AMENDED AND RESTATED MANAGEMENT SUBSCRIPTION AGREEMENT
THIS AMENDED AND RESTATED MANAGEMENT SUBSCRIPTION AGREEMENT, dated as of
October 11, 2005 (this "Agreement"), is made by and among TAL International
Group, Inc., a Delaware corporation (the "Company"), whose address is c/o The
Jordan Company, L.P., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
and the persons and entities whose names are set forth on Exhibit 1 hereto
(collectively the "Shareholders").
WITNESSETH:
WHEREAS, the Company and the Shareholders are parties to that certain
Management Subscription Agreement, dated as of November 3, 2004 (the "Original
Agreement"); and
WHEREAS, the Company and the Shareholders desire to amend and restate the
Original Agreement in its entirety;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree to amend and restate the Original
Agreement in its entirety to read as follows:
1. Share Subscriptions.
(a) Each Shareholder (i) subscribes for the number of shares of
Common Stock, par value U.S. $0.001 per share of the Company (the "Common
Stock") set forth opposite such Shareholder's name in Exhibit 1 hereto at a
purchase price for the Common Stock of U.S. $1.00 per share (the "Common Stock
Cost"), and (ii) tenders cash in consideration of the issuance of such Shares.
(b) Each Shareholder (i) subscribes for the number of shares of
the Company's Series A 12% Cumulative Senior Preferred Stock, par value U.S.
$0.001 per share (the "Preferred Stock" and, together with the Common Stock, the
"Shares") set forth opposite such Shareholder's name in Exhibit 1 hereto at a
purchase price for the Preferred Stock of U.S. $1,000.00 per share (the
"Preferred Stock Cost"), and (ii) tenders cash in consideration of the issuance
of such Shares.
(c) Each of the Shareholders, in order to facilitate the
transactions contemplated by this Agreement, authorizes and appoints the Company
or any of its representatives to direct the transfer all or any portion of the
subscription consideration from any account into which such amounts may be paid
into for the benefit of such Shareholder to any account established for the
benefit of the Company or any of its subsidiaries. The Shareholder's investment
described hereby shall be the only investment in the Company required of the
Shareholders under this Agreement and no Shareholder shall, by virtue of such
investment, be subject to (i) any further obligation to contribute additional
capital to the Company or (ii) any liabilities of the Company that arise in the
ordinary course of business.
(d) Each Shareholder agrees to tender by wire or check for
consideration of the purchase price of the Shares being purchased by such
Shareholder on the date hereof,
provided that immediately upon tender of the consideration for such Shares
described in Section 1(a) and (b), the Company will issue such Shares.
(e) Each Shareholder acknowledges to the Company and the other
Shareholders that such Shareholder understands and agrees, as follows:
THE SHARES HAVE NOT BEEN REGISTERED UNDER FEDERAL OR STATE SECURITIES LAWS. THE
SHARES ARE VERY SPECULATIVE AND RISKY. THERE IS NO PUBLIC OR OTHER MARKET FOR
THE SHARES NOR IS ANY LIKELY TO DEVELOP. THE COMPANY AND ITS SUBSIDIARIES HAVE
BORROWED A SUBSTANTIAL PORTION OF THE FUNDS USED TO OPERATE ITS BUSINESS. EACH
SHAREHOLDER ACKNOWLEDGES THAT SUCH SHAREHOLDER MAY AND CAN AFFORD TO LOSE SUCH
SHAREHOLDER'S ENTIRE INVESTMENT IN THE SHARES AND THAT SUCH SHAREHOLDER
UNDERSTANDS SUCH SHAREHOLDER MAY HAVE TO HOLD THIS INVESTMENT INDEFINITELY.
2. Proposed Transactions.
(a) This Agreement references certain pertinent documents as well
as applicable laws and regulations. Each Shareholder acknowledges to the Company
and the other Shareholders that such references are not summaries or complete
and are qualified in their entirety by the complete texts of the documents, laws
and regulations so summarized.
(b) Each Shareholder acknowledges to the Company and the other
Shareholders that such Shareholder has had ample opportunity to ask questions
regarding each of the following documents:
(i) Amended and Restated Certificate of Incorporation of
the Company;
(ii) Bylaws of the Company;
(iii) Stock Purchase Agreement dated as of July 10, 2004, by
and between TA Leasing Holding Co., Inc. and Xxxxxx & Company Limited, as
amended, including all exhibits and schedules thereto (the "Stock Purchase
Agreement");
(iv) Shareholders Agreement, dated as of the date hereof
(the "Shareholders Agreement"), by and among the Company and the
shareholders party thereto, including all exhibits and schedules thereto;
(v) Investor Subscription Agreement, dated as of the date
hereof, by and among the Company and the shareholders of the Company party
thereto, including all exhibits and schedules thereto (the "Investor
Subscription Agreement");
(vi) Management Consulting Agreement, dated as of the date
hereof, by and among the Company, its Related Companies and The Jordan
Company, L.P. ("TJC"), including all exhibits and schedules thereto (the
"TJC Management Consulting Agreement");
2 Management Subscription Agreement
(vii) Management Advisory Agreement, dated as of the date
hereof, by and among the Company, its Related Companies and the advisor
party thereto, including all exhibits and schedules thereto (the "Advisory
Agreement");
(viii) Transaction Fee Agreement, dated as of the date
hereof, by and between the Company and Seacon Holdings Limited ("Seacon
Fee Agreement").
(ix) Senior Subordinated Credit Agreement, dated as of
November 3, 2004, by and between the Company and the lenders named
therein, as such agreement may be amended, waived or otherwise modified or
refinanced from time to time and all other agreements and documents
related thereto (the "Loan Agreement");
(x) Credit Agreement, dated as of November 3, 2004, by and
among the Company, Fortis Bank, as Agent, Transamerica Leasing Inc. and
Trans Ocean Limited, as such agreement may be amended, waived or otherwise
modified or refinanced from time to time and all other agreements and
documents related thereto (the "Credit Agreement");
(xi) The Company's 2004 Management Stock Plan (the
"Management Stock Plan"); and
(xii) This Agreement and all exhibits and schedules hereto.
The documents referred to in (i) through (xii) are hereinafter
collectively referred to as the "Operative Documents", except that, for purposes
of Section 5(d) only, this Agreement and the Management Stock Plan will not be
considered by Operative Document.
3. Shareholder Representations, Warranties and Covenants. Each
Shareholder represents, warrants and covenants to the Company and each other
Shareholder that:
(a) Such Shareholder has the legal capacity, power and authority
to enter into and perform all of its obligations under this Agreement. The
execution, delivery and performance of this Agreement by such Shareholder will
not violate any other agreement to which such Shareholder is a party including,
without limitation, any voting agreement, shareholders agreement or voting
trust. This Agreement has been duly and validly authorized, executed and
delivered by such Shareholder and constitutes a valid and binding agreement of
such Shareholder, enforceable against such Shareholder in accordance with its
terms, except that such enforceability (i) may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting or relating to
enforcement of creditors' rights generally and (ii) is subject to general
principles of equity.
(b) Such Shareholder is employed in a managerial or executive
position with one or more of the Company's subsidiaries and is familiar with the
Company's and its subsidiaries' operations, financial condition and business
prospects.
(c) Such Shareholder will not (i) transfer any Shares if such
transfer would result in a default by the Company or its subsidiaries under any
of the provisions of the Operative Documents, (ii) except as required or
contemplated by the Operative Documents, grant
3 Management Subscription Agreement
any proxies, deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares, or (iii) take any action that would make
any representation or warranty of such Shareholder contained herein untrue or
incorrect or have the effect of preventing or disabling such Shareholder from
performing his obligations under any of the Operative Documents, or would result
in a default by the Company or its subsidiaries under the provisions of any of
the Operative Documents. Each Shareholder further agrees that such Shareholder's
ability to transfer Shares is subject to the limitations, restrictions and
conditions of the Shareholder Agreement and the Operative Documents.
(d) Such Shareholder will complete, execute and file a form of
election under Section 83(b) of the Internal Revenue Code of 1986, as amended,
with the Internal Revenue Service within thirty (30) days of the execution of
this Agreement and the purchase of the Shares.
(e) Such Shareholder has no pending or threatened claim,
complaint, action, suit, proceeding, hearing or investigation against the
Company or its subsidiaries for any period prior to the date hereof, nor does
such Shareholder presently intend to bring or file any claim, complaint, action,
suit, proceeding, hearing or investigation against the Company or its
subsidiaries for any period prior to the date hereof.
(f) The Company has afforded such Shareholder and such
Shareholder's advisors, if any, the opportunity to discuss an investment in the
Shares and to ask questions of representatives of the Company concerning the
terms and conditions of the offering of the Shares and the Operative Documents,
and such representatives have provided answers to all such questions concerning
the offering of the Shares and the Operative Documents. Such Shareholder has
consulted its own financial, tax, accounting and legal advisors, if any, as to
such Shareholder's investment in the Shares and with the Operative Documents and
the consequences thereof and risks associated therewith. Such Shareholder and
such Shareholder's advisors, if any, have examined or have had the opportunity
to examine before the date hereof the Operative Documents and all information
that such Shareholder deems to be material to an understanding of the Company
and its subsidiaries, the proposed business of the Company and its subsidiaries,
and the offering of the Shares. Such Shareholder also acknowledges that to such
Shareholder's knowledge there have been no general or public solicitations or
advertisements or other broadly disseminated disclosures (including, without
limitation, any advertisement, article, notice or other communication published
in any newspaper, magazine or similar media or broadcast over television, radio
or internet, or any seminar or meeting whose attendees have been invited by any
general solicitation or advertising) by or on behalf of the Company regarding an
investment in the Shares.
(g) Such Shareholder represents to the Company and the other
shareholders of the Company that it knows and understands and has given full
consideration to and has had the opportunity to ask questions of any person
authorized to act on behalf of the Company concerning any aspect of the
transactions with affiliates being consummated by the Company in connection with
the Shareholders Agreement, the Investor Subscription Agreement, the Loan
Agreement, the Credit Agreement, the TJC Management Consulting Agreement, the
Advisory Agreement, the Seacon Fee Agreement, and the Management Stock Plan,
including all agreements, obligations, covenants and arrangements contained
therein or contemplated thereby,
4 Management Subscription Agreement
including all exhibits and schedules thereto (collectively, the "Affiliate
Transaction Agreements").
4. Risk Factors and Other Considerations. Each Shareholder acknowledges
to the Company and the other Shareholders that:
(a) (i) The Company's subsidiaries are the Company's only material
assets, and that the Company and certain of its subsidiaries have borrowed a
substantial portion of the funds used to effect the purchase by the Company's
subsidiaries of the shares listed in the Stock Purchase Agreement; (ii) it is
unlikely that dividends will be paid on the Shares; (iii) there is no legal
requirement or promise made by the Company to declare or pay such dividends and
such dividends may not in any event be paid if such payment would violate any
term of the Operative Documents; (iv) certain of the Operative Documents
severely restrict the ability of the Company to make any dividend or redemption
payments on the Shares and such payment may be further restricted by future
agreements or instruments binding on the Company or its subsidiaries; (v) if a
Shareholder ceases to be an employee of the Company's subsidiaries such
Shareholder's Shares may be subject to certain rights of the Company to
repurchase such Shares under this Agreement or the Shareholder's employment
agreement with the Company's subsidiaries; and (vi) under the repurchase payment
terms, such Shareholders may not receive full cash payment in return for the
Shareholder's Shares for several years.
(b) Any financial projections or forecasts with respect to the
Company and its subsidiaries are only forecasts prepared by management, which
are subject to many assumptions and factors beyond the Company's and its
subsidiaries' control, and that there can be no assurances that these forecasts
will be realized.
(c) An investment in the Shares is a speculative investment which
involves a high risk of loss and that on and after the date hereof, there will
be no public market for the Shares and the Company does not contemplate that a
public market will develop.
(d) Such Shareholder has given full consideration to and has had
the opportunity to ask questions of any person authorized to act on behalf of
the Company concerning any aspect of the transactions with affiliates being
consummated by the Company in connection with the Affiliate Transaction
Agreements.
(e) The Operative Documents and any other agreement or instrument
that may restrict the ability of the Company to make any dividend or redemption
payments may be created, amended, modified or supplemented, from time to time,
and may be refinanced, extended or substituted, from time to time, without
notice to, or the consent or approval of, the Shareholders.
(f) Nothing in this Agreement shall constitute an agreement by, or
shall impose any obligation upon, the Company or its subsidiaries to employ, or
to continue to employ, any Shareholder, or shall constitute an agreement by, or
shall impose any obligation upon, the Company or its subsidiaries with respect
to the terms and conditions of employment of any Shareholder, and will not limit
or restrict, in any manner, the Company's or its subsidiaries' right or ability
to terminate the employment of any Shareholder.
5 Management Subscription Agreement
5. Securities Law and Other Matters. Each Shareholder represents and
warrants to the Company and the other Shareholders that:
(a) (i) Such Shareholder used no "purchaser's representative" (as
that term is used in Regulation D under the Securities Act of 1933, as amended
(the "Securities Act")) in connection with the transactions contemplated by the
operative documents in connection with the financing; (ii) neither TJC, The
Resolute Fund, L.P., nor any of their respective partners, members, principals,
directors, officers, representatives, attorneys, agents, employees or affiliates
has acted or is expected to act as a representative or agent of said Shareholder
in the subject transaction; (iii) such Shareholder has substantial knowledge and
experience in financial, investment and business matters, and specifically in
the business of the Company and its subsidiaries, and has the requisite
knowledge and experience to evaluate the risks and merits of its investment in
the Shares; (iv) the decision of such Shareholder to purchase the Shares
hereunder has been made by such Shareholder independent of any other Shareholder
and independent of any statements, disclosures or judgments as to the
properties, business, prospects or condition (financial or otherwise) of the
Company and its subsidiaries which may have been made or given by any
Shareholder or other Person.
(b) (i) The Shares being purchased by such Shareholder hereunder
have not been registered under the Securities Act on the ground that the sales
of Shares pursuant to this Agreement are exempt under Section 4(2) of the
Securities Act as not constituting a distribution, and that the Company's
reliance on such exemption is predicated in part on each Shareholder's
representation which such Shareholder herewith makes that the Shares have been
acquired solely by and for the account of such Shareholder for investment
purposes only, and are not being purchased for subdivision, fractionalization,
resale or distribution and other than as expressly set forth in the Operative
Documents, such Shareholder has no contract, undertaking, agreement or
arrangement with any other Shareholder to sell, transfer or pledge to such other
Shareholder or anyone else the Shares being sold to such Shareholder (or any
part thereof), and such Shareholder has no present plans or intentions to enter
into any such contract, undertaking, agreement or arrangement; (ii) the Shares
being sold to such Shareholder must be held indefinitely unless they are
subsequently registered under the Securities Act or a transfer is made pursuant
to an exemption from such registration, including, for example, pursuant to Rule
144 thereunder and that the Company has no agreements in respect of registering
the Shares under Federal or state law; and (iii) such Shareholder's financial
condition is such that Shareholder is not under any present necessity or
constraint, and does not foresee in the future any necessity or constraint, to
dispose of the Shares being sold to such Shareholder to satisfy any existing or
contemplated debt or undertaking.
(c) In the event that in the future the Company engages in any
negotiation or transaction (including a merger or consolidation or other
reorganization by or of the Company) in which Regulation D under the Securities
Act may or will be available to the Company, each of the Shareholders who is not
then a professional investor agrees irrevocably (and with the knowledge and
intention that the other holders of the Company's stock of all classes will rely
thereon in making their respective present investment decisions) that such
Shareholder will, within five (5) business days of notice from the Company,
which notice may be given in the sole discretion of the Company, appoint a
purchaser's representative or representatives who shall be qualified and
acceptable to the Company and any other Person(s) who is (are) involved in the
6 Management Subscription Agreement
proposed transaction so that the maximum benefits of Regulation D shall be
available to the Company and all of its shareholders.
(d) Such Shareholder hereby releases The Resolute Fund, L.P., The
Resolute Fund Singapore PV, L.P., The Resolute Fund Netherlands PV I, L.P., The
Resolute Fund Netherlands PV II, L.P., The Resolute Fund NQP, L.P., JZ Equity
Partners PLC, Fairholme Partners, L.P., Fairholme Ventures II, LLC, Fairholme
Holdings, Ltd., Edgewater Private Equity Fund III, L.P., Edgewater Private
Equity IV, L.P., and their respective affiliates, and each of their respective
partners, members, principals, directors, officers, representatives, attorneys,
agents, employees and affiliates from and against any claims in respect of each
Shareholder's subscription for Shares and any related transaction hereunder or
under the Operative Documents.
6. Registration Rights. The Shares have not been registered under the
Securities Act nor any state securities laws and, in consequence thereof, all of
the Shares must be held indefinitely unless (a) subsequently registered under
the Securities Act or other applicable federal and state securities laws or (b)
exemptions from such registration are available at the time of a proposed sale
or transfer thereof. Except as set forth in the Shareholders Agreement, the
Company has no agreements in respect of a registration statement under either
federal or state law.
7. [Intentionally Omitted]
8. [Intentionally Omitted]
9. Non-Competition/Non-Disclosure Provisions.
(a) Applicability. In the event of the termination of a
Shareholder's employment with the Company or any Related Company for any reason
or no reason, the Company will, within ten (10) business days of the effective
date of such termination, provide to such terminated Shareholder notice of
whether the Company has elected either (i) to waive compliance by such
terminated Shareholder with Section 9(b) as it is applicable to such terminated
Shareholder, in which case, Section 9(b) will cease to be applicable to such
terminated Shareholder on the 30th day following such effective date, or (ii) to
require compliance by such terminated Shareholder with Section 9(b), in which
case, (A) Section 9(b) will be applicable to such terminated Shareholder for 12
months following such effective date (the "Restricted Period") and (B) the
Company will, during the Restricted Period, and as a condition of such
compliance, continue to pay such terminated Shareholder an amount equal to his
base compensation, but excluding any incentive bonus, or other bonuses, benefits
or flexible perquisites, applicable to the six months prior to such effective
date; provided, however, that the Company shall have no obligation to make such
payment, if such terminated Shareholder's employment is terminated for cause. If
the Company fails to provide such notice, then it will be deemed to have elected
to waive compliance under clause (i). Regardless of whether the Company waives
compliance by a terminated Shareholder with Section 9(b) or makes the payments
specified in clause (ii)(B), Sections 9(c), 9(d) and 9(e) shall continue to
apply to such terminated Shareholder for the duration specified therein.
7 Management Subscription Agreement
(b) Non-Competition. In consideration of this Agreement, each
Shareholder covenants and agrees that during the period such Shareholder is an
officer, director or employee of the Company or any Related Company and during
the Restricted Period, such Shareholder shall not, subject to Section 9(a),
without the express written approval of the Board of Directors of the Company
(the "Board"), directly or indirectly, in one or a series of transactions, own,
manage, operate, control, invest or acquire an interest in, whether as a
proprietor, partner, shareholder, member, lender, director, officer, employee,
joint venturer, investor, lessor, supplier, customer, agent, representative or
other participant, or otherwise engage or participate in, whether as a
proprietor, partner, shareholder, member, lender, director, officer, employee,
joint venturer, investor, lessor, supplier, customer, agent, representative or
other participant, any business which competes, directly or indirectly, with the
Business in the Market ("Competitive Business") without regard to (A) whether
the Competitive Business has its office, manufacturing or other business
facilities within or without the Market, (B) whether any of the activities of
the Shareholder referred to above occur or are performed within or without the
Market or (C) whether the Shareholder resides, or reports to an office, within
or without the Market; provided, however, that (x) the Shareholder may, anywhere
in the Market, directly or indirectly, in one or a series of transactions, own,
invest or acquire an interest in up to five percent (5%) of the capital share of
a corporation whose capital share is traded publicly, or that (y) such
Shareholder may accept employment with a successor company to the Company. For
the avoidance of doubt, a Competitive Business shall not include a shipping
company that leases, finances, sells and/or manages shipping containers solely
for itself and not for any third party. Furthermore, a Shareholder shall not be
deemed to be engaged in a Competitive Business if he is employed at a company
that is not engaged in a Competitive Business but which has a sister company
that is engaged in a Competitive Business if the Shareholder has no involvement,
direct or indirect, in the sister company whatsoever.
(c) Non-Solicitation. If a Shareholder's employment is terminated,
then such Shareholder shall not for 12 months after termination of employment
(A) directly or indirectly, in one or a series of transactions, recruit, solicit
or otherwise induce or influence any proprietor, partner, shareholder, member,
lender, director, officer, employee, sales agent, joint venturer, investor,
lessor, customer, supplier, agent, representative or any other Person which has
a business relationship with the Company or a Related Company or had a business
relationship with the Company or a Related Company within the twenty-four (24)
month period preceding the date of the incident in question (other than a
customer or supplier who has a business relationship with the Shareholder's new
employer (if any)), to discontinue, reduce or modify such employment, agency or
business relationship with the Company or a Related Company, or (B) employ or
seek to employ or cause any Competitive Business to employ or seek to employ any
Person who is then (or was at any time within twelve (12) months prior to the
date such Shareholder or the Competitive Business employs or seeks to employ
such Person) employed or retained by the Company or a Related Company.
Notwithstanding the foregoing, nothing herein shall prevent such Shareholder
from providing a letter of recommendation to an employee with respect to a
future employment opportunity.
(d) Non-Disclosure. Each Shareholder further agrees, that during
and after his employment with the Company or a Related Company, such Shareholder
will not, directly or indirectly in one or a series of transactions disclose to
any Person or use or otherwise exploit for such Shareholder's own benefit or for
the benefit of anyone other than the Company or its
8 Management Subscription Agreement
subsidiaries any Confidential Information (as defined below) whether prepared by
such Shareholder or not, provided, however, that any Confidential Information
may be disclosed to officers, representatives, employees and agents of the
Company or its Related Companies who need to know such Confidential Information
in order to perform the services or conduct the operations required or expected
of them in the Business. Each Shareholder shall use his best efforts to prevent
the removal of any Confidential Information from the premises of the Company or
its Related Companies, except as required in his normal course of employment by
the Company or its subsidiaries. During the Term of employment, each Shareholder
shall use such Shareholder's commercially reasonable efforts to cause all
Persons to whom Confidential Information shall be disclosed by such Shareholder
hereunder to observe the terms and conditions set forth herein as though each
such Person or entity was bound hereby. After the term of employment, the
Shareholder shall not disclose Confidential Information other than to his
advisors, representatives and agents who execute a confidentiality agreement
whereby they will agree to observe the confidentiality terms and conditions set
forth herein. Each Shareholder shall have no obligation hereunder to keep
confidential any Confidential Information if and to the extent disclosure of any
thereof is specifically required by law; provided, however, that in the event
disclosure is required by applicable law, such Shareholder shall provide the
Company with prompt notice of such requirement to the extent allowed by law,
prior to making any disclosure, so that the Company may seek an appropriate
protective order. At the request of the Company, each Shareholder agrees to
deliver to the Company all Confidential Information which such Shareholder may
possess or control. Each Shareholder agrees that all Confidential Information of
the Company and Related Companies (whether now or hereafter existing) conceived,
discovered or made by him during his employment with the Company or its Related
Companies exclusively belongs to the Company and its direct and indirect
subsidiaries (and not to such Shareholder). Each Shareholder will promptly
disclose such Confidential Information to the Company and its Related Companies
and perform all actions reasonably requested by the Company and its Related
Companies to establish and confirm such exclusive ownership. As used herein, the
term "Confidential Information" means any confidential information including,
without limitation, any study, data, calculations, software storage media or
other compilation of information, patent, patent application, copyright,
trademark, trade name, service xxxx, service name, trade secrets, supplier lists
and contacts, customer lists and contacts, the fact of and terms of (including
without limitation, pricing terms) supplier, customer or consultant contracts,
pricing policies, business techniques, operational methods, marketing plans or
strategies, product development techniques or plans, business acquisition plans
or any portion or phase of any scientific or technical information, discoveries,
designs, computer programs (including source of object codes), processes,
procedures, formulas, improvements or other proprietary or intellectual property
of the Company or its subsidiaries, whether or not in written or tangible form,
and whether or not registered, and including all files, records, manuals, books,
catalogues, memoranda, notes, summaries, plans, reports, records, documents and
other evidence thereof. The term "Confidential Information" does not include,
and there shall be no obligation hereunder with respect to, information that
becomes generally available to the public other than as a result of a disclosure
by such Shareholder that is prohibited hereunder.
(e) Non-Disparagement. Each Shareholder agrees that during and
after his employment with the Company or a Related Company, he shall not make
any false, defamatory or disparaging statements about the Company or its Related
Companies or the officers or directors of the Company or its Related Companies.
During and after each Shareholder's
9 Management Subscription Agreement
employment with the Company or its Related Companies, the Company agrees on
behalf of itself and its Related Companies that neither the officers nor the
directors of the Company or its Related Companies shall make any false,
defamatory or disparaging statements about such Shareholder.
(f) Specific Performance. All the parties hereto agree that their
rights under this Section 9 are special and unique and that violation thereof
would not be adequately compensated by money damages and each grants the others
the right to specifically enforce (including injunctive relief where
appropriate) the terms of this Agreement.
10. Definitions. Capitalized terms used in this Agreement and not
otherwise defined shall have the meanings set forth below, unless the context
requires otherwise:
(a) "Business" means the business of leasing, financing, selling
and managing shipping containers, chassis and any other business that the
Company engages in during the employment of any Shareholder.
(b) "Commencement Date" means November 3, 2004.
(c) "Market" means any country in the United States of America and
each jurisdiction or other country in which (i) the Business was conducted by or
engaged in by the Company or its subsidiaries or in which the Company sought to
conduct the Business on or prior to the date hereof or (ii) the Business is
conducted by or engaged in by the Company or its subsidiaries or in which the
Company seeks to conduct the Business at any time during the Shareholder's
employment by the Company or its subsidiaries.
(d) "Person" means an individual, a corporation, limited liability
company, association, partnership, joint venture, organization, business, trust,
or any other entity or organization, including a government or any subdivision
or agency thereof.
(e) "Related Company" means all direct and indirect subsidiaries
of the Company.
(f) "Sale", "sell", "transfer" and the like include any
disposition by way of transfer, with or without consideration, to any Person for
any purpose and shall include, but shall not be limited in any way to,
redemption by the Company, private or public sale or exchanges of securities or
any other similar transaction involving share.
11. [Intentionally Omitted]
12. Shareholder Acknowledgement. Each Shareholder acknowledges and
agrees that the provisions of this Agreement have been reviewed and are
understood by such Shareholder, and expresses the will and intention of such
Shareholder and agrees not to take any action to frustrate the purposes and
provisions of this Agreement.
13. Defense of Claims. Each Shareholder agrees that, for the period
beginning on the date hereof, and continuing for a reasonable period after
termination of employment with the Company or its Related Companies, Shareholder
will cooperate with the Company in defense of
10 Management Subscription Agreement
any claims that may be made against the Company and its Related Companies and
affiliates (other than any claims made by the Shareholder), and will cooperate
with the Company in the prosecution of any claims that may be made by Company
and its Related Companies (other than any claims made against the Shareholder),
to the extent that such claims may relate to services performed by the
Shareholder for the Company and its Related Companies and affiliates. Each
Shareholder agrees to promptly inform the Company if he becomes aware of any
lawsuits involving such claims that may be filed against the Company and its
Related Companies and affiliates. The Company agrees to reimburse Shareholder
for all of Shareholder's reasonable out-of-pocket expenses associated with such
cooperation, including travel expenses. For periods during and following
Shareholder's employment with the Company or any Related Company, the Company
agrees to provide reasonable compensation to Shareholder for such cooperation in
addition to reimbursement of expenses and his reasonable attorneys' fees, if
any.
14. Miscellaneous.
(a) The rights and obligations contained in this Agreement are in
addition to the relevant provisions of the organizational documents of the
Company in force from time to time and shall be construed to comply with such
provisions. To the extent that this Agreement is determined to be in
contravention of the organizational documents of the Company, this Agreement
shall constitute a waiver by each Shareholder, to the fullest extent permissible
under applicable laws, of any right such Shareholder may have pursuant to the
organizational documents of the Company that is inconsistent with this
Agreement.
(b) This Agreement may be amended only by a written instrument
duly executed by Shareholders holding greater than 50.1% of the Shares held by
the Shareholders and the Company.
(c) Except as otherwise provided in this Agreement, any failure of
any of the parties to comply with any obligation, covenant, agreement or
condition herein may be waived by the party entitled to the benefits thereof
only by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure.
(d) The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Shares and to any and all equity or
debt securities of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets, or otherwise) which may be
issued in respect of, in exchange for, or in substitution of, such equity or
debt securities and shall be appropriately adjusted for any share dividends,
bonus issues, splits, reverse splits, combinations, subdivisions,
reclassifications, recapitalizations, reorganizations and the like occurring
after the date hereof.
(e) THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK. EACH OF
THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF ANY BREACH OF
THIS AGREEMENT, THE NON-BREACHING PARTY WOULD BE IRREPARABLY HARMED AND COULD
NOT BE
11 Management Subscription Agreement
MADE WHOLE BY MONETARY DAMAGES, AND THAT, IN ADDITION TO ANY OTHER REMEDY TO
WHICH THEY MAY BE ENTITLED AT LAW OR IN EQUITY, THE PARTIES SHALL BE ENTITLED TO
SUCH EQUITABLE OR INJUNCTIVE RELIEF AS MAY BE APPROPRIATE. THE CHOICE OF FORUM
SET FORTH IN THIS SECTION 14 SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF
ANY JUDGMENT OF A NEW YORK FEDERAL OR STATE COURT, OR THE TAKING OF ANY ACTION
UNDER THIS AGREEMENT TO ENFORCE SUCH A JUDGMENT, IN ANY OTHER APPROPRIATE
JURISDICTION.
(f) IN THE EVENT ANY PARTY TO THIS AGREEMENT COMMENCES ANY
LITIGATION, PROCEEDING OR OTHER LEGAL ACTION IN CONNECTION WITH OR RELATING TO
THIS AGREEMENT, ANY RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED
HEREIN OR THEREIN, THE PARTIES TO THIS AGREEMENT HEREBY (1) AGREE UNDER ALL
CIRCUMSTANCES ABSOLUTELY AND IRREVOCABLY TO INSTITUTE ANY LITIGATION, PROCEEDING
OR OTHER LEGAL ACTION IN A COURT OF COMPETENT JURISDICTION LOCATED WITHIN THE
SOUTHERN DISTRICT OF NEW YORK, WHETHER A STATE OR FEDERAL COURT; (2) AGREE THAT
IN THE EVENT OF ANY SUCH LITIGATION, PROCEEDING OR ACTION, SUCH PARTIES WILL
CONSENT AND SUBMIT TO THE PERSONAL JURISDICTION OF ANY SUCH COURT DESCRIBED IN
CLAUSE (1) OF THIS SECTION AND TO SERVICE OF PROCESS UPON THEM IN ACCORDANCE
WITH THE RULES AND STATUTES GOVERNING SERVICE OF PROCESS (IT BEING UNDERSTOOD
THAT NOTHING IN THIS SECTION SHALL BE DEEMED TO PREVENT ANY PARTY FROM SEEKING
TO REMOVE ANY ACTION TO A FEDERAL COURT IN THE SOUTHERN DISTRICT OF NEW YORK;
(3) AGREE TO WAIVE TO THE FULL EXTENT PERMITTED BY LAW ANY OBJECTION THAT THEY
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH LITIGATION, PROCEEDING OR
ACTION IN ANY SUCH COURT OR THAT ANY SUCH LITIGATION, PROCEEDING OR ACTION WAS
BROUGHT IN ANY INCONVENIENT FORUM; (4) AGREE, AFTER CONSULTATION WITH COUNSEL,
TO WAIVE ANY RIGHTS TO A JURY TRIAL TO RESOLVE ANY DISPUTES OR CLAIMS RELATING
TO THIS AGREEMENT; (5) AGREE TO DESIGNATE, APPOINT AND DIRECT AN AUTHORIZED
AGENT TO RECEIVE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS AND DOCUMENTS IN
ANY LEGAL PROCEEDING IN THE SOUTHERN DISTRICT OF NEW YORK; (6) AGREE TO PROVIDE
THE OTHER PARTIES TO THIS AGREEMENT WITH THE NAME, ADDRESS AND FACSIMILE NUMBER
OF SUCH AGENT; (7) AGREE AS AN ALTERNATIVE METHOD OF SERVICE TO SERVICE OF
PROCESS IN ANY LEGAL PROCEEDING BY MAILING OF COPIES THEREOF TO SUCH PARTY AT
ITS ADDRESS SET FORTH HEREIN FOR COMMUNICATIONS TO SUCH PARTY; (8) AGREE THAT
ANY SERVICE MADE AS PROVIDED HEREIN SHALL BE EFFECTIVE AND BINDING SERVICE IN
EVERY RESPECT; AND (9) AGREE THAT NOTHING HEREIN SHALL AFFECT THE RIGHTS OF ANY
PARTY TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. TO THE
EXTENT PERMITTED BY LAW IN CONNECTION WITH OR RELATING TO THIS AGREEMENT, ANY
RELATED AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN OR THEREIN,
AND AGREE TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO EFFECT SUCH
WAIVER.
12 Management Subscription Agreement
(g) All personal pronouns used in this Agreement, whether used in
masculine, feminine or neuter gender, shall include all other genders if the
context so requires; the singular shall include the plural, and vice versa.
(h) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which together shall
constitute one and the same instrument. If the requirements of this Agreement
have otherwise been met, new Shareholders may become parties to this Agreement
by executing a counterpart to this Agreement at which time the Company shall
revise the Exhibits as may be necessary or appropriate.
(i) In case any one or more of the provisions or parts of a
provision contained in this Agreement shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or part of a provision of this Agreement or any other jurisdiction, but this
Agreement shall be reformed and construed in any such jurisdiction as if such
invalid or illegal or unenforceable provision or part of a provision had never
been contained herein and such provision or part shall be reformed so that it
would be valid, legal and enforceable to the maximum extent permitted in such
jurisdiction.
(j) This Agreement and the other agreements entered into on the
date hereof in connection with this Agreement supersede all prior agreements
between the parties with respect to the subject matter thereof and constitute a
complete and exclusive statement of the terms of the agreements among the
parties with respect to the subject matter thereof.
(k) Each of the parties hereto agrees to execute all such further
instruments and documents and to take all such further action as are necessary
to effectuate the terms and purposes of this Agreement.
(l) Whenever notice is required to be given by any party
hereunder, such notice shall be deemed sufficient when delivered to the Company
at its address above and to each of the other Shareholders at such Shareholder's
address set forth on Exhibit 1 hereto or to such other address as the
Shareholder shall have furnished to the Company.
(m) Each party shall be entitled to rely conclusively upon any
notice received, or the failure to receive any notice, from any other party with
respect to rights and obligations under this Agreement.
15. Receipt of Share Certificates. Each Shareholder herewith
acknowledges receipt of the certificate(s) evidencing the Shares purchased by
such Shareholder.
[Signature Pages Follow]
13 Management Subscription Agreement
IN WITNESS WHEREOF, each of the undersigned has signed this Agreement as
of the date first above written.
TAL INTERNATIONAL GROUP, INC.
By: ___________________________________
Name:
Title:
S-1 Management Subscription Agreement
_______________________________________
XXXXX X. XXXXXX
S-2 Management Subscription Agreement
_______________________________________
CHAND KHAN
S-3 Management Subscription Agreement
_______________________________________
XXXXXXXXX XXXXXXXX
S-4 Management Subscription Agreement
_______________________________________
XXXX X. XXXXX
S-5 Management Subscription Agreement
_______________________________________
XXXXXX XXXXXX
S-6 Management Subscription Agreement
_______________________________________
XXXXX XXXXXXXXX
X-0 Management Subscription Agreement
_______________________________________
XXXX XXXXXXX
S-8 Management Subscription Agreement
EXHIBIT 1
Shareholder Schedule
Shareholder Shares of Common Stock Shares of Preferred Stock
---------------------------------- ---------------------- -------------------------
Xxxxx X. Xxxxxx 2,938.75 1,000.00000
000 Xxxx 00xx Xxxxxx, Xxxxxxxxx 0
Xxx Xxxx, Xxx Xxxx 00000
Chand Khan 54.84 125.00000
00-00 000xx Xxxxxx
Xxxxx Xxxxxxx, Xxx Xxxx 00000
Xxxxxxxxx Xxxxxxxx 76.78 175.00000
Flat X 00/X Xxxxxx Xx
Xxxxxxxxx Xxx
Xxxx Xxxx
Xxxxxx Xxxxxx 76.78 175.00000
0 Xxxxxxxxx Xx.
Xxxxxxxx, Xxx Xxxxxx 00000
Xxxx X. Xxxxx 76.78 175.00000
00, Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Bernd Schackier 54.84 125.00000
Xxxxxxxxxxxx 00
Xxxxxxx 00000
Xxxxxxx
Xxxx Xxxxxxx 54.86 125.00000
00 Xxxxxxxxxx Xx.
Xxx Xxxx, Xxx Xxxxxx 00000
