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Exhibit 10.11
EXECUTION COPY
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MIAMI CRUISELINE SERVICES
HOLDINGS I B.V.
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SHAREHOLDERS AGREEMENT
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DATED AS OF SEPTEMBER 17, 1998
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TABLE OF CONTENTS
Page
Recitals ..................................................................................................... 1
1. EFFECTIVENESS; DEFINITIONS .......................................................................... 2
1.1 Closing ............................................................................. 2
1.2 Definitions ......................................................................... 2
2. VOTING AND WAIVER AGREEMENT ......................................................................... 3
2.1 Initial Board ......................................................................... 3
2.2 Election of Directors ............................................................... 3
2.3 Significant Transactions ............................................................ 3
2.4 Seats on Board of Directors ......................................................... 3
2.5 The Company ........................................................................... 4
2.6 Approval of Transfers ................................................................. 4
2.7 Amendment of Articles ................................................................. 4
2.8 Preemptive Rights ..................................................................... 4
2.9 Good Faith ............................................................................ 4
2.10 ▇▇▇▇▇▇ Vote .......................................................................... 5
2.11 Waiver of Offer; Appraisal ........................................................... 5
2.12 Management Representative ............................................................ 5
2.13 Lender Rights ........................................................................ 5
2.14 [Reserved] ........................................................................... 6
2.17 Period ............................................................................... 6
3. GENERAL TRANSFER PROVISIONS; "TAG ALONG" RIGHTS, "DRAG ALONG"
OBLIGATIONS AND RIGHT OF FIRST OFFER ................................................................ 6
3.1 Tag Along ........................................................................... 6
3.1.1. Notice ......................................................... 7
3.1.2. Exercise ....................................................... 7
3.1.3. Reduction of Shares Sold ....................................... 7
3.1.4. Irrevocable Offer .............................................. 8
3.1.5. Additional Compliance .......................................... 8
3.1.6. Excluded Transactions .......................................... 9
3.2 Drag Along ............................................................................ 10
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3.2.1. Exercise ....................................................... 10
3.3 Miscellaneous ......................................................................... 10
3.3.1. Certain Legal Requirements ..................................... 10
3.3.2. Further Assurances ............................................. 11
3.3.3. Certain Determinations ......................................... 12
3.3.4. Expenses ....................................................... 12
3.3.5. Closing ........................................................ 12
3.4 Right of First Offer .................................................................. 13
3.4.1. Notice; Offer .................................................... 13
3.4.2. Exercise ....................................................... 13
3.4.3. Excluded Transactions ............................................ 14
3.5 Period ................................................................................ 15
4. SUBSCRIBER AND MANAGEMENT TRANSFER RIGHTS ........................................................... 15
4.1 Transfers to Immediate Family ......................................................... 16
4.2 Transfer Upon Death ................................................................... 16
4.3 Other Permitted Transfers ............................................................. 16
4.3.1. Investors and Company .......................................... 16
4.3.2. Calls .......................................................... 16
4.3.3. Tag Alongs, Drag Alongs, Right of First Refusal, etc ........... 16
4.3.4. Sales to Public ................................................ 17
4.4 Period ................................................................................ 17
5. OPTIONS TO PURCHASE SHARES .......................................................................... 17
5.1 Call Options .......................................................................... 17
5.1.1. Termination .................................................... 17
5.1.1.1 Termination due to Death or Disability or
by Company without Cause ......................................... 17
5.1.1.2 Termination by Company for Cause ............. 18
5.1.2. Cash Payments .................................................. 19
5.1.3. Notices, etc ................................................... 20
5.2 Closing ............................................................................... 20
5.3 Period ................................................................................ 20
6. CERTAIN ISSUANCES AND TRANSFERS, ETC ................................................................ 20
6.1 Transfers to Permitted Transferees .................................................. 20
6.2 Other Transfers and Issuances ....................................................... 21
6.3 Certain Issuances and Redemptions ................................................... 21
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7. PREEMPTIVE RIGHT .................................................................................... 21
7.1 Right of Participation ................................................................ 21
7.1.1. Offer .......................................................... 21
7.1.2. Exercise ....................................................... 22
7.1.2.1 General ...................................... 22
7.1.2.2 Irrevocable Acceptance ....................... 23
7.1.2.3 Time Limitation .............................. 23
7.1.3. Other Securities ............................................... 23
7.1.4. Certain Legal Requirements ..................................... 24
7.1.5. Further Assurances ............................................. 24
7.1.6. Expenses ....................................................... 25
7.1.7. Closing ........................................................ 25
7.2 Excluded Transactions ................................................................. 25
7.3 Period ................................................................................ 26
8. REMEDIES ............................................................................................ 26
8.1 Generally ........................................................................... 26
8.2 Deposit ............................................................................. 26
9. REGISTRATION RIGHTS ................................................................................. 27
9.1 Demand Registration Rights ............................................................ 27
9.1.1. Investor Shares .................................................. 27
9.1.1.1 Form ........................................... 28
9.1.2. Subscriber Shares ................................................ 28
9.1.2.1 Form ........................................... 30
9.1.3. Lender Shares .................................................... 30
9.1.3.1 Form ........................................... 31
9.1.4. Payment of Expenses .............................................. 32
9.1.5. Additional Procedures ............................................ 32
9.2 Piggyback Registration Rights ......................................................... 32
9.2.1. Piggyback Registration ........................................... 32
9.2.1.1 General ........................................ 32
9.2.1.2 Excluded Transactions .......................... 33
9.2.2. Payment of Expenses .............................................. 33
9.2.3. Additional Procedures ............................................ 33
9.3 Certain Other Provisions .............................................................. 34
9.3.1. Underwriter's Cutback ............................................ 34
9.3.2. Other Actions .................................................... 35
9.3.3. Selection of Underwriters and Counsel ............................ 37
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9.3.4. LockUp ........................................................... 38
9.4 Indemnification and Contribution ...................................................... 38
9.4.1. Indemnities of the Company ....................................... 38
9.4.2. Indemnities to the Company ....................................... 40
9.4.3. Indemnification Procedures ....................................... 40
9.4.4. Contribution ..................................................... 41
9.4.5. Limitation on Liability of Holders of Registrable Securities ..... 42
10. AMENDMENT, TERMINATION, ETC ......................................................................... 42
10.1 Oral Modifications ................................................................. 42
10.2 Written Modifications .............................................................. 42
10.3 Termination ........................................................................ 42
11. DEFINITIONS ......................................................................................... 42
11.1 Certain Matters of Construction .................................................... 43
11.2 Cross Reference Table .............................................................. 43
11.3 Certain Definitions ................................................................ 44
11.3.1. "Affiliate" ................................................... 44
11.3.2. "Affiliated Fund" ............................................. 45
11.3.3. "Cash Equivalents" ............................................ 45
11.3.4. "Cause" ....................................................... 45
11.3.5. "Change of Control" ........................................... 45
11.3.6. "Competitor" .................................................. 45
11.3.7. "Convertible Securities" ...................................... 46
11.3.8. "Cost" ........................................................ 46
11.3.9. "Equivalent Shares" ........................................... 46
11.3.10. "Equivalent Value" ........................................... 46
11.3.11. "Exchange Act" ............................................... 46
11.3.12. "Fair Market Value" .......................................... 46
11.3.13. "Initial Public Offering" .................................... 46
11.3.14. "Investor Shares" ............................................ 46
11.3.15. "Lender Shares" .............................................. 46
11.3.16. "Majority Investors" ......................................... 46
11.3.17. "Management Shares" .......................................... 46
11.3.18. "Members of the Immediate Family" ............................ 47
11.3.19. "Options" .................................................... 47
11.3.20. "Permitted Transferee" ........................................ 47
11.3.21. "Person" ..................................................... 47
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11.3.22. "Price Per Equivalent Share" ................................. 47
11.3.23. "Public Offering" ............................................ 47
11.3.25. "Regulation D" ............................................... 47
11.3.26. "Rule 144" ................................................... 48
11.3.27. "Rule 145 Transaction" ....................................... 48
11.3.28. "Securities Act" ............................................. 48
11.3.29. "Subscriber Shares" ........................................... 48
11.3.30. "Shares" ...................................................... 48
11.3.31. "Termination Event" .......................................... 48
11.3.32. "Transfer" ................................................... 48
12. CERTAIN OTHER MATTERS ............................................................................... 48
12.1 Fees and Expenses .................................................................... 48
12.2 Corporate Opportunities .............................................................. 48
12.3 Reporting ............................................................................ 49
12.4 Lender Review ........................................................................ 49
13. MISCELLANEOUS ....................................................................................... 49
13.1 Authority; Effect .................................................................. 49
13.2 Notices ............................................................................ 49
13.3 Binding Effect, etc ................................................................ 50
13.4 Descriptive Headings ............................................................... 50
13.5 Counterparts ....................................................................... 50
13.6 Severability ....................................................................... 51
14. GOVERNING LAW, ARBITRATION .......................................................................... 51
14.1 Governing Law ...................................................................... 51
14.2 Arbitration ........................................................................ 51
14.2.1. Generally ..................................................... 51
14.2.2. Place of Arbitration .......................................... 51
14.2.3. Recourse to Courts ............................................ 52
14.3 Reliance ........................................................................... 52
15. TERMINATION ......................................................................................... 52
15.1 Termination ........................................................................ 52
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SHAREHOLDERS AGREEMENT
This Shareholders Agreement (the "Agreement") is made as of September
17 , 1998 by and among:
(i) Miami Cruiseline Services Holdings I B.V., a Dutch private
company with limited liability (the "Company");
(ii) Berkshire Cruise Holdings LLC (the "Investor");
(iii) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"), ▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") and The
▇▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust 8/3/94, The ▇▇▇▇▇ ▇▇▇▇▇▇
Revocable Trust 8/3/94, and The ▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust
8/3/94 (the "Trusts", and collectively with ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇, the "Subscribers");
(iv) ▇. ▇. ▇▇▇▇▇▇ (the "Management Investors");
(v) Berkshire Partners LLC (the "Interim Purchaser"); and
(vi) New York Life Insurance Company, American Home Assurance
Company and The Northwestern Mutual Life Insurance Company
(the "Lenders" and collectively with the Investor, the
Subscribers the Management Investors and the Interim
Purchaser, the "Shareholders").
Recitals
1. Pursuant to one or more subscription agreements, the Investor has
agreed to purchase 19,649 shares of the Company's common stock, par value of NLG
1.00 per share (the "Common Stock") which will cause its total holdings at
Closing to be 59,649 shares.
2. On or about the date hereof, pursuant to the Stock Subscription and
Exchange Agreement dated as of August 27, 1998 (the "Exchange Agreement") among
the Company and the Subscribers, the Subscribers will receive consideration
including shares of Common Stock.
3. Pursuant to one or more subscription agreements, the Lenders have
agreed to purchase 9,999 shares of Common Stock.
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4. Pursuant to a subscription agreement, the Interim Purchaser has
agreed to purchase 1,663 shares of Common Stock.
5. Pursuant to one or more subscription agreements, the Management
Investors have agreed to purchase 1,039 shares of Common Stock.
6. Certain members of management may in the future acquire shares of
Common Stock.
7. Pursuant to one or more stock options, certain employees of the
Company have been or may be granted certain options ("Options") by the Company
to acquire shares of Common Stock.
8. The number of shares of Common Stock held by the Shareholders on the
date on which this Agreement is executed is set forth on Schedule 1 hereto.
9. The parties believe that it is in the best interests of the Company
and the Shareholders to: (i) provide that the Shares shall be transferable only
upon compliance with the terms hereof; (ii) provide the Company with certain
rights and obligations with respect to the purchase of the Shares under certain
circumstances; (iii) provide for certain rights and obligations with respect to
the election of directors of the Company; (iv) provide for certain rights and
obligations with respect to the voting of shares; and (v) set forth their
agreements on certain other matters.
Agreement
Therefore, the parties hereto hereby agree as follows:
1. EFFECTIVENESS; DEFINITIONS.
1.1 Closing. This Agreement shall become effective upon consummation of
the closing (the "Closing") under the Share Purchase Agreement between Viad
Corand Cruise Line Holdings Co. dated July 31, 1998 and the Exchange
Agreement.
1.2 Definitions. Certain terms are used in this Agreement as
specifically defined herein. These definitions are set forth or referred to in
Section 11 hereof.
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2. VOTING AND WAIVER AGREEMENT.
2.1 Initial Board. The initial Board shall be comprised of ▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇, as Class A directors, and ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ as Class B directors. Bloom, Cutler, Fialkow, Fischman, Peeler, and
▇▇▇▇▇▇▇▇▇▇▇ shall be the initial Investor nominees, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ the
initial Subscriber nominees and Miquel the initial Management nominee, each
pursuant to Section 2.1.
2.2 Election of Directors. Each Shareholder hereby agrees to cast all
votes to which such holder is entitled in respect of the Shares, whether at any
annual or special meeting, by written consent or otherwise, to fix the number of
Class A and Class B members of the management board of the Company (the "Board")
at such number as may be specified from time to time by the Majority Investors.
Each Shareholder agrees to vote in favor of the election as directors of the
individuals listed in Section 2.1, or their respective replacements as nominated
by the Investor, the Subscribers or the Management Investors, as the case may
be. The Company's directors shall be elected in accordance with Article 13 of
the Company's Articles of Association, as amended.
2.3 Significant Transactions. Each holder of Shares agrees to vote the
Shares held by such holder in the same proportion as Investor Shares are voted
by the Majority Investors in connection with any transaction with respect to
which the Majority Investors exercise their "drag along" rights in Section 3.2
(including without limitation any merger, recapitalization, consolidation,
reorganization, or sale of substantially all the assets of the Company).
2.4 Seats on Board of Directors.
(a) So long as the Subscribers, collectively, hold at
least 10% of the Common Stock, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
shall each be entitled to hold a Class B seat on the Board or
select a successor. In the event either such Board member is
suspended, dismissed or removed under Article 13, paragraph 3
of the Articles of Association, while the conditions of the
preceding sentence remain satisfied, each holder of Shares
shall vote to fill such vacancy with a successor nominated by
the respective Subscriber.
(b) So long as Greyhound Leisure Services Inc.
("GLSI") is a direct or indirect subsidiary of the Company and
▇.▇▇▇▇▇▇ remains the Chief Executive Officer of GLSI, ▇.▇.
▇▇▇▇▇▇ shall be entitled to hold a Class B seat on the Board.
In the event he is suspended, dismissed or removed under
Article 13 paragraph 3 of the
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Company's Articles of Association, while the conditions of the
preceding sentence remain satisfied, each holder of Shares
shall vote to fill such vacancy with a successor nominated by
Miquel.
2.5 The Company. The Company agrees not to give effect to any action by
any holder of Shares or any other Person which is in contravention of this
Section 2.
2.6 Approval of Transfers. Each holder of Shares agrees to vote all the
Shares held by such holder in any shareholder vote pursuant to Article 11,
paragraph 1 of the Articles of Association to permit any Approved Transfer and
to disallow any Transfer which is not an Approved Transfer.
2.7 Amendment of Articles. Prior to an event of termination of this
Shareholders Agreement, the closing of a Public Offering or a Change of Control,
the Shareholders agree (i) not to amend Article 11, paragraph 1 of the Articles
of Association without the vote of the Majority Investors and the majority of
Subscriber Shares and (ii) not to amend Article 13 of the Articles of
Association to differentiate the voting rights of the Class A and Class B
directors. In the event of any such termination, Public Offering or Change of
Control, each holder of Shares agrees to vote all the Shares held by such holder
to amend Article 11, paragraph 1 of the Articles of Association (to the extent
not already amended or deleted by conversion into a N.V.) immediately prior to
such event to delete any supermajority requirements for the approval of
Transfers.
2.8 Preemptive Rights. Each holder of Shares agrees to vote all the
Shares held by such holder in any shareholder vote pursuant to Article 4 of the
Articles of Association to (i) require preemptive rights for any Issuance where
Section 7 of this Agreement requires preemptive rights; and (ii) to exclude
preemptive rights for any Issuance exempted from the preemptive right
requirement by Section 7.2 hereof. Each holder of Shares agrees not to exercise
such holder's preemptive rights under Article 4 of the Articles of Association
with respect to any Issuance for which such holder is not entitled to preemptive
rights under Section 7 hereof.
2.9 Good Faith. Each holder of Shares agrees to act in good faith and
cast the votes agreed to in this Section 2, whether by written consent, proxy or
in person, expeditiously and without delay. If any vote required by this Section
2 is solicited by written consent, each holder of shares agrees to execute and
return such vote (including all forms of transmission) by facsimile as soon as
possible and in no event later than 10 days from receipt of such solicitation.
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2.10 ▇▇▇▇▇▇ Vote. So long as the Subscribers, collectively, hold at
least 10% of the Common Stock, no vote pursuant to Section 2.6 hereof will be
taken without ▇▇▇▇▇▇ ▇▇▇▇▇▇ casting a vote, by written consent, proxy or in
person, provided that ▇▇▇▇▇▇ ▇▇▇▇▇▇ will not withhold or delay any vote agreed
to in this Section 2.
2.11 Waiver of Offer; Appraisal. Each holder of shares agrees to
unconditionally and irrevocably waive any right that he may have under the
Articles of Association for a third party offer to be arranged by the Company
for the purchase of Shares, the Transfer of which would be prohibited by the
Shareholder vote and an independent price determination in relation to any
Transfer proposed by such holder of Shares which is not an Approved Transfer.
Each holder of Shares acknowledges that such holder has sufficient opportunities
under this Agreement to Transfer Shares and notwithstanding any provisions of
the Articles of Association, each holder of Shares agrees not to make any
Transfer not permitted by this Agreement including, without limitation, pursuant
to a deemed approval.
2.12 Management Representative. ▇. ▇. ▇▇▇▇▇▇ shall be designated a
"Purchaser Representative" to represent each holder of Management Shares. Each
holder of Management Shares hereby grants to ▇. ▇. ▇▇▇▇▇▇ an irrevocable proxy
coupled with an interest to vote such holder's Shares with respect to any vote
agreed to in this Section 2.
2.13 Lender Rights. At any time, and from time to time, during which
any Lender shall hold any Shares, a representative of each such Lender shall
have the right to have its designated representative attend (or, in the case of
a telephonic meeting, to listen by telephone to) each meeting of the Board. The
Company shall reimburse the reasonably incurred out of pocket expenses incurred
by such Lender in attending any such meeting. The Company shall give to the
Lenders' purchaser representative:
(a) prior written notice of each such meeting, to be given no
later than the earlier of:
(i) the date written notice is actually given to the directors;
and
(ii) the latest date on which notice may permissibly be given by
law;
(b) within sixty (60) days of each such meeting, copies of the
records of proceedings of, or minutes of, such meeting; and
(c) all information provided to the directors at or prior to such
meeting in respect of the matters to be discussed thereat.
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2.14 [Reserved].
2.15 Transition of Articles. The Shareholders acknowledge that as soon
as practicable after the Closing, the Articles of Association will be amended as
set forth in the revised Articles of association delivered at the Closing. All
section references to the Articles of Association contained in this Agreement
are references to the revised Articles of Association. Prior to the
effectiveness of the revised Articles, each holder of Shares agrees to cast all
votes and take other actions reasonably required, including the waiver of rights
of first refusal, to permit Transfers permitted under this Agreement and not to
permit Transfers not permitted under this Agreement.
2.16 Repurchase of Shares. Each holder of Shares agrees as a continuous
obligation that, upon and after the delivery of a Put Notice to Miami Cruiseline
Services Holdings II B.V. ("Holdco II") in accordance with, and in compliance
with the time periods provided under, the Put Agreements dated as of September
17, 1998 between Holdco II and each of New York Life Insurance Company, The
Northwestern Mutual Life Insurance Company and American Home Assurance Company
(the "Put Agreements") such holder shall vote its Shares so as to authorize and
direct the Company's management board to cause the Company to authorize and
direct the management board of Holdco II to effect a purchase of the Shares
which are the subject of the Put Notice, at the purchase price for such Shares
which is provided under the applicable Put Agreement.
2.17 Period. The foregoing provisions of this Section 2 shall expire on
the earlier of (i) the closing of a Public Offering and (ii) a Change of
Control.
3. GENERAL TRANSFER PROVISIONS; "TAG ALONG" RIGHTS, "DRAG ALONG"
OBLIGATIONS AND RIGHT OF FIRST OFFER.
3.1 Tag Along. No holder of Shares (each such holder if initiating a
proposed Transfer, an "Initiating Transferor") shall Transfer for value (a
"Sale") any such Shares to any Person (each, a "Prospective Buyer") except
in the manner and on the terms set forth in Sections 3 or 4. Any attempted
Transfer of Shares not permitted by Sections 3 or 4 shall be deemed null
and void, and the Company shall not, to the extent permitted by law, in any
way give effect to any such impermissible Transfer. Any Transfer of Shares
permitted by Sections 3, 4 and 6 of this Agreement, as such Sections work
in conjunction with each other, or required under this Agreement shall be
deemed an Approved Transfer.
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3.1.1. Notice. After compliance with Section 3.4 hereof, a written
notice (the "Tag Along Notice") shall be furnished by all of the Initiating
Transferors to each other holder of Shares (the "Tag Along Offerors"). The
Tag Along Notice shall include:
(a) The principal terms of the proposed Sale, including the
number of Shares to be purchased from the Initiating Transferors, the
percentage of the total number of Shares held by the Initiating
Transferors which such number of Shares constitutes (the "Tag Along
Sale Percentage"), the maximum and minimum per share purchase price
(which minimum price shall be no less than 90% of the maximum price)
and the name and address of the Prospective Buyer; and
(b) An invitation to each Tag Along Offeror to include in the
proposed Sale to the Prospective Buyer a number of Shares which shall
not in any event exceed the Tag Along Sale Percentage of the total
number of Shares held by such Tag Along Offeror on the same terms and
conditions, with respect to each Share sold, as the Initiating
Transferors shall sell each of their Shares.
3.1.2. Exercise. Within 45 days after the effectiveness of the Tag
Along Notice, each Tag Along Offeror desiring to make an offer to include
Shares in the proposed Sale (each a "Participating Seller") shall send a
written offer (the "Tag Along Offer") to the Initiating Transferors
specifying the number of Shares (not in any event to exceed the Tag Along
Sale Percentage of the total number of Shares held by such Participating
Seller) which such Participating Seller desires to have included in the
proposed Sale. Each Tag Along Offeror who does not accept the Initiating
Transferor's invitation to make an offer to include Shares in the proposed
Sale shall be deemed to have waived all of his rights with respect to
participation in such Sale, and the Initiating Transferors and the
Participating Sellers shall thereafter be free to sell to the Prospective
Buyer, at a per Share price no greater than the maximum per share price set
forth in the Tag Along Notice and on other principal terms which are not
materially more favorable to the Initiating Transferors and the
Participating Sellers than those set forth in the Tag Along Notice, without
any further obligation to such non-accepting Tag Along Offerors.
3.1.3. Reduction of Shares Sold. The Initiating Transferors shall use
all reasonable efforts to obtain the inclusion in the proposed Sale of the
entire number of Shares which the Initiating Transferors and each
Participating Seller desires to have included in the Sale (as evidenced in
the case of the Initiating Transferors by the Tag Along Notice and in the
case of each Participating Seller by such Participating Seller's Tag Along
Offer). In the event the Initiating Transferors shall be unable to obtain
the inclusion in the proposed Sale of such entire number of Shares which
each Initiating
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Transferor and Participating Seller desires to have included in the Sale,
the number of Shares to be sold in the proposed Sale by the Initiating
Transferors and each Participating Seller shall be reduced on a pro rata
basis according to the proportion which the number of Shares which each
such Participating Seller and Initiating Transferor desires to have
included in the Sale bears to the total number of Shares desired by all
such Initiating Transferors and Initiating Transferor to have included in
the Sale.
3.1.4. Irrevocable Offer. The offer of each Participating Seller
contained in his Tag Along Offer shall be irrevocable, and, to the extent
such offer is accepted, such Participating Seller shall be bound and
obligated to sell in the proposed Sale on the same terms and conditions as
set forth in such offer, with respect to each Share sold, as the Initiating
Transferor, up to such number of Shares as such Participating Seller shall
have specified in his Tag Along Offer; provided, however, that (a) if the
Initiating Transferors are unable to obtain the inclusion of at least 50%
of the Shares any Participating Seller desires to include in the proposed
Sale, such Participating Seller shall be permitted to withdraw the offer
contained in his Tag Along Offer and shall be released from his obligations
thereunder, (b) if the principal terms of the proposed Sale change with the
result that the per Share price shall be less than the minimum per Share
price set forth in the Tag Along Notice or the other principal terms shall
be materially less favorable to the Initiating Transferors and the
Participating Sellers than those set forth in the Tag Along Notice, each
Participating Seller shall be permitted to withdraw the offer contained in
his Tag Along Offer and shall be released from his obligations thereunder
and (c) if at the end of the 90th day following the date of the
effectiveness of the Tag Along Notice the Initiating Transferor have not
completed the proposed Sale, each Participating Seller shall be released
from his obligations under his Tag Along Offer, the Tag Along Notice shall
be null and void, and it shall be necessary for a separate Tag Along Notice
to be furnished, and the terms and provisions of this Section 3.1
separately complied with, in order to consummate such Sale pursuant to this
Section 3.1.
3.1.5. Additional Compliance. If, prior to consummation, the terms of
the proposed Sale shall change with the result that the per Share price
shall be greater than the maximum per Share price set forth in the Tag
Along Notice or the other principal terms shall be materially more
favorable to the Initiating Transferor and the Participating Sellers than
those set forth in the Tag Along Notice, the Tag Along Notice shall be null
and void, and it shall be necessary for a separate Tag Along Notice to be
furnished, and the terms and provisions of this Section 3.1 separately
complied with, in order to consummate such proposed Sale pursuant to this
Section 3.1.
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15
3.1.6. Excluded Transactions. Notwithstanding the foregoing no other
holder of Shares shall have any right of participation pursuant to the
provisions of this Section 3.1 or otherwise with respect to any Transfer:
(a) to the Investor or an Affiliated Fund within 90 days of the
date of this Agreement;
(b) by the Investor or an Affiliated Fund pro rata to its
partners, members or Affiliates of such partners or members within 90
days of the date of this Agreement;
(c) in an Initial Public Offering or to the public under Rule
144;
(d) with respect to which the Majority Investors exercise their
"drag along" rights under Section 3.2 of this Agreement;
(e) in a Sale to the Company pursuant to Sections 4.3.1 or 4.3.2
or a sale to one or more Shareholders pursuant to Sections 4.3.1 or
4.3.2;
(f) in a Sale of Investor Shares if, after giving effect to such
Sale, the initial holders of Investor Shares will continue to own not
less than 90% of the shares initially issued to the Investor;
(g) in a Transfer permitted pursuant to Section 4.1 or 4.2;
(h) in a Transfer by any holder of Shares to a Member of the
Immediate Family of such holder or to a trust, the sole beneficiary of
which is the holder or a Member of the Immediate Family of such
holder; provided, however, that no such Transfer shall be permitted
until such Member of the Immediate Family has delivered to the Company
a written acknowledgment and agreement in form and substance
reasonably satisfactory to the Company that the Investor Shares,
Subscriber Shares or Management Shares to be received by such Member
of the Immediate Family are subject to all the provisions of this
Agreement and that such Member of the Immediate Family is bound hereby
and a party hereto as a holder of Subscriber Shares or Management
Shares, as the case may be; or
(i) from the Interim Purchaser or any Affiliate to any employee
of Greyhound Leisure Services Inc., within 60 days from the date of
this Agreement.
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16
(j) from any Lender to Holders II pursuant to the put right in
the Put Agreements.
3.2 Drag Along. After compliance with the terms of Section 3.4 hereof,
each holder of Shares or Options hereby agrees, if requested by the Majority
Investors, to sell all of such holder's Shares and Options to a Person other
than an Affiliate of the Investor (each, a "Prospective Buyer") in the manner
and on the terms set forth in this Section 3.2 in connection with the Sale by
the Majority Investors of the total number of Investor Shares held by the
Majority Investors; provided, however, that (i) the provisions of this Section
3.2 shall not apply unless the Majority Investors are collectively selling all
of the Common Stock then held by the Majority Investors, (ii) the Participating
Sellers (as defined below) receive the same type and amount of consideration,
fees, payments, etc., on a pro rata basis, as the Majority Investors and (iii)
the provisions of this Section 3.2 shall not apply to a Sale to an Affiliated
Fund or an Affiliate of either Berkshire Partners LLC or an Affiliated Fund.
3.2.1. Exercise. If the Majority Investors elect to exercise
their rights under this Section 3.2, a written notice (the "Drag Along
Notice") shall be furnished by the Majority Investors to each other
holder of Shares and Options. The Drag Along Notice shall set forth the
principal terms of the proposed Sale, including the number of Shares to
be purchased from the Majority Investors, the consideration (which
shall be only in cash or Cash Equivalents) and expected per share price
and the name and address of the Prospective Buyer. If the Majority
Investors consummate the proposed Sale to which reference is made in
the Drag Along Notice, each other holder of Shares and Options (each a
"Participating Seller") shall be bound and obligated to sell his Shares
in the proposed Sale on the same terms and conditions, with respect to
each Share sold, as the Majority Investors shall sell each Investor
Share in the Sale. If, at the end of the 90th day following the date of
the effectiveness of the Drag Along Notice, the Majority Investors have
not completed the Sale, each Participating Seller shall be released
from his obligation under the Drag Along Notice, the Drag Along Notice
shall be null and void, and it shall be necessary for a separate Drag
Along Notice to be furnished and the terms and provisions of this
Section 3.2 separately complied with, in order to consummate such Sale
pursuant to this Section 3.2.
3.3 Miscellaneous. The following provisions shall be applied to any
Sale to which Section 3.1 or 3.2 applies:
3.3.1. Certain Legal Requirements. In the event the
consideration to be paid in exchange for Shares in the proposed Sale
pursuant to Section 3.1 includes any securities and the receipt thereof
by a holder of Shares as a Participating Seller would require under
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17
applicable law (i) the registration or qualification of such securities
or of any person as a broker or dealer or agent with respect to such
securities or (ii) the provision to any participant in the Sale of any
information other than such information as would be required under
Regulation D in an offering made pursuant to Regulation D solely to
"accredited investors" as defined in Regulation D, the Majority
Investors or Prospective Subscribers, respectively, shall be obligated
only to use their reasonable efforts to cause the requirements under
Regulation D to be complied with to the extent necessary to permit such
Participating Seller to receive such securities, it being understood
and agreed that the Majority Investors shall not be under any
obligation to effect a registration of such securities under the
Securities Act or similar state statutes. Notwithstanding any
provisions of this Section 3, if use of reasonable efforts does not
result in the requirements under Regulation D being complied with to
the extent necessary to permit such Participating Seller to receive
such securities, the Majority Investor or Prospective Subscribers,
respectively, shall cause to be paid to such Participating Seller in
lieu thereof, against surrender of the Shares (in accordance with
Section 3.3.5 hereof) which would have otherwise been sold by such
Participating Seller to the Prospective Buyer in the Sale, an amount in
cash equal to the Equivalent Value of the securities which such
Participating Seller would otherwise receive as of the date of the
issuance of such securities in exchange for Shares. The obligation of
the Majority Investor or Prospective Subscribers, respectively, to use
reasonable efforts to cause such requirements to have been complied
with to the extent necessary to permit a Participating Seller to
receive such securities shall be conditioned on such Participating
Seller executing such documents and instruments, and taking such other
actions (including, without limitation, if required by the Majority
Investor, to the extent that the Participating Seller is not an
accredited investor, agreeing to be represented during the course of
such transaction by a "purchaser representative" (as defined in
Regulation D) in connection with evaluating the merits and risks of the
prospective investment and acknowledging that he was so represented),
as the Majority Investor or Prospective Subscribers, respectively,
shall reasonably request in order to permit such requirements to be
complied with. Unless the Participating Seller in question shall have
taken all actions reasonably requested by the Majority Investor or
Prospective Subscribers, respectively, in order to comply with the
requirements under Regulation D, no Participating Seller shall have the
right to require the payment of cash in lieu of securities under this
Section 3.3.1.
3.3.2. Further Assurances. Each Participating Seller, whether
in his capacity as a Participating Seller, Shareholder, officer or
director of the Company, or otherwise shall, to the fullest extent
permitted by applicable law, take or cause to be taken all such actions
as may be necessary or reasonably desirable in order expeditiously to
consummate each Sale pursuant to Section 3.1 or Section 3.2 and any
related transactions, including,
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18
without limitation, executing, acknowledging and delivering consents,
assignments, waivers and other documents or instruments; furnishing
information and copies of documents; filing applications, reports,
returns, filings and other documents or instruments with governmental
authorities; and otherwise cooperating with the Majority Investor and
the Prospective Buyer; provided, however, that the extent to which any
Participating Seller shall be obligated to become liable in respect of
any representations, warranties, covenants, indemnities or otherwise to
the Prospective Buyer shall be governed by the provisions of the
immediately following sentence. Without limiting the generality of the
foregoing, each Participating Seller agrees to execute and deliver such
agreements as may be reasonably specified by the Majority Investor to
which such Majority Investor or Prospective Subscribers, respectively,
will also be party, including, without limitation, an agreement by such
Participating Seller to (a) make individual representations as to the
unencumbered title to its Shares and the power, authority and legal
right to transfer such Shares to the extent such agreements are also
made by the Majority Investor and (b) be liable in respect of any
purchase price escrow or adjustment provisions or reduction in purchase
price as may apply to Shareholders generally resulting from
representations, warranties, covenants and indemnities in respect of
the Company to the extent that the Majority Investor or Prospective
Subscribers, respectively, are also liable; provided, however, that
such liability shall be several, and not joint, and, (i) except with
respect to individual representations, warranties, covenants,
indemnities and other agreements of holders of Shares, the aggregate
amount of such liability shall not exceed the lesser of (a) such
Participating Seller's pro rata portion of any such liability, in
accordance with such Participating Seller's portion of the total number
of Shares included in the Sale or (b) the proceeds to such
Participating Seller as a result of such Sale and (ii) with respect to
individual representations, warranties, covenants, indemnities and
other agreements of holders of Shares, the aggregate amount of such
liability shall not exceed the proceeds to such Participating Seller as
a result of such Sale.
3.3.3. Certain Determinations. The Tag Along Sale Percentage
for purposes of Section 3.1 shall be determined on the basis of
Equivalent Shares. The Consideration to be paid to any holder of
Options shall be reduced by the exercise price for the shares pursuant
to the Options.
3.3.4. Expenses. All reasonable and documented costs and
expenses incurred by any holder of Shares or the Company in connection
with any proposed Sale pursuant to this Section 3 (whether or not
consummated), including, without limitation, all attorneys fees and
charges, all accounting fees and charges and all finders, brokerage or
investment banking fees, charges or commissions, shall be paid by the
Company.
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19
3.3.5. Closing. The closing of a Sale pursuant to Section 3.1
or 3.2 shall take place at such time and place as the Initiating
Transferor or Majority Investor, respectively, shall specify by notice
to each Participating Seller. The closing of a Sale pursuant to Section
3.4 shall take place as soon as reasonably practicable and in no event
later than 60 days after termination of the applicable exercise period
at the principal office of the Company, or at such other time and
location as the parties to such purchase may mutually determine. At the
closing of any Sale under this Section 3, each Participating Seller
shall transfer the Shares to be sold by such Participating Seller,
through the execution of a deed before the Dutch civil law notary
(notaris), for transfer with signature guaranteed, free and clear of
any liens or encumbrances, against delivery of the applicable
consideration.
3.4 Right of First Offer. No holder of Shares shall Transfer any of
such Shares to any Prospective Buyer except as permitted by this Section 3.4.
Any attempted Transfer of Shares not permitted by this Section 3.4 shall be
deemed null and void, and the Company shall not, to the extent permitted by law,
in any way give effect to any such impermissible Transfer.
3.4.1. Notice; Offer. The holder of Shares proposing to
Transfer such Shares shall deliver to each holder of Investor Shares,
Subscriber Shares, Lender Shares or Management Shares (each, a "Sale
Offeree") a notice (a "Sale Notice") of the holder's intention to
Transfer such Shares. Such notice shall include:
(a) The principal terms of the proposed Transfer,
including the number of Shares to be sold, the proposed price
per Share to be received and the form of consideration which
the holder of Shares proposes to offer to accept from any
transferee in such Transfer (which may only be consideration
readily obtainable and deliverable by the Sale Offerees in
compliance with law) and;
(b) An offer by the holder of Shares to sell to the
Sale Offerees all of the Shares to be Transferred, on the same
terms and conditions (subject to Section 3.4.1(a)), with
respect to each Share so Transferred, as the holder of Shares
proposes to Transfer such Shares as described in the Sale
Notice.
3.4.2. Exercise. Each Sale Offeree desiring to accept the
offer contained in the Sale Notice shall send a written commitment to
the holder of Shares in question specifying the number of Shares which
such Sale Offeree desires to purchase within 30 days after the
effectiveness of the Sale Notice (each a "Participating Offeree"). In
the event that the Sale Offerees, in the aggregate, do not agree to
accept the offer to purchase
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20
all of the Shares offered for Sale in the Sale Notice, then each Sale
Offeree shall be deemed to have waived all of its rights to purchase
such Shares prior to such proposed Transfer, and the holder of Shares
in question shall thereafter be free to Transfer in a transaction which
is exempt from the registration requirements of applicable securities
laws to one or more Persons, at a price no less than 95% of the per
Share price set forth in the Sale Notice and on other principal terms
not materially more favorable to the buyer than as set forth in the
Sale Notice, without any further obligation to such non-accepting Sale
Offerees pursuant to this Section 3.4; provided, however, that no such
Transfer shall be effective until such Person has delivered to the
Company a written acknowledgment and agreement in form and substance
reasonably satisfactory to the Company that the Shares to be acquired
by such buyer are subject to all the provisions of this Agreement and
that such buyer is bound hereby and a party hereto as a holder of the
category of Shares which were held by the selling holder.
In the event that the Participating Offerees, in the
aggregate, agree to accept the offer to purchase all of the Shares
offered for Sale in the Sale Notice, then (i) each Sale Offeree who has
not accepted such offer shall be deemed to have waived all of its
rights to purchase such Shares prior to such proposed Transfer and (ii)
in the event the Participating Offerees desire to purchase more Shares
than are being offered pursuant to the Sale Notice, each Participating
Offeree shall be deemed to have accepted an offer to purchase an
allocated portion (such portion to be allocated by agreement among the
Participating Offerees or, to the extent such agreement cannot be
reached, by proration among such Participating Offerees on the basis of
the number of Shares such Participating Offerees committed to purchase)
of such Shares. If, prior to consummation, the terms of such proposed
Transfer shall change with the result that the price shall be less than
95% of the per Share price set forth in the Sale Notice or the other
principal terms shall be materially more favorable to the buyer than
those set forth in the Sale Notice, it shall be necessary for a
separate Sale Notice to have been furnished, and the terms and
provisions of this Section 3.4 separately complied with, in order to
consummate such proposed Transfer pursuant to this Section 3.4.
If, at the end of the 90th day following the date of the
effectiveness of the Sale Notice, the holder of Shares in question has
not completed the Transfer, each Participating Offeree shall be
released from its obligations under its written commitment, the Sale
Notice shall be null and void, and it shall be necessary for a separate
Sale Notice to have been furnished, and the terms and provisions of
this Section 3.4 separately complied with, in order to consummate such
Transfer pursuant to this Section 3.4.
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21
3.4.3. Excluded Transactions. Notwithstanding the foregoing
provisions of this Section 3.4, no holder of Shares shall have any
right to a First Offer Notice or offer pursuant to this Section 3.4
with respect to any Transfer:
(a) to an Investor or an Affiliated Fund within 90 days of
the date of this Agreement;
(b) by the Investor or an Affiliated Fund pro rata to its
partners, members or Affiliates of such partners or members
within 90 days of the date of this Agreement;
(c) in a Public Offering or to the Public under Rule 144;
(d) in a Transfer permitted pursuant to Section 4.1 or 4.2;
(e) in a Transfer among Subscribers;
(f) in a Transfer by any holder of Shares to a Member of the
Immediate Family of such holder or to a trust, the sole
beneficiary of which is the holder or a Member of the Immediate
Family of such holder; provided, however, that no such Transfer
shall be effective until such Member of the Immediate Family has
delivered to the Company a written acknowledgment and agreement
in form and substance reasonably satisfactory to the Company that
the Investor Shares, Subscriber Shares or Management Shares to be
received by such Member of the Immediate Family are subject to
all the provisions of this Agreement and that such Member of the
Immediate Family is bound hereby and a party hereto as a holder
of Subscriber Shares or Management Shares, as the case may be; or
(g) from the Interim Purchaser or any Affiliate to any
employee of Greyhound Leisure Services Inc., within 60 days from
the date of this Agreement.
(h) from any Lender to Holdco II pursuant to the put right
in the Put Agreement.
3.5 Period. The foregoing provisions of this Section 3 shall expire on
the earlier of (i) the closing of a Public Offering or (ii) a Change of Control.
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4. SUBSCRIBER AND MANAGEMENT TRANSFER RIGHTS. No holder of Subscriber Shares or
Management Shares shall Transfer any of such Shares to any other Person except
as permitted by Sections 3 or 4. Any attempted Transfer of Subscriber Shares or
Management Shares not permitted by this Section 4 shall deemed null and void,
and the Company shall not, to the extent permitted by law, in any way give
effect to any such impermissible Transfer.
4.1 Transfers to Immediate Family. Any holder of Subscriber Shares or
Management Shares may Transfer any or all of such person's Subscriber Shares or
Management Shares to a Member of the Immediate Family of such holder or to a
trust, the sole beneficiary of which is the holder or a Member of the Immediate
Family of such holder; provided, however, that no such Transfer shall be
permitted until such Member of the Immediate Family has delivered to the Company
a written acknowledgment and agreement in form and substance reasonably
satisfactory to the Company that the Subscriber Shares or Management Shares to
be acquired by such Member of the Immediate Family are subject to all the
provisions of this Agreement and that such Member of the Immediate Family is
bound hereby and a party hereto as a holder of Subscriber Shares or Management
Shares, as the case may be.
4.2 Transfer Upon Death. Subject to the provisions of Section 5 hereof,
upon the death of any holder of Subscriber Shares or Management Shares, the
Subscriber Shares or Management Shares held by such holder may be distributed by
will or other instrument taking effect at death or by applicable laws of descent
and distribution to such holder's estate, executors, administrators and personal
representatives, and then to such holder's heirs, legatees or distributees,
whether or not such recipients are Members of the Immediate Family of such
holder; provided, however, that no such Transfer shall be permitted until the
recipient has delivered to the Company a written acknowledgment and agreement in
form and substance reasonably satisfactory to the Company that the Subscriber
Shares or Management Shares to be acquired by such recipient are subject to all
the provisions of this Agreement and that such recipient is bound hereby and a
party hereto as a holder of Subscriber Shares or Management Shares as the case
may be.
4.3 Other Permitted Transfers. Notwithstanding the foregoing, any
Subscriber or Management Investor may Transfer any or all Subscriber Shares or
Management Shares held by such Person respectively as set forth below:
4.3.1. Investors and Company. Any holder of Subscriber Shares
or Management Shares may Transfer any or all of such Subscriber Shares
or Management Shares to (i) the Investor, an Affiliated Fund or a
Subscriber or (ii) with the Board's approval, the Company or any
subsidiary of the Company.
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4.3.2. Calls. Any holder of Management Shares may Transfer any
or all of such Management Shares in accordance with the provisions,
terms and conditions of Section 5.1 hereof.
4.3.3. Tag Alongs, Drag Alongs, Right of First Refusal, etc.
Any holder of Subscriber Shares or Management Shares may Transfer any
or all of such Subscriber Shares or Management Shares in accordance
with the provisions, terms and conditions of Section 3 hereof.
4.3.4. Sales to Public. Subject to the provisions of Sections
5 any holder of Subscriber Shares or Management Shares may Transfer any
or all of such Subscriber Shares or Management Shares in a Public
Offering registered under the Securities Act or pursuant to Rule 144.
4.4 Period. The foregoing provisions of this Section 4 shall expire on
the earlier of (i) the closing of the Initial Public Offering or (ii) a Change
of Control.
5. OPTIONS TO PURCHASE SHARES.
5.1 Call Options. Upon any termination of the employment by the Company
or its subsidiaries of any holder of Management Shares, the Company shall have
the right to purchase for cash or notes (as provided below in this Section 5.1)
the Management Shares held by such holder or originally issued to such holder
but held by one or more Permitted Transferees (collectively, the "Shareholder
Call Group") on the following terms; provided, however, that no such call may be
made if the payment of the applicable purchase price as set forth below would
constitute, result in or give rise to any breach or violation of, or any default
under, any of the Company's credit agreements. (the "Call Option"). Any Transfer
required under this Article 5 shall be an Approved Transfer. Any holder of
Shares Transferring such Shares pursuant to this Article 5 will consent to the
Company's purchase of such shares.
5.1.1. Termination.
5.1.1.1 Termination due to Death or Disability or by Company
without Cause
(a) If such termination is the result of (i) the death or
disability of such holder, (ii) termination of such holder's
employment by the Company or its subsidiaries without Cause or
(iii) termination by the holder then, in any such
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24
event, the Company may purchase all or any portion of the
Management Shares which were acquired upon exercise of Options
and which are held by such holder (or Permitted Transferee, if
applicable) at a per Share price equal to the Fair Market Value
of such Shares; provided, however, that notwithstanding the
foregoing, if such termination occurs pursuant to clause (ii)
above, and if within 90 days after such termination the Company
consummates an Initial Public Offering or a Change of Control
occurs, then Fair Market Value shall be deemed to be the price to
the public in the Initial Public Offering or the value as
ascribed to the Shares in the Change of Control, as the case may
be, and the amount payable under this Section 5.1.1.1(a) shall be
retroactively adjusted if it would result in a higher payment to
the holder of Management Shares. In the event the holder
disagrees with the Board's determination of Fair Market Value,
the holder may give written notice to the Company of a demand for
a third-party appraisal of the value of the Shares. Within 30
days after the receipt of such notice, such holder and the
Company shall agree upon the selection of an independent
investment banking firm to perform the appraisal. If the parties
are unable to agree upon the selection of an independent
investment banking firm, each shall make a selection, and the two
firms so chosen shall nominate the independent investment banking
firm. Within 60 days of the date of selection of the independent
investment banking firm, such firm shall prepare a written report
detailing its determination as to the fair value of a Share
(without giving effect to minority discounts or the terms of this
Agreement). Absent manifest error, the fair value as so
determined shall be the price used in lieu of Fair Market Value
for purposes of this Section 5.1.1.1. The fees and expenses of
the investment banking firm shall be borne one-half by the
Company and one-half by the holder.
(b) Subject to the provisions of Section 5.1.2, in each case
Shares are purchased pursuant to clause (a) above, the Company
will pay for such Shares by (i) paying the holder not less than
one-half of the purchase price in cash, as determined by the
Board and (ii) issuing for the balance of the purchase price not
so paid in cash a promissory note in a principal amount equal to
such balance. The principal of such note will be due and payable
in four equal annual installments, the first such installment
becoming due and payable on the first anniversary of the issuance
of such note, and interest will accrue thereon at a rate equal to
the applicable federal rate at the date of issuance and be
payable annually in arrears, in each case subject to the
provisions of Section 5.1.2. Such note shall be fully
subordinated to any indebtedness or similar obligations
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of the Company owing to banks or other financial institutions to
such extent as any such bank or financial institution may
reasonably request.
5.1.1.2 Termination by Company for Cause.
(a) If such termination is the result of termination of such
holder's employment by the Company for Cause, then the Company
may purchase all or any portion of the Management Shares held by
such holder (or Permitted Transferee, if applicable) at a per
Share price equal to the lesser of the Cost or the Fair Market
Value of such Shares.
(b) In each case Shares are purchased pursuant to clause (a)
above, unless the Board determines otherwise, the Company will
pay for such Shares by issuing a promissory note in a principal
amount equal to the purchase price. The principal of such note
will be due and payable in four equal annual installments, the
first such installment becoming due and payable on the first
anniversary of the issuance of such note, and interest will
accrue thereon at a rate equal to the applicable federal rate and
be payable annually in arrears, in each case subject to the
provisions of Section 5.1.2. Such note shall be fully
subordinated to any indebtedness or similar obligations of the
Company owing to banks or other financial institutions to such
extent as any such bank or financial institution may reasonably
request.
5.1.2. Cash Payments. If it is determined after the date of the
Call Notice (as defined in Section 5.1.3) that any payment of cash
required under the terms of this Section 5.1 or any payment on a
promissory note issued hereunder would (a) constitute, result in or
give rise to any breach or violation of, or any default or right or
cause of action under, any agreement to which the Company or any of
its subsidiaries is, from time to time, a party or (b) leave the
Company and its subsidiaries with less cash than, in the good faith
judgment of the Board, is desirable to operate the business of the
Company and its subsidiaries in the ordinary course of business, then,
(i) in the case of a cash payment under Sections
5.1.1.1(b)(i), the Company will issue a promissory note of the
type described in the second and third sentences of Sections
5.1.1.1(b) in the aggregate principal amount of such payment, and
(ii) in the case of the cash payment in respect of a
promissory note issued under this Section 5.1, notwithstanding
any of the provisions of such
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26
note, including without limitation, the stated maturity of such
note and the stated date on which interest payments are due, such
payment will not become due and payable until such time as such
payment can be made without violating any such agreement and not
resulting in the Company and its subsidiaries having less cash
than the Board determines is desirable to operate the business as
contemplated above.
5.1.3. Notices, etc. Any Call Option may be exercised by delivery
of written notice thereof (the "Call Notice") to all members of the
applicable Shareholder Call Group within 120 days of the effectiveness
of the termination of employment in question (the "Call Option
Exercise Period"). The Call Notice shall state that the Company has
elected to exercise the Call Option, and the number and price of the
Shares with respect which the Call Option is being exercised.
5.2 Closing. The closing of any purchase and sale of Management Shares
pursuant to the exercise of any Call Options pursuant to this Section 5 shall
take place as soon as reasonably practicable and in no event later than 30 days
after termination of the applicable Call Option Exercise Period at the principal
office of the Company, or at such other time and location as the parties to such
purchase may mutually determine. In the event the price of any Shares to be
purchased is specified to be Fair Market Value, such Fair Market Value shall be
determined as of the date of the applicable Termination Event. At the closing of
any purchase and sale of Management Shares pursuant this Section 5, the holder
of Shares to be sold shall transfer to the Company the Shares to be purchased by
the Company through the execution of a deed before a Dutch civil law notary
(notaris), for transfer with signature guaranteed, free and clear of any lien or
encumbrance, and the Company shall pay to such holder by certified or bank check
or wire transfer of immediately available federal funds or note, as may be
applicable pursuant to Section 5.1.1 and 5.1.2, the purchase price of the Shares
being purchased by the Company. The delivery of a certificate or certificates,
if any, for Shares by any Person selling Shares pursuant to this Section 5 shall
be deemed a representation and warranty by such Person that: (i) such Person has
full right, title and interest in and to such Shares; (ii) such Person has all
necessary power and authority and has taken all necessary action to sell such
Shares as contemplated; and (iii) such Shares are free and clear of any and all
liens or encumbrances.
5.3 Period. The foregoing provisions of this Section 5 shall expire on
the earlier of (i) the closing of the Initial Public Offering or (ii) a Change
of Control.
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6. CERTAIN ISSUANCES AND TRANSFERS, ETC.
6.1 Transfers to Permitted Transferees. Each holder of Shares agrees
that it will not Transfer any such shares to any Permitted Transferee unless
such Permitted Transferee has delivered to the Company a written acknowledgment
and agreement that such shares to be acquired by such Permitted Transferee shall
become or remain Investor Shares, Subscriber Shares, Lender Shares or Management
Shares hereunder, as the case may be, and shall continue to be subject to all of
the provisions of this Agreement and that such Permitted Transferee shall be
bound by and a party to this Agreement as the holder of Investor Shares,
Subscriber Shares, Lender Shares or Management Shares, as the case may be,
hereunder; provided, however, that no transfer by any party to a Permitted
Transferee shall relieve such party of any of its obligations hereunder.
6.2 Other Transfers and Issuances. Notwithstanding any other provision
of this Agreement, (i) Shares transferred pursuant to Section 3.1 (other than
Section 3.1.6(a), (b), (e), (f), (g) or (h)) or Section 3.2 hereof or in a
Public Offering or to the public under Rule 144 shall be conclusively deemed
thereafter not to be Shares under this Agreement and not to be subject to any of
the provisions hereof or entitled to the benefit of any of the provisions
hereof, and (ii) any Shares acquired by any Investor, Subscriber, Lender or
Management Investor shall be deemed to be Investor Shares, Subscriber Shares,
Lender Shares or Management Shares, respectively.
6.3 Certain Issuances and Redemptions. The Company shall not issue
Shares at a price below fair market value, except pursuant to the Company's
option plan if permitted by such plan and by law. The Company shall not redeem
shares at a price above fair market value. For purposes of this Section 6.3 fair
market value shall be determined in good faith by the Board.
7. PREEMPTIVE RIGHT. The Company shall not issue or sell any shares of any
of its capital stock or any securities convertible into or exchangeable for any
shares of its capital stock, or securities which are linked with the issuance of
its capital stock, issue or grant any options or warrants for the purchase of,
or enter into any agreements providing for the issuance (contingent or
otherwise) of, any of its capital stock or any stock or securities convertible
into or exchangeable for any shares of its capital stock, (each an "Issuance" of
"Subject Securities"), except in compliance with the following provisions of
this Section 7.
7.1 Right of Participation.
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7.1.1. Offer. Not fewer than 30 days prior to the consummation
of the Issuance, a notice (the "Preemption Notice") shall be furnished
by the Company to each holder of Shares (other than holders of Shares
solely issuable upon exercise of Options) (the "Preemptive Offerees").
The Preemption Notice shall include:
(a) The principal terms of the proposed Issuance,
including, without limitation, the amount and kind of Subject
Securities to be included in the Issuance, the number of
Equivalent Shares represented by such Subject Securities (if
applicable), the percentage of the total number of Shares
outstanding as of immediately prior to giving effect to such
Issuance which the number of Shares held by such Preemptive
Offeree constitutes (the "Preemptive Portion"), the maximum
and minimum price (including, without limitation, if
applicable, the maximum and minimum Price Per Equivalent
Share) per unit of the Subject Securities and the name and
address of the Persons to whom the Subject Securities will be
Issued (the "Prospective Subscriber");
(b) An offer by the Company to Issue, at the option
of each Preemptive Offeree, to such Preemptive Offeree such
portion of the Subject Securities to be included in the
Issuance as may be requested by such Preemptive Offeree (not
to exceed the Preemptive Portion of the total amount of
Subject Securities to be included in the Issuance), on the
same terms and conditions, with respect to each unit of
Subject Securities issued to the Preemptive Offerees, as each
of the Prospective Subscribers shall be Issued units of
Subject Securities; and
(c) A resolution by the Board indicating that it is
the Board's good faith determination that the price of the
Issuance is fair from a financial point of view to the
Company.
If reasonably requested by the Company, any Preemptive Offeree who is not an
original party to this Agreement may be required to furnish evidence of such
Preemptive Offeree's financial ability as a condition to such Preemptive
Offeree's acceptance of the offer made pursuant to clause (b) above.
7.1.2. Exercise.
7.1.2.1 General. Each Preemptive Offeree desiring to
accept the offer contained in the Preemption Notice shall
send a written commitment to the Company specifying the
amount of Subject Securities (not in any event to exceed the
Preemptive Portion of the total amount of Subject Securities
to be
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included in the Issuance) which such Preemptive Offeree
desires to be issued within 20 days after the effectiveness of
the Preemption Notice (each a "Participating Buyer"). Each
Preemptive Offeree who has not so accepted such offer shall be
deemed to have waived all of his rights with respect to the
Issuance, and the Company shall first offer to the
Participating Buyers the right to purchase the Subject
Securities that the Preemptive Offerees collectively have
elected not to purchase on the same terms as were offered to
the Preemptive Offeree based on the number of Subject
Securities each Participating Buyer has elected to purchase,
and the Company shall thereafter be free to Issue Subject
Securities in the Issuance to the Prospective Subscriber, at a
price no less than the minimum price set forth in the
Preemption Notice and on other principal terms not
substantially more favorable to the Prospective Subscriber
than those set forth in the Preemption Notice, without any
further obligation to such non-accepting Preemptive Offerees.
If, prior to consummation, the terms of such proposed Issuance
shall change with the result that the price shall be less than
the minimum price set forth in the Preemption Notice or the
other principal terms shall be substantially more favorable to
the Prospective Subscriber than those set forth in the
Preemption Notice, it shall be necessary for a separate
Preemption Notice to be furnished, and the terms and
provisions of this Section 7.1 separately complied with, in
order to consummate such Issuance pursuant to this Section
7.1.
7.1.2.2 Irrevocable Acceptance. The acceptance of
each Participating Buyer shall be irrevocable except as
provided in Section 7.1.2.1 above or 7.1.2.3 below, and each
such Participating Buyer shall be bound and obligated to
acquire in the Issuance on the same terms and conditions, with
respect to each unit of Subject Securities Issued, as the
Prospective Subscriber, such amount of Subject Securities as
such Participating Buyer shall have specified in such
Participating Buyer's written commitment.
7.1.2.3 Time Limitation. If at the end of the 120th
day following the date of the effectiveness of the Preemption
Notice the Company has not completed the Issuance, each
Participating Buyer shall be released from his obligations
under the written commitment, the Preemption Notice shall be
null and void, and it shall be necessary for a separate
Preemption Notice to be furnished, and the terms and
provisions of this Section 7.1 separately complied with, in
order to consummate such Issuance pursuant to this Section
7.1.
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7.1.3. Other Securities. The Company may condition the
participation of the Preemptive Offerees in an Issuance upon the
purchase by such Preemptive Offerees of any securities (including,
without limitation, debt securities) linked with capital stock ("Other
Securities") in the event that the participation of the Prospective
Subscriber in such Issuance is so conditioned. In such case, each
Participating Buyer shall acquire in the Issuance, together with the
Subject Securities to be acquired by it, Other Securities in the same
proportion to the Subject Securities to be acquired by it as Other
Securities are acquired by the Prospective Subscriber in proportion to
the Subject Securities acquired in the Issuance by such Prospective
Subscriber, on the same terms and conditions, as to each unit of
Subject Securities and Other Securities issued to the Participating
Buyers, as the Prospective Subscriber shall be issued units of Subject
Securities and Other Securities.
7.1.4. Certain Legal Requirements. In the event that the
participation in the Issuance by a holder of Shares as a Participating
Buyer would require under applicable law (i) the registration or
qualification of such securities or of any person as a broker or dealer
or agent with respect to such securities or (ii) the provision to any
participant in the Sale of any information other than such information
as would be required under Regulation D in an offering made pursuant to
Regulation D solely to "accredited investors" as defined in Regulation
D, the Company shall be obligated only to use its reasonable efforts to
cause the requirements under Regulation D to be complied with to the
extent necessary to permit such Participating Buyer to receive such
securities, it being understood and agreed that the Company shall not
be under any obligation to effect a registration of such securities
under the Securities Act or similar state statutes. Notwithstanding any
provision of this Section 7, if the use of reasonable efforts shall not
result in such requirements being complied with to the extent necessary
to permit such holder of Shares to participate in the Issuance, such
holder shall not be entitled to participate in the Issuance. The
obligation of the Company to use reasonable efforts to cause such
requirements to be complied with to the extent necessary to permit a
holder of Shares to participate in the Issuance shall be conditioned
upon such holder of Shares executing such documents and instruments,
and taking such other actions (including, without limitation, if
required by the Company to the extent that the holder of Shares is not
an accredited investor, agreeing to be represented during the course of
such transaction by a "purchaser representative" (as defined in
Regulation D) in connection with evaluating the merits and risks of the
prospective investment and acknowledging that he was so represented),
as the Company shall reasonably request in order to permit such
requirements to have been complied with.
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7.1.5. Further Assurances. Each Participating Buyer and each
Shareholder to whom the Shares held by such Participating Buyer were
originally issued, shall, to the fullest extent permitted by applicable
law, whether in his capacity as a Participating Buyer, Shareholder,
officer or director of the Company, or otherwise, take or cause to be
taken all such reasonable actions as may be necessary or reasonably
desirable in order expeditiously to consummate each Issuance pursuant
to this Section 7.1 and any related transactions, including, without
limitation, executing, acknowledging and delivering consents,
assignments, waivers and other documents or instruments; filing
applications, reports, returns, filings and other documents or
instruments with governmental authorities; and otherwise cooperating
with the Company and the Prospective Subscriber. Without limiting the
generality of the foregoing, each such Participating Buyer and
Shareholder agrees to execute and deliver such subscription and other
agreements specified by the Company to which the Prospective Subscriber
will be party.
7.1.6. Expenses. All reasonable and documented costs and
expenses incurred by any holder of Shares or the Company in connection
with any proposed Issuance of Subject Securities (whether or not
consummated), including, without limitation, all attorney's fees and
charges, all accounting fees and charges and all finders, brokerage or
investment banking fees, charges or commissions, shall be paid by the
Company.
7.1.7. Closing. The closing of an Issuance pursuant to Section
7.1 shall take place at such time and place as the Company shall
specify by notice to each Participating Buyer. At the Closing of any
Issuance under this Section 7.1.7, each Participating Buyer shall be
delivered the notes, certificates or other instruments evidencing the
Subject Securities (and, if applicable, Other Securities) to be Issued
to such Participating Buyer, registered in the name of such
Participating Buyer or his designated nominee, free and clear of any
liens or encumbrances, with any transfer tax stamps affixed, against
delivery by such Participating Buyer of the applicable consideration.
7.2 Excluded Transactions. Notwithstanding the preceding provisions of
this Section 7, the preceding provisions of this Section 7 shall not restrict:
(a) Any Issuance of shares of Common Stock, Options or
Convertible Securities to officers, employees, directors or
consultants of the Company or its subsidiaries, other than
Issuances to any such Persons who are also employees or partners
of Berkshire or any of the Affiliated Funds, after the date
hereof provided that such Issuance, together with all prior
Issuances pursuant to this
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Section 7.2(a), shall not exceed 5% of the Common Stock of the
Company as of the Closing on a fully diluted basis;
(b) Any Issuance of shares of Common Stock, Options or
Convertible Securities as consideration for the acquisition after
the date hereof by the Company or any of its subsidiaries of any
acquired businesses from Persons who are Sellers of such acquired
business and who are not Affiliates of Berkshire Partners LLC or
an Affiliated Fund;
(c) any Issuance of warrants in connecting with the Company
or its subsidiaries raising capital from financial institutions
who are not Affiliates of Berkshire Partners LLC or an Affiliated
Fund provided that the Company shall have provided the Lenders
with notice of such financing opportunity;
(d) any Issuance of shares of Common Stock, Options or
Convertible Securities to a strategic investor approved by the
Board who is not an Affiliate of Berkshire Partners LLC or an
Affiliated Fund;
(e) Any Issuance of Common Stock upon the exercise or
conversion of any Options or Convertible Securities outstanding
on the date hereof or Issued after the date hereof in compliance
with the provisions of this Section 7;
(f) Any Issuance of Common Stock pursuant to any Public
Offering; and
(g) The Issuance of Shares to the Investor, the Subscribers,
the Lenders and Management at Closing.
7.3 Period. The foregoing provisions of this Section 7 shall expire on
the earlier of (i) the closing of the Initial Public Offering or (ii) a Change
of Control.
8. REMEDIES.
8.1 Generally. The Company, the holders of Investor Shares, Subscriber
Shares, Lender Shares and Management Shares shall have all remedies available at
law, in equity or otherwise (including without limitation the commencement of a
lawsuit in Federal court or the courts of the State of New York) in the event of
any breach or violation of this Agreement or any default hereunder by the
Company or any holder of Shares. The parties acknowledge and agree that in the
event of any breach of this Agreement, in addition to any other remedies which
may be available, each of the parties hereto shall be entitled to specific
performance of
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the obligations of the other parties hereto and, in addition, to such other
equitable remedies (including, without limitation, preliminary or temporary
injunctive relief) as may be appropriate in the circumstances, without the
requirement of a posting of a bond. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from obtaining any other relief to which
it is entitled.
8.2 Deposit. Without limiting the generality of Section 8.1, if any
Shareholder fails to transfer to the Company the Shares to be sold pursuant to
Section 3.2 or Section 5.1 hereof, the Company may, at its option, in addition
to all other remedies it may have, deposit the purchase price for such Shares
with any national bank or trust company having combined capital, surplus and
undivided profits in excess of Five Hundred Million Dollars ($500,000,000) (the
"Escrow Agent") and the Company shall cancel on its books such Shares and
thereupon all of such holder's rights in and to such Shares shall terminate.
Thereafter, upon transfer to the Company by such holder of such Shares (free and
clear of any liens or encumbrances), the Company shall instruct the Escrow Agent
to deliver the purchase price (without any interest from the date of the closing
to the date of such delivery, any such interest to accrue to the Company) to
such holder.
9. REGISTRATION RIGHTS. The Company will perform and comply, and cause its
respective subsidiaries to perform and comply, with such of the following
provisions as are applicable to it. Each holder of Shares will perform and
comply with such of the following provisions as are applicable to such holder.
9.1 Demand Registration Rights.
9.1.1. Investor Shares. After an Initial Public Offering, one
or more holders of Investor Shares representing at least 25% of the
total amount of Investor Shares then outstanding ("Initiating
Investors"), by notice to the Company specifying the intended method or
methods of disposition, may request that the Company effect the
registration under the Securities Act for a Public Offering of all or a
specified part of the Registrable Securities held by such Initiating
Investors (for purposes of this Agreement, "Registrable Investor
Securities" shall mean Investor Shares which have not been registered).
The Company will then use its reasonable efforts to effect the
registration under the Securities Act of the Registrable Securities
which the Company has been requested to register by such Initiating
Investors together with all other Registrable Securities which the
Company has been requested to register pursuant to Section 9.2 or by
other holders of Registrable Investor Securities by notice delivered to
the Company within 20 days after the Company has given the notice
required by Section 9.2.1 (which request shall specify the intended
method of disposition of such Registrable Securities),
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all to the extent requisite to permit the disposition (in accordance
with the intended methods thereof as aforesaid) of the Registrable
Securities which the Company has been so requested to register;
provided, however, that the Company shall not be obligated to take any
action to effect any such registration pursuant to this Section 9.1.1:
(a) Within 180 days immediately following the
effective date of any registration statement pertaining to an
underwritten public offering of securities of the Company for
its own account (other than a Rule 145 Transaction, or a
registration relating solely to employee benefit plans);
(b) If the Company has previously effected three or
more registrations of Registrable Securities under this
Section 9.1.1 at the request of such Initiating Investor;
provided, however, that no registrations of Registrable
Securities which shall not have become and remained effective
in accordance with the provisions of this Section 9, and no
registrations of Registrable Securities pursuant to which the
Initiating Investors and all other holders of Registrable
Investor Securities joining therein are not able to include at
least 90% of the Registrable Securities which they desired to
include, shall be included in the calculation of numbers of
registrations contemplated by this clause (b);
(c) If the Company shall have furnished to the
Initiating Investors and such other holders of Registrable
Securities which the Company has been requested to register
pursuant to this Section 9.1.1 a certificate, signed by the
President of the Company, stating that in the good faith
judgment of the Board it would be seriously detrimental to the
Company and its shareholders for such Registration Statement
to be filed at the date filing would have been required, in
which case the Company shall have an additional period of not
more than 60 days within which to file such Registration
Statement; provided, however, that the Company shall not so
postpone a registration pursuant to this clause (c) more than
once in any twelve month period;
(d) On any form other than Form S-3 (or any successor
form), if the anticipated aggregate offering price to the
public of the Registrable Securities to be included in the
registration by all holders is less than $5,000,000; or
(e) Prior to the 360th day following or after five
years after the closing of the Initial Public Offering.
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9.1.1.1 Form. Except as otherwise provided above,
each registration requested pursuant to this Section 9.1.1
shall be effected by the filing of a registration statement on
Form S-1 (or any other form which includes substantially the
same information as would be required to be included in a
registration statement on such form as currently constituted),
unless the use of a different form has been agreed to in
writing by holders of at least a majority of the Registrable
Investor Securities to be included in the proposed
registration statement in question (the "Majority
Participating Investors").
9.1.2. Subscriber Shares. After an Initial Public Offering,
one or more holders of Subscriber Shares representing at least 25% of
the total amount of Subscriber Shares then outstanding ("Initiating
Subscribers"), by notice to the Company specifying the intended method
or methods of disposition, may request that the Company effect the
registration under the Securities Act for a Public Offering of all or a
specified part of the Registrable Securities held by such Initiating
Subscribers (for purposes of this Agreement, "Registrable Subscriber
Securities" shall mean Subscriber Shares which have not been
registered). The Company will then use its reasonable efforts to effect
the registration under the Securities Act of the Registrable Securities
which the Company has been requested to register by such Initiating
Subscribers together with all other Registrable Securities which the
Company has been requested to register pursuant to Section 9.2 or by
other holders of Registrable Subscriber Securities by notice delivered
to the Company within 20 days after the Company has given the notice
required by Section 9.2.1 (which request shall specify the intended
method of disposition of such Registrable Securities), all to the
extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities
which the Company has been so requested to register; provided, however,
that the Company shall not be obligated to take any action to effect
any such registration pursuant to this Section 9.1.2:
(a) Within 180 days immediately following the
effective date of any registration statement pertaining to an
underwritten public offering of securities of the Company for
its own account (other than a Rule 145 Transaction, or a
registration relating solely to employee benefit plans);
(b) If the Company has previously effected two or
more registrations of Registrable Securities under this
Section 9.1.2 at the request of such Initiating Subscriber (or
any successor form); provided, however, that no registrations
of Registrable Securities which shall not have become and
remained effective in accordance with the provisions of this
Section 9, and no registrations of
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Registrable Securities pursuant to which the Initiating
Subscribers and all other holders of Registrable Subscriber
Securities joining therein are not able to include at least
90% of the Registrable Securities which they desired to
include, shall be included in the calculation of numbers of
registrations contemplated by this clause (b);
(c) If the Company shall have furnished to the
Initiating Subscribers and such other holders of Registrable
Securities which the Company has been requested to register
pursuant to this Section 9.1.2 a certificate, signed by the
President of the Company, stating that in the good faith
judgment of the Board it would be seriously detrimental to the
Company and its shareholders for such Registration Statement
to be filed at the date filing would have been required, in
which case the Company shall have an additional period of not
more than 60 days within which to file such Registration
Statement; provided, however, that the Company shall not so
postpone a registration pursuant to this clause (c) more than
once in any twelve month period;
(d) On any form other than Form S-3 (or any successor
form), if the anticipated aggregate offering price to the
public of the Registrable Securities to be included in the
registration by all holders is less than $5,000,000; or
(e) Prior to the 360th day following or after five
years after the closing of the Initial Public Offering.
9.1.2.1 Form. Except as otherwise provided above,
each registration requested pursuant to this Section 9.1.2
shall be effected by the filing of a registration statement on
Form S-1 (or any other form which includes substantially the
same information as would be required to be included in a
registration statement on such form as currently constituted),
unless the use of a different form has been agreed to in
writing by holders of at least a majority of the Registrable
Subscriber Securities to be included in the proposed
registration statement in question (the "Majority
Participating Subscribers").
9.1.3. Lender Shares. After an Initial Public Offering, one or
more holders of Lender Shares representing at least 25% of the total
amount of Lender Shares then outstanding ("Initiating Lenders"), by
notice to the Company specifying the intended method or methods of
disposition, may request that the Company effect the registration under
the Securities Act for a Public Offering of all or a specified part of
the Registrable Securities held by such Initiating Lenders (for
purposes of this Agreement,
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"Registrable Lender Securities" shall mean Lender Shares which have not
been registered). The Company will then use its reasonable efforts to
effect the registration under the Securities Act of the Registrable
Securities which the Company has been requested to register by such
Initiating Lenders together with all other Registrable Securities which
the Company has been requested to register pursuant to Section 9.2 or
by other holders of Registrable Lender Securities by notice delivered
to the Company within 20 days after the Company has given the notice
required by Section 9.2.1 (which request shall specify the intended
method of disposition of such Registrable Securities), all to the
extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities
which the Company has been so requested to register; provided, however,
that the Company shall not be obligated to take any action to effect
any such registration pursuant to this Section 9.1.3:
(a) Within 180 days immediately following the
effective date of any registration statement pertaining to an
underwritten public offering of securities of the Company for
its own account (other than a Rule 145 Transaction, or a
registration relating solely to employee benefit plans);
(b) If the Company has previously effected two or
more registrations of Registrable Securities under this
Section 9.1.3 at the request of such Initiating Lender;
provided, however, that (i) if the Company is able to file a
Registration Statement on Form S-3 (or any similar successor
form providing for the incorporation by reference of the
reports filed by the Company pursuant to section 13 of the
Exchange Act, an additional registration shall be permitted
under this Section 9.1.3, and (ii) no registrations of
Registrable Securities which shall not have become and
remained effective in accordance with the provisions of this
Section 9, and no registrations of Registrable Securities
pursuant to which the Initiating Lenders and all other holders
of Registrable Lender Securities joining therein are not able
to include at least 90% of the Registrable Securities which
they desired to include, shall be included in the calculation
of numbers of registrations contemplated by this clause (b);
(c) If the Company shall have furnished to the
Initiating Lenders and such other holders of Registrable
Securities which the Company has been requested to register
pursuant to this Section 9.1.3 a certificate, signed by the
President of the Company, stating that in the good faith
judgment of the Board it would be seriously detrimental to the
Company and its shareholders for such Registration Statement
to be filed at the date filing would have been required, in
which case the Company shall have an additional period of not
more than 60
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days within which to file such Registration Statement;
provided, however, that the Company shall not so postpone a
registration pursuant to this clause (c) more than once in any
twelve month period;
(d) On any form other than Form S-3 (or any successor
form), if the anticipated aggregate offering price to the
public of the Registrable Securities to be included in the
registration by all holders is less than $5,000,000; or
(e) Prior to the 360th day following or after five
years after the closing of the Initial Public Offering.
9.1.3.1 Form. Except as otherwise provided above,
each registration requested pursuant to this Section 9.1.3
shall be effected by the filing of a registration statement on
Form S-1 (or any other form which includes substantially the
same information as would be required to be included in a
registration statement on such form as currently constituted),
unless the use of a different form has been agreed to in
writing by holders of at least a majority of the Registrable
Lender Securities to be included in the proposed registration
statement in question (the "Majority Participating Lenders").
9.1.4. Payment of Expenses. The Company shall pay all
reasonable expenses of holders of Investor Shares or Subscriber Shares,
respectively incurred in connection with each registration of
Registrable Securities requested pursuant to this Section 9.1, other
than underwriting discount and commission, if any, and applicable
transfer taxes, if any.
9.1.5. Additional Procedures. In the case of a registration
pursuant to Section 9.1 hereof, whenever the Majority Participating
Investors, Majority Participating Subscribers or Majority Participating
Lenders, respectively shall request that such registration shall be
effected pursuant to an underwritten offering, the Company shall
include such information in the written notices to holders of
Registrable Securities referred to in Section 9.2. In such event, the
right of any holder of Registrable Securities to have securities owned
by such holder included in such registration pursuant to Section 9.1
shall be conditioned upon such holder's participation in such
underwriting and the inclusion of such holder's Registrable Securities
in the underwriting (unless otherwise mutually agreed upon by the
Majority Participating Investors, the Majority Participating
Subscribers or Majority Participating Lenders, respectively and such
holder) to the extent provided herein. If requested by such
underwriters, the Company together with the holders of Registrable
Securities
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proposing to distribute their securities through such underwriting will
enter into an underwriting agreement with such underwriters for such
offering containing such representations and warranties by the Company
and such holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary
distributions, including, without limitation, customary indemnity and
contribution provisions.
9.2 Piggyback Registration Rights.
9.2.1. Piggyback Registration.
9.2.1.1 General. Each time the Company proposes to
register any shares of Common Stock under the Securities Act
on a form which would permit registration of Registrable
Securities for sale to the public, for its own account or for
the account of any holder of its shares of Common Stock, for
sale in a Public Offering, the Company will give notice to all
holders of shares of Common Stock of its intention to do so.
Any such holder may, by written response delivered to the
Company within 20 days after the effectiveness of such notice,
request that all or a specified part of the Registrable
Securities held by such holder be included in such
registration. The Company thereupon will use its reasonable
efforts to cause to be included in such registration under the
Securities Act all shares of Common Stock which the Company
has been so requested to register by such holders, to the
extent required to permit the disposition (in accordance with
the methods to be used by the Company or other holders of
shares of Common Stock in such Public Offering) of the
Registrable Securities to be so registered. No registration of
Registrable Securities effected under this Section 9.2 shall
relieve the Company of any of its obligations to effect
registrations of Registrable Securities pursuant to Section
9.1 hereof.
9.2.1.2 Excluded Transactions. The Company shall not
be obligated to effect any registration of Registrable
Securities under this Section 9.2 incidental to the
registration of any of its securities in connection with:
(a) Any Public Offering on Form S-4 (or any
successor form) relating to employee benefit plans or
dividend reinvestment plans;
(b) Any Public Offering relating to the
acquisition or merger after the date hereof by the
Company or any of its subsidiaries of or with any
other businesses; or
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(c) The Initial Public Offering, provided
that if the Investors have the opportunity to sell
Investor Shares in such offering the Subscribers and
Lenders shall have the opportunity to sell Subscriber
Shares and Lender Shares, respectively, in such
offering.
9.2.2. Payment of Expenses. The Company shall pay all
reasonable expenses of holders of Registrable Securities incurred in
connection with each registration of Registrable Securities requested
pursuant to this Section 9.2, other than underwriting discount and
commission, if any, and applicable transfer taxes, if any.
9.2.3. Additional Procedures. Holders of Shares participating
in any Public Offering pursuant to this Section 9.2 shall take all such
actions and execute all such documents and instruments that are
reasonably requested by the Company to effect the sale of their Shares
in such Public Offering, including, without limitation, being parties
to the underwriting agreement entered into by the Company and any other
selling shareholders in connection therewith, including to the extent
required by the underwriters, making customary representations,
warranties and indemnities, and being parties to the other agreements
(including customary selling shareholder indemnifications and "lock-up"
agreements in substantially the form of Sections 9.3.4 and 9.4 hereof)
to and for the benefit of the underwriters in such underwriting
agreement; provided, however, that (i) with respect to individual
representations, warranties and agreements of sellers of Shares in such
Public Offering, the aggregate amount of such liability shall not
exceed such holder's net proceeds from such offering and (ii) with
respect to all other representations, warranties and agreements of
sellers of shares in such Public Offering, the aggregate amount of such
liability shall not exceed the lesser of (a) such holder's pro rata
portion of any such liability, in accordance with such holder's portion
of the total number of Shares included in the offering or (b) such
holder's net proceeds from such offering.
9.3 Certain Other Provisions.
9.3.1. Underwriter's Cutback. In connection with any
registration of shares, the underwriter may determine that marketing
factors (including, without limitation, an adverse effect on the per
share offering price) require a limitation of the number of shares to
be underwritten. Notwithstanding any contrary provision of this Article
9 and subject to the terms of this Section 9.3.1, the underwriter may
limit the number of shares which would otherwise be included in such
registration by excluding any or all Registrable Securities from such
registration (it being understood that the number of shares which the
Company seeks to have registered in such registration shall not be
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subject to exclusion, in whole or in part, under this Section 9.3.1).
Upon receipt of notice from the underwriter of the need to reduce the
number of shares to be included in the registration, the Company shall
advise all holders of the Company's securities that would otherwise be
registered and underwritten pursuant hereto, and the number of shares
of such securities, including Registrable Securities, that may be
included in the registration shall be allocated in the following
manner, unless the underwriter shall determine that marketing factors
require a different allocation: first, shares, other than Registrable
Securities, requested to be included in such registration by
shareholders shall be excluded; and, second, if a limitation on the
number of shares is still required, the number of Registrable
Securities that may be included in such registration by holders of
Shares under Section 9.2 shall be reduced by allocating such reduction
among the holders of Registrable Securities in proportion, as nearly as
practicable, to the respective amounts of Registrable Securities which
each such shareholder requested be registered under Section 9.2 in such
registration; and, third, if a limitation on the number of shares is
still required, the number of Registrable Securities that may be
included in such registration by shareholders under Section 9.1 shall
be reduced by allocating such reduction among the holders of
Registrable Securities in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities which each such
shareholder requested be registered under Section 9.1 in such
registration. No securities excluded from the underwriting by reason of
the underwriter's marketing limitation shall be included in such
registration. If any holder of Registrable Securities disapproves of
the terms of the underwriting, it may elect to withdraw therefrom by
written notice to the Company and the underwriter. The Registrable
Securities so withdrawn shall also be withdrawn from registration.
9.3.2. Other Actions. If and in each case when the Company is
required to use its reasonable efforts to effect a registration of any
Registrable Securities as provided in this Section 9, the Company shall
take appropriate and customary actions in furtherance thereof,
including, without limitation:
(i) promptly filing with the Commission a
registration statement and using reasonable efforts to cause
such registration statement to become effective;
(ii) preparing and filing with the Commission such
amendments and supplements to such registration statements as
may be required to comply with the Securities Act and to keep
such registration statement effective for a period not to
exceed 270 days from the date of effectiveness or such earlier
time as the Registrable Securities covered by such
registration statement shall have been disposed of in
accordance with the intended method of distribution therefor
or
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the expiration of the time when a prospectus relating to such
registration is required to be delivered under the Securities
Act;
(iii) furnishing to holders of Registrable Securities
participating in such offering such number of copies of such
registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement
(including each preliminary prospectus) and such other
documents as such holder may reasonable request in order to
facilitate the disposition of the securities being registered;
(iv) using its reasonable efforts to register or
qualify such Registrable Securities under the state securities
or "blue sky" laws of such jurisdictions as the sellers shall
reasonably request; provided, however, that the Company shall
not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any
jurisdiction in which it would not otherwise be so subject;
(v) notifying each holder of Registrable Securities
being registered, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act,
of the happening of any event as a result of which the
prospectus included in such registration statement contains an
untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading, and,
at the request of any such holder, the Company shall prepare a
supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any fact
necessary to make the statements therein not misleading;
(vi) causing all such securities to be listed on each
securities exchange on which similar securities issued by the
Company are then listed and, if not so listed, to be listed on
the NASD automated quotation system and, if listed on the NASD
automated quotation system, using its reasonable efforts to
secure designation of all such securities covered by such
registration statement as a Nasdaq Stock Market security
within the meaning of Rule 11Aa2-1 of the Securities and
Exchange Commission or, failing that, to secure NASDAQ
authorization for such securities and, without limiting the
generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such
securities with the NASD;
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43
(vii) providing a transfer agent and registrar for
all such securities not later than the effective date of such
registration statement;
(viii) entering into such customary agreements
(including underwriting agreements in customary form), and
taking all such other actions as the holder or the
underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such securities (including,
without limitation, effecting a stock split or a combination
of shares);
(ix) making available for inspection by any holder,
any underwriter participating in any disposition pursuant to
such registration statement and any attorney, accountant or
other agent retained by any such seller or underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company, and causing the Company's officers,
directors, employees and independent accountants to supply all
information reasonably requested by any such holder,
underwriter, attorney, accountant or agent in connection with
such registration statement;
(x) otherwise using its reasonable efforts to comply
with all applicable rules and regulations of the Securities
and Exchange Commission, and making available to its security
holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months
beginning with the first day of the first full calendar
quarter after the effective date of the registration
statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder;
(xi) permitting a holder which, in its sole and
exclusive judgment, might be deemed to be an underwriter or a
controlling person of the Company, to participate in the
preparation of such registration or comparable statement and
to require the insertion therein of material, furnished to the
Company in writing, which in the reasonable judgment of such
holder and its counsel should be included;
(xii) in the event of the issuance of any stop order
suspending the effectiveness of a registration statement, or
of any order suspending or preventing the use of any related
prospectus or suspending the qualification of any Common Stock
included in such registration statement for sale in any
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44
jurisdiction, the Company shall use its reasonable efforts
promptly to obtain the withdrawal of such order;
(xiii) obtaining a cold comfort letter from the
Company's independent public accountants in customary form and
covering such matters of the type customarily covered by cold
comfort letters as the holder may reasonable request; and
(xiv) otherwise cooperating reasonably with, and
taking such customary actions as may reasonably be requested
by the holders of Registrable Securities in connection with,
such registration.
9.3.3. Selection of Underwriters and Counsel. The underwriters
and legal counsel to be retained in connection with any Public Offering
shall be selected by the Board.
9.3.4. Lock-Up. Without the prior written consent of the
underwriters managing any Public Offering, for a period beginning seven
days immediately preceding and ending on the 180th day or such shorter
period as required in writing by the underwriters following the
effective date of the registration statement used in connection with
such offering, no holder of Shares (whether or not a selling
shareholder pursuant to such registration statement) shall Transfer any
Shares except pursuant to such registration statement or to a Permitted
Transferee in accordance with the terms of this Agreement.
9.4 Indemnification and Contribution.
9.4.1. Indemnities of the Company. In the event of any
registration of any Registrable Securities or other debt or equity
securities of the Company or any of its subsidiaries under the
Securities Act pursuant to this Article 9 or otherwise, and in
connection with any registration statement or any other disclosure
document produced by or on behalf of the Company or any of its
subsidiaries including, without limitation, reports required and other
documents filed under the Exchange Act, and other documents pursuant to
which any debt or equity securities of the Company or any of its
subsidiaries are sold (whether or not for the account of the Company or
its subsidiaries), the Company will, and hereby does, and will cause
its subsidiaries, jointly and severally to, indemnify and hold harmless
each seller of Registrable Securities, any Person who is or might be
deemed to be a controlling Person of the Company or any of its
subsidiaries within the meaning of Section 15 of the Securities
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45
Act or Section 20 of the Exchange Act, their respective direct and
indirect partners, advisory board members, directors, officers,
trustees, members and shareholders, and each other Person, if any, who
controls any such seller or any such holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
(each such person being referred to herein as a "Covered Person"),
against any losses, claims, damages or liabilities, joint or several,
to which such Covered Person may be or become subject under the
Securities Act, the Exchange Act, any other securities or other law of
any jurisdiction, the common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) arise out of or are based upon (i) any untrue statement or
alleged untrue statement of any material fact contained or incorporated
by reference in any registration statement under the Securities Act,
any preliminary prospectus or final prospectus included therein, or any
related summary prospectus, or any amendment or supplement thereto, or
any document incorporated by reference therein, or any other such
disclosure document (including without limitation reports and other
documents filed under the Exchange Act and any document incorporated by
reference therein) or other document or report, (ii) any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or
(iii) any violation or alleged violation by the Company or any of its
subsidiaries of any federal, state, foreign or common law rule or
regulation applicable to the Company or any of its subsidiaries and
relating to action or inaction in connection with any such
registration, disclosure document or other document or report, and will
reimburse such Covered Person for any legal or any other expenses
incurred by it in connection with investigating or defending any such
loss, claim, damage, liability, action or proceeding; provided,
however, that neither the Company nor any of its subsidiaries shall be
liable to any Covered Person in any such case to the extent that any
such loss, claim, damage, liability, action or proceeding arises out of
or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any
such preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement, incorporated document or other such disclosure
document or other document or report, in reliance upon and in
conformity with written information furnished to the Company or to any
of its subsidiaries through an instrument duly executed by such Covered
Person specifically stating that it is for use in the preparation
thereof. Without limiting the generality of the foregoing, the Company
or its respective subsidiary, as an interim measure during the pendency
of any claim, action, investigation, inquiry or proceeding arising out
of or based upon any matter or subject for which indemnity (or
contribution in lieu thereof) may be available to any Covered Person
under this Section 9.4.1, it will promptly reimburse each Covered
Person, as often as invoiced therefor (but in no event more often than
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46
monthly) for all expenses reasonably incurred in connection with the
investigation or defense of any such claim, action, investigation,
inquiry or proceeding, notwithstanding the absence of any judicial
determination as to the propriety or enforceability of the indemnifying
party's obligation to reimburse the indemnified party for such expenses
and notwithstanding the possibility that the obligations to pay such
expenses might later have been held to be improper by a court of
competent jurisdiction. To the extent that any such interim
reimbursement is held to be improper or not justified under this
Section 9.4.1, the indemnified party agrees to promptly return the
amount so advanced to the indemnified party, together with interest,
compounded monthly, at the prime rate (or other commercial lending rate
for borrowers of the highest credit standing) listed from time to time
in the Wall Street Journal which represents the base rate on corporate
loans posted by a substantial majority of the nation's thirty largest
banks. Any such interim reimbursement payments which are not made to
the indemnified party within thirty days of a request therefor shall
bear interest at such prime rate from the date of such request unless
determined to be improper or not justified under this Section 9.4.1.
The indemnities of the Company and of its subsidiaries contained in
this Section 9.4.1 shall remain in full force and effect regardless of
any investigation made by or on behalf of such Covered Person and shall
survive any transfer of securities.
9.4.2. Indemnities to the Company. The Company and any of its
subsidiaries may require, as a condition to including any securities in
any registration statement filed pursuant to this Section 9, that the
Company and any of its subsidiaries shall have received an undertaking
satisfactory to it from the prospective seller of such securities, to
indemnify and hold harmless the Company and any of its subsidiaries,
each director of the Company or any of its subsidiaries, each officer
of the Company or any of its subsidiaries who shall sign such
registration statement and each other Person (other than such seller),
if any, who controls the Company and any of its subsidiaries within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act with respect to any statement in or omission from such
registration statement, any preliminary prospectus or final prospectus
included therein, or any amendment or supplement thereto, or any other
disclosure document (including, without limitation, reports and other
documents filed under the Exchange Act which are incorporated by
reference incorporated therein) if such statement or omission was made
in reliance upon and in conformity with written information furnished
to the Company or any of its subsidiaries through an instrument
executed by such seller specifically stating that it is for use in the
preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement
incorporated document. Such indemnity shall remain in full force and
effect regardless of any investigation
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made by or on behalf of the Company, any of its subsidiaries or any
such director, officer or controlling Person and shall survive any
transfer of securities.
9.4.3. Indemnification Procedures. Promptly after receipt by a
Person entitled to indemnification pursuant to the foregoing provisions
of this Section 9.4 (an "Indemnitee") of notice of the commencement of
any action or proceeding involving a claim of the type referred to in
the foregoing provisions of this Section 9.4, such Indemnitee will, if
a claim in respect thereof is to be made by such Indemnitee against any
indemnifying party, give written notice to each such indemnifying party
of the commencement of such action; provided, however, that the failure
of any Indemnitee to give notice to such indemnifying party as provided
herein shall not relieve any indemnifying party of its obligations
under the foregoing provisions of this Section 9.4, except and solely
to the extent that such indemnifying party is actually and materially
prejudiced by such failure to give notice. In case any such action is
brought against an Indemnitee, each indemnifying party will be entitled
to participate in and to assume the defense thereof, jointly with any
other indemnifying party similarly notified, to the extent that it may
wish, with counsel reasonably satisfactory to such Indemnitee, and
after notice from an indemnifying party to such Indemnitee of its
election so to assume the defense thereof, such indemnifying party will
not be liable to such Indemnitee for any legal or other expenses
subsequently incurred by the latter in connection with the defense
thereof; provided, however, that (i) if the Indemnitee reasonably
determines that there may be a conflict between the positions of such
indemnifying party and the Indemnitee in conducting the defense of such
action, then counsel for the Indemnitee shall conduct the defense to
the extent reasonably determined by such counsel to be necessary to
protect the interests of the Indemnitee and such indemnifying party
shall employ separate counsel for its own defense, (ii) in any event,
the Indemnitee shall be entitled to have counsel chosen by such
Indemnitee participate in, but not conduct, the defense and (iii) the
indemnifying party shall bear the legal expenses incurred in connection
with the conduct of, and the participation in, the defense as referred
to in clauses (i) and (ii) above. If, within 30 days after receipt of
the notice, such indemnifying party shall not have elected to assume
the defense of the action, such indemnifying party shall be responsible
for any legal or other expenses incurred by such Indemnitee in
connection with the defense of the action, suit, investigation, inquiry
or proceeding. No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to
such Indemnitee of a release from all liabilities in respect of such
claim or litigation.
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9.4.4. Contribution. If the indemnification provided for in
Sections 9.4.1 or 9.4.2 hereof is unavailable to a party that would
have been an Indemnitee under any such Section in respect of any
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to therein, then each party that would have
been an indemnifying party thereunder shall, in lieu of indemnifying
such Indemnitee, contribute to the amount paid or payable by such
Indemnitee as a result of such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative fault of such indemnifying party on
the one hand and such Indemnitee on the other in connection with the
statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions or proceedings in respect thereof). The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by such indemnifying party or such Indemnitee and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
parties agree that it would not be just or equitable if contribution
pursuant to this Section 9.4.4 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to in the preceding sentence. The
amount paid or payable by a contributing party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to above in this Section 9.4.4 shall include
any legal or other expenses reasonably incurred by such Indemnitee in
connection with investigating or defending any such action or claim. No
Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent
misrepresentation.
9.4.5. Limitation on Liability of Holders of Registrable
Securities. The liability of each holder of Registrable Securities in
respect of any indemnification or contribution obligation of such
holder arising under this Section 9.4 shall not in any event exceed an
amount equal to the net proceeds to such holder (after deduction of all
underwriters' discounts and commissions) from the disposition of the
Registrable Securities disposed of by such holder pursuant to such
registration.
10. AMENDMENT, TERMINATION, ETC.
10.1 Oral Modifications. This Agreement may not be orally amended,
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
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10.2 Written Modifications. This Agreement may be amended, modified,
extended or terminated, and the provisions hereof may be waived, only by an
agreement in writing signed by the Majority Investors, a majority of the Lenders
and a majority Subscriber Shares provided, that no amendment to this Agreement
materially adverse to the rights of any Subscriber, Lender or Management
Investor may be entered into without the written agreement of such Subscriber,
Lender or Management Investor. Each such amendment, modification, extension,
termination and waiver shall be binding upon each party hereto and each holder
of Shares subject hereto. In addition, each party hereto and each holder of
Shares subject hereto may waive any right hereunder by an instrument in writing
signed by such party or holder.
10.3 Termination. No termination under this Agreement shall relieve any
Person of liability for breach prior to termination.
11. DEFINITIONS. For purposes of this Agreement:
11.1 Certain Matters of Construction. In addition to the definitions
referred to or set forth below in this Section 11:
(a) The words "hereof", "herein", "hereunder" and
words of similar import shall refer to this Agreement as a
whole and not to any particular Section or provision of this
Agreement, and reference to a particular Section of this
Agreement shall include all subsections thereof;
(b) Definitions shall be equally applicable to both
the singular and plural forms of the terms defined; and
(c) The masculine, feminine and neuter genders shall
each include the other.
11.2 Cross Reference Table. The following terms defined elsewhere in
this Agreement in the Sections set forth below shall have the respective
meanings therein defined:
Term Definition
"AAA" Section 14.2.1
"Agreement" Preamble
"Approved Transfer" Section 3.1, 5.1
"Board" Section 2.2
"Berkshire" Section 11.3.5
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"Call Notice" Section 5.1.3
"Call Option" Section 5.1
"Call Option Exercise Period" Section 5.1.3
"▇▇▇▇▇▇▇" Preamble
"Closing" Section 1.1
"Common Stock" Recitals
"Company" Preamble
"Covered Person" Section 9.4.1
"Drag Along Notice" Section 3.2.1
"Escrow Agent" Section 8.2
"Exchange Agreement" Recitals
"GLSI" Section 2.4(b)
"Indemnitee" Section 9.4.3
"Interim Purchaser" Recitals
"Initiating Investors" Section 9.1.1
"Initiating Lenders" Section 9.1.3
"Initiating Subscribers" Section 9.1.2
"Initiating Transferor" Section 3.1
"Investor" Preamble
"Issuance" Section 7
"▇▇▇▇▇▇" Preamble
"Majority Participating Investors" Section 9.1.1.1
"Majority Participating Lenders" Section 9.1.3.1
"Majority Participating Subscribers" Section 9.1.2.1
"Management Investors" Preamble
"Options" Recitals
"Other Securities" Section 7.1.3
"Participating Buyer" Section 7.1.2.1
"Participating Offeree" Section 3.4.2
"Participating Seller" Section 3.1.2, 3.2.1
"Preemption Notice" Section 7.1.1
"Preemptive Offerees" Section 7.1.1
"Preemptive Portion" Section 7.1.1
"Prospective Buyer" Section 3.1, 3.2
"Prospective Subscriber" Section 7.1.1
"Put Agreements" Section 2.16
"Registrable Investor Securities" Section 9.1.1
"Registrable Lender Securities" Section 9.1.3
"Registrable Subscriber Securities" Section 9.1.2
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"Sale" Section 3.1
"Sale Offeree" Section 3.4.1
"Sale Notice" Section 3.4.1
"Subscribers" Preamble
"Shareholder Call Group" Section 5.1
"Shareholders" Preamble
"Subject Securities" Section 7
"Tag Along Notice" Section 3.1.1
"Tag Along Offer" Section 3.1.2
"Tag Along Offerors" Section 3.1.1
"Tag Along Sale Percentage" Section 3.1.1
"Trusts" Preamble
11.3 Certain Definitions. The following terms shall have the following
meanings:
11.3.1. "Affiliate" shall mean with respect to any Person, (a)
any person or entity which, directly or indirectly, is in control of,
is controlled by, or is under common control with such Person, (b) any
Person which is a director, officer, partner, joint venturer or
employee of, or investor in, any person described in clause (a) above,
or (c) any Person which is an immediate relative of, or a trust or
foundation controlled by, or controlled by an immediate relative of,
any Person or entity described in clause (a) or (b) above. For purposes
of this definition, "control" of a Person shall mean the power, direct
or indirect, to direct or cause the direction of the management and
policies of such Person whether by contract (including consulting
contracts) or otherwise.
11.3.2. "Affiliated Fund" shall mean each corporation, trust,
general or limited partnership or other entity under common control
with Berkshire Fund IV, L.P. or Berkshire Fund V, L.P. which is managed
by an Affiliate of Berkshire Partners LLC.
11.3.3. "Cash Equivalents" shall mean (i) cash, (ii) U.S.
Treasury notes, (iii) AAA rated, publicly traded corporate bonds and
(iv) securities traded on the New York Stock Exchange, Inc., the
American Stock Exchange or the Nasdaq National Market.
11.3.4. "Cause" shall mean, the following events or
conditions, as determined by the Board in its reasonable judgment: (i)
the material refusal or failure to perform (other than by reason of
disability), or material negligence in the performance of such
employee's duties and responsibilities to the Company or any of its
Affiliates; (ii) the material breach by the employee of any provision
of any agreement between such employee and the Company or any of its
Affiliates; or (iii) other conduct by the employee
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52
that is materially harmful to the business, interests or reputation of
the Company or any of its Affiliates including, but not limited to the
commission of fraud, embezzlement, theft or other dishonesty, or the
conviction of such Person of, or plea by such Person of nolo contendre
to, any felony or other crime involving dishonesty or moral turpitude.
11.3.5. "Change of Control" shall mean such time as: (a) the
Investor, Berkshire Fund IV, L.P., Berkshire Fund V, L.P. and their
Affiliates (collectively, "Berkshire") beneficially own, through
Berkshire Cruise Investors L.L.C. or another Person, securities of the
Company representing less than fifty percent (50%) of the voting power
of all classes of voting securities of the Company that Berkshire
beneficially owned on the date of the Closing; or (b) a sale or
transfer of all or substantially all of the assets of the Company to
any person or group other than a Berkshire Affiliate has been
consummated.
11.3.6. "Competitor" means any Person who is engaged in the
business in which the Company is engaged or planning to become engaged.
11.3.7. "Convertible Securities" shall mean any evidence of
indebtedness, shares of stock (other than Common Stock) or other
securities directly or indirectly convertible into or exchangeable or
exercisable for shares of Common Stock.
11.3.8. "Cost" shall mean the price paid for the Shares in
question on the Closing Date or such other date on which the Shares in
question were acquired.
11.3.9. "Equivalent Shares" shall mean as to any outstanding
shares of Common Stock, such number of shares of Common Stock, and as
to any outstanding Options or Convertible Securities, the maximum
number of shares of Common Stock for which or into which such options
or convertible securities may at the time be exercised or converted,
but only if the contingencies to such exercise or conversion had been
satisfied.
11.3.10. "Equivalent Value" shall mean, as of any date, the
Board's good faith determination of the fair value of securities or any
non Cash Equivalents.
11.3.11. "Exchange Act" shall mean the Securities Exchange Act
of 1934, as in effect from time to time.
11.3.12. "Fair Market Value" shall mean, as of any date, the
Board's good faith determination of the fair value of one Share as of
the applicable reference date.
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11.3.13. "Initial Public Offering" shall mean the initial
public offering registered on Form S-1 (or any successor form under the
Securities Act) of common stock of the Company.
11.3.14. "Investor Shares" shall mean all shares of Common
Stock originally issued to, or issued with respect to shares originally
issued to, or held by, the Investor, whenever issued.
11.3.15. "Lender Shares" shall mean all shares of Common Stock
originally issued to, or issued with respect to shares originally
issued to the Lenders.
11.3.16. "Majority Investors" shall mean, as of any date, the
holders of a majority of the Investor Shares outstanding on such date
which are held by the Investor and its Affiliates.
11.3.17. "Management Shares" shall mean (i) all shares of
Common Stock originally issued to, or issued with respect to shares or
Option originally issued to, or held by, the Management Investors
whether such issuance takes place before or after the date of this
Agreement.
11.3.18. "Members of the Immediate Family" shall mean, with
respect to any individual, each spouse, parent or child of such
individual, each trust created solely for the benefit of one or more of
the aforementioned Persons and each custodian or guardian of any
property of one or more of the aforementioned Persons in his capacity
as such custodian or guardian.
11.3.19. "Options" shall mean any options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.
11.3.20. "Permitted Transferee" shall mean (i) as to each
Investor Share, a Transferee of such Investor Share in compliance with
Section 3.1.6 (a), (b), (f), (g) or (h), (ii) as to each Share held by
the Interim Purchaser, a Transferee of such Share in compliance with
Section 3.1.6(i), and (iii) as to each Subscriber Share or Management
Share, a Transferee of such Subscriber Share or Management Share in
compliance with Section 4.1 or 4.2.
11.3.21. "Person" shall mean any individual, partnership,
corporation, company, association, trust, joint venture, unincorporated
organization, entity or division, or any government, governmental
department or agency or political subdivision thereof.
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54
11.3.22. "Price Per Equivalent Share" shall mean in the case
of any Issuance pursuant to Section 8 hereof, the price per Equivalent
Share included in the Issuance, calculated, in the case of Shares
constituting Convertible Securities, with appropriate deductions for
amounts in respect of accrued but unpaid interest or dividends added in
determining the proceeds payable in the Issuance to the Company and, in
the case of Options, with appropriate additions for amounts payable in
the Issuance to the Company.
11.3.23. "Public Offering" shall mean a public offering and
sale of common stock of the Company for cash pursuant to an effective
registration statement under the Securities Act.
11.3.24. "Registrable Securities" shall mean Investor Shares,
Subscriber Shares, Lender Shares and Management Shares which have not
been registered.
11.3.25. "Regulation D" shall mean Regulation D under the
Securities Act.
11.3.26. "Rule 144" shall mean Rule 144 under the Securities
Act.
11.3.27. "Rule 145 Transaction" shall mean a registration on
Form S-4 pursuant to Rule 145 of the Securities Act.
11.3.28. "Securities Act" shall mean the Securities Act of
1933, as in effect from time to time.
11.3.29. "Subscriber Shares" shall mean all shares of Common
Stock originally issued to, or issued with respect to shares or Options
originally issued to, or held by, the Subscribers whenever issued.
11.3.30. "Shares" shall mean all Investor Shares, Subscriber
Shares, Lender Shares and Management Shares and all Shares held by the
Interim Purchaser.
11.3.31. "Termination Event" shall mean any event specified in
Section 5.2 which gives rise to any of the call rights specified
therein.
11.3.32. "Transfer" shall mean any sale, pledge, assignment,
encumbrance or other transfer or disposition of any Shares to any other
Person, whether directly, indirectly, voluntarily, involuntarily, by
operation of law, pursuant to judicial process or otherwise.
- 48 -
55
12. CERTAIN OTHER MATTERS.
12.1 Fees and Expenses. Simultaneously with the Closing, the Company
shall pay to Berkshire Partners LLC an aggregate fee of $1,500,000, by wire
transfer of immediately available funds. Berkshire Partners LLC, or a designated
Affiliate, shall also be entitled to (i) annual management fees of $400,000 per
annum, (ii) an investment banking fee of up to 1% of the aggregate principal
amount of financing arranged by Berkshire Partners LLC (or its Affiliate)
following the Closing and (iii) if placed by Berkshire Partners LLC, an
investment banking fee of up to 2% of the debt placed by Berkshire Partners LLC
in the Company's initial financing. Neither Berkshire Partners LLC nor its
Affiliates will charge the Company any other fees.
12.2 Corporate Opportunities. The Investor and the Subscribers agree
that all corporate opportunities including, but not limited to, acquisitions and
strategic alliances, related to the business of the Company and its
Subsidiaries, as such businesses are being conducted at any time and including
any areas in which the Company and its Subsidiaries are actively planning to
become involved, shall first be presented to the Company. The decision by the
Company to not proceed with any such opportunity shall be deemed to be made only
with prior written approval of the Majority Investors and majority of the
Subscribers. In the event the Company rejects such corporate opportunity as set
forth above and as otherwise required by any applicable laws, an Investor or
Subscriber shall be free to otherwise pursue such corporate opportunity on
substantially the same terms as presented to the Company.
12.3 Reporting. The Company will provide to the Investor, the Lender
and the Subscribers, for so long as such person holds Shares, (i) unaudited
quarterly balance sheets and the related statements of income and shareholders
equity and cash flows for the Company and its subsidiaries within 60 days of the
end of each of the first three quarters of the Company's fiscal year and (ii)
audited annual balance sheets and the related statements of earnings and
shareholders equity and cash flows for the Company and its subsidiaries within
90 days of the end of each fiscal year.
12.4 Lender Review. At all times during which any Lender shall hold
Shares, the Company shall permit the representative of such Lender, at its
expense, to visit and inspect any properties of the Company or its Subsidiaries,
to examine all their respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to discuss their respective
affairs, finances and accounts with their respective officers, employees and
independent public accountants (and by this provision the Company authorizes
said accountants
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56
to discuss the finances and affairs of the Company and its Subsidiaries) all at
such reasonable times and as often as may be reasonably requested.
13. MISCELLANEOUS.
13.1 Authority; Effect. Each party hereto represents and warrants to
and agrees with each other party that the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized on behalf of such party and do not violate any agreement or
other instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association.
13.2 Notices. Any notices and other communications required or
permitted in this Agreement shall be effective if in writing and delivered
personally, by facsimile, or by Federal Express, DHL or UPS or another
nationally recognized express mail service, delivery charges prepaid, in each
case, addressed as follows:
If to the Company or Berkshire, to them:
c/o Berkshire Partners LLC
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
with a copy to:
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If to a holder of Subscriber Shares, Management Shares, Lender Shares
or Investor Shares other than Berkshire, to him at the address or telecopier
number set forth in the shareholder register of the Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
- 50 -
57
Unless otherwise specified herein, such notices or other communications
shall be deemed effective on the date received. Each of the parties hereto shall
be entitled to specify a different address or telecopier number by giving notice
as aforesaid to each of the other parties hereto.
13.3 Binding Effect, etc. This Agreement constitutes the entire
agreement of the parties with respect to its subject matter, supersedes all
prior or contemporaneous oral or written agreements or discussions with respect
to such subject matter, and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, representatives, successors and
assigns.
13.4 Descriptive Headings. The descriptive headings of this Agreement
are for convenience of reference only, are not to be considered a part hereof
and shall not be construed to define or limit any of the terms or provisions
hereof.
13.5 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
13.6 Severability. In the event that any provision hereof would, under
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
14. GOVERNING LAW, ARBITRATION.
14.1 Governing Law. This Agreement shall be governed by and construed
in accordance with the domestic substantive laws of the Netherlands without
giving effect to any choice or conflict of laws provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction; provided, however, that any dispute relating to the provisions of
Section 14.2 hereof shall be governed by the United States Arbitration Act as
then in force.
14.2 Arbitration.
14.2.1. Generally. Except as set forth in Sections 8.1 and
14.2.3 hereof, each dispute, difference, controversy or claim arising
in connection with or related or incidental to, or question occurring
under, this Agreement or the subject matter hereof
- 51 -
58
shall be finally settled under the Commercial Arbitration Rules of the
American Arbitration Association (the "AAA") by an arbitral tribunal
composed of three arbitrators, at least one of whom shall be an
attorney experienced in corporate transactions, appointed by agreement
of the parties in accordance with said Rules. In the event the parties
fail to agree upon a panel of arbitrators from the first list of
potential arbitrators proposed by the AAA, the AAA will submit a second
list in accordance with said Rules. In the event the parties shall have
failed to agree upon a full panel of arbitrators from said second list,
any remaining arbitrators to be selected shall be appointed by the AAA
in accordance with said Rules. If, at the time of the arbitration, the
parties agree in writing to submit the dispute to a single arbitrator,
said single arbitrator shall be appointed by agreement of the parties
in accordance with the foregoing procedure, or, failing such agreement,
by the AAA in accordance with said Rules. The foregoing arbitration
proceedings may be commenced by any party by notice to the other
parties.
14.2.2. Place of Arbitration. The place of arbitration shall
be New York, New York.
14.2.3. Recourse to Courts. The parties hereby exclude any
right of appeal to any court on the merits of the dispute. The
provisions of this Section 14.2 may be enforced in any court having
jurisdiction over the award or any of the parties or any of their
respective assets, and judgment on the award (including, without
limitation, equitable remedies) granted in any arbitration hereunder
may be entered in any such court. Nothing contained in this Section
14.2 shall prevent any party from seeking interim measures of
protection in the form of pre-award attachment of assets or preliminary
or temporary equitable relief.
14.3 Reliance. Each of the parties hereto acknowledges that he has been
informed by each other party that the provisions of this Section 14 constitute a
material inducement upon which such party is relying and will rely in entering
into this Agreement and the transactions contemplated hereby.
14.4 Domicile. Each of the parties hereto acknowledges and accepts
that, for the purposes of seeking interim measures of protection in the form of
pre-award attachment of assets or preliminary or temporary equitable relief in
the Netherlands, as contemplated by the last sentence of section 14.2.3 hereof,
he chooses domicile in the Netherlands at the offices of ABN Amro Trust Company
(Nederland) B.V. at Strawinshylaen 3105, 1077 ZX Amsterdam.
15. TERMINATION
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59
15.1 Termination. This Agreement shall terminate upon the earlier of
(i) the date on which the Investor, Subscribers and Lenders no longer hold any
Shares and (ii) the date which is ten years from the date hereof.
[INTENTIONALLY LEFT BLANK]
- 53 -
60
Shareholders Agreement
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE COMPANY: MIAMI CRUISELINE SERVICES HOLDINGS I B.V.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Title: Director A
61
Shareholders Agreement
THE INVESTORS: BERKSHIRE CRUISE HOLDINGS LLC
By its managing member
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Title: Authorized Person
62
Shareholders Agreement
THE SUBSCRIBERS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Individually
The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust 8/3/94
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
The ▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust 8/3/94
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
The ▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust 8/3/94
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, Individually
63
Shareholders Agreement
THE LENDERS:
NEW YORK LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
AMERICAN HOME ASSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Its Authorized Representative
64
Shareholders Agreement
MANAGEMENT:
/s/ ▇.▇. ▇▇▇▇▇▇
--------------------------------
▇.▇. ▇▇▇▇▇▇
65
Shareholders Agreement
INTERIM PURCHASER:
BERKSHIRE PARTNERS LLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Authorized Person
66
JOINDER AND AGREEMENT RELATING TO
SHAREHOLDERS AGREEMENT
THIS JOINDER AND AGREEMENT relating to the Shareholders Agreement dated
as of September 17, 1998 by and among Miami Cruiseline Services Holdings I B.V.,
a Netherlands corporation (besloten vennootschap met beperkte aanspraklijkheid)
(the "Company"), The ▇▇▇▇▇▇ ▇▇▇▇▇▇ Revocable Trust 8/3/94, a Florida trust (the
"Trust") and certain other shareholders of the Company (the "Shareholders
Agreement"), is made and entered into as of November 13, 1998 by and between the
Company and each signatory listed on the signature page hereto (each a
"Holder"). Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Shareholders Agreement.
WHEREAS, each Holder has acquired certain Shares from the Trust and the
Shareholders Agreement requires each Holder, as a holder of such Shares, to
become a party to the Shareholders Agreement, and each Holder agrees to do so in
accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Joinder and Agreement hereby
agree as follows:
1. Agreement to be Bound. Each Holder hereby agrees that upon execution
of this Joinder and Agreement, it shall become a party to the Shareholders
Agreement and shall be fully bound by, and subject to, all of the covenants,
terms and conditions of the Shareholders Agreement as though an original party
thereto and shall be deemed a Subscriber and a holder of Shares for all purposes
thereof. In addition, each Holder hereby agrees that all Shares held by such
Holder shall be deemed Subscriber Shares and Shares for all purposes of the
Shareholders Agreement.
2. Successors and Assigns. Except as otherwise provided herein, this
Joinder and Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its successors, heirs and assigns and each Holder and any
subsequent holders of Shares and the respective successors, heirs and assigns of
each of them, so long as they hold any Shares.
3. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
67
4. Notices. For purposes of Section 13.2 of the Shareholders Agreement,
all notices, demands or other communications to the Holder shall be directed to:
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
fax (▇▇▇) ▇▇▇-▇▇▇▇
5. GOVERNING LAW. This Joinder and Agreement shall be governed by and
construed in accordance with the laws of the Netherlands without giving effect
to any choice of or conflict of laws provision or rule that would cause the
application of the domestic substantive laws of any other jurisdiction.
6. DESCRIPTIVE HEADINGS. The descriptive headings of this Joinder and
Agreement are for convenience of reference only and do not constitute a part of
this Joinder and Agreement.
* * * * *
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68
IN WITNESS WHEREOF, the parties hereto have executed this Joinder as of
the date first above written.
MIAMI CRUISELINE SERVICES HOLDINGS I B.V.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Managing Director A
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ as Trustee of
the ▇▇▇▇ ▇▇▇▇▇▇ 1998 Trust
Agreement dated October 5,
1998
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ as Trustee of the ▇▇▇▇▇ ▇▇▇▇▇▇ 1998
Trust Agreement dated October 5, 1998
-3-
69
JOINDER AND AGREEMENT RELATING TO
SHAREHOLDERS AGREEMENT
THIS JOINDER AND AGREEMENT relating to the Shareholders Agreement dated
as of September 17, 1998 by and among Miami Cruiseline Services Holdings I B.V.,
a Netherlands corporation (besloten vennootschap met beperkte aanspraklijkheid)
(the "Company"), Berkshire Partners LLC, a Massachusetts limited liability
company ("Berkshire") and certain other shareholders of the Company (the
"Shareholders Agreement"), is made and entered into as of November 13, 1998 by
and between the Company and each Management Investor listed on the signature
page hereto (each a "Holder"). Capitalized terms used herein but not otherwise
defined shall have the meanings set forth in the Shareholders Agreement.
WHEREAS, each Holder has acquired certain Shares from Berkshire and the
Shareholders Agreement requires each Holder, as a holder of such Shares, to
become a party to the Shareholders Agreement, and each Holder agrees to do so in
accordance with the terms hereof; and
WHEREAS, the parties believe that it is in the best interests of the
Company and its stockholders to provide for certain rights and obligations with
respect to the voting of shares of the Company and certain other matters.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Joinder and Agreement hereby
agree as follows:
1. Agreement to be Bound. Each Holder hereby agrees that upon execution
of this Joinder and Agreement, it shall become a party to the Shareholders
Agreement and shall be fully bound by, and subject to, all of the covenants,
terms and conditions of the Shareholders Agreement as though an original party
thereto and shall be deemed a Management Investor and a holder of Shares for all
purposes thereof. In addition, each Holder hereby agrees that all Shares held by
such Holder shall be deemed Management Shares and Shares for all purposes of the
Shareholders Agreement.
2. Proxy to Vote Shares. Each Holder hereby designates ▇.▇. ▇▇▇▇▇▇ as
"Purchaser Representative" to represent such Holder and grants to ▇.▇. ▇▇▇▇▇▇ an
irrevocable proxy coupled with an interest to vote such Holder's Shares with
respect to any vote agreed to be cast pursuant to Section 2 of the Shareholders
Agreement.
3. Successors and Assigns. Except as otherwise provided herein, this
Joinder and Agreement shall bind and inure to the benefit of and be enforceable
by the Company and its
70
successors, heirs and assigns and each Holder and any subsequent holders of
Shares and the respective successors, heirs and assigns of each of them, so long
as they hold any Shares.
4. Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
5. Notices. For purposes of Section 13.2 of the Shareholders Agreement,
all notices, demands or other communications to the Holder shall be directed to:
[The Holder]
c/o Greyhound Leisure Services, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
6. GOVERNING LAW. This Joinder and Agreement shall be governed by and
construed in accordance with the laws of the Netherlands without giving effect
to any choice of or conflict of laws provision or rule that would cause the
application of the domestic substantive laws of any other jurisdiction.
7. DESCRIPTIVE HEADINGS. The descriptive headings of this Joinder and
Agreement are for convenience of reference only and do not constitute a part of
this Joinder and Agreement.
* * * * *
71
IN WITNESS WHEREOF, the parties hereto have executed this Joinder as of
the date first above written.
MIAMI CRUISELINE SERVICES HOLDINGS I B.V.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Managing Director A
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ Senulus Brea
-----------------------------------------
Senulus Brea
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
-----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇-▇▇▇
