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EXHIBIT 99.2
STOCKHOLDERS AGREEMENT
DATED MARCH 9, 2005
AMONG
FIDELITY NATIONAL INFORMATION SERVICES, INC.
AND
THE OTHER PARTIES HERETO
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TABLE OF CONTENTS
PAGE
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ARTICLE I REPRESENTATIONS AND WARRANTIES OF THE PARTIES ........... 1
1.1 Representations and Warranties of the Company and Parent ... 1
1.2 Representations and Warranties of the Stockholders ......... 2
ARTICLE II VOTING AGREEMENTS AND COVENANTS ......................... 2
2.1 Election of Directors; Committees .......................... 2
2.2 Voting Required for Action ................................. 5
2.3 Selection Criteria ......................................... 7
2.4 Sponsor Veto ............................................... 7
2.5 Independent Company Management Terms ....................... 8
2.6 Parent Board Representation ................................ 8
ARTICLE III TRANSFERS OF SHARES ..................................... 8
3.1 Restrictions on Transfer of Shares ......................... 8
3.2 Tag-Along Rights ........................................... 9
3.3 Transfers in Violation of Agreement ........................ 10
ARTICLE IV LIQUIDITY RIGHTS ........................................ 10
4.1 Duty to Negotiate; Appraisal ............................... 10
4.2 Exchange Rights ............................................ 13
ARTICLE V TAKE-ALONG RIGHT ........................................ 14
5.1 Take-Along Right ........................................... 14
ARTICLE VI REDEMPTION RIGHTS ....................................... 15
6.1 Redemption of Sponsor Shares ............................... 15
6.2 Redemption Closing ......................................... 16
6.3 Failure to Redeem .......................................... 16
ARTICLE VII PRE-EMPTIVE RIGHTS ...................................... 17
7.1 Issuance of New Shares ..................................... 17
ARTICLE VIII BOARD OBSERVERS AND ACCESS .............................. 18
8.1 Board Representation and Access ............................ 18
8.2 Information Rights ......................................... 20
ARTICLE IX AMENDMENT AND TERMINATION ............................... 21
9.1 Amendment and Waiver ....................................... 21
9.2 Termination of Agreement ................................... 21
9.3 Termination as to a Party .................................. 21
ARTICLE X MISCELLANEOUS ........................................... 21
10.1 Certain Defined Terms ...................................... 21
10.2 Legends .................................................... 26
10.3 Severability ............................................... 27
10.4 Entire Agreement ........................................... 27
10.5 Successors and Assigns ..................................... 27
10.6 Counterparts ............................................... 27
10.7 Remedies ................................................... 28
10.8 Notices .................................................... 28
10.9 Governing Law .............................................. 29
10.10 Descriptive Headings ....................................... 30
10.11 Tax-Free Reorganization .................................... 30
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STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (this "Agreement") is entered into as of
March 9, 2005 by and among (i) Fidelity National Information Services, Inc., a
Delaware corporation (the "Company"), (ii) ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V, L.P.,
▇▇▇▇▇▇ ▇. ▇▇▇ Parallel Fund V, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ Cayman Fund V, L.P., ▇▇▇▇▇▇
▇. ▇▇▇ Investors Limited Partnership, ▇▇▇▇▇▇ Investment Holdings, LLC, ▇▇▇▇▇▇
Investments Employees' Securities Company I, LLC, and ▇▇▇▇▇▇ Investments
Employees' Securities Company II, LLC (each a "THL Holder," collectively,
"THL"), (iii) TPG Partners III, L.P., TPG Parallel III, L.P., TPG Investors III,
L.P., FOF Partners III, L.P., FOF Partners III-B, L.P., TPG Dutch Parallel III,
C.V. and TPG Partners IV, L.P. (each a "TPG Holder," collectively "TPG"), (iv)
Evercore METC Capital Partners II L.P. ("Evercore Holder," or "Evercore"), (v)
Banc of America Capital Investors, L.P. ("BACI Holder", or "BACI"), and (vi)
Fidelity National Financial, Inc. (the "Parent"). Each THL Holder, TPG Holder,
the Evercore Holder and the BACI Holder is referred to herein as a "Sponsor,"
and collectively, the "Sponsors." The Sponsors, the Parent, each member of
management who hereafter (i) exercises options to purchase Common Stock, or (ii)
purchases restricted Common Stock, pursuant to the Company's 2005 Stock
Incentive Plan (the "SIP") and becomes a party hereto (each, a "Management
Holder"), and each other Person that is or may become a party to this Agreement
as contemplated hereby are sometimes referred to herein collectively as the
"Stockholders" and individually as a "Stockholder." Certain capitalized terms
used herein are defined in Section 10.1.
The parties hereto agree as follows:
ARTICLE I
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
1.1 Representations and Warranties of the Company and Parent.Each of
the Company and Parent hereby represent and warrant to each Stockholder (other
than Parent) that as of the date of this Agreement:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware, it has full power and
authority to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby, and the execution, delivery and performance by
it of this Agreement and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action;
(b) this Agreement has been duly and validly executed and delivered
by it and constitutes a legal and binding obligation of the Company or Parent,
as the case may be, enforceable against it in accordance with its terms; and
(c) the execution, delivery and performance by the Company and
Parent of this Agreement and the consummation by the Company and Parent of the
transactions contemplated hereby will not, with or without the giving of notice
or lapse of time, or both, (i) violate any provision of law, statute, rule or
regulation to which the Company or Parent is subject, (ii) violate any order,
judgment or decree applicable to the Company or Parent or (iii)
conflict with, or result in a breach or default under, any term or condition of
the Company's or Parent's organizational documents or any agreement or
instrument to which the Company or Parent is a party or by which it is bound.
1.2 Representations and Warranties of the Stockholders. Each
Stockholder other than Parent (as to himself or itself only) represents and
warrants to the Company and Parent that, as of the time such Stockholder becomes
a party to this Agreement:
(a) it is a corporation duly organized, validly existing and in good
standing under the laws of the State of its state of incorporation, or it is a
limited partnership or a limited liability company duly formed, validly
existing, and in good standing under the Laws of the State of its state of
formation, as the case may be, it has full power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby, and the execution, delivery and performance by it of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate, partnership or limited liability
company action.
(b) this Agreement (or the separate joinder agreement executed by
such Stockholder) has been duly and validly executed and delivered by such
Stockholder, and this Agreement constitutes a legal and binding obligation of
such Stockholder, enforceable against such Stockholder in accordance with its
terms; and
(c) the execution, delivery and performance by such Stockholder of
this Agreement (or any joinder to this Agreement, if applicable) and the
consummation by such Stockholder of the transactions contemplated hereby (and
thereby, if applicable) will not, with or without the giving of notice or lapse
of time, or both, (i) violate any provision of law, statute, rule or regulation
to which such Stockholder is subject, (ii) violate any order, judgment or decree
applicable to such Stockholder or (iii) conflict with, or result in a breach or
default under, any term or condition of any agreement or other instrument to
which such Stockholder is a party or by which such Stockholder is bound.
ARTICLE II
VOTING AGREEMENTS AND COVENANTS
2.1 Election of Directors; Committees.
(a) Each Person, other than the Company, that is a party to this
Agreement hereby agrees that such Person will vote, or cause to be voted, all
voting Shares of the Company over which such Person has the power to vote or
direct the voting, and will take all other necessary or desirable actions within
such Person's control, and the Company will take all necessary or desirable
actions within its control, to cause the authorized number of directors to be
established at up to sixteen (16) directors, and to elect or appoint or cause to
be elected or appointed to the board of directors of the Company (the "Board")
and cause to be continued in office, the following individuals, in each case
subject to the provisions of subparagraph (b) below:
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(i) one (1) director designated by ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund V,
L.P. and one (1) director designated by ▇▇▇▇▇▇ ▇. ▇▇▇ Parallel
Fund V, L.P. (collectively, the "THL Directors"), who shall
initially be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇ and who shall be
such directors so long as they are principals of THL (or
equivalent or higher ranking employees of THL), provided that
any directors replacing the initial THL Directors shall always
be individuals who are principals of THL (or equivalent or
higher ranking employees of THL);
(ii) two (2) directors designated by TPG Partners IV, L.P. (the
"TPG Directors"), who shall initially be ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and who shall be such directors so long as
they are principals of TPG (or equivalent or higher ranking
employees of TPG), provided that any directors replacing the
initial TPG Directors shall always be individuals who are
principals of TPG (or equivalent or higher ranking employees
of TPG); and
(iii) up to twelve (12) directors designated by Parent representing
the proportional amount of Shares held by Parent at the
relevant time (the "Parent Directors"), one of whom shall be
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, subject to the terms of paragraph (c)
below; provided that, it is acknowledged that any number of
the director seats to be filled by the Parent at any time may
remain vacant until such time as the Parent elects to fill
such seats.
(b) If at any time THL or TPG ceases to own at least 50% of the
Shares held by it as of the date hereof (subject to adjustment for stock splits,
combinations and similar events), the number of directors THL or TPG, as the
case may be, is entitled to designate shall be decreased by one. In the event
such decrease results in an undesignated Board seat, the remaining Board members
may designate, by majority vote, a successor director to fill the vacancy
created thereby or decrease the size of the Board by such seats.
(c) The chairman of the Board (the "Chairman") shall be elected by a
majority vote of the Board; provided, however, that ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ shall
serve as the Chairman for an initial period of three (3) years provided he
continues to be employed by the Company as Chief Executive Officer.
(d) The Board shall hold no less than one (1) meeting per fiscal
quarter. At each meeting of the Board (or committee thereof) at which a quorum
is present, each director shall be entitled to one vote on each matter to be
voted on at such meeting. A majority of the Board shall constitute a quorum.
(e) If at any time any director ceases to serve on the Board
(whether due to resignation, removal or otherwise), the Stockholders shall elect
a successor to fill the vacancy created thereby on the terms and subject to the
conditions of paragraphs (a) and (b) above. Each Person that is a party hereto
agrees to vote, or cause to be voted, all voting Shares of the Company over
which such Person has the power to vote or direct the voting, and shall take all
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such other actions as shall be necessary or desirable to cause the designated
successor to be elected to fill such vacancy.
(f) Nothing in this Agreement shall be construed to impair any
rights that the stockholders of the Company may have to remove any director for
cause under applicable law, the certificate of incorporation of the Company, or
the by-laws of the Company, as the case may be. No such removal of an individual
designated pursuant to this Section 2.1 for cause shall affect any of the
Stockholders' rights to designate a different individual pursuant to this
Section 2.1 to fill the position from which such individual was removed.
(g) Each member of the Board shall be entitled to reimbursement from
the Company for his or her reasonable out-of-pocket expenses (including travel)
incurred in attending any Board meeting.
(h) For so long as a Sponsor has any designees on the Board, Parent
shall maintain a directors' and officers' liability insurance policy for
directors and officers of Parent and its Subsidiaries (including the Company),
with coverage of at least $125.0 million of "Side A", "Side B" and "Side C"
coverage (the "Policy"), plus an additional $20.0 million of "Side A" coverage
with terms substantially the same as the terms in effect under the Parent's
policy in effect on the date hereof. In the event that any claims are made under
the Policy such that less than $50 million of coverage remains under the Policy
in any calendar year, Parent agrees to purchase additional "Side A", "Side B"
and "Side C" directors' and officers' liability insurance such that there shall
always be a minimum of $50 million of coverage available to directors and
officers of the Parent and its Subsidiaries. The Company shall indemnify the
directors designated by the Sponsors in accordance with the Company's
certificate of incorporation and each indemnification agreement entered into by
the Company and such director.
(i) There shall be established at all times during the term of this
Agreement a Compensation Committee of the Board (the "Compensation Committee")
which shall be comprised of up to five (5) directors as follows: one (1) of whom
shall be one of the THL Directors, one (1) of whom shall be one of the TPG
Directors and three (3) of whom shall be Parent Directors, provided that, one
(1) of the Parent Directors shall be an independent director selected by Parent
who shall not be an employee of Parent. The Compensation Committee will (i)
determine the compensation of all senior employees and consultants of the
Company (including salary, bonus, equity participation and benefits) consistent
with compensation of companies similar to the Company and (ii) subject to
Section 2.2(a)(vii) hereof, approve the grants of any options or awards under,
or amendments to or replacement of, the SIP and the repurchases of any stock
under the terms of the SIP; provided that no member of the Compensation
Committee may vote on his own compensation or option or award grant. The initial
members of the Compensation Committee shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and two other individuals designated by Parent in
accordance with the provisions in this clause (i).
(j) There shall be established at all times during the term of this
Agreement an Audit Committee of the Board (the "Audit Committee") which shall be
comprised of THL Directors, TPG Directors and Parent Directors representing the
proportional amount of Shares
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held by the Sponsors and Parent, respectively. The Audit Committee shall
determine the Company's audit policies, review audit reports and recommendations
made by the Company's internal audit staff and its independent auditors, meet
with the Company's independent auditors, oversee the independent auditors, and
recommend the Company's engagement of independent auditors.
(k) All other committees that may be established by the Board from
time to time shall be comprised of up to five (5) directors as follows: one (1)
of whom shall be one of the THL Directors, one (1) of whom shall be one of the
TPG Directors and three (3) of whom shall be Parent Directors, provided that,
one (1) of the Parent Directors shall be an independent director selected by
Parent who shall not be an employee of Parent.
2.2 Voting Required for Action.
(a) At any time prior to a Public Offering, the following actions by
the Company or any of its Subsidiaries shall require the approval of (X) the
holders of at least a majority of the Shares then held by THL and its
Transferees, and (Y) the holders of at least a majority of the Shares then held
by TPG and its Transferees (together, the "Major Sponsors"):
(i) the approval of any modification or deviation in excess of (A)
20% with respect to the capital expenditure line item of the
annual operating budget and capital expenditure budget of the
Company and its Subsidiaries from the amounts included in the
three (3) year projections attached hereto as Schedule 1
(unless such increase relates to an acquisition permitted or
approved under Section 2.2(a)(ii)), and (B) 20% of the
aggregate amounts set forth in the annual operating budget and
capital expenditure budget approved by the Board on an annual
basis,
(ii) acquisition, by merger or consolidation, or by purchase of, or
investments in, all or substantially all of the assets or
stock of, any business or any corporation, partnership, joint
venture, limited liability company, association or other
business organization or division thereof, in excess of
$50,000,000 per transaction or series of related transactions,
or in excess of $100,000,000 in the aggregate in any fiscal
year,
(iii) amendments to the certificate of incorporation or bylaws of
the Company or any of its Subsidiaries in a manner which
disproportionately and adversely affects the rights of the
Sponsors or which adversely affect the indemnification or
exculpation of any director of the Company,
(iv) subject to the rights of the Sponsors in Sections 4.1 and 5.1,
any (A) sale of all or substantially all of the assets of, or
liquidation, dissolution or recapitalization of, the Company
or any of its Material Subsidiaries, or (B) change of control
of the Company or a Material Subsidiary, whether through
merger or sale of stock or otherwise, the result of which is
Persons owning voting stock of the Company or such Material
Subsidiary, as the
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case may be, prior to such transaction do not hold more than
50% of the voting stock of the Company or such Material
Subsidiary after giving effect to such transaction,
(v) the incurrence of any indebtedness for borrowed money by the
Company or any of its Subsidiaries in excess of $100,000,000
in the aggregate or the granting of any lien or encumbrance on
the assets or pledge of the capital stock of the Company or
its Subsidiaries (other than indebtedness incurred under, and
liens imposed in connection with the Financing),
(vi) the authorization or issuance, or committing to authorize or
issue, any equity securities of the Company or its
Subsidiaries senior to the Shares (or any replacement
securities) held by the Sponsors as to liquidation preference,
redemption rights or dividend rights,
(vii) any increase in the authorized number of shares of Common
Stock or Common Stock Equivalents issued or to be issued to
employees, officers or directors of, or consultants or
advisors to the Company, pursuant to the SIP or adoption of
any similar incentive or option plan, or any option grant
under the SIP in excess of 16,378,379 shares or the making of
any restricted stock awards under the SIP in excess of the
initial 2,500,000 aggregate share award contemplated by
Section 2.7 hereof,
(viii)entering into any contract or transaction (other than an
Exempted Arrangement) which involves payments by any party of
more than $500,000 annually in the aggregate, between the
Company and any of its Subsidiaries on the one hand and any
Stockholder or its Affiliates or any Related Parties on the
other,
(ix) in the event an employee of the Company is terminated without
Cause (as defined in the SIP), exercising any call right under
the SIP to repurchase Common Stock or Common Stock Equivalents
from such employee if the aggregate purchase price paid to
employees for the repurchase of shares pursuant to the SIP
within the prior 12 months (including the current repurchase )
exceeds $15,000,000,
(x) any Public Offering that is not a Qualified Public Offering,
or
(xi) any (A) commencement of a case, proceeding or other action (1)
under any existing or future law of any jurisdiction, domestic
or foreign, relating to bankruptcy, insolvency, reorganization
or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (2)
seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any
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substantial part of its assets, or (B) making of a general
assignment for the benefit of its creditors.
(xii) the amendment or modification, in a manner adverse to the
Sponsors, of the commission percentage payable to any of the
Company's Subsidiaries pursuant to the Issuing Agency
Agreements by and among the Company's Subsidiaries and each of
Chicago Title Insurance Company and LSI Title Agency, Inc.
(b) The Company agrees to provide each of the Sponsors written
notice of any proposed action that is approved or denied by the Major Sponsors
pursuant to Section 2.2(a) within 10 business days following such approval or
denial, as the case may be, which notice shall include a brief summary of the
action taken by the Major Sponsors.
2.3 Selection Criteria. In the event that the Board determines to
appoint a new Chief Executive Officer, Chief Financial Officer or Chief
Operating Officer (or equivalent position) at any time or times, the Company
shall select persons for such positions who meet criteria agreed to in advance
by the Board in consultation with the Major Sponsors.
2.4 Sponsor Veto.
(a) Each time the Board proposes to replace the Chief Executive
Officer, Chief Financial Officer or Chief Operating Officer, the Major Sponsors,
for bona fide, good faith reasons, communicated in writing in reasonable detail
by the Major Sponsors within a reasonable time after the Company notifies the
Major Sponsors of the identity of a proposed replacement candidate, shall have
the right to veto the selection of two such proposed candidates for Chief
Executive Officer, two such proposed candidates for Chief Financial Officer and
two such proposed candidates for Chief Operating Officer of the Company (each
such candidate, a "Candidate").
(b) In the event the Major Sponsors have already vetoed two
Candidates for any of such positions, the Major Sponsors will have the right to
veto a third Candidate for such position so long as the Major Sponsors withdraw
their veto and waives their veto rights with respect to one of the previously
vetoed Candidates, and the Company will have the right to appoint to such
position the Candidate for whom the veto was withdrawn.
(c) Notwithstanding anything in this Section 2.4 to the contrary:
(i) a simple majority of the Board may appoint an interim Chief
Executive Officer, Chief Financial Officer or Chief Operating
Officer to serve for a term not to exceed (unless otherwise
agreed in writing by the Sponsor Group) 120 calendar days (the
"Interim Term"); and
(ii) a simple majority of the Board may extend the Interim Term by
successive increments of 60 calendar days until a Chief
Executive Officer, Chief Financial Officer or Chief Operating
Officer is appointed, so long as the
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Company is proceeding in good faith with the process set forth
in this Section 2.4.
2.5 Independent Company Management Terms. The Company will use
reasonable best efforts to put in place within a reasonable time after the date
hereof a senior management team at the Company (including a chief legal officer
and chief operating officer) composed of managers who are not employed by, or
serve as directors of, Parent (other than ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
who will be employed by both Parent and the Company).
2.6 Parent Board Representation. Parent will use reasonable best
efforts to have ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ nominated and elected to Parent's Board of
Directors.
2.7 2005 Stock Incentive Plan. Promptly following the Closing Date,
the Company intends to offer to certain key employees set forth on a schedule
previously delivered to the Sponsors stock awards under the SIP covering an
aggregate of 2,500,000 shares of Common Stock, at a purchase price per share of
$10 each. Each person offered such an award will have until the date (the
"Cut-Off Date") that is 60 days after the Closing Date to accept the award by
returning a signed copy of the award agreement, payment for the shares and a
counterpart signature page to this Agreement. The making of any (i) restricted
stock award under the SIP in excess of the initial 2,500,000 shares referred to
above shall, and (ii) stock option award under the SIP in excess of the initial
16,378,379 shares reserved in the SIP, shall require consent in accordance with
Section 2.2(a).
ARTICLE III
TRANSFERS OF SHARES
3.1 Restrictions on Transfer of Shares.
(a) Prior to the completion of the Company's first Public Offering,
no Stockholder may Transfer any Shares, except in an Exempt Transfer or
otherwise in accordance with the applicable terms of this Agreement.
(b) No Transfer of any Shares by any Stockholder shall become
effective unless and until the Transferee (unless such Transferee already is
party to this Agreement) executes and delivers to the Company a counterpart to
this Agreement, agreeing to be treated in the same manner as the transferring
Stockholder. Upon such Transfer and such execution and delivery, the Transferee
acquiring Transferred Shares shall be bound by, and entitled to the benefits of,
this Agreement in the same manner as the transferring Stockholder; provided that
no Transferee of a Sponsor (other than pursuant to the second sentence of the
definition of an Exempt Transfer) shall be entitled to any of the rights of the
Sponsor set forth in this Agreement (or the benefits hereunder) other than
Section 3.2, Article VII, Article VI, Section 8.2, Article IX and Article X
hereof. Any attempted Transfer of Shares by any Stockholder not in accordance
with this Section 3.1 shall not be effective and shall be void.
(c) No Shares may be transferred by a Stockholder (other than
pursuant to an effective registration statement under the Securities Act)
unless, if requested by the Company, such Stockholder first delivers to the
Company an opinion of counsel, which opinion and counsel
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shall be reasonably satisfactory to the Company, to the effect that such
Transfer is not required to be registered under the Securities Act.
3.2 Tag-Along Rights.
(a) At any time after the date of this Agreement, if any Sponsor or
Parent (the "Selling Holder") proposes to Transfer any Shares, the Selling
Holder shall, before such Transfer:
(i) Deliver to the Company and to the other Stockholders (the
"Other Holders") at least thirty (30) days prior written
notice of such proposed Transfer (the "Sale Notice") and the
terms of such Transfer, including (A) the number of Shares to
which the Transfer relates (the "Offered Shares"), (B) the
name and address of the proposed Transferee, (C) the proposed
amount and type of consideration (including, if the
consideration consists in whole or in part of non-cash
consideration, such information available to the Selling
Holder as may be reasonably necessary for the other
Stockholders to properly analyze the economic value and
investment risk of such non-cash consideration) and the terms
and conditions of payment proposed by the Selling Holder.
(ii) Any of the Other Holders may, within twenty-five (25) days of
the receipt of the Sale Notice, give written notice (each, a
"Tag-Along Notice") to the Selling Holder that such Other
Holder wishes to participate in such proposed Transfer upon
the terms and conditions set forth in the Sale Notice, which
Tag-Along Notice shall specify the Shares such Other Holder
desires to include in such proposed Transfer; provided,
however, that (1) each Other Holder shall be required, as a
condition to being permitted to sell Shares pursuant to this
Section 3.2(a) in connection with a Transfer of Offered
Shares, to sell a number of shares equal to the product of its
Pro Rata Amount and the number of Offered Shares, (2) to
exercise its tag-along rights hereunder, each Other Holder
must agree to make to the Transferee on behalf of itself the
same representations, warranties, covenants, indemnities and
agreements as the Selling Holder agrees to make in connection
with the Transfer of the Offered Shares (except that in the
case of representations and warranties pertaining specifically
to, or covenants made specifically by, the Selling Holder, the
Other Holders shall make comparable representations and
warranties pertaining specifically to (and, as applicable,
covenants by) themselves), and must agree to bear its ratable
share (which shall be proportionate based on the value of
Shares that are Transferred) of all liabilities to the
Transferees arising out of representations, warranties (other
than those representations, warranties and covenants that
pertain specifically to a given Stockholder), covenants,
indemnities or other agreements made in connection with the
Transfer. Each Stockholder will bear (x) its own costs of any
sale of Shares pursuant to this Section 3.2(a) and (y) its
pro-rata
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share (based upon the relative amount of Shares sold) of any
of the other costs of any reasonable and customary sale of
Shares pursuant to this Section 3.2(a) to the extent such
costs are incurred for the benefit of all Stockholders and are
not otherwise paid by the Transferee.
(b) If none of the Other Holders gives the Selling Holder a
Tag-Along Notice prior to the expiration of the 25-day period for giving
Tag-Along Notices with respect to the Transfer proposed in the Sale Notice, then
(notwithstanding this Section 3.2(a)) the Selling Holder may Transfer such
Offered Shares on the terms and conditions set forth, and to or among any of the
Transferees identified (or Affiliates of Transferees identified), in the Sale
Notice at any time within ninety (90) days after expiration of the 25-day period
for giving Tag-Along Notices with respect to such Transfer. Any such Offered
Shares not Transferred by the Selling Holder during such 90-day period will
again be subject to the provisions of this Section 3.2 upon subsequent Transfer.
If one or more Other Holders give the Selling Holder a timely Tag-Along Notice,
then the Selling Holder shall use all reasonable efforts to obtain the agreement
of the prospective Transferee(s) to the participation of the Other Holders in
any contemplated Transfer, on the same terms and conditions as are applicable to
the Offered Shares, and no Selling Holder shall transfer any of its shares to
any prospective Transferee if such prospective Transferee(s) declines to allow
the participation of any of the Other Holders.
(c) The rights and restrictions contained in Section 3.2(a) shall
not apply with respect to any Exempt Transfer, except Exempt Transfers pursuant
to this Section 3.2.
3.3 Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Shares in violation of any provision of this Agreement shall be
void, and the Company shall not record such Transfer on its books or treat any
purported transferee of such Shares as the owner of such Shares for any purpose.
ARTICLE IV
LIQUIDITY RIGHTS
4.1 Duty to Negotiate; Appraisal.
(a) If the Sponsors shall have cooperated with the Company in its
efforts to consummate a Qualified Public Offering but the Company has not
consummated a Qualified Public Offering prior to the second anniversary of the
Closing Date, then, at any time thereafter, the holders of 75% of the Sponsor
Shares (together, the "Sponsor Group") may give notice (the "Transfer Notice")
to Parent that the Sponsors desire to sell their Shares to Parent. For a period
of 30 days from the date of the Transfer Notice, each party will negotiate in
good faith regarding a sale of all the Sponsor Shares to the Parent or the
Company. If the parties are unable to agree upon the terms of a sale of the
Sponsor Shares to the Parent or the Company within such 30-day period, then the
Sponsor Group may elect to initiate the Appraisal Process to determine the
Appraisal Price (the "Election"). Any Appraisal Process shall be initiated by
the Sponsor Group by delivering to Parent and the Company the report of the
first appraiser.
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(b) If, following the first Appraisal Process, the Sponsor Group is
not satisfied in its sole discretion, with the Appraisal Price (which
determination it shall make within fifteen (15) days of completion of the
Appraisal Process), then it may elect (the "Second Election") to initiate the
Appraisal Process a second time; provided that the Sponsor Group may not make a
Second Election within 12 months of the Election. If, following the second
Appraisal Process, the Sponsor Group is not satisfied in its sole discretion,
with the Appraisal Price (which determination it shall make within fifteen (15)
days of completion of the Appraisal Process), then it may elect to initiate the
Appraisal Process a third time (the "Third Election"), provided that, the
Sponsor Group may not make a Third Election within 12 months of the Second
Election. The Sponsor Group may not initiate the Appraisal Process more than
three times.
(c) If, following any Appraisal Process, the Sponsor Group is
satisfied, in its sole discretion, with the Appraisal Price, the Sponsor Group
shall so notify the Parent and the Company and the Parent or the Company may
elect, within fifteen (15) days of receipt of notice of the Sponsor Group's
approval of the Appraisal Price, in its sole discretion, to purchase for cash
all but not less than all of the Sponsor Shares from the Sponsors at the
Appraisal Price by sending written notice to the Sponsors, and, in such event,
the Sponsors shall sell all but not less than all of the Sponsor Shares to the
Company and/or Parent. The closing of the purchase of the Shares from the
Sponsors by the Company and/or Parent pursuant to this Section 4.1(c) shall
occur no later than 30 days after notice of the Company or Parent's election to
purchase.
(d) If the Sponsor Group, in its sole discretion, has approved an
Appraisal Price, but the Company and Parent elect not to purchase the Sponsors'
Shares or fail to make an election within the 15-day time period referenced in
clause (c) above, then the Sponsor Group shall have the right to compel a Sale
of the Company pursuant to Section 4.1(e) (the "Sale Process").
(e) In accordance with Section 4.1(d) above, the Sponsor Group may
elect to compel a Sale of the Company in accordance with the provisions of this
Section 4.1(e) by providing written notice thereof to the Company.
(i) The Stockholders and the Company promptly after receiving such
notice will take, under the direction of the Sponsor Group,
all actions reasonably necessary or desirable and will use
their reasonable best efforts to cause the consummation of
such Sale of the Company (and, as used in this Section 4.1, if
structured as a stock sale, a sale of 100% of the outstanding
stock of the Company) at the highest value reasonably
available. Without limiting the foregoing, (i) each of Parent
and the Company shall provide each of the Sponsors with prompt
notice regarding any and all approvals, consents,
notifications, waivers and other legal requirements applicable
to it and necessary for the consummation of the proposed Sale
of the Company, and shall use its reasonable best efforts to
obtain all such approvals, consents, notifications and
waivers, and comply with all such other legal requirements in
a timely fashion, (ii) the Company shall hire an investment
bank (chosen by the Sponsor Group, but reasonably acceptable
to the Company) to identify potential buyers, conduct an
auction process
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and otherwise facilitate a Sale of the Company, (iii) subject
to the provisions of 4.1(e)(ii), if the proposed Sale of the
Company is structured as a sale of assets or a merger or
consolidation, or otherwise requires equityholder approval,
subject to the approval of the terms of such proposed Sale of
the Company by the Sponsor Group, in its sole discretion, the
Stockholders and the Company will vote or cause to be voted
all Shares that they hold or with respect to which such
Stockholder has the power to direct the voting and which are
entitled to vote on such transaction in favor of such
transaction and will waive any appraisal rights which they may
have in connection therewith, and (iv) subject to the
provisions of 4.1(e)(ii) and to the approval of the Sale of
the Company by the Sponsor Group, in its sole discretion, if
the proposed Sale of the Company is structured as or involves
a sale or redemption of Shares, the Stockholders will agree to
sell all but not less than all of their Shares on the terms
and conditions approved by such Sponsor Group, and the
Stockholders and the Company will execute any merger, asset
purchase, security purchase, recapitalization or other sale
agreement approved by such Sponsor Group (the "Definitive Sale
Agreements"), and will make to the buyer the same
representations, warranties, covenants, indemnities and
agreements (other than non-competition agreements) as the
Sponsor Group makes in connection with such Sale of the
Company (except that in the case of representations and
warranties pertaining specifically to, or covenants made
specifically by, any Sponsor, the other Stockholders shall
make comparable representations and warranties pertaining
specifically to (and, as applicable, covenants by)
themselves), and must agree to bear their ratable share (which
shall be proportionate based on the value of Shares that are
being sold in such Sale of the Company) of all liabilities of
the Stockholders arising out of representations, warranties
(other than those representations, warranties, covenants,
indemnities and agreements that pertain specifically to a
given Stockholder), covenants, indemnities or other agreements
made in the Definitive Sale Agreements.
(ii) The obligations of the Stockholders with respect to the Sale
of the Company are subject to the satisfaction of the
following conditions: (A) upon the consummation of the Sale of
the Company, all of the holders of a particular class or
series of Shares shall receive the same form and amount of
consideration per share, or amount of Shares, or if any
holders of a particular class or series of Shares are given an
option as to the form and amount of consideration to be
received, all holders of such class or series will be given
the same option, (B) all holders of vested and exercisable
rights to acquire a particular class or series of Shares will
be given an opportunity to either (1) exercise such rights
prior to the consummation of the Sale of the Company and
participate in such sale as holders of such Shares or (2) upon
the consummation of the Sale of the Company, receive in
exchange for such rights consideration equal to the amount
determined by multiplying (x) the same amount of consideration
per share, or amount
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of Shares received by the holders of such type and class of
Shares in connection with the Sale of the Company less the
exercise price per share, or amount of such rights to acquire
such Shares by (y) the number of shares, or aggregate amount
of Shares represented by such rights, and (C) in no event
shall the aggregate liability of any Stockholder for
representations, warranties, covenants, indemnities or
agreements (other than with respect to such Stockholder's
ownership of its Shares or ability to consummate the transfer
thereof) with respect to any Sale of the Company exceed the
proceeds received by such Stockholder in such Sale of the
Company.
(iii) Each Stockholder will bear its or his pro-rata share (based
upon the relative amount of Shares sold) of the reasonable and
customary costs of any Sale of the Company to the extent such
costs are incurred for the benefit of all Stockholders and are
not otherwise paid by the Company or the acquiring party.
(iv) In no event will the auction process take more than 180 days
(the "Auction Period"), unless Definitive Sale Agreements have
been entered into prior to the end of the Auction Period.
Unless Definitive Sale Agreements have previously been
executed, the Sponsor Group shall have the right to terminate
the Sale Process at any time during the Auction Period in its
sole discretion (the "Sale Termination Right"). If (i) the
Sponsor Group exercises the Sale Termination Right, or (ii)
the Sale of the Company as contemplated by the Definitive Sale
Agreements is not consummated (unless the failure to
consummate is the result of a breach of the Definitive
Agreements by a member of the Sponsor Group), then, at any
time on or after 6 months after the date on which the Sponsor
Group exercised the Sale Termination Right or the Definitive
Sale Agreements terminated in accordance with their terms, as
the case may be, the Sponsor Group may, again initiate their
liquidity rights under this Article IV (commencing with
Section 4.1(a)), subject to the terms of Section 4.1(b). If,
(i) at the end of the Auction Period, there is no good faith,
bona fide offer to acquire the Company, or (ii) the
shareholders of Parent have the right to approve the Sale of
the Company and vote against such transaction, then, the
Sponsor Group may, in its sole discretion, either (i) exercise
the exchange rights described in Section 4.2, or (ii) again
and at any time initiate their liquidity rights under this
Article IV (commencing with Section 4.1(a)), subject to the
terms of Section 4.1(b).
4.2 Exchange Rights.
If a Sale of the Company does not occur in accordance with the provisions
of Section 4.1(e), then the Sponsor Group may elect to cause the exchange of
all, but not less than all, of the Sponsor Shares for shares of common stock of
Parent, the resale of which by Sponsors shall be registered on Form S-3 or any
successor form, to the extent such form is available to the Parent
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at such time, based upon the Appraisal Price of the Sponsor Shares pursuant to a
new Appraisal Process (which shall not count towards the limits in Section
4.1(b)) initiated at the time the Sponsor Group elects to exercise the exchange
rights hereunder and the fair market value of the Parent's common stock
determined by the average closing price of the Parent's common stock for the
45-day trading period immediately prior to the date of the exchange for Parent
common stock (the "Exchange"). To the extent the number of shares to be received
by Sponsors at the Appraisal Price constitutes more than 19.9% of the
outstanding capital stock of Parent (as determined pursuant to the rules of the
New York Stock Exchange), then each Sponsor will receive the balance in cash as
a pro rata portion of the Appraisal Price. Upon written notice to Parent, the
Company and the other Sponsors of the Sponsor Group's election to consummate
such Exchange (the "Exchange Notice"), each of Parent and the Company shall (i)
provide each Sponsor with prompt notice regarding any and all approvals,
consents, notifications, waivers, filings, amendments and other legal
requirements applicable to it and necessary for the consummation of the proposed
Exchange, and shall use their reasonable best efforts to obtain all such
approvals, consents, notifications, waivers, filings and amendments and shall
comply with all such other legal requirements in a timely fashion, and (ii) take
all other actions reasonably necessary or desirable and use their reasonable
best efforts to cause the consummation of the Exchange. In no event shall any
Sponsor be required to make any representations, warranties, covenants,
indemnities or agreements (other than representations and indemnities with
respect to such Sponsor's ownership of its Shares, its ability to consummate the
Exchange and investment representations required under applicable securities
laws) in connection with any Exchange.
ARTICLE V
TAKE-ALONG RIGHT
5.1 Take-Along Right.
(a) If the Sponsor Group and Parent, acting together, elect to
consummate, or to cause the Company to consummate, a transaction constituting a
Sale of the Company, the Sponsor Group and Parent shall notify the Company and
the other Stockholders in writing of that election, the other Stockholders will
consent to and raise no objections to the proposed transaction, and the
Stockholders and the Company will take all other actions reasonably necessary or
desirable to cause the consummation of such Sale of the Company on the terms
proposed by Sponsor Group and Parent. Without limiting the foregoing, (i) if the
proposed Sale of the Company is structured as a sale of assets or a merger or
consolidation, or otherwise requires Stockholder approval, the Stockholders and
the Company will vote or cause to be voted all Shares that they hold or with
respect to which such Stockholder has the power to direct the voting and which
are entitled to vote on such transaction in favor of such transaction and will
waive any appraisal rights which they may have in connection therewith and (ii)
if the proposed Sale of the Company is structured as or involves a sale or
redemption of Shares, the Stockholders will agree to sell their pro-rata share
of the Shares being sold in such Sale of the Company on the terms and conditions
approved by the Sponsor Group and Parent, and the Stockholders will execute any
Definitive Sale Agreements, and will make to the buyer the same representations,
warranties, covenants, indemnities and agreements (other than non-competition
agreements) as the Sponsors make in connection with such Sale of the Company
(except that in the case of representations and warranties pertaining
specifically to, or covenants made specifically by, any
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Sponsor, the other Stockholders shall make comparable representations and
warranties pertaining specifically to (and, as applicable, covenants by)
themselves), and must agree to bear their ratable share (which shall be
proportionate based on the value of Shares that are being sold in such Sale of
the Company) of all liabilities of the Stockholders arising out of
representations, warranties (other than those representations, warranties,
covenants, indemnities and agreements that pertain specifically to a given
Stockholder), covenants, indemnities or other agreements made in the Definitive
Sale Agreements.
(b) The obligations of the Stockholders with respect to the Sale of
the Company are subject to the satisfaction of the following conditions: (i)
upon the consummation of the Sale of the Company, all of the holders of Shares
shall receive the same form and amount of consideration per Share, or if any
holders of a particular class or series of securities are given an option as to
the form and amount of consideration to be received, all holders of such class
or series will be given the same option, (ii) all holders of rights without
regard to vesting or exercise restrictions to acquire a particular class or
series of securities will be given an opportunity to either (A) exercise such
rights prior to the consummation of the Sale of the Company and participate in
such sale as holders of such Securities or (B) upon the consummation of the Sale
of the Company, receive in exchange for such rights consideration equal to the
amount determined by multiplying (1) the same amount of consideration per share,
unit or amount of Shares received by the holders of such type and class of
Shares in connection with the Sale of the Company less the exercise price per
share, unit or amount of such rights to acquire such Shares by (2) the number of
shares, units or aggregate amount of Shares represented by such rights, and
(iii) in no event shall the aggregate liability of any Stockholder for
representations, warranties, covenants, indemnities or agreements (other than
with respect to such Stockholder's ownership of its Shares, its ability to
consummate the transfer thereof, and investment representations required under
applicable securities laws) with respect to any Sale of the Company exceed the
proceeds received by such Stockholder in such Sale of the Company.
(c) Each Stockholder will bear its or his pro-rata share (based upon
the relative amount of Shares sold) of the reasonable and customary costs of any
sale of Shares pursuant to a Sale of the Company to the extent such costs are
incurred for the benefit of all Stockholders and are not otherwise paid by the
Company or the acquiring party. Costs incurred by or on behalf of a Stockholder
for its or his sole benefit will not be considered costs of the transaction
hereunder. In the event that any transaction that the Sponsor Group and Parent,
acting together, elect to consummate or cause to be consummated pursuant to this
Article V is not consummated for any reason, the Company will reimburse the
Sponsors and Parent for all actual and reasonable expenses paid or incurred by
the Sponsors and Parent in connection therewith.
ARTICLE VI
REDEMPTION RIGHTS
6.1 Redemption of Sponsor Shares. At any time prior to a Public
Offering becoming effective:
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(a) Parent shall provide the Sponsors with no less than thirty
(30) days prior written notice of any event that will constitute a Parent Change
of Control. If the Sponsor Group gives notice of its election (such election to
be called the "Redemption Notice") within twenty (20) days after receipt of such
notice from the Parent, to have the Parent purchase the Sponsor Shares, then,
upon consummation of such Parent Change of Control (the "Redemption Date"), the
Parent shall be required to purchase, at the Redemption Price (as defined
below), all of the Shares then held by the Sponsors (the "Redemption Shares").
The Redemption Notice must request redemption of all, and not less than all, of
the Shares held by the Sponsors.
(b) For purposes of this provision, a "Parent Change of
Control" shall be deemed to have occurred when there has occurred (i) an
acquisition by any "person" (as that term is used in Sections 13(d)(3) and
14(d)(2) of the Securities Exchange Act, as amended (the "Exchange Act") (or any
successor item, regulation or act to the same effect)) of beneficial ownership,
directly or indirectly, of securities of Parent representing more than fifty
percent (50%) of the combined voting power of Parent's then outstanding
securities; (ii) an acquisition by any "person" (as that term is used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) (or any successor item,
regulation or act to the same effect)) of the right to appoint a majority of
Parent's board of directors; or (iii) the sale of all or substantially all of
the assets of Parent.
(c) The purchase price for each Redemption Share (the
"Redemption Price") shall be the Appraisal Price of each share of the Company's
Common Stock on the date that the applicable Redemption Notice is first given
under Section 6.1 (the "Determination Date").
(d) In consideration of the purchase of the Redemption Shares
hereunder, the Parent shall deliver to each Sponsor on the Redemption Date, the
Redemption Price for its Shares, in cash by certified check or by wire transfer
of immediately available funds.
6.2 Redemption Closing. The closing of the purchase of the
Redemption Shares being redeemed by the Sponsors (the "Redemption Closing")
shall take place at 10:00 a.m. at the offices of Weil, Gotshal & ▇▇▇▇▇▇ LLP, ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ on the applicable Redemption Date, or at such
other time and place as the Sponsors and the Parent may agree. The Sponsors
shall deliver to the Parent at the Closing a certificate or certificates
evidencing the Shares redeemed hereunder together with executed stock powers.
6.3 Failure to Redeem. If the Parent fails to purchase all of
the Redemption Shares on the Redemption Date, then the Parent shall be deemed to
have breached Section 6.1 hereof. If the Parent's breach is due to insufficient
funds, then those funds which are available to the Parent will be used to
purchase, pro rata, based on the aggregate Redemption Price payable to each
Sponsor, the maximum possible number of Redemption Shares. Any subsequent
purchase by the Parent shall be for the remaining Redemption Shares of each
Sponsor, allocated pro rata based on each Sponsor's ownership of the remaining
Redemption Shares. In the event of such a breach, in addition to any other
remedies available to the Sponsors at law or in equity, between the Redemption
Date and such time as the purchase is completed, the Redemption Price for each
Sponsor's Shares shall bear interest at the rate of twelve percent (12%) per
annum, compounded annually; provided that such rate shall increase by 2% on the
date that is six (6) months after the Redemption Date, and subject to applicable
law, shall further increase by an additional 2% on
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the last day of every quarter thereafter, until such Redemption Shares are fully
purchased by the Parent. If the Parent purchases fewer than all of the
Redemption Shares offered for purchase, the holders of the Shares not redeemed
shall continue to receive the benefit of the rights and privileges afforded the
Shares hereunder.
ARTICLE VII
PRE-EMPTIVE RIGHTS
7.1 Issuance of New Shares.
(a) Purchase Rights. If at any time after the date of this
Agreement the Company proposes to issue or sell any Common Stock, Common Stock
Equivalents or securities convertible into equity securities of the Company
(collectively, "New Shares"), the Company shall first offer to sell to each
Stockholder (other than any Management Holder, as to whom this Section 7.1 shall
not apply) a portion of each type of such New Shares equal to the quotient
determined by dividing (x) the number of Shares held or beneficially owned by
such Stockholder, by (y) the total number of Shares outstanding immediately
prior to such issuance or sale. A Stockholder shall be entitled to purchase all
or any portion of its respective portion (as determined in the immediately
preceding sentence) of such New Shares at the most favorable price and on the
most favorable terms as such New Shares are to be offered. The holders of Shares
shall further have a right of over-allotment such that to the extent a
Stockholder (a "Rejecting Holder") does not does not exercise its right to
purchase any of the New Shares, or exercises its rights for less than all of its
pro rata share of the New Shares (as determined above), then each other
Stockholder may elect to purchase its pro rata share (as determined above) of
such New Shares which the Rejecting Holder does not elect to purchase.
(b) Offer Period. In order to exercise its purchase rights
hereunder, each Stockholder must, within 30 days after receipt of written notice
from the Company describing in reasonable detail the New Shares being offered,
the purchase price thereof, the payment terms, the percentage of the New Shares
initially available to such holder pursuant to Section 7.1(a) and the
over-allotment right available in connection therewith, deliver a written notice
to the Company describing its election to exercise its purchase rights
hereunder.
(c) Expiration of Offer Period. Upon the expiration of the
offering period described above, the Company shall be entitled to sell such New
Shares which the Stockholders have not elected to purchase during the 180 days
following such expiration on terms and conditions no more favorable to the
purchasers thereof than those offered to the Stockholders pursuant to Section
7.1(a). Any New Shares to be sold by the Company after such 180-day period must
be reoffered to the Stockholders pursuant to the terms of this Section 7.1.
(d) Exceptions to Purchase Rights. The provisions of this
Section 7.1 will not apply to the following issuances of New Shares:
1. Common Stock or Common Stock Equivalents issued or
to be issued to employees, officers or directors of,
or consultants or advisors to the Company, pursuant
to the SIP (it being acknowledged that Common
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Stock or Common Stock Equivalents will not be issued
to Sponsors under this Section 7.1(d)(1), or to their
director designees (other than pursuant to a grant
for a number of shares also granted to the
independent directors of the Company)),
2. Equity Securities issued in respect of or in
exchange for Shares by way of a stock dividend, stock
split or similar transaction, and
3. Equity Securities issued in the first Public
Offering approved by the Board in accordance with the
terms hereof.
ARTICLE VIII
BOARD OBSERVERS AND ACCESS
8.1 Board Representation and Access. The Company agrees as
follows:
(a) In the event that either THL or TPG loses its right to
designate all of its directors pursuant to Section 2.1(b), such Sponsor (an
"Affected Sponsor") shall have the right to designate an employee of such
Sponsor or its Affiliates as a non-voting observer (a "Non-Voting Observer") to
the Board and who shall be such Sponsor's initial designee as a director of the
Company so long as they are principals of such Sponsor, and any replacement
shall be a principals of such Sponsor. The Non-Voting Observer attending a
meeting of the Board shall be entitled to reimbursement from the Company for his
or her reasonable out-of-pocket expenses (including travel) incurred in
attending such meeting.
(i) The Non-Voting Observer shall be entitled to be
present at all meetings of the Board and of each committee of the Board and such
observer shall be notified of any meeting of the Board or committee, including
such meeting's time and place, in the same manner as Board members and shall
have the same access to information (including any copies of all materials
distributed to members of the Board or a committee thereof) concerning the
business and operations of the Company and at the same time as Board members and
shall be entitled to participate in discussions and consult with, and make
proposals and furnish advice to, the Board or committee without voting;
provided, however, that the Company shall not be under any obligation to take
any action with respect to any proposals made or advice furnished by the
Non-Voting Observer, and nothing herein shall prevent the Board (or any
committee thereof) from acting by written instrument to the extent permitted by
applicable law. The Non-Voting Observer shall have a duty of confidentiality to
the Company comparable to the duty of confidentiality of a director of the
Company.
(ii) Notwithstanding the foregoing, if an issue is to
be discussed or otherwise arises at any meeting of the Board or any committee of
the Board which, in the reasonable judgment of the Board or a majority of the
members of such committee, based on advice of legal counsel, cannot be discussed
in the presence of the Non-Voting Observer in order to avoid a conflict of
interest on the part of the Non-Voting Observer or to preserve an
attorney-client or accountant-client or any other available privilege, then such
issue may be discussed without the Non-Voting Observer being present and may be
deleted from any materials being
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distributed in connection with any meeting at which such issues are to be
discussed, so long as the Non-Voting Observer is given notice of the occurrence
of such meeting and the deletion of such materials.
(b) The Company will, and will cause its Subsidiaries to, upon
reasonable notice at reasonable times from time to time, provide each Sponsor
(and any other parent company of such Sponsor that is a venture capital
operating company), at the sole expense of such Sponsor, reasonable
opportunities to routinely consult with and advise the management of the Company
and its subsidiaries on all matters relating to the operation of the Company and
each such Subsidiary, including, without limitation, with respect to any
proposed merger, sale of all or substantially all of the Company's assets or
capital stock, liquidation or dissolution of or by the Company or other similar
corporation transaction, and shall consider, in good faith, the recommendations
of each Sponsor in connection with the matters on which it is consulted;
provided that the ultimate discretion with respect to all such matters shall be
retained by the Company and the Company shall not be under any obligation to
accept the recommendations of any Sponsor. The Company shall give, and shall
cause its subsidiaries to give, subject to compliance with applicable laws and
confidentiality obligations to third parties, such Sponsor (and any other parent
company of such Sponsor that is a venture capital operating company) and their
authorized representatives reasonable access during normal business hours to all
books of account, facilities and properties of the Company and its subsidiaries
and permit the Sponsor (and any parent company of such Sponsor that is a venture
capital operating company) to make such copies and inspections thereof as any
such Person may reasonably request and discuss the affairs, finances and
accounts with the officers thereof; provided that such Sponsor shall not
exercise such rights more often than quarterly during any calendar year, and
such additional times as may be reasonably required in order to qualify any of
the Shares as a venture capital investment (as defined in the Department of
Labor Regulation Section 2510.3-101). Any such visit will be at the expense of
such Sponsor (or such other parent company of such Sponsor that is a venture
capital operating company).
(c) If (i) reasonably required, in order to qualify any of the
Shares as a venture capital investment (as defined in the Department of Labor
Regulation Section 2510.3-101) or (ii) any Sponsor is unable for any reason
(including pursuant to this Agreement) to appoint a Non-Voting Observer to the
Board (and each of the committees, except the compensation committee, thereof),
then the Company shall promptly provide true and correct copies of all
documents, reports, financial data, and such additional financial and other
information with respect to the Company, and its subsidiaries as such Sponsor
(and any other parent company of such Sponsor that is a venture capital
operating company) may from time to time reasonably request.
(d) The Company's obligations pursuant to Section 8.1(a) shall
survive until a Public Offering, and the Company's obligations pursuant to
Section 8.1(b) and (c) shall survive with respect to each Sponsor until the
later of (i) a Public Offering, or (ii) until such Sponsor holds less than 20%
of its initial equity investment in the Company.
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8.2 Information Rights. Prior to the consummation of the first
Public Offering, the Company shall provide to each of the Sponsors the following
information:
(a) Within ninety (90) days after the end of each fiscal year,
an audited consolidated balance sheet of the Company and its Subsidiaries as of
the end of such fiscal year, and an audited consolidated statement of income and
statement of cashflows of the Company and its Subsidiaries for such year, in
each case prepared in accordance with generally accepted accounting principles
and setting forth in comparative form the figures for the previous fiscal year,
all in reasonable detail, and audited by the Company's independent public
accountants.
(b) Within forty five (45) days after the end of each of the
first three fiscal quarters of each fiscal year, unaudited consolidated balance
sheets of the Company and its Subsidiaries as of the end of such fiscal quarter,
unaudited consolidated statements of income, and unaudited consolidated
statements of cash flows for such fiscal quarter and for the current fiscal year
to date. Such financial statements shall be prepared in accordance with
generally accepted accounting principles consistently applied (other than
omission of accompanying notes) and compared with both the actual results from
the corresponding quarter of the previous fiscal year and the budget for the
current fiscal year, all in reasonable detail and signed by the principal
financial or accounting officer of the Company.
(c) Within twenty (20) days after the end of each month of
each fiscal year, the Company's monthly reporting package, including unaudited
consolidated statements of income. Such financial statements shall be prepared
in accordance with generally accepted accounting principles consistently applied
(other than omission of accompanying notes) and compared with both the actual
results from the corresponding month of the previous fiscal year and the budget
(including any reforecasts) for the current fiscal year, all in reasonable
detail and signed by the principal financial or accounting officer of the
Company.
(d) As soon as reasonably practicable and in accordance with
Company's past practice (but in no extent later than the first day of such
fiscal year), a copy of an annual budget with line items compared to the
previous year's budget and an annual strategic plan for such fiscal year.
8.3 Confidentiality. Each Stockholder agrees that it will
hold, and will use all commercially reasonable efforts to cause its officers,
directors, members, managers, partners, employees, accountants, counsel,
consultants, advisors, financial sources, financial institutions, and agents
(the "Representatives") to hold, in confidence all confidential information and
documents regarding the Company and its Subsidiaries pursuant to or received by
such Stockholder or its Representatives in connection with this Agreement or any
transaction contemplated hereby (except as required by applicable law,
regulation or legal process, including any rule or regulation of a
self-regulatory organization to which such Stockholder or its Representatives
are subject); provided, that each Stockholder shall be entitled to disclose such
confidential information and documents to its investors who are subject to
confidentiality obligations owed to such Stockholders.
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ARTICLE IX
AMENDMENT AND TERMINATION
9.1 Amendment and Waiver. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Stockholders unless such modification,
amendment or waiver is approved in writing by the Company and (i) holders of a
majority of the Shares held by THL, (ii) holders of a majority of the Shares
held by TPG, and (iii) the Parent; provided, however, that no such waiver,
modification or amendment which adversely affects either Evercore or BACI
disproportionately to any other Sponsor shall be permitted without the written
consent of Evercore or BACI, as applicable. The failure of any party to enforce
any of the provisions of this Agreement shall in no way be construed as a waiver
of such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
9.2 Termination of Agreement. This Agreement will terminate in
respect of all Stockholders (a) with the written consent of the Company and (i)
holders of a majority of the Shares held by THL, (ii) holders of a majority of
the Shares held by TPG, and (iii) the Parent; (b) upon the dissolution,
liquidation or winding-up of the Company; (c) upon the consummation of a Sale of
the Company; or (d) upon a Public Offering; provided, that the Company's
obligations pursuant to Sections 8.1(b) and (c) shall survive termination of
this Agreement with respect to each Sponsor until the later of (i) a Public
Offering, or (ii) until such Sponsor holds less than 20% of its initial equity
investment in the Company.
9.3 Termination as to a Party. Any Person who ceases to hold
any Shares shall cease to be a Stockholder and shall have no further rights or
obligations under this Agreement.
ARTICLE X
MISCELLANEOUS
10.1 Certain Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth or as referenced below:
"Affiliate" of any particular Person means any other Person
Controlling, Controlled by or under common Control with such particular Person
or, in the case of a natural Person, any other member of such Person's Family
Group.
"Agreement" has the meaning set forth in the preamble.
"Appraisal Price" means the "fair market value" of each Share
determined in accordance with this definition by one or more of the following
independent investment banking firms (the "Firms") acting as an appraiser (an
"Appraiser"): Bank of America Securities, LLC, Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
Citigroup Global Markets Inc., Credit Suisse First Boston LLC, Deutsche Bank AG,
▇▇▇▇▇▇▇ Sachs Group, Inc., ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
provided that if all such Firms have been exhausted by either having already
rendered a valuation or the Sponsor Group or Parent has approached such Firms to
engage them and such Firms have declined such engagement, then the parties will
cooperate and use their reasonable
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best efforts to mutually agree upon another independent, nationally recognized
investment banking firm. Each party who selects an Appraiser must make such
selection within fifteen (15) days of the event triggering the Appraisal. Each
party selecting an Appraiser hereunder shall direct the Appraiser to deliver its
valuation within thirty (30) days of being retained, and such party shall
cooperate with the Appraiser and use its reasonable best efforts to cause such
valuation to be delivered within such time frame. The expenses of any Appraiser
engaged in connection with the Appraisal Process shall be divided evenly among
the parties. The Appraisal Price shall be determined as follows:
(a) Each Appraiser retained hereunder shall determine the
fair market per share value of the Sponsor Shares
assuming the sale of the entire equity interest of
the Company to an independent willing buyer in an
arms'-length transaction under then current
prevailing market conditions for the sale of all of
the stock of comparable business enterprises intended
for continued use as part of a going concern. Each
Appraiser shall assume that in any such transaction
each shareholder of the Company would receive the
same per share consideration, and the Appraiser shall
not apply any discount for minority interest or
illiquidity of the Sponsor Shares, nor any control
premium.
(b) The initial Appraiser shall be selected by the
Sponsor Group (the "Sponsor Appraiser"). If the
Parent does not accept the per share valuation
arrived at by the Sponsor Appraiser, then the Parent
shall promptly notify each Sponsor thereof and Parent
shall retain one of the Firms as a second Appraiser
(the "Parent Appraiser").
(c) If a valuation is delivered by the Parent Appraiser
in accordance with paragraph (b), and the Parent
Appraiser and the Sponsor Appraiser arrive at per
share valuations (the "Initial Valuations") within
ten percent (10%) of each other, the mathematical
mean of the Initial Valuations shall be deemed to be
the Appraisal Price. If such Appraisers shall arrive
at Initial Valuations that are not within ten percent
(10%) of each other but are within twenty percent
(20%) of each other, then the Parent Appraiser and
the Sponsor Appraiser, as soon as reasonably
practicable, shall jointly retain a Firm to act as a
third Appraiser (the "Third Appraiser") on reasonable
terms agreed to by the Sponsor Group and Parent in
good faith. In the event the valuation of the Third
Appraiser is greater than the higher of the Initial
Valuations, then the Appraisal Price shall be the
higher of the Initial Valuations. In the event the
valuation of the Third Appraiser is less than the
lower of the Initial Valuations, the Appraisal Price
shall be the lower of the Initial Valuations. If the
valuation of the Third Appraiser is not greater than
the higher of the Initial Valuations or lower than
the lower of the Initial Valuations, the Appraisal
Price shall be the mathematical mean of (i) the per
share valuation arrived at by the Third Appraiser,
and (ii) the Initial Valuation that is closest to
that of the per share valuation arrived at by the
Third Appraiser.
-22-
(d) If the Initial Valuations are not within twenty
percent (20%) of each other, then neither valuation
shall be used and the Sponsor Group will retain a new
Firm to act as Sponsor Appraiser (the "Second Sponsor
Appraiser") and Parent shall retain a new Firm to act
as Parent Appraiser (the "Second Parent Appraiser").
If the per share valuations arrived at by the Second
Sponsor Appraiser and Second Parent Appraiser (the
"Second Valuations") are within twenty percent (20%)
of each other, then the Appraisal Price shall be
determined as set forth in paragraph (c) above. If
the Second Valuations are not within twenty percent
(20%) of each other, then the Second Valuations shall
not be used and the Second Parent Appraiser and the
Second Sponsor Appraiser, as soon as reasonably
practicable, shall jointly select a Firm to act as a
final Appraiser (the "Final Appraiser") on reasonable
terms agreed to by the Sponsor Group and Parent in
good faith. So long as the valuation of the Final
Appraiser is not higher than the higher of the Second
Valuations or lower than the lower of the Second
Valuations, the valuation arrived at by the Final
Appraiser shall be deemed to be the Appraisal Price.
In the event the valuation of the Final Appraiser is
greater than the higher of the Second Valuations,
then the Appraisal Price shall be the higher of the
Second Valuations. In the event the valuation of the
Final Appraiser is less than the lower of the Second
Valuations, the Appraisal Price shall be the lower of
the Second Valuations.
"Appraisal Process" shall mean the process described in the
definition of Appraisal Price in order to arrive at the Appraisal Price.
"Closing Date" has the meaning ascribed thereto in the Stock
Purchase Agreement between the Company, Parent and the Purchasers named therein.
"Common Stock" means, collectively the common stock, par value
$.0001 per share of the Company and any other class or series of authorized
capital stock of the Company which is not limited to a fixed sum or percentage
of par or stated value in respect to the rights of the holders thereof to
participate in dividends or in the distribution of assets upon any liquidation,
dissolution or winding up of the successor to the Company.
"Common Stock Equivalents" means (without duplication with any
Common Stock or other Common Stock Equivalents) rights, warrants, options,
convertible Shares, or exchangeable Shares or indebtedness, or other rights,
exercisable for or convertible or exchangeable into, directly or indirectly,
Common Stock or securities exercisable for or convertible or exchangeable into
Common Stock, as the case may be, whether at the time of issuance or upon the
passage of time or the occurrence of some future event.
"Company" has the meaning set forth in the preamble.
"Control" (including, with correlative meaning, all
conjugations thereof) means with respect to any Person, the ability of another
Person to control or direct the actions or policies of such first Person,
whether by ownership of voting Shares, by contract or otherwise.
-23-
"Exempted Arrangements" means the arrangements provided in (i)
the Management Agreement by and between the Company and THL Advisors V, LLC of
even date herewith, (ii) the Management Agreement by and between the Company and
TPG GenPar IV, L.P. of even date herewith, (iii) the Management Agreement by and
between the Company and Evercore Advisors L.L.C. of even date herewith, (iv) the
intercompany agreements listed on Schedule 1 hereto, and (v) any contracts or
transactions involving the Parent or one of its Subsidiaries (other than the
Company or its Subsidiaries) on the one hand, and the Company or one of its
Subsidiaries on the other hand, involving payments of less than $500,000
annually in the aggregate by either party and which do not restrict the ability
of the Company and its Subsidiaries to engage in any activities.
"Exempt Transfer" means a Transfer of Shares (a) pursuant to
Section 3.2 hereof, (b) pursuant to Sections 4.1, 4.2, 5.1 or 6.1 hereof, (c)
upon the death of the holder pursuant to the applicable laws of descent and
distribution, (d) solely to or among such Person's Family Group, or (e)
incidental to the exercise, conversion or exchange of such Shares in accordance
with their terms, any combination of shares (including any reverse stock split)
or any recapitalization, reorganization or reclassification of, or any merger or
consolidation involving, the Company. Solely with respect to Sponsor Shares, an
Exempt Transfer shall also include a Transfer of Sponsor Shares (a) to and among
the Affiliates of the Sponsors, partners of the Sponsors and the partners
(including, without limitation, any limited partner of such Sponsor),
stockholders, employees and Affiliates of such partners or Affiliates, and (b)
pursuant to a pledge of such Sponsor Shares to an unaffiliated financial
institution.
"Family Group" means, with respect to any individual, such
individual's spouse and descendants (whether natural or adopted) and any trust,
partnership, limited liability company or similar vehicle established and
maintained solely for the benefit of (or the sole members or partners of which
are) such individual, such individual's spouse and/or such individual's
descendants.
"Financing" has the meaning ascribed thereto in the Stock
Purchase Agreement between the Company, Parent and the Purchasers named therein.
"Major Sponsors" has the meaning given such term in Section
2.2(a).
"Management Holder" has the meaning given such term in the
preamble.
"Material Subsidiary" means a direct or indirect Subsidiary of
the Company which represents 10% or more of the assets or revenues of the
Company and its Subsidiaries, taken together as a whole.
"Other Holder" has the meaning given such term in Section
3.2(a).
"Person" means an individual, a partnership, a joint venture,
a corporation, an association, a joint stock company, a limited liability
company, a trust, an unincorporated organization or a government or any
department or agency or political subdivision thereof.
-24-
"Pro Rata Amount" means, with respect to any Stockholder, the
quotient obtained by dividing (i) the sum of the aggregate number of shares of
Common Stock held by such Stockholder by (ii) the aggregate number of issued and
outstanding shares of Common Stock held by all Stockholders.
"Public Offering" means an offering and sale to the public of
any shares or equity securities of the Company pursuant to a registration
statement in the United States.
"Qualified Public Offering" means a Public Offering whereby
the offered shares trade on a national securities exchange or NASDAQ, and in
which, at the election of the Company, either one of the following criteria is
fulfilled: (A) (i) the price per share paid by the public in such offering is at
least $15.00 and less than $17.50, and (ii) the gross proceeds to the Company
would at least equal an amount obtained by multiplying the per share price in
(A)(i) above by that number of shares (the "1.5 Cap") equal to 15% of the
outstanding shares of the Company after giving effect to the offering, or (B)
(i) the price per share paid by the public in such offering is at least $17.50,
and (ii) the gross proceeds to the Company would at least equal an amount
obtained by multiplying the per share price in (B)(i) above by that number of
shares (the "1.75 Cap") equal to 12.5% of the outstanding shares of the Company
after giving effect to the offering. Any per share price contained in this
definition shall be subject to adjustment for stock splits, combinations and
similar events.
"quorum" means, with respect to any meeting of directors of
the Board of the Company, a group of directors present at any meeting that
includes a number of directors designated by Parent that constitutes a majority
of directors present at any such meeting.
"Sale of the Company" means the consummation of a
transaction, whether in a single transaction or in a series of related
transactions that are consummated contemporaneously (or consummated pursuant to
contemporaneous agreements), with any other Person or group of Persons on an
arm's-length basis other than an Affiliate of any Sponsor, pursuant to which
such party or parties (a) acquire (whether by merger, stock purchase,
recapitalization, reorganization, redemption, issuance of capital stock or
otherwise) more than 50% of the voting stock of the Company or (b) acquire
assets constituting all or substantially all of the assets of the Company and
its Subsidiaries on a consolidated basis; provided, however, that in no event
shall a Sale of the Company be deemed to include any transaction effected for
the purpose of (i) changing, directly or indirectly, the form of organization or
the organizational structure of the Company or any of its Subsidiaries or (ii)
contributing stock to entities controlled by the Company.
"Sale Notice" has the meaning given such term in Section
3.2(a).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933 and the
rules and regulation promulgated thereunder, all as the same have been or may be
amended from time to time.
"Selling Holder" has the meaning given such term in Section
3.2(a).
-25-
"Shares" means, collectively, the shares of Common Stock or
other equity securities of the Company held by the Stockholders.
"SIP" has the meaning given such term in the preamble.
"Sponsor Group" has the meaning given such term in Section
4.1(a).
"Sponsors" has the meaning given such term in the preamble.
"Sponsor Shares" means Shares held by the Sponsors.
"Stockholder(s)" has the meaning given such term in the
preamble.
"Subsidiary" means any corporation with respect to which
another specified corporation has the power to vote or direct the voting of
sufficient shares to elect directors having a majority of the voting power of
the board of directors of such corporation.
"Tag-Along Notice" has the meaning given such term in Section
3.2(a).
"Transfer" means (in either the noun or the verb form,
including with respect to the verb form, all conjugations thereof within their
correlative meanings) with respect to any security, the gift, sale, assignment,
transfer, pledge, hypothecation or other disposition (whether for or without
consideration, whether directly or indirectly, and whether voluntary,
involuntary or by operation of law) of such security or any interest therein.
"Transferee" means any Person to whom a Stockholder may
Transfer Shares.
10.2 Legends.
(a) Each certificate or instrument evidencing Shares and each
certificate or instrument issued in exchange for or upon the Transfer of any
such Shares (if such Shares remain subject to this Agreement after such
Transfer) shall be stamped or otherwise imprinted with a legend (as
appropriately completed under the circumstances) in substantially the following
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE CONSTITUTE SHARES
UNDER A CERTAIN STOCKHOLDERS AGREEMENT DATED AS OF MARCH [9],
2005 AMONG THE ISSUER OF SUCH SHARES (THE "COMPANY") AND
CERTAIN OF THE COMPANY'S STOCKHOLDERS AND, AS SUCH, ARE
SUBJECT TO CERTAIN VOTING PROVISIONS, PURCHASE RIGHTS AND
RESTRICTIONS ON TRANSFER SET FORTH IN THE STOCKHOLDERS
AGREEMENT. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF
UPON WRITTEN REQUEST."
-26-
(b) Each instrument or certificate evidencing Shares and each
instrument or certificate issued in exchange or upon the Transfer of any Shares
shall be stamped or otherwise imprinted with a legend substantially in the
following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD UNLESS IT HAS BEEN REGISTERED UNDER THE
SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS
AVAILABLE (AND, IN SUCH CASE, IF REQUESTED BY THE COMPANY, AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY
SHALL HAVE BEEN DELIVERED TO THE COMPANY TO THE EFFECT THAT
SUCH OFFER OR SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE
SECURITIES ACT)."
(c) Whenever in the opinion of the Company and counsel
reasonably satisfactory to the Company (which opinion shall be delivered to the
Company in writing) the restrictions described in any legend set forth above
cease to be applicable to any Shares, the holder thereof shall be entitled to
receive from the Company, without expense to the holder, a new instrument or
certificate not bearing a legend stating such restriction.
10.3 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
10.4 Entire Agreement. Except as otherwise expressly set forth
herein, this document embodies the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersedes and
preempts any prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter hereof in
any way.
10.5 Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its successors and assigns and the Stockholders and any
subsequent holders of Shares and the respective successors and assigns of each
of them, so long as they hold Shares.
10.6 Counterparts. This Agreement may be executed in separate
counterparts (including by means of telecopied signature pages) each of which
shall be an original and all of which taken together shall constitute one and
the same agreement.
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10.7 Remedies. The Company and the Stockholders shall be
entitled to enforce their rights under this Agreement specifically, to recover
damages by reason of any breach of any provision of this Agreement (including
costs of enforcement) and to exercise all other rights existing in their favor.
The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that the
Company or any Stockholder may in its or his sole discretion apply to any court
of law or equity of competent jurisdiction for specific performance or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
10.8 Notices. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered, or mailed first class
mail (postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the Company at the address set forth below and to any other
recipient at the address indicated on the Company's records, or at such address
or to the attention of such other person as the recipient party has specified by
prior written notice to the sending party. Notices will be deemed to have been
given hereunder when sent by facsimile (receipt confirmed) delivered personally,
5 days after deposit in the U.S. mail and one day after deposit with a reputable
overnight courier service. Notices to the Company will be sent to:
Fidelity National Information Services, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President -
Mergers and Acquisitions Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Texas Pacific Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Notices to any Stockholder will be sent to the address set
forth opposite such Stockholder's name on Exhibit A attached hereto, with a copy
to:
Weil, Gotshal & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and, if such Stockholder is a TPG Holder, with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and, if to Evercore, with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and, if to BACI, with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
Hearst Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
10.9 Governing Law. The Delaware General Corporation Laws
shall govern all questions arising under this Agreement concerning the relative
rights of the Company and its stockholders. All other questions concerning the
construction, validity and interpretation of this Agreement shall be governed by
and construed in accordance with the domestic laws of the State of Delaware
applicable to contracts made and to be performed in the State of Delaware. The
parties hereto hereby irrevocably and unconditionally submit to the exclusive
jurisdiction of any State or Federal court sitting in New York, NY over any
suit, action or proceeding arising out of or relating to this Agreement. The
parties hereby agree that service of any process, summons, notice or document by
U.S. registered mail addressed to any such party shall be effective service of
process for any action, suit or proceeding brought against a party in any such
court. The parties hereto hereby irrevocably and unconditionally waive any
objection to the laying of venue
-29-
of any such suit, action or proceeding brought in any such court and any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. The parties hereto agree that a final judgment
in any such suit, action or proceeding brought in any such court shall be
conclusive and binding upon any party and may be enforced in any other courts to
whose jurisdiction any party is or may be subject, by suit upon such judgment.
10.10 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
10.11 Tax-Free Reorganization Parent may propose and the
Sponsor Group shall consider, at its sole and absolute discretion, transactions
by and between the Company and Parent that would allow Parent to consummate a
tax free spin off of its shares in the Company on such terms as may be mutually
agreeable to the Sponsor Group and FNF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGES FOLLOW]
-30-
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement on the day and year first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By: ________________________________________
Name:
Title:
FIDELITY NATIONAL INFORMATION SERVICES, INC.
By: ________________________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND V, L.P.
By: THL Equity Advisors V, LLC, its general
partners
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole
member
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general
partner
By: ________________________________________
Name:
Title: Managing Director
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
▇▇▇▇▇▇ ▇. ▇▇▇ PARALLEL FUND V, L.P.
By: THL Equity Advisors V, LLC, its general
partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole
member
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general
partner
By: ________________________________________
Name:
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇ CAYMAN FUND V, L.P.
By: THL Equity Advisors V, LLC, its general
partner
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P., its sole
member
By: ▇▇▇▇▇▇ ▇. ▇▇▇ Advisors LLC, its general
partner
By: ________________________________________
Name:
Title: Managing Director
▇▇▇▇▇▇ ▇. ▇▇▇ INVESTORS LIMITED PARTNERSHIP
By: THL Investment Management Corp., its
general partner
By: ________________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Chief Executive Officer
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
▇▇▇▇▇▇ INVESTMENTS EMPLOYEES'
SECURITIES COMPANY I LLC
By: ▇▇▇▇▇▇ Investments Holdings, LLC, its
managing member
By: ▇▇▇▇▇▇ Investment, LLC, its managing member
By: ___________________________________________
Name:
Title:
▇▇▇▇▇▇ INVESTMENTS EMPLOYEES'
SECURITIES COMPANY II LLC
By: ▇▇▇▇▇▇ Investment Holdings, LLC, its
managing member
By: ▇▇▇▇▇▇ Investments, LLC, its managing
member
By: ___________________________________________
Name:
Title:
▇▇▇▇▇▇ INVESTMENT HOLDINGS, LLC
By: ▇▇▇▇▇▇ Investments, LLC, its managing
member
By: ___________________________________________
Name:
Title:
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
TPG PARTNERS IV, L.P.
By: TPG GenPar IV, L.P., its general partner
By: TPG Advisors IV, Inc., its general partner
By: _____________________________________________
Name:
Title:
TPG PARTNERS III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: _____________________________________________
Name:
Title:
TPG PARALLEL III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: _____________________________________________
Name:
Title:
TPG INVESTORS III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: _____________________________________________
Name:
Title:
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
FOF PARTNERS III, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: _____________________________________________
Name:
Title:
FOF PARTNERS III-B, L.P.
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: _____________________________________________
Name:
Title:
TPG DUTCH PARALLEL III, C.V.
By: TPG GenPar Dutch, L.L.C., its general partner
By: TPG GenPar III, L.P., its general partner
By: TPG Advisors III, Inc., its general partner
By: _____________________________________________
Name:
Title:
COUNTERPART SIGNATURE PAGE TO THE
STOCKHOLDERS AGREEMENT
EVERCORE METC CAPITAL PARTNERS II L.P.
By: Evercore Partners II L.L.C., its General
Partner
By: ___________________________________
Name:
Title:
BANC OF AMERICA CAPITAL INVESTORS, L.P.
By: Banc of America Capital Management, L.P.,
its General Partner
By: BACM I GP, LLC,
its General Partner
By: ___________________________________
Name:
Title:
EXHIBIT A
▇▇▇▇▇▇ ▇. ▇▇▇ Partners, L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Texas Pacific Group
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Evercore Partners
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Fidelity National Financial, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Senior Vice President - Mergers
& Acquisitions Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Banc of America Capital Investors, L.P.
Bank of America Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1
CAPITAL EXPENDITURES
FY 2005 FY 2006 FY 2007
------- ------- -------
171,290 152,413 137,901
