Blueprint
AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT
This
AMENDED AND RESTATED
STOCKHOLDERS’ AGREEMENT (this
“Agreement”), dated as of February 8, 2017, is entered
into by and among (i) Smart Server, Inc., a Nevada corporation (the
“Company”), (ii) Berrard Holdings Limited Partnership,
a Delaware limited partnership (“BHLP”), (iii) Steven
R. Berrard (“Berrard” and together with BHLP,
“Berrard Holders”), (iv) Marshall Chesrown
(“Chesrown” and together with Berrard Holders, the
“Major Stockholders” and each, a “Major
Stockholder”), and (v) the other stockholders of the Company
listed on the signature page (the “Other Stockholders”)
(each of the Company, the Major Stockholders and the Other
Stockholders is a “Party” and collectively are referred
to in this Agreement as the “Parties”).
WHEREAS, the Parties desire to provide
for certain governance rights and other matters, and to set forth
certain rights and obligations of the Parties with respect to the
Company and the Common Stock (as defined below) owned by such Party
on and after the date hereof.
NOW THEREFORE, in consideration of the
mutual covenants and agreements contained in this Agreement, the
receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
ARTICLE
I
DEFINITIONS
As used
in this Agreement, the following terms shall have the following
respective meanings:
“Accepting Party” has the
meaning set forth in Section 2.5(a)(ii).
“Affiliate” means, with
respect to any Person, any (a) director, officer, limited or
general partner, member or stockholder holding five percent (5%) or
more of the outstanding capital stock or other equity interests of
such Person, (b) spouse, parent, sibling or descendant of such
Person (or a spouse, parent, sibling or descendant of a Person
specified in clause (a) above relating to such Person) and (c)
other Person that, directly or indirectly, through one or more
intermediaries, Controls, or is Controlled by, or is under common
Control with, such Person.
“Agreement”
has the meaning set forth in the preamble.
“Approved Sale” has the
meaning set forth in Section 2.4(a).
“Beneficial Owner” has the
meaning given to such term in Rule 13d-3 and Rule 13d-5 promulgated
under the Securities Exchange Act.
“Berrard”
has the meaning set forth in the preamble.
“Berrard Director” has the
meaning set forth in Section 2.1(d).
“Berrard
Holders” has the meaning set forth in the
preamble.
“BHLP” has
the meaning set forth in the preamble.
“Board”
means the Board of Directors of the Company.
“Change of Control
Transaction” means a transaction or a series of
related transactions (including by way of merger, consolidation,
recapitalization, or reorganization, but excluding a Stock Sale)
the result of which is that the stockholders of the Company
immediately prior to such transaction or series of related
transactions are (after giving effect to such transaction or series
of related transactions) no longer, in the aggregate, the
Beneficial Owners, directly or indirectly through one or more
intermediaries, of more than 50% of the issued and outstanding
voting securities of the Company.
“Charter” has the meaning
set forth in Section 2.1(b).
“Chesrown”
has the meaning set forth in the preamble.
“Chesrown Directors” has
the meaning set forth in Section 2.1(a).
“Committee” has the
meaning set forth in Section 2.1(b).
“Common
Stock” means the shares of any class of common stock
of the Company.
“Company”
has the meaning set forth in the preamble.
“Company Transaction
Notice” has the meaning set forth in Section
2.4(a).
“Control” means
(including, with correlative meanings, “controlled by” and
“under common
control with”), with respect to any Person, the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or
otherwise.
“Equity Securities” means
all shares of capital stock of the Company, including, without
limitation, all securities convertible into or exchangeable for
shares of capital stock of the Company, and all options, warrants,
and other rights to purchase or otherwise acquire from the Company
shares of such capital stock, including any stock appreciation or
similar rights, contractual or otherwise.
“Exchange Act” means the
Securities Exchange Act of 1934, as amended.
“Exempt Sale” means a sale
of Common Stock if the number of shares being sold, together with
all sales of Common Stock sold for the account of the seller within
three months from the date of the proposed sale do not exceed 1% of
the shares of Common Stock outstanding as shown by the most recent
report or statement published by the Company.
“Exiting Major
Stockholder” has the meaning set forth in Section
2.5(b).
“Exiting Stockholder” has
the meaning set forth in Section 2.5(a).
“Exiting Stockholder
Notice” has the meaning set forth in Section
2.5(a)(i).
“Independent Third Party”
means any Person who is not a Stockholder or an Affiliate of any
Stockholder.
“Major
Stockholders” has the meaning set forth in the
preamble and “Major
Stockholder” means each of them.
“Minimum Threshold” has
the meaning set forth in Section 2.1(a).
“Offered Shares” has the
meaning set forth in Section 2.5(a).
“Other
Stockholders” has the meaning set forth in the
preamble.
“Parties”
has the meaning set forth in the preamble and “Party” means each of
them.
“Permitted
Transfer” means any of the foregoing: (a)
a Transfer of Equity Securities as a bona fide gift,
(b) a Transfer to such Stockholder’s family or by will
or intestate succession to such Stockholder’s family or to a
trust, the beneficiaries of which are exclusively such Stockholder
or members of such Stockholder’s family, (c) a Transfer
by such Stockholder to any entity that is directly or indirectly
Controlled by, or is under common Control with, such Stockholder,
(d) the establishment of a trading plan pursuant to Rule
10b5-1 under the Exchange Act for the sale of Equity Securities,
provided that such plan
does not provide for the transfer of Equity Securities during the
Restricted Period, (e) a Transfer of Equity Securities for
purposes of paying any such Stockholder’s tax liability
related to or in connection with vested equity awards of the
Company or (f) in the case of NextGen Dealer Solutions, LLC a
transfer to Halcyon Consulting, LLC.
“Person” means an
individual, a partnership, a corporation, a limited liability
company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, association or other
entity or a governmental entity.
“Public Offering” means
any underwritten sale of common equity securities of the Company or
any of its subsidiaries (or any corporate successor to either of
them) pursuant to an effective registration statement under the
Securities Act filed with the SEC.
“Restricted Period” means
the earlier of (i) October 19, 2017, or (ii) the date on which the
Company receives at least $3,500,000 in proceeds of any equity
financing.
“ROFO Acceptance Notice”
has the meaning set forth in Section 2.5(a)(ii).
“ROFO Notice Period” has
the meaning set forth in Section 2.5(a)(i).
“Sale of the Company”
means either (i) the sale, lease, license, transfer, conveyance or
other disposition, in one transaction or a series of related
transactions, of all or substantially all of the assets of the
Company and its subsidiaries, taken as a whole, including through a
direct or indirect sale of subsidiary equity securities, or (ii) a
Change of Control Transaction.
“SEC” means the U.S.
Securities and Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended.
“Selling Stockholders” has
the meaning set forth in Section 2.4(b).
“Stock Sale” has the
meaning set forth in Section 2.4(b).
“Stock Sale Notice” has
the meaning set forth in Section 2.4(b).
“Stockholders” means the
Major Stockholders and the Other Stockholders and
“Stockholder” means any of
them.
“Transfer” means (i) offer
to sell, (ii) pledge of, (iii) sale of, (iv) contract to sell, (v)
sale of any option or contract to purchase, (vi) purchase of any
option or contract to sell, (vii) grant of any option, right or
warrant to purchase, or (viii) lending or otherwise transferring or
disposing of, directly or indirectly, any Equity
Securities.
ARTICLE
II
BOARD
REPRESENTATION; LOCK-UP; DRAG-ALONG RIGHTS; RIGHTS OF FIRST
OFFER
2.1. Board
Representation.
(a) As of the date
hereof, the Board shall be comprised of six (6) directors. From and
after the date hereof and for so long as Chesrown, or an Affiliate
of Chesrown beneficially owns, in the aggregate, at least 1,000,000
shares of the issued and outstanding Common Stock (the
“Minimum Threshold”), the Board shall be comprised of
no more than six (6) directors, and Chesrown shall be entitled to
(i) nominate three (3) individuals to the Board (such individuals,
including their respective successors, the “Chesrown
Directors”), to serve as members of the Board until their
respective successors are elected and qualified, (ii) nominate any
successor to each Chesrown Director, and (iii) direct the removal
from the Board of any Chesrown Director; provided, that at least two of the
Chesrown Directors shall be “independent” as defined by
the applicable rules and regulations of the SEC and the NASDAQ
stock market. The Chesrown Directors shall initially be
Marshall Chesrown, Mitch Pierce, and Kevin Westfall.
(b) Beginning with the
first annual meeting of stockholders after the date hereof and
thereafter, for so long as Chesrown or an Affiliate of Chesrown
beneficially owns, in the aggregate, at least the Minimum
Threshold, each nomination to the Board of any Chesrown Director
for election at an annual meeting of stockholders of the Company
shall be made by delivering to the Company a notice signed by
Chesrown, which notice shall include the names and qualifications
of such proposed Chesrown Directors. As promptly as practicable,
the Company shall provide a copy of such notice to the
Company’s Corporate Governance and Nominating Committee (the
“Committee”), which shall, if the proposed Chesrown
Director satisfies the criteria for qualifications of directors set
forth in the Charter of the Committee (the “Charter”)
in all material respects, as determined in good faith by the
Committee, at the next Committee meeting at which Board nominees
are determined for purposes of the Company’s annual meeting
of stockholders, make a recommendation to the Board that such
Chesrown Directors shall be nominated for election to the Board at
the Company's next annual meeting of stockholders and shall, in the
Company’s proxy statement relating to such annual meeting,
recommend to the Company's stockholders that the stockholders
should vote their Common Stock in favor of the election of the
proposed Chesrown Directors. If the Committee reasonably determines
in good faith that a proposed Chesrown Director does not meet such
criteria, the Committee shall notify Chesrown of such fact within
10 days following receipt of the Chesrown Notice, specifying in
reasonable detail the reasons for the determination that such
criteria have not been met, and within 10 calendar days Chesrown
may submit to the Committee a new proposed Chesrown
Director.
(c) For so long as
Chesrown or an Affiliate of Chesrown beneficially owns, in the
aggregate, at least the Minimum Threshold, each nomination to the
Board of any Chesrown Director for election other than at an annual
meeting of stockholders of the Company (whether due to the
resignation, removal or death of a Chesrown Director or otherwise)
shall be made by delivering to the Company a notice signed by
Chesrown, which notice shall include the names and qualifications
of such proposed Chesrown Director. As promptly as practicable, the
Company shall provide a copy of such notice to the Committee, which
shall, if the proposed Chesrown Director satisfies the criteria for
qualifications of directors set forth in the Charter in all
material respects, as determined in good faith by the Committee, as
promptly as practicable, make a recommendation to the Board that
such Chesrown Directors shall be appointed for election to the
Board, which appointment may be made by the Board to the extent
permitted pursuant to the Company’s bylaws. As promptly as
practicable thereafter, the Company shall take or cause to be taken
such corporate actions as may be required to cause such appointment
to be effected. If the Committee reasonably determines in good
faith that such proposed Chesrown Director does not meet such
criteria, the Committee shall notify Chesrown of such fact within
10 days of receipt of the Chesrown Notice, specifying in reasonable
detail the reasons for the determination that such criteria have
not been met, and within 10 calendar days Chesrown may submit to
the Committee a new proposed Chesrown Director.
(d) From and after the
date hereof and for so long as Berrard, or an Affiliate of Berrard
beneficially owns, in the aggregate, at least the Minimum
Threshold, the Board shall be comprised of no more than six (6)
directors, and Berrard shall be entitled to (i) nominate one
individual to the Board (such individual, including such
individual's successor, the “Berrard Director”), to
serve as a member of the Board until the Berrard Director's
successor is elected and qualified, (ii) nominate any successor to
the Berrard Director, and (iii) direct the removal from the Board
of the Berrard Director. The Berrard Director shall initially be
Steven R. Berrard.
(e) Beginning with the
first annual meeting of stockholders following the date hereof and
thereafter, for so long as Berrard, or an Affiliate of Berrard
beneficially owns, in the aggregate, at least the Minimum
Threshold, each nomination to the Board of any Berrard Director for
election at an annual meeting of stockholders of the Company shall
be made by delivering to the Company a notice signed by Berrard,
which notice shall include the name and qualifications of the
proposed Berrard Director. As promptly as practicable, the Company
shall provide a copy of such notice to the Committee which shall,
if the proposed Berrard Director satisfies the criteria for
qualifications of directors set forth in the Charter in all
material respects, as determined in good faith by the Committee, at
the next Committee meeting at which Board nominees are determined
for purposes of the Company’s annual meeting of stockholders,
make a recommendation to the Board that such Berrard Director shall
be nominated for election to the Board at the Company's next annual
meeting of stockholders and shall, in the Company’s proxy
statement relating to such annual meeting, recommend to the
Company's Stockholders that the Stockholders should vote their
Common Stock in favor of the election of the proposed Berrard
Director. If the Committee reasonably determines in good faith that
a proposed Berrard Director does not meet such criteria, the
Committee shall notify Berrard of such fact within 10 days
following receipt of the Berrard Notice, specifying in reasonable
detail the reasons for the determination that such criteria have
not been met, and within 10 calendar days Berrard may submit to the
Committee a new proposed Berrard Director.
(f) For so long as
Berrard or an Affiliate of Berrard beneficially owns, in the
aggregate, at least the Minimum Threshold, each nomination to the
Board of any Berrard Director for election other than at an annual
meeting of stockholders of the Company (whether due to the
resignation, removal or death of a Berrard Director or otherwise)
shall be made by delivering to the Company a notice signed by
Berrard, which notice shall include the names and qualifications of
such proposed Berrard Director. As promptly as practicable, the
Company shall provide a copy of such notice to the Committee, which
shall, if the proposed Berrard Director satisfies the criteria for
qualifications of directors set forth in the Charter in all
material respects, as determined in good faith by the Committee, as
promptly as practicable, make a recommendation to the Board that
such Berrard Director shall be appointed for election to the Board,
which appointment may be made by the Board to the extent permitted
pursuant to the Company’s bylaws. As promptly as practicable
thereafter, the Company shall take or cause to be taken such
corporate actions as may be required to cause such appointment to
be effected. If the Committee reasonably determines in good faith
that such proposed Berrard Director does not meet such criteria,
the Committee shall notify Berrard of such fact within 10 days of
receipt of the Berrard Notice, specifying in reasonable detail the
reasons for the determination that such criteria have not been met,
and within 10 calendar days Berrard may submit to the Committee a
new proposed Berrard Director.
(g) The Company shall
include in the slate of nominees recommended by the Board for
election as directors each Chesrown Director and the Berrard
Director for so long as Chesrown and Berrard, respectively, are
entitled to nominate the Chesrown Directors and the Berrard
Director pursuant to this Agreement. Each of Berrard, Chesrown, and
each of the Stockholders covenants and agrees to vote all Equity
Securities held by such person or their Affiliate for the election
to the Board of all individuals nominated in accordance with this
Section 2.1.
2.2. Vacancies
and Removal.
Each
Stockholder agrees to vote, or cause to be voted, all Equity
Securities beneficially owned by it, or over which such Person has
voting control, from time to time and at all times, in whatever
manner as shall be necessary to ensure that:
(a) the Berrard
Director and the Chesrown Directors are elected at each annual
meeting of the Company’s stockholders and serve until their
successors are duly elected and qualified or until their earlier
resignation or removal in accordance with this
Agreement;
(b) neither the Berrard
Director nor any Chesrown Director is removed from office unless
such removal is directed or approved by Berrard or Chesrown,
respectively, or such removal is for cause, as reasonably
determined in good faith by the Board; and
(c) any vacancies
created by the resignation, removal or death of the Berrard
Director or any Chesrown Director shall be filled as proposed by
Berrard or Chesrown, respectively, in accordance with Section 2.1
of this Agreement.
2.3. Restrictions
on Transfer and Other Agreements.
(a) Each Stockholder
hereby agrees that such Stockholder will not, prior to the end of
the Restricted Period, Transfer any Common Stock held by such
Stockholder as of the date hereof. The foregoing sentence shall not
apply to (a) any Permitted Transfer of Common Stock acquired prior
to the date hereof, (b) any Transfer of Common Stock acquired by a
Stockholder after the date hereof, or (c) any Transfer by any Other
Stockholder which is approved in writing by the Major Stockholders.
For purposes of this Section 2.3(a), to the extent any Transfer of
Common Stock by a Stockholder reduces the number of shares of
Common Stock held by such Stockholder below the number of shares
held by such Stockholder as of the date hereof such Transfer shall
constitute a Transfer of Common Stock acquired prior to the date
hereof.
(b) Neither any
Stockholder nor any of its Affiliates shall grant any proxy or
enter into or agree to be bound by any voting trust, agreement or
arrangement of any kind with any Person with respect to its Common
Stock if and to the extent the terms thereof conflict with the
provisions of this Agreement and each Stockholder shall take all
necessary actions within its power to cause the Company to comply
with the provisions of this Agreement.
(c) For as long as this
Agreement remains in effect, any Person acquiring Common Stock from
a Stockholder, other than any Person acquiring such Common Stock in
an Exempt Sale, as a condition of effecting the Transfer on the
books of the Company and acquiring any rights as a stockholder of
the Company, shall execute and deliver to the Company a joinder
agreeing to be bound by the terms of this Agreement in the same
capacity as the transferring Stockholder.
2.4. Drag-Along
Rights.
(a) If (1) the Board
approves a Sale of the Company or the Company's stockholders
receive a tender offer (other than a self tender) with respect to a
majority of the issued and outstanding Common Stock and (2) each
Major Stockholder that owns 10% or more of the issued and
outstanding Common Stock votes or consents in writing to such Sale
of the Company or agrees in writing to so vote or consent or, if
applicable, tenders pursuant to such tender offer all (but not less
than all) Common Stock of which such Major Stockholder is a
Beneficial Owner (any Sale of the Company or tender offer that
meets the requirements set forth in clauses (1) and (2), an
“Approved Sale”), then, promptly after the satisfaction
of both conditions, Major Stockholders that individually own 10% or
more of the issued and outstanding Common Stock at the time of the
Board approval, acting jointly with each other such Major
Stockholder (or individually if there is only one Major Stockholder
owning 10% or more of the issued and outstanding Common Stock at
such time), may issue a written notice to all Other Stockholders
stating that the transaction constitutes an Approved Sale and
specifying the material terms of such Approved Sale (the
“Company Transaction Notice”). From and after the date
on which any Other Stockholder is in receipt of the Company
Transaction Notice, such Other Stockholder shall vote for (whether
at a meeting of stockholders or by written consent), cooperate with
and raise no objections against, waive any dissenters rights, appraisal
rights or similar rights, not
otherwise impede, delay or dispute such Approved Sale and,
in the case of a tender offer that constitutes an Approved Sale,
tender their Common Stock in accordance with the terms of the
tender offer. In the event that any Other Stockholder fails to
comply with the terms of this Section 2.4(a), such Other
Stockholder shall not be entitled to receive the consideration to
which he, she or it is entitled until such Other Stockholder so
complies.
(b) If the stockholders
of the Company, including each Major Stockholder (such stockholders
together, the “Selling Stockholders”), enter into a
binding agreement to sell Common Stock representing more than 50%
of the issued and outstanding Common Stock as of the date of the
binding agreement (such sale, the “Stock Sale”), the
Major Stockholders shall deliver to all Other Stockholders, with a
copy to the Company, a written notice specifying the pricing and
other material terms of the Stock Sale (the “Stock Sale
Notice”). From and after the date on which any Other
Stockholder is in receipt of the Stock Sale Notice, such Other
Stockholder shall agree to sell and shall sell in the Stock Sale on
the terms and conditions thereof all Common Stock owned by the
Other Stockholders. Without limiting the foregoing,
(i) each Other
Stockholder shall make or provide the same representations,
warranties, covenants, indemnities and agreements as the Selling
Stockholders make or provide in connection with the Stock Sale
(except that in the case of representations, warranties, covenants,
indemnities and agreements pertaining specifically to the Selling
Stockholder, such Other Stockholder shall make the comparable
representations, warranties, covenants, indemnities and agreements
pertaining specifically to such Other Stockholder); provided, that all representations,
warranties, covenants and indemnities shall be made by such Other
Stockholder severally and not jointly and any indemnification
obligation shall be pro rata based on the consideration received by
such Other Stockholder, in each case in an amount not to exceed the
aggregate proceeds received by such Other Stockholder in connection
with the Stock Sale; and
(ii) the
Company and each Other Stockholder shall take all necessary or
desirable actions in connection with the consummation of the Stock
Sale and any related transactions as reasonably requested by the
Selling Stockholders, including (A) retaining investment bankers
and other advisors approved by the Selling Stockholders; (B)
furnishing information and copies of documents, (C) preparing and
making filings with governmental authorities; (D) providing
assistance with legal, accounting, tax, financial, benefits and
other due diligence; and (E) otherwise cooperating with the Selling
Stockholders and their respective representatives.
(c) The obligations of
each Other Stockholder under Sections 2.4(a) and under Section
2.4(b) with respect to a Stock Sale are subject to the satisfaction
of the following conditions: (i) that such Other Stockholder shall
receive in exchange for his, her or its Common Stock the same form
and amount of consideration per share of Common Stock as is
received by each other holder of the same class of Common Stock and
(ii) that such Approved Sale or Stock Sale is to an Independent
Third Party.
(d) Each Other
Stockholder hereby constitutes and appoints the Board in the case
of an Approved Sale pursuant to Section 2.4(a) or the Selling
Stockholders or their authorized representative in the case of a
Stock Sale pursuant to Section 2.4(b) with full power of
substitution, as his, her, or its true and lawful agent and
attorney-in-fact, with full power and authority in his, her or its
name, place and stead to execute, swear to, acknowledge, deliver,
file and record in the appropriate public offices to do and perform
everything required or permitted to be done in connection with any
Approved Sale or Stock Sale, as fully to all intents and purposes
as such Other Stockholder might or could do in person, including
taking any and all action on behalf of such Other Stockholder from
time to time as contemplated hereunder, including executing and/or
approving, on behalf of such Other Stockholder, any merger
agreement, stock sale agreement, asset sale agreement or similar
agreement relating to the Approved Sale or the Stock Sale, as the
case may be, and any amendments thereto and waivers thereof, any
transmittal letters and stock powers necessary to Transfer or
surrender such Other Stockholder's Common Stock in accordance with
any such agreement, and any other agreements, consents, approvals,
resolutions, certificates, or other documents reasonably necessary
or desirable to be executed and delivered in connection with the
Approved Sale or the Stock Sale, as applicable. The foregoing
powers of attorney are irrevocable and coupled with an interest,
and shall survive the death, disability, incapacity, dissolution,
bankruptcy, insolvency or termination of such Other Stockholder and
shall extend to such Other Stockholder’s heirs and personal
representatives.
(e) The provisions of
this Section 2.4 shall terminate and shall be of no further force
or effect on December 31, 2018; provided that the Stockholders
shall comply with the provisions of this Section with respect to
any Company Transaction Notice or Stock Sale Notice delivered or
required to be delivered prior to December 31, 2018.
2.5. Rights
of First Offer.
(a) Except for
Permitted Transfers, Exempt Sales and Transfers required pursuant
to Section 2.4(a) or Section 2.4(b), if any Other Stockholder (such
Stockholder, the “Exiting Stockholder”) proposes to
Transfer any Common Stock owned by it (the “Offered
Shares”) to any proposed transferee(s), the Exiting
Stockholder shall first make an offering of the Offered Shares to
the Major Stockholders and the Company in accordance with the
provisions of this Section 2.5(a).
(i) The Exiting
Stockholder shall give written notice (the “Exiting
Stockholder Notice”) to the Company and the Major
Stockholders stating its bona fide intention to Transfer the
Offered Shares and specifying the number of Offered Shares and the
material terms and conditions, including the price, pursuant to
which the Exiting Stockholder proposes to Transfer the Offered
Shares. The Exiting Stockholder Notice shall constitute the Exiting
Stockholder's offer to Transfer the Offered Shares to the Major
Stockholders and the Company, which offer shall be irrevocable for
a period of 20 business days (the “ROFO Notice
Period”). By delivering the Exiting Stockholder Notice, the
Exiting Stockholder represents and warrants to the Company and each
Major Stockholder that (x) the Exiting Stockholder has full right,
title and interest in and to the Offered Shares, (y) the Exiting
Stockholder has all the necessary power and authority and has taken
all necessary action to sell such Offered Shares as contemplated by
this Section 2.5(a), and (z) the Offered Shares are free and clear
of any and all liens other than those arising as a result of or
under the terms of this Agreement.
(ii) Upon
receipt of the Exiting Stockholder Notice, each Major Stockholder
and the Company shall have the right, exercisable by delivering a
written notice (a “ROFO Acceptance Notice”) to the
Exiting Stockholder prior to the end of the ROFO Notice Period, to
purchase all (but not less than all) of the Offered Shares on the
terms specified in the Exiting Stockholder Notice. Any ROFO
Acceptance Notice so delivered shall be binding upon delivery and
irrevocable by the Person delivering the notice. If more than one
Person delivers a ROFO Acceptance Notice (each such Person, the
“Accepting Party”), the Offered Shares shall be sold to
each Accepting Party in equal shares (i.e. if each Major
Stockholder and the Company accept, each such Person will acquire
one-third of the Offered Shares), provided that Berrard and BHLP
shall be treated as a single Person for purposes of this sentence.
The Exiting Stockholder and each Accepting Party shall take all
actions as may be reasonably necessary to consummate the sale
contemplated by this Section 2.5(a) including, without limitation,
entering into agreements and delivering certificates and
instruments and consents as may be deemed necessary or appropriate,
and shall use their respective commercially reasonable efforts to
consummate such sale as soon as practicable.
(iii) If
the Company or any Major Stockholder does not deliver a ROFO
Acceptance Notice during the ROFO Notice Period, such Person shall
be deemed to have waived all of its or his rights to purchase the
Offered Shares under this Section 2.5(a) in connection with the
offering to which the Exiting Stockholder Notice relates. If
neither any Major Stockholder nor the Company delivers a ROFO
Acceptance Notice in accordance with Section 2.5(a)(ii), the
Exiting Stockholder may, during the 60 day period following the
expiration of the ROFO Notice Period and subject to any other
applicable restrictions set forth in this Agreement, Transfer all
of the Offered Shares to another transferee on terms and conditions
no more favorable to that transferee than those set forth in the
Exiting Stockholder Notice. If the Exiting Stockholder does not
Transfer the Offered Shares within such 60 day period, the rights
provided hereunder shall be deemed to be revived and the Offered
Shares shall not be Transferred to the proposed transferee(s)
unless the Exiting Stockholder sends a new Exiting Stockholder
Notice in accordance with, and otherwise complies with, this
Section 2.5(a).
(b) If Berrard or BHLP
on the one hand or Chesrown on the other hand (any such Major
Stockholder, the “Exiting Major Stockholder”) proposes
to Transfer any Common Stock owned by such Person to any another
Person, other than in an Exempt Sale, Permitted Transfer or
pursuant to a Sale of the Company or a Stock Sale, the Exiting
Major Stockholder shall first make an offering of such Common Stock
to the Company and the other Major Stockholders; and such
offeree(s) shall have the right to purchase such Common Stock from
the Exiting Major Stockholder. The provisions of Section 2.5(a),
including the obligation to deliver the Exiting Stockholder Notice
to the Company and the other Major Stockholders, shall apply to any
such offering (treating an Exiting Major Stockholder as an Exiting
Stockholder and not as a Major Stockholder).
(c) This Section 2.5
shall terminate on the earlier of (i) June 30, 2018 and (ii) the
date on which the Major Stockholders terminate the same by written
notice to the Other Stockholders; provided that in the case of the
termination pursuant to clause (i) the Stockholders shall comply
with the provisions of this Section 2.5 with respect to any Exiting
Stockholder Notice delivered or required to be delivered prior to
June 30, 2018.
ARTICLE
III
MISCELLANEOUS
3.1. Termination.
This
Agreement shall terminate and be of no further force and effect
upon the written agreement of Mr. Berrard and Mr.
Chesrown.
3.2. Successors
and Assigns; Beneficiaries.
Except
as otherwise provided herein, all of the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit of
and shall be enforceable by the respective successors and permitted
assigns of the parties hereto and any of their respective
successors and permitted assigns. This Agreement may not be
assigned without the express prior written consent of the other
parties hereto, and any attempted assignment, without such
consents, will be null and void.
3.3. Amendment
and Modification; Waiver of Compliance.
(a) This Agreement may
be amended only by a written instrument duly executed by the
Company and the Parties hereto.
(b) Except as otherwise
provided in this Agreement, any failure of any of the parties to
comply with any obligation, covenant, agreement or condition herein
may be waived by the party entitled to the benefits thereof only by
a written instrument signed by the party granting such waiver, but
such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any subsequent or other
failure.
3.4. Notices.
Any
notice, request, claim, demand, document and other communication
hereunder to any party shall be effective upon receipt (or refusal
of receipt) and shall be in writing and delivered personally or
sent by e-mail, facsimile, or first class mail, or by Federal
Express, United Parcel Service or other similar courier or other
similar means of communication to:
the
Company, BHLP or Berrard:
4521
Sharon Road
Suite
370
Charlotte, NC
28211
sberrard@newrivercapital.com
with a
copy to:
Akerman
LLP
Attn:
Michael Francis
350
East Las Olas Blvd, Suite 1600
Fort
Lauderdale, FL 33301
michael.francis@akerman.com
Fax:
954.463.2224
Chesrown:
Marshall
Chesrown
7303
Tidal Trace
Arlington, TX
76016
marshallchesrown@gmail.com
with a
copy to:
S. Lee
Terry, Jr.
Davis
Graham & Stubbs LLP
1550
17th
Street #500
Denver,
CO 80202
less.terry@dgslaw.com
Fax:
303.893.1379
The
Stockholders:
at such
address set forth opposite such Stockholder’s
name on
the signature page,
or, in
each case, to such other address as such party may designate in
writing to the other parties by written notice given in the manner
specified herein.
3.5. Specific
Performance.
Each
party hereto acknowledges and agrees that in the event of any
breach of this Agreement by any of them, the other parties hereto
would be irreparably harmed and could not be made whole by monetary
damages. Each party accordingly agrees to waive the defense in any
action for specific performance that a remedy at law would be
adequate and agrees that the parties, in addition to any other
remedy to which they may be entitled at law or in equity, shall be
entitled to specific performance of this Agreement without the
posting of bond.
3.6. Entire
Agreement.
The
provisions of this Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof
contain the entire agreement among the parties hereto with respect
to the subject matter hereof and supersede all prior oral and
written agreements and memoranda and undertakings among the parties
hereto with regard to such subject matter, including that certain
Stockholders' Agreement dated October 19, 2016 by and among the
Company, Berrard Holders, Chesrown and the other Company
stockholders signatory thereto, as amended prior to the date
hereof.
3.7. Severability.
If any
provision of this Agreement, or the application of such provision
to any Person or circumstance or in any jurisdiction, shall be held
to be invalid or unenforceable to any extent, (i) the remainder of
this Agreement shall not be affected thereby, and each other
provision hereof shall be valid and enforceable to the fullest
extent permitted by law, (ii) as to such Person or circumstance or
in such jurisdiction such provision shall be reformed to be valid
and enforceable to the fullest extent permitted by law and (iii)
the application of such provision to other Persons or circumstances
or in other jurisdictions shall not be affected
thereby.
3.8. Governing
Law.
This
Agreement shall be governed by and construed in accordance with the
laws of the State of Nevada without regard to conflicts of law
principles thereof.
3.9. Waiver
of Jury Trial.
EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE
UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY, OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES OR ANY OF THEM IN RESPECT
OF THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i)
NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO
ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS SECTION. EACH PARTY AGREES THAT THE OTHER
MAY FILE A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF THEIR RIGHT
TO TRIAL BY JURY.
3.10. Counterparts.
This
Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
3.11. Further
Assurances.
At any
time or from time to time after the date hereof, the parties hereto
agree to cooperate with each other, and at the request of any other
party, to execute and deliver any further instruments or documents
and to take all such further action as any other party may
reasonably request in order to evidence or effectuate the
provisions of this Agreement and to otherwise carry out the intent
of the parties hereunder.
3.12. Schedule
13D.
In
accordance with the requirements of Rule 13d-1(k) under the
Exchange Act, and subject to the limitations set forth therein,
each Stockholder agrees to file, if appropriate, Schedule 13D no
later than 10 calendar days following the date hereof and, if
required, a Form 3 no later than 10 calendar days following the
date on which a Stockholder first acquires Equity
Securities.
IN
WITNESS WHEREOF, each of the undersigned has signed this
Stockholders’ Agreement as of the date first above
written.
Smart
Server, Inc.
Title:Chief Executive
Officer
Berrard
Holdings Limited Partnership
/s/ Steven R.
Berrard
Steven R. Berrard
/s/ Marshall
Chesrown
Marshall
Chesrown
[Signature
Page to Stockholders’ Agreement]
IN
WITNESS WHEREOF, the undersigned has signed this
Stockholders’ Agreement as of the date first above
written.
Stockholder:
Name:
[Signature
Page to Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
Name: Lori Sue Chesrown
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
Name: Thomas Aucamp
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
Name: Beverley Rath
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
Name: Jay Goodart
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder: Blue
Flame Capital, LLC
Name: Denmar J. Dixon
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
By:
/s/ Steven R. Berrard
Name: Steven R. Berrard
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
Name: Jeffrey Cheek
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
NextGen Dealer Solutions, LLC
Name: Kartik Kakarala
[Signature Page to
Stockholders’ Agreement]
IN WITNESS
WHEREOF, the undersigned has signed this Stockholders’
Agreement as of the date first above written.
Stockholder:
Name: Jack Lynn
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
Name: Thomas Byrne
[Signature Page to
Stockholders’ Agreement]
IN WITNESS WHEREOF,
the undersigned has signed this Stockholders’ Agreement as of
the date first above written.
Stockholder:
Name: Ralph Wegis
[Signature
Page to Stockholders’ Agreement]