EXHIBIT 10.1
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STOCKHOLDERS' AGREEMENT
by and among
BPC HOLDING CORPORATION,
GS CAPITAL PARTNERS 2000, L.P.,
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.,
GS CAPITAL PARTNERS 2000 GMBH & CO. BETEILIGUNGS KG,
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.,
XXXXX XXXXXX XXXX 0000, X.X.,
XXXXXX XXXXXX SPECIAL OPPORTUNITIES FUND 2000, L.P.,
XXXXXXX XXXXX DIRECT INVESTMENT FUND 2000, L.P.,
X.X. XXXXXX PARTNERS (BHCA), L.P.,
X.X. XXXXXX PARTNERS GLOBAL INVESTORS, L.P.,
X.X. XXXXXX PARTNERS GLOBAL INVESTORS (CAYMAN), L.P.,
X.X. XXXXXX PARTNERS GLOBAL INVESTORS (CAYMAN) II, L.P.
and
X.X. XXXXXX PARTNERS GLOBAL INVESTORS A, L.P.
Dated as of July 22, 2002
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TABLE OF CONTENTS
PAGE
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Section 1. Definitions................................................. 1
Section 2. Methodology for Calculations................................ 5
Section 3. Restrictions on Sales of Stock by Stockholders.............. 6
Section 4. Rights of First Offer....................................... 6
Section 5. Tag-Along Rights............................................ 8
Section 6. Bring-Along Rights.......................................... 9
Section 7. Preemptive Rights........................................... 11
Section 8. Corporation Governance...................................... 13
Section 9. Major Transactions.......................................... 15
Section 10. Right to Cause IPO......................................... 17
Section 11. Overcall Reserve........................................... 17
Section 12. Certain Covenants.......................................... 18
Section 13. Fees....................................................... 20
Section 14. Legend..................................................... 20
Section 15. Representations and Warranties............................. 21
Section 16. Regulatory Matters; Cooperation............................ 22
Section 17. Duration of Agreement...................................... 23
Section 18. Further Assurances......................................... 23
Section 19. Amendment and Waiver....................................... 24
Section 20. Severability............................................... 24
Section 21. Entire Agreement........................................... 24
Section 22. Successors and Assigns..................................... 24
Section 23. Counterparts............................................... 24
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Section 24. Remedies................................................... 24
Section 25. Notices.................................................... 25
Section 26. Governing Law; Submission to Jurisdiction;
Waiver of Jury Trial..................................... 26
Section 27. Descriptive Headings....................................... 27
Section 28. Construction............................................... 27
Section 29. Survival of Representations and Warranties................. 27
Section 30. No Inconsistent Agreements................................. 27
Section 31. Conflicting Agreements..................................... 27
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STOCKHOLDERS' AGREEMENT
THIS AGREEMENT (this "AGREEMENT") is made as of July 22, 2002 among BPC HOLDING
CORPORATION, a Delaware corporation (the "CORPORATION"), GS CAPITAL PARTNERS
2000, L.P., a Delaware limited partnership ("GSCP"), GS CAPITAL PARTNERS 2000
OFFSHORE, L.P. ("GSCP OFFSHORE"), GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG ("GS GERMANY"), STONE STREET FUND 2000, L.P. ("STONE STREET"),
BRIDGE STREET SPECIAL OPPORTUNITIES FUND 2000, L.P. ("BRIDGE STREET"), XXXXXXX
XXXXX DIRECT INVESTMENT FUND 2000, L.P. ("GSDI"), and GS CAPITAL PARTNERS 2000
EMPLOYEES FUND, L.P. ("GS EMPLOYEES", collectively with GSCP, GSCP Offshore, GS
Germany, Stone Street, Bridge Street and GSDI, the "GSCP PARTIES"), X.X. XXXXXX
PARTNERS (BHCA), L.P. ("JPMP (BHCA)"), X.X. XXXXXX PARTNERS GLOBAL INVESTORS,
L.P. ("GLOBAL INVESTORS"), X.X. XXXXXX PARTNERS GLOBAL INVESTORS (CAYMAN), L.P.
("GLOBAL INVESTORS CAYMAN"), X.X. XXXXXX PARTNERS GLOBAL INVESTORS (CAYMAN) II,
L.P. ("GLOBAL INVESTORS CAYMAN II") and X.X. XXXXXX PARTNERS GLOBAL INVESTORS A,
L.P. ("GLOBAL INVESTORS A", collectively with JPMP (BHCA), Global Investors,
Global Investors Cayman, Global Investors Cayman II, the "JPMP PARTIES").
W I T N E S S E T H :
WHEREAS, the Corporation, the GSCP Parties and various other parties
entered into an Agreement and Plan of Merger dated May 25, 2002 (the "MERGER
AGREEMENT"), pursuant to which XX Xxxxx Acquisition Corp., a Delaware
corporation, ("ACQUISITION CORP") shall merge with and into the Corporation (the
"MERGER");
WHEREAS, the parties hereto deem it to be in their best interests to
enter into an agreement establishing and setting forth their agreement with
respect to certain rights and obligations associated with ownership of shares of
capital stock of the Corporation;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
DEFINITIONS.
As used herein, the following terms shall have the following meanings:
"AFFILIATE" means (i) with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person or (ii) with respect to any
individual, shall also mean the spouse, parent, sibling, child, step-child,
grandchild, niece or nephew of such Person, or the spouse thereof; provided,
however, that neither the Corporation nor any Person controlled by the
Corporation shall be deemed to be an Affiliate of any Stockholder.
"XXXXX BOARD" means the board of directors of Xxxxx Plastics
Corporation.
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"BOARD" means the board of directors of the Corporation.
"CERTIFICATE OF INCORPORATION" means the Certificate of Incorporation
of the Corporation.
"COMMON STOCK" means the shares of Common Stock, par value $.01 per
share, of the Corporation.
"COMMON STOCK EQUIVALENTS" means securities convertible into, or
exchangeable or exercisable for, shares of Common Stock, including without
limitation any options, warrants or rights to acquire such convertible
securities.
"CORPORATION VALUE" shall mean with respect to any public offering of
Common Stock, the amount obtained by multiplying the total number of shares of
Common Stock outstanding immediately prior to such public offering by the gross
offering price per share of Common Stock sold in such offering.
"DOCUMENTS" means this Agreement, the Registration Rights Agreement,
the Merger Agreement, the subscription agreement between the GSCP Parties and
Acquisition Corp, dated 22, 2002 and the subscription agreement between the JPMP
Parties and Acquisition Corp, dated 22, 2002.
"EXCLUDED SECURITIES" means (a) options issued by the Corporation
pursuant to any stock option or similar plan (and any shares of Common Stock
issuable thereunder) (including, without limitation, any shares of Common Stock
subject to options forfeited under such plan which become subject to new options
reissued by the Corporation pursuant to such plan) and stock issued by the
Corporation to any employee or director at the Company or its Subsidiaries
pursuant to any stock purchase plan, in each case as approved by the Board where
the primary purpose of such issuance is not to raise additional equity capital
for the Corporation, (b) shares of Stock issued upon exercise or conversion of
any Common Stock Equivalents or any security with respect to which the
provisions of Section 7 apply, (c) shares of the Corporation's capital stock or
Common Stock Equivalents issued in connection with business acquisitions,
strategic partnerships and alliances, and financing transactions (other than
shares of Stock issued to parties unrelated to such transactions, in exchange
for cash, to provide equity financing for such transactions), (d) shares of
Common Stock issued in connection with a public offering of Common Stock, and
(e) any capital stock issued as a stock dividend or upon any stock split or
other subdivision or combination of shares of the Corporation's capital stock,
(f) shares of Common Stock issued pursuant to Section 11 hereof, (g) shares of
Common Stock issued pursuant to the exercise of preemptive rights granted by the
Management Stockholders Agreement, and (h) shares of Common Stock issued to
employees to the Corporation and its Subsidiaries pursuant to letter agreements
entered into between such employees and the Corporation prior to or as of the
date hereof.
"GROUP" means two or more Persons who agree to act together for the
purpose of acquiring, holding, voting or disposing of Stock.
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"IPO" means the closing of the sale of shares of Common Stock in a
bona fide, firm commitment, underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended
(the "SECURITIES ACT").
"MANAGEMENT STOCKHOLDERS AGREEMENT" means the stockholders agreement,
dated as of the date hereof, among the Corporation and those employees of the
Corporation or its Subsidiaries who hold Stock.
"OTHER STOCKHOLDERS" means, for purposes of Section 4, with respect to
any selling Stockholder, all Stockholders other than such selling Stockholder
and its Affiliates and, for purposes of Section 6, all Stockholders other than
the GSCP Parties.
"PERSON" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political
subdivisions thereof.
"PROPORTIONATE PERCENTAGE" means, as to each Other Stockholder, the
quotient obtained (expressed as a percentage) by dividing (A) the number of
shares of Common Stock owned by such Other Stockholder on the first day of the
Section 4(b) Acceptance Period (as defined in Section 4(b) below) by (B) the
aggregate number of shares of Common Stock owned on the first day of the Section
4(b) Acceptance Period by all Other Stockholders who exercise their option to
purchase Refused Stock (as defined in Section 4(b) below).
"PUBLIC SALE" means a Sale of Stock pursuant to a bona fide
underwritten public offering pursuant to an effective registration statement
filed under the Securities Act or pursuant to Rule 144 under the Securities Act
(other than in a privately negotiated Sale).
"QUALIFIED IPO" means any underwritten public offering of Common Stock
(pursuant to an effective registration statement filed under the Securities
Act), (a) resulting in at least $100,000,000 of gross proceeds to the
Corporation and (b) reflecting a Corporation Value of $500,000,000 or more.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of the date hereof, among the Corporation, the GSCP Parties
and the JPMP Parties.
"SELL" means to sell, or in any other way directly or indirectly
transfer, assign, distribute, pledge, encumber or otherwise dispose of, either
voluntarily or involuntarily; and the terms Sale, Selling and Sold shall have
meanings correlative to the foregoing.
"STOCK" means (i) any shares of Common Stock and (ii) any Common Stock
Equivalents, in each case, whether owned on the date hereof or acquired
hereafter.
"STOCKHOLDERS" means the parties to this Agreement (other than the
Corporation) and any other subsequent holder of Stock who agrees to be bound by
the terms of this Agreement.
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"SUBSIDIARY" means with respect to any Person, (i) any corporation,
partnership or other entity of which shares of capital stock or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other similar managing body of such corporation, partnership or
other entity are at the time owned or controlled by such Person, or (ii) the
management of which is otherwise controlled, directly or indirectly, through one
or more intermediaries by such Person.
ADDITIONAL DEFINED TERMS. The following terms have the respective meanings set
forth in the relevant Section referred to below throughout this Agreement.
TERM SECTION
Accepting Holder 7(c)(i)
Acquisition Corp Recitals
Agreement Preamble
All or Nothing Sale 4(a)
Available Amount 7(c)(i)
Available Securities 7(c)(iii)
Banking Regulations 16(e)
Corporation Preamble
Delay Period 7(d)
Delayed Notice 7(d)
Director 8.4
Exit Sale 6(a)
First Offer Shares 4(b)
GAAP 12.2(a)
Global Investors A Preamble
Global Investors Cayman II Preamble
Global Investors Cayman Preamble
Global Investors Preamble
GS Employees Preamble
GS Germany Preamble
GSCP Directors 8.1(a)
GSCP Offshore Preamble
GSCP Parties Preamble
GSCP Preamble
HSR Act 4(d)
Institutional Investor 7(c)(i)
Issuance 7(a)
Issue 7(a)
JPMP (BHCA) Preamble
JPMP Directors 8.1(b)
JPMP Parties Preamble
Law 16(e)
Litigation 25
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Management Director 8.1(a)
Management Letter 12.2(a)
Merger Recitals
Merger Agreement Recitals
Monthly Financials 12.2(a)
Objected Reserve Call 11
Offered Securities 7(a)
Other Buyers 7(c)(iii)
Overcall Notice 11
Overcall Percentage 11
Overcall Reserve Amount 11
Overcall Reserve 11
Preemptive Holder 7(a)
Preemptive Offer 7(a)
Prior Purchase Amounts 11
Pro Rata Share 7(a)
Quarterly Financials 12.2(b)
Refused Stock 4(b)
Regulatory Problem 16(e)
Remaining Securities 7(c)
Remaining Shares 4(b)
Sale Period 4(c)
Sale Process 6(e)
SBA 16(e)
SBA Regulations 16(e)
SEC 12.2(b)
Section 4 Offer Notice 4(a)
Section 4 Offer 4(a)
Section 4(a) Acceptance Period 4(a)
Section 4(b) Acceptance Period 4(b)
Section 5 Acceptance Period 5(a)(i)
Section 5 Notice 5(a)(i)
Section 5 Offer 5(a)(i)
Section 5 Other Stockholder 5(a)(i)
Section 5 Purchaser 5(a)(i)
Section 5 Seller 5(a)(i)
Section 6 Buyer 6(a)
Section 6 Notice 6(b)
Section 7 Notice of Acceptance 7(b)
Section 7 Offer Notice 7(a)
Subject Stock 4(a)
SECTION 2. METHODOLOGY FOR CALCULATIONS.
For all purposes of this Agreement, the proposed Sale or the Sale of a Common
Stock Equivalent shall be treated as the proposed Sale or the Sale of the shares
of Common Stock into which such Common Stock Equivalent can be converted,
exchanged or exercised. Except
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as otherwise expressly provided in this Agreement, for purposes of calculating
(i) the amount of outstanding Common Stock as of any date and (ii) the amount of
Common Stock owned by a Person hereunder (and the percentage of the outstanding
Common Stock owned by a Person), all Common Stock Equivalents shall be treated
as having been converted, exchanged or exercised. All holdings of Common Stock
by Persons who are Affiliates of each other shall be aggregated for purposes of
meeting any threshold tests under this Agreement.
SECTION 3. RESTRICTIONS ON SALES OF STOCK BY STOCKHOLDERS.
(a) Prior to a Qualified IPO, no Stockholder shall Sell any Stock, whether owned
on the date hereof or acquired hereafter, other than:
(i) Sales of Stock in accordance with Sections 4, 5 and 6 hereof;
(ii) Sales to an Affiliate; or
(iii) upon the prior written consent of the Board including, with respect to any
Sale of Stock by any of the GSCP Parties, at least one JPMP Director.
(b) Notwithstanding anything contained in this Agreement to the contrary, any
transferee of Stock pursuant to a Sale under Section 3(a) who is not a
Stockholder shall upon consummation of, and as a condition to, such Sale (i)
execute, and agree to be bound by the terms of, this Agreement and shall
thereafter be deemed a Stockholder, with the same rights and obligations,
subject to Section 8.9, of the Stockholder which is the transferor of the Stock,
for all purposes of this Agreement, and (ii) execute and deliver a certificate
and such other materials as shall be necessary to establish to the reasonable
satisfaction of the GSCP Parties and, with respect to any Sale of Stock by any
of the GSCP Parties, the JPMP Parties that (A) the transferee is purchasing the
Stock for its own account, for investment and not with a view to the
distribution thereof, and (B) that such Sale is otherwise being made in
compliance with all federal and state law (including, without limitation,
federal and state securities laws and blue sky laws).
(c) Any Sale or attempted Sale of Stock in violation of any provision of this
Agreement shall be void, and the Corporation shall not record such Sale on its
books or treat any purported transferee of such Stock as the owner of such Stock
for any purpose.
SECTION 4. RIGHTS OF FIRST OFFER.
Subject to Section 4(e) and prior to a Qualified IPO, in addition to and not in
limitation of any other restrictions on Sales of Stock contained in this
Agreement, any Sale of Stock by each Stockholder shall be consummated only in
accordance with the following procedures:
(a)The selling Stockholder shall first deliver to the Corporation and the Other
Stockholders a written notice (a "SECTION 4 OFFER NOTICE"), which shall (i)
state the selling Stockholder's intention to sell Stock to one or more Persons,
the amount and type of Stock to be sold (the "SUBJECT
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STOCK"), the purchase price therefor and a summary of the other material terms
of the proposed Sale and (ii) offer the Corporation and the Other Stockholders
the option to acquire all or a portion of such Subject Stock upon the terms and
subject to the conditions of the proposed Sale as set forth in the Section 4
Offer Notice (the "SECTION 4 OFFER"), provided that such Section 4 Offer may
provide that it must be accepted by the Corporation and the Other Stockholders
on an all or nothing basis (an "ALL OR NOTHING SALE"). The Section 4 Offer shall
remain open and irrevocable for the periods set forth below (and, to the extent
the Section 4 Offer is accepted during such periods, until the consummation of
the sale contemplated by the Section 4 Offer). The Corporation shall have the
right and option, for a period of 30 days after delivery of the Section 4 Offer
Notice (the "SECTION 4(A) ACCEPTANCE PERIOD"), to accept all or any part of the
Subject Stock at the purchase price and on the terms stated in the Section 4
Offer Notice. Such acceptance shall be made by delivering a written notice to
the selling Stockholder and the Other Stockholders within the Section 4(a)
Acceptance Period.
(b) If the Corporation shall fail to accept all of the Subject Stock offered for
Sale pursuant to, or shall reject in writing, the Section 4 Offer (the
Corporation being required to notify in writing the selling Stockholder and the
Other Stockholders of its rejection or failure to accept in the event of the
same), then, upon the earlier of the expiration of the Section 4(a) Acceptance
Period or the giving of such written notice of rejection or failure to accept
such offer by the Corporation, the Other Stockholders shall have the right and
option, for a period of 30 days thereafter (the "SECTION 4(B) ACCEPTANCE
PERIOD"), to accept all or any part of the Subject Stock so offered and not
accepted by the Corporation (the "REFUSED STOCK") at the purchase price and on
the terms stated in the Section 4 Offer Notice; provided, however, that, if the
Section 4 Offer contemplated an All or Nothing Sale, the Other Stockholders may
accept, during the Section 4(b) Acceptance Period, all, but not less than all,
of the Refused Stock, at the purchase price and on the terms stated in the
Section 4 Offer Notice. Such acceptance shall be made by delivering a written
notice to the Corporation and the selling Stockholder within the Section 4(b)
Acceptance Period specifying the maximum number of shares such Other Stockholder
will purchase (the "FIRST OFFER SHARES"). If, upon the expiration of the Section
4(b) Acceptance Period, the aggregate amount of First Offer Shares exceeds the
amount of Refused Stock, the Refused Stock shall be allocated among the Other
Stockholders as follows: (i) First, each other Stockholder shall be entitled to
purchase no more than its Proportionate Percentage of Refused Stock; (ii)
Second, if any shares of Refused Stock have not been allocated for purchase
pursuant to (i) above (the "REMAINING SHARES"), each Other Stockholder which had
offered to purchase a number of shares of Refused Stock in excess of the amount
of stock allocated for purchase to it in accordance with previous allocations of
such shares of Refused Stock, shall be entitled to purchase an amount of
Remaining Shares equal to no more than its Proportionate Percentage of the
Remaining Shares; and (iii) Third, the process set forth in (ii) above shall be
repeated with respect to any shares of Refused Stock not allocated for purchase
until all shares of Refused Stock are allocated for purchase.
(c) If effective acceptance shall not be received pursuant to Sections 4(a)
and/or 4(b) above with respect to all of the Subject Stock offered for sale
pursuant to the Section 4 Offer Notice, then the selling Stockholder may Sell
all or any portion of the Stock so offered for sale and not so accepted (or, in
the case of an All or Nothing Sale, all of the Subject
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Stock offered for sale pursuant to the Section 4 Offer Notice), at a price not
less than the price, and on terms not more favorable to the purchaser thereof
than the terms, stated in the Section 4 Offer Notice at any time within 90 days
after the expiration of the Section 4(b) Acceptance Period (the "SALE PERIOD").
To the extent the selling Stockholder Sells all or any portion of the Stock so
offered for Sale during the Sale Period, the selling Stockholder shall promptly
notify the Corporation, and the Corporation shall promptly notify each Other
Stockholder, as to (i) the number of shares of Stock, if any, that the selling
Stockholder then owns, (ii) the number of shares of Stock that the selling
Stockholder has sold, (iii) the terms of such Sale and (iv) the name of the
owner(s) of any shares of Stock sold. In the event that all of the Subject Stock
is not sold by the selling Stockholder during the Sale Period, the right of the
selling Stockholder to Sell such unsold Subject Stock shall expire and the
obligations of this Section 4 shall be reinstated; provided, however, that, in
the event that the selling Stockholder determines, at any time during the Sale
Period, that the sale of all of the Stock on the terms set forth in the Section
4 Offer Notice is impractical, the selling Stockholder may terminate the offer
and reinstate the procedure provided in this Section 4 without waiting for the
expiration of the Sale Period.
(d) All Sales of Subject Stock to the Corporation and/or the Other Stockholders
subject to any Section 4 Offer Notice shall be consummated contemporaneously at
the offices of the Corporation on the later of (i) a mutually satisfactory
business day within 30 days after the expiration of the Section 4(a) Acceptance
Period or the Section 4(b) Acceptance Period, as applicable, and (ii) the fifth
business day following the expiration or termination of all waiting periods, if
any, under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended
(the "HSR ACT") or receipt of such other regulatory approvals, applicable to
such Sales, or at such other time and/or place as the parties to such Sales may
agree. The delivery of certificates or other instruments evidencing such Subject
Stock duly endorsed for transfer shall be made on such date against payment of
the purchase price for such Subject Stock.
(e) The requirements of this Section 4 shall not apply to (i) any Sale of Stock
pursuant to clause (ii) of Section 3(a) hereof, (ii) any Sale of Stock pursuant
to Section 6 of this Agreement, (iii) any other Sale of Stock as to which the
Corporation and the Other Shareholders waive compliance or (iv) a Sale of 50% or
more of the outstanding shares of Stock of the Corporation.
SECTION 5. TAG-ALONG RIGHTS.
Subject to Section 5(c) and prior to a Qualified IPO, and except for any Sale of
Stock (i) pursuant to clause (ii) of Section 3(a) hereof, (ii) pursuant to the
exercise of piggyback registration rights granted by the Registration Rights
Agreement or (iii) to the Corporation and/or any Stockholder pursuant to Section
4, each Stockholder shall not, alone or in concert with any other Stockholders,
in any transaction or series of transactions, Sell any Stock to another Person
or Group, except in accordance with the following procedures:
(a) Any Stockholder or Stockholders proposing to Sell Stock (for purposes of
this Section, the "SECTION 5 SELLER") shall first deliver to each other
Stockholder (a "SECTION 5 OTHER STOCKHOLDER") a written notice (the "SECTION 5
NOTICE"), which shall specifically identify the proposed transferee (the
"SECTION 5 PURCHASER"), the amount and type of Stock proposed to be sold, the
purchase price therefor, and a summary of the
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other material terms and conditions of the proposed sale, and shall contain an
offer (the "SECTION 5 OFFER") by the Section 5 Purchaser to each Section 5 Other
Stockholder, which shall be irrevocable for a period of seven days after the
delivery thereof (the "SECTION 5 ACCEPTANCE PERIOD") (and, to the extent the
Section 5 Offer is accepted during such seven day period, until the closing of
the Sale contemplated by the Section 5 Offer), to purchase the Stock (as
calculated below) of such Section 5 Other Stockholder at the same price per
share (and, in the case of Common Stock Equivalents, such price per share
multiplied by the number of shares of Common Stock issuable upon the conversion,
exchange or exercise of such Common Stock Equivalent subject to reduction, if
appropriate, for the amount per share of the exercise or purchase price (if any)
of such Common Stock Equivalent) to be paid to, and upon the same terms and
conditions as, the Section 5 Seller. A copy of the Section 5 Notice shall
promptly be sent to the Corporation. Notice of a Section 5 Other Stockholder's
intention to accept a Section 5 Offer, in whole or in part, shall be evidenced
by a writing signed by such Section 5 Other Stockholder and delivered to the
Section 5 Purchaser and the Corporation prior to the end of the Section 5
Acceptance Period, setting forth the number of shares of Stock that such Section
5 Other Stockholder elects to Sell; provided, however, that such Section 5 Other
Stockholder may only sell up to that number of shares of Stock (calculated in
accordance with Section 2) as shall equal the product of (x) a fraction, the
numerator of which is the number of shares of Stock owned by the Section 5 Other
Stockholder as of the date of such proposed sale and the denominator of which is
the aggregate number of outstanding shares of Stock as of the date of such
proposed sale, and (y) the aggregate number of shares of Stock proposed to be
purchased by the Section 5 Purchaser. The number of shares of Stock proposed to
be sold by the Section 5 Seller shall be reduced if and to the extent necessary
to provide for such sale of Stock by such Section 5 Other Stockholders electing
to exercise their right to Sell Stock under this Section 5. If effective
acceptance by any Section 5 Other Stockholders has been received pursuant to
this paragraph (a), then the Section 5 Seller shall not consummate such Sale of
Stock without participation of such Section 5 Other Stockholders.
(b) All Sales of Stock to the Section 5 Purchaser shall be consummated
contemporaneously at the offices of the Corporation on a mutually satisfactory
business day as soon as practicable, but in no event more than 30 days after the
expiration of the Section 5 Acceptance Period, or, if later, the fifth business
day following the receipt of all regulatory approvals, if any applicable to such
Sales. The delivery of certificates or other instruments evidencing such Stock
duly endorsed for transfer shall be made on such date against payment of the
purchase price for such Stock.
(c) Notwithstanding anything to the contrary contained herein, any Section 5
Seller shall, prior to complying with the provisions of this Section 5, shall
have first complied with the provisions of Section 4 hereof.
SECTION 6. BRING-ALONG RIGHTS.
(a) Subject to Section 6(e), if the GSCP Parties (i) propose to Sell
substantially all of the then-outstanding shares of Stock held by the GSCP
Parties to a Person that is not an Affiliate of any GSCP Party, (ii) request
that the Corporation consolidate or merge with any Person that is not an
Affiliate of any GSCP Party (in a consolidation or merger in which stockholders
of the Corporation receive cash or securities of any other
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person upon such consolidation or merger) or (iii) request that the Corporation
Sell all or substantially all of the assets of the Corporation and its
Subsidiaries, to a Person that is not an Affiliate of any GSCP Party (the Person
referred to in clause (i), clause (ii) or this clause (iii) being referred to
herein as the "SECTION 6 BUYER" and any of the transactions referred to in
clause (i), clause (ii) or this clause (iii) being referred to herein as an
"EXIT SALE") then the Other Stockholders shall be obligated to Sell all, but not
less than all, of their Stock, at the same price per share to be paid to, and
upon the same terms and conditions as, the GSCP Parties, to the Section 6 Buyer
(in the case of clause (i) of Section 6(a)) and/or to vote (or consent in
writing, as the case may be) in favor of the merger or consolidation or sale of
assets (in the case of clause (ii) or (iii) of Section 6(a)), and shall in all
other respects support the transaction contemplated by the Exit Sale and shall
be obligated to cooperate in the consummation of the transaction contemplated
thereby and shall execute all documents reasonably requested by the Corporation
or the GSCP Parties containing the terms and conditions of the Exit Sale;
provided, however, that no Stockholder shall be required to make any
representations or warranties in any agreement relating to an Exit Sale other
than representations and warranties relating to such Stockholder and the
ownership of its Common Stock that are customary in similar transactions
including, without limitation, representations and warranties relating to title,
authorization and execution and delivery, nor shall any Stockholder be required
to provide indemnification with respect to any representations or warranties
made by any other Stockholder. In addition, the Other Stockholders shall not
exercise any rights of appraisal or dissenters rights that such Stockholder may
have (whether under applicable law or otherwise) or could potentially have or
acquire in connection with any Exit Sale or any proposal that is necessary or
desirable to consummate the Exit Sale.
(b) The rights set forth in Section 6(a) shall be exercised by giving written
notice (the "SECTION 6 NOTICE") to each Stockholder setting forth in detail the
terms of the proposed Exit Sale and the proposed closing date of the Exit Sale.
(c) All Sales of Stock to the Section 6 Buyer (in the case of clause (i) of
Section 6(a)) pursuant to this Section 6 shall be consummated contemporaneously
at the offices of the Corporation on the later of (i) a business day not less
than 15 or more than 60 days after the Section 6 Notice is delivered to the
Stockholders or (ii) the fifth business day following the expiration or
termination of all waiting periods under the HSR Act or receipt of other
regulatory approvals applicable to such Sales, or at such other time and/or
place as the parties to such Sales may agree. The delivery of certificates or
other instruments evidencing such Stock duly endorsed for transfer shall be made
on such date against payment of the purchase price for such Stock.
(d) Notwithstanding anything to the contrary contained herein, any Sale of Stock
effected as an Exit Sale shall be exempt from the provisions of Sections 4 and 5
hereof.
(e) Any Exit Sale shall be conducted on an arms-length basis and, prior to
effecting an Exit Sale, except for an Exit Sale in response to a bona fide
unsolicited offer, the Corporation shall engage in a sale process customary for
similar transactions (a "SALE PROCESS"), the manner of which (and only the
manner of which) shall be subject, so long as JPMP owns at least 15% of the
Common Stock it owns as of the date hereof, to the reasonable prior
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approval of the JPMP Parties, which approval shall not be unreasonably withheld
or delayed. For purposes of clarity, the JPMP Parties' approval shall not be
required to initiate a Sale Process, select an investment banking firm to
conduct the Sale Process (so long as such investment banking firm is a
nationally recognized investment banking firm with experience in such
transactions), select the Section 6 Buyer, negotiate, or agree to, the terms of,
or execute definitive documentation relating to, an Exit Sale or otherwise
consummate an Exit Sale.
SECTION 7. PREEMPTIVE RIGHTS.
(a) Subject to Section 7(d), prior to a Qualified IPO, and except for Excluded
Securities, the Corporation shall not issue, Sell or exchange, or agree to
issue, Sell or exchange (collectively, "ISSUE," and any issuance, sale or
exchange resulting therefrom, an "ISSUANCE") any Stock, unless the Corporation
shall have first given written notice (the "SECTION 7 OFFER NOTICE") to each
Stockholder (each a "PREEMPTIVE HOLDER") which shall (a) state the Corporation's
intention to Issue the Stock, the amount to be Issued, the terms of such
securities, the purchase price therefor and a summary of the other material
terms of the proposed Issuance and (b) offer (a "PREEMPTIVE OFFER") to Issue to
each Preemptive Holder up to such Preemptive Holder's Pro Rata Share (as defined
below) of such securities (with respect to each Preemptive Holder, the "OFFERED
SECURITIES") upon the terms and subject to the conditions set forth in the
Section 7 Offer Notice, which Preemptive Offer by its terms shall remain open
for a period of 30 days from the date it is delivered by the Corporation to the
Preemptive Holder (and, to the extent the Preemptive Offer is accepted during
such 30-day period, until the closing of the Sales contemplated by the
Preemptive Offer). "PRO RATA SHARE," for purposes of this Section, shall mean
the quotient obtained by dividing (i) the number of shares of Stock, as
determined in accordance with Section 2, owned by that Preemptive Holder on the
date of the Preemptive Offer, by (ii) the total number of shares of Stock
outstanding, as determined by Section 2 hereof, on the date of the Preemptive
Offer.
(b) Notice of a Preemptive Holder's intention to accept a Preemptive Offer, in
whole or in part, shall be evidenced by a writing signed by the Preemptive
Holder and delivered to the Corporation prior to the end of the 30-day period of
such Preemptive Offer (each, a "SECTION 7 NOTICE OF ACCEPTANCE"), setting forth
such portion of the Offered Securities that the Preemptive Holder elects to
purchase.
(c)(i) In the event that a Section 7 Notice of Acceptance is not given by a
Preemptive Holder accepting all the Offered Securities, the Corporation shall
have 45 days (or the completion of all required regulatory approvals, including,
without limitation, pursuant to the HSR Act, so long as an agreement with
respect to such Issuance is entered into within such 45-day period) following
the earlier of (A) delivery of the Section 7 Notice of Acceptance and (B) the
expiration of the 30-day period referred to in clause (b) above if no Section 7
Notice of Acceptance is delivered, to Issue all or any part of such remaining
Offered Securities not covered by the Section 7 Notice of Acceptance (the
"REMAINING SECURITIES") to any other Person or Persons, but only upon terms and
conditions, including, without limitation, unit price and interest rates, which
are no more favorable, in the aggregate, to such other Person or Persons or less
favorable to the Corporation than those set forth in the Preemptive Offer;
provided, however, that if the proposed Issuance is for Stock with a purchase
price in excess of $30,000,000 (the excess of the purchase price
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for the proposed Issuance over $30,000,000, the "AVAILABLE AMOUNT") and is to a
private equity fund, hedge fund or similar institutional holder (an
"INSTITUTIONAL INVESTOR"), then, prior to Issuing any of the Remaining
Securities to any other Person or Persons, the Corporation shall offer the
Remaining Securities, or, if the purchase price of the Remaining Securities is
greater than the Available Amount, a portion of the Remaining Securities with a
purchase price equal to the Available Amount, to each Preemptive Holder who has
elected to purchase all of its Offered Securities (each, an "ACCEPTING HOLDER")
pro rata, based upon the number of shares of Common Stock held by each Accepting
Holder in relation to the total number of shares of Common Stock held by all
Accepting Holders. By way of example, in the case of a proposed Issuance of
Stock with a purchase price of $31,000,000, to an Institutional Investor, if the
purchase price of the Remaining Securities were $10,000,000, the Corporation
would offer stock with a purchase price of $1,000,000 to the Accepting Holders.
(ii) If the Corporation does not consummate the Issuance of all or part of the
Remaining Securities to such other Person or Persons within the 45-day period
referred to in clause (c) above, the right provided hereunder shall be deemed to
be revived and such securities shall not be offered unless first reoffered to
the Preemptive Holders in accordance with this Section 7.
(iii) Upon the closing of the Issuance to such other Person or Persons (the
"OTHER BUYERS") of all or part of the Remaining Securities, the Preemptive
Holder shall purchase from the Corporation, and the Corporation shall Issue to
the Preemptive Holder, the Offered Securities covered by the Section 7 Notice of
Acceptance delivered to the Corporation by the Preemptive Holder, together with
any securities to be purchased pursuant to the proviso in the next to last
sentence of Section 7(c)(i) ("AVAILABLE SECURITIES"), on the terms specified in
the Preemptive Offer. The purchase by the Preemptive Holder of any Offered
Securities and Available Securities, as the case may be, is subject in all cases
to the execution and delivery by the Corporation and the Preemptive Holder of a
purchase agreement relating to such Offered Securities and Available Securities,
as the case may be, in form and substance similar in all material respects to
the extent applicable to that executed and delivered between the Corporation and
the Other Buyers and the Corporation shall deliver certificates or other
instruments evidencing such Stock duly endorsed for transfer on such date
against payment of the purchase price for such Stock.
(d) The Corporation shall not be required to provide the Section 7 Offer Notice,
and instead may complete the Issuance, provided that the Corporation sets aside
the number of shares of Stock as would be purchasable by the Preemptive Holders
under this Section 7 if the Section 7 Offer Notice had been given with respect
to such Issuance for the Delay Period (as defined below). In such event, prior
to or after (but no later than 15 days after) the closing of such transaction,
the Corporation shall notify (a "DELAYED NOTICE") the Stockholders that they may
exercise preemptive rights under this Section 7 for Offered Securities, in an
amount calculated in accordance with Section 7(a) as if such notice had been
delivered 15 days prior to the Closing of the Issuance, for a 15-day period
after the giving of such notice (the "DELAY PERIOD"). If such rights are
exercised all other provisions of this Section 7 shall apply to such
Stockholder's purchase of such Stock, provided that the closing of such
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Offered Securities shall take place, on such date as is set by the Corporation
within 25 days after the Delayed Notice.
(e) The Corporation shall, as a condition to the Issuance, require the recipient
of the newly Issued Stock to execute, and agree to be bound by the terms of this
Agreement and shall thereafter be deemed a Stockholder.
SECTION 8. CORPORATION GOVERNANCE.
8.1 BOARD REPRESENTATION. From and after the date hereof, the Board and the
Xxxxx Board shall consist of seven directors or such greater number as may be
approved by the Board in accordance with Section 9.
(a) Prior to a Qualified IPO, GSCP shall have the right to designate five
persons to serve on each of the Board and the Xxxxx Board (such members, the
"GSCP DIRECTORS"), one of which shall be a member of management of the
Corporation or Xxxxx (such member, the "MANAGEMENT DIRECTOR").
(b) Prior to a Qualified IPO, the JPMP Parties shall have the right to designate
two persons to serve on each of the Board and the Xxxxx Board (such members, the
"JPMP DIRECTORS"), one of which shall be designated by Global Investors;
provided that (i) if the JPMP Parties shall sell 40% of the shares of Stock
owned by them in the aggregate on the date hereof, the JPMP Parties shall
thereafter have the right to designate only one person to serve on each of the
Board and the Xxxxx Board and (ii) if the JPMP Parties shall sell 80% of the
shares of Stock owned by them in the aggregate on the date hereof, the JPMP
Parties shall no longer have any right to designate any persons to serve on
either of the Board or the Xxxxx Board.
(c) Each Stockholder shall vote all of its shares entitled to vote for members
of the Board and shall take all other necessary or desirable actions within his
or its control (including, without limitation, attending all meetings in person
or by proxy for purposes of obtaining a quorum and executing all written
consents in lieu of meetings, as applicable), and the Corporation shall take all
necessary and desirable actions within its control (including, without
limitation, calling special Board and stockholder meetings), to effectuate the
provisions of this Section 8 including, but not limited to, the election of the
GSCP Directors and the JPMP Directors.
8.2 COMMITTEES.
(a) The Corporation shall take all actions necessary to cause (i) to the extent
designated by GSCP, at least two GSCP Directors (other than the Management
Director), (ii) to the extent designed by the JPMP Parties, one JPMP Director to
be appointed to each committee of the Board and the Xxxxx Board and (iii) to the
extent designated by GSCP, the Management Director to be appointed to each
committee (other than the audit and compensation committees) of the Board and
the Xxxxx Board.
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(b) If any GSCP Director serving on any committee of the Board or the Xxxxx
Board shall cease for any reason to serve as a member of, or shall otherwise be
unable to fulfill his duties on, any such committee, he or she shall be
succeeded by another Person designated by GSCP. If any JPMP Director serving on
any committee of the Board or the Xxxxx Board shall cease for any reason to
serve as a member of, or shall otherwise be unable to fulfill his duties on, any
such committee he or she shall be succeeded by another Person designated by the
JPMP Parties.
8.3 VACANCIES; REMOVAL.
(a) Subject to Section 8.3(b), each GSCP Director and each JPMP Director shall
hold his office until his death or until his successor shall have been duly
elected and qualified. If any GSCP Director shall cease to serve as a director
of the Corporation for any reason, the vacancy resulting thereby shall be filled
by another Person designated by GSCP. If any of the JPMP Directors shall cease
to serve as a director of the Corporation for any reason, the vacancy resulting
thereby shall be filled by another Person designated by the JPMP Parties.
(b) The GSCP Directors or the JPMP Directors shall not be removed from office
without the consent of the GSCP Parties or the JPMP Parties, as applicable. Any
GSCP Director shall be removed from office at any time, with or without cause,
at the request of the GSCP Parties; and any JPMP Director shall be removed from
office at any time, with or without cause, at the request of the JPMP Parties.
8.4 EXPENSES. The Corporation shall pay the reasonable out-of-pocket expenses
incurred by each director on the Board and the Xxxxx Board (any such director, a
"DIRECTOR") in connection with performing his duties as a member of the Board
and the Xxxxx Board, including without limitation the reasonable out-of-pocket
expenses incurred by such person for attending meetings of the Board and the
Xxxxx Board or any committee thereof.
8.5 BOARD MEETINGS.
(a) The Corporation shall take all necessary actions, including, without
limitation, causing its by-laws to be duly amended, to allow any Director to
telephonically attend any meeting of the Board and the Xxxxx Board (and any
committee thereof).
(b) The Corporation shall call, and shall use its reasonable best efforts to
have, regular meetings of the Board or the Xxxxx Board, as the case may be, not
less frequently than quarterly.
8.6 DIRECTORS' INDEMNIFICATION.
(a) The Corporation shall obtain and cause to be maintained in effect, with
financially sound insurers, a policy of directors' and officers' liability
insurance covering each of the Directors in an amount of $5,000,000 or more and
upon such terms as are reasonably acceptable to the GSCP Parties and the JPMP
Parties.
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(b) The Certificate of Incorporation, by-laws and other organizational documents
of the Corporation and each of its Subsidiaries shall at all times, to the
fullest extent permitted by law, provide for indemnification of, advancement of
expenses to, and limitation of the personal liability of, the members of the
Board and the Xxxxx Board and such other persons, if any, who, pursuant to a
provision of such Certificate of Incorporation, by-laws or other organizational
documents, exercise or perform any of the powers or duties otherwise conferred
or imposed upon members of the Board and the Xxxxx Board. Such provisions may
not be amended, repealed or otherwise modified in any manner adverse to any
member of the Board or the Xxxxx Board, until at least six years following the
later of the date that the GSCP Parties are no longer entitled to designate or
nominate any GSCP Director, and the date that the JPMP Parties are no longer
entitled to designate or nominate a JPMP Director.
(c) Each Director is intended to be a third-party beneficiary of the obligations
of the Corporation pursuant to this Section 8.6, and the obligations of the
Corporation pursuant to this Section 8.6 shall be enforceable by each Director.
8.7 COOPERATION. Each Stockholder shall vote all of its Stock and shall take all
other necessary or desirable actions within his or its control (including,
without limitation, attending all meetings in person or by proxy for purposes of
obtaining a quorum and executing all written consents in lieu of meetings, as
applicable), and the Corporation shall take all necessary and desirable actions
within its control (including, without limitation, calling special Board and
stockholder meetings), to effectuate the provisions of this Section 8.
8.8 MANAGEMENT RIGHTS. The Corporation and each of the Stockholders acknowledge
that the provisions of this Agreement, including this Section 8, are intended,
among other things, to provide the GSCP Parties and the JPMP Parties with
"contractual management rights" within the meaning of the Employee Retirement
Income Security Act of 1974, as amended, and the regulations promulgated
thereunder.
8.9 NON-TRANSFERABILITY OF RIGHTS. Notwithstanding anything to the contrary
contained herein, the rights granted to the JPMP Parties under this Section 8
are non-transferable, other than to an Affiliate of the JPMP Parties in
connection with a Sale of Stock by the JPMP Parties to such Affiliate.
SECTION 9. MAJOR TRANSACTIONS.
(a) To the fullest extent permitted by law, from and after the date hereof, the
Corporation shall not, and shall not permit any of its Subsidiaries to, directly
or indirectly take any of the following actions without obtaining the prior
approval of a majority of the entire Board at a duly called meeting of the Board
or pursuant to a written consent (except as otherwise expressly permitted by
this Agreement); provided, however, that, so long as the JPMP Parties are
entitled to designate a JPMP Director pursuant to Section 8.1(b), at least one
JPMP Director shall have approved of the following actions:
(i)engage in any business, activities or operations substantially unrelated to
the Corporation's existing line of businesses, except to the extent that
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all such unrelated businesses, activities or operations do not have aggregate
revenues exceeding 10% of the aggregate revenues of the Corporation and its
subsidiaries, taken as a whole;
(ii) make any material change in any accounting policy or tax method policies,
procedures or elections;
(iii) commence any bankruptcy, insolvency or similar proceeding in respect of
the company or any of its Subsidiaries;
(iv) pay, or set aside any sums for the payment of, any dividends, or make any
distribution on, any shares of its capital stock or redeem, repurchase or
otherwise acquire any outstanding shares of its capital stock or any other of
its outstanding securities (other than pursuant to any agreements with
management);
(v) amend, modify or waive the Certificate of Incorporation or the by-laws, or
the certificate of incorporation of Xxxxx or the by-laws of Xxxxx, in any manner
that adversely affects the rights of any of the Stockholders thereunder or
disproportionately benefits any particular Stockholder or Stockholders (it being
understood that any increase in the number of authorized shares of capital stock
of the Corporation shall neither adversely affect the rights of any of the
Stockholders hereunder nor disproportionately benefit any particular Stockholder
or Stockholders), including, without limitation, any change in the number of
directors comprising the Board or the Xxxxx Board, or become a party to any
agreement which is inconsistent with the rights of any of the Stockholders under
the Documents or otherwise conflicts with the Documents;
(vi)change the Corporation's independent public accountants; or
(vii) enter into any transaction with any Affiliate of any Stockholder that is
not a bona fide arm's length transaction.
(b) To the fullest extent permitted by law, from and after the date hereof, the
Corporation shall not, and shall not permit any of its subsidiaries to, directly
or indirectly take any of the following actions without first consulting with
the JPMP Directors (it being understood that any such actions may be taken
without the approval of any JPMP Director):
(i) except for any transaction or series of transactions involving only wholly-
owned subsidiaries of the Corporation as of the date hereof, (A) consolidate or
merge into or with any other Person, (B) enter into any other similar business
combination transaction or (C) effect any transaction or series of transactions
in which more than fifty percent (50%) of the shares of Stock are transferred to
another Person;
(ii) voluntarily or involuntarily liquidate, dissolve or wind up;
(iii) purchase, acquire or obtain any capital stock or other proprietary
interest, directly or indirectly, in any other entity, except for (A) any
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transaction or series of transactions involving only wholly-owned Subsidiaries
of the Corporation as of the date hereof, or (B) the purchase of all or
substantially all of the capital stock or other proprietary interest of other
entities for an aggregate purchase price, including without limitation, any
liabilities of the acquired entities, of less than $20,000,000;
(iv) purchase, acquire or obtain assets of any third party in an aggregate
amount (as to the Corporation and all of its Subsidiaries), including without
limitation, any liabilities of the acquired entities, in any fiscal year in
excess of $20,000,000;
(v) enter into or commit to enter into any joint ventures or any partnerships,
establish any non-wholly-owned Subsidiaries or form any joint venture;
(vi) sell, lease, transfer or otherwise dispose of any assets in an aggregate
amount (as to the Corporation and all of its subsidiaries) in any fiscal year in
excess of $20,000,000;
(vii) create, incur, assume or suffer to exist any indebtedness for borrowed
money (including any capital leases) in an aggregate amount (as to the
Corporation and all of its Subsidiaries) in excess of $20,000,000 other than
indebtedness incurred in connection with the Merger; or
(viii) issue or sell any capital stock or other securities except for (A)
dividends or other distributions payable on the Common Stock solely in the form
of additional shares of Common Stock and (B) the issuance of shares of Common
Stock or the issuance of options to purchase Common Stock approved by the Board
to employees, advisors, consultants or outside directors of the Corporation
directly or pursuant to an employee benefit plan of the Corporation; or
(ix) approve the annual budget of the Corporation.
SECTION 10. RIGHT TO CAUSE IPO.
Following the seventh anniversary of the date hereof, the Corporation shall, and
the GSCP Parties shall cause the Corporation to upon the written demand of the
JPMP Parties, if no IPO has occurred prior thereto or if no sale of all of the
outstanding stock of the Corporation, merger or sale of substantially all of the
assets of the Corporation has occurred prior thereto, take such necessary steps
as to cause an IPO to occur at the Corporation's expense.
SECTION 11. OVERCALL RESERVE.
Subject to the terms of this Section 11, each Stockholder hereby agrees that it
intends to make available (the "OVERCALL RESERVE") the amounts set forth next to
each Stockholder's name on Exhibit A hereto (the "OVERCALL RESERVE AMOUNT") to
purchase additional shares of Common Stock. Each Stockholder agrees, subject to
the last sentence of this Section 11, that it intends to purchase shares of
Common Stock pursuant to the Overcall Reserve upon the terms set forth in a
written notice from the Board (an "OVERCALL NOTICE"), which shall set forth (i)
the number of shares of Common Stock to be purchased by each Stockholder, (ii)
the price per share of Common Stock, which shall be the fair market value of a
share of Common Stock at the time of the Overcall Notice as determined by the
Board, (iii) the aggregate price of the shares of Common Stock to be
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purchased by each Stockholder, which shall not exceed such Stockholder's
Overcall Reserve Amount less any amounts previously paid for shares of Common
Stock purchased pursuant to the Overcall Reserve (such amounts, including
amounts paid for shares of Common Stock purchased with respect to Objected
Reserve Calls (as defined below), "PRIOR PURCHASE AMOUNTS") and (iv) the closing
date for the purchase, which shall be at least 15 days following the date of the
Overcall Notice. Any purchases of Common Stock pursuant to the Overcall Reserve
will be made by wire transfer of immediately available funds and shall be made
pro rata by the Stockholders based upon each Stockholder's Overcall Percentage
as determined as of the date of such Overcall Notice; provided, however, that it
is understood that the JPMP Parties will not purchase Common Stock with respect
to any Overcall Notice unless at least one JPMP Director shall have approved
issuing such Overcall Notice. In the event that no JPMP Director shall have
approved the issuance of a particular Overcall Notice (an "OBJECTED RESERVE
CALL"), the GSCP Parties may, but will not be obligated to, purchase any or all
of the shares of Common Stock set forth in such Overcall Notice that might
otherwise be purchased by the GSCP Parties and the JPMP Parties, and the amount
of such purchases shall be included in the Prior Purchase Amounts of the GSCP
Parties with respect to any Overcall Notices made thereafter. Each Stockholder's
"OVERCALL PERCENTAGE" as of the date of any Overcall Notice shall be determined
by dividing such Stockholder's Overcall Reserve Amount (less such Stockholder's
Prior Purchase Amounts) by the sum of all the Stockholders' Overcall Reserve
Amounts (less the sum of all the Stockholders' Prior Purchase Amounts). The
Overcall Reserve shall remain effective until the earlier of (x) the second
anniversary of the date hereof, (y) a Qualified IPO or (z) the consummation of
an Exit Sale. Notwithstanding anything contained in this Section 11, no
Stockholder shall have any obligation to purchase shares of Common Stock
pursuant to the Overcall Reserve unless and until it has obtained the prior
approval of its investment committee or similar body.
SECTION 12. CERTAIN COVENANTS.
12.1 ACCESS TO RECORDS. From and after the date hereof and so long as any of the
GSCP Parties or the JPMP Parties or their permitted successors or assigns hold
any shares of Stock, the Company shall, and shall cause each of its subsidiaries
to, afford each GSCP Party or the JPMP Parties or its permitted successors or
assigns (as applicable) and their respective employees, counsel and other
authorized representatives access, during normal business hours, upon reasonable
advance notice, with due regard to its ongoing operations, to all of its books,
records and properties, and to all of its officers and employees for any
reasonable purpose whatsoever.
12.2 FINANCIAL REPORTS. From and after the date hereof and provided any of the
GSCP Parties or the JPMP Parties or its permitted successors or assigns holds
any shares of Common Stock, the Corporation agrees to furnish to each GSCP Party
and each JPMP Party or their permitted assigns (as applicable) the following:
(a) Within 30 days after the end of each fiscal month, (i) internal summary
financial and operating statements for such month ("MONTHLY FINANCIALS"),
prepared by management for the Chief Executive Officer of the Corporation and a
letter or memorandum discussing the summary financial information for such
period and setting forth a comparison by reasonable categories of such
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financial information to the applicable budget and the comparable figures for
the prior year and a reasonable explanation of any differences (a "MANAGEMENT
LETTER") plus (ii) a statement certified by the Chief Financial Officer of the
Corporation, certifying that the financial position and results of operations of
the Corporation for such period as presented in the Monthly Financials are
presented fairly and have been prepared in accordance with United States
generally accepted accounting principles ("GAAP") (subject to normal year-end
adjustments and the absence of footnotes) consistently applied.
(b) Within 30 days after the end of each quarterly fiscal period, (i) unaudited
balance sheets and an income statement as of the end of such period, together
with statements of retained earnings and cash flow for such period ("QUARTERLY
FINANCIALS") and a Management Letter (with the Management's Discussion and
Analysis of Financial Condition and Results of Operation section of any Form
10-Q or Form 10-K or similar document filed with the Securities and Exchange
Commission ("SEC") for such quarter being sufficient to satisfy this
requirement), plus (ii) a statement certified by the Chief Financial Officer of
the Corporation, certifying that the financial position and results of
operations of the Corporation for such period as presented in the Quarterly
Financials are presented fairly and have been prepared in accordance with GAAP
(subject to normal year-end adjustments and the absence of footnotes)
consistently applied.
(c) Within 90 days (or such lesser period as is either (x) required under
applicable laws for similar disclosure to any security holders of the
Corporation or (y) in which similar disclosure is provided to other financing
sources of the Corporation, including, without limitation, any banks) after the
end of each fiscal year, commencing with the first fiscal year ending after the
date hereof, (i) audited balance sheets and an income statement as of the end of
such fiscal year, together with statements of retained earnings and cash flow
for such fiscal year, all in reasonable detail and certified by a recognized
national firm of independent accountants selected by the Board as presenting
fairly the financial position and results of operations of the Corporation and
as having been prepared in accordance with GAAP consistently applied, including
their opinion thereon, (ii) the accounting firm's management letter and (iii) a
Management Letter (with the Management's Discussion and Analysis of Financial
Condition and Results of Operation section of any Form 10-Q or Form 10-K or
similar document filed with the SEC for such quarter being sufficient to satisfy
this requirement).
(d) Promptly upon becoming available, (i) copies of all financial statements,
reports, press releases, notices, proxy statements and other documents sent by
the Corporation to its Stockholders or released to the public and copies of all
regular and periodic reports, if any, filed by the Corporation with any
securities regulatory agency or any securities exchange and (ii) any other
financial or other information, reports or other documents available to
management of the Corporation as any Stockholders shall have reasonably
requested on a timely basis.
(e) If for any period the Corporation shall have any Subsidiary or Subsidiaries
whose accounts are consolidated with those of the Corporation, then, in respect
of such period, the financial statements and information delivered
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pursuant to the foregoing paragraphs (a), (b) and (c) of this Section 12.2 shall
be the consolidated and consolidating financial statements of the Corporation
and all such consolidated Subsidiaries.
(f) As soon as practicable and in any event no later than 30 days following the
beginning of each fiscal year, an annual budget prepared on a monthly basis for
the Corporation for such fiscal year (displaying anticipated statements of
income and cash flows and balance sheets), and promptly upon preparation thereof
any other significant budgets prepared by the Corporation and any revisions of
such annual or other budgets, and, provided that an Stockholder make request
therefor, within 30 days after any monthly period in which there is a material
adverse deviation from the annual budget, a statement explaining the deviation
and what actions the Corporation has taken and proposes to take with respect
thereto.
(g) Promptly (but in any event within seven business days) after the discovery
or receipt of notice of (i) any default under any material agreement to which
the Corporation and/or any of its Subsidiaries is a party, (ii) any other event
which could reasonably be expected to have a material adverse effect (including,
without limitation, the filing of any material litigation against the
Corporation or any of its Subsidiaries or the existence of any dispute with any
Person which involves a reasonable likelihood of such litigation being
commenced) a statement describing the foregoing in reasonable detail.
12.3 CONSULTATION. The JPMP Parties shall have the right to consult with and
advise the management of the Corporation and its subsidiaries, upon reasonable
notice at reasonable times from time to time, on all matters related to the
operation of the Corporation and its subsidiaries.
SECTION 13. FEES.
Immediately following the date hereof, the Corporation shall pay Xxxxxxx, Xxxxx
& Co. or its affiliates a transaction fee of $6,000,000. In the event that the
Corporation becomes obligated to pay any management fees to any Stockholder
(other than fees incurred in bona fide arm's length transaction which are to be
paid to advisors of the Corporation), such fees shall be split pro rata among
the Stockholders. In addition, immediately following the date hereof, the
Corporation shall pay to Xxxxxxx, Sachs & Co. an advisory fee of $2,000,000.
SECTION 14. LEGEND.
Each Stockholder and the Corporation shall take all such action necessary
(including exchanging with the Corporation certificates representing shares of
Stock issued prior to the date hereof) to cause each certificate representing
outstanding shares of Stock owned by a Stockholder to bear a legend containing
the following words:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THE
SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED,
SOLD, PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT
IN COMPLIANCE WITH SUCH ACT."
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"IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE RESTRICTIONS ON TRANSFER AND VOTING SET FORTH IN THE
STOCKHOLDERS' AGREEMENT DATED AS OF [ ], 2002 BY THE COMPANY AND THE
PARTIES THERETO, A COPY OF WHICH IS ON FILE IN THE OFFICE OF THE
COMPANY."
The requirement that the above securities legend be placed upon
certificates evidencing shares of Stock shall cease and terminate upon the
earliest of the following events: (i) when such shares are transferred in an
underwritten public offering, (ii) when such shares are transferred pursuant to
Rule 144 under the Securities Act or (iii) when such shares are transferred in
any other transaction if the seller delivers to the Corporation an opinion of
its counsel, which counsel and opinion shall be reasonably satisfactory to the
Corporation, or a "no-action" letter from the staff of the SEC, in either case
to the effect that such legend is no longer necessary in order to protect the
Corporation against a violation by it of the Securities Act upon any sale or
other disposition of such shares without registration thereunder. The
requirement that the above legend regarding this Agreement be placed upon
certificates evidencing shares of Stock shall cease and terminate upon the Sale
of such shares of Stock pursuant to a Public Sale. Upon the consummation of any
event requiring the removal of a legend hereunder, the Corporation, upon the
surrender of certificates containing such legend, shall, at its own expense,
deliver to the holder of any such shares as to which the requirement for such
legend shall have terminated, one or more new certificates evidencing such
shares not bearing such legend.
SECTION 15. REPRESENTATIONS AND WARRANTIES.
(a) Each party hereto represents and warrants to the other parties hereto as
follows:
(i) It has full power and authority to execute, deliver and perform its
obligations under this Agreement.
(ii) This Agreement has been duly and validly authorized, executed and delivered
by it, and constitutes a valid and binding obligation of it, enforceable against
it in accordance with its terms except to the extent that enforceability may be
limited by bankruptcy, insolvency or other similar laws affecting creditors'
rights generally.
(iii) The execution, delivery and performance of this Agreement by it does not
(x) violate, conflict with, or constitute a breach of or default under its
organizational documents, if any, or any material agreement to which it is a
party or by which it is bound or (y) violate any law, regulation, order, writ,
judgment, injunction or decree applicable to it.
(iv) No consent or approval of, or filing with, any governmental or regulatory
body is required to be obtained or made by it in connection with the
-21-
transactions contemplated hereby, except for the HSR Act approval, approval of
the German Federal Cartel Office and the approvals specified in Section 11.
(v) It is not a party to any agreement which is inconsistent with the rights of
any party hereunder or otherwise conflicts with the provisions hereof.
(b) Each Stockholder represents and warrants to each other Stockholder that
except as set forth on Schedule 15(b) hereto and other than this Agreement, it
is not a party to any contract or agreement, written or oral, (i) with respect
to the Stock of the Corporation (including, without limitation, any voting
agreement, voting trust, stockholder's agreement, registration rights agreement,
etc.) or (ii) otherwise with or relating to the Corporation.
SECTION 16. REGULATORY MATTERS; COOPERATION.
(a) In the event that a JPMP Party reasonably determines that it has a
Regulatory Problem (as defined below), the Corporation agrees to take such
actions as may be reasonably requested by a JPMP Party in order (A) to
effectuate and facilitate any transfer by such JPMP Party of any securities of
the Corporation then held by such JPMP Party to any Person designated by such
JPMP Party, PROVIDED, HOWEVER, that any such transfer shall be subject to the
terms of this Agreement, (B) to permit such JPMP Party (or any of its
Affiliates) to exchange all or any portion of the voting securities then held by
such Person on a share-for-share basis for shares of a class of non-voting
securities of the Corporation, which non-voting securities shall be identical in
all respects to such voting securities, except that such new securities shall be
non-voting and shall be convertible into voting securities on such terms as are
requested by such JPMP Party in light of regulatory considerations then
prevailing and reasonably acceptable to the Corporation, and (C) to the extent
reasonably practicable and as agreed to by the Corporation (which agreement will
not be unreasonably withheld or delayed), to grant such JPMP Party or its
designee the reasonable equivalent of any voting rights arising out of such JPMP
Party's ownership of voting securities and/or provided for in this Agreement
that were diminished as a result of the transfers and amendments referred to
above. If, as provided above, such JPMP Party elects to transfer securities of
the Corporation in order to avoid a Regulatory Problem to an Affiliate subject
to limitations on its voting or total ownership interest in the Corporation, the
Corporation and such Affiliate shall use commercially reasonable efforts to
enter into such mutually acceptable agreements as such Affiliate may reasonably
request in order to assist such Affiliate in complying with Laws (as defined
below) to which it is subject.
(b) In the event a JPMP Party has the right to acquire any of the Corporation's
securities from the Corporation or any other Person as provided in this
Agreement, and such JPMP Party reasonably determines that, as a result of such
acquisition, it could have a Regulatory Problem, upon the reasonable request of
such JPMP Party, the Corporation will offer to Sell to such JPMP Party
non-voting securities (or, if the Corporation is not the proposed seller, will
arrange for the exchange of any voting securities for non-voting securities
immediately prior to or simultaneous with such Sale) on the same terms as would
have existed had such JPMP
-22-
Party acquired the securities so offered and immediately requested their
exchange for non-voting securities pursuant to subsection (a) above.
(c) In the event that any Subsidiary of the Corporation offers to Issue any of
its securities to a JPMP Party, then the Corporation will cause such Subsidiary
to enter into an agreement with such JPMP Party containing provisions
substantially similar to this Section 16.
(d) The other Stockholders agree to use commercially reasonable best efforts to
cooperate with the Corporation and such JPMP Party to effect the foregoing.
(e) DEFINITIONS. For purposes of this Section 16:
(i) "BANKING REGULATIONS" means all federal, state and foreign Laws applicable
to banks, bank holding companies and their Affiliates, including without
limitation, the Bank Holding Company Act and the Federal Reserve Act.
(ii) "LAW," with respect to any Person, means (i) all provisions of all laws,
statutes, ordinances, rules, regulations, permits, certificates or orders of any
governmental authority applicable to such Person or any of its assets or
property or to which such Person or any of its assets or property is subject
relating to or in connection with Banking Regulations or SBA Regulations, and
(ii) all judgments, injunctions, orders and decrees of all courts and
arbitrators in proceedings or actions in which such Person is a party or by
which it or any of its assets or properties is or may be bound or subject
relating to or in connection with Banking Regulations or SBA Regulations.
(iii) "REGULATORY PROBLEM" means any set of facts or circumstances in which a
JPMP Party's ownership of securities issued by the Corporation (i) gives rise to
a material violation of Law by such JPMP Party or any of its Affiliates, or
gives rise to a reasonable belief by such JPMP Party that such a violation is
likely to occur or (ii) gives rise to a limitation in Law that will impair
materially the ability of such JPMP Party or any Affiliate to conduct its
business or gives rise to a reasonable belief by such JPMP Party that such a
limitation is likely to arise.
(iv) "SBA" means the United States Small Business Administration.
(v) "SBA REGULATIONS" means the Small Business Investment Act and the rules and
regulations promulgated by the SBA.
SECTION 17. DURATION OF AGREEMENT.
The rights and obligations of a Stockholder under this Agreement shall terminate
at such time as such Stockholder no longer is the beneficial owner of any shares
of Stock, except for those obligations set forth in Section 11, which shall
survive until terminated in accordance with Section 11. This Agreement shall
terminate upon the consummation of a Qualified IPO.
SECTION 18. FURTHER ASSURANCES.
At any time or from time to time after the date
-23-
hereof, the parties agree to cooperate with each other, and at the request of
any other party, to execute and deliver any further instruments or documents and
to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
SECTION 19. AMENDMENT AND WAIVER.
Except as otherwise provided herein, no modification, amendment or waiver of any
provision of this Agreement shall be effective against the Corporation or any
Stockholder unless such modification, amendment or waiver is approved in writing
by all the parties hereto. The failure of any party to enforce any of the
provisions of this Agreement shall in no way be construed as a waiver of such
provisions and shall not affect the right of such party thereafter to enforce
each and every provision of this Agreement in accordance with its terms.
SECTION 20. SEVERABILITY.
Whenever possible, each provision of this Agreement shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be invalid, illegal or unenforceable in any respect
under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in
such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
SECTION 21. ENTIRE AGREEMENT.
This Agreement and the other writings referred to herein or delivered pursuant
hereto which form a part hereof contain the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and
supersedes and preempts any prior understandings, agreements or representations
by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
SECTION 22. SUCCESSORS AND ASSIGNS.
Except as otherwise provided herein, this Agreement shall bind and inure to the
benefit of and be enforceable by the Corporation and its successors and assigns
and each Stockholder and their respective successors, assigns, heirs and
personal representatives, so long as they hold Stock. Except pursuant to a Sale
of Stock in compliance with Section 3 and subject to Section 8.9, no Stockholder
shall have the right to assign its rights and obligations under this Agreement,
without the consent of each of the other Stockholders. Upon any such assignment,
such assignee shall have and be able to exercise all rights of the assigning
Stockholder.
SECTION 23. COUNTERPARTS.
This Agreement may be executed in separate counterparts each of which shall be
an original and all of which taken together shall constitute one and the same
agreement.
SECTION 24. REMEDIES.
Each Stockholder shall be entitled to enforce its rights under this Agreement
specifically to recover damages by reason of any breach of any provision of this
Agreement and to exercise all other rights existing in their favor. The parties
hereto agree and acknowledge that money damages may not be an adequate remedy
for any breach of the provisions of this Agreement and that each party may in
its sole discretion apply to any
-24-
court of law or equity of competent jurisdiction for specific performance and/or
injunctive relief (without posting a bond or other security) in order to enforce
or prevent any violation of the provisions of this Agreement.
SECTION 25. NOTICES.
All notices, requests, consents and other communications hereunder to any party
shall be deemed to be sufficient if contained in a written instrument delivered
in person or by telecopy (with a confirmatory copy sent by a different means
within three business days of such notice), nationally-recognized overnight
courier or first class registered or certified mail, return receipt requested,
postage prepaid, addressed to such party at the address set forth below or such
other address as may hereafter be designated in writing by such party to the
other parties:
(i)if to the Corporation or Xxxxx, to:
c/o Berry Plastics Corporation
000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxx X. Boots;
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
(ii)if to the GSCP Parties, to:
GS Capital Partners 2000, L.P.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx
Xxx Xxxxx
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with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
(iii)if to the JPMP Parties, to:
X.X. Xxxxxx Partners Global Investors, L.P.
c/o X.X. Xxxxxx Partners, LLC
1221 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxx
Xxxxxx Xxxx
with copies to:
Mayer, Brown, Xxxx & Maw
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxxxxxx, Esq.
All such notices, requests, consents and other communications shall be
deemed to have been given when received.
SECTION 26. GOVERNING LAW; SUBMISSION TO JURISDICTION;
WAIVER OF JURY TRIAL.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York without giving effect to the principles of conflicts of
law. Each of the parties hereto hereby irrevocably and unconditionally consents
to submit to the exclusive jurisdiction of the courts of the State of New York
and of the United States of America, in each case located in the County of New
York, for any action, proceeding or investigation in any court or before any
governmental authority ("LITIGATION") arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any Litigation relating thereto except in such courts), and further agrees that
service of any process, summons, notice or document by U.S. registered mail to
its respective address set forth in this Agreement shall be effective service of
process for any Litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any Litigation arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United
-27-
States of America, in each case located in the County of New York, and hereby
further irrevocably and unconditionally waives and agrees not to plead or claim
in any such court that any such Litigation brought in any such court has been
brought in an inconvenient forum. Each of the parties irrevocably and
unconditionally waives, to the fullest extent permitted by applicable law, any
and all rights to trial by jury in connection with any Litigation arising out of
or relating to this Agreement or the transactions contemplated hereby.
SECTION 27. DESCRIPTIVE HEADINGS.
The descriptive headings of this Agreement are inserted for convenience only and
do not constitute a part of this Agreement.
SECTION 28. CONSTRUCTION.
Where specific language is used to clarify by example a general statement
contained herein, such specific language shall not be deemed to modify, limit or
restrict in any manner the construction of the general statement to which it
relates. The language used in this Agreement shall be deemed to be the language
chosen by the parties hereto to express their mutual intent, and no rule of
strict construction shall be applied against any party.
SECTION 29. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties contained in this Agreement or made in
writing by any party in connection herewith shall survive the execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby regardless of any investigation made by, or on behalf of, any
Stockholder.
XXXXXX 00. NO INCONSISTENT AGREEMENTS.
Neither the Corporation nor any Stockholder shall take any action or enter into
any agreement which is inconsistent with the rights of any party hereunder or
otherwise conflicts with the provisions hereof.
SECTION 31. CONFLICTING AGREEMENTS.
Each Stockholder represents and warrants that such Stockholder has not granted
and is not a party to any proxy, voting trust or other agreement which is
inconsistent with or conflicts with any provision of this Agreement, and no
holder of Stock shall grant any proxy or become party to any voting trust or
other agreement which is inconsistent with or conflicts with any provision of
this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders'
Agreement on the day and year first above written.
BPC HOLDING CORPORATION
By:_______________________________
Name:
Title:
GSCP PARTIES:
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C., its general
partner
By:_______________________________
Name:
Title:
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C., its general
partner
By:______________________________
Name:
Title:
GS CAPITAL PARTNERS 2000 GMBH & CO.
BETEILIGUNGS KG
By: Xxxxxxx Xxxxx Management GPGmbH, its
general partner
By:_______________________________
Name:
Title:
XXXXXX XXXXXX XXXXXXX XXXXXXXXXXXXX XXXX
0000, L.P.
By: Bridge Street Special Opportunities 2000,
L.L.C., its general partner
By:___________________________________
Name:
Title:
XXXXXXX SACHS DIRECT INVESTMENT FUND 2000,
L.P.,
By: GS Employee Funds 2000 G.P., L.L.C., its
general partner
By:____________________________________
Name:
Title:
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P
By: GS Employee Funds 2000, L.L.C., its
general partner
By:_________________________________
Name:
Title:
STONE XXXXXX XXXX 0000, X.X.
By: Stone Street 2000, L.L.C., its general
partner
By:__________________________________
Name:
Title:
X.X. XXXXXX PARTNERS (BHCA), L.P.
By: JPMP Master Fund Manager, L.P., its
general partner
By: JPMP Capital Corp., its general partner
By:___________________________________
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL INVESTORS, L.P.
By: JPMP Global Investors, L.P., its general
partner
By: JPMP Capital Corp., its general partner
By:___________________________________
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL INVESTORS
(CAYMAN), L.P.
By: JPMP Global Investors, L.P., a general
partner
By: JPMP Capital Corp., its general partner
By:___________________________________
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL INVESTORS A, L.P.
By: JPMP Global Investors, L.P., a general
partner
By:___________________________________
Name:
Title:
X.X. XXXXXX PARTNERS GLOBAL INVESTORS
(CAYMAN) II, L.P.
By: JPMP Global Investors, L.P., a general
partner
By: JPMP Capital Corp., its general partner
By:__________________________________
Name:
Title:
Exhibit A
STOCKHOLDER OVERCALL
RESERVE
AMOUNT
GS Capital Partners 2000, L.P. $37,770,211.33
GS Capital Partners 2000 Offshore, L.P. 13,724,232.39
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG 1,578,697.76
GS Capital Partners 2000 Employee Fund, L.P. 11,993,345.88
Xxxxx Xxxxxx Xxxx 0000, X.X. 1,179,452.94
Bridge Street Special Opportunities Fund 2000, L.P. 589,726.47
Xxxxxxx Xxxxx Direct Investment Fund 2000, L.P. 1,965,754.91
X.X. Xxxxxx Partners (BHCA), L.P. 25,114,475.23
X.X. Xxxxxx Partners Global Investors, L.P. 3,822,977.38
X.X. Xxxxxx Partners Global Investors (Cayman), L.P. 1,895,338.28
X.X. Xxxxxx Partners Global Investors (Cayman) II, L.P. 140,681.25
X.X. Xxxxxx Partners Global Investors A, L.P. 225,106.17
--------------
Total: $100,000,000
