EXHIBIT 3.3
24 January 1996
XXXX XXXXX and others
XXXXXX XXXXXX XXXX 0000, XX.
XXXXXXX SACHS & CO. VERWALTUNGS GmbH
(for GS CAPITAL PARTNERS II GERMANY
CIVIL LAW PARTNERSHIP)
GS CAPITAL PARTNERS II, L.P.
GS CAPITAL PARTNERS II OFFSHORE, X.X.
XXXXX STREET FUND 1995, LP.
STIRLING XXXXX XXXXX HOLDINGS LIMITED
-----------------------------
SHAREHOLDERS AGREEMENT
relating to
STIRLING XXXXX XXXXX
HOLDINGS LIMITED
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CONTENTS
Clause Page
1. INTERPRETATION......................................................... 1
2. DIRECTORS.............................................................. 5
3. CORPORATE GOVERNANCE................................................... 9
4. INFORMATION RIGHTS..................................................... 9
5. INSURANCE.............................................................. 10
6. TRANSFER OF EQUITY SECURITIES.......................................... 10
7. SALE OF CONTROL........................................................ 12
8. BRING-ALONG RIGHTS..................................................... 13
9. FUTURE ISSUES.......................................................... 13
10. PUT AND AUCTION RIGHTS................................................. 14
11. INITIAL PUBLIC OFFERING AND REGISTRATION RIGHTS........................ 14
12. INVESTMENT BANKING..................................................... 15
13. DECISIONS BY MANAGEMENT SHAREHOLDERS................................... 15
14. MEMORANDUM AND BYE-LAWS AND FURTHER ASSURANCE.......................... 15
15. TERMINATION............................................................ 16
16. CONFIDENTIALITY........................................................ 16
17. ANNOUNCEMENTS.......................................................... 18
18. ASSIGNMENT............................................................. 18
19. WAIVER OF RIGHTS....................................................... 18
20. AMENDMENTS............................................................. 19
21. INVALIDITY............................................................. 19
22. NO PARTNERSHIP OR AGENCY............................................... 19
23. ENTIRE AGREEMENT....................................................... 19
24. PURCHASE OF OWN SECURITIES............................................. 20
25. GOVERNING LAW.......................................................... 20
26. NOTICES................................................................ 20
SCHEDULE 1.................................................................. 21
Part A - Management Shareholders......................................... 21
Part B - Investors....................................................... 24
Part C - The Company..................................................... 25
SCHEDULE 2.................................................................. 26
Corporate Governance..................................................... 26
SCHEDULE 3.................................................................. 29
Right of first offer on sale or transfer of Equity Securities............ 29
SCHEDULE 4.................................................................. 34
Transfers on termination of employment of a Management Shareholder....... 34
SCHEDULE 5.................................................................. 40
Put and Auction rights................................................... 40
SCHEDULE 6.................................................................. 42
Transfer of Equity Securities............................................ 42
SCHEDULE 7.................................................................. 43
Part A................................................................... 43
Deed of Adherence........................................................ 43
Part B................................................................... 44
Permitted Transferee Undertaking......................................... 44
SCHEDULE 8.................................................................. 45
The Subsidiaries......................................................... 45
SCHEDULE 9.................................................................. 47
Form of Subsidiary Undertaking........................................... 47
SCHEDULE 10................................................................. 49
List of Exhibits......................................................... 49
THIS SHAREHOLDERS AGREEMENT is made on 24 January 1996
BETWEEN:
(1) THOSE PERSONS whose names and addresses are set out in Part A of Schedule I
(Management Shareholders);
(2) BRIDGE STREET FUND 1995, L.P. of c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, XX 00000 X.X.X.(Xxxxxx
Street),
(3) XXXXXXX SACHS & CO. VERWALTUNGS GmbH (for GS CAPITAL PARTNERS II GERMANY
CIVIL LAW PARTNERSHIP) of Messe Xxxx, 00000 Xxxxxxxxx xx Xxxx, Xxxxxxx
(Germany);
(4) GS CAPITAL PARTNERS II, L.P. of c/o The Corporation Trust Company,
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, XX 00000 X.X.X. (GS Capital
Partners);
(5) GS CAPITAL PARTNERS II OFFSHORE, L.P. of c/x Xxxxxx and Xxxxxx, P0 Box 309,
Grand Cayman, Cayman Islands, British West Indies (GS Offshore);
(6) STONE STREET FUND 1995, L.P. of c/o The Corporation Trust Company,
Corporation Trust Center, 1209 Orange Street, DE 00000 X.X.X.(Xxxxx
Xxxxxx);
(7) STIRLING XXXXX XXXXX HOLDINGS LIMITED of Cedar House, 41 Cedar Avenue
Xxxxxxxx HMI2 Bermuda (the Company).
WHEREAS:
(A) On 23 December 1995 the parties entered into an agreement for the
subscription and purchase of shares in the Company by Bridge Street,
Germany, GS Capital Partners, GS Offshore, and Stone Street (the
Subscription Agreement).
(B) The parties now wish to enter into this agreement in order to regulate the
manner in which the Group will carry on business and the manner in which
the relationship between the Shareholders will be governed.
IT IS AGREED as follows:
INTERPRETATION
1.1 In this Agreement, the following terms shall (unless the context requires
otherwise) have the following respective meanings:
Auditors means KMPG or such other firm of auditors to be appointed by the
Company from time to time in accordance with this Agreement;
Board means the board of directors of the Company;
Budget means in respect of the period to 30 June 1996, the budget for the Group
attached as Exhibit A, and in respect of any other period means a budget for the
Group for a particular Financial Year or part Financial Year (as appropriate) in
a format approved from time to time by the Board in accordance with this
Agreement;
Business Day means a day on which banks generally are open in London;
Business Plan means a rolling business plan for the Group as agreed by a Super-
Majority and to be updated annually in a manner approved from time to time by
the Board in accordance with this Agreement;
Bye-laws means the Bye-laws of the Company to be adopted pursuant to the
Subscription Agreement as they may subsequently be altered from time to time in
accordance with this Agreement;
company includes any body corporate, wherever incorporated;
Deed of Adherence means a deed of adherence to the provisions of this Agreement
to be executed by a proposed transferee of any Shares, substantially in the form
contained in Part A of Schedule 7;
Directors means the Management Shareholder Directors and the Xxxxxxx Xxxxx
Directors;
Equity Securities means Shares and any rights to subscribe for or to convert any
securities into or exchange any securities for Shares;
Financial Year means a financial period of the Company (commencing, other than
in the case of its initial financial period, on 1 January and ending on 31
December);
Further Financing Agreement means the agreement, in the agreed form, pursuant to
and on the terms and conditions of which CS Capital Partners and GS Offshore
agree to make further finance available to the Group;
Xxxxxxx Sachs means Xxxxxx Xxxxxx, Xxxxxxx, CS Capital Partners, CS Offshore,
Stone Street, The Xxxxxxx Xxxxx Group, L.P. and the other Xxxxxxx Sachs
Affiliates (or, as the context requires, any one of them);
Xxxxxxx Xxxxx Affiliates means any subsidiary undertaking of; or any investment
vehicle, including any limited partnership, whether constituted under the laws
of England or otherwise, the general partner, managing general partner or
managing agent of which is under the control (directly or indirectly) of, The
Xxxxxxx Sachs Group L.P.;
Xxxxxxx Xxxxx Directors means the directors of the Company from time to time
nominated by
Xxxxxxx Sachs in accordance with this Agreement;
Xxxxxxx Xxxxx Group means The Xxxxxxx Sachs Group L.P. and all Xxxxxxx Xxxxx
Affiliates;
Xxxxxxx Sachs Subsidiary Director shall have the meaning given in clause 2.4;
Group means the Company and the Subsidiaries for the time being;
Initial Public Offering means an offering of at least 15% of the ordinary share
capital of the Company (on a fully diluted basis) which is either (i) registered
under the Securities Act of 1933 (as amended); or (ii) which is made in
connection with an application for the said shares to be admitted to listing on
the London Stock Exchange; and which in either case generates net proceeds in
aggregate to the Company and Shareholders of at least US$15 million;
London Stock Exchange means the London Stock Exchange Limited;
Management Shareholder Directors means the directors of the Company from time to
time nominated by the Management Shareholders in accordance with this Agreement;
Management Shareholders means those persons listed in Part A of Schedule I
together with their Permitted Transferees from time to time;
Memorandum means the Memorandum of Association of the Company as it may
subsequently be altered from time to time in accordance with this Agreement;
Minority Interest means an undertaking in which any member of the Group has an
interest in at least 10% of the issued share or other capital of the
undertaking;
NASDAQ means the National Association of Security Dealers, Inc. Automated
Quotation System;
parties means the original signatories to this Agreement together with any
persons who agree to become bound by the provisions of this Agreement by
executing a Deed of Adherence or a deed of adherence in accordance with clause
9.3 (and party shall be construed accordingly);
Permitted Transfer has the meaning given to it in clause 6.4.1(c);
Permitted Transferee means any person to whom a Permitted Transfer is made in
accordance with this Agreement;
Registration Rights Agreement means the agreement, in the agreed form, between
the parties hereto which provides for certain registration rights in relation to
the Company's ordinary share capital;
securities means, in relation to the Company, securities of any kind whatsoever
issued by the Company;
Security Interest means any mortgage, charge, pledge, lien (other than a lien
arising by operation of law), right of set-off, encumbrance or any security
interest whatsoever, howsoever created or arising, including any analogous
security interest under local law;
Shareholders means the parties to this Agreement other than the Company and
Shareholder shall mean any one of them;
Shares means shares in the capital of the Company;
Subscription Agreement shall have the meaning given to it in Recital (A);
Subsidiaries means subsidiary undertakings of the Company and the Minority
Interests of the Group (without requiring any party to procure any action by the
Minority Interests of the Group to the extent it is beyond its powers to do so)
including, but without limitation, those listed in Schedule 8, and Subsidiary
shall be construed accordingly;
subsidiary undertaking means, in relation to an undertaking (the holding
undertaking), any other undertaking in which the holding undertaking for the
time being directly or indirectly holds or controls either:
(a) a majority of the voting rights exercisable at general meetings of the
members of that undertaking on all, or substantially all, matters; or
(b) the right to appoint or remove directors having a majority of the voting
rights exercisable at meetings of the board of directors of that
undertaking on all, or substantially all, matters,
and any undertaking which is a subsidiary undertaking of another undertaking
shall also be a subsidiary undertaking of any further undertaking of which that
other is a subsidiary undertaking; and
Super-Majority means more than two thirds of the Directors acting as
representatives of the Shareholders in accordance with clause 3.4, including at
least one Xxxxxxx Xxxxx Director, provided that Xxxxxxx Sachs owns or controls
15% or more of the Shares;
undertaking means a company or partnership or an unincorporated association
carrying on trade or a business with or without a view to profit (and, in
relation to all undertaking which is not a company, expressions in this
Agreement appropriate to companies shall be construed as references to the
corresponding persons, officers, documents or organs (as the case may be)
appropriate to undertakings of that description).
1.2 Except where the context requires otherwise, references to clauses and
Schedules are to clauses of and Schedules to this Agreement and references to
sub-clauses are to sub-clauses of the clause in which the reference appears.
1.3 Any reference in this Agreement to an amount in pounds sterling shall also
be a reference to the then equivalent amount in any other currency or
combination of currencies and references to "US$" are to United States Dollars.
1.4 Headings are inserted for convenience only and shall not affect the
construction of this Agreement or the Schedules.
1.5 Any reference to an agreed form is to the form of the relevant document
agreed between the parties and signed on their behalf for the purpose of
identification before the signature of this Agreement (with such amendments, if
any, as may subsequently be agreed in writing between the parties).
1.6 The Exhibits which have been initialled on behalf of the parties and the
Recitals and the Schedules shall be deemed to be incorporated in this Agreement.
1.7 Where any obligation pursuant to this Agreement is expressed to be
undertaken or assumed by any party, such obligation shall be construed as
requiring the party concerned to exercise all rights and powers of control over
the affairs of any other person which that party is able to exercise (whether
directly or indirectly) in order to secure performance of such obligation.
1.8 Neither the Company nor any Subsidiary shall be bound by any provision of
this Agreement to the extent that it would constitute an unlawful xxxxxx on any
statutory power of the Company or the Subsidiary (as the case may be), but that
provision shall remain valid and binding as regards all other parties to which
it is expressed to apply and such provision shall take effect so as to include
all obligation on the part of the Shareholders to exercise all their respective
powers and rights so as to procure, so far as they are able, that the Company or
the Subsidiary (as the case may be) complies with such provision notwithstanding
that it is not bound by it.
1.9 Wherever in this Agreement Xxxxxxx Xxxxx is provided with any right or
entitlement, such right or entitlement may be exercised by any one member from
time to time of the Xxxxxxx Sachs Group.
DIRECTORS
2.1(a) Unless otherwise agreed by the Board in accordance with this Agreement
the Board shall consist of a maximum of six Directors, of which four
shall be Management Shareholder Directors. The number of Xxxxxxx Xxxxx
Directors shall be as specified in clause 2.1(b). Subject to clause 2.9,
the Management Shareholders shall have the sole right (exercisable from
time to time) to appoint and remove and replace any of the Management
Shareholder Directors and, subject to clause 2.10, Xxxxxxx Sachs shall
have the sole right (exercisable from time to time) to appoint and
remove and replace any of the Xxxxxxx Xxxxx Directors. The initial
appointments to the Board shall be as follows:
Management Shareholder Xxxxxxx Sachs Directors
Directors
Xxxx Xxxxx Xxxxxx Xxxxxxx III
Xxxxxxxx Xxxxx Xxxxxx Xxxxx
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
(b) Xxxxxxx Xxxxx shall have the following rights to appoint the following
numbers of Directors of the Company:
(i) if Xxxxxxx Sachs owns, in total, 15% or more of the issued Shares in
the Company, 2 Directors;
(ii) if Xxxxxxx Xxxxx owns, in total, 5% or more but less than 15% of the
issued Shares in the Company, 1 Director;
(iii) if Xxxxxxx Sachs Owns, in total, less than 5% of the issued Shares
in the Company, it shall have no right to appoint a Director.
(c) If at any time the shareholding of Xxxxxxx Xxxxx decreases to such a level
that Xxxxxxx Sachs has more Directors on the Board than it is entitled to
appoint pursuant to clause 2.1 ~) above, it shall procure that the excess
Director(s) resign(s) as soon as reasonably practicable thereafter.
(d) A Management Shareholder Director who is also a Management Shareholder
shall resign as a Director immediately on ceasing to be a Shareholder or
employee of any member of the Group.
(e) The Management Shareholders shall procure that, at all times, at least two
Management Shareholder Directors shall be ordinarily resident in Bermuda.
2.2. Any appointment or removal of a Director shall be effected by notice in
writing to the Company signed by or on behalf of the Shareholder(s) in question
and shall take effect, subject to any contrary intention expressed in the
notice, when the notice is delivered.
2.3 Except where failure to act would result in the breach of a statutory
requirement, in the event that there is a vacancy on the Board no action shall
be taken by the Board until that vacancy is filled by the Shareholder(s)
entitled to fill it, provided that if a vacancy remains unfilled for a period of
30 days from its arising, this provision shall cease to have effect in relation
to that vacancy and shall have no effect in relation to any further vacancy
arising during the period of the first vacancy which the person entitled to fill
the first vacancy is also entitled to fill.
2.4 Subject to clause 2.10, and subject to Xxxxxxx Xxxxx owning, in total, 5%
or more of the issued Shares of the Company, Xxxxxxx Sachs shall be entitled to
appoint (and remove and replace) one director to the board of directors of each
of the Subsidiaries by notice in writing to the board of the relevant Subsidiary
(each such director being a Xxxxxxx Xxxxx Subsidiary Director). The Xxxxxxx
Sachs Subsidiary Director shall be appointed as soon as practicable after notice
of such appointment is received by the relevant Subsidiary and shall not be
removed from such appointment without Xxxxxxx Xxxxx' prior written consent. In
the event that Xxxxxxx Sachs ceases to own, in total, 5% or more of the issued
Shares in the Company it shall procure that each Xxxxxxx Xxxxx Subsidiary
Director shall resign
as soon as reasonably practicable thereafter.
2.5 At least one of the Xxxxxxx Sachs Directors shall be a member of all
committees of the Board and each Xxxxxxx Xxxxx Subsidiary Director shall be a
member of all committees of the board of directors of the Subsidiary of which he
is a director.
2.6 To the extent lawful, the quorum for the transaction of business at any
meeting of the Board or any committee of the Board shall be three Directors (or
their alternates), at least one of whom must be a Xxxxxxx Sachs Director (or his
alternate), otherwise, the quorum for the transaction of business at any meeting
of the Board or any committee of the Board shall be two Directors. The quorum
for the transaction of business at any meeting of the board of directors, or any
committee of the board of directors, of a Subsidiary shall, to the extent
lawful, also be three directors (or their alternates), at least one of whom must
be the Xxxxxxx Xxxxx Subsidiary Director (or his alternate) (but only if the
board or committee of the board is convened to consider, or otherwise considers,
whether on its own or in conjunction with any other action, the taking of any of
the actions listed in Schedule 2 by that Subsidiary), otherwise, the quorum
shall be two directors. Each Shareholder which has appointed a Director shall
use its reasonable endeavours to procure that a quorum is present at any meeting
of the Board. In the event that a quorum is not present within 30 minutes of the
time for which a meeting of the Board has been called, that Meeting shall be
adjourned until the same time on the date 14 days following (or the Business Day
nearest to it). Every Director shall be given at least 7 days' written notice of
such adjourned meeting, at which any 2 Directors (or their alternates) shall
constitute a quorum.
2.7 Other than as provided for in clause 2.6 in respect of an adjourned meeting
of the Board, at least 14 days written notice shall be given to each Director of
any meeting of the Board or committee of the Board, provided always that a
shorter period of notice may be given with the written approval of at least one
Xxxxxxx Sachs Director (or his alternate). Any such notice shall include an
agenda identifying in reasonable detail the matters to be discussed at the
meeting and shall be accompanied by copies of any relevant papers to be
discussed at the meeting. Any matter which is to be submitted to the meeting for
a decision which is not identified in reasonable detail as aforesaid shall not
be decided upon, unless otherwise agreed by all of those present.
2.8 Except in relation to the action specified in Schedule 2, when the
provisions of clause 3.2 shall apply, matters for decision by the Board or
committee of the Board shall be decided by simple majority vote. Each Director
shall, subject to any provision of the Bye-laws precluding a Director from
voting as a result of any other interest of the Director, be entitled to cast
one vote on each issue put to a vote. Any Director who is unable to attend any
meeting may nominate any other Director or, in the case of a Xxxxxxx Xxxxx
Director, any other person, to act as his alternate for the purposes of that
meeting (by depositing written notice to that effect with the Company Secretary
at any time prior to the meeting) and, in addition to any other vote which he
already may be entitled to cast, to vote in his place at the meeting, and such
alternate Director shall count towards the quorum for the purposes of clause
2.6. The provisions of this clause shall, mutatis mutandis, also apply to
Subsidiaries.
2.9 Unless a proposed Management Shareholder Director is a Management
Shareholder, the Management Shareholders shall not be entitled to appoint that
person as a Management Shareholder Director pursuant to clause 2.1 or as an
alternate pursuant to clause 2.8 without having first obtained the prior written
approval of the Xxxxxxx Sachs Directors to the appointment, such approval not to
be unreasonably withheld or delayed.
2.10 Unless a proposed Xxxxxxx Xxxxx Director or Xxxxxxx Sachs Subsidiary
Director is a partner or an employee of a member of Xxxxxxx Xxxxx Group, Xxxxxxx
Sachs shall not be entitled to appoint that person as a Xxxxxxx Xxxxx Director
or a Xxxxxxx Sachs Subsidiary Director pursuant to clause 2.1 or 2.4 (as the
case may be), or as an alternate of either pursuant to clause 2.8, without
having first obtained the prior written approval of a majority of the Management
Shareholder Directors to the appointment, such approval not to be unreasonably
withheld or delayed.
2.11 Each Director (including for this purpose a Xxxxxxx Xxxxx Subsidiary
Director) shall be reimbursed by the Group for reasonable travel and other out
of pocket expenses incurred by him in performing his obligations and carrying
out his duties hereunder.
2.12 Meetings of the Board shall be held at least once every two months unless
agreed otherwise by a Super-Majority. A director (or a duly appointed alternate)
of the Company or a Subsidiary will be regarded as present at a meeting if he is
in communication with the meeting by telephone or other communication equipment
permitting all those attending the meeting to hear one another.
2.13 The Management Shareholders shall procure that each Subsidiary which is an
exempted company within the meaning of section 127 of the Bermuda Companies Act
1981 shall, at all times, have a sufficient number of directors (other than
alternate directors) ordinarily resident in Bermuda so as to be able to form a
quorum at a meeting of directors of that Subsidiary.
CORPORATE GOVERNANCE
3.1 Subject to the provisions of this clause 3, the management of the affairs
of each member of the Group shall be controlled by its board of directors in
accordance with its constitutional documents and applicable law.
3.2 The actions listed in Schedule 2 shall not be taken either by the
Company or by any other member of the Group, nor shall the Company
approve the taking of any of the said actions by any other member of the
Group, without the prior approval of a Super-Majority.
3.3 The Management Shareholders agree to procure undertakings from each of the
Subsidiaries to adhere to the terms of this clause 3 in the form of the letter
attached as Schedule 9 and supply certified copies of such undertakings to
Xxxxxxx Sachs within the period of three months from the date hereof
3.4 The parties agree that Super-Majority votes shall be taken by the
Management Directors acting solely as representatives of the Management
Shareholders and by the Xxxxxxx Xxxxx Directors acting solely as representatives
of Xxxxxxx Sachs, and not as directors of the Company nor in any other capacity
which owes a fiduciary duty to the Company.
INFORMATION RIGHTS
4.1 The Company shall provide Xxxxxxx Xxxxx (at the address given to the
Company from time to time for such purpose) with the following information:
(a) within 30 days of the end of each month, a monthly management letter,
containing summary details of the revenues and operations of and a balance
sheet for, the Group and, in particular, summary financial information for
that month in respect of each of the company and the Subsidiaries, together
with an officer's written confirmation that in his opinion the same have
been prepared (on an unaudited basis) so as fairly and accurately to
reflect the trading and financial positions of the Company and the
Subsidiaries for that period;
(b) within 90 days of the end of each Financial Year, annual accounts, audited
by the Auditors accompanied by a management letter summarising the revenues
and Operations of the Company and each of the Subsidiaries, for that
Financial Year;
(c) within 5 days of filing, copies of all filings made, if any, with the
Securities and Exchange Commission or any stock exchange; and
(d) before the end of each Financial Year the Budget for the next Financial
Year and an updated Business Plan.
(e) any other information which Xxxxxxx Sachs may from time to time reasonably
request.
4.2 The Xxxxxxx Xxxxx Directors shall be provided with copies of all
information (if any) made available to all or any of the Management Shareholder
Directors in connection with the Group, at the same time as such information is
made available to the Management Shareholder Directors.
INSURANCE
5. The Management Shareholders shall, in the case of (a), procure and shall,
in the case of (b), use their reasonable endeavours to procure that so long as
Xxxxxxx Sachs owns any Shares, the Group maintains:
(a) such cover in respect of directors' and officers' liability insurance as may
reasonably be regarded as prudent in relation to the size and nature of the
business of the Group; and
(b) in respect of "key man" life insurance, at least (Pounds)5 million of cover
on the life of Xxxx Xxxxx and at least (Pounds)5 million of cover on the
life of Xxxx Xxxxx, or in either case, such other amounts as a Super-
Majority may agree.
TRANSFER OF EQUITY SECURITIES
6.1 The Shareholders shall use their respective powers to procure that:
(a) the Directors shall not approve the transfer of any Equity Securities to
any person who is not already a party to this Agreement unless that person
has delivered to the Company a duly executed Deed of Adherence;
(b) all share certificates issued by the Company shall bear the following
legend:
"No person shall acquire all interest in any shares of the Company or be
registered as a shareholder in the Company without having first delivered to the
Company a Deed of Adherence to the Shareholders' Agreement and Registration
Rights Agreement relating to the Company each dated *January 1996 (in the form
specified by the Company)."
6.2 Other than pursuant to a sale or transfer of the legal and beneficial
interest in its Equity Securities which is expressly permitted by this
Agreement, no Shareholder may:
(a) grant, declare, create or dispose of any right or interest in any Equity
Securities; or
(b) create or permit to exist any pledge, lien, charge (whether fixed or
floating) or other encumbrance over any Equity Securities.
6.3 Subject to clauses 6.4, 6.5 and 6.7 and to clauses 7, 8 and 10:
(a) none of the Shareholders may sell or transfer all or any Equity Securities
other than in compliance with the provisions of Schedule 3;
(b) none of the Management Shareholders may sell or transfer any Equity
Securities within three years from the date of this Agreement; and
(c) Xxxxxxx Xxxxx may not sell or transfer any Equity Securities within
eighteen months from the date of this Agreement.
6.4.1 The restrictions in clause 6.3 shall not apply to any sale or transfer:
(a) on an Initial Public Offering;
(b) in the case of Xxxxxxx Sachs, to any Member of the Xxxxxxx Xxxxx Group;
(c) pursuant to clause 4 of the Subscription Agreement; or
(d) in the case of a Management Shareholder, provided that the conditions set
out in clause 6.4.2 are observed prior to the transfer, by a Permitted
Transfer to a Permitted Transferee, a Permitted Transfer being one of the
following:
(i) in relation to a Management Shareholder, a transfer or transmission to
that Management Shareholder's spouse, or that Management Shareholder's
child or grandchild (in either case under the age of 18 years) or the
trustee or trustees of a trust the beneficiaries of which are limited to
that Management Shareholder and/or chat Management Shareholder's spouse,
that Management Shareholder's children and/or grandchildren (in either case
under the age of 18 years) (a family trust) or a transfer between (an)
existing trustee(s)and (a) new trustee(s) of a family Crust or a transfer
or transmission back to that Management Shareholder from any of such
persons;
(ii) in relation to a Management Shareholder, a transfer in accordance with
the provisions of Schedule 4 following termination of that Management
Shareholder's employment; or
(iii) a transfer or transmission approved by a Super-Majority.
6.4.2 The conditions referred to in clause 6.4.1(d) are as follows:
(a) The proposed Permitted Transferee must enter into a Deed of Adherence prior
to the transfer taking place; and
(b) In the case of a transfer pursuant to clauses 6.4.1. (d) to a Permitted
Transferee, the proposed Permitted Transferee must undertake to the
Shareholders (in the form of the undertaking Set Out in Part B of Schedule
7) that if it ceases (for any reason) to be a Permitted Transferee it shall
immediately transfer its Equity Securities back to the Management
Shareholder from whom the Equity Securities were transferred to that
Permitted Transferee.
6.5 In the event that a member of the Xxxxxxx Xxxxx Group which holds
securities of the Company ceases to be a member of the Xxxxxxx Sachs Group, that
person shall, immediately on ceasing to be a member of the Xxxxxxx Xxxxx Group,
transfer its securities to another member of the Xxxxxxx Sachs Group.
6.6 Xxxxxxx Xxxxx may agree with a person to whom it proposes to transfer
Equity Securities that the proposed transferee is to be treated for all
purposes, following such transfer, as if it had been named in this Agreement
with the name of Xxxxxxx Sachs.
6.7 In the event that any Management Shareholder who is an employee of the
Group ceases to be so employed, the provisions of Schedule 4 shall apply.
SALE OF CONTROL
7. Without prejudice to clause 6, each Shareholder agrees that it will not,
whether acting alone, or together with any other Shareholder or Shareholders
pursuant to any agreement or arrangement, sell or transfer any Equity Securities
to any person (or group) if, as a result of that sale or transfer and any other
transactions, such person (or group) would become the beneficial owner, directly
or indirectly, of Equity Securities representing 40% or more of the total votes
which would be capable of being exercised at general meetings of the Company,
based either on the Shares then in issue or on a fully diluted basis, unless
such person (or group) agrees to offer to purchase all of the outstanding Equity
Securities then in issue from all Shareholders for the same consideration and on
the same terms provided that such consideration (on a security by security
basis) shall in no event be less than the highest price paid (or other
consideration given) in the last 12 months by such person (or group) for any
Equity Securities.
BRING-ALONG RIGHTS
8.1 Subject to the provisions of Schedule 3 (which shall apply unless agreed
otherwise by a Super-Majority), each Shareholder agrees that, in the event that
Shareholders owning at least 70% of Equity Securities (Proposing Shareholders)
elect to sell all of the Equity Securities then held by them
to a third parry in a bona fide, arm's length transaction or series of
transactions reflecting the fair value of such securities (as determined by a
Super-Majority), all remaining Shareholders shall be required, within thirty
days of the receipt of a written notice signed by all Proposing Shareholders, to
sell all of the Equity Securities then held (whether legally or beneficially) by
such remaining Shareholders to that third party for the same consideration and
upon the same terms (on a security by security basis) as the sale by the
Proposing Shareholders.
8.2 Completion of the sale and purchase of the Equity Securities under clause
8.1 shall take place at the registered office of the Company and the provisions
of Schedule 6 shall apply thereto.
FUTURE ISSUES
9.1 Subject to clause 9.2, each Shareholder shall be invited by the Company to
participate in all future allotments and issues by the Company of Equity
Securities to the extent necessary to maintain its proportionate interest in the
Company on a fully diluted basis, on the same terms as offered to any other
person.
9.2 The Company shall not be required to make the invitation set out in clause
9.1 in relation to Equity Securities proposed to be allotted or issued:
(i) pursuant to an employee stock or share option plan, stock or share
purchase plan, or singular benefit programme or agreement approved by a
Super-Majority, where the primary purpose is not to raise additional
equity capital for the Company; or
(ii) in direct consideration for the acquisition by the Company of another
business entity or the merger of any business entity with or into the
Company;
(iii) pursuant to the rights attaching to the A Shares as defined in the
Subscription Agreement.
9.3 No allotment of issue of Equity Securities by the Company shall be made or
be agreed to unless the person whose favour the allotment, issue or agreement is
made agrees to enter into a deed of adherence to this Agreement and the
Registration Rights Agreement prior to the issue of the relevant Equity
Securities.
PUT AND AUCTION RIGHTS
10. The provisions of Schedule 5 shall apply in the event that, within eight
years of the date of this Agreement.
(a) the Company shall not have made a firm commitment underwritten initial
public offering of at least 15% of its ordinary share capital (on a fully
diluted basis); or
(b) the events contemplated by clause 7 or clause 8 shall not have arisen.
INITIAL PUBLIC OFFERING AND REGISTRATION RIGHTS
11.1 At any time after three years following the date of this Agreement,
Xxxxxxx Xxxxx shall have the right to require the Company to procure one of the
following (as may be nominated by Xxxxxxx Sachs following discussion with the
Board): (A) a listing of the Company on the London Stock Exchange; (B) a listing
of the Company on the New York Stock Exchange; or (C) designation of the
ordinary share capital of the Company as a NASDAQ National market system
security, in each case subject to the following conditions:
(a) on an initial public offering on the New York Stock Exchange or NASDAQ:
(i) at least 15% of the ordinary share capital of the Company (on a fully
diluted basis) is registered pursuant to the demand
(ii) the shares that are registered have an aggregate offering price of at
least US$ 15 million based on the then current market price or fair value
estimated by the Company's underwriters); and
(iii) it is a firm commitment underwriting; and
(b) on an initial public offering on the London Stock Exchange:
(i) the Company's ordinary share capital is admitted to listing; and
(ii) the ordinary share capital of the Company sold on the admission to
listing has an aggregate offering price of at least (Pounds)10 million
based on the then current market price or fair value estimated by the
Company's underwriters).
11.2 On or following an initial public offering or otherwise at any time after
three years of the date of this Agreement, Xxxxxxx Xxxxx shall have the right to
require the Company:
(a) in the United States, to register the sale of any new or existing ordinary
share capital of the Company pursuant to the Securities Act of 1933,
provided that the Company shall nor be required to effect any registration
within six months of the effective date of any other registration of
ordinary share capital (other than under Form 5-8) on such terms as are
contained in the Registration Rights Agreement.
(b) in the United Kingdom to authorize and prepare (or assist in the
preparation of) any prospectus which may be required in order to make an
offer of ordinary share capital of the Company under the Public Offers of
Securities Regulations 1995.
11.3 The Company shall, to the extent lawful under Bermuda law, bear all
expenses (other than commissions and underwriting discounts) including legal and
accounting fees and expenses incurred pursuant to clauses 11.1 and 11.2 above,
save that in the case of clause 11.2(a), after the first three registrations the
Holders requesting registration shall bear all such expenses, as provided for in
the Registration Rights Agreement
INVESTMENT BANKING
12. The Xxxxxxx Sachs Group shall have the right to perform all investment
banking services for the
Company, including any sale of the Company, for customary compensation and other
terms consistent with all arm's length transaction. If the Company and Xxxxxxx
Xxxxx cannot agree upon terms of such appointment, the Company shall be at
liberty to hire another investment banker, provided that any member of The
Xxxxxxx Sachs Group will then be entitled to be a member of the management group
in connection with any underwriting.
DECISIONS BY MANAGEMENT SHAREHOLDERS
13. In any case where this Agreement provides for a decision to be made by the
Management Shareholders collectively, Xxxxxxx Xxxxx shall be entitled to assume
that such decision has been agreed upon by all Management Shareholders if
communicated to Xxxxxxx Sachs by any of Xxxx Xxxxx, Xxxxxx Xxxxx or Xxxx Xxxxx
or such other person as the Management Shareholders may notify to Xxxxxxx Sachs
in writing from time to time.
MEMORANDUM AND BYE-LAWS AND FURTHER ASSURANCE
14.1 As between the parties, if any of provisions of this Agreement are
inconsistent with any of the provisions of the Memorandum and Bye-laws, the
provisions of this Agreement shall prevail and the Shareholders shall exercise
all voting and other rights and powers legally available to them (whether as
members of the Company or otherwise), including for the purpose of amending the
Memorandum and Bye-laws of the Company and the constitutional documents of the
Subsidiaries, to the extent necessary from time to time to give effect to the
provisions of this Agreement
14.2 In addition and without limitation to clause 14.1, the parties agree to
take all such further and other actions, and enter into an additional agreements
that may be necessary to give full effect to the terms of this Agreement and all
other documents and all transactions referred to in it.
TERMINATION
15.1 This Agreement shall terminate:
(a) upon an Initial Public Offering; or
(b) upon the completion of the acquisition of all of the Equity Securities in
the Company by one person (or persons acting in concert with that person);
or
(c) upon a sale of all or substantially all of the Company's assets and
undertaking to an unrelated party (being a party not already a party to
this Agreement);
save that termination of this Agreement for whatsoever reason shall not:
(i) relieve any party from any liability or obligation in respect of any
matters, undertakings or conditions which shall not have been done,
observed or performed by that party prior to such termination or
(ii) affect the terms of any agreement entered into between any of the
parties to replace this
Agreement.
15.2 The provisions of clause 11 shall not be affected by the termination of
this Agreement pursuant to clause 15.1(a).
CONFIDENTIALITY
16.1 Each party undertakes with the other that it shall use all reasonable
endeavours to keep confidential (and to ensure that its officers, employees,
agents and professional and other advisers keep confidential) any information:
(a) which it may have or acquire (whether before or after the date of this
Agreement) in relation to the customers, business, assets or affairs of any
member of the Group;
(b) which, in consequence of the negotiations relating to this Agreement or
being a Shareholder or having appointees on the Board or the exercise of
its rights or performance of its obligations under this Agreement, it may
have or acquire (whether before or after the date of this Agreement) in
relation to the customers, business, assets or affairs of any other
Shareholder; or
(c) which relates to the contents of this Agreement (or any agreement or
arrangement entered into pursuant to this Agreement).
No party shall use for its own business purposes or disclose to any third party
any such information (collectively, Confidential Information) without the
consent of the other parties.
16.2 The obligation of confidentiality under clause 16.1 shall not apply to:
(a) the disclosure of information (subject to clause 16.3) on a "need to know"
basis to a member of the Xxxxxxx Xxxxx Group or an alternate director of
either a Management Shareholder Director or a Xxxxxxx Sachs Director or by
a Management Shareholder Director to a Management Shareholder or vice versa
where such disclosure is for a purpose reasonably incidental to this
Agreement;
(b) the disclosure of information to any general or limited partner in any of
Bridge Street, GS Capital Partners, GS Offshore or Stone Street;
(c) the disclosure of information to a person or persons (Potential Purchaser)
whom the party disclosing such information reasonably believes may wish to
purchase all or any part of that party's Equity Securities provided that
such Potential Purchaser provides to the Company, on terms and in a form
reasonably satisfactory to the Company, an undertaking to keep such
information confidential;
(d) information which is independently developed by the relevant party or
acquired from a third party to the extent that it is acquired with the
right to disclose the same;
(e) the disclosure of information to the extent required to be disclosed by
law, any stock exchange regulation or any binding judgment, order or
requirement of any court or other competent authority;
(f) the disclosure of information to any tax authority to the extent reasonably
required for the purposes of the tax affairs of the party concerned or any
member of its Group;
(g) the disclosure (subject to clause 16.3) in confidence to a party's
professional advisers of information reasonably required to be disclosed
for a purpose reasonably incidental to this Agreement;
(h) information which becomes within the public domain (otherwise than as a
result of a breach of this clause 16); or
(i) any announcement made in accordance with the terms of clause 17.
16.3 Each party shall inform any officer, employee or agent or any professional
or other adviser advising it in relation to the matters referred to in this
Agreement, or to whom it provides Confidential information, that such
information is confidential and shall instruct them:
(a) to keep it as confidential; and
(b) not to disclose it to any third party (other than those persons to whom
it has already been disclosed in accordance with the terms of this
Agreement).
16.4 The Company shall (and the Company shall procure that each other member of
the Group shall) observe a similar obligation of confidence in favour of the
parties and each of their Subsidiaries.
16.5 The provisions of this clause 16 shall survive any termination of this
Agreement.
ANNOUNCEMENTS
17. No announcement shall be made concerning this Agreement or the Subscription
Agreement nor shall either of these be publicised in any other way, unless both
the proposal to announce or otherwise publicise the Agreement and/or the
Subscription Agreement and the form and content of the announcement or other
publicity have been approved by Xxxxxxx Xxxxx and the Management Shareholders.
ASSIGNMENT
18.1 Subject to clause 6.6, 110 Shareholder may assign any of its rights or
obligations under this Agreement in whole or in part otherwise than pursuant to
a sale or transfer of Equity Securities to a third party in accordance with the
terms of this Agreement.
18.2 This Agreement shall enure for the benefit of the successors in title and
expressly permitted assigns of each of the parties.
WAIVER OF RIGHTS
19. No waiver by a party of a failure by another party to perform any provision
of this Agreement shall
operate or be construed as a waiver in respect of any other or further failure
whether of a like or different character.
AMENDMENTS
20. This Agreement may be amended only by an instrument in writing signed by
duly authorised representatives of each of the parties, provided that the
amendment of any provision of this Agreement solely affecting any of the
respective rights or obligations of the Shareholders or any of them inter se
shall not require the agreement of the Company.
INVAlIDITY
21. If any of the provisions of this Agreement is or becomes invalid, illegal
or unenforceable, the validity, legality or enforceability of the remaining
provisions shall not in any way be affected or impaired. The parties shall
nevertheless negotiate in good faith in order to agree to terms of a mutually
satisfactory provision, achieving so nearly as possible the same commercial
effect, to be substituted for the provision so found to be void or
unenforceable.
NO PARTNERSHIP OR AGENCY
22.1 Nothing in this Agreement (or any of the arrangements contemplated
hereby) shall be deemed to constitute a partnership between the parties nor,
save as may be expressly set out herein, constitute any party the agent of any
other party for any purpose.
22.2 In addition, unless otherwise agreed in writing between the parties, none
of them shall enter into contracts with third parties as agent for any member of
the Group or for any other party nor shall any party describe itself as agent as
aforesaid or in any way hold itself out as being an agent as aforesaid.
ENTIRE AGREEMENT
23. This Agreement taken with the Subscription Agreement and all other
agreements referred to in each document constitutes the entire agreement and
understanding of the parties with respect to the subject matter hereof and none
of the parties has entered into this Agreement in reliance upon any
representation, warranty or undertaking by or on behalf of any other party which
is not expressly set out in this Agreement or the Subscription Agreement. No
party shall have any remedy in respect of any misrepresentation or untrue
statement made by any other party hereto unless and to the extent that a claim
lies for breach of warranty under the Subscription Agreement (save that this
clause shall not exclude any liability for fraudulent misrepresentation).
PURCHASE OF OWN SECURITIES
24. To the extent that the Company has the right to purchase its own Equity
Securities pursuant to the provisions of Schedules 3, 4 and 5, it shall only do
so to the extent so permitted by Bermuda law.
GOVERNING LAW
25. This agreement shall be governed by English law and each of the parties
hereby irrevocably submits to the non-exclusive jurisdiction of the English
Courts as to any claim, dispute or matter arising out of or relating to this
agreement or any of the documents to be executed pursuant to it, and waives any
objection on the ground of venue or forum non conveniens or any similar ground.
Each of the parties shall, unless it is a company incorporated in England and
Wales, at all times maintain an agent for service of process in England, the
identity and address of such agent to be notified to each of the other parties
forthwith upon execution of this agreement and each party appointing an agent
for service of process undertakes not to revoke the authority of such agent. If,
for any reason, any such agent no longer serves as agent of its appointor to
receive service of process, the appointor shall promptly appoint another such
agent and advise each of the parties thereof immediately.
NOTICES
26. Any notice, instruction, consent or other document to be given under this
Agreement shall be in writing and delivered personally or by pre-paid recorded
delivery or facsimile (provided that, in the case of facsimile, the notice is
confirmed by being delivered by hand or sent by first class post within 72 hours
thereafter) to the recipient party at the address shown in Schedule 1 to this
Agreement or to such other address, or to a facsimile number, as is notified in
writing from time to time by such party to each of the other parties. Any notice
delivered personally shall be deemed to be received when delivered, any notice
sent by pre-paid recorded delivery post shall be deemed to have been received 5
Business Days after posting and any notice sent by facsimile, at the time of
transmission (provided that if transmission occurs after 6 p.m. on a Business
Day, or not on a Business Day, delivery will be deemed to occur at 9 a.m. on the
next Business Day). References to time in this clause are references to local
time in the country of the recipient of the notice.
IN WITNESS WHEREOF this agreement has been executed by the parties the day and
year first before written.
SCHEDULE 1
Part A - Management Shareholders
Name Address Address for service of notices
and fax number
Xxxxxxxx Xxxx Xxxxx "Tunbridge Xxxxx" Xxxxxxxx Xxxxxx
97 Xxxxxxxxxx Sound Xxxxxxxx Xxxxx
Xxxx 00 Xx. Xxxxxxx Xxxxxx
Smiths X000 Xxxxxx XX0X 0XX
Bermuda Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxx Xxxxxx Fairs 47 Elmfield Road Xxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxx Xxxxx
Xxxxxx X0 0XX 00 Xx. Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxx Xxxx-Xxxxxx 00 Xxxxxxx Xxxx Xxxxxxxx Xxxxxx
Xxxxxx XX00 0XX Beaufort House
00 Xx. Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxxxxx Xxxxx Redcroft Xxxxxxxx Xxxxxx
Xxxx Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx 00 Xx. Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxx XX0X 0XX
Xxxxx XX0 0XX Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxx Xxxxxxx Xxxxxxx 00 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx Beaufort House
Hornchurch 00 Xx. Xxxxxxx Xxxxxx
Xxxxx XX00 Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxx Xxxxxx 10 Mossbank Xxxxxxxx Xxxxxx
Grays Xxxxxxxx Xxxxx
Xxxxx XX00 0XX 00 Xx. Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxx Xxx Xxxxxxx Fishermans Cottages Xxxxxxxx Xxxxxx
00 Xxxxxx Xxxx Xxxxxxxx Xxxxx
Xxxxxxx on Xxxxxx 00 Xx. Xxxxxxx Xxxxxx
Xxxxx XXX 0XX Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxxxxx Sacy 00 Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx
Xxxxxx X0 0XX Beaufort House
00 Xx. Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Xxxxxx 2 Gainsborough Court Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx Xxxxxxxx Xxxxx
Xxxxxx XX00 0XX 00 Xx. Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxx Xxxxx 00 Xxxxxxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxxx X0 0XX Beaufort House
00 Xx. Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxxxxxxxx Xxxxx Xxxxx Xxxxx Xxxx House Xxxxxxxx Xxxxxx
Xxxxxxx Beech Beaufort House
Alton 15 St. Botolph Street
Hampshire GU34 4AX Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxxxx Xxxx Xxxxx Thollon Xxxxxxxx Xxxxxx
00 Xxxxxxxxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxxxx 00 Xx. Xxxxxxx Xxxxxx
Xxxx XX0 0XX Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxxx Tarsh 4 Xxxxxx Xxxxx Xxxxxxxx Xxxxxx
Admiral Walk Beaufort House
Carlton Gate 00 Xx. Xxxxxxx Xxxxxx
Xxxxxx X0 Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxxxxx Atteline 97 Xxxxxxxxxx Sound Xxxxxxxx Xxxxxx
Xxxxx Xxxx Xxxxxxxx Xxxxx
Xxxxxx X000 00 Xx. Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxxx Xxxxxx 14 Wilmington Xxxxxxxx Xxxxxx
Avenue Beaufort House
London 00 Xx. Xxxxxxx Xxxxxx
X0 0XX Xxxxxx XX0X 0XX
Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Xxxx Xxxxxx Apartment 23 Xxxxxxxx Xxxxxx
Mizzentop Longford Beaufort House
Road 15 St. Botolph Street
Warwick WK06 Xxxxxx XX0X 0XX
Bermuda Fax: 0000 000 0000
For the attention of
Xxxxx Xxxxxxxxxx
Part B - Investors
Name Address Address for service of notices
and fax number
Bridge Street Fund c/o The Corporation Xxxxxxx Xxxxx International
1995, L.P. Trust Company, Peterborough Court
Corporation Trust 000 Xxxxx Xxxxxx
Xxxxxx, 0000 Xxxxxx Xxxxxx XX0X 0XX
Street, DE 19801 For the attention of
U.S.A. Xxxxxxx Xxxxx
Fax no. 0000 000 0000
GS Capital Partners II, c/o The Corporation Xxxxxxx Xxxxx International
L.P. Trust Company, Peterborough Court
Corporation Trust 000 Xxxxx Xxxxxx
Xxxxxx, 0000 Xxxxxx Xxxxxx XX0X 0XX
Street, DE 19801 For the attention of
U.S.A. Xxxxxxx Xxxxx
Fax no. 0000 000 0000
GS Capital Partners II c/x Xxxxxx and Xxxxxxx Sachs International
Offshore, X.X. Xxxxxx, Peterborough Court
PO Box 309, 133 Fleet Street
Grand Cayman, London EC4A 2BB
Cayman Islands, For the attention of
British West Indies Xxxxxxx Xxxxx
Fax no. 0000 000 0000
Stone Street Fund 1995, c/o The Corporation Xxxxxxx Xxxxx International
L.P. Trust Company, Peterborough Court
Corporation Trust 000 Xxxxx Xxxxxx
Xxxxxx, 0000 Xxxxxx Xxxxxx XX0X 0XX
Street, DE 19801 For the attention of
U.S.A. Xxxxxxx Xxxxx
Fax no. 0000 000 0000
Xxxxxxx Xxxxx & Co. Messe Turm Xxxxxxx Sachs International
Verwaltungs GmbH as 00000 Xxxxxxxxxx Xxxxxxxxxxxx Xxxxx
general partner of GS Main 000 Xxxxx Xxxxxx
Captial Partners I Germany Xxxxxx XX0X 0XX
German Civil Law For the attention of
Partnership (with Xxxxxxx Xxxxx
limited liability) Fax no. 0000 000 0000
Part C - The Company
Name Address Address for service of notices
and fax number
Stirling Xxxxx Xxxxxx Cedar House Xxxxxxxx Xxxxxx
Holdings Limited 00 Xxxxx Xxxxxx Xxxxxxxx Xxxxx
Xxxxxxxx XX00 00 Xx. Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxx XX0X 0XX
For the attention of
Xxxxx Xxxxxxxxxx
Fax No. 0000 000 0000
with a copy to
Xxxxxxx Sachs International
Xxxxxxxxxxxx Xxxxx
000 Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
For the attention of
Xxxxxxx Xxxxx
Fax No. 0000 000 0000
SCHEDULE 2
Corporate Governance
The actions referred to in clause 3.2 are the following:
l. A merger, consolidation or liquidation.
2. The acquisition of another business entity.
3. The establishment of any joint venture or partnership which is either
material in the context of the business of the Group or outside the ordinary
course of the Group's business or the establishment of any non-wholly owned
subsidiary undertaking.
4. Any entry into a business:
(a) (i) other than a business which is ancillary to an existing business of the
Group; or
(ii) which involves a member of the Group in underwriting for its own
account, the provision of reinsurance or the assumption of risk in relation
to any policy of insurance; or
(b) (in the case of any business which does not come within the ambit of
business for which approval is required pursuant to paragraph 4(a) above)
which is either
(i) material in the context of the Group taken as a whole; or otherwise
(ii) requires future commitments or capital expenditure in excess of
US$200,000 on any single occasion or in excess of US$350,000 in aggregate in
any Financial Year in either case other than as expressly approved in the
Budget or Business Plan.
5. The approval of any underwriting guidelines or any significant change in or
departure from such guidelines.
6. Approval of the Budget and Business Plan (including the constituent elements
of each) and any material amendments to either of them.
7. Other than as approved as part of the Budget or Business Plan or any
material amendment to either of them above, any:
(a) asset sales in excess of US$200,000;
(b) incurrence of indebtedness in excess of US$200,000 on any single
occasion and in excess of US$350,000 in aggregate for the Group in any
Financial Year;
(c) liens on or encumbrances of assets in excess of US$200,000 on any single
occasion and in excess
of US$350,000 in aggregate for the Group in any Financial Year; and
(d) capital expenditure in excess of US$200,000 on any single occasion and
in excess of US$350,000 in aggregate by the Group in any Financial Year.
8. Entering into or amending any contract which is material in the context of
the business of the Group as a whole, other than amending any contract
entered into in the ordinary course of business where such amendments are
part of the ordinary course of business and the particular amendment is not
material in the context of the Group as a whole.
9. Any issue or sale of Equity Securities.
10. Any payment or declaration of any dividend or other distribution (other than
a dividend representing, in total, not more than the lesser of:
(i) (Pounds)1 million; and
(ii) 20 percent of the after-tax profits of the Company of the Financial
Year in respect of which the dividend is declared or paid
in each case provided that the same may be accommodated within (A) the Group's
working capital and cash flow requirements as set out in the relevant Budget;
and (B) the Company's obligations and commitments (if any) pursuant to the
Further Financing Agreement.
11. Any repurchase or redemption of any securities or debt (except to the extent
such debt is due in accordance with its terms).
12. Any registrations of securities under the Securities Act of 1933 (as
amended) or a proposed listing of securities on any stock exchange or the
granting of registration rights.
13. Any transaction with a related party (related party having the meaning given
it in paragraph 1 of Chapter 11 of the London Stock Exchange's Listing Rules
in force at the date hereof, except that references to "substantial
shareholders" should be read as references to any Shareholder) other than in
accordance with the Agreement.
14. Any appointment or removal of any senior management of any member of the
Group, being any person, whether or not a director of any such member, who
is acknowledged as having a material role or influence in the conduct of the
affairs of the Group taken as a whole, or any individual member of the Group
(Senior Management) including, but not limited to, the removal of any of the
following persons: Xxxx Xxxxx, Xxxx Xxxxx, Xxxxxx Xxxxx.
15. Any amendment to the constitutional documents of any member of the Group
16. Any change in the size of, or to the maximum permitted number of directors
on, the Board of Directors.
17. Any appointment or removal of the Auditor.
18. Any adoption of or changes to any accounting policies other than such
changes as are necessary to comply with generally accepted accounting
principles applicable in the jurisdiction concerned.
19. Any adoption or material amendment of employment contracts of Senior
Management or any benefit plans or pension arrangements.
20. Entering into any guarantee, indemnity or suretyship other than in respect
of the obligations of the Company and/or the Subsidiaries in the ordinary
course of business.
21. The commencement and settlement of any litigation which is material to the
business of the Group taken as a whole.
SCHEDULE 3
Right of first offer on sale or transfer of Equity Securities
1. Subject to Clause 6.3, in the event that a Shareholder (a Selling
Shareholder) wishes to sell or transfer any or all of its Equity Securities (the
Offered Securities) it must first follow the procedure set out in paragraph 2.
2(a) The Selling Shareholder must offer the Offered Securities to the Company
and the Shareholders other than the Selling Shareholder (the Other
Shareholders) for purchase (described in this Schedule as the First Offer).
(b) The First Offer shall be made by the Selling Shareholder to the Company and
the Other Shareholders by written notice to the registered office (the
First Offer Notice) giving details of
(i) the number of Offered Securities;
(ii) the proposed consideration for each of the Offered Securities and
where the whole of such consideration is not to be satisfied by the payment
of cash, a figure which the Selling Shareholder reasonably considers to be
equal to the monetary value of the whole of such consideration (which, in
the case of consideration in the form of publicly quoted securities, shall
be the average mid-market price of each such security on the five Business
Days immediately preceding the date of the First Offer Notice) on a per
security basis;
(iii) a list of persons (not exceeding 100 in number) to whom the Selling
Shareholder may wish to offer the Offered Securities (the List). Where
appropriate, the List shall specify the entity which, so far as the Selling
Shareholder is aware, is the ultimate holding company of the persons named.
(iv) any other material terms and conditions on which the Offered
Securities are proposed to be sold.
(c) (i) The Company (if so decided by a Super-Majority) and the Other
Shareholders may each elect to purchase within 14 days of receipt of the
First Offer Notice, by notice to the Selling Shareholder and the Company
(or, in the case of the Company, to the Other Shareholders), all or
whatever proportion of the Offered Securities as they may apply for on the
same terms as are set out in the First Offer Notice.
(ii) If the Company elects to purchase Offered Securities in accordance
with paragraph 2(c)(i) and is subsequently entitled to purchase any or all
of those Offered Securities in accordance with the remainder of this
paragraph 2 and may do so as a matter of law and is not prohibited from
doing so by any loan or other agreement, each of the Shareholders shall
take all such action as is necessary to procure that such purchase takes
place.
(d) (i) Where, in total, elections are made by the Management Shareholders to
purchase all of, but not more than, the total number of the Offered
Securities, the Offered Securities shall be allocated
between those Management Shareholders making elections in the amounts for
which they have applied and the remainder of this paragraph shall not
apply; and
(ii) Where, in total, elections are made by the Management Shareholders and
the Company and the Other Shareholders to purchase all of, but not more
than, the total number of the Offered Securities, the Offered Securities
shall be allocated between those persons making elections in the amounts
for which they have applied and the remainder of this paragraph shall not
apply.
(e) Subject to paragraph 2(d) above, where the Selling Shareholder is also a
Management Shareholder, in the event that the Company and/or the Other
Shareholders elect to purchase, in aggregate, more than the total number of
Offered Securities, the following procedure shall apply:
(i) the Offered Securities shall be allocated between the Management
Shareholders other than the Selling Shareholder (the Other Management
Shareholders) who have elected to purchase Offered Securities pro rata to
their then existing holdings of Equity Securities or in the case of a
Management Shareholder who has applied for fewer Offered Securities than
the pro rata amount attributable to him, the amount for which he has
applied. To the extent that any of the Offered Securities then remain
unallocated and any Other Management Shareholder has made an election in
respect of more than his pro rata entitlement, the excess shall be
allocated (as nearly as may be) pro rata to the then existing holdings of
such of the Other Management Shareholders who have made such an election,
provided that such apportionment shall not be made so as to result in any
Other Management Shareholder being allocated more Equity Securities than he
applied for, any remaining excess being apportioned by applying this
paragraph 2(e)(i) without taking account of any such Other Management
Shareholders.
(ii) To the extent that any of the Offered Securities then remain
unallocated and the Company has made an election to purchase, those Offered
Securities shall be applied in satisfying the Company's election (to the
extent lawful and not prohibited from doing so by any loan or other
agreement), save that the Company shall not be allocated more Offered
Securities than it has elected to purchase.
(iii) To the extent that any of the Offered Securities then remain
unallocated those Offered Securities shall be allocated between such Other
Shareholders other than all Other Management Shareholder (Other Non-
Management Shareholders) who have elected to purchase Offered Securities
pro rata to their then existing holdings of Equity Securities or, in the
case of a Non-Management Other Shareholder who has applied for fewer
Offered Securities than the pro rata amount attributable to him, the amount
for which he has applied. To the extent that any of the Offered Securities
then remain unallocated and any Other Non-Management Shareholder has made
an election in respect of more than his pro rata entitlement, the excess
shall be allocated (as nearly as may be) pro rata to the then existing
holdings of such of the Other Non-Management Shareholders who have made
such an election, provided that such apportionment shall not be made so as
to result in any Other Non-Management Shareholder being allocated more
Equity Securities than he applied for, any remaining excess being
apportioned by applying this paragraph 2(e)(iii) without taking account of
any such Other Non-Management Shareholders.
(f) Where the Selling Shareholder is not also a Management Shareholder, in the
event that the Company and/or the Other Shareholders elect, in aggregate,
for more than the total number of Offered
Securities, the Company's election will be satisfied in full (to the extent
lawful and not prohibited from doing so by any ban or other agreement) and
the remaining Offered Securities (if any) will be allocated between the
Other Shareholders who have elected to purchase Offered Securities pro rata
to their then existing holdings of Equity Securities or, in the case of a
Other Shareholder who has applied for fewer Offered Securities than the pro
rata amount attributable to him, the amount for which he has applied. To
the extent that any of the Offered Securities then remain unallocated and
any Other Shareholder had served an Offer Notice in respect of more than
his pro rata entitlement, the excess shall be allocated (as nearly as may
be) pro rata to the then existing holdings of such of the Other
Shareholders who have applied for any part of such excess, provided that
such apportionment shall not be made so as to result in any Other
Shareholder being allocated more Equity Securities than he applied for, any
remaining excess being apportioned by applying this paragraph 2(f) without
taking account of any such Other Shareholders.
3. In the event that the Company and the Other Shareholders together do not
elect to purchase all of the Equity Securities included in the First Offer
within 14 days of the First Offer having being made, the Selling Shareholder
shall have the right for 90 days from the expiry of that 14 day period to sell
the Offered Securities to any person whose name appears on the List other than a
Prohibited Person (as defined in paragraph 4 below), for consideration not less
than and on other terms and conditions that are no more favourable to that
person than were set out in the First Offer Notice.
4. An Other Shareholder shall have the right to object to any person whose
name appears on the List who, in the reasonable opinion of that Other
Shareholder, would be materially detrimental for the Company to have as a
shareholder. The Other Shareholder must notify to the Selling Shareholder, the
remaining Other Shareholders and the Company the name of such person within 14
days of receipt of the List (or, in the case of a person added pursuant to
paragraph 5 below, within 7 days of receiving notice of such person), and such
notification is to be accompanied by a written explanation of the grounds on
which it is made. If a simple majority of the Board of Directors of the Company
reasonably considers that the Other Shareholder has provided satisfactory
grounds, the person to whom the Other Shareholder objects shall be a Prohibited
Person.
5. The Selling Shareholder may, at any time prior to the date 15 days prior to
the expiry of the 90 day time period specified in paragraph 3 above, and
provided that the Offered Securities have not all been acquired by the Other
Shareholders and/or the Company, notify the Company and Other Shareholders of
the names of further persons (and, if applicable, so far as the Selling
Shareholder is aware, their ultimate holding companies) to add to the List,
provided that the total number of persons included on the List (excluding any
Prohibited Persons) shall not exceed 150. The Company and Other Shareholders
shall be entitled to object to such further persons in accordance with the
provisions of paragraph 4 above.
6. In the event that Offered Securities are allocated pursuant to paragraph 2
above, the Company shall notify each of the persons who have been allocated
Offered Securities of the number of Offered Securities that he or it has been
allocated and the consideration payable for them and the transfer of the Offered
Securities so allocated shall take place on the date which is ten Business Days
from the Company making such notification.
7. Transfers of Offered Securities pursuant to this Schedule 3 shall take
place in accordance with the provisions of Schedule 6.
8. To the extent that an Other Shareholder to whom Offered Securities have
been allotted pursuant to this Schedule fails to complete the purchase of those
Offered Securities in accordance with Schedule 6, those Offered Securities shall
be treated as having been re-offered by the Selling Shareholder in accordance
with the provisions of this Schedule save that such defaulting Other Shareholder
shall not be entitled to apply to acquire such Offered Securities.
SCHEDULE 5
Put and Auction rights
1. Provided that none of the events specified in clause 10 of the Agreement
shall have taken place prior to the date specified in that clause, the provision
of this Schedule 5 shall apply.
2. Xxxxxxx Sachs shall have the right, exercisable on one occasion only,
following the date specified in clause 10 to require that a valuation of the
fair market value (FMV) of the Equity Securities of the Company be performed by
an international investment bank, agreed to by the Company and Xxxxxxx Xxxxx,
such bank acting as an expert and not an arbitrator and whose decision shall,
save in the case of manifest error, be final and binding on all the parties. In
the event that no international investment bank can be agreed upon by Xxxxxxx
Sachs and the Company, either party may apply to the President for the time
being of the London Investment Banks Association for the nomination of an
independent investment bank and the parties agree to accept any firm so
nominated.
3. Once the FMV has been established in accordance with clause 1 and notified
to all of the Shareholders, Xxxxxxx Xxxxx shall have the right for 90 days
following receipt of such notification to require the Company, exercisable by
notice in writing to the Company, subject to clause 4 of this Schedule, to
purchase the Equity Securities in the Company then held by Xxxxxxx Sachs for FMV
(without any deduction by virtue of its being a minority interest).
4. In the event that the Company cannot lawfully purchase or is otherwise
prohibited from purchasing the Equity Securities pursuant to paragraph 3,
Xxxxxxx Xxxxx shall have the right to require the Company to be auctioned and
sold in a merger, stock or asset sale, or otherwise. Xxxxxxx Sachs shall have
the right to conduct such an auction and accept such terms for the Company or
its assets (as the case may be) as it may elect, provided that all Shareholders
shall be entitled to receive consideration on the same basis, and participate in
such transaction on the same terms, as Xxxxxxx Xxxxx. The Management
Shareholders other than Xxxxxxx Sachs shall have the right to bid in the
auction, and to the extent that any of them so does, they agree to abide by the
reasonable terms of the auction.
5. In the event that Xxxxxxx Xxxxx requires an auction pursuant to paragraph
4, the Shareholders agree that they shall (and shall procure that their
respective agents, representatives and Subsidiaries shall):
(a) in the case of a share sale, (to the extent that the Equity Securities held
by Xxxxxxx Sachs are not sold to the Management Shareholders), sell their
Equity Securities on the same terms as Xxxxxxx Xxxxx as part of the
resulting transaction and in all other cases take such other action as may
be necessary or desirable to facilitate such transaction;
(b) procure that the Directors (or, if necessary, the shareholders in general
meeting) agree to vote in favour of the transaction resulting from the
auction and take such other action as may be necessary or desirable to
facilitate such transaction; and
(c) provide such co-operation in the auction process as Xxxxxxx Sachs may from
time to time reasonably request.
SIGNED by )
XXXXXXXX XXXX XXXXX ) /s/ Xxxxxxxx Xxxx Xxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXX XXXXXX FAIRS ) /s/ Xxxx Xxxxxx Fairs
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXX XXXX-XXXXXX ) /s/ Xxxx Xxxx-Xxxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
SIGNED by )
XXXXXXXX XXXXX ) /s/ Xxxxxxxx Xxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXX XXXXXXX XXXXXXX ) /s/ Xxxx Xxxxxxx Xxxxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXXXX XXXXXX XXXXXX ) /s/ Xxxxxxx Xxxxxx Xxxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXX XXX XXXXXXX ) /s/ Xxxx Xxx Xxxxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXXXX XXXXXX SACY ) /s/ Xxxxxxx Xxxxxx Sacy
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXX XXXXXXX XXXXXX ) /s/ Xxxxx Xxxxxxx Xxxxxx
in the presence of: ) as power of attorney
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXXX XXXXXXX XXXXX ) /s/ Xxxxxx Xxxxxxx Xxxxx
in the presence of: ) as power of attorney
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXXXXXXXX XXXXX ) /s/ Xxxxxxxxxxx Xxxxx Xxxxx Xxxxxxx
BLOIS XXXXXXX ) as power of attorney
by XXXXXX XXXXXXX XXXXX )
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXXXX XXXX XXXXX ) /s/ Xxxxxxx Xxxx Xxxxx
in the presence of: ) as power of attorney
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXX XXXXXXX TARSH ) /s/ Xxxxx Xxxxxxx Tarsh
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
PENELOPE ATTELINE XXXXX ) /s/ Penelope Atteline Xxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXX XXXXXX ) /s/ Xxxx Xxxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
XXXXX XXXXXX ) /s/ Xxxxx Xxxxxx
by XXXXXX XXXXXXX XXXXX ) as power of attorney
his attorney in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by XXXX de POURTALES )
as attorney on behalf of the General ) /s/ Bridge Street Fund 1995, L.P.
Partner of BRIDGE STREET ) as power of attorney
FUND 1995, L.P. )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by XXXX de POURTALES )
as attorney on behalf of GOLDMAN ) /s/ Xxxxxxx Xxxxx & CO Verwaltungs
SACHS & CO VERWALTUNGS ) as power of attorney
GmbH as General Partner of )
GS CAPITAL PARTNERS II )
GERMANY CIVIL LAW )
PARTNERSHIP (with limited )
liability) in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by XXXX de POURTALES )
as attorney on behalf of the General ) /s/ GS Capital Partners II, L.P.
Partner of GS CAPITAL ) as power of attorney
PARTNERS II, L.P. in the presence )
of: )
Witness- Signature:
Name:
Address:
SIGNED by XXXX de POURTALES )
as attorney on behalf of the General ) /s/ GS Capital Partners II Offshore, L.P.
Partner of GS CAPITAL ) as power of attorney
PARTNERS II OFFSHORE, L.P. )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by XXXX de POURTALES )
as attorney on behalf of the General ) /s/ Stone Street Fund 1995, L.P.
Partner of STONE STREET ) as power of attorney
FUND 1995, L.P. )
in the presence of: )
Witness- Signature:
Name:
Address:
SIGNED by )
STIRLING XXXXX XXXXX ) /s/ Stirling Xxxxx Xxxxx Holdings Limited
HOLDINGS LIMITED ) as power of attorney
acting by: )
Director:
Secretary:
