Exhibit 4.8
FORM OF
AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT
DATED AS OF FEBRUARY 19, 2002
among
PETCO ANIMAL SUPPLIES, INC.
and
CERTAIN SECURITYHOLDERS
OF PETCO ANIMAL SUPPLIES, INC.
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS; RESTRICTIONS ON TRANSFER...............................2
1.1 Definitions..................................................2
1.2 Restrictions on Transfer; No Prohibited Transfer of Shares...2
1.2.1 Restrictions on Transfer............................2
1.2.2 No Prohibited Transfer of Shares....................3
1.3 Improper Transfer............................................3
1.4 Call Option..................................................4
1.5 Tax Treatment................................................6
ARTICLE II. REPRESENTATIONS AND WARRANTIES.....................................6
2.1 Representations and Warranties of the Company................6
2.1.1 Organization........................................6
2.1.2 Authority...........................................6
2.1.3 Binding Obligation..................................6
2.1.4 No Conflict.........................................7
2.2 Representations and Warranties of the Securityholders........7
2.2.1 Organization........................................7
2.2.2 Authority...........................................7
2.2.3 Binding Obligation..................................7
2.2.4 No Conflict.........................................7
2.2.5 Investment Intent of Employee Securityholders.......7
ARTICLE III. EFFECTIVENESS AND TERMINATION OF AGREEMENT........................8
3.1 Effectiveness................................................8
3.2 Termination..................................................8
ARTICLE IV. GENERAL............................................................8
4.1 Recapitalization, Exchanges, Etc., Affecting the Shares......8
4.2 Injunctive Relief............................................8
4.3 Legend.......................................................8
4.4 Amendment; Waiver; Representatives...........................9
4.5 Additional Documents; Further Changes.......................10
4.6 No Third-Party Benefits.....................................10
4.7 Successors and Assigns......................................10
4.8 Severability................................................10
4.9 Integration.................................................10
4.10 Governing Law...............................................10
4.11 Attorneys' Fees.............................................10
4.12 Headings....................................................11
4.13 Information For Notices.....................................11
4.14 Counterparts................................................11
4.15 Consent to Jurisdiction.....................................11
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4.16 No Inconsistent Agreements..................................11
4.17 Information Regarding Beneficial Ownership..................11
4.18 No Tax Advice...............................................11
4.19 After Acquired Shares.......................................12
4.20 Notices.....................................................12
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FORM OF
AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT
THIS AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT (the "AGREEMENT")
is entered into as of February 19, 2002, by and among PETCO Animal Supplies,
Inc., a Delaware corporation (the "COMPANY"), and the individuals named in
Schedule I hereto (collectively the "EMPLOYEE SECURITYHOLDERS" and each
individually, an "EMPLOYEE SECURITYHOLDER"). Each of the parties to this
Agreement (other than the Company) and any other Person who shall become a party
to or agree to be bound by the terms of this Agreement after the date hereof is
sometimes hereinafter referred to as a "SECURITYHOLDER."
RECITALS
WHEREAS, the Company, BD Recapitalization Holdings LLC, a Delaware
limited liability company ("BD RECAP LLC"), and certain of the Employee
Securityholders entered into the Securityholders Agreement, dated as of October
2, 2000 (the "ORIGINAL AGREEMENT");
WHEREAS, on December 21, 2001, the Company filed with the Commission
(as defined in Section 1.1) a Registration Statement on Form S-1, as amended,
pursuant to which the Company will make a firm commitment underwritten public
offering of its common stock, par value $0.001 per share (the "COMMON
STOCK"), for gross proceeds to the Company of greater than $75,000,000, and
following the Initial Public Offering such Common Stock will be listed on the
Nasdaq Stock Market (the "INITIAL PUBLIC OFFERING");
WHEREAS, upon completion of the Initial Public Offering, which shall
qualify as a "Public Offering Event" under the Original Agreement, certain
rights and obligations in the Original Agreement will terminate pursuant to
Section 4.1 thereof, including all of the rights and obligations of BD Recap LLC
under the Original Agreement;
WHEREAS, following completion of the Initial Public Offering, the
Employee Securityholders will own shares of Common Stock and options ("EMPLOYEE
OPTIONS") to purchase shares of Common Stock (the shares of Common Stock are
collectively referred to as the "COMMON SHARES," and the Common Shares (whether
issued or acquired hereafter, including all shares of capital stock of the
Company issuable upon the exercise of warrants, options or other rights to
acquire shares of capital stock of the Company, or upon the conversion or
exchange of any security) and Employee Options are collectively referred to as
the "SHARES"); and
WHEREAS, as a condition to and upon completion of the Initial Public
Offering, and in accordance with Section 5.6 of the Original Agreement, the
Company and the Employee Securityholders holding a majority of the Shares held
by the Employee Securityholders, through their Representative, desire, for their
mutual benefit and protection, to enter into this Agreement to amend and restate
the Original Agreement and to set forth their respective rights and obligations
with respect to their Shares.
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NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS; RESTRICTIONS ON TRANSFER
1.1 DEFINITIONS.
The term "AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common control
with such Person.
"COMMISSION" means the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
The term "CONTROL" (including, with correlative meanings, the terms
"CONTROLLING," "CONTROLLED BY" and "UNDER COMMON CONTROL WITH") as used with
respect to any Person, shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such
Person, whether through the ownership of voting securities or by contract or
otherwise.
The Employee Securityholders and their respective spouses, any direct
or adopted lineal descendants and ancestors and any trusts solely for the
benefit of any or all of the foregoing, and any of their Transferees (as defined
in Section 1.2.1), are sometimes referred to in this Agreement, collectively, as
the "EMPLOYEE PARTIES" and, individually, as an "EMPLOYEE PARTY."
"MERGER AGREEMENT" means that certain Agreement and Plan of Merger,
dated as of May 17, 2000, as amended, between the Company and BD
Recapitalization Corp., a Delaware corporation and wholly owned subsidiary of BD
Recap LLC.
"PERSON" means an individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, other
entity or government or other agency or political subdivision thereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder.
1.2 RESTRICTIONS ON TRANSFER; NO PROHIBITED TRANSFER OF SHARES.
1.2.1 RESTRICTIONS ON TRANSFER. Each of the Securityholders
agrees that, except for the Transfer (as defined below) of Shares pursuant to
Section 1.4 hereof, such Securityholder will not, directly or indirectly, sell,
hypothecate, give, bequeath, transfer, assign, pledge or in any other way
whatsoever encumber or dispose of (whether for or without consideration, whether
voluntarily or involuntarily or by operation of law) (any such event, a
"TRANSFER") any Shares now or hereafter at any time owned by such Securityholder
(or any interest therein) to another Person (a "TRANSFEREE"), unless and until:
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(a) with respect to Shares that are not subject to the
Call Option pursuant to Section 1.4 below, (i) there is then in effect a
registration statement under the Securities Act covering such proposed Transfer
and such Transfer is (A) made in accordance with such registration statement and
(B) in compliance with any applicable state securities or Blue Sky laws, (ii)
the Transfer is effected pursuant to and in compliance with Rule 144 promulgated
under the Securities Act and is in compliance with any applicable state
securities or Blue Sky laws or (iii) (A) such Securityholder shall have notified
the Company of the proposed Transfer and shall have furnished the Company with a
detailed statement of the circumstances surrounding the proposed Transfer, (B)
such Securityholder shall have furnished the Company with an opinion of counsel,
to the extent reasonably required by the Company, which opinion and counsel
shall be reasonably satisfactory to the Company, to the effect that no
registration under the Securities Act is required because of the availability of
an exemption therefrom and (C) such Transfer is in compliance with any
applicable state securities or Blue Sky laws; or
(b) with respect to Shares that are subject to the Call
Option (i) the Transferee of such Transferred Shares shall have executed and
delivered to the Company, as a condition precedent to such Transfer, an
instrument or instruments in form and substance satisfactory to the Company
confirming that the Transferee agrees to be bound by the terms of this Agreement
and accepts the rights and obligations of the transferor Securityholder set
forth in this Agreement as if it were the transferor Securityholder, (ii) such
Securityholder shall have furnished the Company with an opinion of counsel, to
the extent reasonably required by the Company, which opinion and counsel shall
be reasonably satisfactory to the Company, to the effect that no registration
under the Securities Act is required because of the availability of an exemption
therefrom and (iii) such Transfer is in compliance with any applicable state
securities or Blue Sky laws.
(c) Notwithstanding the provisions of paragraphs (a) and
(b) above, no such registration statement or opinion of counsel shall be
necessary for a Transfer (i) by a Securityholder which is a partnership to its
partners or former partners in accordance with partnership interests, (ii) by a
Securityholder which is a limited liability company to its members or former
members in accordance with their interest in the limited liability company,
(iii) by a Securityholder to such Securityholder's spouse, any direct or adopted
lineal descendant or ancestor of such Securityholder or his or her spouse or any
trust solely for the benefit of any or all of the foregoing, PROVIDED that after
giving effect to such Transfer under this clause (iii), sole voting power with
respect to such Transferred Shares shall be held by the transferor
Securityholder (unless such Transfer occurs by reason of the death of such
Securityholder) or (iv) any Transfer by a Securityholder which is a
state-sponsored employee benefit plan to a successor trust or fiduciary or
pursuant to a statutory reconstitution.
1.2.2 NO PROHIBITED TRANSFER OF SHARES. The Company shall not
transfer upon its books any Shares to any Person to the extent prohibited by
this Agreement and any purported transfer in violation hereof shall be null and
void ab initio and of no effect.
1.3 IMPROPER TRANSFER. Any attempt to Transfer or otherwise encumber
any Shares in violation of this Agreement shall be null and void and neither the
Company nor any
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transfer agent of such Shares shall give any effect to such attempted Transfer
or encumbrance in its stock records.
1.4 CALL OPTION. Each of the Employee Securityholders agrees, for
themselves and all Employee Parties who subsequently acquire or hold Shares
previously held by such Employee Securityholder (including Transferees of such
Employee Securityholder), that the Company will have a call option (the "CALL
OPTION") on all Shares held by any Employee Securityholder or Employee Party,
including all Common Shares issuable upon exercise of any Employee Options (the
"CALLABLE SECURITIES"), upon the voluntary termination by such Employee
Securityholder of such Employee Securityholder's employment with the Company
(each, a "CALL EVENT"); PROVIDED that the Company may provide that the Company
may exercise the Call Option through the purchase of the Employee
Securityholder's Employee Options. The Call Option will expire: (a) with respect
to Employee Securityholders who began employment with the Company prior to
January 1, 2001, (i) as to 50% of the Shares owned, or Common Shares issuable
upon exercise of any Employee Option owned, by each such Person upon the closing
of the Initial Public Offering and (ii) as to 25% of the Shares owned, or Common
Shares issuable upon exercise of any Employee Option owned, by each such Person
upon each of the first two anniversaries of the date of the closing of the
Initial Public Offering, or (b) with respect to Employee Securityholders who
began employment with the Company on or after January 1, 2001, (i) as to 25% of
the Shares owned, or Common Shares issuable upon exercise of any Employee Option
owned, by each such Person upon the closing of the Initial Public Offering and
(ii) as to 25% of the Shares owned, or Common Shares issuable upon exercise of
any Employee Option owned, by each such Person upon each of the first three
anniversaries of the date of the closing of the Initial Public Offering. Upon
the occurrence of a Call Event, the Company may exercise the Call Option by
written notice (an "OPTION NOTICE") of its election to do so delivered to the
Employee Securityholder (or, if different, the then current holder of the
Shares) within the later of (1) ninety (90) days after such Call Event, (2) the
date of expiration of the options, in the event of an election to purchase
Employee Options and (3) thirty (30) days after the Employee Securityholder's
exercise of Employee Options, in the case of an election to purchase Common
Shares issuable upon exercise of Employee Options, and, upon the giving of such
notice, the Company will be obligated to purchase, and the Employee
Securityholder (or, if different, the then current holder of the Shares)
("SELLER") will be obligated to sell, all or any lesser portion indicated in the
Option Notice of the Callable Securities owned at the time of the Call Event by
the Seller. The consideration for the Callable Securities referred to in the
preceding sentence shall be the Employee Securityholder's Cost of such Callable
Securities.
The closing for all purchases and sales of Callable Securities pursuant
to this Section 1.4 will be at the principal executive offices of the Company on
the 60th day after the giving of the Option Notice. The applicable purchase
price for the Callable Securities will be paid in cash or by cashier's check.
The Seller will cause the Callable Securities to be delivered to the Company at
the closing free and clear of all liens, charges or encumbrances of any kind
except those which shall continue to apply to such Shares by the terms of this
Agreement. Such Seller will take all such actions as the Company reasonably
requests to vest in the Company title to the Callable Securities free of any
lien, charge or encumbrance incurred by or through the Seller.
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Notwithstanding any other section of this Agreement, in the event an
Employee Securityholder's employment with the Company is terminated other than
through the Employee Securityholder's Retirement from the Company, all of the
Employee Securityholder's vested Employee Options may be exercisable for three
months following such termination and the exercise price may be paid at the
Employee Securityholder's election (a) by cash or cashiers check, or (b) by
surrender of Common Shares or Employee Options (other than Common Shares or
Employee Options that are subject to the Call Option) ("NET ISSUANCE") as
determined below. If the Employee Securityholder elects the Net Issuance method,
the Company will issue Shares in accordance with the following formula:
X = Y(A-B)
------
A
Where:
X = the number of Shares to be issued to the Securityholder
Y = the number of Shares requested to be exercised under this
Agreement
A = the Fair Market Value of one (1) Share
B = the exercise price
Notwithstanding, any other section of this Agreement, in the event an Employee
Securityholder's employment with the Company is terminated through the Employee
Securityholder's Retirement from the Company, all of the Employee
Securityholder's vested Employee Options may be exercised at any time and from
time to time until the expiration of such vested Employee Options.
For purposes of this Section 1.4, the following terms have the
following meanings:
"EMPLOYEE SECURITYHOLDER'S COST" means (x) in respect of Common Shares
(1) $0.50 per share (subject to adjustment for stock splits, stock dividends,
recapitalizations or similar events), with respect to Common Shares which were
retained by the holder thereof pursuant to Section 2.2(c) of the Merger
Agreement, (2) the Fair Market Value of such Common Shares at the time such
Common Shares were originally acquired from the Company, with respect to Common
Shares which were acquired pursuant to the exercise of Options (as defined in
the Merger Agreement) retained by the holder thereof pursuant to Section 2.6(c)
of the Merger Agreement, or (3) the consideration originally paid to the Company
for such Common Shares, with respect to Common Shares which are otherwise
acquired, (y) with respect to Options (as defined in the Merger Agreement)
retained by the holder thereof pursuant to Section 2.6(c) of the Merger
Agreement, the excess of $0.50 over the exercise price thereof per share
(subject to adjustment for stock splits, stock dividends, recapitalizations or
similar events), and (z) with respect to Employee Options granted after the
Effective Time (as defined in the Merger Agreement), the amount, if any, paid by
the holder thereof to the Company to acquire such options.
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"FAIR MARKET VALUE" means, as of any date, the value of a share of the
Common Stock determined as follows: (a) if the Common Stock is then quoted on
the Nasdaq National Market, its last reported sale price on the Nasdaq National
Market or, if no such reported sale takes place on such date, the average of the
closing bid and asked prices; (b) if the Common Stock is publicly traded and is
then listed on a national securities exchange but is not quoted on the Nasdaq
National Market, the last reported sale price or, if no such reported sale takes
place on such date, the average of the closing bid and asked prices on the
principal national securities exchange on which the Common Stock is listed or
admitted to trading; (c) if such Common Stock is publicly traded but is not
quoted on the Nasdaq National Market nor listed or admitted to trading on a
national securities exchange, the average of the closing bid and asked prices on
such date, as reported in the Western Edition of THE WALL STREET JOURNAL, for
the over-the-counter market; or (d) if none of the foregoing is applicable, by
the Company's Board of Directors in good faith.
"RETIREMENT" means retirement pursuant to the Company's standard
retirement policy in effect from time to time but in no event prior to the age
of 65, unless otherwise agreed upon by the Securityholder and the Company's
Board of Directors.
1.5 TAX TREATMENT. The attachment of restrictions to the Shares held
by the Employee Securityholders and the subsequent lapse of those restrictions
(the "EXCHANGE RESTRICTIONS") is not intended to constitute a transfer of
property in connection with the performance of services by the Employee
Securityholders within the meaning of Section 83 of the Internal Revenue Code of
1986, as amended (the "CODE"). Accordingly, the Company will not report
compensation to the Employee Securityholders at any time with respect to the
Exchange Restrictions unless required to by applicable law.
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Securityholders as follows:
2.1.1 ORGANIZATION. It is a corporation duly organized and
validly existing under the laws of the State of Delaware.
2.1.2 AUTHORITY. It has full corporate power and authority to
execute, deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
2.1.3 BINDING OBLIGATION. The execution, delivery and
performance of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by all
necessary corporate action on its part, and, assuming the due execution by the
Securityholder seeking enforcement against the Company, this Agreement
constitutes its binding obligation, enforceable against it in accordance with
its terms, except insofar as enforceability may be limited by bankruptcy,
insolvency, moratorium or other laws which may affect creditors rights and
remedies generally and by principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
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2.1.4 NO CONFLICT. The execution, delivery and performance of
this Agreement by it and the consummation by it of the transactions contemplated
hereby will not, with or without the giving of notice or the lapse of time, or
both, (a) violate any provision of law, statute, rule or regulation to which it
is subject, (b) violate any order, judgment or decree applicable to it, or (c)
conflict with, or result in a breach or default under, any term or condition of
its certificate of incorporation or its bylaws or any material agreement or
other material instrument to which it is a party or by which it or its property
is bound.
2.2 REPRESENTATIONS AND WARRANTIES OF THE SECURITYHOLDERS. Each of
the Securityholders represents and warrants to each other and to the Company as
follows:
2.2.1 ORGANIZATION. If it is an entity, it is a corporation,
limited partnership or other entity duly organized and validly existing under
the laws of its respective state of organization.
2.2.2 AUTHORITY. It has full power and authority to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby.
2.2.3 BINDING OBLIGATION. The execution, delivery and
performance of this Agreement by it and the consummation by it of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on its part, and, assuming the due execution by the Company,
this Agreement constitutes its binding obligation, enforceable against it in
accordance with its terms, except insofar as enforceability may be limited by
bankruptcy, insolvency, moratorium or other laws which may affect creditors'
rights and remedies generally and by principles of equity (regardless of whether
enforceability is considered in a proceeding in equity or at law).
2.2.4 NO CONFLICT. The execution, delivery and performance of
this Agreement by it and the consummation by it of the transactions contemplated
hereby will not, with or without the giving of notice or the lapse of time, or
both, (a) violate any provision of law, statute, rule or regulation to which it
is subject, (b) violate any order, judgment or decree applicable to it, or (c)
conflict with, or result in a breach or default under, any term or condition of
its certificate or articles of incorporation, bylaws, trust or equivalent
governing document or any material agreement or other material instrument to
which it is a party or by which it or its property is bound.
2.2.5 INVESTMENT INTENT OF EMPLOYEE SECURITYHOLDERS. The Shares
owned by such Employee Securityholder were acquired by such Employee
Securityholder for investment only and not with a view to any public
distribution thereof, and there is not any current plan or intention on the part
of such Employee Securityholder to offer to sell, exchange or otherwise dispose
of the Shares owned by such Employee Securityholder in violation of any of the
requirements of the Securities Act or any comparable state or foreign securities
law.
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ARTICLE III.
EFFECTIVENESS AND TERMINATION OF AGREEMENT
3.1 EFFECTIVENESS. This Agreement is conditioned on and shall
become effective immediately prior to the closing of the Initial Public
Offering. Until this Agreement becomes effective, the Original Agreement
remains in full force and effect, and in the event the closing of the Initial
Public Offering does not occur on or before May 15, 2002, the execution and
delivery of this Agreement shall be disregarded and this Agreement shall be
deemed null and void for all purposes.
3.2 TERMINATION. Subject to Section 3.1, this Agreement shall
terminate on October 2, 2010.
ARTICLE IV.
GENERAL
4.1 RECAPITALIZATION, EXCHANGES, ETC., AFFECTING THE SHARES. The
provisions of this Agreement shall apply to the full extent set forth herein
with respect to (a) the Shares and any option, right or warrant to acquire
Common Shares, and (b) any and all shares of capital stock 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 for any Shares, by combination, recapitalization, reclassification,
merger, consolidation or otherwise. In the event of any change in the
capitalization of the Company, as a result of any stock split, stock dividend or
stock combination, the provisions of this Agreement shall be appropriately
adjusted.
4.2 INJUNCTIVE RELIEF. It is hereby agreed and acknowledged that it
will be impossible to measure in money the damages that would be suffered if the
parties fail to comply with any of the obligations herein imposed on them and
that, in the event of any such failure, an aggrieved person will be irreparably
damaged and will not have an adequate remedy of law. Any such person shall,
therefore, be entitled to injunctive relief, including specific performance, to
enforce such obligations, without the posting of any bond and if any action
should be brought in equity to enforce any of the provisions of this Agreement,
none of the parties hereto shall raise the defense that there is an adequate
remedy at law.
4.3 LEGEND. In addition to any other legend which may be required by
applicable law, each share certificate representing Shares which are subject to
this Agreement shall have endorsed, to the extent appropriate, upon its face the
following words:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY JURISDICTION. SUCH SECURITIES MAY NOT BE
OFFERED, SOLD, TRANSFERRED, PLEDGED, ASSIGNED, ENCUMBERED, HYPOTHECATED
OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO (I) A REGISTRATION
STATEMENT WITH RESPECT TO SUCH SECURITIES THAT IS EFFECTIVE UNDER SUCH
ACT OR APPLICABLE
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XXXXX XXXXXXXXXX XXX, XX (II) ANY EXEMPTION FROM REGISTRATION UNDER
SUCH ACT, OR APPLICABLE STATE SECURITIES LAW, RELATING TO THE
DISPOSITION OF SECURITIES, INCLUDING RULE 144, PROVIDED AN OPINION OF
COUNSEL IS FURNISHED TO THE COMPANY, IN FORM AND SUBSTANCE REASONABLY
SATISFACTORY TO THE COMPANY, TO THE EFFECT THAT AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE ACT AND/OR APPLICABLE STATE SECURITIES
LAW IS AVAILABLE.
IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER COMPLIES WITH THE PROVISIONS OF A
CERTAIN AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT, AS SUCH MAY BE
AMENDED FROM TIME TO TIME (THE "SECURITYHOLDERS AGREEMENT"), A COPY OF
WHICH IS ON FILE AND MAY BE INSPECTED AT THE PRINCIPAL OFFICE OF THE
COMPANY. NO TRANSFER OF THE SECURITIES WILL BE MADE ON THE BOOKS OF THE
COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF
SUCH SECURITYHOLDERS AGREEMENT. THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE ALSO SUBJECT TO OTHER RIGHTS AND OBLIGATIONS AS SET
FORTH IN THE SECURITYHOLDERS AGREEMENT.
To the extent the circumstances or provisions requiring any of the above legends
have ceased to be effective, the Company will upon request reissue certificates
without the applicable legend or legends.
4.4 AMENDMENT; WAIVER; REPRESENTATIVES. This Agreement may be
amended, modified, supplemented or terminated only by a written instrument
signed by each of (a) the Company and (b) Employee Securityholders holding a
majority of the Shares held by the Employee Securityholders. No provision of
this Agreement may be waived orally, but only by a written instrument signed by
the party against whom enforcement of such waiver is sought. Securityholders
shall be bound from and after the date of the receipt of a written notice from
the Company setting forth such amendment or waiver by any consent authorized by
this Section 4.4, whether or not the Shares shall have been marked to indicate
such consent; no alteration, modification or impairment shall be implied by
reason of any previous waiver, extension of time, delay or omission in exercise,
or other indulgence. For purposes of this Agreement, the parties hereto shall
designate and appoint representatives (each, a "REPRESENTATIVE") as provided in
this Section 4.4. The Employee Parties hereby designate and appoint Xxxxx X.
Xxxxxx (or any successor designated in writing by the Employee Parties holding
Shares that constitute, on a fully-diluted basis, a majority in value of the
Shares held by all of the Employee Parties) as Representative on behalf of the
Employee Parties. Each Representative shall have the authority to receive any
notices, settle any claims, agree to any amendments, and grant any consents or
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waivers on behalf of the parties that such Representative represents. The
parties hereto shall be entitled to deal exclusively with the respective
Representatives with respect to matters arising out of this Agreement, and the
parties hereto shall be entitled to deliver any notices to the respective
Representatives and rely on any action of the respective Representatives with
respect to actions taken under this Agreement on behalf of the parties hereto.
4.5 ADDITIONAL DOCUMENTS; FURTHER CHANGES. Each party hereto agrees
to execute any and all further documents and writings within its powers and to
perform such other actions which may be or become necessary or expedient to
effectuate and carry out this Agreement.
4.6 NO THIRD-PARTY BENEFITS. None of the provisions of this Agreement
shall be for the benefit of, or enforceable by, any third-party beneficiary.
4.7 SUCCESSORS AND ASSIGNS. Subject to the terms hereof, this
Agreement shall be binding upon and shall inure to the benefit of the
Securityholders, and their respective successors and permitted assigns;
PROVIDED, HOWEVER, (a) neither this Agreement nor any rights or obligations
hereunder may be transferred by the Company and (b) no rights or obligations of
any Securityholder under this Agreement may be assigned except that any
Securityholder may transfer its rights and obligations hereunder, in whole or in
part in connection with a Transfer of Shares made in compliance with all of the
provisions of this Agreement.
4.8 SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein; PROVIDED, HOWEVER, that the parties hereto shall
use their reasonable best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
invalid, illegal or unenforceable term, provision, covenant or restriction.
4.9 INTEGRATION. This Agreement contains the entire understanding of
the parties with respect to the subject matter hereof. There are no
restrictions, agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to its subject
matter, including the Original Agreement.
4.10 GOVERNING LAW. THE RIGHTS AND LIABILITIES OF THE PARTIES SHALL BE
GOVERNED BY THE INTERNAL LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE CHOICE
OF LAWS PROVISIONS OF SUCH STATE OR ANY OTHER JURISDICTION.
4.11 ATTORNEYS' FEES. Should any litigation or arbitration be
commenced (including any proceedings in a bankruptcy court) between the parties
hereto or their representatives concerning any provision of this Agreement or
the rights and duties of any person or entity hereunder, the party or parties
prevailing in such proceeding shall be entitled, in
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addition to such other relief as may be granted, to the reasonable attorneys'
fees and court costs incurred by reason of such litigation or arbitration.
4.12 HEADINGS. The headings in this Agreement are inserted only as a
matter of convenience, and in no way define, limit, extend or interpret the
scope of this Agreement or of any particular Section.
4.13 INFORMATION FOR NOTICES. No Securityholder (other than a
Securityholder as of the date of this Agreement with respect to the Shares held
as of such date) shall hold any of its Shares in nominee name unless it
otherwise provides the Company and the other Securityholders with its name and
address and other information reasonably requested by the Company in order to
establish such Securityholder's particular status under this Agreement (e.g.,
Employee Party).
4.14 COUNTERPARTS. 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.
4.15 CONSENT TO JURISDICTION. Each Securityholder agrees that any
proceeding arising out of or relating to this Agreement or the breach or
threatened breach of this Agreement may be commenced and prosecuted in a court
in the State of Delaware. Each Securityholder hereby irrevocably and
unconditionally consents and submits to the non-exclusive personal jurisdiction
of any court in the State of Delaware in respect of any such proceeding. Each
Securityholder consents to service of process upon it with respect to any such
proceeding by registered mail, return receipt requested, and by any other means
permitted by applicable laws and rules. Each Securityholder waives any objection
that it may now or hereafter have to the laying of venue of any such proceeding
in any court in the State of Delaware and any claim that it may now or hereafter
have that any such proceeding in any court in the State of Delaware has been
brought in an inconvenient forum.
4.16 NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter
into any agreements with respect to its securities which are inconsistent with
or violate in any material respects the rights granted to the parties to this
Agreement.
4.17 INFORMATION REGARDING BENEFICIAL OWNERSHIP. Each Securityholder
agrees to promptly provide to the Company any information or representations
that the Company may request regarding such holder's beneficial ownership of
shares of any class of the Company's capital stock.
4.18 NO TAX ADVICE. Each Employee Securityholder acknowledges that the
United States federal, state, local and other tax consequences to such
securityholder of acquiring, holding and selling or otherwise disposing of its
Shares may be affected by an election by such securityholder under Section 83(b)
of the Code (an "83(b) Election") with regard to such Shares. Each Employee
Securityholder understands and acknowledges that (a) it has not relied on the
Company (or any of its affiliates, employees, agents or advisors) with regard to
the desirability or manner of making an 83(b) Election and (b) the Company has
urged such securityholder to consult its tax advisor with regard to the
desirability and manner of making an 83(b) Election.
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Each Employee Securityholder shall promptly provide the Company with a copy of
any 83(b) Elections made by such securityholder with regard to its Shares.
4.19 AFTER ACQUIRED SHARES. The provisions of this Agreement shall
apply to any shares of capital stock of the Company acquired after the date
hereof by any party hereto or by any party that agrees to be bound by the terms
thereof.
4.20 NOTICES. Unless otherwise specified herein, all notices and other
communications hereunder shall be in writing and shall be deemed given upon
personal delivery, facsimile transmission (which is confirmed), telex or
delivery by an overnight express courier service (delivery, postage or freight
charges prepaid), or on the fourth day following deposit in the United States
mail (if sent by registered or certified mail, return receipt requested,
delivery, postage or freight charges prepaid, and otherwise to be sent by first
class mail), addressed to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
if to the Company, to:
PETCO Animal Supplies, Inc.
0000 Xxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx & Xxxxxxx
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to any of the Employee Parties, to the most recent address and/or
telephone number listed in the records of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first set forth above.
PETCO ANIMAL SUPPLIES, INC.
By:
-------------------------------------
Name: Xxxxx X. Xxxxx
Title: Executive Vice President and
Chief Financial Officer
EMPLOYEE SECURITYHOLDERS' REPRESENTATIVE
-----------------------------------------
Xxxxx X. Xxxxxx
ACKNOWLEDGED AND AGREED:
BD RECAPITALIZATION HOLDINGS LLC
By: GREEN EQUITY INVESTORS III, L.P.
Its: Managing Member
By: GEI CAPITAL III, LLC
Its: General Partner
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
By: TPG PARTNERS III, L.P.
Its: Managing Member
By: TPG GENPAR III, L.P.
Its: General Partner
By: TPG ADVISORS III, INC.
Its: General Partner
By:
-----------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
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