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EXHIBIT 10.8
[FORM OF]
WHITE CAP HOLDINGS, INC.
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the "Agreement"), dated
effective as of October __, 1997, is made by and among Xxxx Xxxxxx, an
individual resident of the State of California ("Xxxxxx"), KRG Capital Partners,
LLC ("KRG Capital") and White Cap Industries, Inc., a Delaware corporation
formerly known as White Cap Holdings, Inc. (the "Company").
Reference is made to the Stockholders Agreement (the "Original
Agreement"), dated as of February 25, 1997, by and among the Company and certain
parties named on Schedule I thereto. Capitalized terms used but not otherwise
defined herein shall have the meanings assigned to them in the Original
Agreement.
WHEREAS, Section 8 of the Original Agreement provides that such agreement
shall terminate upon the closing of a Qualifying Public Offering;
WHEREAS, the Company is concurrently with the effective date hereof
completing a Qualifying Public Offering;
WHEREAS, Xxxxxx, KRG Capital and the Company desire to amend and restate
the Original Agreement (becoming the sole parties to this Agreement) as
stockholders of the Company after the closing of the Qualifying Public Offering,
pursuant to the terms set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto agree as follows:
1. KRG CAPITAL VOTING AGREEMENT. During the term of this Agreement, KRG
Capital shall maintain in effect a voting agreement providing that all voting
rights of all shares of capital stock of the Company held by members of KRG
Capital Investments II, LLC (collectively, the "KRG Parties") as of the date
hereof (as described in the Company's Registration Statement on Form S-1 filed
with the Securities and Exchange Commission (the "SEC") in connection with the
Qualified Public Offering) shall be held and controlled exclusively by KRG
Capital. The forgoing shall not be deemed to restrict the transfer of any shares
of capital stock of the Company by the KRG Parties in market transactions (or
pursuant to a registration statement filed with the SEC) free and clear of such
voting agreement. The effect of any such transfers shall only be as provided in
Sections 2(a)(1) and 5(b) below.
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2. BOARD OF DIRECTORS.
a. Election of Directors. The Company, Xxxxxx and KRG Capital agree
to take all action within their respective power, including, but not limited to,
the voting of all shares of capital stock of the Company owned by them, to cause
the Board of Directors of the Company (the "Board") to at all times include:
(1) for as long as the KRG Parties beneficially own, directly
or indirectly, or have the right to vote, an aggregate of at least 5% of the
issued and outstanding Common Stock (determined in accordance with Section 2(d)
hereof) of the Company, one designee of KRG Capital; and
(2) for as long as Xxxxxx beneficially owns, directly or
indirectly, at least 5% of the issued and outstanding Common Stock (determined
in accordance with Section 2(d) hereof) of the Company, one designee of Xxxxxx.
Each party who has the right to designate member(s) of the Board pursuant to
this Section 2(a) shall also have the right to remove such designee from the
Board at any time.
b. Replacement Directors. If any director is unable to serve, or is
removed or withdraws from the Board, such withdrawing director's replacement
will be designated by the party which designated the withdrawing director. If
such designating party no longer holds a sufficient number of shares to entitle
the party to designate a replacement director, the withdrawing director's
replacement will be elected as provided by law.
c. Board Observation Rights. For so long as this Agreement remains in
effect and the Transaction Advisory Agreement dated as of the date hereof
between KRG Capital, the Company and White Cap Industries, Corp. remains in
effect, in addition to the director designated pursuant to Section 2(a)(1)
above, the Company and Xxxxxx agree that KRG Capital shall be entitled to have
one other of its Managing Directors attend all Board meetings of the Company as
a non-voting observer (including participation in all telephonic Board
meetings). Copies of all actions by written consent shall also be made available
to KRG Capital's observer upon request.
d. Determination of Ownership. For purposes of determining the number of
shares of Common Stock held by the parties hereto, (i) the number of issued and
outstanding shares of "Common Stock" shall include the actual number of shares
of Common Stock issued and outstanding, together with the number of shares of
Common Stock into which issued the outstanding shares of the Company's preferred
stock are convertible (which are not then subject to vesting or performance
requirements) and the number of shares of Common Stock issuable upon exercise of
outstanding warrants or options (which are not then subject to vesting or
performance requirements); and (ii) shares held by a spouse, former spouse,
other family member, family partnership or trust of a stockholder shall be
deemed to be held by such stockholder and shall remain subject to the terms of
this Agreement as provided herein.
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3. REPRESENTATIONS AND WARRANTIES.
Each party represents and warrants that such party has all necessary
authority and approvals necessary to enter into this agreement.
4. APPLICATION TO SHARES OF COMPANY.
The provisions of this Agreement shall apply mutatis mutandis to any
shares into which any of the shares of the Common Stock may hereafter be
converted or changed or to any shares resulting from a reclassification,
subdivision or consolidation of any such shares of Common Stock and also to any
shares of the Company which are received by stockholders as a stock dividend on
the shares of Common Stock and to any shares or other securities of the Company
or of a successor company thereof respectively which may be received by
stockholders upon a merger, consolidation, reorganization or reconstruction of
the Company.
5. TERM.
This Agreement shall take effect upon the closing of the Qualifying Public
Offering and shall continue in force until the earlier of:
a. the date this Agreement is terminated by the written consent of Xxxxxx
and KRG Capital;
b. the date on which either KRG Capital or Xxxxxx shall cease to
beneficially own, directly or indirectly, or have the right to vote, an
aggregate of at least 5% of the issued and outstanding Common Stock of the
Company (determined in accordance with Section 2(d) hereof); or
c. the tenth anniversary of the date hereof.
6. NO RESTRICTIONS ON TRANSFER.
This Agreement shall not be deemed to restrict the transfer of shares of
capital stock of the Company in market transactions (or pursuant to a
registration statement filed with the SEC) free and clear of the voting
agreement described in Section 1 hereof. The effect of any such transfer shall
only be as provided in Sections 2(a)(1) and 5(b) hereof.
7. NOTICES.
a. All communications under this Agreement shall be in writing and
shall be delivered by hand or mailed by overnight courier or by registered or
certified mail, postage prepaid:
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(1) if to either Xxxxxx or KRG Capital at the address shown on
the signature page hereto, or at such other address as they may have furnished
the Company in writing; and
(2) if to the Company, at 0000 Xxxxxx Xxxxxx, X.X. Xxx 0000,
Xxxxx Xxxx, Xxxxxxxxxx 00000, marked for the attention of the President of the
Company, or at such other address as it may have furnished in writing to each
Stockholder.
b. Any notice so addressed shall be deemed to be given if delivered
by hand, on the date of such delivery; if mailed by courier, on the first
business day following the date of such mailing; and, if mailed by registered or
certified mail, on the third business day after the date of such mailing.
8. AMENDMENT.
This Agreement constitutes the entire Agreement among the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, of the
parties. This Agreement may only be amended or altered in any of its provisions
with the written consent of KRG Capital and Xxxxxx. No waiver of any of the
provisions of this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar) nor shall such waiver constitute
a continuing waiver unless otherwise expressly provided.
9. ASSIGNMENT.
Except as expressly otherwise provided in this Agreement, this Agreement
may not be assigned by a party without the written consent of the parties, and
shall inure to the benefit of and be binding upon the parties hereto and their
respective successors, heirs, executors, administrators, and personal
representatives.
10. GOVERNING LAW.
This Agreement shall be construed and enforced with, and the rights of the
parties shall be governed by, the laws of the State of Delaware, without giving
effect to conflicts of laws principles thereof.
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11. SPECIFIC PERFORMANCE.
Each of the KRG Capital, the Company and Xxxxxx acknowledges and agrees
that the other parties would be damaged irreparably in the event any of the
provisions of this Agreement are not performed in accordance with their specific
terms or otherwise are breached. Accordingly, the parties hereto agree that the
other parties shall be entitled to an injunction or injunctions, provided such
party is not then in default, to prevent breaches of the provisions of this
Agreement and to enforce specifically this Agreement and the terms and
provisions hereof.
12. REMEDIES CUMULATIVE.
All rights and remedies of either party hereto are cumulative of each
other and of every other right or remedy such party may otherwise have at law or
in equity, and the exercise of one or more rights or remedies shall not
prejudice or impair the concurrent or subsequent exercise of other rights or
remedies.
13. SECTION HEADINGS.
The headings of the sections and subsections of this Agreement are
inserted for convenience only and shall not be deemed to constitute a part
thereof.
14. SEVERABILITY
If any provision of this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions, or of such provision in any other jurisdiction, shall
not in any way be affected or impaired thereby.
15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original and all of which together shall be considered one
and the same agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto.
WHITE CAP INDUSTRIES, INC.
By:_______________________________________
Name:
Title:
KRG CAPITAL PARTNERS, LLC 000 Xxxxxxxxxxx
Xxxxxx, Xxxxx 0000 Xxxxxx, XX 00000
By:_________________________________
Name: Xxxx X. Xxxx
Title: Managing Director
__________________________________________
XXXX XXXXXX
c/o White Cap Industries, Inc.
0000 Xxxxxx Xxxxxx
X.X. Xxx 0000
Xxxxx Xxxx, XX 00000
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