Contract
Exhibit
31
M
&F WORLDWIDE CORP.
Stockholders
Agreement, dated as of this 20th day of
January 2009 (this “Agreement”),
by and between MacAndrews & Forbes Holdings Inc., a Delaware corporation
(“MacAndrews”),
and M&F Worldwide Corp., a Delaware corporation (the “Company”). Certain
terms used in this Agreement are defined in Section 4 hereof.
R E C I T A L
S
WHEREAS,
MacAndrews, through two wholly owned subsidiaries, currently beneficially owns
approximately 42% of the Company’s Common Stock; and
WHEREAS,
MacAndrews and the Company desire to promote their mutual interests by agreeing
to certain matters relating to potential future acquisitions of Common Stock by
MacAndrews and related matters.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto hereby agree as follows:
1.
REPRESENTATIONS AND
WARRANTIES
MacAndrews, on behalf of itself and its
sole stockholder, hereby represents and warrants to the Company that (x) its
current intentions regarding future acquisitions of Common Stock are as set
forth in Amendment No. 22 to MacAndrews’ Schedule 13D, which states that,
depending on market conditions and other factors, MacAndrews may seek to acquire
additional shares of Common Stock through open market purchases, block purchases
or otherwise and (y) in light of such current intentions, it is not required at
this time to make any additional disclosure pursuant to either Rule 13d-5 or
Rule 13e-3 under the Securities Exchange Act of 1934.
2. COVENANTS
(a) Subject
to Section 2(b), MacAndrews agrees, on behalf of itself and its Affiliates, not
to acquire beneficial ownership of any shares of Common Stock such that its
beneficial ownership of the Common Stock would exceed 45% (or further increase
such beneficial ownership above 45%) of the outstanding Common Stock, without
providing the Company and the Board with three Business Days prior written
notice of such proposed acquisition, together with an update, if any, as to its
current intent regarding acquisitions of additional shares of Common Stock and,
except as may be described in an amendment to MacAndrews’ Schedule 13D,
confirming the representations and warranties in Section 1 above as of such date
(“Section
2A Notice”). In addition, (1) MacAndrews agrees
to promptly provide the Company and the Board with a Section 2A
Notice to the extent that it has knowledge of an acquisition or pending
acquisition of shares of Common Stock by any of its Public Affiliates and (2)
MacAndrews agrees, on behalf of itself and its Affiliates, not to acquire
beneficial ownership of any shares of Common Stock such that its beneficial
ownership of the Common Stock would exceed 45% (or further increase such
beneficial ownership above 45%) of the outstanding Common Stock from such time
as it has knowledge of an acquisition or pending acquisition of
shares
of Common Stock by any of its Public Affiliates until at least three Business
Days after delivery of the Section 2A Notice pursuant to the preceding clause
(1).
(b) The
provisions of Section 2(a) shall not apply to (i) equity-based compensation
awards (including stock option grants, restricted stock grants and pursuant to
the exercise of stock options granted) that, in each case, were approved by the
Company’s compensation committee or the Board in respect of service on the Board
or any committee thereof or (ii) acquisitions of shares pursuant to any stock
split or stock dividend effected by the Company.
(c) As
long as the Company has public equity securities (including the Common Stock)
outstanding, MacAndrews will use its best efforts to assure that the Company
will continue to maintain a Board comprised of a majority of Independent
Directors as well as nominating and compensation committees comprised solely of
Independent Directors, in accordance with NYSE listing rules for non-controlled
companies.
(d) Prior
to Transferring any shares of Common Stock to any Affiliate, MacAndrews agrees
to cause such Transferee to agree in writing to be bound by the provisions of
this Agreement applicable to MacAndrews.
3. TERMINATION. The
Agreement shall terminate:
(a) at
such time as MacAndrews, together with its Affiliates, beneficially own less
than 20% of the Common Stock; and
(b) on
the date that MacAndrews and the Company shall have agreed in writing to
terminate this Agreement, provided that such termination is approved by a
majority of the Independent Directors of the Company or a committee of the Board
comprised solely of Independent Directors.
4. INTERPRETATION OF THIS
AGREEMENT
(a) Terms
Defined. As used in this Agreement, the following terms have
the respective meaning set forth below:
“Affiliate”
means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with such first
Person. The terms “control”
(including, with correlative meanings, the terms “controlling,” “controlled
by” and “under common
control with”) means, with respect to any Person, the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through ownership of voting
securities, by contract or otherwise; provided, however, that for purposes of
Section 2(a) of this Agreement, Affiliate shall not include any Public
Affiliate.
“beneficial
ownership” or “beneficially
own” are used within the meaning of Rules 13d-3 and 13d-5 under the
Exchange Act, provided
that a Person shall be deemed to beneficially own any securities that such
Person has the right to acquire, without regard to the 60-day time period in
Rule 13d-3(d)(1)(i).
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“Board”
means the board of directors of the Company.
“Business
Day” means any day except a Saturday, Sunday or other day on which
commercial banks in New York City are authorized by law to close.
“Common
Stock” means the Company’s authorized shares of common stock, par value
$0.01 per share, and any stock into which such common stock may hereafter be
converted, changed or reclassified.
“Exchange Act”
means the Securities Exchange Act of 1934, as amended.
“Independent
Directors” means directors of the Company who satisfy the criteria for
“independent director” under the rules of the New York Stock Exchange or any
other principal stock exchange on which the Common Stock is
listed. Without limiting the foregoing, Independent Directors shall
not include any Person affiliated with MacAndrews or any of its Affiliates
(provided that, for the avoidance of doubt, persons who serve only as
consultants of MacAndrews or any of its Affiliates shall not be considered an
affiliate of MacAndrews by virtue of such relationship) or,
with respect to any specific vote or other decision, any director who has
recused him or herself from the vote of the Board (or committee thereof) with
respect to such vote or other decision.
“Person”
means an individual, partnership, joint-stock company, corporation, limited
liability company, trust or unincorporated organization, and a government or
agency or political subdivision thereof.
“Public
Affiliate” means any Affiliate that has public equity securities
outstanding.
“SEC”
means Securities and Exchange Commission.
“Transfer”
means, with respect to any Common Stock, (i) when used as a verb, to
sell, assign, dispose of, exchange, pledge, encumber, hypothecate or otherwise
transfer such Common Stock or any participation or interest therein, whether
directly or indirectly, or permit, agree or commit to do, any of the foregoing,
and (ii) when used as a noun, a direct or indirect sale, assignment,
disposition, exchange, pledge, encumbrance, hypothecation or other transfer of
such Common Stock or any participation or interest therein, or any agreement or
commitment to do any of the foregoing.
(b) Capacity. All
agreements and understandings made herein shall be made solely in MacAndrews’
capacity as a direct or indirect stockholder of the Company and shall not affect
any of its Affiliates’ actions solely in such Person’s capacity as a director or
officer of the Company.
(c) Directly or
Indirectly. Where any provision in this Agreement refers to
action to be taken by any Person, or which such Person is prohibited from
taking, such provision shall be applicable whether such action is taken directly
or indirectly by such Person. Without limiting the foregoing,
MacAndrews agrees to cause MFW Holdings One LLC and MFW Holdings Two LLC to
comply with this Agreement as if they were a party hereto.
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(d) Section
Headings. The headings of the sections and subsections of this
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Agreement.
(e) Other Interpretative
Provisions. The parties have participated jointly in
negotiating and drafting this Agreement. In the event that an
ambiguity or a question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties, and no presumption or burden
of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provision of this Agreement. When a reference is
made in this Agreement to Sections, such reference shall be to a Section of this
Agreement, unless otherwise indicated. Whenever the words “include,” “includes”
or “including” are used in this Agreement, they shall be deemed to be followed
by the words “without limitation.” The words “hereby,” “herein,”
“hereof,” “hereto,” “hereunder” and words of similar import refer to this
Agreement as a whole and not merely to the specific section, paragraph or clause
in which such word appears. References in the singular shall be
deemed to include references in the plural as appropriate.
5. MISCELLANEOUS
(a) Notices.
(i) All
notices and other communications hereunder shall be in writing and shall be
deemed duly given (a) on the date of delivery if delivered personally, or by
facsimile or electronic mail, upon confirmation of receipt or (b) on the second
Business Day after delivery to Federal Express or similar express courier or the
Express Mail service maintained by the United States Postal Service specifying
two (2) Business Day or sooner delivery. All notices hereunder shall
be delivered as set forth below, or pursuant to such other instructions as may
be designated in writing by the party to receive such notice (or at such other
address for a party as shall be specified in a notice given in accordance with
this Section 5(a)):
(A) if
to MacAndrews, at 00
Xxxx 00 Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxxx X. Xxxxxxxx (facsimile:
(000) 000-0000; e-mail: xxxxxxxxx@xxxxxx.xxx), with a copy to Skadden, Arps,
Slate Xxxxxxx & Xxxx L.L.P., Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000;
Attention Xxxxxxxx X. Xxxxxx and Xxxx X. Xxxxx (facsimile: 917.777.3760,
917.777.3780; email: xxxxxxxx.xxxxxx@xxxxxxx.xxx, xxxx.xxxxx@xxxxxxx.xxx), or at
such other address as MacAndrews may have furnished the Company in
writing;
(B) if
to the Company or the Board c/o the Company at 00 Xxxx 00xx Xxxxxx,
Xxx Xxxx, XX 00000, Attn: Chief Legal Officer (facsimile: (000) 000-0000,
e-mail: xxxxxxx@xxxxxx.xxx), with a copy to Xxxxxxx Xxxx & Xxxxxxxxx LLP,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attn: Xxxxxx Xxxxxx and Xxxxxxx X.
Xxxxxxx (facsimile: (000) 000-0000; e-mail: xxxxxxx@xxxxxxx.xxx,
xxxxxxxx@xxxxxxx.xxx), and to the Chairman
of each of the Audit and Governance Committees at their addresses as set forth
in the books and records of the Company, or at such other address or addresses
as it may have furnished in writing to MacAndrews.
(b) Injunctive
Relief. The Company and MacAndrews hereby acknowledge that it
is impossible to measure in money the damages which will accrue to the Company
by
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reason
of the failure of MacAndrews to perform any of its obligations set forth in this
Agreement. Therefore, the Company shall have the right to specific
performance of such obligations, and if the Company shall institute any action
or proceeding to enforce the provisions hereof, MacAndrews hereby waives the
claim or defense that the Company has an adequate remedy at law.
(c) Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties.
(d) Parties in
Interest. This Agreement shall be binding upon, inure solely
to the benefit of, and be enforceable by, the parties hereto and their
successors and permitted assigns. Nothing in this Agreement, express
or implied, is intended to or shall confer upon any other Person not a party
hereto any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
(e) Entire Agreement; Amendment
and Waiver.
(i) This
Agreement constitutes the entire understanding of the parties hereto relating to
the subject matter hereof and supersedes all prior understandings between such
parties relating to the subject matter hereof.
(ii) Neither
the failure nor any delay by any party hereto in exercising any right, power or
privilege under this Agreement will operate as a waiver of such right, power or
privilege, and no single or partial exercise of any such right, power or
privilege will preclude any other or further exercise of such right, power or
privilege or the exercise of any other right, power or privilege. To
the maximum extent permitted by applicable law, (a) no claim or right arising
out of this Agreement can be discharged by any party, in whole or in part, by a
waiver or renunciation of the claim or right unless in writing signed by such
party, (b) no waiver that may be given by any party will be applicable except in
the specific instance for which it is given and (c) no notice to or demand on a
party will be deemed to be a waiver of any obligation of such party and no
notice from or demand by a party will be deemed to be a waiver of such party’s
right to take further action without notice or demand as provided in this
Agreement.
(iii) This
Agreement may be amended, and the observance of any term of this Agreement may
be waived, with (and only with) the written consent of each of MacAndrews and
the Company; provided, however, that any such amendment or waiver must be
approved on behalf of the Company by a majority of the Independent Directors of
the Company or a committee of the Board comprised solely of Independent
Directors.
(f) Governing Law, Jurisdiction;
Waiver Of Jury Trial.
(i) This
Agreement shall be construed, performed and enforced in accordance with, and
governed by, the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws thereof. Each of the parties hereto
irrevocably elects as the sole judicial forum for the adjudication of any
matters arising under or in connection with this Agreement, and consent to the
exclusive jurisdiction of, the state and federal courts of the State of
Delaware, New Castle County.
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(ii) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS
AGREEMENT IS LIKELY TO INVOLVE ISSUES NOT WELL SUITED TO DETERMINATION BY A
JURY, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO
REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK
TO ENFORCE THE FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS
WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 5(f).
(g) Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule of law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of this Agreement is not affected in
any manner adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in a mutually
acceptable manner in order that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
(h) Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original and all of which together shall be considered one and the
same agreement.
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IN
WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement as
of the date first above written.
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M&F
WORLDWIDE CORP.
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By:
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/s/
Xxxxxx X. Xxxxxx
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Name:
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Xxxxxx
X. Xxxxxx
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Title:
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Senior
Vice President and Chief Legal Officer
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MACANDREWS
& FORBES HOLDINGS INC.
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By:
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/s/
Xxxxxxx X. Xxxxxxxx
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Name:
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Xxxxxxx
X. Xxxxxxxx
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Title:
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Executive
Vice President and General
Counsel
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