SHAREHOLDERS' AGREEMENT
By and between
NEW MOUNTAIN PARTNERS, L.P.
and
DB CAPITAL INVESTORS, L.P.
Dated as of March 16, 2001
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS..................................................................1
ARTICLE II
TRANSFER RESTRICTIONS........................................................3
Section 2.1. General Restrictions on Transfer...............................3
Section 2.2. Certain Permitted Transfers....................................3
Section 2.3. Termination of Restrictions on Transfer........................4
Section 2.4. Sale of Shares to a Third Party................................4
ARTICLE III
CORPORATE GOVERNANCE.........................................................5
Section 3.1. Directors......................................................5
ARTICLE IV
REGISTRATION RIGHTS..........................................................6
Section 4.1. Rights of Investors............................................6
ARTICLE V
MISCELLANEOUS................................................................7
Section 5.1. Recapitalizations, Exchanges, Etc. Affecting Shares............7
Section 5.2. Waiver and Amendment...........................................7
Section 5.3 Purchasers' Agent; Consultation................................7
Section 5.4. Additional Investors...........................................8
Section 5.5. Notices........................................................8
Section 5.6. Applicable Law and Time of Essence.............................9
Section 5.7. Integration....................................................9
Section 5.8. Descriptive Headings...........................................9
Section 5.9. Counterparts...................................................9
Section 5.10. Successors, Assigns and Transferees............................9
Section 5.11. Severability...................................................9
Section 5.12. Expenses.......................................................9
Section 5.13. Interpretation; Absence of Presumption.........................9
Section 5.14. Further Assurances............................................10
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Section 5.15. Specific Performance..........................................10
Section 5.16. Termination...................................................10
Section 5.17. Public Announcements and Confidentiality......................10
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SHAREHOLDERS' AGREEMENT
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THIS SHAREHOLDERS' AGREEMENT (the "Agreement"), dated as of March 16, 2001,
is by and between New Mountain Partners, L.P. ("NMP") and DB Capital Investors,
L.P. ("DB," together with NMP, the "Investors," and each individually, an
"Investor"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to such terms in that certain Preferred Stock Purchase
Agreement, dated as of November 28, 2000, by and among Xxxxxxx Education, Inc.,
a Maryland corporation (the "Company"), NMP and DB (as the same may be amended
from time to time as needed, the "Purchase Agreement").
W I T N E S S E T H:
WHEREAS, the Company, NMP and DB have entered into the Purchase
Agreement, pursuant to which the Company is issuing and selling, and NMP, DB and
any additional Purchasers (as defined in the Purchase Agreement) are purchasing,
the Series A Preferred Stock on the Closing Date; and
WHEREAS, the parties believe it to be in their best interests that
they enter into this Agreement and provide for certain rights with respect to
the investment by the Investors and the corporate governance of the Company;
NOW, THEREFORE, in consideration of the premises and mutual
agreements, covenants and provisions contained herein, and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the
meanings ascribed to them below:
"Agreement" shall have the meaning specified in the preamble hereto.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL" when used with respect to any specified Person means the power to
direct the management and policies of such Person, whether through the ownership
of voting securities, by contract or otherwise; and the terms "CONTROLLING" and
"CONTROLLED" have meanings correlative to the foregoing.
"Board of Directors" shall mean the board of directors of the
Company.
"Company" shall have the meaning specified in the preamble hereto.
"Company Investment" means the total value of all Subject Securities
held by an Investor or by all Investors in the Company valuing the Series A
Preferred Stock at its Liquidation Amount (as defined in the Articles
Supplementary) plus accrued and unpaid
dividends and valuing any Converted Shares at their Conversion Price (as defined
in the Articles Supplementary).
"Converted Shares" shall have the meaning specified in Section 2.1
hereof.
"Drag-Along Right" shall have the meaning specified in Section 2.4
hereof.
"Initial Appointment" shall have the meaning specified in Section
3.1(a) hereof.
"Investor", "Investors" shall have the meanings specified in the
preamble hereto and the Permitted Transferees (as defined herein) of any such
Investor.
"Majority Investor" means whichever of NMP or DB is the holder, at
any time, of a larger Company Investment than the other.
"Minority Investor" means, at any time, each Investor other than the
Majority Investor.
"New Investor" shall have the meaning specified in Section 3.1
hereof.
"Original Investment Amount" shall have the meaning specified in
Section 2.1 hereof.
"Original Majority Investor" shall mean NMP or any of its Affiliates
or Subsidiaries.
"Original Minority Investor" shall mean DB or any of its Affiliates
or Subsidiaries.
"Permitted Transferee" shall have the meaning specified in Section
2.2 hereof.
"Permitted Transfers" shall have the meaning specified in Section
2.2 hereof.
"Person" shall mean an individual, partnership, joint venture,
corporation, limited liability company, trust, unincorporated organization or
government or any department or agency thereof.
"Purchase Agreement" shall have the meaning specified in the first
paragraph of this Agreement.
"Registration Rights Agreement" shall have the meaning specified in
Section 4.1 hereof.
"Sell-Down" shall have the meaning specified in Section 2.2(a).
"Subject Securities" shall have the meaning specified in Section 2.1
hereof.
"Shareholders" shall mean the beneficial owners of the Series A
Preferred Stock collectively, and each such individual holder shall be referred
to as a "Shareholder."
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"Tag-Along Right" shall have the meaning specified in Section 2.4
hereof.
"Third Party" shall have the meaning specified in Section 2.4
hereof.
"Transfer Restriction Lapse Date" shall have the meaning specified
in Section 2.1 hereof.
ARTICLE II
TRANSFER RESTRICTIONS
Section 2.1. GENERAL RESTRICTIONS ON TRANSFER. Prior to the earlier
of (a) the date on which the Original Majority Investor has a Company Investment
of less than 33% of the Original Investment Amount (as defined below) in the
form of the Series A Preferred Stock and/or shares issuable on conversion of the
Series A Preferred Stock (the "Converted Shares"), and (b) the date on which the
Series A Preferred Stock becomes redeemable by the Company pursuant to Section 4
of the Articles Supplementary of the Company (the earlier of (a) or (b), the
"Transfer Restriction Lapse Date") the Minority Investors shall not, without the
prior written consent of the Majority Investor, directly or indirectly sell,
offer, transfer, assign, pledge, hypothecate or otherwise dispose of any
interest in ("Transfer") any securities of the Company purchased pursuant to the
Purchase Agreement or issued upon conversion of such securities ("Subject
Securities"), except for transfers or sales made in accordance with the
provisions of Sections 2.2 or 2.4 hereof and which are made in compliance with
the federal securities laws and all applicable state securities or "blue sky"
laws (or pursuant to exemptions therefrom). No transfer of the Subject
Securities in violation of this Agreement shall be made or recorded on the books
of the Company and any such transfer shall be void and of no effect. For
purposes of this Agreement, the term "Original Investment Amount" shall mean the
original investment of the Original Majority Investor through the purchase of
shares of Series A Preferred Stock representing an aggregate Liquidation Amount
of $115 million; PROVIDED, that if the Original Majority Investor sells a number
of shares of Series A Preferred Stock representing an aggregate Liquidation
Amount of up to $35 million to one or more co-investors, in accordance with the
terms set forth in Section 2.3(c) of the Purchase Agreement, such Original
Investment Amount will be reduced by the amount which the Original Majority
Investor sells, up to $35 million.
Section 2.2. CERTAIN PERMITTED TRANSFERS. Each of the Investors
acknowledges and agrees that any of the following transfers of Subject
Securities (collectively, the "Permitted Transfers") are deemed to be permitted
transfers of such securities:
(a) a transfer or sale of a number of shares of Series A Preferred
Stock representing an aggregate Liquidation Amount of up to $35 million by the
Original Majority Investor to one or more co-investors effected in accordance
with the terms set forth in Section 2.3(c) of the Purchase Agreement and
approved by DB, such approval not to be unreasonably withheld (the "Sell-Down"),
PROVIDED, that no approval of DB will be required for a Sell-Down of $5 million
or greater aggregate Liquidation Amount of Series A Preferred Stock to an
institutional limited partner of NMP that is not an Affiliate of NMP;
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(b) a transfer of Subject Securities made in compliance with the
federal and all applicable state securities laws by an Investor to (i) a
controlled Affiliate of the Investor or (ii) to any other Affiliate of the
Investor other than a controlled Affiliate with the permission of NMP, whose
permission shall not be unreasonably withheld; and
(c) a transfer of Subject Securities made pursuant to the piggyback
registration rights of an Investor in accordance with Section 4.1 hereof and the
Registration Rights Agreement (as defined below)
PROVIDED, that no transfers pursuant to Sections 2.2(a) and (b) shall be
permitted (and any such transfer shall be void and of no effect) unless and
until the Affiliate or co-investor, as the case may be, shall agree in writing,
in form and substance reasonably satisfactory to the Investors, to become bound,
and becomes bound, by all the terms of this Agreement. The Affiliate or
co-investor, as the case may be, to whom the Subject Securities may be
transferred or pledged pursuant to Section 2.2(a) or (b) is hereinafter
sometimes referred to as a "Permitted Transferee."
Section 2.3. TERMINATION OF RESTRICTIONS ON TRANSFER. After the
Transfer Restriction Lapse Date, transfers of the Subject Securities
beneficially owned by the Investors or their Permitted Transferees shall be
permitted, to the extent not already permitted, subject to compliance with all
applicable federal and state securities or "blue sky" laws (or pursuant to
exemptions therefrom).
Section 2.4. SALE OF SUBJECT SECURITIES TO A THIRD PARTY. (a) Until
the Transfer Restriction Lapse Date, if at any time the Original Majority
Investor proposes to sell, for its own account, in one or more private
transactions, Subject Securities of the Company to a party which is not, and
following such sale will not be, an Affiliate of such Investor (a "Third
Party"), the Minority Investors shall have the right to participate (a
"Tag-Along Right") in such sale with respect to any Subject Securities held by
them on a pro rata basis (based on the percentage of the Subject Securities
being sold to the Third Party corresponding to the relationship of the Company
Investment owned by each Investor to the aggregate Company Investment owned by
all of the Investors) for the same consideration per Security and otherwise on
the same terms as the Original Majority Investor sells; PROVIDED, HOWEVER, that
no Tag-Along Rights shall exist with respect to a Permitted Transfer. If
circumstances occur which give rise to the Tag-Along Right, then the Original
Majority Investor shall give written notice (a "Sales Notice") to the Minority
Investors at least ten business days prior to such sale, which Sales Notice
shall describe the class and number of shares of Subject Securities to be sold,
the purchase price of each such share of Subject Securities to be sold, the
material details of such sale transaction and the anticipated closing date of
such sale, and shall advise the Minority Investors of their Tag-Along Rights.
Each Minority Investor may exercise its Tag-Along Right by written notice to the
Original Majority Investor given not more than five business days after
receiving the notice from the Original Majority Investor stating the number of
Subject Securities that it wishes to sell, up to the maximum number permitted
(being its pro rata amount referred to above and as disclosed in the notice to
be given to it). If a Minority Investor gives written notice indicating that it
wishes to sell, it shall be obligated to sell that number of Subject Securities
specified in its written acceptance notice upon the same terms and conditions as
the Original Majority Investor
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is selling to the Third Party conditional upon and contemporaneous with
completion of the transaction of purchase and sale with the Third Party.
(b) Until the Transfer Restriction Lapse Date, if the Original Majority
Investor proposes to sell for its own account, in one or more private
transactions, Subject Securities of the Company to a Third Party, the Original
Majority Investor shall, upon written request at least ten business days prior
to such sale, have the right to require the Minority Investors (without the
consent of the Minority Investors or the exercise of appraisal rights, if any,
which are hereby waived) to participate (a "Drag-Along Right") in such sale with
respect to any Subject Securities held by them on a pro rata basis (as defined
in clause (a) above) for the same consideration per Security and otherwise on
the same terms as the Original Majority Investor sells its Subject Securities;
PROVIDED, HOWEVER, that no Drag-Along Rights shall exist (1) with respect to a
Permitted Transfer or (2) if the Series A Preferred Stock is sold for a price
less than the Liquidation Amount per share, as adjusted and PROVIDED, FURTHER,
that proper allowance is made to implement the provisions of Section 3.1(c)(ii).
ARTICLE III
CORPORATE GOVERNANCE
Section 3.1. DIRECTORS. (a) Pursuant to Section 5.4 of the Purchase
Agreement, at the Escrow Date, one-half of the Company's Board of Directors (or
six directors) are to be comprised of persons nominated by the Investors, who
shall serve as directors of the Company until their successors are duly elected
and qualified (the "Initial Appointment"). Of the Investors' initial appointees,
(i) four of the directors on the Company's Board of Directors shall be nominated
by NMP, in its sole discretion, (ii) one of the directors on the Company's Board
of Directors shall be nominated by DB, in its sole discretion and (iii) one of
the directors on the Company's Board of Directors shall be nominated by a
purchaser of shares of Series A Preferred Stock in the Sell-Down designated by
NMP (the "New Investor"), if any, in its sole discretion, or if (x) there is no
Sell-Down prior to the Initial Appointment or (y) there is no New Investor, the
sixth director shall be chosen by mutual agreement of NMP and DB; PROVIDED, that
such mutually agreed director will resign his or her directorship or NMP and DB
shall vote to remove such director upon the closing of the purchase by a New
Investor. All of the Investors agree to vote their Subject Securities in favor
of the directors nominated pursuant to this Section 3.1 and Section 5.4 of the
Purchase Agreement and to cause the directors designated by them to vote in
favor of the initial management team specified in Section 5.4 of the Purchase
Agreement. The failure of any Investor entitled to nominate directors pursuant
to this Section 3.1 to fully exercise its respective nomination rights shall not
constitute a waiver or diminution of such rights, nor shall it prevent such
Investor from fully exercising such rights prospectively.
(b) After the Initial Appointment, (i) NMP shall be entitled to
nominate 2/3rds (rounded to the nearest whole number) of the directors that the
Investors are entitled to nominate pursuant to the Articles Supplementary, (ii)
DB shall be entitled to appoint 1/6th (rounded to the nearest whole number with
0.5 being rounded up to 1) of the directors that the Investors are entitled to
nominate pursuant to the Articles Supplementary and (iii) the New Investor, if
any, or if none NMP and DB by mutual agreement, shall be entitled to appoint
1/6th (rounded to the nearest whole number with 0.5 being rounded down to 0) of
the directors that the Investors are
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entitled to nominate pursuant to the Articles Supplementary; PROVIDED, that such
mutually agreed upon director will resign his or her directorship or NMP and DB
will vote to remove such director upon the closing of the purchase by the New
Investor, if any.
(c) Notwithstanding the foregoing, (i) if (x) one Investor converts
Series A Preferred Stock and as a result of such conversion the number of
directors which can be appointed by the Investors in the aggregate is decreased,
the ability of such Investor to nominate director(s) shall be adjusted so that
such Investor will lose its ability to nominate one director (or more directors
depending on the size of the decrease in the aggregate number of directors which
can be appointed by the Investors) and (y) such reduction in the number of
directors that may be appointed by the Investors is occasioned by conversion of
Series A Preferred Stock by more than one Investor, then the Investor (or
Investors) that converted the greatest proportion of its (or their) Series A
Preferred Stock shall first lose their right to designate one or more directors;
and (ii) if the number of directors which can be appointed by the Investors in
the aggregate is decreased as a result of a sale of less than all of the Subject
Securities held by the Original Majority Investor and in which sale the Original
Majority Investor exercises its Drag-Along Right, then so long as NMP retains
the right to appoint at least one director, NMP shall first lose its right to
designate one director (or more directors depending on the size of the decrease
in the aggregate number of directors which can be appointed by the Investors)
before DB loses its right to designate a director. Should any of the individuals
elected as directors pursuant to this Section 3.1 be unwilling or unable to
serve, or otherwise cease to serve (including by means of removal in accordance
with the following sentence), then subject to applicable law, the Investor(s)
who nominated such individual shall be entitled to fill the resulting vacancies
on the Board of Directors by nominating or designating any replacement for any
director originally nominated by it pursuant to this Section 3.1. Subject to
applicable law, if any Investor proposes to remove any of its nominated
directors, the other Investor or Investors, if any, agree to cooperate in such
removal (including voting with such removing Investor, if necessary) and any
resulting vacancy shall be filled in accordance with the preceding sentence.
(d) With respect to all matters on which the Series A Preferred Stock
shall vote as a class, each Share of Series A Preferred Stock shall be entitled
to one vote.
ARTICLE IV
REGISTRATION RIGHTS
Section 4.1. RIGHTS OF INVESTORS. The Original Majority Investor
will have the right to exercise the Investors' rights pursuant to Section 2
(Demand Registration) of the Registration Rights Agreement to be entered into by
the Company, NMP, DB and any additional Purchasers (as defined in the Purchase
Agreement) on or prior to the Closing Date (the "Registration Rights Agreement")
as Covered Holders (as defined in the Registration Rights Agreement) and the
other Investors shall take such actions as may be necessary to allow for such
exercise by the Original Majority Investor; PROVIDED, HOWEVER, that beginning on
the Transfer Restriction Lapse Date, DB and its Permitted Transferees, so long
as they hold at least 10% of the outstanding Series A Preferred Stock or shares
of common stock issued upon the conversion thereof, may require on one occasion
during the term of their investment, the Company to register for offer and sale
pursuant to a Registration Statement on Form S-3, if the Company is S-
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3 Eligible and such S-3 registration right is otherwise available, and the
Original Majority Investor shall take reasonable efforts to allow for such
exercise. Nothing in the preceding sentence shall be deemed to limit the ability
of either the Minority Investors or the Original Minority Investor to exercise
their rights pursuant to Section 3 (Piggy-back Registration) of the Registration
Rights Agreement. Notwithstanding the foregoing, if the amount of Subject
Securities to be registered in any offering is cut back because the managing
underwriters for such offering determine that the full amount requested to be
distributed cannot be included without adversely affecting the offering, the
Investors shall be cut back on a pro rata basis (based on their Company
Investments at the time they exercised such "piggyback" registration rights,
irrespective of who made the original registration demand).
ARTICLE V
MISCELLANEOUS
Section 5.1. RECAPITALIZATIONS, EXCHANGES, ETC. AFFECTING SHARES. The
provisions of this Agreement regarding the Subject Securities shall apply to any
and all shares of capital stock of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets, reorganization or
otherwise) which may be issued in respect of, in exchange for, or in
substitution of the Subject Securities by reason of any stock dividend, stock
split, stock issuance, reverse stock split, combination, recapitalization,
reclassification, merger, consolidation or otherwise. Upon the occurrence of any
of such events, amounts hereunder shall be appropriately adjusted. Subject only
to the provisions of the preceding sentence, nothing contained in this Agreement
shall prohibit or restrict the Company from taking any corporate action,
including, without limitation, declaring any dividend (whether in cash or stock)
or engaging in any corporate transaction of any kind, including, without
limitation, any merger, consolidation, liquidation or sale of assets.
Section 5.2. WAIVER AND AMENDMENT. Any party hereto may waive its
rights under this Agreement at any time, and no such waiver shall operate to
waive such party's rights under this Agreement on any other occasion. Any
agreement on the part of any such party to any such waiver shall be valid only
if set forth in an instrument in writing signed by such party. This Agreement
may be amended only by a written instrument signed by all Investors.
Section 5.3. PURCHASERS' AGENT; CONSULTATION. The Investors agree that
NMP shall be the Purchasers' Agent under the Purchase Agreement for purposes of
responding to Company requests for and providing to the Company those required
consents or waivers to be provided by the Purchasers' Agent prior to the Closing
Date; PROVIDED, that NMP shall consult with the other Investors with respect to
all such decisions and shall not waive any closing conditions or grant any
material consents to the Company without either (i) obtaining the Original
Minority Investor's prior approval or (ii) if the matter is one which would,
under the Purchase Agreement, otherwise permit the Original Minority Investor
not to proceed with the investment, entering into arrangements to replace the
Original Minority Investor as a Purchaser under the Purchase Agreement.
Notwithstanding the forgoing, nothing in this Section 5.3 shall affect the
ability of each Investor to vote its Subject Securities in a manner that it
deems appropriate, or as specified in this Agreement and the Purchase Agreement
and the transactions contemplated hereby and thereby.
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Section 5.4. ADDITIONAL INVESTORS. The Investors agree that upon the
Sell-Down, each new investor shall execute counterpart signature pages to this
Agreement and such new investors will, upon delivery to the Original Majority
Investor and the Original Minority Investor of such signature pages, become
parties to, and bound by, this Agreement, each to the same extent as if they had
been an Investor and Minority Investor at the Closing Date.
Section 5.5. NOTICES. All notices and other communications provided for
herein shall be dated and in writing and shall be deemed to have been duly given
and effective (1) when delivered, if delivered personally; (2) when transmitted
via telecopy (or other facsimile device) to the number set forth below; (3) the
day following the day on which the same has been delivered prepaid to a
reputable overnight courier service; or (4) the fifth business day after its
being deposited in the mail if sent by registered or certified mail, return
receipt requested, postage prepaid, to the party to whom it is directed:
New Mountain Partners, L.P.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
DB Capital Investors, L.P.
c/o DB Capital Partners, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxxx
Telecopy: (000) 000-0000
with a copy to:
White & Case LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to any other Investor to the address of such Investor as shown in the stock
record book of the Company or at such other address as the parties hereto shall
have specified by notice in writing to the other parties.
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Section 5.6. APPLICABLE LAW. The laws of the State of New York shall
govern the interpretation, validity and performance of the terms of this
Agreement, without regard to the application of principles of conflicts of law.
Section 5.7. INTEGRATION. This Agreement, the Support Agreement, the
Purchase Agreement and the documents referred to herein and therein or delivered
pursuant hereto or thereto which form a part hereof or thereof contain the
entire understanding of the parties with respect to its subject matter. There
are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than
those expressly set forth herein and therein. This Agreement, the Support
Agreement and the Purchase Agreement and the documents referred to herein and
therein supersede all prior agreements and understandings between the parties
with respect to its subject matter.
Section 5.8. DESCRIPTIVE HEADINGS. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein.
Section 5.9. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument, and it shall not be necessary in making
proof of this Agreement to produce or account for more than one such
counterpart.
Section 5.10. SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective successors, assigns and transferees except to the extent that
the terms of this Agreement limit or otherwise restrict the transferability of
any rights or obligations hereunder.
Section 5.11. SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
Section 5.12. EXPENSES. Expenses related to this Agreement and the
Purchase Agreement and the actions contemplated hereby and thereby shall be paid
in accordance with Section 12.2 of the Purchase Agreement, and the Closing
Amount (and any other transaction fees received from the Company in connection
with the transactions contemplated hereby and thereby) shall be divided in
accordance with the percentages set forth in the Allocation Notice presented
immediately prior to the Closing Date, once all of the unreimbursed reasonable
out-of-pocket expenses of each of the Purchasers have been paid.
Section 5.13. INTERPRETATION; ABSENCE OF PRESUMPTION. (a) For the
purposes hereof, (i) words in the singular shall be held to include the plural
and vice versa and words of
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one gender shall be held to include the other gender as the context requires,
(ii) the terms "hereof", "herein", and "herewith" and words of similar import
shall, unless otherwise stated, be construed to refer to this Agreement as a
whole (including all of the Schedules and Exhibits hereto) and not to any
particular provision of this Agreement, and Article, Section, paragraph,
Schedule and Exhibit references are to the Articles, Sections, paragraphs,
Schedules and Exhibits to this Agreement unless otherwise specified, (iii) the
word "including" and words of similar import when used in this Agreement shall
mean "including, without limitation," unless the context otherwise requires or
unless otherwise specified, (iv) the word "or" shall not be exclusive, and (v)
provisions shall apply, when appropriate, to successive events and transactions.
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the party
drafting or causing any instrument to be drafted.
Section 5.14. FURTHER ASSURANCES. Each Investor agrees that, from time
to time, each of them will, and will cause their respective Affiliates to,
execute and deliver such further instruments and take such other action as may
be necessary to carry out the purposes and intents hereof.
Section 5.15. SPECIFIC PERFORMANCE. Each Investor acknowledges that,
in view of the uniqueness of arrangements contemplated by this Agreement, the
parties hereto would not have an adequate remedy at law for money damages in the
event that this Agreement were not performed in accordance with its terms, and
therefore agrees that the parties hereto shall be entitled to specific
enforcement of the terms hereof in addition to any other remedy to which the
parties hereto may be entitled at law or in equity.
Section 5.16. TERMINATION. This Agreement may be terminated at any time
by the mutual consent of all of the Investors hereto and shall terminate upon
the earlier of (x) the termination of the Purchase Agreement pursuant to Article
10 thereof and (y) March 16, 2011.
Section 5.17. PUBLIC ANNOUNCEMENTS AND CONFIDENTIALITY. Except as
contemplated in this Agreement, the Support Agreement, the Purchase Agreement
and the documents referred to herein and therein or delivered pursuant hereto or
thereto, no party hereto will make any public announcement concerning
transactions contemplated by this Agreement prior to reaching an agreement with
the other parties hereto, unless required to do so by applicable law or
regulation. The parties hereto agree, except as contemplated in this Agreement,
the Support Agreement, the Purchase Agreement and the documents referred to
herein and therein or delivered pursuant hereto or thereto and as may be
required by applicable law or regulation (including the rules of any applicable
stock exchange) or disclosed to a potential Permitted Transferee, not to further
disclose any terms of this Agreement or any of the transactions or other matters
contemplated hereby or related hereto.
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IN WITNESS WHEREOF, each of the undersigned has executed this
Agreement or caused this Agreement to be executed on its behalf as of the date
first above written.
NEW MOUNTAIN PARTNERS, L.P.
By: New Mountain Investments, L.P., its
general partner
By: New Mountain GP, LLC, its
general partner
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Member
DB CAPITAL INVESTORS, L.P.
By: DB Capital Partners, L.P., its
general partner
By: DB Capital Partners, Inc., its
general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
[SIGNATURE PAGE TO SHAREHOLDERS' AGREEMENT]
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