Stockholders Agreement

Exhibit4.4

STOCKHOLDERSAGREEMENT

 

THIS STOCKHOLDERS AGREEMENT(this “Agreement”) is made as of September 30, 2004, by and among (i) ACACapital Holdings, Inc., a Delaware corporation (the “Company”), (ii) BSMB/ACALLC, a Delaware limited liability company (together with its successors andassigns, “BSMB”), and (iii) the other persons from time to timesignatories hereto (the “Other Holders”). BSMB and the Other Holders arecollectively referred to as the “Stockholders” and individually as a “Stockholder.”Unless otherwise specified herein, all of the capitalized terms used herein aredefined in Section 10 hereof.

 

WHEREAS, BSMB has acquiredthe number of shares. of the Company’s Series B Senior Convertible PreferredStock, par value $0.10 (the “Series B PreferredStock”), set forth opposite its name on the Schedule of Stockholders,pursuant to that certain Stock Purchase Agreement, dated as of July 22, 2004,by and between BSMB and the Company (as amended, the “Purchase Agreement”);

 

WHEREAS, the Other Holdersown the type and number of shares of Series B Preferred Stock and shares of theCompany’s Senior Convertible Preferred Stock,Convertible Preference Stock and Common Stock, as applicable, as set forthopposite their names on the Schedule of Stockholders; and

 

WHEREAS, the Company and theStockholders desire to enter into this Agreement for the purposes, amongothers, of (i) establishing the composition of theCompany’s board of directors (the “Board”) and (ii) limiting the mannerand terms by which the Stockholder Shares may be Transferred. The execution anddelivery of this Agreement is a condition to BSMB’s purchase of shares ofSeries B Preferred Stock pursuant to the Purchase Agreement.

 

NOW, THEREFORE, inconsideration of the mutual covenants contained herein and other good andvaluable consideration, the receipt and sufficiency of which are herebyacknowledged, the parties to this Agreement hereby agree as follows:

 

1.     Board of Directors.

 

(a)           From and after the Closing (as defined in the Purchase Agreement)and until the provisions of this Section 1 cease to be effective atany meeting of stockholders of the Company and any adjournment or postponementthereof, however called, and in any action by written consent, each Stockholdershall vote or cause to be voted all of its Stockholder Shares which areentitled to vote and shall take all other necessary or desirable actions withinits control in its capacity as a stockholder (including, without limitation,attendance at meetings in person or by proxy for purposes of obtaining a quorumand execution of written consents in lieu of meetings), and the Company shalltake all necessary or desirable actions within its control (including, withoutlimitation, calling special board and stockholder meetings), so that:

 

(i)            the following individuals shall be elected to the Board:

 

(A)          two members of the Company’s seniormanagement (the “Executive Directors”); one Executive Director shall bethe Company’s Chief

 

 



 

Executive Officer (the “CEO”)and the other Executive Director shall be a member of the Company’s executivemanagement team who shall be nominated by the CEO. The Executive Directorsshall initially be Alan S. Roseman and Edward U. Gilpin;

 

(B)           so long as BSMB and its Affiliateshold 10 percent or more of the Series B Preferred Stock that BSMB acquired onthe date hereof pursuant to the provisions of the Purchase Agreement and/or anyshares of Common Stock issued upon conversion of such Series B Preferred Stock(collectively, the “Original Shares”), one representative nominated byBSMB (each director designated by BSMB pursuant to this clause (B) and clauses(C) and (D) below, a “BSMB Director”);

 

(C)           so long as BSMB and its Affiliateshold 25 percent or more of the Original Shares, a second BSMB Director nominatedby BSMB;

 

(D)          so long as BSMB and its Affiliateshold 50 percent or more of the Original Shares, a third BSMB Director nominatedby BSMB. Two of the three BSMB Directors shall initially be David E. King andRobert Juneja;

 

(E)           two representatives nominated by BSMBand approved by a majority of the Board (the “Independent Directors”); providedthat such representatives shall not be (i) members of the Company’s management,(ii) employees or officers of the Company or any of its Subsidiaries, (iii) employeesor officers of any Stockholder or any Affiliate of any Stockholder, or (iv)employees or officers of The Bear Stearns Companies Inc. or any of itsSubsidiaries, except, in the case of clauses (iii) and (iv) above, with theconsent of a majority of the directors of the Board (other than the BSMBDirectors);

 

(F)           so long as Stephens Group, Inc. holds10 percent or more of the Common Stock Outstanding, one representativenominated by Stephens Group, Inc., who initially shall be Warren Stephens;

 

(G)           so long as Chestnut Hill ACA, LLC (“Chestnut”)holds 10 percent or more of the Common Stock Outstanding, one representativenominated by Chestnut, who initially shall be John Berylson; and

 

(H)          so long as Third Avenue Trust holds 10percent or more of the Common Stock Outstanding, one representative nominatedby Third Avenue Trust, who initially shall be David Barse;

 

(ii)           the chairman of the Board shall be anindividual nominated by BSMB;

 

(iii)          the composition of the board ofdirectors (and the number of votes to which each director is entitled) of ACAFinancial Guaranty Corporation, a Maryland corporation, and any otherSubsidiary of the Company that BSMB may hereafter

 

 

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reasonably designate bywritten notice to the Stockholders and the Board (each, a “Sub Board”),shall be the same as that of the Board unless prohibited by applicable law orregulation, in which case the composition of such Sub Board (and the number ofvotes to which each director is entitled) shall be as otherwise selected byvote of the Board or as otherwise required by applicable law or regulation, butshall include at least one BSMB Director unless BSMB otherwise consents;

 

(iv)          the composition of any committee ofthe Board or any Sub Board shall not exceed three members and shall include atleast one BSMB Director;

 

(v)           the Company shall have an auditcommittee and a compensation committee, each consisting of three members, oneof whom shall be a BSMB Director;

 

(vi)          a representative to the Board or a SubBoard nominated by a Stockholder (or Stockholders) pursuant to the terms ofthis Section 1(a) may be removed from the Board or such Sub Board (withor without cause) only in accordance with the Company’s or such Subsidiary’sbylaws and only upon such Stockholder’s (or such Stockholders’) writtenrequest; provided that nothing in this Agreement shall be construed toimpair any rights that the Stockholder (or Stockholders) may have to remove anydirector for cause; provided, further, that (1) notwithstandingthe foregoing, if the holders of a majority in voting power of the Series BPreferred Stock then outstanding approve a Sale of the Company and deliverwritten notice to the holders of Stockholders Shares invoking the provisions ofSection 5, then the holders of a majority in voting power of the SeriesB Preferred Stock may elect to have removed from the Board (with or withoutcause) any director, and may then nominate a replacement for such removeddirector, and each Stockholder shall vote or cause to be voted all of itsStockholder Shares which are entitled to vote and shall take all othernecessary or desirable actions, within its control in its capacity as astockholder (including, without limitation, attendance at meetings in person orby proxy for purposes of obtaining a quorum and execution of written consentsin lieu of meetings), and the Company shall take all necessary or desirableactions within its control (including, without limitation, calling specialboard and stockholder meetings), so that any such director is removed and thenominated replacement is elected to replace such removed director; (2) eachsuch removed director shall have the same observer rights as set forth in Section1(c) until the consummation of such Sale of the Company; and (3) in theevent a Sale of the Company is not consummated, each removed director shall bereinstated and the replacement directors shall be removed from the Board;

 

(vii)         in the event that any representativenominated (or subject to approval) hereunder by any Stockholder (orStockholders) ceases to serve as a member of the Board, a Sub Board or acommittee during such representative’s term of office (whether due toresignation, removal or otherwise), the resulting vacancy on the Board or theSub Board shall be filled by a representative nominated (and approved) by theStockholder(s) originally entitled to nominate (or approve) such directorpursuant to Section 1(a)(i), subject to the last proviso in (vi) above;

 

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(viii)        if any party fails to nominate arepresentative to fill a directorship pursuant to the terms of this Section1, neither the Board nor the Stockholders may elect, and the Stockholdersshall not vote to elect, any person to fill such vacant directorship withoutthe prior written consent of the Stockholder(s) originally entitled to nominate(or approve) such director pursuant to Section 1, subject to the lastproviso in (vi) above; and

 

(ix)           the bylaws of the Company and of eachSubsidiary of the Company that BSMB may reasonably designate shall providethat, except as otherwise provided by law, no quorum shall exist at any meetingof the Board or any Sub Board unless a majority of the directors of such boardof directors is present at such meeting.

 

(b)           The Company shall pay the reasonable out-of-pocketexpenses incurred by each director in connection with attending the meetings ofthe Board, any Sub Board and any committee thereof. In addition, the Companymay pay any Independent Director an annual fee and a fee for each meeting ofthe Board, any Sub Board or any committee thereof attended by such director.

 

(c)           So long as each of (i) BSMB and its Affiliates hold 10percent or more of the Common Stock Outstanding and (ii) AEGON, N.V. and itsAffiliates (including, without limitation, Life Investors Insurance Company ofAmerica and Transamerica Life Insurance Company) hold five percent or more ofthe Common Stock Outstanding, such Stockholder shall have the right todesignate one natural Person (each, a “Board Observer”) to attend (inperson or telephonically, at such Person’s option) each meeting of the Boardand any committee of the Board; provided that such Stockholder willnotify the Company from time to time of the identity of its Board Observer andsuch Board Observer’s address (including facsimile number and email address) fornotice and other communications; provided, further, that suchBoard Observer may be excluded from any such meeting to the extent that theBoard determines in good faith that such exclusion is required to preserve anyevidentiary privilege or any portion of any such meeting during which therespective interests of the Company and its Subsidiaries and those of suchStockholder in question, as to the matter(s) to be discussed or actions to betaken during such portion of such meeting, conflict (in the good faith judgmentof the Board). The Company will send, or cause to be sent, to such Stockholderthe notice of the time and place of any such meeting in the same manner and atthe same time as notice is sent to the members of the Board or any committee ofthe Board. The Company shall also provide, or cause to be provided, to suchStockholder copies of all notices, reports, minutes and other documents andmaterials at the same time and in the same manner as they are provided to themembers of the Board or any committee of the Board; provided that thefailure to deliver or make available one or more of the items described in thissentence or the preceding sentence will have no impact on the validity of anyaction taken by the Board or any committee of the Board. If the Companyproposes to take any action by written consent in lieu of a meeting of theBoard or any committee of the Board, the Company shall give a copy thereof tosuch Stockholder within five business days following the effective date of suchconsent; provided that the failure to deliver or make available one ormore of the items described in this sentence will have no impact on thevalidity of any action taken by ‘ the Board or any committee of the Board.

 

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2.     Irrevocable Proxy. In order to secureeach Employee’s obligation to vote such Employee’s Stockholder Shares and othervoting securities of the Company in accordance with the provisions of Sections1 and 5, each Employee hereby constitutes and appoints BSMB as suchEmployee’s true and lawful proxy and attorney-in-fact, with full power ofsubstitution and resubstitution, to vote, or cause to be voted, all of suchStockholder’s Stockholder Shares and other voting securities of the Company forthe election and/or removal of directors and all such other matters asexpressly provided for in Sections 1 and 5. BSMB may exercise theirrevocable proxy granted to it hereunder at any time any Employee fails tocomply with the provisions of Section 1 or 5. Each Employeehereby revokes all other proxies and powers of attorney with respect to suchEmployee’s Stockholder Shares. The proxies and powers granted by each Employeepursuant to this Section 2 are coupled with an interest and are given tosecure the performance of each Employee’s obligations to the other Stockholdersunder this Agreement. Such proxies and powers shall be irrevocable except, onlywith respect to the obligations of Section 5, such time as set forth in Section5(g), and shall survive the death, incompetency, disability, bankruptcy ofsuch Employee and the subsequent holders of such Employee’s Stockholder Shares.

 

3.     Representations and Warranties. EachStockholder represents and warrants that (i) such Stockholder is the recordowner of the type, class or series, and number of Stockholder Shares set forthopposite its name on the Schedule of Stockholders attached hereto, freeand clear of all liens and encumbrances, (ii) this Agreement has been dulyauthorized, executed and delivered by such Stockholder and constitutes thevalid and binding obligation of such Stockholder, enforceable in accordancewith its terms, and (iii) such Stockholder has not granted and is not a partyto any proxy, voting trust or other agreement which is inconsistent with,conflicts with or violates any provision of this Agreement. No holder ofStockholder Shares shall grant any proxy or become a party to any voting trustor other agreement which is inconsistent with, conflicts with or violates anyprovision of this Agreement. No person executing this Agreement who is orbecomes during the term hereof a director of the Company makes any agreement orunderstanding herein in his or her capacity as such director. Each Stockholdersigns solely in his or her capacity as the record and beneficial owner of suchStockholder Shares.

 

4.     Restrictions on Transfer of StockholderShares.

 

(a)           Transfer of Stockholder Shares.

 

(i)            No holder of Stockholder Sharesshall sell, transfer, assign, pledge or otherwise dispose of (whether with orwithout consideration and whether voluntarily or involuntarily or by operationof law, including by way of merger or consolidation) any interest in itsStockholder Shares (a “Transfer”), except pursuant to the provisions ofthis Section 4 or Section 5 or pursuant to a Public Offering. NoStockholder shall consummate any Transfer (other than pursuant to a Sale of theCompany or a Public Offering) until 30 days after the later of the delivery tothe Company and the Offerees (as defined below) of such Stockholder’s OfferNotice or Sale Notice (if any), unless the parties to the Transfer have beenfinally determined pursuant to this Section 4 prior to the expiration ofsuch 30-day period (the “Election Period”).

 

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(ii)           Without limiting the generality of Section4(a)(i), no Employee shall Transfer any Stockholder Shares held by suchEmployee on the date hereof or hereafter acquired, except pursuant to a Sale ofthe Company or a Public Offering; provided that nothing contained inthis Section 4(a)(ii) shall prohibit any Employee from transferringStockholder Shares as permitted by Section 4(c) or 4(d).

 

(b)           First Refusal Right. At least 30 days prior tomaking any Transfer of any Stockholder Shares (other than pursuant to a Sale ofthe Company or a Public Offering), the transferring Stockholder (the “TransferringStockholder”) shall deliver a written notice (an “Offer Notice”) tothe Company and to the holders of the Series B Preferred Stock (the “Offerees”).The Offer Notice shall disclose in reasonable detail the proposed type, classor series, and number of Stockholder Shares to be transferred, the proposedterms and conditions of the Transfer and the identity, background and ownership(if applicable) of the prospective transferee(s), and the Offer Notice shallconstitute an irrevocable binding offer to sell the Stockholder Shares to the Offereeson such terms and conditions. Each Offeree may elect to purchase all or anyportion of the Stockholder Shares specified in the Offer Notice at the priceand on the terms specified therein by delivering written notice of suchelection to the Transferring Stockholder as soon as practical, but in any eventwithin 20 days after delivery of the Offer Notice. If more than one Offeree haselected to purchase the Stockholder Shares specified in the Offer Notice, thenumber of Stockholder Shares subject to each such agreement shall beproportionate to such Offerees’ relative Pro Rata Share (but in no event willan Offeree be obligated to purchase more than the number of Stockholder Shares specifiedin its election notice), or on such other basis as such Offerees shall agree.If any one or more Offerees have elected to purchase any Stockholder Sharesspecified in the Offer Notice, the sale of such Stockholder Shares shall beconsummated as soon as practical after the delivery of the election notice(s)to the Transferring Stockholder, but in any event within 45 days after theexpiration of the Election Period, subject to any required regulatoryapprovals. To the extent that the Offerees have not elected to purchase all ofthe Stockholder Shares being offered, the Transferring Stockholder may, within90 days after the expiration of the Election Period and subject to theprovisions of Section 4(c) below, transfer such Stockholder Shares tothe Person or group of Persons identified in the Offer Notice, at a price noless than the price per share specified in the Offer Notice and on other termsno more favorable to the transferees thereof than offered to the Offerees inthe Offer Notice. Any Stockholder Shares not transferred within such 90-dayperiod shall be reoffered to the Offerees under this Section 4(b) priorto any subsequent Transfer. The purchase price specified in any Offer Noticeshall be payable solely in cash at the closing of the transaction or ininstallments over time, and no Stockholder Shares may be subject to a pledge.Each Stockholder’s “Pro Rata Share” shall be based upon such Stockholder’sproportionate ownership of all shares of Series B Preferred Stock owned byStockholders other than the Transferring Stockholder.

 

(c)           Participation Rights.

 

(i)            At least 30 days prior to anyTransfer (other than pursuant to a Public Offering or a Transfer to the Offereespursuant to Section 4(b)) of Stockholder Shares constituting more than50 percent of the then outstanding Common Stock Equivalents, the Stockholder orgroup of Stockholders making such Transfer (the

 

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“Section 4(c)Transferring Stockholder”) shall deliver a written notice (the “SaleNotice”) to the Company and the other Stockholders (the “ParticipatingStockholders”), specifying in reasonable detail the identity, backgroundand ownership (if applicable) of the prospective transferee(s), the type, classor series, and number of shares to be transferred and the terms and conditionsof the Transfer (which notice may be the same notice and given at the same timeas the Offer Notice under Section 4(b)).

(ii)           The ParticipatingStockholders may elect to participate in the contemplated Transfer at the sameprice per Common Stock Equivalent and on the same terms by delivering writtennotice to the Section 4(c) Transferring Stockholder within 20 days afterdelivery of the Sale Notice. If any Participating Stockholder has elected toparticipate in such Transfer, each of the Section 4(c) Transferring Stockholderand the Participating Stockholders will be entitled to include in thecontemplated Transfer, subject to Section 4(c)(iii), the number ofCommon Stock Equivalents equal to the product of (i) the quotient determined bydividing (x) the number of Common Stock Equivalents held by such Person by (y)the aggregate number of Common Stock Equivalents held by such Section 4(c)Transferring Stockholder and the Participating Stockholders and (ii) theaggregate number of Common Stock Equivalents to be Transferred in thecontemplated Transfer. Any of the Participating Stockholders may elect to sellin any Transfer contemplated under this Section 4(c) a lesser number ofCommon Stock Equivalents than such Participating Stockholder is entitled tosell hereunder, in which case the Section 4(c) Transferring Stockholder shallhave the right to sell an additional number of Common Stock Equivalents in suchTransfer equal to the number that such Participating Stockholder has electednot to sell.

 

(iii)          If the Section 4(c) TransferringStockholder contemplates Transferring Stockholder Shares (other than shares ofCommon Stock) for a price per share that is less than the conversion price thenin effect for such Stockholder Shares, then no Participating Stockholder shallbe entitled to include in the proposed Transfer any Stockholder Shares that arejunior in right of payment to such Stockholder Shares.

 

(iv)          Each Section 4(c) TransferringStockholder shall use reasonable efforts to obtain the agreement of theprospective transferee(s) to the participation of the ParticipatingStockholders in any contemplated Transfer, and no Section 4(c) TransferringStockholder shall transfer any of its Stockholder Shares to any prospectivetransferee if such prospective transferee(s) declines to allow the participationof the Participating Stockholders. Each Participating Stockholder shall pay itspro rata share (based upon the consideration received upon such Transfer) ofthe expenses incurred by the Stockholders in connection with such transfer andshall be obligated to join on a pro rata basis (based upon the considerationreceived upon such Transfer)

 

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in any indemnification orother obligations that the Section 4(c) Transferring Stockholder agrees toprovide in connection with such transfer (other than any such obligations thatrelate specifically to a particular Stockholder such as indemnification withrespect to representations and warranties given by a Stockholder regarding suchStockholder’s title to and ownership of Stockholder Shares; providedthat no holder shall be obligated in connection with such Transfer to agree toindemnify or hold harmless the transferees with respect to an amount in excessof the net cash proceeds paid to such holder in connection with such Transfer)

(d)           Permitted Transfers. Therestrictions set forth in this Section 4 shall not apply with respect toany Transfer of Stockholder Shares by any Stockholder (i) in the case of anEmployee or an Other Holder that is a natural person, by will or pursuant toapplicable laws of descent and distribution or among such Employee’s or OtherHolder’s, as applicable, Family Group, (ii), in the case of BSMB or an OtherHolder that is not a natural person, among its Affiliates, or (iii) in the caseof Insurance Partners, L.P., Insurance Partners Offshore (Bermuda), L.P. and IP/MCLP,L.L.C. (each, an “IP Entity”), a Transfer of all or a portion of such IPEntity’s Stockholder Shares (A) to any holder of an equity interest in an IPEntity or to a liquidating trust if such Transfer is effected upon dissolutionof such IP Entity or as a distribution to such holder required by thepartnership agreement or limited liability company agreement in respect of suchIP Entity; or (B) to a limited partnership entity of which an IP Entity is thesole general partner or to a limited liability company of which an IP Entity isthe sole managing member ((i), (ii) and (iii) above are collectively referredto herein as “Permitted Transferees”); provided that therestrictions contained in this Section 4 shall continue to be applicableto the Stockholder Shares after any such Transfer and provided further that thetransferees of such Stockholder Shares shall have agreed in writing to be boundby the provisions of this Agreement affecting the Stockholder Shares sotransferred. Notwithstanding the foregoing, no party hereto shall avoid theprovisions of this Agreement by making one or more transfers to one or morePermitted Transferees and then disposing of all or any portion of such party’sinterest in any such Permitted Transferee.

 

(e)           This Section 4 shall terminate and cease to beeffective upon the earlier to occur of the consummation of (i) a Sale of theCompany pursuant to Section 5 or (ii) a Qualified Public Offering.

 

5.     Sale of the Company.

 

(a)           If the holders of a majority in voting power of the SeriesB Preferred Stock then outstanding approve a Sale of the Company and deliverwritten notice to the holders of Stockholders Shares invoking the provisions ofthis Section 5 (any such sale, an “Approved Sale”), the holdersof Stockholders Shares shall consent to, vote in favor of and raise noobjections against the Approved Sale; provided, however, that ifthe definitive sale agreement governing an Approved Sale is entered into priorto the 18-month anniversary of the date hereof, then, unless a majority of theBoard approves such Approved Sale (prior to the removal of any directorpursuant to the second proviso of Section 1(a)(vi)) or unless Standard& Poor’s Rating Group, a division of McGraw-Hill Companies (“S&P”),shall have downgraded the A financial strength, corporate credit or financialenhancement rating of ACA Financial Guaranty Corporation (or shall have ceasedrating ACA Financial Guaranty Corporation), the aggregate price per CommonStock Equivalent received in such an Approved Sale shall be not less than theCompany’s Book Value Per Share as at the end of the most recently completedfiscal quarter for which the Company’s financial statements have been completedat the time such sale or similar agreement is executed.

 

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(b)           If the Approved Sale is structured as (i) a merger orconsolidation, each holder of Stockholder Shares shall vote or cause to bevoted such holder’s Stockholder Shares to approve such merger or consolidation,whether by written consent or at a stockholders meeting (as requested by theholders of a majority in voting power of the outstanding Series B PreferredStock) and waive all dissenter’s rights, appraisal rights and similar rights inconnection with such merger or consolidation, (ii) a sale of stock, then eachholder of Stockholder Shares shall agree to sell, and shall sell, all of suchholder’s Stockholder Shares and rights to acquire Stockholder Shares on theterms and conditions so approved by the holders of a majority in voting power ofthe outstanding Series B Preferred Stock or (iii) a sale of assets, each holderof Stockholder Shares shall vote or cause to be voted its Stockholder Shares toapprove such sale and any subsequent liquidation of the Company or otherdistribution of the proceeds therefrom, whether by written consent or at astockholders meeting (as requested by the holders of a majority in, votingpower of the outstanding Series B Preferred Stock).

 

(c)           In furtherance of the foregoing, (i) each holder ofStockholder Shares shall take, with respect to such holder’s StockholderShares, all necessary or desirable actions reasonably requested by the holdersof a majority in voting power of the outstanding Series B Preferred Stock inconnection with the consummation of the Approved Sale and (ii) each holder ofStockholder Shares shall make the same representations, warranties, indemnitiesand agreements as each other holder, including, without limitation, voting toapprove such transaction and executing the applicable purchase agreement andrelated documents, except that (A) each holder of Stockholder Shares shall beobligated only to (1) make representations and warranties with respect to suchholder’s title to and ownership of the Stockholder Shares actually Transferredin such Approved Sale, authorization, execution and delivery of relevantdocuments by such Stockholder, enforceability of relevant agreements againstsuch holder and other matters relating to such holder, (2) enter into covenantsin respect of a Transfer of such holder’s  Stockholder Shares in connection with suchApproved Sale and (3) enter into indemnification obligations with respect tothe foregoing, in each case, to the extent that each other holder is similarlyobligated, but no Stockholder shall be obligated to enter into indemnificationobligations with respect to any of the foregoing with respect to such otherholder or such other holder’s Stockholder Shares, and (B) in no event shall anyStockholder be liable in respect of any indemnity obligations with respect tosuch holder and the Company and its Subsidiaries in general pursuant to anyApproved Sale in an aggregate amount in excess of the total considerationpayable to such holder in such Approved Sale.

 

(d)           The obligations of the holders of Stockholder Shares withrespect to an Approved Sale are subject to the satisfaction of the followingconditions: (i) upon the consummation of the Approved Sale, each holder ofStockholder Shares, to the extent it is receiving any consideration, willreceive the same form of consideration as each other holder of StockholderShares, and the aggregate consideration will be distributed, as between thedifferent classes or series of Stockholder Shares, based on the rights andpreferences set forth in the Company’s Certificate of Incorporation as ineffect immediately prior to such Approved Sale, and as between holders ofStockholder Shares of a particular class or series, ratably based on theStockholder Shares of such class or series actually Transferred in the ApprovedSale; (ii) if any holders of a series or class of Stockholder Shares are givenan option as to the form and amount of consideration to be received, eachholder of such series or class of Stockholder Shares will be

 

 

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given the same option; and(iii) each holder of then currently exercisable rights to acquire shares of aclass of Stockholder Shares will be given an opportunity to exercise suchrights prior to the consummation of the Approved Sale and participate in suchsale as holders of such class of Stockholder Shares. Each Stockholderacknowledges that, depending upon the aggregate consideration to be distributedin connection with the Approved Sale, certain classes or series of StockholderShares may receive less consideration per Common Stock Equivalent than otherclasses or series of Stockholder Shares, and certain classes or series mayreceive no consideration in the Approved Sale.

(e)           If the Company or the holders of theCompany’s securities enter into any negotiation or transaction for which Rule506 (or any similar rule then in effect) promulgated by the United StatesSecurities and Exchange Commission may be available with respect to suchnegotiation or transaction (including a merger, consolidation or otherreorganization), the holders of Stockholder Shares shall, at the request of theCompany, appoint a “purchaser representative” (as such term is defined in Rule501) reasonably acceptable to the Company. If any holder of Stockholder Sharesappoints a purchaser representative designated by the Company, the Companyshall pay the fees of such purchaser representative. However, if any holder ofStockholder Shares declines to appoint the purchaser representative designatedby the Company, such holder shall appoint another purchaser representative (reasonablyacceptable to the Company), and such holder shall be responsible for the feesof the purchaser representative so appointed.

 

(f)            Except as expressly set forth in Section 5(e), inconnection with an Approved Sale, the Company shall reimburse each of theStockholders for its reasonable out-of-pocket costs and expenses (including thefees and expenses of one counsel selected by the holders of a majority invoting power of the Series B Preferred Stock then outstanding) incurred inconnection with such Approved Sale, regardless of whether the transactionintended to be an Approved Sale is consummated.

 

(g)           This Section 5 shall terminate and cease to beeffective upon the earlier to occur of the consummation of (i) a Sale of theCompany pursuant to this Section 5 or (ii) a Qualified Public Offering.

 

6.     Legend. Each certificate evidencingStockholder Shares and each certificate issued in exchange for or upon theTransfer of any Stockholder Shares (if such shares remain Stockholder Sharesafter such Transfer) shall be stamped or otherwise imprinted with a legend insubstantially the following form:

 

“THE SECURITIES REPRESENTEDBY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED (THE “ACT”), AND MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF ANEFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR AN EXEMPTION FROMREGISTRATION THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARESUBJECT TO CERTAIN RESTRICTIONS

 

 

 

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AND CONDITIONS ON TRANSFER,AS SET FORTH IN A STOCKHOLDERS AGREEMENT, DATED AS OF SEPTEMBER 30,2004, BY AND AMONG THE ISSUER OF SUCH SECURITIES (THE “COMPANY”) AND CERTAIN OFTHE COMPANY’S STOCKHOLDERS, AS MAY BE AMENDED, AND MODIFIED FROM TIME TO TIME.A COPY OF SUCH STOCKHOLDERS AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY THECOMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST.”

The Company shall imprintsuch legend on certificates evidencing Stockholder Shares outstanding as of thedate hereof, and the Stockholders shall surrender their stock certificates tothe Company for such purpose. The legend set forth above shall be removed fromthe certificates evidencing any shares which cease to be Stockholder Shares asprovided in the definition of such term in Section 10 hereof.

 

7.     Transfer. Prior to Transferring anyStockholder Shares (other than pursuant to a Sale of the Company or a PublicOffering) to any Person, the transferring holder of Stockholder Shares shallcause the prospective transferee to be bound by the terms and conditions ofthis Agreement and to execute and deliver to the Company and the other holdersof Stockholder Shares a counterpart of this Agreement.

 

8.     Repurchase Upon Termination ofEmployment.

 

(a)           If an Employee ceases to be employed by the Company andits Subsidiaries (a “Termination”), the capital stock of the Companyheld by such Employee or one or more of such Employee’s transferees permittedby Section 4(d) (the “Repurchase Shares”) shall be subject torepurchase by the Company pursuant to the terms and conditions set forth inthis Section 8 (the “Repurchase Option”).

 

(b)           The Board may elect to purchase all or any portion of theRepurchase Shares by delivering written notice (the “Repurchase Notice”)to the holder or holders of the Repurchase Shares within 90 days after the dateof Termination. The Repurchase Notice shall set forth the number of RepurchaseShares to be acquired from each holder of Repurchase Shares, the aggregateconsideration to be paid for such number of Repurchase Shares and the time andplace for the closing of the transaction. The number of Repurchase Shares to berepurchased by the Company shall first be satisfied to the extent possible fromthe Repurchase Shares held by the Employee at the time of delivery of theRepurchase Notice. If the number of Repurchase Shares then held by the Employeeis less than the total number of Repurchase Shares the Company has elected topurchase, the Company shall purchase the remaining Repurchase Shares elected tobe purchased from the other holder(s) of Repurchase Shares, pro rata accordingto the number of Repurchase Shares held by such other holder(s) at the time ofdelivery of such Repurchase Notice (determined as close as practicable to thenearest whole share).

 

(c)           Except as set forth in Section 8(e), the purchase pricefor the Repurchase Shares shall be their Fair Market Value as of the end of thefiscal quarter immediately preceding

 

 

11



 

the date of Termination. The“Fair Market Value” of any Repurchase Share shall be equal to the amountwhich the holder thereof would receive if the Company were to (i) sell for cashall its assets at fair market value on the date of determination (as determinedby the Board in good faith), (ii) satisfy all its liabilities and (iii) thenliquidate.

(d)           The closing of the purchase of theRepurchase Shares pursuant to the Repurchase Option shall take place on thedate designated by the Company in the Repurchase Notice, which date shall notbe more than 60 days nor less than five days after the delivery of theRepurchase Notice. The Company shall pay for the Repurchase Shares to bepurchased pursuant to the Repurchase Option by delivery of, at the Company’soption, (i) a check or wire transfer of funds, (ii) a subordinate note or notespayable in up to three equal annual installments beginning on the firstanniversary of the closing of such purchase and bearing interest (payablesemi-annually) at a rate per annum equal to the prime rate announced from timeto time by the JPMorgan Chase Bank as its prime rate in effect at its principaloffice in New York City or (iii) both (i) and (ii), in the aggregate amount ofthe purchase price for such Repurchase Shares; provided that the Companyshall use reasonable efforts to make all such repurchases with a check or wiretransfer of funds. Any notes issued by the Company pursuant to this Section8(d) shall be subject to any restrictive covenants to which the Company issubject at the time of such purchase. The Company shall be entitled to receivecustomary representations and warranties from the sellers regarding such saleof Repurchase Shares (including representations and warranties regarding goodtitle to such Repurchase Shares, free and clear of any liens or encumbrances).

 

(e)           Notwithstanding anything to the contrary contained in thisAgreement, all repurchases of Repurchase Shares by the Company shall be subjectto applicable restrictions contained in the General Corporation Law of theState of Delaware and in the Company’s and its Subsidiaries’ debt and equityfinancing agreements. If, prior to a Public Offering, any such restrictionsprohibit the repurchase of Repurchase Shares hereunder which the Company isotherwise entitled to make, the time periods provided in this Section 8shall be suspended, and the Company may make such repurchases as soon as it ispermitted to do so under such restrictions; provided that in such event thepurchase price shall be the Fair Market Value for such Repurchase Shares as ofthe date on which the Company may first make such repurchases.

 

9.     Consent of Spouse. If a Stockholderwho is a natural person is married on the date of this Agreement, suchStockholder shall obtain from such Stockholder’s spouse an executed spousalconsent, evidencing the spouse’s acknowledgment of and consent to the existenceand binding effect of all restrictions contained in this Agreement in the formof Exhibit A hereto (“Consent of Spouse”) and effective on thedate hereof. Such consent shall not be deemed to confer or convey to the spouseany rights in the Stockholder’s securities that do not otherwise exist byoperation of law or by agreement of the parties hereto. If a Stockholder shouldmarry or remarry subsequent to the date of this Agreement, such Stockholder shall within 30days thereafter obtain a Consent of Spouse from such Stockholder’s new spouse.

 

10.   Definitions.

 

“Affiliate” of anyPerson is any other Person controlled by, controlling or under common controlwith such Person and, in the case of any Stockholder that is a partnership or

 

 

12



 

limited liability company,any partner or member of such Stockholder (provided that the Company shall notbe deemed to be an Affiliate of any Stockholder).

 

“Agreement” has themeaning set forth in the preamble.

 

“Approved Sale” hasthe meaning set forth in Section 5(a).

 

“Board” has themeaning set forth in the recitals.

 

“BSMB” has themeaning set forth in the preamble.

 

“BSMB Directors” hasthe meaning set forth in Section 1(a)(i)(B).

 

“Book Value Per Share”shall mean the book value of the Company and its consolidated Subsidiaries determinedin accordance with GAAP, less accumulated other comprehensive income(loss) as determined in accordance with Financial Accounting Standards BoardStatement No. 115, divided by the total number of outstanding CommonStock Equivalents.

 

“CEO” has the meaningset forth in Section 1(a)(i)(A).

 

“Common Stock” meansthe Company’s Common Stock, par value $0.10 per share.

 

“Common Stock Equivalents”means, at any time, without duplication, the sum of (i) the aggregate number ofshares of Common Stock outstanding at such time, (ii) the aggregate number ofshares of Common Stock issuable assuming conversion at such time of theConvertible Preference Stock, the Senior Convertible Preferred Stock, theSeries B Preferred Stock and any other capital stock of the Company, (iii) theaggregate number of shares of Common Stock deemed to be outstanding at suchtime under subparagraphs 4.7.7(b)(1) to (9), inclusive, of the Company’sCertificate of Incorporation, and (iv) the aggregate number of shares of CommonStock at such time issuable upon exercise of any options, warrants or rights asdetermined in accordance with the treasury stock method as provided underFinancial Accounting Standards Board Statement No. 128.

 

“Common Stock Outstanding”means, at any time, without duplication, the sum of (i) the aggregate number ofshares of Common Stock outstanding at such time and (ii) the aggregate numberof shares of Common Stock issuable assuming conversion at such time of theConvertible Preference Stock, the Senior Convertible Preferred Stock, theSeries B Preferred Stock and any other capital stock of the Company (but notincluding any shares of Common Stock issuable upon exercise of any options,warrants or other similar rights).

 

“Company” has themeaning set forth in the preamble.

 

“Convertible PreferenceStock” means the Company’s Convertible Preference Stock, par value $0.10per share.

 

13



 

“Election Period” hasthe meaning set forth in Section 4(a)(i).

 

“Employee” means eachcurrent or former employee of the Company or any of its Subsidiaries who holdsStockholder Shares and is or after the date hereof becomes a signatory hereto.

 

“Executive Directors”has the meaning set forth in Section l(a)(i)(A).

 

“Family Group” means,with respect to any Person, such Person’s spouse and descendants (whethernatural or adopted) and any trust solely for the benefit of such Person and/orsuch Person’s spouse and/or descendants.

 

“GAAP” means UnitedStates generally accepted accounting principles as in effect from time to time,consistently applied.

 

“Independent Directors”has the meaning set forth in Section 1(a)(i)(E).

 

“Independent Third Party”means any Person who, immediately prior to the contemplated transaction, (i)does not own in excess of five percent of the Common Stock Equivalents (a “5% Owner”), (ii) is notcontrolling, controlled by or under common control with any such 5% Owner and(iii) is not the spouse or descendent (by birth or adoption) of any such 5%Owner or a trust for the benefit of such 5% Owner and/or such other Persons.

 

“IP Entity” has themeaning set forth in Section 4(d).

 

“Offer Notice” hasthe meaning set forth in Section 4(b).

 

“Offerees” has themeaning set forth in Section 4(b).

 

“ParticipatingStockholders” has the meaning set forth in Section 4(c).

 

“Permitted Transferees”has the meaning set forth in Section 4(d).

 

“Person” means anindividual, a partnership, a corporation, a limited liability company, anassociation, a joint stock company, a trust, a joint venture, an unincorporatedorganization and a governmental entity or any department, agency or politicalsubdivision thereof.

 

“Pro Rata Share” hasthe meaning set forth in Section 4(b).

 

“Public Offering”means a public offering and sale of shares of the Company’s Common Stockpursuant to an effective registration statement (other than on Form S-4 or S-8or their equivalent) filed under the Securities Act.

 

“Purchase Agreement”has the meaning set forth in the preamble.

 

“Qualified PublicOffering” means an underwritten Public Offering (to be managed by anunderwriter or underwriters of recognized national standing) resulting in net

 

 

14



 

proceeds to the Companyand/or the selling Company stockholders of, at least $100 million; providedthat a Qualified Public Offering shall not include a Public Offering made inconnection with a business acquisition or combination or an employee benefitplan.

 

“Sale of the Company”means (i) the sale of all or substantially all of the Company’s assetsdetermined on a consolidated basis to an Independent Third Party or group ofIndependent Third Parties, (ii) the sale of capital stock of the Companyrepresenting at least a majority of the Common Stock Equivalents (including allof the Stockholder Shares) to an Independent Third Party or group ofIndependent Third Parties, or (iii) the merger or consolidation of the Companywith or into any entity (whether or not the Company is the surviving company insuch merger or consolidation) which results in an Independent Third Party orgroup of Independent Third Parties holding capital stock of the surviving orcontinuing entity possessing more than 50% of the voting power of the survivingor continuing entity.

 

“Sale Notice” has themeaning set forth in Section 4(c).

 

“Section 4(c)Transferring Stockholder” has the meaning set forth in Section 4(c).

 

“Securities Act”means the Securities Act of 1933, as amended from time to time.

 

“Senior ConvertiblePreferred Stock” means the Company’s Senior Convertible Preferred Stock,par value $0.10 per share.

 

“Series B Preferred Stock”has the meaning set forth in the recitals.

 

“Stockholder Shares”means (i) any capital stock of the Company purchased or otherwise acquired byany Stockholder (including, without limitation, any Series B Preferred Stock,Senior Convertible Preferred Stock, Convertible Preference Stock or CommonStock), (ii) any capital stock or other equity securities of the Company issuedor issuable directly or indirectly with respect to the capital stock describedin clause (i) above by way of stock dividend or stock split or in connectionwith a combination of shares, recapitalization, merger, consolidation or otherreorganization, and (iii) any other shares of any class or series of capitalstock of the Company held by a Stockholder; provided that StockholderShares shall not include options to acquire Common Stock issued pursuant to theAmended and Restated 2004 Stock Incentive Plan of the Company, dated as of thedate hereof. As to any particular shares constituting Stockholder Shares, suchshares shall cease to be Stockholder Shares when they have been (x) effectivelyregistered under the Securities Act and disposed of in accordance with theregistration statement covering them or (y) sold to the public through abroker, dealer or market maker on a securities exchange or in theover-the-counter market pursuant to Rule 144 (or any similar provision then inforce) under the Securities Act.

 

“Stockholders” hasthe meaning set forth in the preamble.

 

“Sub Board” has themeaning set forth in Section 1(a)(iii).

 

“Subsidiary means,with respect to any Person, any corporation, limited liability company,partnership, association or other business entity of which (i) if acorporation, a majority

 

15



 

of the total voting power ofshares of stock entitled (without regard to the occurrence of any contingency)to vote in the election of directors, managers or trustees thereof is at thetime owned or controlled, directly or indirectly, by that Person or one or moreof the other Subsidiaries of that Person or a combination thereof, or (ii) if alimited liability company, partnership, association or other business entity, amajority of the limited liability company, partnership or other similarownership interest thereof is at the time owned or controlled, directly orindirectly, by any Person or one or more Subsidiaries of that Person or acombination thereof. For purposes hereof, a Person or Persons shall be deemedto have a majority ownership interest in a limited liability company,partnership, association or other business entity if such Person or Personsshall be allocated a majority of limited liability company, partnership,association or other business entity gains or losses or shall be or control anymanaging director or general partner of such limited liability company, partnership,association or other business entity. In no event shall the entities that arethe special purpose vehicles of the collateral debt obligations originated bythe Company and its Subsidiaries be deemed “Subsidiaries” of the Company forthe purposes of this Agreement.

 

“Transfer” has themeaning set forth in Section4(a)(i).

 

“Transferring Stockholder”has the meaning set forth in Section 4(b).

 

11.   Transfers in Violation of Agreement. AnyTransferor attempted Transfer of any Stockholder Shares in violation of anyprovision of this Agreement shall be void, and the Company shall not recordsuch Transfer on its books or treat any purported transferee of suchStockholder Shares as the owner of such shares for any purpose.

 

12.   Amendment and Waiver. Except asotherwise provided herein, no modification, amendment or waiver of anyprovision of this Agreement shall be effective against the Company or theholders of Stockholder Shares unless such modification, amendment or waiver isapproved in writing by the Company, the holders of at least a majority of theStockholder Shares (voting together as a single class, on an as-convertedbasis) and the holders of a majority of the Series B Preferred Stock. Thefailure of any party hereto to enforce any of the provisions of this Agreementshall in no way be construed as a waiver of such provisions and shall notaffect the right of such party hereto thereafter to enforce each and everyprovision of this Agreement in accordance with its terms.

 

13.   Severability. Whenever possible, eachprovision of this Agreement shall be interpreted in such manner as to beeffective and valid under applicable law, but if any provision of thisAgreement is held to be invalid, illegal or unenforceable in any respect underany applicable law or rule in any jurisdiction, such invalidity, illegality orunenforceability shall not affect the validity, legality or enforceability ofany other provision of this Agreement in such jurisdiction or affect thevalidity, legality or enforceability of any provision in any otherjurisdiction, but this Agreement shall be reformed, construed and enforced insuch jurisdiction as if such invalid, illegal or unenforceable provision hadnever been contained herein.

 

14.   Entire Agreement. Except as otherwiseexpressly set forth herein, this Agreement embodies the complete agreement andunderstanding among the parties hereto with respect to the

 

16



 

subject matter hereof andsupersedes and preempts any prior understandings, agreements or representationsby or among the parties, written or oral, which may have related to the subjectmatter hereof in any way.

 

15.   Successors and Assigns; No Third PartyBeneficiaries. Except as otherwise provided herein, this Agreement shallbind and inure to the benefit of and be enforceable by the Company and itssuccessors and assigns and the Stockholders and any subsequent holders ofStockholder Shares and the respective successors and assigns of each of them,so long as they hold Stockholder Shares. This Agreement is not intended to conferupon any other Person any rights or remedies hereunder.

 

16.   Counterparts. This Agreement may beexecuted in multiple counterparts, each of which shall be an original and allof which taken together shall constitute one and the same agreement.

 

17.Remedies. The Company, BSMB and the Other Holders shall be entitled toenforce their rights under this Agreement specifically, to recover damages byreason of any breach of any provision of this Agreement and to exercise allother rights existing in their favor. The parties hereto agree and acknowledgethat a breach of this Agreement would cause irreparable harm and money damageswould not be an adequate remedy for any such breach and that, in addition toother rights and remedies hereunder, the Company, BSMB or any Other Holdershall be entitled to specific performance and/or injunctive or other equitablerelief (without posting a bond or other security) from any court of law orequity of competent jurisdiction in order to enforce or prevent any violationof the provisions of this Agreement.

 

18.Notices. Any notice provided for in this Agreement shall be in writingand shall be either personally delivered, or sent via facsimile or mailed firstclass mail (postage prepaid) or sent by reputable overnight courier service(charges prepaid) to the Company at the address set forth below and to anyother recipient at the address indicated on the schedules hereto and to anysubsequent holder of Stockholder Shares subject to this Agreement at suchaddress as indicated by the Company’s records, or at such address or to theattention of such other person as the recipient party has specified by priorwritten notice to the sending party. Notices shall be deemed to have been givenhereunder when delivered personally, when sent via facsimile (as evidenced by aprinted confirmation) if sent prior to 5:00 p.m. (local time of recipient) on aBusiness Day or, if not, the next succeeding Business Day), three Business Daysafter deposit in the U.S. mail and one Business Day after deposit with areputable overnight courier service. The Company’s address is:

 

ACA Capital Holdings, Inc.
140 Broadway
New York, New York 10004
Attention: General Counsel
Tel.:        212-375-2048
Fax:         212-375-2302




 

with copies, which shall notconstitute notice, to:

 

17



 

BearStearns. Merchant Banking

c/o Bear Stearns Merchant Manager II, LLC
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue, 40th Floor
New York, New York 10179
Attention:   David E. King
Tel.:      212-272-2000
Fax:      212-272-7425





 

and

 

Kirkland& Ellis LLP
Citigroup Center
153 East 53rd Street
New York, New York 10022
Attention:   Frederick Tanne and Michael A. Brosse
Tel.:      212-446-4800
Fax:      212-446-6460





 

19.   Governing Law; Jurisdiction. The law of the State of Delaware shallgovern this Agreement, without giving effect to any choice oflaw or conflict of law rules. The parties hereto hereby irrevocably andunconditionally submit to the nonexclusive jurisdiction of any State or Federalcourt sitting in Delaware over any suit, action or proceeding arising out of orrelating to this Agreement. The parties hereby agree that service of anyprocess, summons, notice or document by United States registered mail addressedto any such party at the address set forth in, or in accordance with, Section18 hereof, shall be effective service of process for any action, suit orproceeding brought against a party in any such court. The parties hereto herebyirrevocably and unconditionally waive any objection to the laying of venue ofany such suit, action or proceeding brought in any such court and any claimthat any such suit, action or proceeding brought in any such court has beenbrought in an inconvenient forum. The parties hereto agree that a finaljudgment in any such suit, action or proceeding brought in any such court shallbe conclusive and binding upon any party and may be enforced in any othercourts to whose jurisdiction any party is or may be subject, by suit upon suchjudgment.

 

20.Business Days. If any time period for giving notice or taking actionhereunder expires on a day which is a Saturday, Sunday or legal holiday in thestate in which the Company’s chief executive office is located, the time periodshall automatically be extended to the business day immediately following suchSaturday, Sunday or legal holiday.

 

21.Descriptive Headings. The descriptive headings of this Agreement areinserted for convenience only and do not constitute a part of this Agreement.

 

22.No Strict Construction. The language used in this Agreement shall bedeemed to be the language chosen by the parties hereto to express their mutualintent, and no rule of strict construction shall be applied against any party.

 

18



 

23.   Mutual Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED INDUCEMENTFOR EACH OF THE PARTIES TO ENTER INTO THIS AGREEMENT (WITH EACH PARTY HAVINGHAD OPPORTUNITY TO CONSULT COUNSEL), EACH PARTY HERETO EXPRESSLY ANDIRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR LEGALPROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT ORTHE TRANSACTIONS CONTEMPLATED HEREIN, AND ANY LAWSUIT OR LEGALPROCEEDING RELATING TO OR ARISING IN ANY WAY TO THIS AGREEMENT OR THETRANSACTIONS CONTEMPLATED HEREIN SHALL BE TRIED IN A COURT OF COMPETENTJURISDICTION BY A JUDGE SITTING WITHOUT A JURY.

 

*              *              *              *              *

 

19


 

SIGNATURE PAGES TO STOCKHOLDERSAGREEMENT

 

                INWITNESS WHEREOF, the. parties hereto have executed this Agreement on the dayand year first above written.

 

 

ACA CAPITAL HOLDINGS, INC.

 

 

 

By:

/s/ Alan S. Roseman

 

Name:

Alan S. Roseman

 

Title:

Chief Executive Officer

 

 

 

BSMB/ACA LLC

 

 

 

By: Bear Stearns Merchant Manager II, LLC,
its Manager

 

 

 

By: JDH Management LLC, its Manager

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

STEPHENS GROUP, INC.

 

 

 

By:

/s/ Douglas H. Martin

 

Name:

Douglas H. Martin

 

Title:

Executive Vice President

 

 

 

 

THIRD AVENUE TRUST

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 



 

SIGNATURE PAGES TO STOCKHOLDERSAGREEMENT

 

                INWITNESS WHEREOF, the. parties hereto have executed this Agreement on the dayand year first above written.

 

 

ACA CAPITAL HOLDINGS, INC.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

BSMB/ACA LLC

 

 

 

By: Bear Stearns Merchant Manager II, LLC,
its Manager

 

 

 

By: JDH Management LLC, its Manager

 

 

 

By:

/s/ David E. King

 

Name:

David E. King

 

Title:

Senior Managing Director

 

 

 

STEPHENS GROUP, INC.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

THIRD AVENUE TRUST

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

 

 

CHESTNUT HILL ACA, LLC

 

 

 

By:

/s/ Demos Kouvaris

 

Name:

Demos Kouvaris

 

Title:

Vice President

 

 

 

INSURANCE PARTNERS, L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

INSURANCE PARTNERS OFFSHORE

(BERMUDA) L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

IP/MCLP, L.L.C.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

LIFE INVESTORS INSURANCE
COMPANY OF AMERICA

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

 

CHESTNUT HILL ACA, LLC

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

INSURANCE PARTNERS, L.P.

 

 

 

By:

/s/ Bradley E. Cooper

 

Name:

Bradley E. Cooper

 

Title:

 

 

 

 

INSURANCE PARTNERS OFFSHORE

(BERMUDA) L.P.

 

 

 

By:

/s/ Bradley E. Cooper

 

Name:

Bradley E. Cooper

 

Title:

 

 

 

 

IP/MCLP, L.L.C.

 

 

 

By:

/s/ Bradley E. Cooper

 

Name:

Bradley E. Cooper

 

Title:

 

 

 

 

 

LIFE INVESTORS INSURANCE
COMPANY OF AMERICA

 

 

 

 

By:

 

 

Name:

 

 

Title:

 

 



 

 

CHESTNUT HILL ACA, LLC

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

INSURANCE PARTNERS, L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

INSURANCE PARTNERS OFFSHORE

(BERMUDA) L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

IP/MCLP, L.L.C.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

LIFE INVESTORS INSURANCE
COMPANY OF AMERICA

 

 

 

 

By:

/s/ Jon L. Skaggs

 

Name:

Jon L. Skaggs

 

Title:

Vice President

 



 

 

TRANSAMERICA LIFE INSURANCE
COMPANY

 

 

 

By:

/s/ Jon L. Skaggs

 

Name:

Jon L. Skaggs

 

Title:

Vice President

 

 

 

BANKAMERICA INVESTMENT
CORPORATION

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

FW ACA INVESTORS, L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

MADELYN AMUNDSEN

 

 

 

 

 

 

DIANE AURELIO

 

 

 

 

 

 

MARYANN AURELIO

 

 

 

 

 

 

MAUREEN BROWN

 



 

 

TRANSAMERICA LIFE INSURANCE
COMPANY

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

BANKAMERICA INVESTMENT
CORPORATION

 

 

 

By:

/s/ GARY M. TSUYUKI

 

Name:

GARY M. TSUYUKI

 

Title:

MANAGING DIRECTOR

 

 

 

FW ACA INVESTORS, L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

MADELYN AMUNDSEN

 

 

 

 

 

 

DIANE AURELIO

 

 

 

 

 

 

MARYANN AURELIO

 

 

 

 

 

 

MAUREEN BROWN

 



 

 

TRANSAMERICA LIFE INSURANCE
COMPANY

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

BANKAMERICA INVESTMENT
CORPORATION

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

FW ACA INVESTORS, L.P.

 

 

 

By:

/s/ Kevin G. Levy

 

Name:

Kevin G. Levy

 

Title:

Vice President of Group III 31, LLC,
General Partner

 

 

 

 

 

MADELYN AMUNDSEN

 

 

 

 

 

 

DIANE AURELIO

 

 

 

 

 

 

MARYANN AURELIO

 

 

 

 

 

 

MAUREEN BROWN

 



 

 

THIRD AVENUE TRUST, on behalf of The

Third Avenue Value Fund Series

 

 

 

By:

/s/ David Barse

 

Name:

David Barse

 

Title:

President and Chief Executive Officer

 

 

 

THIRD AVENUE TRUST, on behalf of The

Third Avenue Small-Cap Value Fund Series

 

 

 

By:

/s/ David Barse

 

Name:

David Barse

 

Title:

President and Chief Executive Officer

 

 

 



 

 

DRAWBRIDGE SPECIAL
OPPORTUNITIES FUND LP

 

 

 

By:

/s/ Marc K. Furstein

 

Name:

Marc K. Furstein

 

Title:

Chief Operating Officer

 

 

 



 

 

TRANSAMERICA LIFE INSURANCE
COMPANY

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

BANKAMERICA INVESTMENT
CORPORATION

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

FW ACA INVESTORS, L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

/s/ Madelyn Amundsen

 

MADELYN AMUNDSEN

 

 

 

 

 

 

DIANE AURELIO

 

 

 

 

 

 

MARYANN AURELIO

 

 

 

 

 

 

MAUREEN BROWN

 



 

 

TRANSAMERICA LIFE INSURANCE
COMPANY

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

BANKAMERICA INVESTMENT
CORPORATION

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

FW ACA INVESTORS, L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 


MADELYN AMUNDSEN

 

 

 

 

 

 

DIANE AURELIO

 

 

 

 

/s/ Maryann Aurelio

 

MARYANN AURELIO

 

 

 

 

 

 

MAUREEN BROWN

 



 

 

TRANSAMERICA LIFE INSURANCE
COMPANY

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

BANKAMERICA INVESTMENT
CORPORATION

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

FW ACA INVESTORS, L.P.

 

 

 

By:

 

 

Name:

 

 

Title:

 

 

 

 

 

 

MADELYN AMUNDSEN

 

 

 

 

 

DIANE AURELIO

 

 

 

 

 

MARYANN AURELIO

 

 

 

 

 

/s/ Maureen Brown

 

MAUREEN BROWN

 



 

 

 

 

EUGENIA BURZYNSKI

 

 

 

 

 

DEBRA CLAWAR

 

 

 

 

 

STANLEY CLAWAR

 

 

 

 

 

FRED CROFT

 

 

 

 

 

KATHLEEN CULLY

 

 

 

 

 

RICHARD DENT

 

 

 

/s/ Keith Foley

 

KEITH FOLEY

 

 

 

 

 

CHRIS FRASER

 

 

 

 

 

EDWARD GILPIN

 

 

 

 

 

MARK GOLOMBECK

 



 

 

 

 

EUGENIA BURZYNSKI

 

 

 

 

 

DEBRA CLAWAR

 

 

 

 

 

STANLEY CLAWAR

 

 

 

 

 

FRED CROFT

 

 

 

 

 

KATHLEEN CULLY

 

 

 

 

 

RICHARD DENT

 

 

 

 

 

KEITH FOLEY

 

 

 

 

 

CHRIS FRASER

 

 

 

/s/ Edward Gilpin

 

EDWARD GILPIN

 

 

 

 

 

MARK GOLOMBECK

 



 

 

/s/ Kenneth Hall

 

KENNETH HALL

 

 

 

 

 

ELIZABETH HILL

 

 

 

 

 

TOM HOENS

 

 

 

 

 

BILL HOGAN

 

 

 

 

 

ARTHUR ISACK

 

 

 

 

 

BYRON KLAPPER

 

 

 

 

 

MICHAEL MADISON

 

 

 

 

 

KATHLEEN MALONEY

 

 

 

 

 

WAYNE MARSDEN

 

 

 

 

 

ROSE ANN MONTEMURRO

 



 

 

 

 

KENNETH HALL

 

 

 

 

 

ELIZABETH HILL

 

 

 

 

 

TOM HOENS

 

 

 

 

 

BILL HOGAN

 

 

 

/s/ Arthur Isack

 

ARTHUR ISACK

 

 

 

 

 

BYRON KLAPPER

 

 

 

 

 

MICHAEL MADISON

 

 

 

 

 

KATHLEEN MALONEY

 

 

 

 

 

WAYNE MARSDEN

 

 

 

 

 

ROSE ANN MONTEMURRO

 



 

 

 

 

KENNETH HALL

 

 

 

 

 

ELIZABETH HILL

 

 

 

 

 

TOM HOENS

 

 

 

 

 

BILL HOGAN

 

 

 

 

 

ARTHUR ISACK

 

 

 

 

 

BYRON KLAPPER

 

 

 

 

 

MICHAEL MADISON

 

 

 

/s/ Kathleen Maloney

 

KATHLEEN MALONEY

 

 

 

 

 

WAYNE MARSDEN

 

 

 

 

 

ROSE ANN MONTEMURRO

 



 

 

 

 

MARYAM MUESSEL

 

 

 

/s/ Tyler Nelson

 

TYLER NELSON

 

 

 

 

 

ALAN ROSEMAN

 

 

 

 

 

THOMAS SACKETT

 

 

 

 

 

MICHAEL SATZ

 

 

 

 

 

STEVE SCHRAGER

 

 

 

 

 

ROBERT SMITH

 

 

 

 

 

WILLIAM TOMLJANOVIC

 

 

 

 

 



 

 

 

 

MARYAM MUESSEL

 

 

 

 

 

TYLER NELSON

 

 

 

/s/ Alan Roseman

 

ALAN ROSEMAN

 

 

 

 

 

THOMAS SACKETT

 

 

 

 

 

MICHAEL SATZ

 

 

 

 

 

STEVE SCHRAGER

 

 

 

 

 

ROBERT SMITH

 

 

 

 

 

WILLIAM TOMLJANOVIC

 

 

 

 

 



 

 

 

 

MARYAM MUESSEL

 

 

 

 

 

TYLER NELSON

 

 

 

 

 

ALAN ROSEMAN

 

 

 

 

 

THOMAS SACKETT

 

 

 

 

 

MICHAEL SATZ

 

 

 

/s/ Steve Schrager

 

STEVE SCHRAGER

 

 

 

 

 

ROBERT SMITH

 

 

 

 

 

WILLIAM TOMLJANOVIC

 

 

 

 

 

 



 

 

 

 

MARYAM MUESSEL

 

 

 

 

 

TYLER NELSON

 

 

 

 

 

ALAN ROSEMAN

 

 

 

 

 

THOMAS SACKETT

 

 

 

 

 

MICHAEL SATZ

 

 

 

 

 

STEVE SCHRAGER

 

 

 

/s/ Robert Smith

 

ROBERT SMITH

 

 

 

 

 

WILLIAM TOMLJANOVIC

 

 

 

 

 



 

 

 

 

MARYAM MUESSEL

 

 

 

 

 

TYLER NELSON

 

 

 

 

 

ALAN ROSEMAN

 

 

 

 

 

THOMAS SACKETT

 

 

 

 

 

MICHAEL SATZ

 

 

 

 

 

STEVE SCHRAGER

 

 

 

 

 

ROBERT SMITH

 

 

 

/s/ William Tomljanovic

 

WILLIAM TOMLJANOVIC

 

 

 

 


 

SCHEDULEOF STOCKHOLDERS

 

Stockholder Name and Address

 

Common

 

Convertible
Preference

 

Senior
Convertible
Preferred

 

Series B Senior
Convertible Preferred

 

 

 

 

 

 

 

 

 

 

 

BSMB/ACA LLC

c/o Bear Stearns Merchant Manager II, LLC
c/o Bear, Stearns & Co. Inc.
383 Madison Avenue, 40th Floor
New York, NY 10179
Attention: David B. King



 

—

 

—

 

—

 

1,685,663.8305

 

 

 

 

 

 

 

 

 

 

 

Drawbridge Special Opportunities Fund LP
c/o Fortress Investment Group LLC
1251 Avenue of the Americas
16th Floor
New York, NY 10020
Attention: David Scheible




 

—

 

—

 

—

 

160,539.4124

 

 

 

 

 

 

 

 

 

 

 

Stephens Group, Inc.
The Stephens Group, Inc.
111 Center St.
Little Rock, AR 72201
Attention: Douglas Martin



 

237,623.8

 

273.39936313

 

25.84523836

 

267,565.6819

 

 

 

 

 

 

 

 

 

 

 

Third Avenue Trust,
on behalf of The Third Avenue Value Fund Series
767 Third Avenue
New York, NY 10017
Attention: David Barse



 

118,811.9

 

258.66749877

 

103.38095339

 

133,782.8436

 

 

 

 

 

 

 

 

 

 

 

Third Avenue Trust,
on behalf of The Third Avenue Small-Cap Value Fund Series
767 Third Avenue
New York, NY 10017
Attention: David Barse



 

—

 

—

 

—

 

133,782.8383

 

 

 

 

 

 

 

 

 

 

 

Chestnut Hill ACA, LLC
GCC Investments, Inc.
60 William Street
Suite 230
Wellesley, MA 02481
Attention: Demos Kouvaris / John G. Berylson




 

237,623.8

 

163.45234901

 

—

 

267,565.6983

 

 

 

 

 

 

 

 

 

 

 

Insurance Partners, L.P.
Capital Z Partners, Ltd.
54 Thompson Street
New York, NY 10012
Attention: Brad Cooper



 

151,961.6

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Insurance Partners Offshore (Bermuda) L.P.
Capital Z Partners, Ltd.
54 Thompson Street
New York, NY 10012


 

83,751.6

 

—

 

—

 

—

 

 

 



 

 

Stockholder Name and Address

 

Common

 

Convertible
Preference

 

Senior
Convertible
Preferred

 

Series B Senior
Convertible Preferred

 

Attention: Brad Cooper
IP/MCLP, L.L.C.
Capital Z Partners, Ltd.
54 Thompson Street
New York, NY 10012
Attention: Brad Cooper




 

1,910.6

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Life Investors Insurance Company of America
Aegon
400 West Market St.
Louisville, KY 40202
Attention: John Skaggs
with copies to:
Aegon
400 W. Market Street, 10th Floor
Louisville, KY 40202
Attention: Kirk Buese
and
Aegon
400 W. Market Street, 4th Floor
Louisville, KY 40202
Attention: Paul Houk













 

59,405.9

 

43.94368178

 

—

 

20,067.42655

 

 

 

 

 

 

 

 

 

 

 

Transamerica Life Insurance Company
Aegon
400 West Market St.
Louisville, KY 40202
Attention: John Skaggs
with copies to:
Aegon
400 W. Market Street, 10th Floor
Louisville, KY 40202
Attention: Kirk Buese
and
Aegon
400 W. Market Street, 4th Floor
Louisville, KY 40202
Attention: Paul Houk













 

59,405.9

 

43.94368178

 

—

 

20,067.42655

 

 

 

 

 

 

 

 

 

 

 

FW ACA Investors, L.P.
Att: Kevin G. Levy
201 Main Street, Suite 3100
Forth Worth, TX 76102


 

—

 

87.88736355

 

—

 

17,659.3354

 

 

 

 

 

 

 

 

 

 

 

BankAmerica Investment Corporation
600 Montgomery Street
CA5-801-12-02
San Francisco, CA 94111
Attention: Gary M. Tsuyuki



 

—

 

87.88736355

 

—

 

—

 

 

 



 

Stockholder Name and Address

 

Common

 

Convertible
Preference

 

Senior
Convertible
Preferred

 

Series B Senior
Convertible Preferred

 

Madelyn Amundsen

 

79.2

 

—

 

—

 

—

 

444 East 81st Street, #25
New York, NY 10028

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Diane Aurelio
374 South End Ave., #30K
New York, NY 10280

 

396.0

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Maryann Aurelio
345 South End Ave., #5K
New York, NY 10280

 

396.0

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Maureen Brown
195 West 2nd St. North
Cowley, WY 82420—0216

 

79.2

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Eugenia Burzynski
2709 Partridge Court
Cape Girardeau, MO 63701
with a copy to:


 

1,980.2

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Eugenia Burzynski
c/o Edward and Frances Burzynski
4101 Nowak Road
Gaylord, MI 49735


 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Debra Clawar
Two Columbus Avenue #2B
New York, NY 10023

 

396.0

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Stanley Clawar
2204 N. Stone Ridge Lane
Villanova, PA 19085

 

1,188.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Fred Croft
101 Washington St.
Suite 166
Grand Haven, MI 49417


 

792.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Kathleen Cully
220 Madison Ave., Apt. 14B
New York, NY 10016-3415

 

514.9

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Richard Dent
5204 Springlake Way
Baltimore, MD 21212

 

158.4

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Keith Foley
345 South End Ave. #5K
New York, NY 10280

 

990.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Chris, Fraser
813 Tealwood Circle
Flower Mound, TX 75028

 

237.6

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Edward Gilpin
17 Forest Lane
Scarsdale, NY 10583

 

8,788.8

 

—

 

—

 

—

 

 

 

 



 

 

Stockholder Name and Address

 

Common

 

Convertible
Preference

 

Senior
Convertible
Preferred

 

Series B Senior
Convertible Preferred

 

Mark Golombeck
408 South Parkway
Clifton, NJ 07014-1241

 

435.6

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Kenneth Hall
599 Branchville Road
PO Box 699
Ridgefeld, CT 06877


 

2,376.0

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Elizabeth Hill
27 Old Pine Drive
Manhasset, NY 11030

 

396.0

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Tom Hoens
434 Tremont Ave
Westfield, NJ 07090-2174

 

1,188.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Bill Hogan
37 Franklin St.
Cedar Grove, NJ 07009

 

277.2

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Arthur Isack
4738 Massachusetts Ave, NW
Washington, DC 20016

 

792.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Byron Klapper
37 Tara Lane
Montville, NJ 07045

 

792.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Michael Madison
81 Charter Circle
Apt. #2P
Ossining, NY 10562


 

396.0

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Kathleen Maloney
569 Shore Acres Drive
Mamaroneck, NY 10543

 

1,188.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Wayne Marsden
9220 Fall River Lane
Potomac, MD 20854

 

1,584.2

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Rose Ann Montemurro
1832 West 9th St.
Brooklyn, NY 11223

 

118.8

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Maryam Muessel
115 East 86th St. #101
New York, NY 10028

 

17,577.5

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Tyler Nelson
c/o First National Bank
245 East First Street (POB 907)
Powell, WY 82435


 

2,376.2

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Alan Roseman
110 Riverside Drive

 

44,695.0

 

—

 

—

 

—

 

 

 

 



 

 

Stockholder Name and Address

 

Common

 

Convertible
Preference

 

Senior
Convertible
Preferred

 

Series B Senior
Convertible Preferred

 

Apt. 11E
New York, NY 10024

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Thomas Sackett
328 Summit Ave.
Hartford, WI 53027-1746

 

396.0

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Michael Satz
47 East 88th St., Apt.. 14B
New York, NY 10128

 

9,608.7

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Steve Schrager
15 Crosswicks Road
Freehold, NJ 07728

 

792.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

Robert Smith
2281 Apache Pass Road
Somerset, CA 95684

 

792.1

 

—

 

—

 

—

 

 

 

 

 

 

 

 

 

 

 

William Tomljanovic
6 Little Falls Way


Scotch Plains, NJ 07076

 

8,788.8

 

—

 

—

 

—

 

 

 

 


 

EXHIBITA

CONSENT OF SPOUSE

 

I, Stein Amundsen, spouse ofMadelyn Amundsen, acknowledge that I have read the Stockholders Agreement,dated as of September 28, 2004, to which this Consent is attached asExhibit A (the “Agreement”) and that I know the contents of theAgreement. I am awareits provisions provide that certain rights are granted to certain other holders ofcapital stock of the Company upon the sale or other disposition of shares ofCommon Stock of the Company (or any other capital stock of the Company) whichmy spouse owns, including any interest I might have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of theCompany) subject to the Agreement shall be irrevocably bound by the Agreementand further understand and agree that any community property interest I mayhave in the Common Stock (or any other capital stock of the Company) shall besimilarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that I amfree to seek independent professional guidance or counsel with respect to this Consent.I have either sought such guidance or counsel or determined after reviewing theAgreement carefully that I will waive such right.

 

Dated as of the 28 day ofSeptember, 2004.

 

 

/s/ STEIN AMUNDSEN

 

(Signature)

 

 

 

Stein Amundsen

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Keith Foley, spouse of MaryannAurelio, acknowledge that I have read the Stockholders Agreement, dated asof September 28, 2004, to which this Consent is attached as Exhibit A (the“Agreement”) and that I know the contents of the Agreement. I am aware its provisions provide that certainrights are granted to certain other holders of capital stock of theCompany upon the sale or other disposition of shares of Common Stock of theCompany (or any other capital stock of the Company) which my spouse owns,including any interest I might have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of the Company)subject to the Agreement shall be irrevocably bound by the Agreement andfurther understand and agree that any community property interest I may have inthe Common Stock (or any other capital stock of the Company) shall besimilarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect tothis Consent. I have either sought such guidance or counsel or determined afterreviewing the Agreement carefully that I will waive such right.

 

Dated as of the 28 day ofSeptember, 2004.

 

 

/s/ KEITH FOLEY

 

(Signature)

 

 

 

Keith Foley

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Gene E. Brown, spouse ofMaureen Brown, acknowledge that I have read the Stockholders Agreement, datedas of September 30, 2004, to which this Consent is attached as Exhibit A(the “Agreement”) and that I know the contents of the Agreement. I am aware its provisions provide that certainrights are granted to certain other holders of capital stock of theCompany upon the sale or other disposition of shares of Common Stock of theCompany (or any other capital stock of the Company) which my spouse owns, includingany interest I might have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any othercapital stock of the Company) subject to the Agreement shall be irrevocablybound by the Agreement and further understand and agree that any communityproperty interest I may have in the Common Stock (or any other capital stock ofthe Company) shall be similarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect tothis Consent. I have either sought such guidance or counsel or determined afterreviewing the Agreement carefully that I will waive such right.

 

Dated as of the 26 day ofSeptember, 2004.

 

 

/s/ GENE E. BROWN

 

(Signature)

 

 

 

Gene E. Brown

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Maryann Aurelio, spouseof Keith Foley, acknowledge that I have read the Stockholders Agreement, datedas of September 22, 2004, to which this Consent is attached as Exhibit A(the “Agreement”) and that I know the contents of the Agreement. I am aware its provisions provide that certain rights are granted tocertain other holders of capital stock of theCompany upon the sale or other disposition of shares of Common Stock of theCompany (or any other capital stock of the Company) which my spouse owns,including any interest I might have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of the Company)subject to the Agreement shall be irrevocably bound by the Agreement andfurther understand and agree that any community property interest I may have inthe Common Stock (or any other capital stock of the Company) shall be similarlybound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect to thisConsent. I have either sought such guidance or counsel or determined afterreviewing the Agreement carefully that I will waive such right.

 

Dated as of the 28 day ofSeptember, 2004.

 

 

/s/ MARYANN AURELIO

 

(Signature)

 

 

 

Maryann Aurelio

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Agnes Hall, spouse ofKenneth Hall, acknowledge that I have read the Stockholders Agreement, dated asof September 30, 2004, to which this Consent is attached as Exhibit A (the “Agreement”)and that I know the contentsof the Agreement. I am aware its provisions provide that certain rights aregranted to certain other holders of capital stock of the Company uponthe sale or other disposition of shares of Common Stock of the Company (or anyother capital stock of the Company) which my spouse owns, including any interest Imight have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of theCompany) subject to the Agreement shall be irrevocably bound by the Agreementand further understand and agree that any community property interest I mayhave in the Common Stock (or any other capital stock of the Company) shall besimilarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respectto this Consent. I have either sought such guidance or counsel or determinedafter reviewing the Agreement carefully that I will waive such right.

 

Dated as of the 24 day ofSeptember, 2004.

 

 

/s/ AGNES HALL

 

(Signature)

 

 

 

Agnes Hall

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Harriet Isack, spouse ofArthur Isack, acknowledge that I have read the Stockholders Agreement, dated asof                        ,2004, to which this Consent is attached as Exhibit A (the “Agreement”)and that I know the contents of the Agreement. I am aware its provisions provide that certainrights are granted to certain other holders of capital stock of theCompany upon the sale or other disposition of shares of Common Stock of the Company (or anyother capital stock of the Company) which my spouse owns, including any interestI might have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of theCompany) subject to the Agreement shall be irrevocably bound by the Agreementand further understand and agree that any community property interest I mayhave in the Common Stock (or any other capital stock of the Company) shall besimilarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect tothis Consent. I have either sought such guidance or counsel or determined afterreviewing the Agreement carefully that I will waive such right.

 

Dated as of the ____ day of_______________.

 

 

/s/ HARRIET R. ISACK

 

(Signature)

 

 

 

Harriet R. Isack

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Kenneth W. Rodgers, Jr.,spouse of Kathleen Maloney, acknowledge that I have read the StockholdersAgreement, dated as of September 30, 2004, to which this Consent is attached as Exhibit A (the “Agreement”)and that I know the contents of the Agreement. I am aware its provisions provide that certainrights are granted to certain other holders of capital stock of theCompany upon the sale or other disposition of shares of Common Stock of the Company (or anyother capital stock of the Company) which my spouse owns, including any interestI might have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of theCompany) subject to the Agreement shall be irrevocably bound by the Agreementand further understand and agree that any community propertyinterest I may have in the Common Stock (or any other capital stock of theCompany) shall be similarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect tothis Consent. I have either sought such guidance or counsel or determined afterreviewing the Agreement carefully that I will waive such right.

 

Dated as of the 27 day ofSeptember, 2004.

 

 

/s/ KENNETH W. RODGERS, JR.

 

(Signature)

 

 

 

Kenneth W. Rodgers, Jr.

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Frances Bermingham,spouse of Alan Roseman, acknowledge that I have read the StockholdersAgreement, dated as of                          ,2004, to which this Consent is attached as Exhibit A (the “Agreement”)and that I know the contents of the Agreement. I am aware its provisions provide that certainrights are granted to certain other holders of capital stock of theCompany upon the sale or other disposition of shares of Common Stock of theCompany (or any other capital stock of the Company) which my spouse owns,including any interest I might have therein.

 

I hereby agree that myinterest, if any, in the common Stock (or any other capital stock of the Company)subject to the Agreement shall be irrevocably bound by the Agreement and furtherunderstand and agree that any community property interest I may have in theCommon Stock (or any other capital stock of the Company) shall be similarlybound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect tothis Consent. I have either sought such guidance or counsel or determined afterreviewing the Agreementcarefully that Iwill waive such right.

 

Dated as of the 27 day ofSeptember, 2004.

 

 

/s/ FRANCES BERMINGHAM

 

(Signature)

 

 

 

Frances Bermingham

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Patti Schrager, spouse ofSteve Schrager, acknowledge that I have read the Stockholders Agreement, datedas of September 22, 2004, to which this Consent is attached as Exhibit A (the “Agreement”)and that I know the contents of the Agreement. I am aware itsprovisions provide that certain rights are granted tocertain other holders of capital stock of theCompany upon the sale or other disposition of shares of Common Stock of theCompany (or any other capital stock of the Company) which my spouse owns,including any interest I might have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of the Company)subject to the Agreement shall be irrevocably bound by the Agreementand further understand and agree that any community propertyinterest I may have in the Common Stock (or any other capital stock of theCompany) shall be similarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complexand that I am free to seek independent professional guidance or counsel withrespect to this Consent. I have either sought such guidance or counsel ordetermined after reviewing the Agreement carefully that I will waive such right.

 

Dated as of the 22 day ofSeptember, 2004.

 

 

/s/ PATTI SCHRAGER

 

(Signature)

 

 

 

Patti Schrager

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Pamela L. Smith, spouseof Robert M. Smith, acknowledge that I have read the Stockholders Agreement,dated as of September 27, 2004, to which this Consent is attached as Exhibit A (the “Agreement”)and that I know the contents of the Agreement. I am aware its provisions provide that certain rights aregranted to certain other holders of capital stock of the Company uponthe sale or other disposition of shares of Common Stock of the Company (or anyother capital stock of the Company) which my spouse owns, including any interest Imight have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of theCompany) subject to the Agreement shall be irrevocably bound by the Agreementand further understand and agree that any community property interest I mayhave in the Common Stock (or any other capital stock of the Company) shall besimilarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect tothis Consent. I have either sought such guidance or counsel or determined afterreviewing the Agreementcarefully that I will waive such right.

 

Dated as of the 27 day ofSeptember, 2004.

 

 

/s/ PAMELA L. SMITH

 

(Signature)

 

 

 

Pamela L. Smith

 

(Print Name)

 

 

 



EXHIBITA

CONSENT OF SPOUSE

 

I, Susan Tomljanovic, spouseof William Tomljanovic, acknowledge that I have read the StockholdersAgreement, dated as of                              ,2004, to which this Consent is attached as Exhibit A (the “Agreement”)and that I know the contents of the Agreement. I am aware its provisions provide that certain rights aregranted to certain other holders of capital stock of the Company uponthe sale or other disposition of shares of Common Stock of the Company (or anyother capital stock of the Company) which my spouse owns, including any interest Imight have therein.

 

I hereby agree that myinterest, if any, in the Common Stock (or any other capital stock of theCompany) subject to the Agreement shall be irrevocably bound by the Agreementand further understand and agree that any community propertyinterest I may have in the Common Stock (or any other capital stock ofthe Company) shall be similarly bound by the Agreement.

 

I am aware that the legal,financial and related matters contained in the Agreement are complex and that Iam free to seek independent professional guidance or counsel with respect to thisConsent. I have either sought such guidance or counsel or determined afterreviewing the Agreement carefully that I will waive such right.

 

Dated as of the _____ day of_________________.

 

 

/s/ SUSAN TOMLJANOVIC

 

(Signature)

 

 

 

Susan Tomljanovic

 

(Print Name)