AMENDMENT NO. 1 TO
SECOND AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") to that certain Second Amended
and Restated Stockholders Agreement dated as of November 13, 2003 (the
"Agreement") by and among DFG Holdings, Inc., a Delaware corporation (the
"Company"), Green Equity Investors II, L.P., a Delaware limited partnership (the
"Purchaser"), Stone Street Fund 1998, L.P., a Delaware limited partnership
(collectively with its permitted assigns, "Stone"), Bridge Street Fund 1998,
L.P., a Delaware limited partnership (collectively with its permitted assigns,
"Bridge"), GS Mezzanine Partners, L.P., a Delaware limited partnership
(collectively with its permitted assigns, "GSMP Onshore"), GS Mezzanine Partners
Offshore, L.P., an exempt Cayman Islands limited partnership (collectively with
its permitted assigns, "GSMP Offshore" and, collectively with Stone, Bridge and
GSMP Onshore, "GSMP"), Ares Leveraged Investment Fund, L.P., a Delaware limited
partnership ("Ares I"), Ares Leveraged Investment Fund II, L.P., a Delaware
limited partnership ("Ares II", and collectively with Ares I, "Ares"), certain
stockholders signatories identified on the signature pages thereto
(individually, the "Executive", and collectively, the "Executives"), and the
other holders of the Company's Common Stock signatory thereto, is entered into
as of the 11th day of March, 2004 between the Company, the Purchaser, GSMP, and
that certain Executive signatory hereto. All capitalized terms used and not
otherwise defined herein shall have the meaning given to such terms in the
Agreement, a copy of which is attached as Exhibit A hereto, which Agreement (as
modified by this Amendment) is an integral part of this Amendment and is
incorporated herein by this reference.
RECITALS
WHEREAS, Section 8.6 of the Agreement provides that the Agreement may be
amended, modified, supplemented or terminated only by a written instrument
signed by each of the Company, Stockholders holding a majority of the
Registrable Purchaser Shares, Stockholders holding a majority of the Registrable
Investor Shares and Stockholders holding a majority of the Registrable Executive
Shares; and
WHEREAS, the parties hereto desire to amend the Stockholders Agreement
as set forth below;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises contained herein, the parties hereto agree as follows:
1. Amendments to the Stockholders Agreement. Pursuant to Section 8.6
of the Agreement, the Agreement is amended as follows:
(a) Section 4.3.1 of the Agreement is hereby deleted in its
entirety and replaced with the following:
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"4.3.1 Right to Include Registrable Shares. If the Company at any time
proposes to register any of its equity securities under the Securities Act,
whether or not for sale for its own account and whether or not on account of
receipt by the Company of a Demand pursuant to Section 4.2.1(a) or (b), on a
form and in a manner which would permit registration of Registrable Shares for a
public offering under the Securities Act (other than on a registration statement
(i) on Form S-4 or Form S-8 or any successor form thereto or (ii) filed in
connection with an exchange offer), the Company shall give written notice of the
proposed registration to each Holder at least fifteen (15) days prior to the
filing thereof, provided, however, that in the case of an initial public
offering of the Company's equity securities, the Company shall be required to
give notice of the proposed registration to each Holder promptly after the
filing thereof. Each Holder shall have the right to request that all or any part
of its Registrable Shares be included in such registration by giving written
notice to the Company within fifteen (15) days after the giving of such notice
by the Company. If the registration statement is to cover an underwritten
offering, such Registrable Shares shall be included in the underwriting on the
same terms and conditions as the securities otherwise being sold through the
underwriters. Notwithstanding the foregoing, an Executive Holder may not request
the registration of his or her respective Registrable Executive Shares, if such
Registrable Executive Shares may, at the time (or within thirty days
thereafter), be distributed to the public pursuant to paragraph (k), as such
paragraph may be amended from time to time, or any other similar provision
hereafter adopted by the Commission, of Rule 144."
(b) Article 6 of the Agreement is hereby deleted in its entirety
and replaced with the following:
"ARTICLE 6 Termination of Agreement
Subject to the next succeeding sentence, this Agreement shall
terminate on a date that is the earlier of ten (10) years from the date
of this Agreement or such earlier date to which the parties may agree at
any time within two (2) years prior to the termination of such ten (10)
year period (the "Termination Date"). The provisions of Articles 1, 3
and 7 of this Agreement and the provisions of Sections 2.4, 2.8, 2.9,
2.10 and 2.11 of this Agreement shall terminate on the date of a Public
Offering Event which occurs prior to the Termination Date."
(c) Section 8.6 of the Agreement is hereby deleted in its entirety
and replaced with the following:
"8.6 Amendment; Waiver. This Agreement may be amended, modified,
supplemented or terminated only by a written instrument signed by each
of (i) the Company, (ii) Stockholders holding a majority of the
Registrable Purchaser Shares, (iii) Stockholders holding a majority of
the Registrable Investor Shares, and (iv) Stockholders holding a
majority of the Registrable Executive Shares. No provision of this
Agreement may be waived orally, but only by a written instrument signed
by the party against whom enforcement of such waiver is sought.
Stockholders shall be bound from and after the date such amendment or
waiver is duly executed by all parties whose consents are required by
this Section, whether or not the Shares shall have been marked to
indicate such consent; no alteration, modification or impairment shall
be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence."
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2. Other Provisions of the Agreement. Except as provided above, the
Agreement shall otherwise remain in full force and effect.
3. Governing Law. All questions with respect to this Amendment and the
rights and liabilities of the parties shall be governed by the internal
laws of the State of Delaware, regardless of the choice of laws
provisions of such state or any other jurisdiction.
4. Counterparts. This Amendment 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first set forth hereinabove.
THE COMPANY
DFG Holdings, Inc.
By: _______________________________
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
THE PURCHASER
Green Equity Investors II, L.P.
By: Grand Avenue Capital Partners, L.P.
Its: General Partner
By: Grand Avenue Capital Corporation
Its: General Partner
By: _______________________________
Name: Xxxxxxxx Xxxxxxx
Title: Partner
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GSMP
GS Mezzanine Partners, L.P.
By: GS Mezzanine Advisors, L.L.C.
Its: General Partner
By: _______________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
GS Mezzanine Partners Offshore, L.P.
By: GS Mezzanine Advisors, L.L.C.,
Its: General Partner
By: _______________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
Stone Street Fund, 1998, L.P.
By: Stone Street 1998, L.L.C.
Its: General Partner
By: _______________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
Xxxxxx Xxxxxx Xxxx 0000, X.X.
By: Stone Street 1998, L.L.C.
Its: General Partner
By: _______________________________
Name: Xxxxxxxxx X. Xxxxxxx
Title: Vice President
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ARES
Ares Leveraged Investment Fund, L.P.
By: Ares Management, L.P.
By: Ares Operating Member, L.L.C.
Its: General Partner
By: _______________________________
Name:
Title:
Ares Leveraged Investment Fund II, L.P.
By: Ares Management II, L.P.
By: Ares Operating Member II, L.L.C.
Its: General Partner
By: _______________________________
Name:
Title:
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EXECUTIVE
By: _______________________________
Name: Xxxxxxx Xxxxx
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EXHIBIT A
Second Amended and Restated Stockholders Agreement
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