EXHIBIT 10.9
FORM OF
AMENDED AND RESTATED MANAGEMENT SUBSCRIPTION AGREEMENT
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THIS AMENDED AND RESTATED MANAGEMENT SUBSCRIPTION AGREEMENT, dated as of
__________, 2005 (this "Agreement"), is made by and among TAL International
Group, Inc., a Delaware corporation (the "Company"), whose address is c/o The
Jordan Company, L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
and the persons and entities whose names are set forth on Exhibit 1 hereto
(collectively the "Shareholders").
WITNESSETH:
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WHEREAS, the Company and the Shareholders are parties to that certain
Management Subscription Agreement, dated as of November 3, 2004 (the "Original
Agreement"); and
WHEREAS, the Company and the Shareholders desire to amend and restate the
Original Agreement in its entirety;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree to amend and restate the Original
Agreement in its entirety to read as follows:
1. Share Subscriptions.
(a) Each Shareholder (i) subscribes for the number of shares of Common
Stock, par value U.S. $0.001 per share of the Company (the "Common Stock")
set forth opposite such Shareholder's name in Exhibit 1 hereto at a
purchase price for the Common Stock of U.S. $1.00 per share (the "Common
Stock Cost"), and (ii) tenders cash in consideration of the issuance of
such Shares.
(b) Each Shareholder (i) subscribes for the number of shares of the
Company's Series A 12% Cumulative Senior Preferred Stock, par value U.S.
$0.001 per share (the "Preferred Stock" and, together with the Common
Stock, the "Shares") set forth opposite such Shareholder's name in Exhibit
1 hereto at a purchase price for the Preferred Stock of U.S. $1,000.00 per
share (the "Preferred Stock Cost"), and (ii) tenders cash in consideration
of the issuance of such Shares.
(c) Each of the Shareholders, in order to facilitate the transactions
contemplated by this Agreement, authorizes and appoints the Company or any
of its representatives to direct the transfer all or any portion of the
subscription consideration from any account into which such amounts may be
paid into for the benefit of such Shareholder to any account established
for the benefit of the Company or any of its subsidiaries. The
Shareholder's investment described hereby shall be the only investment in
the Company required of the Shareholders under this Agreement and no
Shareholder shall, by virtue of such investment, be subject to (i) any
further obligation to contribute additional capital to the Company or (ii)
any liabilities of the Company that arise in the ordinary course of
business.
(d) Each Shareholder agrees to tender by wire or check for
consideration of the purchase price of the Shares being purchased by such
Shareholder on the date hereof, provided that immediately upon tender of
the consideration for such Shares described in Section 1(a) and (b), the
Company will issue such Shares.
(e) Each Shareholder acknowledges to the Company and the other
Shareholders that such Shareholder understands and agrees, as follows:
THE SHARES HAVE NOT BEEN REGISTERED UNDER FEDERAL OR STATE SECURITIES LAWS.
THE SHARES ARE VERY SPECULATIVE AND RISKY. THERE IS NO PUBLIC OR OTHER
MARKET FOR THE SHARES NOR IS ANY LIKELY TO DEVELOP. THE COMPANY AND ITS
SUBSIDIARIES HAVE BORROWED A SUBSTANTIAL PORTION OF THE FUNDS USED TO
OPERATE ITS BUSINESS. EACH SHAREHOLDER ACKNOWLEDGES THAT SUCH SHAREHOLDER
MAY AND CAN AFFORD TO LOSE SUCH SHAREHOLDER'S ENTIRE INVESTMENT IN THE
SHARES AND THAT SUCH SHAREHOLDER UNDERSTANDS SUCH SHAREHOLDER MAY HAVE TO
HOLD THIS INVESTMENT INDEFINITELY.
2. Proposed Transactions.
(a) This Agreement references certain pertinent documents as well as
applicable laws and regulations. Each Shareholder acknowledges to the
Company and the other Shareholders that such references are not summaries
or complete and are qualified in their entirety by the complete texts of
the documents, laws and regulations so summarized.
(b) Each Shareholder acknowledges to the Company and the other
Shareholders that such Shareholder has had ample opportunity to ask
questions regarding each of the following documents:
(i) Amended and Restated Certificate of Incorporation of the
Company;
(ii) Bylaws of the Company;
(iii) Stock Purchase Agreement dated as of July 10, 2004, by and
between TA Leasing Holding Co., Inc. and ▇▇▇▇▇▇ & Company Limited, as
amended, including all exhibits and schedules thereto (the "Stock
Purchase Agreement");
(iv) Shareholders Agreement, dated as of the date hereof (the
"Shareholders Agreement"), by and among the Company and the
shareholders party thereto, including all exhibits and schedules
thereto;
(v) Investor Subscription Agreement, dated as of the date hereof,
by and among the Company and the shareholders of the Company party
thereto, including all exhibits and schedules thereto (the "Investor
Subscription Agreement");
(vi) Management Consulting Agreement, dated as of the date
hereof, by and among the Company, its Related Companies and The Jordan
Company, L.P. ("TJC"), including all exhibits and schedules thereto
(the "TJC Management Consulting Agreement");
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(vii) Management Advisory Agreement, dated as of the date hereof,
by and among the Company, its Related Companies and the advisor party
thereto, including all exhibits and schedules thereto (the "Advisory
Agreement");
(viii) Transaction Fee Agreement, dated as of the date hereof, by
and between the Company and Seacon Holdings Limited ("Seacon Fee
Agreement").
(ix) Senior Subordinated Credit Agreement, dated as of November
3, 2004, by and between the Company and the lenders named therein, as
such agreement may be amended, waived or otherwise modified or
refinanced from time to time and all other agreements and documents
related thereto (the "Loan Agreement");
(x) Credit Agreement, dated as of November 3, 2004, by and among
the Company, Fortis Bank, as Agent, Transamerica Leasing Inc. and
Trans Ocean Limited, as such agreement may be amended, waived or
otherwise modified or refinanced from time to time and all other
agreements and documents related thereto (the "Credit Agreement");
(xi) The Company's 2004 Management Stock Plan (the "Management
Stock Plan"); and
(xii) This Agreement and all exhibits and schedules hereto.
The documents referred to in (i) through (xii) are hereinafter collectively
referred to as the "Operative Documents", except that, for purposes of Section
5(d) only, this Agreement and the Management Stock Plan will not be considered
by Operative Document.
3. Shareholder Representations, Warranties and Covenants. Each Shareholder
represents, warrants and covenants to the Company and each other Shareholder
that:
(a) Such Shareholder has the legal capacity, power and authority to
enter into and perform all of its obligations under this Agreement. The
execution, delivery and performance of this Agreement by such Shareholder
will not violate any other agreement to which such Shareholder is a party
including, without limitation, any voting agreement, shareholders agreement
or voting trust. This Agreement has been duly and validly authorized,
executed and delivered by such Shareholder and constitutes a valid and
binding agreement of such Shareholder, enforceable against such Shareholder
in accordance with its terms, except that such enforceability (i) may be
limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally and
(ii) is subject to general principles of equity.
(b) Such Shareholder is employed in a managerial or executive position
with one or more of the Company's subsidiaries and is familiar with the
Company's and its subsidiaries' operations, financial condition and
business prospects.
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(c) Such Shareholder will not (i) transfer any Shares if such transfer
would result in a default by the Company or its subsidiaries under any of
the provisions of the Operative Documents, (ii) except as required or
contemplated by the Operative Documents, grant any proxies, deposit any
Shares into a voting trust or enter into a voting agreement with respect to
any Shares, or (iii) take any action that would make any representation or
warranty of such Shareholder contained herein untrue or incorrect or have
the effect of preventing or disabling such Shareholder from performing his
obligations under any of the Operative Documents, or would result in a
default by the Company or its subsidiaries under the provisions of any of
the Operative Documents. Each Shareholder further agrees that such
Shareholder's ability to transfer Shares is subject to the limitations,
restrictions and conditions of the Shareholder Agreement and the Operative
Documents.
(d) Such Shareholder will complete, execute and file a form of
election under Section 83(b) of the Internal Revenue Code of 1986, as
amended, with the Internal Revenue Service within thirty (30) days of the
execution of this Agreement and the purchase of the Shares.
(e) Such Shareholder has no pending or threatened claim, complaint,
action, suit, proceeding, hearing or investigation against the Company or
its subsidiaries for any period prior to the date hereof, nor does such
Shareholder presently intend to bring or file any claim, complaint, action,
suit, proceeding, hearing or investigation against the Company or its
subsidiaries for any period prior to the date hereof.
(f) The Company has afforded such Shareholder and such Shareholder's
advisors, if any, the opportunity to discuss an investment in the Shares
and to ask questions of representatives of the Company concerning the terms
and conditions of the offering of the Shares and the Operative Documents,
and such representatives have provided answers to all such questions
concerning the offering of the Shares and the Operative Documents. Such
Shareholder has consulted its own financial, tax, accounting and legal
advisors, if any, as to such Shareholder's investment in the Shares and
with the Operative Documents and the consequences thereof and risks
associated therewith. Such Shareholder and such Shareholder's advisors, if
any, have examined or have had the opportunity to examine before the date
hereof the Operative Documents and all information that such Shareholder
deems to be material to an understanding of the Company and its
subsidiaries, the proposed business of the Company and its subsidiaries,
and the offering of the Shares. Such Shareholder also acknowledges that to
such Shareholder's knowledge there have been no general or public
solicitations or advertisements or other broadly disseminated disclosures
(including, without limitation, any advertisement, article, notice or other
communication published in any newspaper, magazine or similar media or
broadcast over television, radio or internet, or any seminar or meeting
whose attendees have been invited by any general solicitation or
advertising) by or on behalf of the Company regarding an investment in the
Shares.
(g) Such Shareholder represents to the Company and the other
shareholders of the Company that it knows and understands and has given
full consideration to and has had the opportunity to ask questions of any
person authorized to act on behalf of the Company concerning any aspect of
the transactions with affiliates being consummated by the Company in
connection with the Shareholders Agreement, the Investor Subscription
Agreement, the Loan
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Agreement, the Credit Agreement, the TJC Management Consulting Agreement,
the Advisory Agreement, the Seacon Fee Agreement, and the Management Stock
Plan, including all agreements, obligations, covenants and arrangements
contained therein or contemplated thereby, including all exhibits and
schedules thereto (collectively, the "Affiliate Transaction Agreements").
4. Risk Factors and Other Considerations. Each Shareholder acknowledges to
the Company and the other Shareholders that:
(a) (i) The Company's subsidiaries are the Company's only material
assets, and that the Company and certain of its subsidiaries have borrowed
a substantial portion of the funds used to effect the purchase by the
Company's subsidiaries of the shares listed in the Stock Purchase
Agreement; (ii) it is unlikely that dividends will be paid on the Shares;
(iii) there is no legal requirement or promise made by the Company to
declare or pay such dividends and such dividends may not in any event be
paid if such payment would violate any term of the Operative Documents;
(iv) certain of the Operative Documents severely restrict the ability of
the Company to make any dividend or redemption payments on the Shares and
such payment may be further restricted by future agreements or instruments
binding on the Company or its subsidiaries; (v) if a Shareholder ceases to
be an employee of the Company's subsidiaries such Shareholder's Shares may
be subject to certain rights of the Company to repurchase such Shares under
this Agreement or the Shareholder's employment agreement with the Company's
subsidiaries; and (vi) under the repurchase payment terms, such
Shareholders may not receive full cash payment in return for the
Shareholder's Shares for several years.
(b) Any financial projections or forecasts with respect to the Company
and its subsidiaries are only forecasts prepared by management, which are
subject to many assumptions and factors beyond the Company's and its
subsidiaries' control, and that there can be no assurances that these
forecasts will be realized.
(c) An investment in the Shares is a speculative investment which
involves a high risk of loss and that on and after the date hereof, there
will be no public market for the Shares and the Company does not
contemplate that a public market will develop.
(d) Such Shareholder has given full consideration to and has had the
opportunity to ask questions of any person authorized to act on behalf of
the Company concerning any aspect of the transactions with affiliates being
consummated by the Company in connection with the Affiliate Transaction
Agreements.
(e) The Operative Documents and any other agreement or instrument that
may restrict the ability of the Company to make any dividend or redemption
payments may be created, amended, modified or supplemented, from time to
time, and may be refinanced, extended or substituted, from time to time,
without notice to, or the consent or approval of, the Shareholders.
(f) Nothing in this Agreement shall constitute an agreement by, or
shall impose any obligation upon, the Company or its subsidiaries to
employ, or to continue to employ, any Shareholder, or shall constitute an
agreement by, or shall impose any obligation
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upon, the Company or its subsidiaries with respect to the terms and
conditions of employment of any Shareholder, and will not limit or
restrict, in any manner, the Company's or its subsidiaries' right or
ability to terminate the employment of any Shareholder.
5. Securities Law and Other Matters. Each Shareholder represents and
warrants to the Company and the other Shareholders that:
(a) (i) Such Shareholder used no "purchaser's representative" (as that
term is used in Regulation D under the Securities Act of 1933, as amended
(the "Securities Act")) in connection with the transactions contemplated by
the operative documents in connection with the financing; (ii) neither TJC,
The Resolute Fund, L.P., nor any of their respective partners, members,
principals, directors, officers, representatives, attorneys, agents,
employees or affiliates has acted or is expected to act as a representative
or agent of said Shareholder in the subject transaction; (iii) such
Shareholder has substantial knowledge and experience in financial,
investment and business matters, and specifically in the business of the
Company and its subsidiaries, and has the requisite knowledge and
experience to evaluate the risks and merits of its investment in the
Shares; (iv) the decision of such Shareholder to purchase the Shares
hereunder has been made by such Shareholder independent of any other
Shareholder and independent of any statements, disclosures or judgments as
to the properties, business, prospects or condition (financial or
otherwise) of the Company and its subsidiaries which may have been made or
given by any Shareholder or other Person.
(b) (i) The Shares being purchased by such Shareholder hereunder have
not been registered under the Securities Act on the ground that the sales
of Shares pursuant to this Agreement are exempt under Section 4(2) of the
Securities Act as not constituting a distribution, and that the Company's
reliance on such exemption is predicated in part on each Shareholder's
representation which such Shareholder herewith makes that the Shares have
been acquired solely by and for the account of such Shareholder for
investment purposes only, and are not being purchased for subdivision,
fractionalization, resale or distribution and other than as expressly set
forth in the Operative Documents, such Shareholder has no contract,
undertaking, agreement or arrangement with any other Shareholder to sell,
transfer or pledge to such other Shareholder or anyone else the Shares
being sold to such Shareholder (or any part thereof), and such Shareholder
has no present plans or intentions to enter into any such contract,
undertaking, agreement or arrangement; (ii) the Shares being sold to such
Shareholder must be held indefinitely unless they are subsequently
registered under the Securities Act or a transfer is made pursuant to an
exemption from such registration, including, for example, pursuant to Rule
144 thereunder and that the Company has no agreements in respect of
registering the Shares under Federal or state law; and (iii) such
Shareholder's financial condition is such that Shareholder is not under any
present necessity or constraint, and does not foresee in the future any
necessity or constraint, to dispose of the Shares being sold to such
Shareholder to satisfy any existing or contemplated debt or undertaking.
(c) In the event that in the future the Company engages in any
negotiation or transaction (including a merger or consolidation or other
reorganization by or of the Company) in which Regulation D under the
Securities Act may or will be available to the Company, each of the
Shareholders who is not then a professional investor agrees irrevocably
(and with the knowledge and intention that the other holders of the
Company's stock of all classes will rely
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thereon in making their respective present investment decisions) that such
Shareholder will, within five (5) business days of notice from the Company,
which notice may be given in the sole discretion of the Company, appoint a
purchaser's representative or representatives who shall be qualified and
acceptable to the Company and any other Person(s) who is (are) involved in
the proposed transaction so that the maximum benefits of Regulation D shall
be available to the Company and all of its shareholders.
(d) Such Shareholder hereby releases The Resolute Fund, L.P., The
Resolute Fund Singapore PV, L.P., The Resolute Fund Netherlands PV I, L.P.,
The Resolute Fund Netherlands PV II, L.P., The Resolute Fund NQP, L.P., JZ
Equity Partners PLC, Fairholme Partners, L.P., Fairholme Ventures II, LLC,
Fairholme Holdings, Ltd., Edgewater Private Equity Fund III, L.P.,
Edgewater Private Equity IV, L.P., and their respective affiliates, and
each of their respective partners, members, principals, directors,
officers, representatives, attorneys, agents, employees and affiliates from
and against any claims in respect of each Shareholder's subscription for
Shares and any related transaction hereunder or under the Operative
Documents.
6. Registration Rights. The Shares have not been registered under the
Securities Act nor any state securities laws and, in consequence thereof, all of
the Shares must be held indefinitely unless (a) subsequently registered under
the Securities Act or other applicable federal and state securities laws or (b)
exemptions from such registration are available at the time of a proposed sale
or transfer thereof. Except as set forth in the Shareholders Agreement, the
Company has no agreements in respect of a registration statement under either
federal or state law.
7. [Intentionally Omitted]
8. [Intentionally Omitted]
9. Non-Competition/Non-Disclosure Provisions.
(a) Applicability. In the event of the termination of a Shareholder's
employment with the Company or any Related Company for any reason or no
reason, the Company will, within ten (10) business days of the effective
date of such termination, provide to such terminated Shareholder notice of
whether the Company has elected either (i) to waive compliance by such
terminated Shareholder with Section 9(b) as it is applicable to such
terminated Shareholder, in which case, Section 9(b) will cease to be
applicable to such terminated Shareholder on the 30th day following such
effective date, or (ii) to require compliance by such terminated
Shareholder with Section 9(b), in which case, (A) Section 9(b) will be
applicable to such terminated Shareholder for 12 months following such
effective date (the "Restricted Period") and (B) the Company will, during
the Restricted Period, and as a condition of such compliance, continue to
pay such terminated Shareholder an amount equal to his base compensation,
but excluding any incentive bonus, or other bonuses, benefits or flexible
perquisites, applicable to the six months prior to such effective date;
provided, however, that the Company shall have no obligation to make such
payment, if such terminated Shareholder's employment is terminated for
cause. If the Company fails to provide such notice, then it will be deemed
to have elected to waive compliance under clause (i). Regardless of whether
the Company waives compliance by a terminated Shareholder with Section 9(b)
or makes
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the payments specified in clause (ii)(B), Sections 9(c), 9(d) and 9(e)
shall continue to apply to such terminated Shareholder for the duration
specified therein.
(b) Non-Competition. In consideration of this Agreement, each
Shareholder covenants and agrees that during the period such Shareholder is
an officer, director or employee of the Company or any Related Company and
during the Restricted Period, such Shareholder shall not, subject to
Section 9(a), without the express written approval of the Board of
Directors of the Company (the "Board"), directly or indirectly, in one or a
series of transactions, own, manage, operate, control, invest or acquire an
interest in, whether as a proprietor, partner, shareholder, member, lender,
director, officer, employee, joint venturer, investor, lessor, supplier,
customer, agent, representative or other participant, or otherwise engage
or participate in, whether as a proprietor, partner, shareholder, member,
lender, director, officer, employee, joint venturer, investor, lessor,
supplier, customer, agent, representative or other participant, any
business which competes, directly or indirectly, with the Business in the
Market ("Competitive Business") without regard to (A) whether the
Competitive Business has its office, manufacturing or other business
facilities within or without the Market, (B) whether any of the activities
of the Shareholder referred to above occur or are performed within or
without the Market or (C) whether the Shareholder resides, or reports to an
office, within or without the Market; provided, however, that (x) the
Shareholder may, anywhere in the Market, directly or indirectly, in one or
a series of transactions, own, invest or acquire an interest in up to five
percent (5%) of the capital share of a corporation whose capital share is
traded publicly, or that (y) such Shareholder may accept employment with a
successor company to the Company. For the avoidance of doubt, a Competitive
Business shall not include a shipping company that leases, finances, sells
and/or manages shipping containers solely for itself and not for any third
party. Furthermore, a Shareholder shall not be deemed to be engaged in a
Competitive Business if he is employed at a company that is not engaged in
a Competitive Business but which has a sister company that is engaged in a
Competitive Business if the Shareholder has no involvement, direct or
indirect, in the sister company whatsoever.
(c) Non-Solicitation. If a Shareholder's employment is terminated,
then such Shareholder shall not for 12 months after termination of
employment (A) directly or indirectly, in one or a series of transactions,
recruit, solicit or otherwise induce or influence any proprietor, partner,
shareholder, member, lender, director, officer, employee, sales agent,
joint venturer, investor, lessor, customer, supplier, agent, representative
or any other Person which has a business relationship with the Company or a
Related Company or had a business relationship with the Company or a
Related Company within the twenty-four (24) month period preceding the date
of the incident in question (other than a customer or supplier who has a
business relationship with the Shareholder's new employer (if any)), to
discontinue, reduce or modify such employment, agency or business
relationship with the Company or a Related Company, or (B) employ or seek
to employ or cause any Competitive Business to employ or seek to employ any
Person who is then (or was at any time within twelve (12) months prior to
the date such Shareholder or the Competitive Business employs or seeks to
employ such Person) employed or retained by the Company or a Related
Company. Notwithstanding the foregoing, nothing herein shall prevent such
Shareholder from providing a letter of recommendation to an employee with
respect to a future employment opportunity.
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(d) Non-Disclosure. Each Shareholder further agrees, that during and
after his employment with the Company or a Related Company, such
Shareholder will not, directly or indirectly in one or a series of
transactions disclose to any Person or use or otherwise exploit for such
Shareholder's own benefit or for the benefit of anyone other than the
Company or its subsidiaries any Confidential Information (as defined below)
whether prepared by such Shareholder or not, provided, however, that any
Confidential Information may be disclosed to officers, representatives,
employees and agents of the Company or its Related Companies who need to
know such Confidential Information in order to perform the services or
conduct the operations required or expected of them in the Business. Each
Shareholder shall use his best efforts to prevent the removal of any
Confidential Information from the premises of the Company or its Related
Companies, except as required in his normal course of employment by the
Company or its subsidiaries. During the Term of employment, each
Shareholder shall use such Shareholder's commercially reasonable efforts to
cause all Persons to whom Confidential Information shall be disclosed by
such Shareholder hereunder to observe the terms and conditions set forth
herein as though each such Person or entity was bound hereby. After the
term of employment, the Shareholder shall not disclose Confidential
Information other than to his advisors, representatives and agents who
execute a confidentiality agreement whereby they will agree to observe the
confidentiality terms and conditions set forth herein. Each Shareholder
shall have no obligation hereunder to keep confidential any Confidential
Information if and to the extent disclosure of any thereof is specifically
required by law; provided, however, that in the event disclosure is
required by applicable law, such Shareholder shall provide the Company with
prompt notice of such requirement to the extent allowed by law, prior to
making any disclosure, so that the Company may seek an appropriate
protective order. At the request of the Company, each Shareholder agrees to
deliver to the Company all Confidential Information which such Shareholder
may possess or control. Each Shareholder agrees that all Confidential
Information of the Company and Related Companies (whether now or hereafter
existing) conceived, discovered or made by him during his employment with
the Company or its Related Companies exclusively belongs to the Company and
its direct and indirect subsidiaries (and not to such Shareholder). Each
Shareholder will promptly disclose such Confidential Information to the
Company and its Related Companies and perform all actions reasonably
requested by the Company and its Related Companies to establish and confirm
such exclusive ownership. As used herein, the term "Confidential
Information" means any confidential information including, without
limitation, any study, data, calculations, software storage media or other
compilation of information, patent, patent application, copyright,
trademark, trade name, service ▇▇▇▇, service name, trade secrets, supplier
lists and contacts, customer lists and contacts, the fact of and terms of
(including without limitation, pricing terms) supplier, customer or
consultant contracts, pricing policies, business techniques, operational
methods, marketing plans or strategies, product development techniques or
plans, business acquisition plans or any portion or phase of any scientific
or technical information, discoveries, designs, computer programs
(including source of object codes), processes, procedures, formulas,
improvements or other proprietary or intellectual property of the Company
or its subsidiaries, whether or not in written or tangible form, and
whether or not registered, and including all files, records, manuals,
books, catalogues, memoranda, notes, summaries, plans, reports, records,
documents and other evidence thereof. The term "Confidential Information"
does not include, and there shall be no obligation hereunder with respect
to, information that becomes generally available to the public other than
as a result of a disclosure by such Shareholder that is prohibited
hereunder.
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(e) Non-Disparagement. Each Shareholder agrees that during and after
his employment with the Company or a Related Company, he shall not make any
false, defamatory or disparaging statements about the Company or its
Related Companies or the officers or directors of the Company or its
Related Companies. During and after each Shareholder's employment with the
Company or its Related Companies, the Company agrees on behalf of itself
and its Related Companies that neither the officers nor the directors of
the Company or its Related Companies shall make any false, defamatory or
disparaging statements about such Shareholder.
(f) Specific Performance. All the parties hereto agree that their
rights under this Section 9 are special and unique and that violation
thereof would not be adequately compensated by money damages and each
grants the others the right to specifically enforce (including injunctive
relief where appropriate) the terms of this Agreement.
10. Definitions. Capitalized terms used in this Agreement and not otherwise
defined shall have the meanings set forth below, unless the context requires
otherwise:
(a) "Business" means the business of leasing, financing, selling and
managing shipping containers, chassis and any other business that the
Company engages in during the employment of any Shareholder.
(b) "Commencement Date" means November 3, 2004.
(c) "Market" means any country in the United States of America and
each jurisdiction or other country in which (i) the Business was conducted
by or engaged in by the Company or its subsidiaries or in which the Company
sought to conduct the Business on or prior to the date hereof or (ii) the
Business is conducted by or engaged in by the Company or its subsidiaries
or in which the Company seeks to conduct the Business at any time during
the Shareholder's employment by the Company or its subsidiaries.
(d) "Person" means an individual, a corporation, limited liability
company, association, partnership, joint venture, organization, business,
trust, or any other entity or organization, including a government or any
subdivision or agency thereof.
(e) "Related Company" means all direct and indirect subsidiaries of
the Company.
(f) "Sale", "sell", "transfer" and the like include any disposition by
way of transfer, with or without consideration, to any Person for any
purpose and shall include, but shall not be limited in any way to,
redemption by the Company, private or public sale or exchanges of
securities or any other similar transaction involving share.
11. [Intentionally Omitted]
12. Shareholder Acknowledgement. Each Shareholder acknowledges and agrees
that the provisions of this Agreement have been reviewed and are understood by
such Shareholder, and expresses the will and intention of such Shareholder and
agrees not to take any action to frustrate the purposes and provisions of this
Agreement.
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13. Defense of Claims. Each Shareholder agrees that, for the period
beginning on the date hereof, and continuing for a reasonable period after
termination of employment with the Company or its Related Companies, Shareholder
will cooperate with the Company in defense of any claims that may be made
against the Company and its Related Companies and affiliates (other than any
claims made by the Shareholder), and will cooperate with the Company in the
prosecution of any claims that may be made by Company and its Related Companies
(other than any claims made against the Shareholder), to the extent that such
claims may relate to services performed by the Shareholder for the Company and
its Related Companies and affiliates. Each Shareholder agrees to promptly inform
the Company if he becomes aware of any lawsuits involving such claims that may
be filed against the Company and its Related Companies and affiliates. The
Company agrees to reimburse Shareholder for all of Shareholder's reasonable
out-of-pocket expenses associated with such cooperation, including travel
expenses. For periods during and following Shareholder's employment with the
Company or any Related Company, the Company agrees to provide reasonable
compensation to Shareholder for such cooperation in addition to reimbursement of
expenses and his reasonable attorneys' fees, if any.
14. Miscellaneous.
(a) The rights and obligations contained in this Agreement are in
addition to the relevant provisions of the organizational documents of the
Company in force from time to time and shall be construed to comply with
such provisions. To the extent that this Agreement is determined to be in
contravention of the organizational documents of the Company, this
Agreement shall constitute a waiver by each Shareholder, to the fullest
extent permissible under applicable laws, of any right such Shareholder may
have pursuant to the organizational documents of the Company that is
inconsistent with this Agreement.
(b) This Agreement may be amended only by a written instrument duly
executed by Shareholders holding greater than 50.1% of the Shares held by
the Shareholders and the Company.
(c) 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.
(d) The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Shares and to any and all equity or
debt securities of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets, or otherwise) which may
be issued in respect of, in exchange for, or in substitution of, such
equity or debt securities and shall be appropriately adjusted for any share
dividends, bonus issues, splits, reverse splits, combinations,
subdivisions, reclassifications, recapitalizations, reorganizations and the
like occurring after the date hereof.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
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STATE OF NEW YORK. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT
IN THE EVENT OF ANY BREACH OF THIS AGREEMENT, THE NON-BREACHING PARTY WOULD
BE IRREPARABLY HARMED AND COULD NOT BE MADE WHOLE BY MONETARY DAMAGES, AND
THAT, IN ADDITION TO ANY OTHER REMEDY TO WHICH THEY MAY BE ENTITLED AT LAW
OR IN EQUITY, THE PARTIES SHALL BE ENTITLED TO SUCH EQUITABLE OR INJUNCTIVE
RELIEF AS MAY BE APPROPRIATE. THE CHOICE OF FORUM SET FORTH IN THIS SECTION
14 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OF A NEW
YORK FEDERAL OR STATE COURT, OR THE TAKING OF ANY ACTION UNDER THIS
AGREEMENT TO ENFORCE SUCH A JUDGMENT, IN ANY OTHER APPROPRIATE
JURISDICTION.
(f) IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES ANY LITIGATION,
PROCEEDING OR OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING TO THIS
AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED
HEREIN OR THEREIN, THE PARTIES TO THIS AGREEMENT HEREBY (1) AGREE UNDER ALL
CIRCUMSTANCES ABSOLUTELY AND IRREVOCABLY TO INSTITUTE ANY LITIGATION,
PROCEEDING OR OTHER LEGAL ACTION IN A COURT OF COMPETENT JURISDICTION
LOCATED WITHIN THE SOUTHERN DISTRICT OF NEW YORK, WHETHER A STATE OR
FEDERAL COURT; (2) AGREE THAT IN THE EVENT OF ANY SUCH LITIGATION,
PROCEEDING OR ACTION, SUCH PARTIES WILL CONSENT AND SUBMIT TO THE PERSONAL
JURISDICTION OF ANY SUCH COURT DESCRIBED IN CLAUSE (1) OF THIS SECTION AND
TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE WITH THE RULES AND STATUTES
GOVERNING SERVICE OF PROCESS (IT BEING UNDERSTOOD THAT NOTHING IN THIS
SECTION SHALL BE DEEMED TO PREVENT ANY PARTY FROM SEEKING TO REMOVE ANY
ACTION TO A FEDERAL COURT IN THE SOUTHERN DISTRICT OF NEW YORK; (3) AGREE
TO WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT THEY MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, PROCEEDING OR
ACTION IN ANY SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ACTION
WAS BROUGHT IN ANY INCONVENIENT FORUM; (4) AGREE, AFTER CONSULTATION WITH
COUNSEL, TO WAIVE ANY RIGHTS TO A JURY TRIAL TO RESOLVE ANY DISPUTES OR
CLAIMS RELATING TO THIS AGREEMENT; (5) AGREE TO DESIGNATE, APPOINT AND
DIRECT AN AUTHORIZED AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ANY AND ALL
PROCESS AND DOCUMENTS IN ANY LEGAL PROCEEDING IN THE SOUTHERN DISTRICT OF
NEW YORK; (6) AGREE TO PROVIDE THE OTHER PARTIES TO THIS AGREEMENT WITH THE
NAME, ADDRESS AND FACSIMILE NUMBER OF SUCH AGENT; (7) AGREE AS AN
ALTERNATIVE METHOD OF SERVICE TO SERVICE OF PROCESS IN ANY LEGAL PROCEEDING
BY MAILING OF COPIES THEREOF TO SUCH PARTY AT ITS ADDRESS SET FORTH HEREIN
FOR COMMUNICATIONS TO SUCH PARTY; (8) AGREE THAT ANY SERVICE MADE AS
PROVIDED HEREIN SHALL BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
AND (9) AGREE THAT NOTHING HEREIN SHALL AFFECT THE RIGHTS OF ANY PARTY TO
EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. TO THE
EXTENT PERMITTED BY LAW IN CONNECTION WITH OR RELATING TO THIS AGREEMENT,
ANY RELATED AGREEMENT OR ANY
12
MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN, AND AGREE TO TAKE ANY
AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH WAIVER.
(g) All personal pronouns used in this Agreement, whether used in
masculine, feminine or neuter gender, shall include all other genders if
the context so requires; the singular shall include the plural, and vice
versa.
(h) 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. If the requirements of this
Agreement have otherwise been met, new Shareholders may become parties to
this Agreement by executing a counterpart to this Agreement at which time
the Company shall revise the Exhibits as may be necessary or appropriate.
(i) In case any one or more of the provisions or parts of a provision
contained in this Agreement shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other
provision or part of a provision of this Agreement or any other
jurisdiction, but this Agreement shall be reformed and construed in any
such jurisdiction as if such invalid or illegal or unenforceable provision
or part of a provision had never been contained herein and such provision
or part shall be reformed so that it would be valid, legal and enforceable
to the maximum extent permitted in such jurisdiction.
(j) This Agreement and the other agreements entered into on the date
hereof in connection with this Agreement supersede all prior agreements
between the parties with respect to the subject matter thereof and
constitute a complete and exclusive statement of the terms of the
agreements among the parties with respect to the subject matter thereof.
(k) Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as are
necessary to effectuate the terms and purposes of this Agreement.
(l) Whenever notice is required to be given by any party hereunder,
such notice shall be deemed sufficient when delivered to the Company at its
address above and to each of the other Shareholders at such Shareholder's
address set forth on Exhibit 1 hereto or to such other address as the
Shareholder shall have furnished to the Company.
(m) Each party shall be entitled to rely conclusively upon any notice
received, or the failure to receive any notice, from any other party with
respect to rights and obligations under this Agreement.
15. Receipt of Share Certificates. Each Shareholder herewith acknowledges
receipt of the certificate(s) evidencing the Shares purchased by such
Shareholder.
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the undersigned has signed this Agreement as of
the date first above written.
TAL INTERNATIONAL GROUP, INC.
By:
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Name:
Title:
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CHAND KHAN
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BERND SCHACKIER
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