SECOND AMENDMENT TO THE MANAGEMENT SHAREHOLDERS AGREEMENT
Exhibit 4.4
SECOND AMENDMENT
TO THE
MANAGEMENT SHAREHOLDERS AGREEMENT
WHEREAS, each of the undersigned is a party to that certain Management Shareholders Agreement, dated March 28, 2005, as amended by the First Amendment to the Management Shareholders Agreement, dated September 17, 2007 (the “Management Shareholders Agreement”), by and among Xxxxxx Xxxxxxxx Limited (f/k/a Xxxxxx Xxxxxxxx Holdings Company, Limited), an exempted Bermuda limited company (“Warner I”), Xxxxxx Xxxxxxxx Holdings Company II, Limited, an exempted Bermuda limited company (“Warner II”), Xxxxxx Xxxxxxxx Holdings Company III, Limited, an exempted Bermuda limited company (“Warner III” and, together with Warner I and Warner II, the “Companies”) and certain other persons named therein;
WHEREAS, the IPO has occurred, and accordingly, pursuant to Section 8.05(b) of the Management Shareholders Agreement, Articles 2 and 4 have terminated;
WHEREAS, Warner I’s board of directors and shareholders have determined that it is in the best interests of the Companies to establish Xxxxxx Xxxxxxxx plc, an Irish public limited company (“Warner plc”), as a new top holding company for the Companies;
WHEREAS, the shareholders of Warner I and the Supreme Court of Bermuda have approved a Scheme of Arrangement between Warner I and its shareholders (the “Scheme of Arrangement”) pursuant to which Warner plc will become the new top holding company for the Companies;
WHEREAS, pursuant to Section 8.05(a) of the Management Shareholders Agreement, the written consent (i) Warner I, (ii) Management Shareholders whose Aggregate Ownership of Group Equity Securities is over 50% of the Aggregate Ownership of Group Equity Securities of all Management Shareholders and (iii) each of the Sponsor Representatives who represent Sponsors which own at least 50% of their Initial Shares (collectively, the “Required Parties”) is required to amend the Management Shareholders Agreement;
WHEREAS, the Required Parties desire to amend the Shareholders Agreement to permit Warner I to assign all of its rights and obligations under the Management Shareholders Agreement to Warner plc upon the effectiveness of the Scheme of Arrangement and in connection with certain other related matters;
WHEREAS, Warner I desires to assign to Warner plc all of its rights and obligations under the Management Shareholders Agreement, and Warner plc desires to assume all of Warner I’s rights and obligations under the Management Shareholders Agreement upon the effectiveness of the Scheme of Arrangement; and
NOW, THEREFORE, pursuant to Section 8.05(a) of the Management Shareholders Agreement:
1. The Required Parties hereby consent to the amendment of the Management Shareholders Agreement by
(a) deleting the definition of “Class A Common Shares” in Section 1.01(a) and replacing it with the following:
“‘Class A Common Shares’ means the ordinary shares, par value $0.01 of the Company.”
(b) deleting the definition of “Companies” in the Preamble and adding to Section 1.01(a) the following:
“‘Companies’ means, from and after the effectiveness of the Scheme of Arrangement, Xxxxxx Xxxxxxxx plc, an Irish public limited company (“Warner plc”), Xxxxxx Xxxxxxxx Limited (f/k/a Xxxxxx Xxxxxxxx Holdings Company, Limited), Warner II and Warner III.”
(c) deleting the definition of “Company” in the Preamble and adding to Section 1.01(a) the following:
“‘Company’ means, from and after the effectiveness of the Scheme of Arrangement, Warner plc, provided that, as such term is used in the definitions of “Management Strip Grant Agreement” and “Sponsor Shareholders Agreement,” “Company” means Xxxxxx Xxxxxxxx Limited (f/k/a Xxxxxx Xxxxxxxx Holdings Company, Limited).”
(d) deleting the references to “Companies” and “Company” in Section 1.01(b).
(e) deleting the word “Person” in Section 3.01(b) and replacing it with “Permitted Transferee.”
(f) deleting Section 3.01(b)(i) in its entirety.
(g) adding after the last sentence in Section 8.02(b) the following:
“Notwithstanding any provision in this Agreement to the contrary, upon the effectiveness of the Scheme of Arrangement between Xxxxxx Xxxxxxxx Limited (f/k/a Xxxxxx Xxxxxxxx Holdings Company, Limited) and the shareholders of Xxxxxx Xxxxxxxx Limited (the “Scheme of Arrangement”), Xxxxxx Xxxxxxxx
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Limited does hereby assign, transfer, convey and deliver unto Warner plc its entire right, title and interest in, to and under this Agreement (the “Assigned Rights”) upon condition that all of the terms, covenants, conditions and stipulations on the part of Xxxxxx Xxxxxxxx Limited arising after the effectiveness of the Scheme of Arrangement under this Agreement are to remain in full force and be binding upon Warner plc, provided that Xxxxxx Xxxxxxxx Limited will remain a party to this Agreement; and upon effectiveness of the Scheme of Arrangement, Warner plc hereby accepts the assignment to it of the Assigned Rights and assumes and agrees to perform, carry out and observe all of the liabilities, obligations, duties and responsibilities on the part of Xxxxxx Xxxxxxxx Limited under this Agreement as if it, Warner plc, had been a party to this Agreement in the place of Xxxxxx Xxxxxxxx Limited and covenants and agrees to succeed to and take the place of Xxxxxx Xxxxxxxx Limited under this Agreement to the same effect as if Warner plc had executed this Agreement in the place of Xxxxxx Xxxxxxxx Limited.”
(h) deleting the first entry under Section 8.04 and replacing it with the following:
“If to any of the Companies, to:
c/o Xxxxxx Xxxxxxxx Corporation
000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000”
(i) deleting the first sentence of Section 8.07 and replacing it with the following:
“All issues concerning the relative rights of the Company, the Non-Management Shareholders and the Management Shareholders with respect to each other shall be governed by the laws of the Republic of Ireland.”
2. Except as modified in the manner described in this amendment, the Management Shareholders Agreement shall remain in full force and effect.
3. The validity, interpretation and enforcement of this amendment shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to the conflict of laws principles thereof.
4. This amendment may be executed in any number of counterparts, each of which shall be deemed to be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.
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5. Capitalized terms used but not defined herein shall have the meaning set forth in the Management Shareholders Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this amendment to be duly executed by their respective authorized officers as of August 20, 2009.
| XXXXXX XXXXXXXX PLC | ||
| By: | /s/ Xxxxx X. Xxxxxxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxxxxxx | |
| Title: | Chief Executive Officer and President |
| XXXXXX XXXXXXXX LIMITED | ||
| By: | /s/ Xxxxx X. Xxxxxxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxxxxxx | |
| Title: | Chief Executive Officer and President |
| XXXXXX XXXXXXXX HOLDINGS COMPANY II, LIMITED | ||
| By: | /s/ Xxxxx X. Xxxxxxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxxxxxx | |
| Title: | Chief Executive Officer and President |
| XXXXXX XXXXXXXX HOLDINGS COMPANY III, LIMITED | ||
| By: | /s/ Xxxxx X. Xxxxxxxxxxxxx | |
| Name: | Xxxxx X. Xxxxxxxxxxxxx | |
| Title: | Chief Executive Officer and President |
| BAIN FUNDS: | ||
| XXXX CAPITAL INTEGRAL INVESTORS II, L.P., ON ITS OWN BEHALF AND AS THE BAIN REPRESENTATIVE | ||
| By: | Xxxx Capital Investors, LLC, its general partner | |
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Managing Director |
| DLJMB FUNDS: | ||
| DLJ MERCHANT BANKING III, INC., as Managing General Partner on behalf of DLJMB OVERSEAS PARTNERS III, C.V., ON ITS OWN BEHALF AND AS THE DLJMB REPRESENTATIVE | ||
| By: | /s/ Xxxxxxx X. Xxxxxx | |
| Name: | Xxxxxxx X. Xxxxxx | |
| Title: | Vice President |
| JPMP FUNDS: | ||
| X.X. XXXXXX PARTNERS (BHCA), L.P., ON ITS OWN BEHALF AND AS THE JPMP REPRESENTATIVE | ||
| By: | CCMP CAPITAL ADVISORS, LLC, as attorney-in-fact | |
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | President and CEO |
| THL FUNDS: | ||
| XXXXXX X. XXX (ALTERNATIVE) FUND V, L.P., ON ITS OWN BEHALF AND AS THE THL REPRESENTATIVE | ||
| By: | THL Advisors (Alternative) V, L.P., its general partner | |
| By: | Xxxxxx X. Xxx Advisors (Alternative) V Limited, LLC, its general partner | |
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Managing Director |
| By: | /S/ XXXXX X. XXXXXXXXXXXXX | |
| Xxxxx X. Xxxxxxxxxxxxx |
| THE XXXXXXXXXXXXX 2005 CHILDREN’S TRUSTS | ||
| By: | /S/ XXXXX XXXXXXXXXXXXX | |
| Name: |
Xxxxx Xxxxxxxxxxxxx | |
| Title: |
Trustee | |
| By: | /S/ XXXXXXX X. XXXXX | |
| Xxxxxxx X. Xxxxx | ||
| XXXXXXX X. XXXXX 2006 GRAT | ||
| By: | /S/ XXXXX X. XXXXX | |
| Name: |
Xxxxx X. Xxxxx | |
| Title: |
Vice President X.X. Xxxxxx Trust Company of Delaware, as Trustee | |
| XXXXXXX X. XXXXX 2006 GRAT | ||
| By: | /S/ XXXX X. XXXXX | |
| Name: |
Xxxx X. Xxxxx | |
| Title: |
Trustee | |
| By: | /S/ XXXXXX X. XXXXX | |
| Xxxxxx X. Xxxxx | ||
| By: | /S/ XXXXXX XXXXXX | |
| Xxxxxx Xxxxxx | ||
| By: | /S/ IZUMI HARA | |
| Izumi Hara | ||
| By: | /S/ XXXX XXXXXXXXX | |
| Xxxx Xxxxxxxxx | ||
| By: | /S/ XXXXX X. XXXXXX | |
| Xxxxx X. Xxxxxx | ||
| By: | /S/ W. XXXX XXXXXXX | |
| W. Xxxx Xxxxxxx | ||
| XXXXXXX X. XXXXXXX 2006 GRAT | ||
| By: | /S/ XXXXXXX X. XXXXXXX | |
| Name: |
Xxxxxxx X. Xxxxxxx | |
| Title: |
Trustee | |
