EXHIBIT 10.9
AGREEMENT AMONG MEMBERS
(DEX HOLDINGS LLC)
THIS AGREEMENT AMONG MEMBERS (this "AGREEMENT") is made and effective as of
November 8, 2002, by and among Carlyle Partners III, L.P., a Delaware limited
partnership ("CP III"), Carlyle-Dex Partners L.P., a Delaware limited
partnership ("CARLYLE COINVEST I"), Carlyle-Dex Partners II L.P., a Delaware
limited partnership ("CARLYLE COINVEST II" and, together with CP III and Carlyle
Coinvest I, the "CARLYLE HOLDERS"), and Welsh, Carson, Xxxxxxxx & Xxxxx IX,
L.P., a Delaware limited partnership ("XXXXX XXXXXX IX"), and WD Investors LLC,
a Delaware limited partnership ("WCAS COINVEST I" together with Xxxxx Xxxxxx IX,
the "WCAS HOLDERS") (the Carlyle Holders and the WCAS Holders, collectively, the
"MEMBERS," and each individually a "MEMBER"), Dex Holdings LLC, a Delaware
limited liability company ("COMPANY"), Dex Media, Inc., a Delaware corporation,
Dex Media East, Inc., a Delaware corporation and Dex Media East LLC, a Delaware
limited liability company, together with each subsequently acquired or formed,
direct or indirect Subsidiary of the Company (collectively, "DEX MEDIA
ENTITIES").
RECITALS
--------
WHEREAS, the Members wish to allocate certain of their management rights
with regard to each of the Dex Media Entities among each other and to set forth
their mutual understandings with regard to the operations, control and
management of each of the Dex Media Entities.
AGREEMENT
---------
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"AFFILIATES" means with respect to a specified Person, any Person
that directly or indirectly controls, is controlled by, or is under common
control with, the specified Person. As used in this definition, the term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or otherwise.
"AMENDED AND RESTATED LLC AGREEMENT" means the Amended and
Restated Limited Liability Company Agreement of Dex Holdings LLC by and among
the Members and the other Members parties thereto, dated as of the date hereof
as it may be modified or supplemented from time to time.
"BENEFICIAL OWNERSHIP" shall mean the power, directly or
indirectly, through any contract, arrangement, understanding, relationship or
otherwise, to (i) vote, or to direct the voting of, a security, and (ii)
dispose, or to direct the disposition of, such security. "BENEFICIALLY OWNS"
shall mean having Beneficial Ownership.
"PERCENTAGE INTEREST" shall have the meaning given to it in the
Amended and Restated LLC Agreement.
"PERSON" includes any individual, corporation, association,
partnership (general or limited), joint venture, trust, estate, limited
liability company, or other legal entity or organization.
"SUBSIDIARIES" means, with respect to any Person, (i) any
corporation, limited liability company, 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, limited liability company, 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.
2. Election of Directors; Board Observer.
(a) Each of the Members agrees to (i) vote (at any regular or special
meeting of the Members or via written consent) all its Percentage Interest then
Beneficially Owned by it (whether so Beneficially Owned as of the date hereof or
hereafter acquired) in favor of, or otherwise to consent to, and (ii) to cause
the applicable Nominees (as hereinafter defined) to take all actions necessary
and appropriate (whether by vote or consent or otherwise) to cause, the election
of the persons nominated in accordance with Section 2(b) hereof (the "NOMINEES")
to the Dex Holdings LLC Board of Directors (the "COMPANY BOARD"), Dex Media,
Inc. Board of Directors (the "DEX MEDIA BOARD"), the Dex Media East, Inc. Board
of Directors (the "DEX MEDIA EAST BOARD"), the Dex Media East LLC Board of
Directors (the "DEX EAST BOARD") and to each of the Board of Directors (or
comparable governing bodies) for each other Dex Media Entity (collectively, the
"DEX MEDIA ENTITIES BOARDS").
(b) During the term of this Agreement, so long as such Member has a
right to appoint a director pursuant to the Equityholders Agreement, each of the
Members shall either directly through the Company or indirectly, through one of
its Subsidiaries, as applicable, be entitled to designate one (1) Nominee to
each of the Dex Media Entities Boards (such Nominee for any of the Dex Media
Entities Boards, if designated by CP III, a "CP III Nominee," if designated by
Carlyle Coinvest I, a "CARLYLE COINVEST I NOMINEE," if designated by Carlyle
Coinvest II, a "CARLYLE COINVEST II NOMINEE," if designated by Xxxxx Xxxxxx IX,
a "XXXXX XXXXXX IX NOMINEE"), and if designated by WCAS Coinvest I, a "WCAS
COINVEST I NOMINEE").
(c) If any Nominee is unable or unwilling to serve upon his or her
election to any Dex Media Entities Board, the Members shall, through the
applicable Dex Media Entity be entitled to nominate a replacement who shall then
be a Nominee for the purposes of this Agreement. If, following election to any
Dex Media Entities Board, any Nominee shall resign or be removed or be unable to
serve by reason of death or disability, the Members on behalf of which such
Nominee serves shall, through such applicable Dex Media Entity, within thirty
days of such event, notify the applicable Dex Media Entities Board in writing of
2
a replacement, and the Members shall, through such applicable Dex Media Entity,
take such steps as may be necessary to elect such replacement to the applicable
Dex Media Entities Board to fill the unexpired term of the Nominee.
(d) Each Member agrees not to take any action or permit any Nominee to
take any action without the written consent of
(A) CP III, which consent may be given or withheld in its sole
discretion, to remove, whether or not for cause, any CP III Nominee from any Dex
Media Entities Board following his or her election thereto, including, without
limitation, by decreasing the size of such Dex Media Entities Board such that
there are an insufficient number of directors on such Dex Media Entities Board
to permit CP III to exercise its rights to nominate a director to such Dex Media
Entities Board pursuant to this Section 2;
(B) Carlyle Coinvest I, which consent may be given or withheld in
its sole discretion, to remove, whether or not for cause, any Carlyle Coinvest I
Nominee from any Dex Media Entities Board following his or her election thereto,
including, without limitation, by decreasing the size of such Dex Media Entities
Board such that there are an insufficient number of directors on such Dex Media
Entities Board to permit Carlyle Coinvest I to exercise its rights to nominate a
director to such Dex Media Entities Board pursuant to this Section 2;
(C) Carlyle Coinvest II, which consent may be given or withheld
in its sole discretion, to remove, whether or not for cause, any Carlyle
Coinvest II Nominee from any Dex Media Entities Board following his or her
election thereto, including, without limitation, by decreasing the size of such
Dex Media Entities Board such that there are an insufficient number of directors
on such Dex Media Entities Board to permit Carlyle Coinvest II to exercise its
rights to nominate a director to such Dex Media Entities Board pursuant to this
Section 2;
(D) Xxxxx Xxxxxx IX, which consent may be given or withheld in
its sole discretion, to remove, whether or not for cause, any Xxxxx Xxxxxx IX
Nominee from any Dex Media Entities Board following his or her election thereto,
including, without limitation, by decreasing the size of such Dex Media Entities
Board such that there are an insufficient number of directors on such Dex Media
Entities Board to permit Xxxxx Xxxxxx IX to exercise its rights to nominate a
director to such Dex Media Entities Board pursuant to this Section 2; and.
(E) WCAS Coinvest I, which consent may be given or withheld in
its sole discretion, to remove, whether or not for cause, any WCAS Coinvest I
Nominee from any Dex Media Entities Board following his or her election thereto,
including, without limitation, by decreasing the size of such Dex Media Entities
Board such that there are an insufficient number of directors on such Dex Media
Entities Board to permit WCAS Coinvest I to exercise its rights to nominate a
director to such Dex Media Entities Board pursuant to this Section 2.
(e) If, during the term of this Agreement, any Member no longer has a
right to appoint a director pursuant to the Equityholders Agreement, such Member
shall have the right to appoint a representative to attend as a non-voting
observer (with respect to such Member, its "OBSERVER") each and every meeting of
any Dex Media Entity Board. The appointment and removal of a Member's Observer
3
shall be by written notice from such Member to the applicable Dex Media Entity
and shall take effect upon the delivery of written notice thereof at the such
Dex Media Entity's headquarters, attention: Chief Executive Officer. Each
Observer shall receive, on a timely basis, copies of all notices, minutes,
consents, and other materials that the Dex Media Entities provide to the members
of its board (the "BOARD MATERIALS"), provided, however, that the Dex Media
Entities reserve the right to exclude such representative from access to any
meeting or any materials if it is reasonably believed that such exclusion is
necessary to preserve any privilege, to protect confidential or otherwise
proprietary information or for any other reason if the applicable Dex Media
Entity Board, acting in good faith, reasonably determines that the presence of
such Observer would not be appropriate given the subject matter being discussed.
Except to the extent so excluded, each Observer may participate in discussions
of any and all matters brought before any meeting it attends as a non-voting
observer.
3. Proxy.
For so long as this Agreement is in effect, if any Member fails or refuses
to vote that Member's Percentage Interest as provided in Section 2 (the
"NONVOTING MEMBER"), without further action by the Nonvoting Member,
(a) CP III shall have an irrevocable proxy to vote the Nonvoting
Member's Percentage Interest to the extent such vote relates to any of the CP
III Nominees, and each Member hereby grants to CP III such irrevocable proxy;
(b) Carlyle Coinvest I shall have an irrevocable proxy to vote
the Nonvoting Member's Percentage Interest to the extent such vote relates to
any of the Carlyle Coinvest I Nominees, and each Member hereby grants to Carlyle
Coinvest I such irrevocable proxy;
(c) Carlyle Coinvest II shall have an irrevocable proxy to vote
the Nonvoting Member's Percentage Interest to the extent such vote relates to
any of the Carlyle Coinvest II Nominees, and each Member hereby grants to
Carlyle Coinvest II such irrevocable proxy;
(d) Xxxxx Xxxxxx IX shall have an irrevocable proxy to vote the
Nonvoting Member's Percentage Interest to the extent such vote relates to any of
the Xxxxx Xxxxxx IX Nominees, and each Member hereby grants to Xxxxx Xxxxxx IX
such irrevocable proxy; and
(e) WCAS Coinvest I shall have an irrevocable proxy to vote the
Nonvoting Member's Percentage Interest to the extent such vote relates to any of
the WCAS Coinvest I Nominees, and each Member hereby grants to WCAS Coinvest I
such irrevocable proxy.
4. Access to Financial Information. The Company shall cause each of
the other Dex Media Entities to provide each Member (i) with reasonable access
to all books of account at reasonable times and allow each of the Members to
make copies and abstracts thereof, and (ii) from time to time with reasonable
access to management of such Dex Media Entity at its respective places of
business to consult with such management regarding operating and financial
matters.
4
5. Acceptance and Acknowledgment.
(a) The Company acknowledges that the provisions of Section 2,
together with Section 4, are intended to provide the Members with "contractual
management rights" within the meaning of ERISA and the regulations promulgated
thereunder.
(b) Each of the Dex Media Entities hereby acknowledges and agrees
to the rights granted to the Members hereunder.
6. Miscellaneous.
(a) Each party hereto agrees to execute and deliver such
documents and take such further actions as may be necessary or desirable to
effect the purposes and objectives of this Agreement.
(b) This Agreement may not be amended or modified except by a
written instrument signed by each of the parties hereto. The waiver by any party
of such party's rights under this Agreement in any particular instance or
instances, whether intentional or otherwise, shall not be considered as a
continuing waiver which would prevent subsequent enforcement of such rights or
of any other rights.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if sent by recognized
overnight delivery service, return receipt requested, to (i) a Member shall be
sent to or made at the addresses given for that Member on the list attached to
the Amended and Restated LLC Agreement as Exhibit A or such other address as
that Member may specify by notice to the other Members, with a copy (in the case
of notice to a Xxxxxxx Xxxxxx) to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxx, XX 00000, Attn: Xxx Xxxxxxxx, and a copy (in the case of notice
to a WCAS Holder) to Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol, 00
Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000, Attn: Xxxx Xxxxxx, and (ii) the Company
shall be sent to or made the address for the Company set forth in the Amended
and Restated LLC Agreement. Any notice, request or consent to the Company shall
be given to each other Member. Notice so given shall be deemed to be given and
received on the second business day after sending by recognized overnight
delivery service, return receipt requested.
(d) The parties acknowledge and agree that the breach of the
provisions of this Agreement by any Member could not be adequately compensated
with monetary damages, and the parties hereto agree, accordingly, that
injunctive relief and specific performance shall be appropriate remedies to
enforce the provisions of this Agreement and waive any claim or defense that
there is an adequate remedy at law for such breach; provided, however, that
nothing herein shall limit the remedies herein, legal or equitable, otherwise
available and all remedies herein are in addition to any remedies available at
law or otherwise.
5
(e) This Agreement and those documents expressly referred to
herein constitute the entire agreement and understanding among the parties and
supersede all other prior agreements and undertakings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof and
thereof.
(f) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
(g) This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their heirs, administrators, executors, successors and
assigns.
(h) The headings of the Sections and paragraphs of this Agreement
have been inserted for convenience of reference only and do not constitute a
part of this Agreement.
(i) The parties agree that this Agreement shall be governed by
and construed in accordance with the laws of the state of Delaware, excluding
any laws thereof which would direct application of law of another jurisdiction.
(j) This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, with the same effect as if
each party had signed the same document. All such counterparts shall be deemed
an original, shall be construed together and shall constitute one and the same
instrument.
(k) When the context requires, the gender of all words used
herein shall include the masculine, feminine and neuter and the number of all
words shall include the singular and plural.
(l) Subject to the Amended and Restated LLC Agreement, this
Agreement shall remain in effect with respect to the Company so long as any of
the Carlyle Holders or the WCAS Holders Beneficially Own any Percentage Interest
in the Company, and shall remain in effect with respect to each of Dex Media
Entity (other than the Company) so long as the Company Beneficially Owns
(directly or indirectly) shares of voting stock or membership interests (as
applicable) of such other Dex Media Entity representing not less than 51% of the
votes entitled to be cast for members of the applicable Dex Media Entity Board.
6
IN WITNESS WHEREOF, the Members have caused this Agreement to be executed
as of the date first above written.
CARLYLE HOLDERS
CARLYLE PARTNERS III, L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director
CARLYLE-DEX PARTNERS L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director
S-1
CARLYLE-DEX PARTNERS II L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TC Group, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director
S-2
DEX HOLDINGS LLC
By: /s/ Xxxxx X. Xxxxxxx, Xx.
-------------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
Title: Managing Director
DEX MEDIA, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
DEX MEDIA EAST, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
DEX MEDIA EAST LLC
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: CEO and President
S-3
WCAS HOLDERS
WELSH, CARSON, XXXXXXXX & XXXXX IX, L.P.
By: WCAS IX Associates LLC,
as its General Partner
By: /s/ Xxxxxxx X. xx Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. xx Xxxxxx
Title: Managing Member
WD INVESTORS LLC
BY: WCAS IX Associates LLC,
as its General Partner By:
By: /s/ Xxxxxxx X. xx Xxxxxx
-------------------------------------------
Name: Xxxxxxx X. xx Xxxxxx
Title: Managing Member
S-4
