Exhibit 10.4
SUPPORT AGREEMENT
This SUPPORT AGREEMENT (the "Agreement"), is entered into as of October 3,
2005, by and among X.X. Xxxxxxxxx Corporation, a Delaware corporation
("Parent"), Carlyle Partners III, L.P., a Delaware limited partnership ("CP
III"), CP III Coinvestment, L.P., a Delaware limited partnership ("Carlyle
Coinvest"), Carlyle High Yield Partners, L.P., a Delaware limited partnership
("CHYP Coinvest"), Carlyle-Dex Partners L.P., a Delaware limited partnership
("Carlyle Coinvest I"), and Carlyle-Dex Partners II L.P., a Delaware limited
partnership ("Carlyle Coinvest II") (each, a "Stockholder" and collectively, the
"Stockholders").
RECITALS:
A. Dex Media, Inc., a Delaware corporation (the "Company"), Parent and
Forward Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Parent ("Merger Sub"), entered into an Agreement and Plan of Merger (as amended
from time to time, the "Merger Agreement"), pursuant to which the Company will
be merged with and into Merger Sub with Merger Sub as the surviving company (the
"Merger"); and
B. As an inducement and a condition to entering into the Merger Agreement,
Parent has required that Stockholders agree, and Stockholders have agreed, to
enter into this Agreement.
NOW, THEREFORE, the parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions. Capitalized terms used and not defined herein have
the respective meanings ascribed to them in the Merger Agreement. In addition,
for purposes of this Agreement, the following terms have the following meanings
when used herein with initial capital letters:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as determined
pursuant to Rule 13d-3 under the Exchange Act. Without duplicative counting of
the same securities by the same holder, securities Beneficially Owned by a
Person include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" within the meaning of Section 13(d) of the
Exchange Act with respect to the securities of the same issuer and includes all
securities Beneficially Owned by a Person's Affiliates. Notwithstanding anything
in this Agreement, neither (i) the Stockholders and Parent nor (ii) the Company
Sponsors, are intended to be a "group" for purposes of Rule 13d-5 of the
Exchange Act and nothing in this Agreement will be interpreted in a manner that
requires that they be deemed to be a "group" thereunder.
(b) "Affiliate" means, with respect to any Person, any Person who,
directly or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with the specified Person and for this
purpose control means the possession of the power, direct or indirect, to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting shares, by contract or otherwise. For purposes
of this
Agreement, (i) none of the following will be deemed to be an Affiliate of any
Stockholder: (A) the Company, (B) any portfolio company of the Stockholders or
their Affiliates, (C) any limited partner of the Stockholders or their
Affiliates or (D) any investment fund that does not share the same general
partner as such Stockholder and (ii) no Company Sponsor will be deemed to be an
Affiliate of the other Company Sponsor.
(c) "Existing Shares" has the meaning set forth in Section 3.1(a).
(d) "Securities" means the Existing Shares together with any shares of
Company Common Stock or other voting securities of the Company acquired by a
Stockholder or any of its Affiliates after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution, split-up, recapitalization,
combination, exchange of shares or the like, gift, bequest, inheritance or as a
successor in interest in any capacity or otherwise; provided, however, to the
extent that Securities represent more than 20% of the total issued and
outstanding voting shares of the Company at any relevant time, then for purposes
of Sections 2.2(a) and (b) and 2.3, the term "Securities" will be deemed to
refer to Securities representing 20% of the total issued and outstanding voting
shares of the Company at such time (other than in respect of a stockholder vote
following an Adverse Recommendation Change by the Company Board that was
approved by a majority of the members of the Company Board who are not
affiliated with either of the Company Sponsors (as defined in the Merger
Agreement) (provided, that the designation of such directors by the Company
Sponsors pursuant to Section 1(a)(ii)(D) of the Current Stockholders Agreement
(as defined in the Stockholders Agreement) shall not cause such directors to be
deemed to be affiliated with the Company Sponsors), in which case the references
to "20%" in this proviso shall be references to "15%").
(e) "Stockholders Agreement" means the Sponsor Stockholders Agreement,
dated as of the date hereof, between Parent and the Stockholders.
ARTICLE 2
AGREEMENTS OF THE PARTIES
2.1 Disclosure. Each Stockholder hereby agrees to permit Parent to publish
and disclose in the Form S-4 and the Joint Proxy Statement (including all
documents and schedules filed with the SEC), and any press release or other
disclosure document which Parent determines to be necessary or desirable in
connection with the Merger and any transactions related thereto, such
Stockholder's identity and ownership of Company Common Stock and the nature of
its representations, warranties and covenants in this Agreement. Parent will
provide each Stockholder with a copy of any proposed disclosure and will provide
each Stockholder with a reasonable opportunity to comment thereon.
2.2 Voting of Company Common Stock. (a) During the period commencing on the
date hereof and continuing until the earlier of (i) the Effective Time and (ii)
termination of the Merger Agreement in accordance with its terms (the "Support
Period"), at the Company Stockholders Meeting or at any adjournment,
postponement or continuation thereof or in any
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other circumstances (including any other annual or special meeting of the
stockholders of the Company or any action by prior written consent) occurring
prior to the Company Stockholders Meeting in which a vote, consent or other
approval with respect to the adoption of the Merger Agreement or any other
Acquisition Proposal (whether or not a Superior Proposal) with respect to the
Company is sought, each Stockholder hereby irrevocably and unconditionally
agrees to vote or to cause to be voted all of such Stockholder's Securities (A)
in favor of the adoption of the Merger Agreement and (B) against (1) any other
Acquisition Proposal (whether or not a Superior Proposal) with respect to the
Company, (2) any proposal for any merger, consolidation, sale of assets,
business combination, share exchange, reorganization or recapitalization of the
Company or any of its subsidiaries that is in competition or inconsistent with
the adoption of the Merger Agreement, or any proposal to effect the foregoing
which is made in opposition to or in competition with the adoption of the Merger
Agreement, (3) any liquidation or winding up of the Company, (4) any
extraordinary dividend by the Company (other than the payment of any cash
dividend that the Company is expressly permitted to make under the Merger
Agreement), (5) any change in the capital structure of the Company (other than
any change in capital structure resulting from the Merger or expressly permitted
under the Merger Agreement) and (6) any other action that would reasonably be
expected to (x) impede, delay, postpone or interfere with the Merger or (y)
result in a breach of any of the covenants, representations, warranties or other
obligations or agreements of the Company under the Merger Agreement that would
reasonably be expected to materially adversely affect the Company.
(b) From and after the date hereof until the earlier of the (i)
Effective Time and (ii) date on which the Merger Agreement is terminated in
accordance with its terms for any reason (the "Restricted Period"), except as
otherwise permitted by this Agreement or the Merger Agreement or as required by
order of a court of competent jurisdiction, each Stockholder will not commit any
act that could restrict or otherwise affect such Stockholder's legal power,
authority and right to vote all of its Securities as required by this Agreement,
including entering into any voting agreement with any Person or entity with
respect to any of its Securities, granting any Person or entity any proxy
(revocable or irrevocable) or power of attorney with respect to any of its
Securities, depositing any of its Securities in a voting trust or otherwise
entering into any agreement or arrangement with any Person or entity limiting or
affecting the Stockholder's legal power, authority or right to vote its
Securities in favor of the adoption of the Merger Agreement.
2.3 Proxy. For the duration of the Restricted Period, each Stockholder
hereby appoints Parent and any designee of Parent, each of them individually,
its proxy and attorney-in-fact, with full power of substitution and
resubstitution to vote or act by written consent with respect to all of such
Stockholder's Securities which it has the right to vote (i) in accordance with
Section 2.2 and (ii) to sign its name (as a stockholder of the Company) to any
consent, certificate or other document relating to the Company that the DGCL or
the law of the State of Delaware may permit or require in connection with any
matter referred to in Section 2.2. This proxy is given to secure the performance
of the duties and obligations of such Stockholder under this Agreement. Each
Stockholder affirms that the proxy granted hereunder is coupled with an interest
and is irrevocable until termination of the Restricted Period, whereupon such
proxy and power of attorney will automatically terminate. Each Stockholder will
take such further action and execute such other instruments as may be necessary
to effectuate the intent of this proxy. Each Stockholder represents that any
proxy heretofore given by it in respect of such Securities is not irrevocable,
and hereby revokes any and all such proxies.
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2.4 Restriction on Transfers; Restrictions on Acquisitions. Without
limiting the generality or effect of Section 2.2(b), during the period (the
"Sale Restriction Period") commencing on the date hereof and continuing until
the first to occur of (i) such date that is three months after the Effective
Time and (ii) the termination of the Merger Agreement in accordance with its
terms, each Stockholder agrees that it will not, directly or indirectly,
Transfer, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the Transfer of, any or all of the
Securities or any Parent Common Stock into which the Securities are converted in
the Merger or any interest therein, except as otherwise provided in this
Agreement.
2.5 No Solicitation. (a) Except as permitted by Section 6.10 of the Merger
Agreement, each Stockholder will not, and such Stockholder will direct and use
its reasonable best efforts to cause its and its Affiliates' respective
officers, directors, employees, investment bankers, consultants, attorneys,
accountants, agents and other representatives not to, directly or indirectly,
take any action to solicit, initiate or knowingly encourage or facilitate the
making of any Acquisition Proposal or any inquiry with respect thereto or engage
in discussions or negotiations with any Person with respect thereto, or disclose
any nonpublic information or afford access to books or records to, any Person
that has made, or to the Stockholder's knowledge is considering making, any
Acquisition Proposal, or approve or recommend, or propose to approve or
recommend, or execute or enter into any letter of intent, agreement in
principle, merger agreement, option agreement, acquisition agreement or other
similar agreement relating to an Acquisition Proposal, or propose publicly or
agree to do any of the foregoing relating to an Acquisition Proposal.
(b) Except as permitted by Section 6.10 of the Merger Agreement, the
Stockholder (A) will, and will cause its Affiliates to, immediately cease and
cause to be terminated and will use reasonable best efforts to cause its and
their officers, directors, employees, investment bankers, consultants,
attorneys, accountants, agents and other representatives to, immediately cease
and cause to be terminated, all discussions and negotiations, if any, that have
taken place prior to the date hereof with any Persons with respect to any
Acquisition Proposal and (B) will promptly request each Person, if any, that has
executed a confidentiality agreement within one year prior to the date hereof in
connection with its consideration of any Acquisition Proposal to return or
destroy all confidential information heretofore furnished to such Person by or
on behalf of it or any of its Affiliates. In the event a Stockholder receives an
Acquisition Proposal, any indication of which a Stockholder has knowledge that
any Person is considering making an Acquisition Proposal, or any request for
nonpublic information relating to the Stockholder, the Company or any Company
Subsidiary by any Person that has made, or to the Stockholder's knowledge may be
considering making, an
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Acquisition Proposal, the Stockholder will (i) promptly (and in no event later
than 48 hours after receipt of any Acquisition Proposal) notify (which notice
will be provided orally and in writing and will identify the Person making such
Acquisition Proposal or request and set forth the material terms thereof) Parent
thereof and (ii) will keep Parent reasonably and promptly informed of the status
and material terms of (including with respect to changes to the status or
material terms of) any such Acquisition Proposal or request and will provide as
soon as practicable after receipt copies of any correspondence and other written
materials sent or provided to the Stockholders in connection therewith.
(c) It is understood that any violation of the restrictions set forth
in this Section 2.5 by any officer, director, employee, investment banker,
consultant, attorney, accountant, agent or other representative of such
Stockholder or any of its Affiliates, at the direction or with the consent of
such Stockholder or any of its Affiliates, will be deemed to be a breach of this
Section 2.5 by such Stockholder.
(d) Nothing in this Agreement will be deemed to require any
Stockholder or representative of any Stockholder who is also a member of the
Company Board to take any action or refrain from taking any action in his or her
capacity as a member of the Company Board to the extent such action is permitted
by Section 6.10 of the Merger Agreement.
(e) The provisions of this Section 2.5 will remain in effect only
during the Support Period and nothing herein will prevent the Stockholders from
participating in discussions, negotiations or furnishing information with
respect to an Acquisition Proposal if the Company would be permitted to
participate in such discussions, negotiations or furnish such information
pursuant to the terms and conditions of the Merger Agreement.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Stockholders. Each Stockholder hereby
represents and warrants to Parent as follows as to itself:
(a) Ownership of Shares. Such Stockholder is the sole record and
Beneficial Owner of the number of shares of Company Common Stock listed on
Schedule 3.1(a) opposite such Stockholder's name (the "Existing Shares") and
such shares constitute all of the shares of capital stock of the Company owned
of record or Beneficially Owned by such Stockholder. Such Stockholder has sole
voting power and sole power to issue instructions with respect to the matters
set forth in Sections 2.2 and 2.3 hereof, sole power of disposition, sole power
of conversion, sole power to demand appraisal rights and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Existing Shares with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws, and the terms of this
Agreement.
(b) Authority; No Violation. Such Stockholder has the requisite power
and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of
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the transactions contemplated hereby have been duly and validly approved by such
Stockholder (or, if applicable, its managing members or general partners) and no
other corporate, partnership or similar proceedings on the part of such
Stockholder are necessary for it to approve this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by such Stockholder and (assuming due authorization,
execution and delivery by Parent and the other Stockholders party hereto)
constitutes the valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms (except as may be limited
by bankruptcy, insolvency, fraudulent transfer, moratorium, reorganization or
similar Laws affecting the rights of creditors generally and the availability of
equitable remedies).
(c) No Conflicts. Except for filings, authorizations, consents and
approvals as may be required under the Exchange Act and the HSR Act, (i) no
filing with, and no permit, authorization, consent or approval of, any state or
federal Governmental Entity is necessary for the execution of this Agreement by
such Stockholder and the consummation by such Stockholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by such Stockholder nor the consummation of the transactions
contemplated hereby, nor compliance by such Stockholder or any other party
thereto with any of the terms or provisions of this Agreement, will (A) violate
any provision of such Stockholder's organizational documents, (B) violate any
Injunction or any statute, code, ordinance, rule, regulation, judgment, order,
writ or decree applicable to such Stockholder, any of its Affiliates or any of
their respective properties or assets, or (C) violate, conflict with, result in
a breach of any provision of or the loss of any benefit under, constitute a
default (or an event which, with notice or lapse of time, or both, would
constitute a default) under, result in the termination of or a right of
termination or cancellation under, accelerate the performance required by, or
result in the creation of any Liens upon any of the respective properties or
assets of such Stockholder under any of the terms, conditions or provisions of
any note, bond, mortgage, indenture, deed of trust, license, lease, agreement or
other instrument or obligation to which such Stockholder is a party, or by which
it or any of its respective properties or assets may be bound or affected.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Sections 2.2 and 2.3 hereof, the applicable
Existing Shares are and at all times during the term hereof, will be,
Beneficially Owned by such Stockholder, free and clear of all Liens, claims,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor
or other Person is entitled to payment from the Company or Parent or any of
their respective Subsidiaries of any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
by this Agreement based upon arrangements made by or on behalf of such
Stockholder.
(f) Reliance by Parent. Such Stockholder understands and acknowledges
that Parent is entering into the Merger Agreement in reliance upon such
Stockholder's execution and delivery of this Agreement.
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3.2 Representations and Warranties of Parent. Parent hereby represents and
warrants to each Stockholder as follows:
(a) Authority; No Violation. Parent has the requisite corporate power
and authority to execute and deliver this Agreement and the Merger Agreement and
to consummate the transactions contemplated hereby and thereby. The execution
and delivery of this Agreement and the Merger Agreement and the consummation of
the transactions contemplated hereby and thereby have been duly and validly
approved by the Parent Board and no other corporate proceedings on the part of
Parent are necessary to approve this Agreement and to consummate the
transactions contemplated hereby. This Agreement and the Merger Agreement have
been duly and validly executed and delivered by Parent and (assuming due
authorization, execution and delivery by each Stockholder) each constitutes the
valid and binding obligations of Parent, enforceable against Parent in
accordance with its terms (except as may be limited by bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or similar Laws affecting the
rights of creditors generally and the availability of equitable remedies).
(b) No Conflicts. Except for filings, authorizations, consents and
approvals as may be required under the Exchange Act and the HSR Act, (i) no
filing with, and no permit, authorization, consent or approval of, any state or
federal Governmental Entity is necessary for the execution of this Agreement by
Parent and the consummation by Parent of the transactions contemplated hereby
and (ii) none of the execution and delivery of this Agreement and the Merger
Agreement by Parent, nor the consummation of the transactions contemplated
hereby and thereby, nor compliance by Parent with any of the terms or provisions
of this Agreement and the Merger Agreement will (A) violate any provision of the
Parent Charter or the Parent Bylaws, (B) violate any Injunction or any statute,
code, ordinance, rule, regulation, judgment, order, writ or decree applicable to
Parent, any of the Parent Subsidiaries or any of their respective properties or
assets, or (C) violate, conflict with, result in a breach of any provision of or
the loss of any benefit under, constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, result in
the termination of or a right of termination or cancellation under, accelerate
the performance required by, or result in the creation of any Lien upon any of
the respective properties or assets of Parent or any of the Parent Subsidiaries
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument or
obligation to which Parent or any of the Parent Subsidiaries is a party, or by
which they or any of their respective properties or assets may be bound or
affected.
(c) No Finder's Fees. No broker, investment banker, financial advisor
or other Person is entitled to payment from any Stockholder or any of its
Affiliates of any broker's, finder's, financial adviser's or other similar fee
or commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Parent.
ARTICLE 4
OTHER AGREEMENTS
4.1 Stop Transfer; Legend. (a) Each Stockholder agrees with, and covenants
to, Parent that such Stockholder will not request that the Company register the
transfer (book-entry
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or otherwise) of any certificate or uncertificated interest representing any of
the Securities, unless such transfer is made in compliance with this Agreement.
(b) In the event of a stock dividend or distribution, or any change in
Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like (other than
pursuant to the Merger), the terms "Existing Shares," "Company Common Stock" and
"Securities" will be deemed to refer to and include the shares of Company Common
Stock as well as all such stock dividends and distributions and any shares into
which or for which any or all of the Securities may be changed or exchanged and
appropriate adjustments will be made to the terms and provisions of this
Agreement.
(c) Each Stockholder agrees that it will duly execute and deliver to
Parent an affiliate's letter prior to the Closing in the form attached to the
Merger Agreement.
(d) Each Stockholder agrees that it will promptly after the date
hereof surrender to the Company all certificates representing the Securities,
and the Company will place the following legend on such certificates in addition
to any other legend required thereon:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON
TRANSFER PURSUANT TO AND OTHER PROVISIONS OF A SUPPORT AGREEMENT, DATED AS OF
OCTOBER 3, 2005, BY AND AMONG X.X. XXXXXXXXX CORPORATION AND CERTAIN
STOCKHOLDERS OF DEX MEDIA, INC. SIGNATORY THERETO."
(e) Promptly (but in any event not later than five Business Days)
following the earlier of (i) the termination of the Merger Agreement for any
reason in accordance with its terms, (ii) the expiration of the Sale Restriction
Period, if applicable and (iii) such time as any portion of the Securities
(including Parent Common Stock) may be sold in a transaction permitted by the
Sponsor Stockholders Agreement, dated as of the date hereof, among Parent and
the Stockholders (the "Sponsor Stockholders Agreement"), upon delivery of any
legended certificate representing all or such portion of Securities to be sold,
as applicable, the Company will issue a replacement certificate without the
foregoing legend to the relevant Stockholder.
(f) The provisions of this Section 4.1 relating to the legend on
certificates will, after the Effective Time, apply equally to certificates
representing Parent Common Stock into which Securities are converted in the
Merger.
4.2 Termination. This Agreement will terminate upon the earlier of:
(a) the termination of the Merger Agreement in accordance with its
terms; or
(b) the Effective Time;
provided, that in the event that this Agreement terminates pursuant to Section
4.2(b), Section 2.4 and Articles IV and V will survive in accordance with their
terms.
4.3 Further Assurances. From time to time, at the other party's request and
without further consideration, each party hereto will execute and deliver such
additional documents and
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take all such further lawful action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
ARTICLE 5
GENERAL PROVISIONS
5.1 Modification or Amendment. Subject to the provisions of applicable law,
at any time prior to the Effective Time, this Agreement may be amended, modified
or supplemented only, and any provisions herein may be waived only, in writing
executed by the parties hereto.
5.2 Waiver of Conditions. The conditions to each of the parties'
obligations to perform the agreements herein are for the sole benefit of such
party and may be waived by such party in whole or in part to the extent
permitted by applicable law.
5.3 Expenses and Fees. Except for registration and related expenses
addressed by the Sponsor Stockholders Agreement, all costs and expenses incurred
in connection with this Agreement and the transactions contemplated by this
Agreement will be paid by the party incurring such expense.
5.4 Notices. All notices and other communications in connection with this
Agreement must be in writing and will be deemed given if delivered personally,
sent via facsimile (with confirmation), mailed by registered or certified mail
(return receipt requested) or delivered by an express courier (with
confirmation) to the parties at the following addresses (or at such other
address for a party as will be specified by like notice):
(a) if to Parent to:
X.X. Xxxxxxxxx Corporation
0000 Xxxxxxxx Xxxxx
Xxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Vice President, General Counsel and Corporate Secretary
Facsimile: (000) 000-0000
with a copy to (which copy shall not constitute notice):
Xxxxx Day
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
(b) if to any Stockholder, to:
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c/o The Carlyle Group
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy to (which copy shall not constitute notice):
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: R. Xxxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
5.5 Obligations of Parent and of the Stockholders. Whenever this Agreement
requires any Parent Subsidiary to take any action, such requirement will be
deemed to include an undertaking on the part of Parent to cause such Parent
Subsidiary to take such action. Whenever this Agreement requires an Affiliate of
a Stockholder to take any action, such requirement will be deemed to include an
undertaking on the part of each Stockholder to cause such Affiliate to take such
action.
5.6 Severability. The provisions of this Agreement will be deemed severable
and the invalidity or unenforceability of any provision will not affect the
validity or enforceability or the other provisions hereof. If any provision of
this Agreement, or the application thereof to any Person or any circumstance is
determined by a court of competent jurisdiction to be invalid, void or
unenforceable the remaining provisions hereof, will, subject to the following
sentence, remain in full force and effect and will in no way be affected
impaired or invalidated thereby, so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
either party. Upon such determination, the parties will negotiate in good faith
in an effort to agree upon such a suitable and equitable provision to effect the
original intent of the parties.
5.7 Interpretation. (a) When a reference is made in this Agreement to
Articles, Sections or Schedules, such reference will be to a Article or Section
of or Schedule to this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and will not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they will be
deemed to be followed by the words "without limitation." Unless the context
otherwise requires, (i) "or" is disjunctive but not necessarily exclusive, (ii)
words in the singular include the plural and vice versa, and (iii) the use in
this Agreement of a pronoun in reference to a party hereto includes the
masculine, feminine or neuter, as the context may require. All schedules hereto
will be deemed part of this Agreement and included in any reference to this
Agreement. This Agreement will not be interpreted or construed to require any
Person to take any action, or fail to take any action, if to do so would violate
any applicable law. All representations, warranties and covenants of the
Stockholders in this Agreement are made severally and not jointly.
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(b) The parties have participated equally in negotiating and drafting
this Agreement. In the event that an ambiguity or a question of intent or
interpretation arises, this Agreement will be construed as if drafted jointly by
the parties, and no presumption or burden of proof will arise favoring or
disfavoring any party by virtue of the authorship of any provision of this
Agreement.
5.8 Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same agreement and
will become effective when counterparts have been signed by each of the parties
and delivered to the other party, it being understood that each party need not
sign the same counterpart.
5.9 Entire Agreement. This Agreement (including the documents and the
instruments referred to in this Agreement) constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter of this Agreement.
5.10 Governing Law. This Agreement will be governed and construed in
accordance with the internal laws of the State of Delaware applicable to
contracts made and wholly performed within such state, without regard to any
applicable conflict of laws principles.
5.11 Assignment; Third Party Beneficiaries. Neither this Agreement nor any
of the rights, interests or obligations under this Agreement may be assigned or
delegated by any of the parties (whether by operation of law or otherwise)
without the prior written consent of the Stockholders, in the case of Parent, or
Parent, in the case of the Stockholders. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
each of the parties and their respective successors and assigns. This Agreement
(including the documents and instruments referred to in this Agreement) is not
intended to and does not confer upon any Person other than the parties hereto
any rights or remedies under this Agreement.
5.12 Merger Agreement. Parent acknowledges that the Stockholders have been
induced to enter into this Agreement based on the terms and conditions of the
Merger Agreement as in effect on the date hereof. Accordingly, any amendment or
modification to the Merger Agreement that (a) decreases the Exchange Ratio or
the Cash Consideration or (b) substitutes other consideration for the Parent
Common Stock into which Company Common Stock will be converted in the Merger,
that is made without Stockholders' prior written consent will, at Stockholders'
sole election upon written notice to Parent, irrevocably release the
Stockholders and Parent from any or all obligations under this Agreement.
5.13 Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that this Agreement were not performed in
accordance with its specific terms or were otherwise breached. It is accordingly
agreed that the parties will be entitled to an injunction or injunctions to
prevent breaches of this Agreement and to enforce specifically the terms and
provisions hereof in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are
entitled at law or in equity.
[Remainder of Page Intentionally Left Blank]
11
IN WITNESS WHEREOF, Parent and Stockholders have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first above written.
CARLYLE HOLDERS
CARLYLE PARTNERS III, L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
----------------------------------
Title: Managing Director
---------------------------------
CP III COINVESTMENT, L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
----------------------------------
Title: Managing Director
---------------------------------
CARLYLE-DEX PARTNERS L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
----------------------------------
Title: Managing Director
---------------------------------
CARLYLE-DEX PARTNERS II L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
----------------------------------
Title: Managing Director
---------------------------------
CARLYLE HIGH YIELD PARTNERS, L.P.
By: TCG High Yield, L.L.C.,
its General Partner
By: TCG High Yield Holdings, L.L.C.,
its Managing Member
By: TC Group, L.L.C.,
its Sole Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ Xxxxx X. Xxxxxxx, Xx.
------------------------------------
Name: Xxxxx X. Xxxxxxx, Xx.
----------------------------------
Title: Managing Director
---------------------------------
X.X. XXXXXXXXX CORPORATION
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
----------------------------------
Title: Vice President, General Counsel
---------------------------------
& Corporate Secretary
---------------------------------
Schedule 3.1(d)
OWNERSHIP OF SHARES OF
COMPANY COMMON STOCK
Stockholder Existing Shares
-------------------------------------------------------------------------------
Carlyle Partners III, L.P. 24,519,997
CP III Coinvestment, L.P. 862,083
Carlyle High Yield Partners, L.P. 1,206,488
Carlyle-Dex Partners L.P. 5,259,182
Carlyle-Dex Partners II L.P. 7,170,059
