hereof.
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B. Subject to the limitations set forth in SECTIONS 1.1, 1.2 AND
2.1A, to the extent an Initial Investor or a transferee thereof has rights under
SECTION 1.1, 2.1B, 2.2, 4.3. 4.4. OR 4.6 or ARTICLE 5 of this Agreement at the
time of transfer, such rights may be transferred (and not retained) to any
purchaser permitted hereunder of all, but not less than all, of the outstanding
Shares then held by such Stockholder.
C. The rights under SECTIONS 2.1A AND 4.10 are not transferable.
D. The rights of any Initial Investor or its permitted successor
under ARTICLES 1, 2, AND 5, and under SECTIONS 4.3 AND 4.4 shall lapse if such
Stockholder ceases to hold of record at least 5% of the issued and outstanding
Common Shares.
6.10 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable by any judgment of a tribunal of competent
jurisdiction, it shall to that extent be omitted, but the remainder of this
Agreement shall not be affected by such judgment, and the Agreement shall be
carried out as nearly as possible according to its original terms and intent. In
particular, if the provisions relating to Transfers of Shares in ARTICLE 5 are
determined to constitute an impermissible restriction on transfer, the Company
shall have the right to purchase such Shares upon thirty (30) days notice at the
purchase price set forth in ARTICLE 5.
6.11 ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the entire
agreement and understanding of the parties with respect to the subject matter
hereof and supersedes all prior written or oral agreements, representations and
understandings relating to the subject matter hereof. This Agreement may be
amended or modified at any time by the affirmative vote at a meeting duly called
for that purpose of a majority of the Shares then outstanding voting as separate
classes.
6.12 TERMINATION. This Agreement shall terminate upon the affirmative
agreement of each of the Initial Investors. This Agreement, if not previously
terminated, shall expire upon (x) the effective date of the first registration
statement filed with the Securities and Exchange Commission under the Securities
Act of 1933, as amended, in connection with the initial firm commitment,
underwritten public offering of the Company's common stock, (y) the sale to a
third party of all of the outstanding Shares held by the Stockholders, or (z) a
merger or combination of the Company with or into another company in which the
Shares do not constitute a majority of the voting securities in the surviving
corporation.
6.13 REPRESENTATIONS. Each of the Stockholders represents to the Company
and to each other Stockholder that he is the sole record and beneficial owner of
the number of Shares set forth next to his name on Schedule A and no other
person has any right, title, or interest in or to the Shares which such schedule
indicates that he owns. All such Shares are held by him free and clear of any
liens, encumbrances, equities, options, or rights of another whatsoever.
6.14 SPOUSAL CONSENT. By signing this Agreement, each spouse of a
Stockholder who is an individual consents to the execution and delivery hereof
by his or her spouse, becomes a party to this Agreement, acknowledges that this
Agreement restricts and limits certain rights he or she may have in securities
of the Company and hereby agrees and consents to such limitations and
restrictions.
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6.15 PRONOUNS. As used in this Agreement, the pronouns "it" and "its"
shall mean, when referring to an individual, him, her, his, or hers (as
applicable).
6.16 ISSUANCE OF ADDITIONAL SECURITIES. If the Company issues or agrees to
issue any Preferred Stock or any Equity Security other than Common Stock or
options to purchase Common Stock under an Option Plan, each Stockholder shall
execute and deliver an amendment to this Agreement providing that all of its
provisions other than those of ARTICLE 1 shall be applicable to such additional
securities. In addition, if the Company adopts an Option Plan, and any person
acquires shares of Common Stock or other equity Securities of the Company
pursuant to it, such person as a condition of acquiring such shares or
securities shall be required to join in this Agreement by executing an addendum
hereunder; and, to the extent necessary, this Agreement shall be appropriately
amended to reflect the terms and conditions under which such securities are
issued.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Stockholders' Agreement has been duly executed on
this 28th day of April, 2005 by each of the parties whose name is set forth
below.
VMC ACQUISITION CORPORATION
By /s/ David R. Mitchell
-----------------------------------
Name: David R. Mitchell
Title President
TRANSPORTATION RESOURCE PARTNERS, LP
By: /s/ David R. Mitchell
-----------------------------------
Name: David R. Mitchell
Title: Principal
UNITED AUTO GROUP, INC.
By: /s/ Shane M. Spradlin
-----------------------------------
Name: Shane M. Spradlin
Title: Secretary
PENSKE TRUCK LEASING CO., L.P.
By: Penske Truck Leasing Corporation,
its General Partner
By: /s/ Wayne S. Angelbeck
-----------------------------------
Name: Wayne S. Angelbeck
Title: Treasurer
OPUS VENTURES GENERAL PARTNER LIMITED
By: /s/ L. Vaughan
-----------------------------------
Name: L. Vaughan
Title: Partner
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SCHEDULE A
HOLDER NUMBER OF SHARES
- ------------------------------------- ----------------
Transportation Resource Partners 2875
United Auto Group, Inc. 1125
Penske Truck Leasing Co., L.P. 500
Opus Ventures General Partner Limited 500