Exhibit 2.3
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement (this "Agreement"), is entered into as
of February 13, 1997 by and among KinderCare Learning Centers, Inc., a Delaware
corporation (the "Company"), TCW Special Credits Fund V The Principal Fund, a
California limited partnership ("Fund V"), Oaktree Capital Management, LLC, a
California limited liability company ("Oaktree"), and KLC Associates, L.P., a
Delaware limited partnership, and KKR Partners II, a Delaware limited
partnership (collectively, the "KKR Investors").
RECITALS
WHEREAS, KCLC Acquisition Corp. and the Company have entered into
that certain Agreement and Plan of Merger dated as of October 3, 1996 and as
amended as of December 27, 1996 (the "Merger Agreement"), pursuant to which the
KKR Investors have acquired approximately 85% of the outstanding shares of
common stock, par value $.01 per share, of the Company; and
WHEREAS, pursuant to the terms of the Merger Agreement, Fund V has
retained beneficial ownership of 949,244 shares of Common Stock.
WHEREAS, that certain Voting Agreement entered into by an affiliate
of the KKR Investors, Oaktree, Fund V and certain other affiliates of Oaktree
requires that the parties hereto enter into a stockholders agreement in the form
of this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the parties hereto
agree as follows:
Section 1. Definitions
As used in this Agreement, the following capitalized terms shall
have the following meanings:
Affiliate: When used with respect to a specified Person, another
Person that, either directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, the Person
specified.
Board: The Board of Directors of the Company.
Common Stock: The Common Stock, par value $.01 per
share, of the Company.
Exempt Transaction: Has the meaning set forth in
Section 2(c) hereof.
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Initial Oaktree Shares: The shares of Common Stock owned by Fund V
immediately after giving affect to the consummation of the merger contemplated
by the Merger Agreement.
KKR Affiliate: With respect to the KKR Investors shall mean a Person
that directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with the KKR Investors; provided,
however, that KKR Affiliate shall not in any event include the limited partners
of the KKR Investors or the limited partners of the general partner of the KKR
Investors.
KKR Holder: The KKR Investors and any Person to whom a KKR Holder
transfers shares of Common Stock which Person is required by this Agreement to
be bound by the provisions of this Agreement.
KKR Shares: As of any date of determination, the shares of Common
Stock then held by the KKR Holders.
Oaktree Investors: As of any date of determination, Fund V and any
other investors for which Oaktree is the sole investment manager which then own
shares of Common Stock.
Oaktree Shares: As of any date of determination, the
shares of Common Stock then held by the Oaktree Investors.
Person: An individual, partnership, limited liability company, joint
venture, corporation, trust or unincorporated organization, a government or any
department, agency or political subdivision thereof or other entity.
Private Sale: Any sale of securities other than a sale made in a
public distribution pursuant to an effective registration statement under the
Securities Act.
Securities Act: The Securities Act of 1933, as amended
from time to time and the rules and regulations promulgated
thereunder.
Section 2. (a) "Tag-Along" Right With Respect to Private Sales by
KKR Holders. (i) Private Sales of Shares by KKR Holders. Subject to the last
sentence of Section 3(a), with respect to any proposed Private Sale of any KKR
Shares by a KKR Holder or KKR Holders (collectively, for purposes of this
Section 2, the "KKR Holder") during the term of this Agreement to a Person (a
"Proposed Purchaser"), other than pursuant to an Exempt Transaction (as defined
in Section 2(c)), the Oaktree Investors shall have the right and option, but not
the obligation, to participate in such sale, on the same terms and subject to
the same conditions as the sale by the KKR Holder, for the number of Oaktree
Shares owned by the Oaktree Investors equalling the number derived by
multiplying the total number of KKR Shares which the KKR Holder proposes to sell
(the "Proposed Number of
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Shares") by a fraction, the numerator of which is the total number of Oaktree
Shares and the denominator of which is the sum of (A) the total number of
Oaktree Shares, (B) the total number of KKR Shares, and (C) the total number of
shares of Common Stock (determined on a fully diluted basis) owned by Persons
entitled to the benefits of any other "tag-along" rights arising as a result of
such sale.
(ii) Notices. The KKR Holder shall notify, or cause to be notified,
Oaktree in writing of each proposed Private Sale subject to Section 2(a)(i)
above. Such notice shall set forth: (A) the Proposed Number of Shares, (B) the
name and address of the Proposed Purchaser, (C) the proposed amount of
consideration, the material terms and conditions of such sale (and if the
proposed consideration is not cash, the notice shall describe the terms of the
proposed consideration) and the proposed closing date of such sale, (D) the
total number of KKR Shares and the total number of shares of Common Stock
(determined on a fully diluted basis) owned by Persons entitled to the benefits
of any other "tag-along" rights arising as a result of such sale and (D) that
the Proposed Purchaser has been informed of the "tag-along" right provided for
in this Section 2(a) and has agreed to purchase Oaktree Shares held by the
Oaktree Investors in accordance with the terms hereof. The "tag-along" right may
be exercised by the Oaktree Investors by delivery of a written notice from
Oaktree to the KKR Holder (the "Tag-Along Notice") within 15 days following
receipt of the notice specified in the preceding sentence. The Tag-Along Notice
shall state the amount of Oaktree Shares that the Oaktree Investors propose to
include in such sale to the Proposed Purchaser. If Oaktree delivers a Tag-Along
Notice to the KKR Holder, the Oaktree Investors participating in the proposed
Private Sale shall (A) prior to closing of any such sale, execute and deliver
(or cause to be executed and delivered) any purchase agreement or other
documentation required by the Proposed Purchaser to consummate the sale
(including without limitation all legal opinions, cross-receipts and
certificates), which purchase agreement and other documentation shall be on
terms no less favorable in respect of any material term to such Oaktree
Investors than those executed by the KKR Holders and (B) at the closing of any
such sale, deliver to the Proposed Purchaser the certificate or certificates
representing the Oaktree Shares to be sold pursuant to such sale by such Oaktree
Investors, duly endorsed for transfer with signatures guaranteed, against
receipt of the purchase price thereof.
(iii) Number of Shares to be Sold. If a Tag-Along Notice is received
pursuant to Section 2(a)(ii), the Oaktree Investors shall be permitted to sell
to the Proposed Purchaser up to the number of Oaktree Shares determined as set
forth in Section 2(a)(i) above (the "Proposed Oaktree Shares"), and the KKR
Holder shall be permitted to sell to the Proposed Purchaser up to a number of
shares of Common Stock (the "Proposed KKR Shares") equal to the Proposed Number
of Shares, less the
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aggregate number of Proposed Oaktree Shares and all other shares of Common Stock
being sold to such Proposed Purchaser in such transaction pursuant to tag-along
rights arising as a result of such sale; provided that the KKR Holder shall have
the right to sell a number of additional shares of Common Stock up to the excess
of the Proposed Number of Shares over the number of Proposed KKR Shares, if the
Proposed Purchaser wants to purchase such additional shares. If no Tag-Along
Notice is received by the KKR Holder pursuant to Section 2(a)(ii), the KKR
Holder shall have the right for a 120-day period to sell to the Proposed
Purchaser up to the Proposed Number of Shares on terms and conditions no more
favorable in any material respect to the KKR Holder than those stated in the
Tag-Along Notice.
(b) "Tag-Along" Right With Respect to Public Sales by KKR Holders.
(i) Public Sales of Shares by KKR Holders. Subject to the last sentence of
Section 3(a), with respect to any proposed sale of any KKR Shares by a KKR
Holder during the term of this Agreement made in a public distribution pursuant
to an effective registration statement under the Securities Act, other than
sales described in clause (iv) of the definition of Exempt Transaction, the
Oaktree Investors shall have the right and option, but not the obligation, to
participate in such public distribution on the same terms and subject to the
same conditions as the sale by the KKR Holder for a number of Oaktree Shares
owned by the Oaktree Investors as determined pursuant to Section 2(b)(iii)
below.
(ii) The KKR Holder shall notify, or cause to be notified, Oaktree
in writing (a "Notice") of each proposed public distribution pursuant to an
effective registration statement under the Securities Act (a "Proposed
Registration"). Such notice may be given before the filing of such registration
statement and need not specify any price or other terms or conditions of such
sale. If within 10 days of the delivery of such Notice to Oaktree, the KKR
Holder receives from Oaktree a written request (a "Request") to register shares
of Common Stock held by the Oaktree Investors (which Request will be
irrevocable), shares of Common Stock will be so registered as and to the extent
provided in this Section 2(b) if KKR Shares are so registered. If Oaktree
delivers a Request to the KKR Holder, the Oaktree Investors will participate in
such public distribution, if any, at the same price and on the same terms and
conditions as the KKR Holder, which price and other terms and conditions will be
determined on behalf of the KKR Holder and the Oaktree Investors by the KKR
Holder in its sole discretion. Nothing in this Agreement shall create any
obligation on the part of the KKR Holder to cause a registration statement to
become effective under the Securities Act or to sell any shares of Common Stock
pursuant to an effective registration statement under the Securities Act.
(iii) The maximum number of shares of Common Stock which will be
registered pursuant to a Request will equal the
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number derived by multiplying the total number of KKR Shares which the KKR
Holder proposes to sell in such public distribution by a fraction, the numerator
of which is the total number of Oaktree Shares and the denominator of which is
the sum of (A) the total number of Oaktree Shares, (B) the total number of KKR
Shares, and (C) the total number of shares of Common Stock (determined on a
fully diluted basis) owned by Persons entitled to the benefits of any other
"tag-along" rights arising as a result of such distribution; provided that in
the event that the aggregate number of shares of Common Stock to be sold in any
such public distribution is increased or decreased, then the number of shares of
Common Stock which the Oaktree Investors shall sell in such public distribution
shall be increased or decreased by the product of (i) the number of shares of
Common Stock by which the total number of shares of Common Stock in such public
distribution is increased or decreased and (ii) a fraction the numerator of
which equals the number of Oaktree Shares originally so registered and the
denominator of which is the total number of shares of Common Stock originally so
registered.
(iv) Upon delivery of a Request, the participating Oaktree Investors
will, if requested by the KKR Holder, execute and deliver to the KKR Holder a
custody agreement and power of attorney in form and substance reasonably
satisfactory to the KKR Holder with respect to the shares of Common Stock to be
registered pursuant to this Section 2(b) (a "Custody Agreement and Power of
Attorney"). The custodian and attorney-in-fact under the Custody Agreement and
Power of Attorney will be the KKR Holder or its designee. The Custody Agreement
and Power of Attorney will provide, among other things, that such Oaktree
Investors will deliver to and deposit in custody with the custodian and
attorney-in-fact named therein a certificate or certificates representing such
shares of Common Stock (duly endorsed in blank by the registered owner or owners
thereof or accompanied by duly executed stock powers in blank) and irrevocably
appoint said custodian and attorney-in-fact as such Oaktree Investors' agent and
attorney-in-fact with full power and authority to act under the Custody
Agreement and Power of Attorney on such Oaktree Investors' behalf with respect
to the matters specified therein (including without limitation executing an
underwriting agreement and cross-receipts).
(v) Oaktree, for itself and on behalf of each participating Oaktree
Investor, agrees that it will execute and deliver or cause to be executed and
delivered such other agreements and other documents (such as legal opinions,
cross-receipts and certificates) as the KKR Holder itself is delivering or as
the KKR Holder may otherwise reasonably request to implement the provision of
this Section 2(b).
(c) Exempt Transaction Defined. As used herein, the term "Exempt
Transaction" shall mean (i) sales by the KKR Investors to any KKR Affiliates,
(ii) sales by any KKR Affiliate to another KKR Affiliate or to the KKR
Investors, (iii) transfers
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by the KKR Investors and their respective KKR Affiliates to its partners or
members (and any subsequent sales by such partners or members) in the form of
dividends or distributions (whether upon liquidation or otherwise), (iv) sales
by the KKR Investors which, taken together with all prior sales by the KKR
Investors, equals a number of shares of Common Stock which is less than 10% of
the shares of Common Stock then outstanding on a fully diluted basis or (v) with
respect to Section 3 only, sales by any KKR Holders made in a public
distribution pursuant to an effective registration statement under the
Securities Act; provided that in the case of clauses (i) and (ii) above the
buyer agrees in writing to be bound by the provisions of this Agreement,
including this paragraph (c); provided, further that in the case of clause (iii)
above, if the transferee is an Affiliate of Kohlberg Kravis Xxxxxxx & Co., such
transferee agrees in writing to be bound by the provisions of this Agreement,
including this paragraph (c).
Section 3. "Drag-Along" Right with Respect to Oaktree Shares. (a)
Sales by KKR Holders. In the event that the KKR Holder determines, during the
term of this Agreement, to transfer either (i) at least 50% of the outstanding
shares of Common Stock on a fully diluted basis at the time of such transfer or
(ii) at least 35% of the outstanding shares of Common Stock on a fully diluted
basis at the time of such transfer (provided that such percentage set forth in
this clause (ii) equals 100% of the KKR Shares at the time of such transfer) to
a Proposed Purchaser, other than in an Exempt Transaction (a "Drag-Along Sale"),
then upon the request of the KKR Holders, the Oaktree Investors will transfer to
such Proposed Purchaser all of the Oaktree Shares at the same price and upon the
same terms and conditions in respect of any material term as such transfer by
the KKR Holders. In the event that the KKR Holders own at least 15% of the
outstanding shares of the Common Stock on a fully diluted basis and have signed
an agreement, with respect to all KKR Shares, to vote in favor of or tender in
connection with (a "Transaction Agreement") a business combination transaction
entered into by the Company, then, upon the request of the KKR Holders, the
Oaktree Investors will execute a Transaction Agreement with the same terms and
conditions in all material respects as the Transaction Agreement signed by the
KKR Holder. In the event that both Sections 2 and 3 hereto apply to a single
transaction, the "drag-along" rights set forth in this Section 3 will have
priority over the "tag-along" rights set forth in Section 2 above, and the
"tag-along" rights set forth in Section 2 will become exercisable by the Oaktree
Investors following a determination by the KKR Holder not to exercise its rights
under this Section 3.
(b) Notice. Prior to making any Drag-Along Sale, the KKR Holders
shall, if they determine in their sole discretion that the Oaktree Investors
should participate in such transfer, provide Oaktree with written notice (the
"Drag-Along Notice") not less than 5 business days prior to the proposed date of
the Drag-Along Sale (the "Drag-Along Sale Date"). The Drag-Along Notice
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shall set forth: (i) the name and address of the Proposed Purchaser; (ii) the
proposed amount and form of consideration to be paid per share of Common Stock
and the material terms and conditions of the transfer; (iii) the Drag-Along Sale
Date and the date upon which the Oaktree Investors shall deliver to the KKR
Holders the certificates representing the Oaktree Shares, duly endorsed, and the
power of attorney referred to below; and (iv) that the Proposed Purchaser has
been informed of the Drag-Along Sale rights and has agreed to acquire all of
the Oaktree Shares. The Oaktree Investors shall (i) prior to closing of any such
transfer, execute any purchase agreement or other documentation required by the
Proposed Purchaser to consummate the transfer, which purchase agreement and
other documentation shall be on terms no less favorable in respect of any
material term to the Oaktree Investors than those executed by the KKR Holders,
and (ii) at the closing of any such transfer, deliver to the Proposed Purchaser
the certificate or certificates representing the Oaktree Shares, duly endorsed
for transfer with signatures guaranteed, against receipt of the purchase price
thereof. Prior to entering into a Transaction Agreement, the KKR Holders shall,
if they determine in their sole discretion that the Oaktree Investors should
execute a Transaction Agreement, provide Oaktree with written notice (the
"Transaction Agreement Notice") not less than 5 business days prior to the
proposed date of the execution of the Transaction Agreement (the "Transaction
Agreement Date"). The Transaction Agreement Notice shall set forth: (i) the name
and address of the counter-parties to the Transaction Agreement; (ii) the
proposed form of Transaction Agreement; and (iii) the material terms and
conditions of the business combination with the Company to which the Transaction
Agreement relates. The Oaktree Investors shall, at the signing and closing of
such Transaction Agreement, execute and deliver all other documentation required
by such Transaction Agreement, which documents shall be on terms no less
favorable in respect of any material term to the Oaktree Investors than those
executed by the KKR Holder.
(c) Effect of Drag-Along Sale. If the Oaktree Investors receive
their proportionate share of the purchase price from a Drag-Along Sale, but have
failed to deliver certificates representing their shares of Common Stock as
described in this Section 3, they shall for all purposes be deemed no longer to
be stockholders of the Company, shall have no voting rights, shall not be
entitled to any dividends or other distributions with respect to the Common
Stock held by them, and shall have no other rights or privileges granted to
stockholders under law or this Agreement.
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Section 4. Election of Director; Other Rights. (a) Subject to Fund
V's compliance with Section 3(g) of the Voting Agreement, if immediately after
giving effect to the merger contemplated by the Merger Agreement, Fund V owns in
excess of 432,099 shares of the Common Stock, then one representative of the
Oaktree Investors, who shall be either Xx. Xxxxxxx X. Xxxxxx or Xx. Xxxxx X.
Xxxxx, or in the event that both Xx. Xxxxxx and Xx. Xxxxx are not affiliated
with Oaktree or are permanently disabled, another individual selected by Oaktree
who is reasonably acceptable to the Company and the KKR Holder, shall (i) be
nominated by the Company for election to the Board and (ii) have the KKR Shares
voted in favor of his election to the Board, until such time as this Agreement
terminates in accordance with its terms. At such time as this Agreement
terminates in accordance with its terms, the Oaktree Investors will, upon notice
to Oaktree from the KKR Investors, cause their nominee to resign from the Board.
(b) VCOC Agreements. The Oaktree Investors shall have the right,
during the term of this Agreement, upon reasonable prior written notice to the
Company, to (i) discuss the business, operations, properties, financial and
other conditions and plans and prospects of the Company with any executive
officer or director of the Company or any subsidiary of the Company and (ii)
during normal business hours, to visit and inspect any of the properties of the
Company and its subsidiaries.
Section 5. Transfer. (a) The Oaktree Investors agree not to offer or
to transfer, sell, assign, pledge, hypothecate or otherwise dispose of
("Transfer") any of their shares of Common Stock unless such offer or Transfer
complies with the Securities Act and the rules and regulations thereunder and
the state securities laws of any applicable state.
(b) Any transferee of an Oaktree Investor will not acquire any
rights under this Agreement. Any Person which owns shares of Common Stock and
which, prior to the date of determination, was an Oaktree Investor, but, on the
date of determination, Oaktree is not the sole investment manager of, shall not
be entitled to any rights under this Agreement.
Section 6. Miscellaneous. (a) Termination of
Agreement. The provisions of this Agreement shall terminate upon
the earliest of:
(i) the earliest of (A) if the number of Initial Oaktree Shares is
less than 864,198, such time as the Oaktree Investors own less than 90% of
the number of Initial Oaktree Shares; (B) if the number of Initial Oaktree
Shares is 864,198 or more, then at such time as the Oaktree Investors
transfer a number of shares of Common Stock such that (1) immediately
before giving effect to such transfer, the Oaktree Investors owned at
least 10% of the shares of Common Stock on a fully diluted basis and (2)
immediately
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after giving effect to such transfer, the Oaktree Investors owns less than
10% of the shares of Common Stock on a fully diluted basis or (C) if the
number of Initial Oaktree Shares is 864,198 or more and the number of
Oaktree Shares falls below 10% of the number of shares of Common Stock on
a fully diluted basis other than as a result of a transfer by the Oaktree
Investors, such time after such falling below as the Oaktree Investors
transfer any shares of Common Stock and thereafter the Oaktree Investors
own less than 90% of the number of Initial Oaktree Shares;
(ii) the date on which the KKR Holders in the aggregate own less
than 15% of the shares of Common Stock on a fully diluted basis; or
(iii) the tenth anniversary of the date of this Agreement.
Notwithstanding the immediately preceding sentence, this Section 6 and the
last sentence of Section 4(a) shall survive the termination of this Agreement.
For the purpose of Section 6(a)(i), the term "transfer" shall include, with
respect to an Oaktree Investor, Oaktree no longer being the sole investment
manager of such Oaktree Investor.
(b) Representation and Warranty. The Oaktree Investors own, of
record or beneficially, no shares of Common Stock or securities convertible or
exchangeable for shares of Common Stock, other than the Oaktree Shares subject
to this Agreement.
(c) Assignment, Binding Effect. This Agreement shall not be
assignable by the parties hereto, except to any Person who in connection with a
transfer of KKR Shares is required by this Agreement, in connection with such
transfer, to agree to be bound by the provisions of this Agreement. Subject to
the foregoing, this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective legal representatives, heirs, legatees,
successors and permitted assigns.
(d) Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the consummation of any of the transactions
contemplated hereby shall be paid by the party incurring such expenses.
(e) Amendments. The provision of this Agreement, including the
provisions of this sentence, may be amended, modified or supplemented only by a
written instrument executed by holders of (i) at least a majority of the KKR
Shares, (ii) Oaktree and (iii) the Company.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York, without regard to
principles of conflict of
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laws. Each of the parties hereto agrees to submit to the jurisdiction of the
courts of the State of New York in any action or proceeding arising out of or
relating to this Agreement.
(g) Interpretation. The headings of the sections contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not affect the meaning or interpretation of this
Agreement.
(h) Notices. All notices and other communications required or
permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or by telecopy or seven days
after having been sent by certified mail, return receipt requested, postage
prepaid, to the parties to this Agreement at the following address or to such
other address as either party to this Agreement shall specify by notice to the
other:
(1) If to the KKR Investors or a KKR Holder, to it in
care of:
Kohlberg Kravis Xxxxxxx & Co.
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
(2) If to Oaktree or to an Oaktree Investor, to it in
care of:
Oaktree Capital Management, LLC
000 Xxxxx Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
(3) If to the Company, to it in care of:
KinderCare Learning Centers, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
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Vice President/General Counsel
with a copy to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
(i) Waiver and Consent. No action taken pursuant to this Agreement,
including, without limitation, any investigation by or on behalf of any party,
shall be deemed to constitute a waiver by the party taking such action of
compliance with any representations, warranties, covenants or agreements
contained herein. The waiver by any party hereto of a breach of any provision of
this Agreement shall not operate or be construed as waiver of any preceding or
succeeding breach and no failure by any party to exercise any right or privilege
hereunder shall be deemed a waiver of such party's rights or privileges
hereunder or shall be deemed a waiver of such party's rights to exercise the
same at any subsequent time or times hereunder. Each party hereto, in addition
to being entitled to exercise all rights provided herein, in the charter or
granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. Each party hereto agrees that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of the provisions of this Agreement and hereby agrees
to waive the defense in any action for specific performance that a remedy at law
would be adequate.
(j) Inspection. Copies of this Agreement will be available for
inspection or copying by any party at the offices of the Company through the
Secretary of the Company.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to constitute one and the same agreement.
(l) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(m) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the rights of the Oaktree Investors herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matters.
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(n) Limited Liability of Partners. Notwithstanding anything that may
be expressed or implied in this Agreement, each KKR Holder and each Oaktree
Investor, by its acceptance of the benefits of this Agreement, covenants, agrees
and acknowledges that notwithstanding that the KKR Holder and the Oaktree
Investors are partnerships no recourse under this Agreement or any documents or
instruments delivered in connection with this Agreement shall be had against any
officer, agent or employee of any KKR Holder or any Oaktree Investor, against
any partner of any KKR Holder or Oaktree Investor or any director, officer,
employee, partner, affiliate or assignee of any of the foregoing, whether by the
enforcement of any assessment or by any legal or equitable proceeding, or by
virtue of any statute, regulation or other applicable law, it being expressly
agreed and acknowledged that no personal liability whatsoever shall attach to,
be imposed on or otherwise be incurred by an officer, agent or employee of any
KKR Holder or any Oaktree Investor or any partner of any KKR Holder or any
Oaktree Holder or any director, officer, employee, partner, affiliate or
assignee of any of the foregoing, as such for any obligations of any KKR Holder
or Oaktree Investor under this Agreement or any documents or instruments
delivered in connection with this Agreement or for any claim based on, in
respect of or by reason of such obligations or their creation.
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IN WITNESS WHEREOF, the parties have executed this Stockholders'
Agreement as of the date first above written.
KINDERCARE LEARNING CENTERS, INC.
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Chief Financial Officer
and Senior Vice
President
TCW SPECIAL CREDITS FUND V - THE
PRINCIPAL FUND
By: TCW ASSET MANAGEMENT CO.,
General Partner
By: OAKTREE CAPITAL
MANAGEMENT, LLC
Manager
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: Authorized Signatory
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OAKTREE CAPITAL MANAGEMENT, LLC,
By: /s/ Xxxxxxx Xxxxx
---------------------------
Name: Xxxxxxx Xxxxx
Title:
By: /s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title:
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KLC ASSOCIATES, L.P.
By KKR ASSOCIATES (KLC) L.P,
General Partner
By KKR-KLC L.L.C.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Member
KKR PARTNERS II, L.P.
By KKR ASSOCIATES L.P.,
General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
