SHAREHOLDERS AGREEMENT
THIS
SHAREHOLDERS AGREEMENT (the “Agreement”) is made and
entered into as of February 20, 2008 by and among those shareholders of NIS
Group Co., Ltd., a Japanese kabushiki kaisha (the “Company”) listed on Schedule I hereto and
that are signatories to this Agreement (collectively, “Management Shareholders”),
TPG Izumi AIV 1,
L.P., a Delaware limited partnership (“AIV 1”), TPG Izumi AIV 6,
L.P., a Delaware limited partnership (“AIV 6”) and TPG Izumi, L.P., a
Cayman Islands limited partnership (“Izumi”; collectively with AIV
1 and AIV 6, the “Subscribers”; the Subscribers,
the Management Shareholders, and any other party to this Agreement from time to
time are collectively referred to as the “Parties”). Each of
the Parties to this Agreement 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 “Shareholder.”
RECITALS
WHEREAS,
the Company and TPG Vision Upper I, Ltd., a Cayman Islands limited liability
company (“Vision”) are
parties to that certain Investment Agreement, dated December 10, 2007, as
amended (the “Investment
Agreement”);
WHEREAS,
pursuant to that certain Assignment and Assumption Agreement, dated February
___, 2008, by and among Vision and the Subscribers, Vision assigned its rights
and obligations under the Investment Agreement to the Subscribers;
WHEREAS,
pursuant to the Investment Agreement, the Company shall issue and allot to the
Subscribers Shares and warrants to acquire additional Shares (the “Warrants”);
WHEREAS,
it is a requirement to the consummation of the Transactions that the Parties
execute and deliver this Agreement, which sets forth certain matters concerning
the ownership of the Company’s common stock and certain rights and obligations
of the Parties, on the terms and conditions contained herein.
NOW,
THEREFORE, in consideration of the mutual covenants contained herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Parties hereby agree as follows:
ARTICLE
I. BOARD OF DIRECTORS
1.1 Shareholder
Obligations. Commencing as of the Closing Date, and continuing
throughout the term of this Agreement, each Shareholder unconditionally and
irrevocably agrees that it shall use its best efforts to effectuate, or cause to
be effectuated, to the extent permissible under the Company’s Organizational
Documents and applicable Law, each of the provisions set forth in this
Agreement. Such efforts by each Shareholder shall include attendance
at meetings in person or by proxy for purposes of obtaining a quorum and
execution of written consents in lieu of meetings, exercising rights to remove
directors, calling shareholder meetings, submitting shareholder proposals and
any other actions permissible under the Organizational Documents and applicable
Law (whether in such Shareholder’s capacity as a stockholder, director, member
of a Board committee or officer of the Company or otherwise).
1.1.1 Nomination
Rights. Subscriber Parties holding a majority of the voting
power of all Shares held by Subscriber Parties will be entitled to nominate, and
the Board of Directors of the Company shall consist of, at least a majority of
the directors of the Company (the “Subscriber Nominees”), at
least one (1) of whom shall be a representative director of the
Company. Management Parties holding a majority of the voting power of
all Shares held by the Management Parties will be entitled to nominate the
remaining directors of the Company (the “Management Shareholder
Nominees”; and, together with the Subscriber Nominees, the “Nominees”). The
initial Subscriber Nominees are: Xxxxxx X. Xxxxxxxxx, Jun Tsusaka, Xxxxxxxx
Xxxxxxx, Xxxx Xxxxxx, Xxxxxxxx Xxx and Xxxxxx Xxxxxxx. The initial
Management Shareholder Nominee shall be Xxxxxxxx Xxxxxxx.
1.1.2 Election of
Nominees. The Nominees shall be elected in any and all
elections of directors of the Company held during the term of this
Agreement. If at any time the Subscriber Nominees do not constitute a
majority of the Board, Board vacancies shall be filled and, if necessary,
directors shall be removed and replaced such that Subscriber Nominees constitute
a majority of the Board.
1.1.3 Vacancies. Each
Nominee shall hold his or her office as a director of the Company for such term
as is provided in the Company’s Organizational Documents and applicable Law or
until his or her death, resignation, incapacity or removal from the Board or
until his or her successor has been duly elected and qualified in accordance
with the provisions of the Company’s Organizational Documents. If any
Nominee ceases to serve as a director of the Company for any reason during his
or her term (a “Terminating
Nominee”), a nominee for the vacancy resulting therefrom will be
designated by whichever Party nominated the Terminating Nominee.
1.1.4 Removal of
Nominees. If at any time Subscriber Parties holding a majority
of the voting power of all Shares held by Subscriber Parties, or the Management
Parties holding a majority of the voting power of all Shares held by Management
Parties, shall notify the Parties in writing of their desire to have removed
from the Board, with or without cause, any Nominee that was nominated by such
Party, such Nominee shall be removed from the Board.
1.1.5 Actions by the
Shareholders. At any meeting (whether annual or special, and
at each adjourned or postponed meeting) of the Company’s shareholders, however
called, or in any other circumstances (including any action sought by written
consent) upon which a vote or other consent or approval is sought, each of the
Shares that a Management Shareholder or Management Party beneficially owns or
over which such Management Shareholder or Management Party otherwise exercises
control shall be caused by them (x) to be counted as present thereat, for
purposes of calculating a quorum, and in response to any other request by the
Company for written consent, if any, and to be counted as having provided or
denied such consent and (y) if Subscriber Parties holding a majority of the
voting power of all Shares held by Subscriber Parties inform the Management
Parties of their intention to vote against taking any action set forth on
Exhibit A hereto, to be voted (including by written consent, if applicable)
against the taking of such action; provided, that if the
Management Parties inform the Subscriber Parties of their intention to vote
against taking any action set forth on Exhibit A hereto, the
Subscriber Parties shall vote (including by written consent, if applicable)
against the taking of such action.
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ARTICLE
II. REPRESENTATIONS AND WARRANTIES
2.1 Representations and
Warranties of the Shareholders. Each of the Shareholders
represents and warrants to each other as follows:
2.1.1 Share
Ownership. Each Shareholder is the record and beneficial owner
of the number of Shares of the Company set opposite such Shareholder’s name on
Schedule I
hereto. No Shareholder owns any securities issued by, or other
obligations of, the Company or any Company Subsidiary which are not listed on
Schedule I
hereto.
2.1.2 Legal Power; Organization;
Qualification of Shareholders. Each Shareholder is a natural
person or a legal entity of the type set opposite such Shareholder’s name on
Schedule I
hereto. Each Shareholder who is a natural person is competent and has
all requisite power and authority to execute and deliver this Agreement and to
consummate the Transactions. Each Shareholder which is not a natural
person has been duly organized, and is validly existing and in good standing,
under the laws of its jurisdiction of formation, has all requisite power and
authority to execute and deliver this Agreement and to consummate the
Transactions, and has taken all necessary corporate or other action to authorize
the execution, delivery and performance of this Agreement.
2.1.3 Binding
Agreement. This Agreement has been duly executed and delivered
by each Shareholder and, assuming due and valid authorization, execution and
delivery by the other Shareholders, this Agreement constitutes a legal, valid
and binding obligation of each Shareholder, enforceable against such Shareholder
in accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws of general application affecting enforcement of creditors’ rights generally
and (ii) the availability of the remedy of specific performance or injunctive or
other forms of equitable relief may be subject to equitable defenses and would
be subject to the discretion of the court before which any proceeding therefor
may be brought.
2.1.4 No Shareholder Conflict or
Default. Neither the execution and delivery of this Agreement
nor the consummation by any Shareholder of any of the Transactions will result
in a violation of, or a default under, or conflict with, or require any consent,
approval or notice under, any contract, trust, commitment, agreement,
obligation, understanding, arrangement or restriction of any kind to which any
Shareholder is a party or by which any Shareholder is bound or to which any of
the Shares are subject. Consummation by each Shareholder of the
Transactions will not violate, or require any consent, approval or notice under,
any provision of any judgment, order, decree, statute, law, rule or regulation
applicable to any Shareholder or any of the Shares.
ARTICLE
III. TERMINATION OF AGREEMENT
3.1 Termination. Subject
to the next succeeding sentence, this Agreement shall terminate upon the earlier
to occur of (i) seven years from the date of this Agreement and (ii) the date
upon which the Subscriber Parties hold less than 20% of the Fully Diluted
Capital Stock of the Company.
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
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any
option, right or warrant to acquire 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 Notices. Except
as otherwise expressly provided herein, any and all notices, demands or other
communications required or permitted hereunder shall be in writing and shall be
made by hand delivery (deemed given upon receipt), or by certified mail return
receipt requested (deemed given upon execution of such return receipt),
addressed to a Shareholder at the address of such Shareholder set forth in
Section 4.17 below or the address that any Shareholders shall have provided to
the other Shareholders or their Representative. Any Party may change
its address for notice by notice given to each Shareholder and the Company in
accordance with the foregoing. No objection may be made to the method
of delivery of any notice actually and timely received.
4.3 Amendment; Waiver;
Representatives. This
Agreement may be amended, modified, supplemented or terminated only by a written
instrument signed by each of (i) the Subscriber Parties and (ii) the
Management Parties. 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. Shareholders shall be bound
from and after the date of the receipt of a written notice from their respective
Representative setting forth such amendment or waiver by any consent authorized
by this Section 4.3, 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 4.3. The Subscriber Parties hereby designate and
appoint Xxxxxx X. Xxxxxxxxx (or any successor designated in writing by the
Subscriber Parties holding Shares that constitute, on a Fully Diluted basis, a
majority of the voting power of all Shares held by all of the Subscriber
Parties) as Representative on behalf of the Subscriber Parties; and the
Management Parties hereby designate and appoint Xxxxxxxx Xxxxxxx (or any
successor designated in writing by Management Parties holding Shares that
constitute, on a Fully Diluted basis, a majority of the voting power Shares held
by all of the Management Parties) as Representative on behalf of the Management
Parties. Each Representative shall have the authority to receive any
notices, settle any claims, agree to any amendments, and grant any consents or
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.
4.4 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.
4.5 No Third-Party
Benefits. None of the provisions of this Agreement shall be
for the benefit of, or enforceable by, any third-party beneficiary.
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4.6 Successors And
Assigns. Subject to the terms hereof, this Agreement shall be
binding upon and shall inure to the benefit of the Shareholders, and their
respective successors and permitted assigns; provided, however, no rights
or obligations of any Shareholder under this Agreement may be assigned except
that any Party may transfer such Party’s rights hereunder, including,
without limitation, the right to nominate Nominees pursuant to Section 1.1.1, in
whole or in part, to any Affiliate in connection with a transfer of Capital
Stock of the Company made in compliance with all of the provisions of this
Agreement.
4.7 Severability. Should
any part of this Agreement for any reason be declared invalid or unenforceable,
such decision shall not affect the validity or enforceability of any remaining
portion, which remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid or unenforceable portion thereof
eliminated and it is hereby declared the intention of the Parties hereto that
they would have executed the remaining portion of this Agreement without
including therein any such part, parts or portion which may, for any reason, be
hereafter declared invalid or unenforceable.
4.8 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.
4.9 Governing
Law. This Agreement shall be governed by and construed in
accordance with the internal Laws of the State of New York.
4.10 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 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.
4.11 Headings. The
headings in this Agreement are inserted only as a matter of convenience, and in
no way define, limit, or extend or interpret the scope of this Agreement or of
any particular Section.
4.12 Information for
Notices. No Shareholder (other than a Shareholder 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 other
Shareholders other Shareholders with its name and address and other information
reasonably requested by the other Shareholders in order to establish such
Shareholder’s particular status under this Agreement (e.g., Management Party,
etc.).
4.13 Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when two or
more counterparts have been signed by each of the Parties and delivered to the
other Parties.
4.14 Information Regarding
Beneficial
Ownership. Each Shareholder agrees to promptly provide to the
other Shareholders any information or representations that the
other
5
Shareholders
may request regarding such holder’s beneficial ownership of shares of any class
of the Company’s Capital Stock.
4.15 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.
4.16 No
Conflicts. Subject to the other express provisions of this Agreement
or except as otherwise expressly agreed in writing, each Subscriber Party at any
time and from time to time may engage in and possess interests in other business
ventures of any and every type and description, independently or with others,
including ones in competition with the Company or any other Shareholder, with no
obligation to offer to the Company or any other Shareholder the right to
participate therein.
4.17 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), delivery by an overnight express courier
service (delivery, postage or freight charges prepaid) or delivery by 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 any
Subscriber Party, to:
c/o TPG
Capital, L.P.
000
Xxxxxxxx Xxxxxx, Xxxxx #0000
Xxxx
Xxxxx, Xxxxx 00000
Attention:
Legal Counsel
Facsimile
No.: 000.000.0000
Telephone:
000.000.0000
with a
copy (which shall not constitute notice) to:
Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP
Tokyo-to
Minato-ku Xxxxxxxx 0-0-0
Xxxxx
Xxxxxx Xxxxx 00X
Xxxxx
106-6021
Attention:
Xxxxxxxx Xxxxxxxx and Xxxxx Xxxxxxxx
Telephone
No.: 000.0000.0000
Facsimile
No.: 813.3568.2626
If to any
Management Party, to:
Shuho
Co., Ltd.
Xxxxx
Park Building 3F
Attn: Xx.
Xxxx Xxxxx
0-0,
Xxxxx-Xxxxxxxx 0-xxxxx
Xxxxxxxx,
Xxxxx 000-0000
Xxxxx
with a
copy (which shall not constitute notice) to:
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Nissin
Building Co., Ltd.
NIS Group
Head Office Building 4th
Floor
7-6,
5-chome, Chifune-machi
Matsuyama,
Ehime 790-8584
Japan
ARTICLE
V. ARBITRATION
5.1 Dispute
Resolution. Any disputes, claims or controversies arising out
of or relating to this Agreement, whether in contract, tort, equity or otherwise
and whether arising out of or relating to this Agreement or the meaning,
interpretation, effect, validity, performance, termination or enforcement
thereof (all of which are referred to as “Disputes”) shall be resolved
through arbitration in accordance with the Rules of Arbitration of the
International Chamber of Commerce (the “ICC”) then in effect (the
“ICC
Rules”).
5.2 Appointment of
Arbitrators. There shall be three arbitrators in the arbitral
tribunal (the “Tribunal”). The
Subscriber Parties shall nominate one (1) arbitrator, and Management Parties
shall nominate one (1) arbitrator, in accordance with the ICC
Rules. The two Party-nominated arbitrators shall jointly nominate the
third arbitrator, who shall serve as the Chair Person of the Tribunal, within
thirty (30) days of the confirmation of the nomination of the second arbitrator
in accordance with the ICC Rules. If any arbitrator has not been
nominated within the time limits specified herein, then such arbitrator shall be
appointed by the ICC in accordance with the ICC Rules.
5.3 Language of the
Arbitration. The arbitration proceedings shall be conducted in
and any award rendered by the Tribunal (the “Award”) shall be rendered in
the English language, with appropriate arrangements made for the
translation into Japanese of any documentation or oral testimony, and subject to
Section 4.10, each Party shall bear its costs with respect thereto.
5.4 Place of
Arbitration. The place of arbitration shall be
Singapore. The procedural Law of the arbitration shall be the Law of
the State of New York applicable to international arbitration as the subject
matter of this arbitration agreement relates to more than one
country.
5.5 Finality of
Award.
5.5.1 The
Award shall be final and binding upon the Parties as from the date rendered, and
shall be the sole and exclusive remedy between the Parties regarding any
Disputes submitted to the Tribunal. Judgment upon any Award may be
entered in any court having jurisdiction thereof.
5.5.2 The
Parties waive any rights of application or appeal to any court or tribunal of
competent jurisdiction to the fullest extent permitted by Law in connection with
any question of Law arising in the course of arbitration or with respect to any
Award made except for actions to enforce this Agreement to arbitrate or an
arbitral Award and except for actions seeking interim or other provisional
relief to prevent irreparable harm or in aid of arbitration proceedings in any
court of competent jurisdiction.
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5.6 Payment of the
Award. Any monetary award shall be made and payable in
Japanese yen, free of any tax, deduction or offset. Each Party
against which the Award assesses a monetary obligation shall pay that obligation
on or before the thirtieth (30th) day
following the date of the Award or such other date as the Award may
provide. The Tribunal shall have the authority to award any remedy or
relief proposed by a Party in accordance with the terms of this Agreement,
including a declaratory judgment, specific performance of any obligation created
under this Agreement or the issuance of an injunction.
5.7 Confidentiality of
Arbitration. Once any Dispute has been submitted to
arbitration proceedings pursuant to this Article V, such Dispute shall be
resolved in a confidential manner. No Party shall disclose or permit
the disclosure of any information about the evidence adduced or the documents
produced by another Party in the arbitration proceedings or about the results of
the proceeding except as may be required by a governmental authority or as
required in a court action in aid of arbitration or for enforcement of this
arbitration agreement or an arbitral Award.
ARTICLE
VI. INTERPRETATION
6.1 Interpretation.
(a) When
a reference is made in this Agreement to a section or article, such reference
shall be to a section or article of this Agreement unless otherwise clearly
indicated to the contrary. Whenever the words “include”, “includes”
or “including” are used in this Agreement they shall be deemed to be followed by
the words “without limitation.” The words “hereof”, “herein” and
“herewith” and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement, and article, section, paragraph, exhibit and
schedule references are to the articles, sections, paragraphs, exhibits and
schedules of this Agreement unless otherwise specified. The meaning
assigned to each term defined herein shall be equally applicable to both the
singular and the plural forms of such term, and words denoting any gender
shall include all genders. Where a word or phrase is defined herein, each
of its other grammatical forms shall have a corresponding meaning.
(b) A
reference to any Party to this Agreement or any other agreement or document
shall include such Party’s successors and permitted assigns.
(c) A
reference to any legislation or to any provision of any legislation shall
include any amendment to, and any modification or re-enactment thereof, any
legislative provision substituted therefor and all regulations and statutory
instruments issued thereunder or pursuant thereto.
(d) The
Parties have participated jointly in the negotiation and drafting of this
Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the Parties, and no presumption or burden of proof shall arise favoring or
disfavoring any Party by virtue of the authorship of any provisions of this
Agreement.
6.2 Definitions. Unless
the context otherwise requires, the terms hereinafter set forth when used herein
shall have the following meanings and the following definitions shall be equally
applicable to both the singular and plural forms of any of the terms herein
defined:
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“Affiliate” means, with respect
to any Person, any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such Person.
“Agreement” shall have the
meaning set forth in the preamble to this Agreement.
“AIV 1” shall have the meaning
forth in the preamble to this Agreement.
“AIV 6” shall have the meaning
forth in the preamble to this Agreement.
“Award” shall have the meaning
set forth in Section 5.3.
“Board” shall have the meaning
set forth in Section 1.1.1.
“Capital Stock” means any and
all shares (including the Shares), interests, rights to purchase (other than
convertible or exchangeable indebtedness that is not itself otherwise capital
stock), warrants, options, participations or other equivalents of or interests
(however designated) in stock issued by that corporation.
“Closing Date” means the date
of the closing of the Investment Agreement.
“Company” shall have the
meaning set forth in the recitals to this Agreement.
“control” means the power to
direct the management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise, provided,
that with respect to ownership interests the Company and its Subsidiaries, a
beneficial owner of 10% or more of the total voting power normally entitled to
vote in the election of directors, managers or trustees, as applicable, shall
for such purposes be deemed to possess control.
“Consent” means any consent,
approval, authorization, waiver, permit, grant, franchise, concession,
agreement, license, certificate, exemption, order, registration, declaration,
filing, report or notice of, with or to any Person.
“Disputes” shall have the
meaning set forth in Section 5.1.
“Equity Interests” means
Capital Stock or partnership, participation or membership interests and all
warrants, options or other rights to acquire Capital Stock or partnership,
participation or membership interests or units (but excluding any debt security
that is convertible into, or exchangeable for, Capital Stock or partnership,
participation or membership interests or units).
“Fully Diluted” means at any
time, with respect to Shares and without duplication, (a) all Shares then
outstanding and (b) all shares of common stock issuable upon the exercise of all
options, warrants, convertible securities, exchangeable securities and other
outstanding rights to acquire common stock, with or without consideration, but
only to the extent that the applicable Person is then entitled to exercise such
rights to acquire common stock pursuant to the terms of such
rights.
“Governmental Approval” means
any Consent of, with or to any Governmental Authority.
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“Governmental Authority” means
any nation or government, any state, prefecture, city, region or other political
subdivision thereof; any entity, authority or body exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, including, without limitation, any government authority, agency,
department, board, commission or instrumentality of any nation or any political
subdivision thereof; any court, tribunal or arbitrator; and any self-regulatory
organization.
“ICC” shall have the meaning
set forth in Section 5.1.
“ICC Rules” shall have the
meaning set forth in Section 5.1.
“Investment Agreement” shall
have the meaning set forth in the recitals to this Agreement.
“Izumi” shall have the meaning
forth in the preamble to this Agreement.
“Law” means all applicable
provisions of all (a) constitutions, treaties, statutes, laws, codes, rules,
regulations, ordinances or orders of any Governmental Authority, (b)
Governmental Approvals and (c) orders, decisions, injunctions, judgments, awards
and decrees of or agreements with any Governmental Authority.
“Management Parties” means the
Management Shareholders and their Affiliates (and with respect to Management
Shareholders who are natural persons 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).
“Management Shareholder
Nominees” shall have the meaning set forth in Section 1.1.1.
“Management Shareholders” shall
have the meaning set forth in the preamble to this Agreement.
“Nominees” shall have the
meaning set forth in Section 1.1.1.
“Organizational Documents”
means, as to any Person, its certificate or articles of incorporation, by-laws
and other organizational documents.
“Parties” shall have the
meaning set forth in the preamble to this Agreement.
“Person” or “person” means any corporation,
individual, limited liability company, limited partnership, joint stock company,
joint venture, partnership, unincorporated association, governmental regulatory
entity, country, state or political subdivision thereof, trust, municipality or
other entity.
“Representative” shall have the
meaning set forth in Section 4.3.
“Shareholder” shall have the
meaning set forth in the preamble to this Agreement.
“Shares” means shares of common
stock of the Company.
“Subsidiary,” with respect to
any Person, means (1) a corporation a majority of whose Equity Interests with
voting power, under ordinary circumstances, to elect directors is
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at the
time, directly or indirectly, owned by such Person, by such Person and one or
more Subsidiaries of such Person or by one or more Subsidiaries of such
Person, and (2) any other Person (other than a corporation) in which such
Person, one or more Subsidiaries of such Person, or such Person and one or more
Subsidiaries of such Person, directly or indirectly, at the date of
determination thereof has a majority ownership interest, or (3) a partnership in
which such Person or a Subsidiary of such Person is, at the time, a general
partner and in which such Person, directly or indirectly, at the date of
determination thereof has a majority ownership interest. Unless the
context requires otherwise, Subsidiary means each direct and indirect Subsidiary
of Issuer.
“Subscriber Parties” means
Subscribers and their members and Affiliates and their limited partners, general
partners, principals, shareholders and Affiliates.
“Subscribers” shall have the
meaning set forth in the preamble to this Agreement.
“Terminating Nominee” shall
have the meaning set forth in Section 1.1.3.
“Transactions” means all the
transactions provided for or contemplated by the Investment
Agreement.
“Tribunal” shall have the
meaning set forth in Section 5.2.
“Vision” shall have the meaning
forth in the recitals to this Agreement.
“Warrants” shall have the
meaning set forth in the recitals to this
Agreement.
[signature page
follows]
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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.
SUBSCRIBERS
TPG XXXXX XXX 0,
X.X.
By:
TPG ASIA GENPAR V, L.P.
Its General Partner
By: TPG
ASIA ADVISORS V, INC.
By: /s/ Xxxxx
X. Xxxx
Name:
Xxxxx X. Xxxx
Title:
Vice President and Secretary
TPG XXXXX XXX 0,
X.X.
By: NEWBRIDGE ASIA GENPAR IV,
L.P.
Its General
Partner
By: NEWBRIDGE
ASIA ADVISORS IV, INC.
By:
/s/ Xxxxx X. Xxxx
Name:
Xxxxx X. Xxxx
Title:
Vice President and Secretary
TPG IZUMI,
L.P.
By: TPG ASIA GENPAR V, L.P.
Its
General Partner
By: TPG ASIA ADVISORS V, INC.
By:
/s/ Xxxxx X. Xxxx
Name:
Xxxxx X. Xxxx
Title:
Vice President and Secretary
[signatures continued on next
page]
MANAGEMENT
SHAREHOLDERS
/s/ Xxxxx Xxxxxxx
Xxxxx
Xxxxxxx
/s/
Xxxxxxxx Xxxxxxx
Xxxxxxxx
Xxxxxxx
/s/ Xxxx
Xxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxxx
NISSIN
BUILDING CO., LTD.
By:
/s/ Xxxxx Xxxxxxx
Name:
Xxxxx Xxxxxxx
Title:
President and Representative Director
SHUHO
CO., LTD.
By:
/s/ Xxxx Xxxxx
Name:
Xxxx Xxxxx
Title:
President and Representative Director
EXHIBIT
A
MATTERS WITH RESPECT TO
WHICH MANAGEMENT PARTIES
SHALL VOTE WITH THE
SUBSCRIBERPARTIES
|
|
1.
|
Revisions
to the Articles of Incorporation of the Company affecting the rights of
the Warrants.
|
|
|
2.
|
Changes
to the capital structure of the Company, including, without limitation,
any of the following:
|
|
|
a.
|
filing
for bankruptcy, liquidation, or similar
restructuring;
|
|
|
b.
|
issuance
of any securities by the Company, including warrants, options and any
instrument that is convertible into, or exchangeable for, securities of
the Company;
|
|
|
c.
|
mergers
or acquisitions involving the
Company;
|
|
|
d.
|
substantial
disposal of assets by the Company;
|
|
|
e.
|
related
party transactions involving the Company;
and
|
|
|
f.
|
decisions
regarding dividend policy.
|
SCHEDULE
I
MANAGEMENT
SHAREHOLDERS
|
Shareholder
|
Number
of Shares
Beneficially Owned |
Individual/Entity
Type
|
|
Xxxxx
Xxxxxxx
|
3,970,137
|
Individual
|
|
Xxxxxxxx
Xxxxxxx
|
4,481,947
|
Individual
|
|
Xxxx
Xxxxxxx
|
737,426
|
Individual
|
|
Nissin
Building Co., Ltd.
|
16,785,100
|
Japanese
kabushiki
kaisha
|
|
Shuho
Co., Ltd.
|
16,314,763
|
Japanese
kabushiki
kaisha
|
