Exhibit 4.12
AGREEMENT (this "Agreement"), dated as of July 16, 2001, between
ARAMARK CORPORATION, a Delaware corporation (the "Company"), and METROPOLITAN
LIFE INSURANCE COMPANY, a New York corporation ("MetLife", and together with the
Company, the "Parties" and each individually, a "Party").
WHEREAS, the Parties have entered into an Amended and Restated
Stockholders' Agreement, dated as of December 14, 1994 (the "Stockholders
Agreement");
WHEREAS, the Parties have entered into an Amended and Restated
Registration Rights Agreement, dated as of April 7, 1988 (the "Registration
Rights Agreement"), and into an Amendment and Waiver, dated as of the date
hereof, in connection with the Registration Rights Agreement (the "Amendment and
Waiver");
WHEREAS, in consideration for MetLife entering into the Amendment and
Waiver, the Company has agreed to enter into this Agreement; and
WHEREAS, any capitalized term not defined herein shall have the
meaning given to such term in the Amendment and Waiver.
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree as
follows:
SECTION 1. Permitted Transfers. MetLife shall have the right after
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the S-1 Filing Date referenced in the Amendment and Waiver (but prior to the
earlier of March 1, 2002 or the decision by the Company to postpone or cancel
the Reorganization or the IPO) to transfer any number of shares of Common Stock,
par value $0.01 per share, of the Company owned by MetLife as of any date (the
"Shares") to the Permitted Transferee (as defined in Schedule I), and the
Company hereby waives its rights of first refusal set forth in Sections 4.02,
4.03, 4.04, 4.05 and 4.07 of the Stockholders Agreement with respect to any such
transfer to the Permitted Transferee; provided that the Permitted Transferee
executes a counterpart of the Stockholders Agreement (without giving effect to
this Agreement), the Registration Rights Agreement and the Amendment and Waiver.
Pursuant to Section 8(c) of the Amendment and Waiver, the Company hereby agrees
to permit MetLife to disclose, after the filing of the registration statement
relating to the IPO, the Amendment and Waiver in connection with any transfer to
a Permitted Transferee, provided that such transferee agrees to execute and be
bound by the Amendment and Waiver.
SECTION 2. Miscellaneous. (a) Each Party shall bear its own costs
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and expenses incurred in connection with this Agreement.
(b) This Agreement may be executed by the Parties in one or more
counterparts, and all of such counterparts shall be deemed to constitute one and
the same instrument. This Agreement may be delivered by facsimile transmission
of the relevant signature pages hereof.
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(c) This Agreement and the rights and obligations hereunder may not
be assigned, in whole or in part, by either Party. Any purported assignment in
violation of this Section 2(c) shall be void and unenforceable. Nothing in this
Agreement, express or implied, is intended to or shall confer upon any other
person (other than MetLife's successors and assigns) any right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
(d) The Company shall not disclose the information set forth in
Schedules I and II hereto except (a) to its officers, agents and advisors who
are directly involved in the consideration of this matter, (b) as may be
compelled in a judicial or administrative proceeding or as otherwise required by
law (in which case the Company shall promptly inform MetLife), or (c) as
otherwise permitted with the prior written consent of MetLife. Notwithstanding
the foregoing, MetLife hereby consents to disclosure in the registration
statements relating to the IPO and the Reorganization concerning (i) the
beneficial ownership by one of such Permitted Transferees of shares of (x) Class
A common stock of the Company and (y) Class A-1 common stock of New ARAMARK and
(ii) the fact that MetLife recently transferred its shares of Class A common
stock of the Company to such Permitted Transferee with the Company's consent.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ANY
CONFLICTS OF LAW PRINCIPLES OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF
THE LAWS OF ANOTHER STATE.
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IN WITNESS WHEREOF, each Party has caused this Agreement to be
executed and delivered by its duly authorized representative as of the date
first written above.
ARAMARK CORPORATION
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
Title: E.V.P., General
Counsel and Secretary
METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Managing Director
Schedule I
Definition of Permitted Transferee
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"Permitted Transferee" means Portfolio Investment Holdings LLC;
provided that (x) to the extent a securities affiliate of the sole equity member
of Portfolio Investment Holdings LLC is an underwriter in the syndicate for the
IPO or (y) in the event the sole equity member of Portfolio Investment Holdings
LLC does not accept the transfer of the Shares, then the Permitted Transferee
may be one of the persons or entities set forth on Schedule II. In
clarification of the foregoing provision, MetLife agrees that if it determines
to transfer any Shares pursuant to Section 1 of the Agreement to which this
Schedule is attached, such transfer (x) may involve a substantially concurrent
interim transfer of a minority portion of such Shares to another equity owner of
the Permitted Transferee and (y) shall result in no more than one Permitted
Transferee holding all of such Shares and MetLife shall seek to transfer such
Shares to one such Permitted Transferee in the order that the Permitted
Transferees appear on Schedule II.
Schedule II
List of Alternative Permitted Transferees
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1. An affiliate of Xxxx Capital Partners, L.P. in which MetLife or one of
its affiliates has the principal economic interest.
2. Any other person or entity reasonably acceptable to the Company and in
which MetLife has the principal economic interest.
