General Statement of Beneficial Ownership — Sch. 13D
Filing Table of Contents
Document/Exhibit Description Pages Size
1: SC 13D General Statement of Beneficial Ownership 31 136K
2: EX-99 Ex.1 - Joint Filing Agreement 5 16K
3: EX-99 Ex.7.02 - A&R Shareholders' Agreement 21 81K
4: EX-99 Ex.7.03 - Reg. Rights Agreement 35 133K
5: EX-99 Ex.7.04 - Letter Agreement 7 28K
6: EX-99 Ex.7.05 - Joinder Agreement to Shareholders Agr. 7 26K
7: EX-99 Ex.7.06 - Joinder Agreement to Reg. Rights Agr. 6 24K
8: EX-99 Ex.7.07 - Joinder Agreement Shareholders Agreement 8 32K
9: EX-99 Ex.7.08 - Joinder Agreement to Reg Right Agr. 10 30K
10: EX-99 Ex.7.09 - Assignment and Joinder Agr. 6 24K
11: EX-99 Ex.7.10 - A&R Wal-Mart Equity Part. Agr. 15 55K
12: EX-99 Ex.7.11 - A&R Wal-Mart Transfer Letter Agr. 7 24K
Exhibit 7.02
EXECUTION COPY
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AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
by and among
THOMAS H. LEE EQUITY FUND VI, L.P.,
THOMAS H. LEE PARALLEL FUND VI, L.P.,
THOMAS H. LEE PARALLEL (DT) FUND VI, L.P.,
GS CAPITAL PARTNERS VI FUND, L.P.,
GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.,
GS CAPITAL PARTNERS VI GMBH & CO. KG,
GS CAPITAL PARTNERS VI PARALLEL, L.P.,
GSMP V ONSHORE US, LTD.,
GSMP V OFFSHORE US, LTD.,
GSMP V INSTITUTIONAL US, LTD.
and
THE OTHER PERSONS THAT BECOME SIGNATORIES HERETO
Dated as of March 17, 2008
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TABLE OF CONTENTS
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Page
ARTICLE I. DEFINITIONS...........................................................................................1
Section 1.1. Definitions.......................................................................1
Section 1.2. Other Interpretive Provisions.....................................................5
Section 1.3. Methodology For Calculations......................................................5
ARTICLE II. REPRESENTATIONS AND WARRANTIES.......................................................................5
Section 2.1. Existence; Authority; Enforceability..............................................5
Section 2.2. Absence of Conflicts..............................................................6
Section 2.3. Consents..........................................................................6
ARTICLE III. GOVERNANCE..........................................................................................6
Section 3.1. Board of Directors................................................................6
Section 3.2. Certificate Amendment.............................................................7
ARTICLE IV. TRANSFERS OF SHARES..................................................................................7
Section 4.1. Limitations on Transfer...........................................................7
Section 4.2. Transfer to Permitted Transferees.................................................8
Section 4.3. Tag Along Rights..................................................................8
Section 4.4. Drag Along Rights.................................................................9
Section 4.5. Rights and Obligations of Transferees............................................10
ARTICLE V. GENERAL PROVISIONS...................................................................................11
Section 5.1. Waiver by Shareholders...........................................................11
Section 5.2. Demand Registrations.............................................................11
Section 5.3. Certain Actions..................................................................12
Section 5.4. Assignment; Benefit..............................................................12
Section 5.5. Freedom to Pursue Opportunities..................................................12
Section 5.6. Termination......................................................................12
Section 5.7. Subsequent Acquisition of Shares.................................................12
Section 5.8. Severability.....................................................................12
Section 5.9. Entire Agreement.................................................................13
Section 5.10. Amendment........................................................................13
Section 5.11. Waiver...........................................................................13
Section 5.12. Counterparts.....................................................................13
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Section 5.13. Notices..........................................................................13
Section 5.14. Governing Law....................................................................14
Section 5.15. Jurisdiction.....................................................................14
Section 5.16. Waiver of Jury Trial.............................................................15
Section 5.17. Specific Performance.............................................................15
Section 5.18. No Third Party Beneficiaries.....................................................15
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This AMENDED AND RESTATED SHAREHOLDERS AGREEMENT (as it may be amended
from time to time in accordance with the terms hereof, this "Agreement"), dated
as of March 17, 2008, is made by and among the THL Parties, the GS Parties
(each as defined herein) and such other persons who become signatories hereto
from time to time (collectively, the "Shareholders").
RECITALS
WHEREAS, MoneyGram International, Inc., a Delaware corporation (the
"Company"), the THL Parties and the GS Parties have entered into an Amended and
Restated Purchase Agreement, dated as of March 17, 2008 (as such agreement may
be amended, supplemented or otherwise modified from time to time, the "Purchase
Agreement"), pursuant to which, at the Closing (as defined in the Purchase
Agreement), the Company intends to sell to the THL Parties and the GS Parties,
and each of the THL Parties and the GS Parties intends to purchase from the
Company, in the case of the THL Parties, shares of Series B Participating
Convertible Preferred Stock of the Company (the "Series B Preferred Stock") and,
in the case of the GS Parties, shares of Series B-1 Participating Convertible
Preferred Stock of the Company (the "Series B-1 Preferred Stock");
WHEREAS, immediately following the Closing, it is expected that the THL
Parties will own all of the issued and outstanding Series B Preferred Stock and
the GS Parties will own all of the issued and outstanding Series B-1 Preferred
Stock; and
WHEREAS, the parties hereto deem it to be in their best interests to
enter into an agreement establishing and setting forth their agreement with
respect to certain rights and obligations associated with ownership of
Securities of the Company.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, covenants and agreements of the parties hereto, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Affected Shareholders" has the meaning set forth in Section 5.8.
"Affiliate" means (i) with respect to any Person, (x) any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person and (y) if such Person is a private
equity investment fund, any other private equity investment fund the primary
investment advisor to which is the primary investment advisor to such specified
Person or an Affiliate thereof, or (ii) with respect to any individual, the
spouse, parent, sibling, child, step-child, grandchild, niece or nephew of such
Person, or the spouse thereof and any trust, limited liability company, limited
partnership, private foundation or other estate planning vehicle for such Person
or for the benefit of any of the foregoing or other Persons pursuant to the laws
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of descent and distribution; provided, however, that, for purposes hereof, (A)
each GS Party shall be deemed to be an Affiliate of every other GS Party, (B)
each THL Party shall be deemed to be an Affiliate of every other THL Party, and
(C) neither the Company nor any Person controlled by the Company shall be deemed
to be an Affiliate of any Shareholder.
"Affiliated Officer" means an officer of the Company affiliated with
the GS Parties or the THL Parties.
"Agreement" has the meaning set forth in the preamble.
"Board of Directors" means the board of directors of the Company.
"Board Observers" has the meaning set forth in Section 3.1(c).
"Business Day" means any day other than a Saturday, Sunday or day on
which banking institutions in New York, New York are authorized or obligated by
law or executive order to close.
"Closing Date" has the meaning set forth in the Purchase Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Stock" means the common stock of the Company, any other class
of common stock of the Company hereafter created and any other securities of the
Company into which such Common Stock may be reclassified, exchanged or converted
pursuant to a merger, consolidation, stock split, stock dividend, restructuring
or recapitalization of the Company or otherwise.
"Common Stock Equivalents" means, with respect to any Person,
securities issued by such Person which are convertible into, or exchangeable or
exercisable for, shares of capital stock or other Equity Securities of such
Person (including any option, warrant, or other right to subscribe for, purchase
or otherwise acquire, or any note or debt security convertible into or
exchangeable for, shares of capital stock or other Equity Securities of such
Person).
"Company" has the meaning set forth in the recitals.
"Drag-Along Buyer" has the meaning set forth in Section 4.4(a).
"Drag-Along Notice" has the meaning set forth in Section 4.4(a).
"Drag-Along Shareholders" has the meaning set forth in Section 4.4(a).
"Equity Securities" means, with respect to any Person, any capital
stock or other equity security of such Person, including any Common Stock
Equivalents of such Person.
"Escrow Agent" has the meaning set forth in Section 4.4(d).
"Governing Documents" means the certificate of incorporation and
by-laws of the Company.
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"GSCP Board Observer" has the meaning set forth in Section 3.1(c).
"GSCP Director" has the meaning set forth in Section 3.1(a).
"GS Parties" means, collectively, the GSCP Parties and the GSMP
Parties.
"GSCP Parties" means, collectively, GS Capital Partners VI Fund, L.P.,
GS Capital Partners VI Offshore Fund, L.P., GS Capital Partners VI GmbH & CO.
KG, GS Capital Partners VI Parallel, L.P., and any Affiliates of the foregoing
to whom Securities are Transferred after the date hereof.
"GSMP Parties" means, collectively, GSMP V Onshore US, Ltd., GSMP V
Offshore US, Ltd., GSMP V Institutional US, Ltd., and any Affiliates of the
foregoing to whom Securities are Transferred after the date hereof.
"Necessary Action" means, with respect to a specified result, all
actions (to the extent such actions are permitted by law) necessary to cause
such result, including (i) voting or providing a written consent with respect to
the Securities, (ii) causing the adoption of shareholders' resolutions and
amendments to the Governing Documents, (iii) causing members of the Board of
Directors (to the extent such members were nominated or designated by the Person
obligated to undertake the Necessary Action, and subject to any fiduciary duties
that such members may have as directors of the Company) to act in a certain
manner or causing them to be removed in the event they do not act in such a
manner, (iv) executing agreements and instruments, and (v) making, or causing to
be made, with governmental, administrative or regulatory authorities, all
filings, registrations or similar actions that are required to achieve such
result.
"Permitted Transferee" means (i) in the case of any Shareholder that is
a partnership or limited liability company, any Affiliate of such Shareholder,
(ii) in the case of any Shareholder that is a corporation, any Person that owns
a majority of the voting stock of such Shareholder, or any Person that is a
direct or indirect wholly-owned subsidiary of such Shareholder, (iii) any Person
that acquires any Securities pursuant to a syndication arrangement (A) under
which any Shareholder syndicates Securities constituting no more than 50% of
such Shareholder's outstanding Securities, (B) pursuant to which any Shareholder
retains voting and dispositive control over the Transferred Securities and the
Transferred Securities remain subject to the provisions of this Agreement,
including the Transfer restrictions set forth in Section 4.1, and (C) in the
case of the Series B Preferred Stock and the Series B-1 Preferred Stock, which
shall be completed within 180 days from the date hereof, provided that the
Shareholders shall not Transfer any Securities to any Person listed on Schedule
4.5 of the Purchase Agreement or any of such Person's Affiliates (unless such
sale is pursuant to a merger or consolidation of the Company), (iv) in the case
of any Shareholder that is an individual, any successor by death or divorce, or
(v) in the case of any Shareholder that is a trust whose sole beneficiaries are
individuals, such individuals or their spouses or lineal descendants.
"Person" means an individual, partnership, limited liability company,
corporation, trust, association, estate, unincorporated organization or a
government or any agency or political subdivision thereof.
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"Preferred Stock" means, collectively, the Series B Preferred Stock and
the Series B-1 Preferred Stock.
"Proposed Transfer" has the meaning set forth in Section 4.3(a).
"Proposed Transferee" has the meaning set forth in Section 4.3(a).
"Purchase Agreement" has the meaning set forth in the recitals.
"Registration Rights Agreement" means that certain Registration Rights
Agreement, to be dated as of the Closing Date, by and among the THL Parties, the
GS Parties and the Company, in substantially the form attached to the Purchase
Agreement.
"Registration Statement" means any registration statement of the
Company filed with, or to be filed with, the Securities and Exchange Commission
under the rules and regulations promulgated under the Securities Act, including
any related prospectus, amendments and supplement to such registration
statement, including post-effective amendments, and all exhibits and all
material incorporated by reference in such registration statement other than a
registration statement (and related prospectus) filed on Form S-8 or any
successor form thereto.
"Securities" means, with respect to any Person, (i) the Preferred Stock
purchased by such Person under the Purchase Agreement and (ii) any securities
into which any of the foregoing Preferred Stock are converted, exchanged or
exercised in accordance with the terms thereof and of the Purchase Agreement.
"Securities Act" means the United States Securities Act of 1933, as
amended, and any successor thereto, and any rules and regulations promulgated
thereunder, all as the same shall be in effect from time to time.
"Selling Shareholders" has the meaning set forth in Section 4.4(a).
"Series B Preferred Stock" has the meaning set forth in the recitals.
"Series B-1 Preferred Stock" has the meaning set forth in the recitals.
"Shareholders" has the meaning set forth in the preamble.
"Sponsor Director" means any director appointed by a THL Party or a
GSCP Party.
"Tagging Shareholder" has the meaning set forth in Section 4.3(a).
"THL Parties" means Thomas H. Lee Equity Fund VI, L.P., Thomas H. Lee
Parallel Fund VI, L.P., Thomas H. Lee Parallel (DT) Fund VI, L.P., and any
Permitted Transferees of the foregoing to whom Securities are Transferred after
the date hereof.
"Transfer" means, with respect to any Securities, a direct or indirect
transfer, sale, exchange, assignment, pledge, hypothecation or other encumbrance
or other disposition of such Securities, including the grant of an option or
other right, whether directly or indirectly, whether voluntarily, involuntarily
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or by operation of law; and "Transferred," "Transferee," and "Transferability"
shall each have a correlative meaning. For the avoidance of doubt, a transfer,
sale, exchange, assignment, pledge, hypothecation or other encumbrance or other
disposition of an interest in any Shareholder, or direct or indirect parent
thereof, all or substantially all of whose assets are Securities shall
constitute a "Transfer" of Securities for purposes of this Agreement.
Section 1.2. Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to
the singular and plural forms of the defined terms.
(b) The words "hereof," "herein," "hereunder" and similar
words refer to this Agreement as a whole and not to any particular
provision of this Agreement; and any subsection and Section references
are to this Agreement unless otherwise specified.
(c) The term "including" is not limiting and means "including
without limitation."
(d) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation
of this Agreement.
(e) Whenever the context requires, any pronouns used herein
shall include the corresponding masculine, feminine or neuter forms.
Section 1.3. Methodology For Calculations. Except as otherwise
expressly provided in this Agreement, for purposes of calculating (a) the number
of outstanding Securities as of any particular date and (b) the number of
outstanding Securities owned by a Person hereunder (and the percentage of the
Securities owned by a Person), (i) such number of Securities shall be calculated
as though each Common Stock Equivalent of the Company had been on such date
converted into, or exchanged or exercised for, the number of shares of Common
Stock which such Common Stock Equivalent would be entitled to be converted into
or exchanged or exercised for and (ii) each share of Series B-1 Preferred Stock
shall be deemed to have been converted into one share of Series B Preferred
Stock. In the event of any stock split, stock dividend, reverse stock split, any
combination of Securities or any similar event, with respect to all references
in this Agreement to a Shareholder or Shareholders holding a number of
Securities, the applicable number shall be appropriately adjusted to give effect
to such stock split, stock dividend, reverse stock split, any combination of
Securities or any similar event).
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each of the parties to this Agreement hereby represents and warrants to
each other party to this Agreement that as of the date such party executes this
Agreement:
Section 2.1. Existence; Authority; Enforceability. Such party has the
power and authority to enter into this Agreement and to carry out its
obligations hereunder. Such party is duly organized and validly existing under
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the laws of its jurisdiction of organization, and the execution of this
Agreement, and the consummation of the transactions contemplated herein, have
been authorized by all necessary action, and no other act or proceeding on its
part is necessary to authorize the execution of this Agreement or the
consummation of any of the transactions contemplated hereby. This Agreement has
been duly executed by it and constitutes its legal, valid and binding
obligations, enforceable against it in accordance with its terms.
Section 2.2. Absence of Conflicts. The execution and delivery by such
party of this Agreement and the performance of its obligations hereunder does
not and will not (a) conflict with, or result in the breach of any provision of
the constitutive documents of such party; (b) result in any violation, breach,
conflict, default or event of default (or an event which with notice, lapse of
time, or both, would constitute a default or event of default), or give rise to
any right of acceleration or termination or any additional payment obligation,
under the terms of any contract, agreement or permit to which such party is a
party or by which such party's assets or operations are bound or affected; or
(c) violate any law applicable to such party.
Section 2.3. Consents. Other than any consents which have already been
obtained, no consent, waiver, approval, authorization, exemption, registration,
license or declaration is required to be made or obtained by such party in
connection with (a) the execution, delivery or performance of this Agreement or
(b) the consummation of any of the transactions contemplated herein.
ARTICLE III
GOVERNANCE
Section 3.1. Board of Directors.
(a) During such time as the THL Parties and GS Parties are
entitled pursuant to Section 4.1 of the Purchase Agreement to elect
more than two (2) directors of the Company, the Shareholders shall take
all Necessary Action to cause the Board of Directors to be comprised of
such number of directors that shall be entitled to cast a minimum of
eleven (11) votes in the aggregate with respect to actions taken by the
Board of Directors, and one (1) of whom shall be designated by the GSCP
Parties, subject to satisfaction of all legal and governance
requirements regarding service as a director of the Company, which
designee is reasonably acceptable to the Board of Directors (the person
from time to time designated by the GSCP Parties being referred to
herein as the "GSCP Director"); provided that:
(i) if at any time the GSCP Parties cease to own, in
the aggregate, Securities, including Securities acquired upon
exchange or conversion, representing, directly or indirectly,
an initial purchase price under the Purchase Agreement of not
less than $33,000,000, irrespective of the then current value
of such Securities, then the GSCP Parties shall not be
entitled to designate a director for election to the Board of
Directors;
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(ii) if at any time the size of the Board of
Directors falls below eleven (11) votes, then the GSCP Parties
shall not be entitled to designate any director for election
or appointment to the Board of Directors and any GSCP Director
elected or appointed to the Board of Directors at such time
shall resign, provided that the Shareholders shall take all
Necessary Action required to cause the size of the Board of
Directors to be at least eleven (11) votes and to effect all
of the actions set forth in this Section 3.1(a); and
(iii) the GSCP Director shall only be entitled to
cast one (1) vote.
(b) Subject to Section 3.1(a), the GSCP Parties shall have the
exclusive right to nominate and remove its designees to the Board of
Directors, as well as the exclusive right to fill vacancies created by
reason of death, removal or resignation of such designees, and the THL
Parties shall take all Necessary Action to cause the Board of Directors
to be so constituted.
(c) During such time as the THL Parties and GS Parties are
entitled pursuant to Section 4.1(a) of the Purchase Agreement to
appoint observers to the Board of Directors (the "Board Observers"),
the Shareholders shall take all Necessary Action to cause at least one
(1) of the Board Observers to be designated by the GSCP Parties, which
designee is reasonably acceptable to the Board of Directors (the person
from time to time designated by the GSCP Parties being referred to
herein as the "GSCP Board Observer").
(d) Other than the GSCP Director, all Board Representatives
contemplated by Section 4.1 of the Purchase Agreement may be designated
by the THL Parties. Other than the GSCP Board Observer, any other Board
Observer contemplated by Section 4.1(a) of the Purchase Agreement may
be designated by the THL Parties.
Section 3.2. Certificate Amendment.
(a) The THL Parties shall take all Necessary Action to amend,
as set forth in Section 4.1(g) of the Purchase Agreement, the
Certificate of Incorporation, including voting in favor of the
Certificate Amendment (as defined in the Purchase Agreement).
ARTICLE IV
TRANSFERS OF SHARES
Section 4.1. Limitations on Transfer.
(a) Prior to the first anniversary of the Closing Date, no
Shareholder other than the THL Parties shall Transfer any Securities,
except (i) to a Permitted Transferee pursuant to Section 4.2, (ii)
pursuant to Section 4.3 in conjunction with a Transfer in which a THL
Party is a Transferring Shareholder, (iii) pursuant to Section 4.4,
(iv) pursuant to the Registration Rights Agreement, or (v) pursuant to
Section 4.5 of the Purchase Agreement, provided that the provisions of
Section 4.3 and Section 4.4 shall be applicable to the proposed
7
Transfer of any Securities in accordance with Section 4.5(a) of the
Purchase Agreement to one or more Persons that is not a Permitted
Transferee.
(b) After the first anniversary of the Closing Date and prior
to the fifth anniversary of Closing Date, no Shareholder shall Transfer
any Securities, except (i) to a Permitted Transferee pursuant to
Section 4.2, (ii) pursuant to Section 4.3, (iii) pursuant to Section
4.4, (iv) pursuant to the Registration Rights Agreement, or (v)
pursuant to Section 4.5 of the Purchase Agreement, provided that the
provisions of Section 4.3 and Section 4.4 shall be applicable to the
proposed Transfer of any Securities in accordance with Section 4.5(a)
of the Purchase Agreement to one or more Persons that is not a
Permitted Transferee.
(c) In the event of a purported Transfer by a Shareholder of
any Securities in violation of the provisions of this Agreement, such
purported Transfer shall be void and of no effect, and each of the
Shareholders shall take all Necessary Action to cause the Company not
to give effect to such Transfer.
Section 4.2. Transfer to Permitted Transferees. A Shareholder may
Transfer its Securities to a Permitted Transferee of such Shareholder; provided
that each Permitted Transferee of any Shareholder to which Securities are
Transferred shall, and such Shareholder shall cause such Permitted Transferee
to, Transfer back to such Shareholder (or to another Permitted Transferee of
such Shareholder) any Securities it owns if such Permitted Transferee ceases to
be a Permitted Transferee of such Shareholder.
Section 4.3. Tag Along Rights.
(a) In the case of a proposed Transfer prior to the fifth
anniversary of the Closing Date by a Shareholder (a "Transferring
Shareholder") of any or all of its Securities, other than (i) to a
Permitted Transferee, (ii) pursuant to the Registration Rights
Agreement, or (iii) pursuant to or consequent upon the exercise of the
drag along rights set forth in Section 4.4 (a "Proposed Transfer"),
each other Shareholder who exercises its rights under this Section
4.3(a) (a "Tagging Shareholder") shall have the right to require the
Transferring Shareholder to cause the proposed Transferee (a "Proposed
Transferee") to purchase from such Tagging Shareholder up to a number
of its Securities equal to the product of (A) (x) the number of
Securities held by the Tagging Shareholder divided by (y) the number of
Securities held by all Shareholders participating in such Transfer and
(B) the aggregate number of Securities proposed to be Transferred to
the Proposed Transferee.
(b) The Transferring Shareholder shall give notice to each
other Shareholder of a Proposed Transfer not later than ten (10)
Business Days prior to the closing of the Proposed Transfer, setting
forth the number of Securities proposed to be so Transferred, the name
and address of the Proposed Transferee, the proposed amount and form of
consideration (and, if such consideration consists in part or in whole
of property other than cash, the Transferring Shareholder shall provide
such information, to the extent reasonably available to the
Transferring Shareholder, relating to such non-cash consideration as
the other Shareholders may reasonably request in order to evaluate such
8
non-cash consideration), and other terms and conditions of payment
offered by the Proposed Transferee. Following delivery of such notice,
the Transferring Shareholder shall deliver or cause to be delivered to
each Tagging Shareholder copies of all transaction documents relating
to the Proposed Transfer as the same become available. The tag-along
rights provided by this Section 4.3 must be exercised by a Shareholder
within five (5) Business Days following receipt of the notice required
by the first sentence of this Section 4.3(b), by delivery of a written
notice to the Transferring Shareholder indicating its desire to
exercise its rights and specifying the number of Securities it desires
to Transfer.
(c) Any Transfer of Securities by a Tagging Shareholder to a
Proposed Transferee pursuant to this Section 4.3 shall be on the same
terms and conditions (including, without limitation, price, time of
payment and form of consideration) as to be paid to the Transferring
Shareholder; provided that in order to be entitled to exercise its tag
along right pursuant to this Section 4.3, each Tagging Shareholder must
agree to make to the Proposed Transferee representations, warranties,
covenants, indemnities and agreements the same mutatis mutandis as
those made by the Transferring Shareholder in connection with the
Proposed Transfer (other than any non-competition or similar agreements
or covenants that would bind the Tagging Shareholder or its
Affiliates), and agree to the same conditions to the Proposed Transfer
as the Transferring Shareholder agrees, it being understood that all
such representations, warranties, covenants, indemnities and agreements
shall be made by the Transferring Shareholder and each Tagging
Shareholder severally and not jointly and that, except with respect to
individual representations, warranties, covenants, indemnities and
other agreements of the Tagging Shareholder as to the unencumbered
title to its Securities and the power, authority and legal right to
Transfer such Securities, the aggregate amount of the liability of the
Tagging Shareholder shall not exceed either (i) such Tagging
Shareholder's pro rata portion of any such liability to be determined
in accordance with such Tagging Shareholder's portion of the total
number of Securities included in such Transfer or (ii) the proceeds to
such Tagging Shareholder in connection with such Transfer. Each Tagging
Shareholder shall be responsible for its proportionate share of the
costs of the Proposed Transfer to the extent not paid or reimbursed by
the Proposed Transferee or the Company.
Section 4.4. Drag Along Rights.
(a) If, prior to the fifth anniversary of the Closing Date,
Shareholders holding, in the aggregate, greater than fifty percent
(50%) of the Securities owned by the Shareholders from time to time
(the "Selling Shareholders") agree to enter into a transaction which
would result in the Transfer of more than fifty percent (50%) of the
aggregate Securities (including any Securities held by other holders of
Securities, including any Drag-Along Shareholders) to one or more
Persons that is not a Permitted Transferee (the "Drag-Along Buyer"),
the Selling Shareholders may deliver written notice (a "Drag-Along
Notice") to each other Shareholder (the "Drag-Along Shareholders"),
stating that such Selling Shareholders wish to exercise their rights
under this Section 4.4 with respect to such Transfer, and setting forth
the name and address of the Drag-Along Buyer, the number of Securities
proposed to be Transferred, the proposed amount and form of the
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consideration, and all other material terms and conditions offered by
the Drag-Along Buyer.
(b) Upon delivery of a Drag-Along Notice, each Drag-Along
Shareholder shall be required to Transfer that percentage of its
Securities equal to the percentage of the Securities held by the
Selling Shareholders which are being Transferred to the Drag-Along
Buyer, upon the same terms and conditions (including, without
limitation, as to price, time of payment and form of consideration) as
agreed by the Selling Shareholders and the Drag-Along Buyer, and shall
make to the Drag-Along Buyer representations, warranties, covenants,
indemnities and agreements comparable to those made by the Selling
Shareholders in connection with the Transfer (other than any
non-competition or similar agreements or covenants that would bind the
Drag-Along Shareholder or its Affiliates), and shall agree to the same
conditions to the Transfer as the Selling Shareholders agree, it being
understood that all such representations, warranties, covenants,
indemnities and agreements shall be made by each Selling Shareholder
and each Drag-Along Shareholder severally and not jointly and that,
except with respect to individual representations, warranties,
covenants, indemnities and other agreements of the Drag-Along
Shareholder as to the unencumbered title to its Securities and the
power, authority and legal right to Transfer such Securities, the
aggregate amount of the liability of the Drag-Along Shareholder shall
not exceed either (i) such Drag-Along Shareholder's pro rata portion of
any such liability, to be determined in accordance with such Drag-Along
Shareholder's portion of the total number of Securities included in
such Transfer or (ii) the proceeds to such Drag-Along Shareholder in
connection with such Transfer.
(c) In the event that any such Transfer is structured as a
merger, consolidation, or similar business combination, each Drag-Along
Shareholder agrees to (i) vote in favor of the transaction, (ii) take
such other Necessary Action as may be required to effect such
transaction (subject to Section 4.4(b)) and (iii) take all action to
waive any dissenters, appraisal or other similar rights with respect
thereto.
(d) If any Drag-Along Shareholder fails to deliver to the
Drag-Along Buyer the certificate or certificates evidencing Securities
to be sold pursuant to this Section 4.4, the Selling Shareholders may,
at their option, in addition to all other remedies they may have,
deposit the purchase price (including any promissory note constituting
all or any portion thereof) for such Securities with any national bank
or trust company having combined capital, surplus and undivided profits
in excess of $100 million (the "Escrow Agent"), and the Company shall
cancel on its books the certificate or certificates representing such
Securities and thereupon all of such Drag-Along Shareholder's rights in
and to such Securities shall terminate. Thereafter, upon delivery to
the Company by such Drag-Along Shareholder of the certificate or
certificates evidencing such Securities (duly endorsed, or with stock
powers duly endorsed, for transfer, with signature guaranteed, free and
clear of any liens or encumbrances, and with any stock transfer tax
stamps affixed), the Selling Shareholders 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 Drag-Along Shareholder.
Section 4.5. Rights and Obligations of Transferees.
10
(a) Any Transfer of Securities to any Transferee of a
Shareholder, which Transfer is otherwise in compliance herewith, shall
be permitted hereunder only if such Transferee agrees in writing that
it shall, upon such Transfer, assume with respect to such Securities
the transferor's obligations under this Agreement and become a party to
this Agreement for such purpose and makes the representations and
warranties set forth in Article II of this Agreement, and any other
agreement or instrument executed and delivered by such transferor in
respect of the Securities.
(b) Upon any Transfer of Securities to any Person other than a
Shareholder, which Transfer is otherwise in compliance herewith, the
transferee shall, upon such Transfer, assume all rights held by the
transferor at the time of the Transfer with respect to such Securities,
provided that no Transferee (other than any Permitted Transferee of a
Shareholder) shall acquire any of the rights provided in Article III by
reason of such Transfer.
(c) Notwithstanding the foregoing, this Section 4.5 shall not
apply to (i) any Transfer to the public under a Registration Statement,
or (ii) any Transfer made pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended.
ARTICLE V
GENERAL PROVISIONS
Section 5.1. Waiver by Shareholders. The rights and obligations
contained in this Agreement are in addition to the relevant provisions of the
Governing Documents in force from time to time and shall be construed to comply
with such provisions. To the extent that this Agreement is determined to be in
contravention of the Governing Documents, this Agreement shall constitute a
waiver by each Shareholder, to the fullest extent permissible under applicable
laws, of any right such Shareholder may have pursuant to the Governing Documents
that is inconsistent with this Agreement.
Section 5.2. Demand Registrations. The Shareholders agree that the GS
Parties shall be entitled to exercise one of the five Demand Registrations (as
defined in the Registration Rights Agreement) that the Holders (as defined in
the Registration Rights Agreement) have been granted pursuant to Section 2.1(d)
of the Registration Rights Agreement and upon the written request of the GS
Parties, the THL Parties shall take all Necessary Action to cause the Holders'
Representative (as defined in the Registration Rights Agreement) to take all
such actions to effect such Demand Registration in accordance with Section 2.1
of the Registration Rights Agreement. In addition, the THL Parties shall cause
the Holders' Representative not to take any action or refrain from taking any
action or make any determination under Article II of the Registration Rights
Agreement with respect to such Demand Registration without the prior written
consent of the GS Parties. In addition, (i) at the request of the GS Parties,
the THL Parties shall take all Necessary Action to cause the Holders'
Representative to request that the Company refile a new automatic shelf
registration statement as contemplated by Section 2.4(t) of the Registration
Rights Agreement, and (ii) if the Holders' Representative is to receive an
opinion contemplated by Section 2.5 of the Registration Rights Agreement, the
THL Parties shall take all Necessary Action to cause the Holders' Representative
to accept only such opinion as is reasonably satisfactory to the GS Parties. The
11
THL Parties shall be entitled to exercise the remaining four (4) Demand
Registrations that the Holders have been granted pursuant to Section 2.1(d) of
the Registration Rights Agreement.
Section 5.3. Certain Actions. To the extent that the THL Parties take
any actions with respect to the Voting Date as set forth in Section 4.1(b)(x) of
the Purchase Agreement or make any determinations with respect to the Voting
Date in accordance with the definition of "Voting Date" as set forth in each of
the Certificate of Designations, Preferences and Rights of the Series B
Preferred Stock, the Certificate of Designations, Preferences and Rights of the
Series B-1 Preferred Stock and the Certificate of Designations, Preferences and
Rights of the Series D Participating Convertible Preferred Stock of the Company,
the THL Parties shall provide prior notice to, and consult in good faith with,
the GS Parties with respect to any such actions or determinations, to the extent
practicable.
Section 5.4. Assignment; Benefit. The rights and obligations hereunder
shall not be assignable without the prior written consent of the other parties
hereto except as provided under Article IV. Any assignment of rights or
obligations in violation of this Section 5.2 shall be null and void. This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors and permitted assigns.
Section 5.5. Freedom to Pursue Opportunities. The parties expressly
acknowledge and agree that: (i) each Shareholder and Sponsor Director has the
right to, and shall have no duty (contractual or otherwise) to refrain from,
directly or indirectly engaging in the same or similar business activities or
lines of business as the Company or any of its subsidiaries, including those
deemed to be competing with the Company or any of its subsidiaries; and (ii) in
the event that a Shareholder or Sponsor Director acquires knowledge of a
potential transaction or matter that both the Company or its subsidiaries, on
the one hand, and such Shareholder or any other Person, on the other hand, might
reasonably be deemed to have pursued or had the ability or desire to pursue if
granted the opportunity to do so, such Shareholder or Sponsor Director shall
have no duty (contractual or otherwise) to communicate or present such corporate
opportunity to the Company or any of its subsidiaries or other Shareholders, as
the case may be, and, notwithstanding any provision of this Agreement to the
contrary, shall not be liable to the Company or any of its subsidiaries or any
holder of Equity Securities of the Company for breach of any duty (contractual
or otherwise) by reason of the fact that such Shareholder or Sponsor Director,
directly or indirectly, pursues or acquires such opportunity for itself, directs
such opportunity to another Person, or does not present such opportunity to the
Company or any of its subsidiaries or other Shareholders.
Section 5.6. Termination. The rights and obligations of a Shareholder
under this Agreement shall terminate at such time as such Shareholder no longer
owns any Securities.
Section 5.7. Subsequent Acquisition of Shares. Any Equity Securities
acquired subsequent to the date hereof by a Shareholder shall be subject to the
terms and conditions of this Agreement.
Section 5.8. Severability. In the event that any provision of this
Agreement shall be invalid, illegal or unenforceable such provision shall be
construed by limiting it so as to be valid, legal and enforceable to the maximum
12
extent provided by law and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
Section 5.9. Entire Agreement. This Agreement, the Purchase Agreement
and the Registration Rights Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersedes any
prior agreement or understanding among them with respect to the matters referred
to herein. There are no representations, warranties, promises, inducements,
covenants or undertakings relating to shares of Securities, other than those
expressly set forth or referred to herein, in the Purchase Agreement or in the
Registration Rights Agreement.
Section 5.10. Amendment. This Agreement may not be amended, modified,
supplemented or waived except by written approval of the GSCP Parties, the GSMP
Parties and the THL Parties; provided that any amendment, modification,
supplement or wavier that affects Shareholders (other than the GSCP Parties, the
GSMP Parties and the THL Parties) disproportionately vis-a-vis the GSCP Parties,
the GSMP Parties and the THL Parties and results in a material adverse effect on
such Shareholders (the "Affected Shareholders") will require the written
approval of (i) the GSCP Parties, (ii) the GSMP Parties, (iii) the THL Parties
and (iv) Affected Shareholders holding a majority of the outstanding Securities
then held by all Affected Shareholders. The execution of a counterpart signature
page to this Agreement after the date hereof by any Person that acquires any
Securities shall only require the consent of the GSCP Parties, the GSMP Parties
and the THL Parties and shall not be deemed an amendment to this Agreement so
long as such Person agrees to be treated as a "Shareholder" hereunder.
Section 5.11. Waiver. No waiver of any breach of any of the terms of
this Agreement shall be effective unless such waiver is expressly made in
writing and executed and delivered by the party against whom such waiver is
claimed. Waiver by any party hereto of any breach or default by any other party
of any of the terms of this Agreement shall not operate as a waiver of any other
breach or default, whether similar to or different from the breach or default
waived. No waiver of any provision of this Agreement shall be implied from any
course of dealing between the parties hereto or from any failure by any party to
assert its or his or her rights hereunder on any occasion or series of
occasions.
Section 5.12. Counterparts. This Agreement may be executed in any
number of separate counterparts each of which when so executed shall be deemed
to be an original and all of which together shall constitute one and the same
agreement.
Section 5.13. Notices. Unless otherwise specified herein, all notices,
consents, approvals, reports, designations, requests, waivers, elections and
other communications authorized or required to be given pursuant to this
Agreement shall be in writing and shall be given, made or delivered (and shall
be deemed to have been duly given, made or delivered upon receipt) by personal
hand-delivery, by facsimile transmission, by electronic mail, by mailing the
same in a sealed envelope, registered first-class mail, postage prepaid, return
receipt requested, or by air courier guaranteeing overnight delivery, addressed
to the Shareholder at the following addresses (or at such other address for a
Shareholder as shall be specified by like notice):
13
(a) if to the THL Parties, to:
c/o Thomas H. Lee Partners, L.P.
100 Federal Street, 35th Floor
Boston, Massachusetts 02110
Fax No.: (617) 227-3514
Attention: Thomas M. Hagerty
Seth W Lawry
Scott L. Jaeckel
with a copy (which shall not constitute notice) to:
Weil, Gotshal & Manges LLP
100 Federal Street, 34th Floor
Boston, Massachusetts 02110
Fax No.: (617) 772-8333
Attention: James Westra, Esq.
Malcolm Landau, Esq.
(b) if to the GS Parties, to:
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Fax No.: (212) 357-5505
Attention: Bradley Gross
Edward Pallesen
with a copy (which shall not constitute notice) to:
Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
Fax No.: (212) 859-4000
Attention: Robert Schwenkel, Esq.
David Shaw, Esq.
Section 5.14. Governing Law. THIS AGREEMENT AND ANY RELATED DISPUTE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
Section 5.15. Jurisdiction. EACH OF THE PARTIES HERETO (A) CONSENTS TO
SUBMIT ITSELF TO THE PERSONAL JURISDICTION OF ANY FEDERAL OR STATE COURT LOCATED
IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK IN THE EVENT ANY
DISPUTE ARISES OUT OF THIS AGREEMENT, (B) AGREES THAT IT WILL NOT ATTEMPT TO
DENY OR DEFEAT SUCH PERSONAL JURISDICTION BY MOTION OR OTHER REQUEST FOR LEAVE
FROM ANY SUCH COURT AND (C) AGREES THAT IT WILL NOT BRING ANY ACTION RELATING TO
THIS AGREEMENT IN ANY COURT OTHER THAN A FEDERAL OR STATE COURT LOCATED IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK.
14
Section 5.16. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING IN RELATION TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN. Any
Shareholder may file an original counterpart or a copy of this Section 5.14 with
any court as written evidence of the consent of the Shareholders to the waiver
of their rights to trial by jury.
Section 5.17. Specific Performance. It is hereby agreed and
acknowledged that it will be impossible to measure the money damages that would
be suffered if the parties fail to comply with any of the obligations herein
imposed on them by this Agreement and that, in the event of any such failure, an
aggrieved party will be irreparably damaged and will not have an adequate remedy
at law. Any such party shall, therefore, be entitled (in addition to any other
remedy to which such party may be entitled at law or in equity) to seek
injunctive relief, including specific performance, to enforce such obligations,
without the posting of any bond, and if any action should be brought in equity
to enforce any of the provisions of this Agreement, none of the parties hereto
shall raise the defense that there is an adequate remedy at law.
Section 5.18. No Third Party Beneficiaries. Except as otherwise
provided herein, this Agreement is not intended to confer upon any Person,
except for the parties hereto, any rights or remedies hereunder.
[Remainder of Page Intentionally Left Blank]
15
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
THOMAS H. LEE EQUITY FUND VI, L.P.
By: THL EQUITY ADVISORS VI, LLC,
its general partner
By: THOMAS H. LEE PARTNERS, L.P.,
its sole member
By: THOMAS H. LEE ADVISORS, LLC,
its general partner
By: /s/ Scott L. Jaeckel
--------------------------------------
Name: Scott L. Jaeckel
Title: Managing Director
THOMAS H. LEE PARALLEL FUND VI, L.P.
By: THL EQUITY ADVISORS VI, LLC
its general partner
By: THOMAS H. LEE PARTNERS, L.P.,
its sole member
By: THOMAS H. LEE ADVISORS, LLC,
its general partner
By: /s/ Scott L. Jaeckel
--------------------------------------
Name: Scott L. Jaeckel
Title: Managing Director
THOMAS H. LEE PARALLEL (DT) FUND VI, L.P.
By: THL EQUITY ADVISORS VI, LLC
its general partner
By: THOMAS H. LEE PARTNERS, L.P.,
its sole member
By: THOMAS H. LEE ADVISORS, LLC,
its general partner
By: /s/ Scott L. Jaeckel
--------------------------------------
Name: Scott L. Jaeckel
Title: Managing Director
[Signature Page to Amended and Restated Shareholders' Agreement]
GS CAPITAL PARTNERS VI FUND, L.P.
By: GSCP VI Advisors, L.L.C., its General Partner
By: /s/ Oliver Thym
----------------------------------------------
Name: Oliver Thym
Title: Managing Director and Vice President
GS CAPITAL PARTNERS VI OFFSHORE FUND, L.P.
By: GSCP VI Offshore Advisors, L.L.C.,
its General Partner
By: /s/ Oliver Thym
----------------------------------------------
Name: Oliver Thym
Title: Managing Director and Vice President
GS CAPITAL PARTNERS VI GMBH & CO. KG
By: GS Advisors VI, L.L.C.,
its Managing Limited Partner
By: /s/ Oliver Thym
----------------------------------------------
Name: Oliver Thym
Title: Managing Director and Vice President
GS CAPITAL PARTNERS VI PARALLEL, L.P.
By: GS Advisors VI, L.L.C., its General Partner
By: /s/ Oliver Thym
----------------------------------------------
Name: Oliver Thym
Title: Managing Director and Vice President
[Signature Page to Amended and Restated Shareholders' Agreement]
GSMP V ONSHORE US, LTD.
By: /s/ Oliver Thym
----------------------------------------------
Name: Oliver Thym
Title: Managing Director and Vice President
GSMP V OFFSHORE US, LTD.
By: /s/ Oliver Thym
----------------------------------------------
Name: Oliver Thym
Title: Managing Director and Vice President
GSMP V INSTITUTIONAL US, LTD.
By: /s/ Oliver Thym
----------------------------------------------
Name: Oliver Thym
Title: Managing Director and Vice President
[Signature Page to Amended and Restated Shareholders' Agreement]
Dates Referenced Herein and Documents Incorporated by Reference
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