EXHIBIT 4.1
STOCKHOLDERS AGREEMENT
BY AND AMONG
UICI
AND THE STOCKHOLDERS NAMED HEREIN
DATED AS OF APRIL 5, 2006
TABLE OF CONTENTS
PAGE
RECITALS......................................................................1
ARTICLE I
General Governance and Management
Section 1.01. Initial Board of Directors....................................1
Section 1.02. Subsequent Board Composition and Director Voting Power........2
Section 1.03. Stockholder Voting; Presence at Quorom; Obligation to
Support Purposes of this Agreement............................5
Section 1.04. Board Committees..............................................5
Section 1.05. Approval Rights...............................................5
Section 1.06. Corporate Opportunity.........................................8
Section 1.07. Proxy.........................................................8
ARTICLE II
Transfers
Section 2.01. Generally.....................................................9
Section 2.02. Compliance with Securities Laws...............................9
Section 2.03. Agreement to Be Bound.........................................9
Section 2.04. Tag-Along Right...............................................10
Section 2.05. Drag-Along Right..............................................11
Section 2.06. Legend........................................................12
Section 2.07. Anciallary Agreements.........................................13
ARTICLE III
Information Rights
Section 3.01. Business Information..........................................13
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PAGE
ARTICLE IV
Preemptive Rights
Section 4.01. Preemptive Rights.............................................14
ARTICLE V
Representations and Warranties; Covenants
Section 5.01. Representations and Warranties................................15
Section 5.02. Covenant......................................................15
ARTICLE VI
Call Rights
Section 6.01. Call Option...................................................16
Section 6.02. Cash Payment..................................................16
Section 6.03. Representations and Warranties................................16
ARTICLE VII
Miscellaneous
Section 7.01. Assignment and Binding Effect.................................16
Section 7.02. Notices.......................................................17
Section 7.03. Governing Law.................................................18
Section 7.04. Jurisdiction..................................................18
Section 7.05. Entire Agreement..............................................18
Section 7.06. Counterparts..................................................18
Section 7.07. Severability..................................................18
Section 7.08. Interpretation................................................18
Section 7.09. Amendment and Modification....................................19
Section 7.10. Waiver........................................................19
Section 7.11. Further Assurances............................................19
Section 7.12. Sections, Exhibits............................................19
Section 7.13. Specific Enforcement..........................................19
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PAGE
Section 7.14. Termination...................................................19
Section 7.15. Withdrawal....................................................20
Section 7.16. No Recourse...................................................20
Section 7.17. Indemnity.....................................................20
Section 7.18. Successors....................................................21
ARTICLE VIII
Definitions
Section 8.01. Definitions...................................................21
Schedule A -- Stockholders and Securities Held at Closing
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This STOCKHOLDERS AGREEMENT (the "AGREEMENT"), dated as of April 5,
2006, by and among UICI, a Delaware corporation (the "COMPANY"), each of the
Sponsor Stockholders (as defined herein) and each of the Management Stockholders
(as defined herein and, together with the Sponsor Stockholders and such other
Persons (as defined herein) as may hereinafter become parties to or be bound by
this Agreement, the "STOCKHOLDERS").
RECITALS
WHEREAS, the Company and certain Affiliates of the Sponsor
Stockholders have entered into an Agreement and Plan of Merger, dated as of
September 15, 2005 (the "MERGER AGREEMENT"), whereby certain of such Affiliates
will merge with and into the Company (the "MERGER");
WHEREAS, each of the Management Stockholders is or will be party to
an employment agreement with the Company or a Subsidiary thereof, pursuant to
which such Management Stockholders have agreed, on the terms and subject to the
conditions described therein, that the shares of common stock and certain stock
options of the Company that the Management Stockholders own will remain
outstanding at the closing of the transactions provided for in the Merger
Agreement (the "CLOSING");
WHEREAS, the Management Stockholders may be granted additional
securities of the Company or rights to purchase additional securities of the
Company at the Closing or in the future;
WHEREAS, as of the close of business on the date on which the Closing
occurs, each Sponsor Stockholder and Management Stockholder will own the number
of Shares and Share Equivalents set forth opposite such Stockholder's name on
Schedule A hereto; and
WHEREAS, this Agreement shall become effective upon the Closing.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
ARTICLE I
GENERAL GOVERNANCE AND MANAGEMENT
Section 1.01. INITIAL BOARD OF DIRECTORS. The initial Board of
Directors of the Company (the "BOARD") as of the Closing shall consist of seven
Directors with a total of 11 votes in the aggregate. The composition of the
Board as of the Closing, and the number of votes conferred upon each such
Director, shall be as follows:
NAME OF DIRECTOR TYPE OF DIRECTOR NUMBER OF
VOTES
Xxxxx X. Xxx Blackstone Investor Director 3
Xxxxxxx X. Xxxxxxx Blackstone Investor Director 3
Xxxxxx X. Xxxxx GS Investor Director 1
Xxxxxxxxx Xxxxxx GS Xxxxxxxx Xxxxxxxx 0
Xxxxx X. Xxxxxx XXX Investor Director 1
Xxxxxxx X. Xxxxxx Management Director 1
Mural X. Xxxxxxxxx Additional Director 1
Each of such Directors shall hold office until such person's death, disability,
resignation or removal, or until such Director's successor shall have been duly
elected and qualified, in each case in accordance with the terms of Article I
hereof. Each Stockholder hereby consents to the election of the nominees and to
such initial Board (and to the number of votes to be conferred upon each) as
listed above, effective as of the Closing.
Section 1.02. SUBSEQUENT BOARD COMPOSITION AND DIRECTOR VOTING POWER.
(a): (i) From and after the Closing, the Board shall be composed of: (1) subject
to Section 1.02(b), a number of Directors designated or nominated by the
Blackstone Investor Group (each, a "BLACKSTONE INVESTOR DIRECTOR") up to the
Blackstone Investor Group's Director Designee Number at such time, (2) a number
of Directors designated or nominated by the GS Investor Group (each, a "GS
INVESTOR DIRECTOR") up to the GS Investor Group's Director Designee Number at
such time, (3) a Director or number of Directors designated or nominated by the
DLJ Investor Group (each, a "DLJ INVESTOR DIRECTOR") equal to the DLJ Investor
Group's Director Designee Number at such time, (4) a number of Additional
Directors, if any, as provided in clause (ii) below and (5) a number of
Management Directors, if any, as provided in clause (iii) below. From and after
the Closing, at each annual meeting or special meeting of Stockholders at which
any Directors of the Company are to be elected (or in connection with any
applicable written consent of Stockholders), each Investor Group shall have the
right (but not the obligation) to designate and nominate a number of Directors
up to its Director Designee Number; PROVIDED, that each Investor Group's right
to designate and nominate Investor Directors shall cease with respect to such
Investor Group from and after the first date on which the members of such
Investor Group own in the aggregate a number of Shares that is less than the
greater of (i) 5% of the number of Shares issued to all Investor Groups in the
Merger and (ii) 3% of the then-outstanding Shares (in which case, such Investor
Group shall thereafter be referred to herein as a "NON-QUALIFYING INVESTOR
GROUP").
(ii) From and after the Closing, the Board shall include any number of
Additional Directors (or none) as may be determined by the Board from time to
time; PROVIDED that, at any
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time during which the Company is required by Applicable Law to have one or more
independent directors (as such term may be defined in any Applicable Law)
("INDEPENDENCE REQUIREMENTS"), the Board shall include not fewer than the
minimum number of Independent Directors as may be required by the Independence
Requirements, such Independent Directors to be considered Additional Directors
for purposes hereunder. To the extent the Board has determined to include
Additional Directors pursuant to the immediately preceding sentence, the Board
shall have the authority to, and responsibility of, nominating qualified Persons
for election as Additional Directors at each annual meeting or special meeting
of Stockholders at which any such Directors of the Company are to be elected (or
in connection with any applicable written consent of Stockholders). The Board
shall promptly act to fill any vacancies among the Additional Directors
resulting from the death, resignation or removal of any Additional Director. Any
Additional Director may be removed, with or without cause, with the consent of
the Majority Sponsor Stockholders.
(iii) From and after the Closing, the Board shall include the Company's
Chief Executive Officer, or such other executive officer as may be selected by
the Majority Sponsor Stockholders(the "MANAGEMENT DIRECTOR"). At each annual
meeting or special meeting of Stockholders at which any Directors of the Company
are to be elected (or in connection with any applicable written consent of
Stockholders), the Board shall nominate such Person for election as the
Management Director. The Board shall promptly act to fill any vacancy resulting
from the death, resignation or removal of the Management Director. The
Management Director may be removed, with or without cause, with the consent of
the Majority Sponsor Stockholders, and shall automatically be removed
immediately upon the Management Director ceasing to be employed by the Company
or a wholly-owned Subsidiary.
(b) DIRECTOR VOTING POWER. As of the Closing, the aggregate number of
votes on all matters to be acted or voted upon or determined by the Directors
shall be 11, and thereafter shall be equal to the sum of (1) the Director
Designee Numbers of each Investor Group, plus (2) the number of Management
Directors, if any, plus (3) the number of Additional Directors, if any, in each
case, at the relevant time. Each Director shall be entitled to one vote, except
that in the event that the number of Blackstone Investor Directors is less than
the Blackstone Investor Group's Director Designee Number, then each Blackstone
Investor Director shall be entitled to a number of votes equal to the Blackstone
Investor Group's Director Designee Number divided by the number of Blackstone
Investor Directors at such time. References in this Agreement or in the Charter
or Bylaws to any vote or action to be taken by the Board or by the Directors (or
any subgroup thereof), or by a majority of the Board or majority of the
Directors (or any similar concept) shall, unless specifically otherwise stated,
be deemed to refer to a vote or action by Directors holding a majority of the
voting power of the Directors acting on such matter.
(c) REDUCTION IN DIRECTOR DESIGNEE NUMBER. In the event that an
Investor Group's Director Designee Number is reduced, but such Investor Group
does not become a Non-Qualifying Investor Group, such Investor Group shall
promptly cause one or more of the Investor Directors nominated or designated by
such Investor Group to resign so that that the number of such Investor Group's
remaining Investor Directors does not exceed its Director Designee Number; it
being understood that, in the case of the Blackstone Investor Group, if its
number of Investor Directors is less than its Director Designee Number, the
Blackstone Investor Group shall not be required to cause the resignation of a
director, but instead the voting power of
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each of its Investor Directors shall be proportionately reduced, as provided in
Section 1.02(b). If an Investor Group does not cause such resignation within the
earlier of (i) five Business Days after the date such Investor Group's Director
Designee Number is reduced and (ii) the date of the next meeting of the Board or
action of the Board by written consent, then the Board, by action of the
Directors who are not nominees or designees of such Investor Group, may remove
the appropriate number of the relevant Investor Group's Investor Directors, for
and on behalf of such Investor Group. If at any time an Investor Group becomes a
Non-Qualifying Investor Group, then such Non-Qualifying Investor Group's
Investor Directors shall automatically be deemed to have been removed from the
Board, effective immediately at such time.
(d) In the event that any Investor Director shall cease to serve as a
Director for any reason other than the fact that the applicable Investor Group's
Director Designee Number is reduced or the fact that the applicable Investor
Group has become an Non-Qualifying Investor Group, any vacancy resulting thereby
shall be filled by a Person or Persons nominated by the Investor Group that
nominated or designated the Investor Director(s) who has ceased to serve. The
Board and, if necessary each of the parties hereto, shall take all action
necessary to promptly elect, if necessary, such successor or replacement
Investor Director(s) to the Board as soon as possible after the date of such
vacancy.
(e) Each Investor Group shall at all times have the exclusive right,
subject to the next sentence, to remove or replace any Investor Director
nominated or designated by such Investor Group, and such Investor Director being
removed or replaced shall immediately resign if so removed by the applicable
Investor Group and the Board and, if necessary, each of the parties hereto shall
use all reasonable efforts and take all necessary action to cause the removal of
such Investor Director. The foregoing notwithstanding, any Investor Director
may be removed from office without the consent of the Investor Group that
nominated or designated such Investor Director pursuant to Section 1.02(c)
hereof.
(f) The rights of each Investor Group to nominate, designate or remove
any Investor Directors (1) may be assigned by an Investor Group to one
Stockholder included in such Investor Group or to the Management Company of such
Investor Group (but only so long as such Management Company remains the
management company of all Stockholders included in such Investor Group and such
member remains a Stockholder and a member of such Investor Group) and (2) shall
be transferable only (A) among Sponsor Stockholders that are members of the same
Investor Group or (B) in connection with Transfers of all of the Shares owned by
all members of an Investor Group made with the consent of the Majority Sponsor
Stockholders.
(g) Anything to the contrary herein notwithstanding, each VCOC
Stockholder, and each Investor Group that is not a Non-Qualifying Investor Group
that does not have a VCOC Stockholder as a member of such group, shall have the
right (but not the obligation) pursuant to this Agreement to designate an
observer (each, an "OBSERVER") to receive notice of and to attend all meetings
of the Board. Each such Observer shall be entitled to receive all materials and
reports regarding the Company that are distributed to Directors in connection
with such meetings, to raise matters for consideration at such meetings and to
participate in discussions occurring at such meetings; PROVIDED, HOWEVER, that
such Observer shall not have the right to participate in any vote, consent or
other action of the Board, nor shall such Observer's vote, consent or other
action be required for any vote, consent or other action of the Board, nor shall
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any such Observer participate in any executive session nor be entitled to be
present for any privileged communication from counsel if the presence of such
Observer could affect the existence of such privilege.
Section 1.03. STOCKHOLDER VOTING; PRESENCE AT QUORUM; OBLIGATION TO
SUPPORT PURPOSES OF THIS AGREEMENT. Each Stockholder shall vote (or, if
applicable, consent in writing with respect to) all of its Shares (to the extent
entitled to vote or consent with respect to the relevant matter), and each
Stockholder and the Company shall take all necessary and desirable actions
within its control, in order to effect the provisions of this Agreement,
including without limitation the provisions relating to the nomination,
designation, election, removal or replacement of Directors and the allocation of
votes among the Directors and including the obligation to vote in favor of any
prospective Director designated or nominated in accordance with this Article I
and to ensure the continuing Board composition contemplated hereby. The
obligation to take all actions within its control shall include, with respect to
each Stockholder that is a member of an Investor Group, the obligation to remove
any Director appointed by its Investor Group that fails to act to give effect to
this Agreement and to replace such Director with another Director. Each
Stockholder shall cause all of the Shares owned by it to be present for quorum
purposes at each annual meeting of the Stockholders of the Company and at any
special meeting of the Stockholders of the Company at which Directors are to be
elected or removed or vacancies on the Board are to be filled, or in connection
with any such action proposed to be taken by written consent.
Section 1.04. BOARD COMMITTEES. The Company shall maintain the
following standing committees of the Board: (a) an Executive Committee, (b) a
Compensation Committee and (c) an Audit Committee. Subject to Applicable Law,
the composition and mandate of such committees will be determined by the Board;
PROVIDED that each Investor Group that is not a Non-Qualifying Investor Group
shall also have the right to appoint at least one of its Investor Directors to
each such committee, subject to Applicable Law.
Section 1.05. APPROVAL RIGHTS. (a) In addition to any other approval
required, for so long as any member of the GS Investor Group is a party to this
Agreement, then, without the prior written approval of at least two Investor
Groups (including the GS Investor Group), (i) the Company shall not, and shall
cause its Subsidiaries not to, directly, or through any entity that the Company
or any of its Subsidiaries is deemed to control for purposes of the Bank Holding
Company Act of 1956, as amended (the "BHC ACT") and Regulation Y (12 C.F.R Part
225), acquire or otherwise control equity securities of any (1) bank holding
company as defined in Section 2(a) of the BHC Act, (2) depository institution as
defined in Section 3 of the Federal Deposit Insurance Act, (3) savings and loan
holding company as defined in Section 10 of the Home Owner's Loan Act, (4) Edge
corporation or agreement corporation as defined in Section 25 or 25a of the
Federal Reserve Act and Regulation K of the Board of Governors of the Federal
Reserve System or (5) foreign banking organization subject to Section 4 of the
BHC Act by virtue of its U.S. operations; and (ii) neither the Company nor its
Subsidiaries will directly, or through any entity that is deemed to be a
subsidiary of the Company for purposes of Section 141 of the New York Banking
Law (the "NYBL"), acquire or otherwise control equity securities of (1) a bank
holding company or banking institution as defined in Section 141 of the NYBL or
(2) an investment company as defined in Section 2 of the NYBL.
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(b) In addition to any other approval required, the Company shall not,
and shall cause its Subsidiaries not to, take any of the following actions
or facilitate any of the following actions without an approval of the Board
that includes (i) for so long as there are three Investor Groups that are
not Non-Qualifying Investor Groups, the approval of Investor Directors
appointed by at least two of the Investor Groups, and (ii) for so long as
there are exactly two Investor Groups that are not Non-Qualifying Investor
Groups, the approval of at least one Investor Director who is not a
Blackstone Investor Director:
(i) in the case of the Company entering into any merger, consolidation
or other business combination, reorganization, or liquidation or
consummation of a similar transaction (other than any such transaction
between or among the Company and one or more wholly-owned (directly or
indirectly) Subsidiaries of the Company, which transactions would not
adversely affect the rights of any Investor Groups);
(ii) acquiring or disposing of (in each case, including by merger,
business combination, reorganization or other similar transaction), in a
single transaction or a series of related transactions, any business or
assets for consideration having a value (valuing any non-cash consideration
at fair market value as determined by the Board in good faith) in excess of
20% of the fair market value of the total assets of the Company and its
Subsidiaries, taken as a whole, as of immediately prior to such transaction
or series of transactions (as determined by the Board in good faith);
(iii) (A) incurring any indebtedness for borrowed money or issuing any
debt securities (other than indebtedness or debt securities owed between or
among the Company and/or one or more wholly-owned Subsidiaries) or (B)
issuing to any third party any preferred stock (1) that the Company is
required on a date certain, or can be required by the holder at the option
of the holder, to redeem or repurchase, or with respect to which the
Company is required to pay cash dividends or (2) of a type other than the
types of preferred stock set forth in clause (1), to the extent that the
aggregate that the aggregate liquidation value of all such preferred stock
described in this clause (2) exceeds $50 million in the aggregate, if, in
the cases of either of clause (A) or (B) and in the aggregate for all
transactions described in clauses (A) and (B), the amount of such new
indebtedness or the liquidation value of such preferred stock exceeds 20%
of the fair market value of the total assets of the Company and its
Subsidiaries, taken as a whole, as of immediately prior to such incurrence
or issuance (as determined by the Board in good faith);
(iv) entering into or effecting any agreement or transaction after the
Closing between or among the Company and/or any of its Subsidiaries, on the
one hand, and any Affiliates of either the Company or any Stockholder, on
the other hand, other than DE MINIMIS transactions on arm's length terms;
and
(v) effecting any amendment to the Charter or Bylaws with the purpose
or effect of facilitating any actions referred to in clauses (i)-(iv) or
that otherwise would directly conflict with the terms of this Agreement.
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(c) In addition to any other approval required, without the prior
written approval of each affected Investor Group, the Company and each
Stockholder shall not, and shall cause their respective Subsidiaries not
to, amend this Agreement, the Charter or the Bylaws or take any other
action that would have any of the following effects:
(i) imposing additional restrictions on a Sponsor Stockholder's
ability to Transfer any Shares, Share Equivalents or other securities of
the Company, other than as set forth in Article II;
(ii) limiting a Sponsor Stockholder's ability to sell Shares as a
Tag-Along Seller in accordance with Section 2.04;
(iii) limiting a Stockholder's right to nominate or designate
Directors pursuant to Sections 1.01-1.03;
(iv) limiting a Sponsor Stockholder's right to participate in Public
Offerings as set forth in the Registration Rights and Coordination
Committee Agreement; or
(v) that any of the foregoing would not require the consent of an
affected Investor Group.
(d) In addition to any other approval required, without the prior
written approval of Management Stockholders holding a majority of the
Shares held by the Management Stockholders, the Company and each
Stockholder shall not, and shall cause their respective Subsidiaries not
to, amend this Agreement, the Charter or the Bylaws or take any other
action that would have any of the following effects:
(i) imposing additional restrictions on a Management Stockholder's
ability to Transfer any Shares, Share Equivalents or other securities of
the Company, other than as set forth in Article II;
(ii) limiting a Management Stockholder's ability to sell Shares as a
Tag-Along Seller in accordance with Section 2.04;
(iii) limiting a Management Stockholder's right to participate in
Public Offerings as set forth in the Registration Rights and Coordination
Committee Agreement; or
(iv) that any of the foregoing would not require the approval of
Management Stockholders holding a majority of the Shares held by such
Management Stockholder.
(e) In addition to any other approval required, the Company and each
Stockholder shall not, and shall cause their respective Subsidiaries not
to, adopt or effect any amendment, modification or supplement to this
Agreement, the Charter or the Bylaws that would subject any Investor Group
to materially adverse differential treatment as compared to the other
Investor Groups, without the prior written approval of each such materially
adversely affected Investor Group, and shall not amend, modify or
supplement this Section 1.05(e) without the prior written approval of each
affected Investor Group.
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Section 1.06. CORPORATE OPPORTUNITY. (a) Except as otherwise agreed in
writing, to the fullest extent permitted by law, (i) no Sponsor Stockholder or
Investor Director shall have any duty (fiduciary or otherwise) or obligation, if
any, to refrain from (A) engaging in the same or similar activities or lines of
business as the Company or any of its Subsidiaries, (B) doing business with any
client, customer or vendor of the Company or any of its Subsidiaries or (C)
entering into and performing one or more agreements (or modifications or
supplements to pre-existing agreements) with the Company or any of its
Subsidiaries, including, in the cases of clauses (A), (B) or (C), any such
matters as may be corporate opportunities; and (ii) no Investor Director or
Sponsor Stockholder nor any officer, director or employee thereof shall be
deemed to have breached any duties (fiduciary or otherwise), if any, to the
Company, any of its Subsidiaries or its securityholders solely by reason of any
Investor Director or Sponsor Stockholder engaging in any such activity or
entering into such transactions, including any corporate opportunities.
(b) The Company and its Subsidiaries shall have no interest or
expectation in, nor right be informed of, any Corporate Opportunity, and in the
event that any Investor Director, Sponsor Stockholder or Section 2 Person
acquires knowledge of a potential transaction or matter which may be a Corporate
Opportunity, such Investor Director, Sponsor Stockholder or Section 2 Person
shall, to the fullest extent permitted by law, have no duty (fiduciary or
otherwise) or obligation to communicate or offer such Corporate Opportunity to
the Company or any of its Subsidiaries or to any other Investor Directors or
stockholders and shall not, to the fullest extent permitted by law, be liable to
the Company or any of its Subsidiaries or stockholders for breach of any
fiduciary duty as a Director, officer or stockholder of the Company or any of
its Subsidiaries by reason of the fact that any Investor Director, Sponsor
Stockholder or Section 2 Person acquires or seeks such Corporate Opportunity for
itself, directs such Corporate Opportunity to another person or entity, or
otherwise does not communicate information regarding such Corporate Opportunity
to the Company or its Subsidiaries or stockholders, and the Company and its
Subsidiaries, to the fullest extent permitted by law, waive and renunciate any
claim that such business opportunity constituted a Corporate Opportunity that
should have been presented to the Company or any of its Affiliates; provided
that if an opportunity is expressly communicated to a Section 2 Person in his or
her capacity as a director or officer of the Company or such Subsidiary for the
expressed purpose of causing such opportunity to be communicated to the Company
or such Subsidiary, then such Section 2 Person shall satisfy his or her
fiduciary obligation, if any, by communicating the opportunity, or, in lieu
thereof, the identity of the party initiating the communication, to the Board.
For the purposes of this Stockholders Agreement, (1) "CORPORATE OPPORTUNITY"
shall include, without limitation, any potential transaction, investment or
business opportunity or prospective economic or competitive advantage in which
the Company or any of its Subsidiaries could have any expectancy or interest;
and (2) "SECTION 2 PERSON" shall mean any director or officer of the Company or
any of its Subsidiaries who is also a director, officer or employee of any
Sponsor Stockholder or any of its Affiliates.
Section 1.07. PROXY. Each Management Stockholder hereby irrevocably
appoints Xxxxx X. Xxx and Xxxxxxx X. Xxxxxxx, in their respective capacities as
Directors nominated by the Blackstone Investor Group, and any other Person
designated in writing by the Blackstone Investor Group, each of them
individually, with full power of substitution, as its proxy and attorney-in-fact
to vote its Shares in accordance with such Management Stockholder's agreements
contained in this Article I (except for Section 1.05(d)), which proxy shall be
valid
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and remain in effect until the applicable provisions of this Article I expire
pursuant to Section 7.14. The proxy granted hereby is irrevocable and coupled
with an interest sufficient in law to support an irrevocable power. Each Person
who is granted such proxy agrees that each Management Stockholder's Shares shall
only be voted in a manner consistent with such Management Stockholder's
agreements with respect to voting contained in this Article I and agrees that it
shall not vote such Management Stockholder's Shares in any manner inconsistent
with this Agreement. This Section 1.07 shall terminate when the Blackstone
Investor Group ceases to own a majority of the outstanding Shares.
ARTICLE II
TRANSFERS
Section 2.01. GENERALLY. No Stockholder shall directly or indirectly
sell, transfer, pledge or otherwise dispose of any economic, voting or other
rights in or to (collectively, "TRANSFER") any Shares, Share Equivalents or
other securities of the Company, other than (i) to Permitted Transferees, (ii)
in a Tag-Along Sale pursuant to Section 2.04 or in a Drag-Along Sale pursuant to
Section 2.05, in each case in a transaction initiated by Sponsor Stockholder(s)
that collectively own at least 35% of the outstanding Shares or that obtained
approval pursuant to clause (iv) below, (iii) after an IPO, and, in each case,
subject to any applicable provisions of the Registration Rights and Coordination
Committee Agreement: (1) in a Public Offering, (2) pursuant to Rule 144
(including any block sale made pursuant to Rule 144) or (3) in a distribution of
Shares by a Sponsor Stockholder to its general or limited partners, members,
managers or shareholders in accordance with such Sponsor Stockholder's governing
documents ("FUND DISTRIBUTIONS"), or (iv) with the approval of the Majority
Sponsor Stockholders and, if applicable, in accordance with Section 2.04 or 2.05
(clauses (i), (ii) and (iii) together, the "PERMITTED TRANSFER PROVISIONS"). The
Company shall not record upon its books any Transfer of any securities of the
Company other than as permitted by and in accordance with the Permitted Transfer
Provisions, and any purported Transfer in violation hereof shall be null and
void and of no effect.
Section 2.02. COMPLIANCE WITH SECURITIES LAWS. No Transfer of any
securities of the Company otherwise permitted under this Agreement shall be made
if such Transfer is not in compliance with the Securities Act or any other
applicable securities laws.
Section 2.03. AGREEMENT TO BE BOUND. No Transfer of any securities of
the Company otherwise permitted by the Permitted Transfer Provisions shall be
made or be effective (and the Company shall not record or recognize any such
Transfer on its books) unless (i) the certificates representing such securities
issued to the transferee bear the legend provided in Section 2.06 hereof, if
required by such Section 2.06, and (ii) the transferee shall have executed and
delivered to the Company, as a condition precedent to such Transfer, an
instrument or instruments in form and substance reasonably satisfactory to the
Board confirming that the transferee agrees to be bound by the terms of this
Agreement and accepts the rights and obligations set forth hereunder; PROVIDED,
HOWEVER, that the terms and conditions of (x) Section 2.03(ii) hereof shall not
apply to any Transfer of Shares pursuant to Section 2.05 hereof except to the
extent that the agreement providing for such Transfer provides that the
transferee shall be bound by this Agreement as a Stockholder, and (y) Sections
2.03(i) and 2.03(ii) hereof shall not
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apply to any Transfer pursuant to a Public Offering or Rule 144 (including any
block sale made pursuant to Rule 144).
Section 2.04. TAG-ALONG RIGHT. (a) SALE NOTICE. If any Sponsor
Stockholder (or group of Sponsor Stockholders) (the "SELLING STOCKHOLDER")
proposes to Transfer Shares in a Tag-Along Sale, then the Selling Stockholder
shall first give written notice (the "SALE NOTICE") (i) to the other Sponsor
Stockholders and (ii) if the number of Shares proposed to be purchased by the
proposed purchaser is greater than 50% of the outstanding Shares, to the
Management Stockholders (such Stockholders to be given such written notice, the
"OFFEREE STOCKHOLDERS"), stating that it desires to make such Transfer,
referring to this Section 2.04, specifying the type(s) and number of Shares
proposed to be purchased by the proposed purchaser (the "OFFER SHARES"), and
specifying the price, the form of consideration, name and description of the
purchaser (including any controlling Persons thereof) (the "PROPOSED
TRANSFEREE") and the material terms pursuant to which such Transfer is proposed
to be made.
(b) TAG-ALONG ELECTION. Within ten Business Days after the date of
receipt of the Sale Notice, each Offeree Stockholder shall deliver to the
Selling Stockholder and to the Company a written notice stating whether the
Offeree Stockholder elects to sell a PRO RATA portion of its Shares (equal to
(1) the total number of Shares owned by such Offeree Stockholder, multiplied by
(2) a fraction, (A) the numerator of which is the number of Offer Shares and (B)
the denominator of which is the total number of Shares owned by the Selling
Stockholder and the Offeree Stockholders who elect to sell Shares in such sale)
to such Proposed Transferee on the same terms, purchase price and conditions as
the Selling Stockholder (with respect to each Offeree Stockholder, its
"TAG-ALONG SHARES"). An election pursuant to the first sentence of this Section
2.04(b) shall constitute an irrevocable commitment by the Offeree Stockholder
making such election to sell such Tag-Along Shares to the Proposed Transferee if
the sale of Offer Shares to the Proposed Transferee occurs on the terms
contemplated thereby. Such terms may include a maximum number of Shares such
Proposed Transferee is willing to purchase, and, in such case, the Selling
Stockholder and the Offeree Stockholders selling Shares pursuant hereto shall be
cut back PRO RATA based on the number of Shares each such Stockholder is
electing to sell.
(c) THIRD-PARTY SALE; TAG-ALONG BUYER. A sale to a Proposed Transferee
pursuant to this Section 2.04 shall only be consummated if the Proposed
Transferee shall purchase, within 90 days of the date of the Sale Notice,
concurrently with and on the same terms and conditions and at the same price as
the applicable class of Offer Shares, all of each Offeree Stockholder's
Tag-Along Shares of the same class with respect to such sale, in accordance with
their elections pursuant to Section 2.04(b), and subject to the last sentence
thereof (the "TAG-ALONG RIGHT"). Each Offeree Stockholder electing to sell
Tag-Along Shares (a "TAG-ALONG SELLER") agrees to cooperate in consummating such
a sale, including, without limitation, by becoming a party to the sales
agreement and all other appropriate related agreements, delivering, at the
consummation of such sale, stock certificates (if any) and other instruments for
such Shares duly endorsed for transfer, free and clear of all liens and
encumbrances, and voting or consenting in favor of such transaction (to the
extent a vote or consent is required) and taking any other necessary or
appropriate action in furtherance thereof, including the execution and delivery
of any other appropriate agreements, certificates, instruments and other
documents (including, without limitation, making any representations and
warranties with respect to the
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Company or the Company's business to the same extent that the Selling
Stockholder makes such representations and warranties, if and to the extent
requested by the Proposed Transferee). In addition, each Tag-Along Seller shall,
if and to the extent requested by the Selling Stockholder, agree to be severally
responsible for its proportionate share (based on the number of securities
transferred in the transaction) of the third-party expenses of sale incurred by
the sellers on behalf of all sellers in connection with such sale and the
monetary obligations and liabilities incurred by the sellers on behalf of all
sellers in connection with such sale. Such monetary obligations and liabilities
shall include (to the extent such obligations are incurred) obligations and
liabilities for indemnification (including for (i) breaches of representations
and warranties made in connection with such sale by the Company or any other
seller with respect to the Company or the Company's business, (ii) breaches of
covenants in effect prior to closing, on a several basis with other sellers who
have breached the same covenants and (iii) other matters, but only, in the case
of clause (iii), to the extent such breaches or inaccuracies are of a type for
which insurance can be obtained on commercially reasonable terms), and shall
also include amounts paid into escrow or subject to holdbacks, and amounts
subject to post-closing purchase price adjustments, PROVIDED that all such
obligations are equally applicable on a several and not joint basis to the
Selling Stockholder and each Tag-Along Seller based on the number of securities
transferred in the transaction. The foregoing notwithstanding, (i) without the
written consent of a Tag-Along Seller, the amount of such obligations and
liabilities for which such Tag-Along Seller shall be responsible shall not
exceed the gross proceeds received by such Tag-Along Seller in such sale, (ii) a
Tag-Along Seller shall not be obligated to enter into any non-compete or other
post-closing covenant that restricts its activities in any way and (iii) a
Tag-Along Seller shall not be responsible for the fraud of any other seller or
for any indemnification obligations and liabilities for breaches of
representations and warranties and covenants made by any other seller with
respect to such other seller's (A) ownership of and title to shares of capital
stock of the Company, (B) organization, (C) authority, (D) conflicts and
consents and (E) other matters that relate to such other seller but not to the
Company or such Tag-Along Seller.
Section 2.05. DRAG-ALONG RIGHT. (a) If (x) the Sponsor Stockholders
collectively own at least 50% of the outstanding Shares and (y) a Sponsor
Stockholder (or group of Sponsor Stockholders) owning at least 35% of the
outstanding Shares (the "DRAGGING STOCKHOLDERS") proposes to Transfer Shares in
a Drag-Along Sale, then the Dragging Stockholder shall have the right (a
"DRAG-ALONG RIGHT"), exercisable upon 10 Business Days' prior written notice to
the other Stockholders, to require the other Stockholders to sell a number of
their Shares (and, at the option of the Dragging Stockholder, their Share
Equivalents) equal to its Drag-Along Portion to the Proposed Transferee on the
same terms and conditions and at the same price as the Dragging Stockholder
receives in connection with such transaction in respect of its Shares (in the
case of Share Equivalents, the purchase price of each shall be equal to the
purchase price attributable to the number of Shares issuable upon exercise or
conversion thereof less any exercise price thereof). In the event that there are
conflicting proposed Drag-Along Sales, the Dragging Stockholders owning the
greatest number of Shares shall have the Drag-Along Right.
(b) Each Stockholder selling Shares pursuant to a transaction
contemplated by this Section 2.05 (a "DRAG-ALONG SELLER") agrees to cooperate in
consummating such a sale, including, without limitation, by becoming a party to
the sales agreement and all other appropriate related agreements, delivering, at
the consummation of such sale, stock certificates (if any) and other instruments
for such Shares duly endorsed for transfer, free and clear of all
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liens and encumbrances, and voting or consenting in favor of such transaction
(to the extent a vote or consent is required) and taking any other necessary or
appropriate action in furtherance thereof, including the execution and delivery
of any other appropriate agreements, certificates, instruments and other
documents (including, without limitation, making any representations and
warranties with respect to the Company or the Company's business to the same
extent that the Dragging Stockholder makes such representations and warranties,
if and to the extent requested by the Proposed Transferee). In addition, each
Drag-Along Seller shall, if and to the extent requested by the Dragging
Stockholder, agree to be severally responsible for its proportionate share
(based on the number of securities transferred in the transaction) of the
third-party expenses of sale incurred by the sellers on behalf of all sellers in
connection with such sale and the monetary obligations and liabilities incurred
by the sellers on behalf of all sellers in connection with such sale. Such
monetary obligations and liabilities shall include (to the extent such
obligations are incurred) monetary obligations and liabilities for
indemnification (including for (i) breaches of representations and warranties
made in connection with such sale by the Company or any other seller with
respect to the Company or the Company's business, (ii) breaches of covenants in
effect prior to closing, on a several basis with other sellers who have breached
the same covenants and (iii) other matters, but only, in the case of clause
(iii), to the extent such breaches or inaccuracies are of a type for which
insurance can be obtained on commercially reasonable terms), and shall also
include amounts paid into escrow or subject to holdbacks, and amounts subject to
post-closing purchase price adjustments, PROVIDED that all such obligations are
equally applicable on a several and not joint basis to each Drag-Along Seller
based on the number of securities transferred in the transaction. The foregoing
notwithstanding, (i) without the written consent of a Drag-Along Seller, the
amount of such obligations and liabilities for which such Drag-Along Seller
shall be responsible shall not exceed the gross proceeds received by such
Drag-Along Seller in such sale, (ii) a Drag-Along Seller shall not be obligated
to enter into any non-compete or other post-closing covenant that restricts its
activities in any way and (iii) a Drag-Along Seller shall not be responsible for
the fraud of any other seller or any indemnification obligations and liabilities
for breaches of representations and warranties and covenants made by any other
seller with respect to such other seller's (A) ownership of and title to shares
of capital stock of the Company, (B) organization, (C) authority, (D) conflicts
and consents and (E) other matters that relate to such other seller but not to
the Company or to the Drag-Along Seller.
Section 2.06. LEGEND. Each certificate (if certificated) evidencing
securities of the Company and each instrument issued in exchange for or upon the
Transfer of any securities of the Company (subject to the proviso in Section
2.03 hereof) shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
TRANSFER AND OTHER RESTRICTIONS SET FORTH IN THE STOCKHOLDERS
AGREEMENT, DATED AS OF APRIL 5, 2006, AMONG UICI AND CERTAIN OF ITS
STOCKHOLDERS, AND AMONG OTHER THINGS, MAY NOT BE OFFERED OR SOLD
EXCEPT IN COMPLIANCE WITH SUCH TRANSFER RESTRICTIONS AND APPLICABLE
SECURITIES LAW. A COPY OF SUCH STOCKHOLDERS AGREEMENT IS ON FILE
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WITH THE SECRETARY OF THE COMPANY AND IS AVAILABLE WITHOUT CHARGE UPON
WRITTEN REQUEST THEREFOR. THE HOLDER OF THIS CERTIFICATE, BY
ACCEPTANCE OF THIS CERTIFICATE, AGREES TO BE BOUND BY ALL OF THE
PROVISIONS OF THE AFORESAID AGREEMENT.
Section 2.07. ANCILLARY AGREEMENTS. On or shortly after the date
hereof, the Company shall enter into a Fee Agreement (or Fee Agreements) with
the Sponsor Stockholders or certain of their affiliates or management companies,
and a Registration Rights and Coordination Committee Agreement with the
Stockholders.
ARTICLE III
INFORMATION RIGHTS
Section 3.01. BUSINESS INFORMATION. (a) The Company will prepare and
furnish the following to each Investor Group, each Management Stockholder and
each VCOC Stockholder:
(i) As soon as available, and in any event within 75 days after the
end of each fiscal year of the Company, a copy of the audited consolidated
balance sheet of the Company and its Subsidiaries as at the end of each
such fiscal year and the audited consolidated statements of income, cash
flows and changes in stockholders' equity for such year of the Company and
its Subsidiaries, setting forth in each case in comparative form the
figures for the next preceding fiscal year, all in reasonable detail.
(ii) As soon as available, and in any event within 35 days (or such
greater time as prescribed by the Securities and Exchange Commission for
accelerated filers) after the end of each fiscal quarter of the Company for
the first three fiscal quarters of a fiscal year, the unaudited
consolidated balance sheet of the Company and its Subsidiaries as at the
end of such quarter and the related consolidated statements of income, cash
flows and changes in stockholders' equity for such quarter and the portion
of the fiscal year then ended of the Company and its subsidiaries, setting
forth in each case the figures for the corresponding periods of the
previous fiscal year, or, in the case of such balance sheet, for the last
day of such fiscal year, in comparative form, all in reasonable detail.
(iii) As soon as available, and in any event within 45 days after the
start of each fiscal year of the Company, a copy of the operating and
capital expenditure budgets for the Company and its Subsidiaries for such
fiscal year, in each case in such form as the Company prepares in the
ordinary course of business.
(iv) To the extent otherwise prepared by the Company, periodic
information packages relating to the operations and cash flows of the
Company and its Subsidiaries.
(b) At any time during which the Company is subject to the periodic
reporting requirements of the Exchange Act or voluntarily reports
thereunder, the Company may satisfy its obligations pursuant to Sections
3.01(a)(i) and 3.01(a)(ii) by filing with the Securities and
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Exchange Commission (via the XXXXX system or in another matter that permits
access by the public or by all Sponsor Stockholders) on a timely basis annual
and quarterly reports satisfying the requirements of the Exchange Act. The
Company's obligation to furnish the materials described in this Section 3.01
shall be satisfied so long as it transmits such materials to the Stockholders
within the time periods specified in this Section, notwithstanding that such
materials may actually be received after the expiration of such periods.
ARTICLE IV
PREEMPTIVE RIGHTS
Section 4.01. PREEMPTIVE RIGHTS. (a) Except as set forth in Section
4.01(c), if the Company proposes to issue Shares, Share Equivalents or other
equity securities, each Stockholder shall have the right (the "PREEMPTIVE
RIGHT") to elect to purchase for the same price (net of any underwriting
discounts or sales commissions), and on the same terms and conditions as
securities of the same type are proposed to be offered to others, up to such
Stockholder's Preemptive Amount. "PREEMPTIVE AMOUNT" means the maximum number of
securities proposed to be issued in the relevant issuance multiplied by a
fraction, the numerator of which shall be the number of Shares owned by such
Stockholder immediately prior to the issuance and the denominator of which shall
be the total number of Shares issued and outstanding immediately prior to such
issuance.
(b) The Company shall cause to be given to each Stockholder and prior
to the proposed issuance a written notice setting forth the consideration that
the Company intends to receive and the terms and conditions upon which the
securities shall be issued (the "PREEMPTIVE NOTICE"). After receiving a
Preemptive Notice, a Stockholder which desires to exercise its Preemptive Right
must give notice to the Company in writing, within 10-Business Days after the
date that such Preemptive Notice is delivered, that such Stockholder desires to
purchase securities of such issuance (the "PREEMPTIVE REPLY"). A Preemptive
Reply shall constitute an irrevocable commitment by such Stockholder to purchase
such securities if the issuance occurs on the terms contemplated in the
Preemptive Notice. The closing of the sale pursuant to a Preemptive Reply shall
occur concurrently with the closing of the issuance giving rise to the
Preemptive Right, but no later than 90 days following the expiration of such
10-Business Day period. After such 10-Business Day period, any securities not
subscribed for by Stockholders submitting valid Preemptive Replies may, during
the period not exceeding 90 days following the expiration of such 10-Business
Day period, be issued on terms and conditions no less favorable and at a price
not less than the price set forth in the Preemptive Notice. Any such securities
not issued during such 90 day period shall thereafter again be subject to the
preemptive rights provided for in this Section 4.01. In the event that the
consideration received by the Company in connection with an issuance is property
other than cash, each Stockholder may, at its election, pay in cash the fair
market value, as determined by the Board in good faith, of such non-cash
consideration on a per-share basis. Preemptive Rights of any Management
Stockholder are not transferable, and do not transfer by operation of law or
this Agreement in connection with any Transfer of any such Shares of a
Management Stockholder.
(c) The provisions of this Section 4.01 shall not apply to issuances
by the Company: (i) to any of its wholly owned Subsidiaries; (ii) upon the
exercise or conversion of any Share Equivalents; (iii) to officers, employees,
directors, independent contractors or consultants
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(other than Investor Groups or Affiliates thereof) of the Company or its
Subsidiaries in connection with such Person's employment, independent contractor
or consulting arrangements with the Company or its Subsidiaries, in each case to
the extent approved by the Board or pursuant to an employment benefit plan or
arrangement approved by the Board; (iv) (A) in any business combination or
acquisition transaction involving the Company or any of its Subsidiaries, other
than a transaction of the type referenced in Section 1.05(b)(iv), (B) in
connection with any joint venture or strategic partnership entered into
primarily for purposes other than raising capital (as determined by the Board in
good faith), other than joint ventures and strategic partnerships with any
Investor Groups or Affiliates thereof or (C) to financial institutions,
commercial lenders, broker/finders or any similar party, or their respective
designees, in connection with the incurrence or guarantee of indebtedness by the
Company or any of its Subsidiaries, in each case to the extent approved by the
Board; (v) in connection with any stock split, stock dividend paid on a
proportionate basis to all holders of the affected class of capital stock or
recapitalization approved by the Board; or (vi) pursuant to a Public Offering.
ARTICLE V
REPRESENTATIONS AND WARRANTIES; COVENANTS
Section 5.01. REPRESENTATIONS AND WARRANTIES. Each Stockholder and the
Company represents and warrants to each other Stockholder and the Company (in
the case of the Stockholders) that (i) such Person has full legal power,
authority and right to execute and deliver, and to perform its obligations
under, this Agreement, (ii) this Agreement has been duly and validly executed
and delivered by such Person and constitutes a valid and binding agreement of
such Person enforceable against such Person in accordance with its terms, and
(iii) it has not granted and is not a party to any proxy, voting trust or other
agreement which is inconsistent with, conflicts with or violates any provision
of this Agreement or would otherwise frustrate or limit the ability of such
Person to comply with its obligations hereunder, other than the Voting Trust
Agreement to which the DLJ Investor Group is a party, a copy of which has been
provided by the DLJ Investor Group to each Sponsor Stockholder prior to the date
hereof (the "VOTING TRUST AGREEMENT").
Section 5.02. COVENANTS. (a) Each Stockholder and the Company agrees
that it shall not grant or become a party to any proxy, voting trust or other
agreement which is inconsistent with, conflicts with or violates any provision
of this Agreement or would otherwise frustrate or limit the ability of such
Stockholder to comply with its obligations hereunder, other than the Voting
Trust Agreement.
(b) The Company shall advise each Sponsor Stockholder before it or any
of its Subsidiaries directly or indirectly enters into any new line of business
that is materially different from the Company's lines of businesses as of the
date of this Agreement and, in the event it so elects to enter a new line of
business, shall discuss in good faith and reasonably cooperate with each
Investor Group to resolve any regulatory problems that such actions may cause
such Investor Group.
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ARTICLE VI
CALL RIGHTS
Section 6.01. CALL OPTION. Except as otherwise agreed in writing by
the Company and a Management Stockholder and subject to the proviso contained in
the next sentence, if any Management Stockholder ceases to be employed by the
Company and its Subsidiaries, as applicable, for any reason, the Company (or a
Subsidiary designated by the Company) shall have the right to purchase, out of
funds legally available therefor, all or any portion of such Management
Stockholders' Shares at any time following the later of (i) six months following
the Management Stockholder's receipt of the Shares subject to the right and (ii)
the Management Stockholder's termination of employment. The purchase price per
Share for each such Share shall be equal to the Fair Market Value of such Share;
PROVIDED that if such Management Stockholder's employment was terminated by the
Company or any of its Subsidiaries for Cause, then the purchase price per Share
for each such Share shall be equal to the lower of (a) the weighted average per
Share price paid by such Management Stockholder and (b) Fair Market Value of
such Share.
Section 6.02. CASH PAYMENT. The Company shall make any payment
required by Section 6.01 in cash; PROVIDED, HOWEVER, that the Board may
determine to make such payment in the form of a promissory note at the prime
rate then in effect (as determined by Citibank, N.A.) made by the Company in
lieu of cash if in the good faith determination of the Board, it would be
advisable and in the best interest of the Company to do so in light of the
availability under or limitations imposed by any credit agreement or other debt
agreement of the Company and the Company's capital and liquidity position. Any
such note may be prepaid in whole or in part at any time and from time to time
without premium or penalty.
Section 6.03. REPRESENTATIONS AND WARRANTIES. The receipt of
consideration by any Management Stockholder selling Shares in payment for the
Transfer of such Shares pursuant to this Article VI shall be deemed a
representation and warranty by such Person that: (a) such Management Stockholder
has full right, title and interest in and to such Shares; (b) such Management
Stockholder has all necessary power and authority and has taken all necessary
action to sell such Shares as contemplated by this Article VI; and (c) such
Shares are free and clear of any and all liens or encumbrances.
ARTICLE VII
MISCELLANEOUS
Section 7.01. ASSIGNMENT AND BINDING EFFECT. (a) Neither the Company
nor any Stockholder shall assign all or any part of this Agreement without the
prior written consent of the other parties hereto, (1) except as provided in
Section 1.02(f) or (2) except in connection with a Transfer of Shares permitted
by the terms of this Agreement subject to the terms of this Agreement.
(b) The Company shall not issue any authorized but previously unissued
Shares or Share Equivalents to any employee of the Company who is not then a
party to this Agreement unless such employee agrees to and does become a party
to this Agreement and
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bound hereby in respect of all Shares and Share Equivalents of the Company owned
by such employee from and after such issuance.
Section 7.02. NOTICES. Any notice, demand, request, waiver, or other
communication under this Agreement shall be personally served in writing, shall
be deemed to have been given on the date of service, and shall be addressed as
follows:
TO THE COMPANY: UICI
0000 Xxxxxxxxx Xxxxxxx
Xxxxx Xxxxxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Attention: General Counsel
TO ANY MEMBER OF THE Blackstone Management Partners
BLACKSTONE INVESTOR GROUP: IV L.L.C.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxx
With a copy to: Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
TO ANY MEMBER OF THE GS Capital Partners V Fund, L.P.
GS INVESTOR GROUP: 00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx
With a copy to: Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx,
Esq.
TO ANY MEMBER OF THE DLJ Merchant Banking Partners
DLJ INVESTOR GROUP: IV, L.P.
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile:
Attention: Xxxxxxx Xxxxxx
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With a copy to: Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Section 7.03. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAWS PRINCIPLES WHICH WOULD RESULT IN THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION.
Section 7.04. JURISDICTION. The parties hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the federal
courts of the Southern District of New York and New York State courts sitting in
New York City for any actions, suits or proceedings arising out of or relating
to this Agreement and the transactions contemplated hereby (and agree not to
commence any action, suit or proceeding relating thereto except in such courts,
and further agree that service of any process, summons, notice or document by
U.S. registered mail to its address set forth above shall be effective service
of process for any action, suit or proceeding brought against such party in any
such court). The parties hereby irrevocably and unconditionally waive any
objection to the laying of venue of any action, suit or proceeding arising out
of this Agreement or the transactions contemplated hereby in the federal courts
of the Southern District of New York and New York State courts sitting in New
York City, and hereby further irrevocably and unconditionally waive and agree
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
Section 7.05. ENTIRE AGREEMENT. This Agreement, the Fee Agreement and
the Registration Rights and Coordination Committee Agreement set forth the
entire understanding and agreement of the parties hereto and supersedes any and
all other understandings, term sheets, negotiations or agreements between the
parties hereto relating to the subject matter of this Agreement, the Fee
Agreement and the Registration Rights and Coordination Committee Agreement.
Section 7.06. COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, and all of which
together shall constitute a single agreement.
Section 7.07. SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable, the same shall not affect any other provision
of this Agreement, but this Agreement shall be construed in a manner which, as
nearly as possible, reflects the original intent of the parties.
Section 7.08. INTERPRETATION. Words used in the singular form in this
Agreement shall be deemed to import the plural, and vice versa, as the sense may
require. The table of contents and headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words
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"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
Section 7.09. AMENDMENT AND MODIFICATION. Except as provided in, and
subject to, Section 1.05, this Agreement may be amended, modified or
supplemented only in writing by Sponsor Stockholders that own not less than 70%
of the Sponsor Shares.
Section 7.10. WAIVER. Any party hereto may on behalf of itself only,
(i) extend the time for the performance of any of the obligations or other acts
of the other parties hereto, (ii) waive any inaccuracies in the representations
and warranties of any other party contained herein or in any document delivered
pursuant hereto, and (iii) waive compliance by any other party with any of the
agreements or conditions contained herein. Any agreement on the part of a party
hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party granting such waiver, but such waiver
or failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or future failure.
Section 7.11. FURTHER ASSURANCES. Subject to the terms and conditions
of this Agreement, each of the parties hereto will use its reasonable best
efforts to take, or cause to be taken, all actions, and to do, or cause to be
done, all things necessary, proper or advisable under Applicable Laws and
regulations, to consummate and make effective the provisions of this Agreement.
Section 7.12. SECTIONS, EXHIBITS. References to a section are, unless
otherwise specified, to one of the sections of this Agreement and references to
an "Exhibit" or "Schedule" are, unless otherwise specified, to one of the
exhibits or schedules attached to this Agreement.
Section 7.13. SPECIFIC ENFORCEMENT. The Stockholders, and the Company
acknowledge and agree that irreparable damage would occur in the event that any
of the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
the provisions of this Agreement and to enforce specifically the terms and
provisions hereof, this being in addition to any other remedy to which they may
be entitled at law or in equity.
Section 7.14. TERMINATION. (a) This Agreement shall terminate and,
except as provided herein, be of no further effect, at such time as there are no
longer any Sponsor Stockholders. No termination under this Agreement shall
relieve any Person of liability for breach prior to termination. In the event
this Agreement is terminated, each Stockholder shall retain the indemnification,
contribution and reimbursement rights pursuant to Section 7.17 hereof with
respect to any matter that occurred prior to such termination.
(b) The provisions in Article IV and Article VI shall terminate upon
an IPO.
(c) The provisions in Section 2.01 and 2.03 shall cease to be
applicable to Sponsor Stockholders on the date which is five years from the date
of the Closing.
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Section 7.15. WITHDRAWAL. Any Stockholder that ceases to own any
Shares shall cease to be a party to this Agreement and cease being a Stockholder
("WITHDRAW"). In addition, if all of the Sponsor Stockholders that are members
of a single Investor Group own less than 3% of the outstanding Shares in the
aggregate, all, but not less than all, of such Sponsor Stockholders may elect to
Withdraw. Furthermore, all Management Stockholders shall Withdraw from this
Agreement upon the earlier of (i) six months after a Qualified IPO and (ii) the
occurrence of a Change of Control. Any Stockholder who Withdraws shall cease to
have any rights or obligations under this Agreement, except such Stockholder (i)
shall not thereby be relieved of its liability for breach of this Agreement
prior to such Withdrawal; (ii) shall retain any rights with respect to a breach
of this Agreement by any other Person prior to such Withdrawal; and (iii) shall
retain the indemnification, contribution and reimbursement right pursuant to
Section 7.17 hereof with respect to any matter that occurred prior to such
Withdrawal.
Section 7.16. NO RECOURSE. Notwithstanding anything that may be
expressed or implied in this Agreement, and notwithstanding the fact that
certain members of the Investor Groups may be partnerships or limited liability
companies, each party to this Agreement covenants, agrees and acknowledges that
no recourse under this Agreement or any documents or instruments delivered in
connection with this Agreement shall be had against any current or future
director, officer, employee, general or limited partner, member or manager of
any Investor Group or of any partner, member, manager, Affiliate or assignee
thereof, as such, whether by the enforcement of any assessment or by any legal
or equitable proceeding, or by virtue of any statute, regulation or other
Applicable Law, it being expressly agreed and acknowledged that no personal
liability whatsoever shall attach to, be imposed on or otherwise be incurred by
any current or future officer, agent or employee of any Investor Group or any
current or future member of any Investor Group or any current or future
director, officer, employee, partner, member or manager of any Investor Group or
of any Affiliate or assignee thereof, as such, for any obligation of any
Investor under this Agreement or any documents or instruments delivered in
connection with this Agreement for any claim based on, in respect of or by
reason of such obligations or their creation.
Section 7.17. INDEMNITY. The Company shall indemnify and hold
harmless, to the full extent permitted by law, each of the Investor Groups and
each of their directors, officers, employees, shareholders, general partners,
limited partners, members, advisory directors, managing directors and Affiliates
(other than the Company and its Subsidiaries) (and directors, officers,
employees, shareholders, general partners, limited partners, members, advisory
directors, managing directors and controlling persons thereof) (collectively,
"RELATED PERSONS") against any and all losses, claims, damages or liabilities,
joint or several, and expenses (including without limitation reasonable
attorneys' fees and any and all reasonable expenses incurred investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim, and any and all amounts paid in any settlement of any such claim or
litigation) to which such Related Person may become subject, insofar as such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) or expenses arise out of or are based upon the Merger or the other
transactions contemplated by the Merger Agreement. Such indemnification
obligation shall be in addition to any liability that the Company may otherwise
have to any other such Related Person. The provisions of this Section 7.17 are
intended to be for the benefit of, and shall be enforceable by, each Related
Person and its respective successors, heirs and representatives.
-20-
Section 7.18. SUCCESSORS. Permitted Transferees are entitled to all of
the rights and subject to all of the obligations of the transferor hereunder
from whom they received their Shares regardless of whether the Agreement
elsewhere expressly so provides.
ARTICLE VIII
DEFINITIONS
Section 8.01. DEFINITIONS. Capitalized terms used but not otherwise
defined in this Agreement shall have the meanings set forth below:
(a) "ADDITIONAL DIRECTOR" means any individual who is not an Affiliate
of any Investor Group or a director, officer or employee of any Investor
Group or its Affiliates.
(b) "AFFILIATE" shall have the meaning ascribed thereto in Rule 12b-2
promulgated under the Exchange Act, as in effect on the date hereof.
(c) "APPLICABLE LAW" shall mean means any federal, state and local
law, statute, regulation, rule or code or other provisions having the force
or effect of law; and all common law enacted, adopted, issued or
promulgated by any governmental body; or all Listing Rules, each as
amended, modified, codified, replaced or reenacted, in whole or in part,
and in effect from time to time.
(d) "BLACKSTONE INVESTOR GROUP" shall mean Blackstone Capital Partners
IV L.P., Blackstone Capital Partners IV - A L.P., Blackstone Family
Investment Partnership IV - A L.P., Blackstone Participation Partnership IV
L.P. and any Permitted Transferee thereof.
(e) "BUSINESS DAY" shall mean any day on which banks are required to
be open to conduct business in New York City.
(f) "BYLAWS" shall mean the bylaws of the Company, as amended from
time to time.
(g) "CAUSE" shall have the meaning set forth in the Charter.
(h) "CHANGE OF CONTROL" shall mean:
(i) The acquisition by any individual entity or group, within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act (a "ACQUIRING
PERSON"), other than the Investor Groups and their Affiliates (the
"PERMITTED HOLDERS"), directly or indirectly, of beneficial ownership of
equity securities of the Company representing more than 50% of the voting
power of the then-outstanding equity securities of the Company entitled to
vote generally in the election of directors (the "COMPANY VOTING
SECURITIES"); provided, however, that for purposes of this subsection (i),
the following shall not constitute a Change of Control: (A) any acquisition
by the Company, (B) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Company or any Subsidiary, or
(C) any acquisition by any Person pursuant to a transaction which complies
with clauses (A) and (B) of subsection (ii) below; or
-21-
(ii) The consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the assets of the
Company or the purchase of assets or stock of another entity (a "BUSINESS
COMBINATION"), in each case, unless immediately following such Business
Combination, (A) all or substantially all of the beneficial owners of the
Company Voting Securities immediately prior to such Business Combination
beneficially own more than 50% of the then-outstanding combined voting
power of the then-outstanding securities entitled to vote generally in the
election of directors of the entity resulting from such Business
Combination in substantially the same proportion as their ownership
immediately prior to such Business Combination of the Company Voting
Securities, and (B) no Person (excluding the Permitted Holders)
beneficially owns, directly or indirectly, more than a majority of the
combined voting power of the then-outstanding voting securities of such
entity except to the extent that such ownership of the Company existed
prior to the Business Combination.
Notwithstanding paragraphs (i) and (ii) above, in no event will a
Change of Control be deemed to occur if the Permitted Holders maintain a direct
or indirect Controlling Interest in the Company or in an entity that maintains a
direct or indirect Controlling Interest in the Company. A "CONTROLLING INTEREST"
in an entity shall mean beneficial ownership of more than 50% of the voting
power of the outstanding equity securities of the entity.
(i) "CHARTER" shall mean the certificate of incorporation of the
Company, as amended from time to time.
(j) "COMMON STOCK" shall mean class A-1 common stock, par value $0.01,
of the Company, class A-2 common stock, par value $0.01 of the Company and all
other common stock, if any, of the Company.
(k) "DIRECTOR" shall mean a director of the Board.
(l) "DIRECTOR DESIGNEE NUMBER" means, with respect to an Investor
Group whose ownership of the Sponsor Shares it was issued at the Closing is
within the ranges set forth in both column A and column B below, the number of
Director designees set forth in the corresponding column C below (rounded down
to the next lowest whole number):
-------------------------------------------------------------------------------
COLUMN A COLUMN B COLUMN C
% OF ORIGINAL SPONSOR % OF NUMBER OF DIRECTOR DESIGNEES
SHARES OUTSTANDING
SHARES
-------------------------------------------------------------------------------
> 50% Any 4 + the number of
Non-Investor Directors
-------------------------------------------------------------------------------
> 45% and <= 50% Any 4 + (75% * the number of
Non-Investor Directors)
-------------------------------------------------------------------------------
> 40% and <= 45% Any 3 + (75% * the number of
Non-Investor Directors)
-------------------------------------------------------------------------------
> 35% and <= 40% Any 3 + (50% * the number of
Non-Investor Directors)
-------------------------------------------------------------------------------
> 30% and <= 35% Any 3 + (25% * the number of
Non-Investor Directors)
-------------------------------------------------------------------------------
-22-
-------------------------------------------------------------------------------
> Original GS Percentage Any 2 + (25% * the number of
and <= 30% Non-Investor Directors)
-------------------------------------------------------------------------------
> Original DLJ Any 2
Percentage and
<= Original GS Percentage
-------------------------------------------------------------------------------
>= 5% and <= Original >=3% 1
DLJ Percentage
-------------------------------------------------------------------------------
>= 5% and <= Original < 3% 0
DLJ Percentage
-------------------------------------------------------------------------------
< 5% Any 0
-------------------------------------------------------------------------------
(m) "DLJ INVESTOR GROUP" shall mean DLJ Merchant Banking Partners IV,
L.P., DLJ Offshore Partners IV, L.P., MBP IV Investors, L.P., CSFB Strategic
Partners Holdings III, L.P., CSFB Strategic Partners Parallel Holdings III, L.P.
and any Permitted Transferee thereof.
(n) "DRAG-ALONG PORTION" means (1) the total number of Shares
(including Shares issuable upon exercise or conversion of Share Equivalents)
owned by a Stockholder, multiplied by (2) a fraction (i) the numerator of which
is the total number of Shares (including Shares issuable upon exercise or
conversion of Share Equivalents, if any) to be acquired by the acquiror or
acquirors in the Drag-Along Sale and (ii) the denominator of which is the total
number of Shares outstanding on a Fully Diluted Basis.
(o) "DRAG-ALONG SALE" means a transaction or series of related
transactions involving the direct or indirect Transfer to a Person or Persons
not constituting Permitted Transferees or otherwise not affiliated with any
Dragging Stockholders (including pursuant to a stock sale, merger, business
combination, recapitalization, consolidation, reorganization, restructuring or
similar transaction) in which the aggregate number of shares of Common Stock to
be transferred (whether by the Dragging Stockholders, the Drag-Along Sellers or
by others, including pursuant to the Charter) would exceed 50% of the total
number of outstanding shares of Common Stock on a Fully Diluted Basis.
(p) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
(q) "EXERCISED OPTIONS" shall mean, with respect to a Management
Stockholder, Shares acquired upon the conversion of stock options rolled over by
Management Stockholders in the Merger, which options total the amounts set forth
in Schedule A.
(r) "FAIR MARKET VALUE" shall mean, with respect to a Share, the fair
market value of such Share as determined from time to time (but no less
frequently than quarterly) by the Board in good faith. In determining Fair
Market Value, the Board will consider (among other factors it deems appropriate)
the valuation prepared by the Blackstone Investor Group in the ordinary course
of business for reporting to its advisory board and investors, which the
Blackstone Investor Group will provide to the Board. Notwithstanding the
foregoing, in the event that within 6 months of a termination of a Management
Stockholder's employment (except
-23-
in the case of a termination for Cause), an IPO or Change of Control occurs,
Fair Market Value shall equal the consideration paid per share pursuant to such
transaction.
(s) "Fee Agreement" means the Transaction and Monitoring Fee Agreement
providing for, among other things, a one-time transaction fee, annual monitoring
fees, fees for certain other activities or services after the closing, and
expense and cost reimbursement, in each case for the Sponsors Stockholders or
certain of their affiliates or management companies, and other provisions
contained therein. The Fee Agreement may be a single agreement or may be divided
into separate agreements for each of the Sponsor Stockholders or their related
parties.
(t) "FULLY DILUTED BASIS" means assuming the exercise of all options
that are vested and exercisable at the relevant time and conversion of all
securities that are vested and convertible at the relevant time, in all cases
using the treasury method.
(u) "GS INVESTOR GROUP" shall mean Mulberry Holdings I, LLC and
Mulberry Holdings II, LLC and any Permitted Transferee thereof.
(v) "INDEPENDENT DIRECTOR" means any individual meets the definition
of "independent" or the tests of "independence" pursuant to any Independence
Requirements applicable to the Company from time to time.
(w) "INVESTOR DIRECTOR" shall mean a Director that is nominated by an
Investor Group pursuant to Section 1.02(a) or appointed to the Board pursuant to
Article V, Section 2 of the Charter.
(x) "INVESTOR GROUP" shall mean any of the Blackstone Investor Group,
the GS Investor Group or the DLJ Investor Group.
(y) "IPO" means a public offering and sale of common stock of the
Company pursuant to an effective registration statement (other than on Form X-0,
X-0 or any similar or successor form) under the Securities Act which results in
a listing or admission to trading of any class of the Company's common stock on
the New York Stock Exchange or on The Nasdaq Stock Market, Inc.'s National
Market.
(z) "LISTING RULES" means, with respect to the New York Stock Exchange
or the Nasdaq Stock Market, Inc.'s National Market, the listing rules of such
stock exchange or the relevant governmental or other authority in the
jurisdiction of such stock exchange, as in effect from time to time.
(aa) "MAJORITY SPONSOR STOCKHOLDERS" means, at any time, Sponsor
Stockholders owning a majority of the Sponsor Shares at such time.
(bb) "MANAGEMENT COMPANY" means, (1) with respect to the Blackstone
Investor Group, Blackstone Management Partners IV L.L.C.; (2) with respect to
the GS Investor Group, Xxxxxxx, Xxxxx & Co.; and (3) with respect to the DLJ
Investor Group, DLJ Merchant Banking, Inc.
-24-
(cc) "MANAGEMENT STOCKHOLDER" means each Person listed on Schedule A to
this Agreement under the heading "Management Stockholders" and such Person's
Permitted Transferees, including any Person added to such Schedule A after the
date hereof upon approval of the Board.
(dd) "NON-INVESTOR DIRECTORS" means any Director who is an Additional
Director nominated or designated pursuant to Section 1.02(a)(ii) or a Management
Director nominated or designated pursuant to Section 1.02(a)(iii).
(ee) "ORIGINAL DLJ PERCENTAGE" means the quotient of (i) the aggregate
number of Shares issued to the DLJ Investor Group at the Closing over (ii) the
Original Sponsor Shares.
(ff) "ORIGINAL GS PERCENTAGE" means the quotient of (i) the aggregate
number of Shares issued to the GS Investor Group at the Closing over (ii) the
Original Sponsor Shares.
(gg) "ORIGINAL SPONSOR SHARES" shall mean the aggregate number of
Shares issued Sponsor Stockholders at the Closing.
(hh) "PERMITTED TRANSFEREE" (1) shall mean, in respect of any Sponsor
Stockholder, any investment fund that is directly or indirectly managed or
advised by the manager or advisor of such Sponsor Stockholder or any of its
Affiliates, or the successors of any Permitted Transferee; and (2) shall have
the meaning set forth in the Charter, in respect of any Management Stockholder.
(ii) "PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
(jj) "PUBLIC OFFERING" means a public offering and sale of Common Stock
of the Company pursuant to an effective registration statement under the
Securities Act (other than on Form X-0, X-0 or any similar or successor form).
(kk) "QUALIFIED IPO" means an IPO which results in at least 20% of the
total outstanding Shares being sold to the public.
(ll) "Registration Rights and Coordination Committee Agreement" means
the Registration Rights and Coordination Committee Agreement providing for
certain rights to demand or participate in registrations of securities under the
U.S. federal securities laws, establishing a coordination committee with respect
to certain future Transfers of securities, and other provisions contained
therein.
(mm) "RULE 144" means Rule 144 (or any successor provisions) under the
Securities Act.
(nn) "SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
-25-
(oo) "SHARE EQUIVALENTS" means any securities that are exchangeable
for, exercisable for or otherwise convertible into Shares.
(pp) "SHARES" means shares of class A-1 common stock, par value $0.01,
of the Company.
(qq) "SPONSOR SHARES" means the aggregate number of Shares owned by
Sponsor Stockholders at the relevant time.
(rr) "SPONSOR STOCKHOLDER" shall mean each stockholder of the Company
who is a member of the Blackstone Investor Group, the GS Investor Group or the
DLJ Investor Group.
(ss) "SUBSIDIARY" of any Person means another Person, an amount of the
voting securities, other voting ownership or voting equity interests of which is
sufficient to elect at least a majority of its board of directors, managers or
other governing body (or, whether or not there are such voting interests, equal
to or greater than 50% of the stock or other equity interests of which) is owned
directly or indirectly by such first Person alone or in conjunction with a group
or through any Subsidiary.
(tt) "TAG-ALONG SALE" means,
(i) prior to an IPO, in any transaction or group of related transactions,
(1) the Transfer, by Majority Sponsor Stockholders, of at least 1% of
outstanding Shares, or (2) the Transfer by any Sponsor Stockholder(s), of at
least 5% of the total number of outstanding Shares; or
(ii) subsequent to an IPO, in any transaction or group of related
transactions the Transfer by Sponsor Stockholders of at least 10% of the total
amount of outstanding Shares; PROVIDED that, in each case, Transfers (1) to
Permitted Transferees, (2) in a Public Offering, (3) pursuant to Rule 144 or (4)
pursuant to Fund Distributions shall not be deemed "Tag-Along Sales."
(uu) "VCOC STOCKHOLDER" means each Sponsor Stockholder that advises the
Board of the Company that it intends to qualify as a "venture capital operating
company" (as defined in 29 C.F.R. Section 2510.3-101(d)).
-26-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date set forth above.
UICI
By: /s/ Xxxxx X. Xxxx
_______________________
Name: Xxxxx X. Xxxx
Title: Executive Vice President and
General Gounsel
[UICI SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
BLACKSTONE CAPITAL PARTNERS IV
L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By: /s/ Xxxxx Xxx
_________________________
Name: Xxxxx Xxx
Title: Member
BLACKSTONE CAPITAL PARTNERS
IV-A L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By: /s/ Xxxxx Xxx
_________________________
Name: Xxxxx Xxx
Title: Member
BLACKSTONE FAMILY INVESTMENT
PARTNERSHIP IV-A L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By: /s/ Xxxxx Xxx
_________________________
Name: Xxxxx Xxx
Title: Member
BLACKSTONE PARTICIPATION
PARTNERSHIP IV L.P.
By: Blackstone Management Associates IV
L.L.C., its General Partner
By: /s/ Xxxxx Xxx
_________________________
Name: Xxxxx Xxx
Title: Member
[BLACKSTONE SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
MULBERRY HOLDINGS I, LLC
By: GS Maverick Co., its Managing Member
By: /s/ Xxxxxx X. Xxxxx
_________________________
Name: Xxxxxx X. Xxxxx
Title: President
MULBERRY HOLDINGS II, LLC
By: GS Maverick Co., its Managing Member
By: /s/ Xxxxxx X. Xxxxx
_________________________
Name: Xxxxxx X. Xxxxx
Title: President
[XXXXXXX XXXXX SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
DLJ MERCHANT BANKING
PARTNERS IV, L.P
By: DLJ Merchant Banking, Inc., the
General Partner of DLJ Merchant
Banking IV, L.P., its General
Partner
DLJ OFFSHORE PARTNERS IV, L.P
By: DLJ Merchant Banking, Inc., the
General Partner of DLJ Merchant
Banking IV (Cayman), L.P., its
Overseas General Partner, and the
General Partner of DLJ Merchant
Banking IV, L.P., its Domestic
General Partner
Signed By or on Behalf of the Foregoing
Entities:
By: /s/ Xxxxx X. Xxxxxx
_________________________
Name: Xxxxx X. Xxxxxx
Title: Authorized Representative
[DLJ SIGNATURE PAGE 1 TO STOCKHOLDERS AGREEMENT]
MBP IV PLAN INVESTORS, L.P.
By: DLJ LBO Plans Management
Corporation, its General Partner
By: /s/ Xxxxx X. Xxxxxx
_________________________
Name: Xxxxx X. Xxxxxx
Title: Authorized Representative
CSFB STRATEGIC PARTNERS
HOLDINGS III, L.P.
By: DLJ MB Advisors, Inc., its indirect
general partner
By: /s/ Xxxxx X. Xxxxxx
_________________________
Name:
Title:
[DLJ SIGNATURE PAGE 2 TO STOCKHOLDERS AGREEMENT]
CSFB STRATEGIC PARTNERS
PARALLEL HOLDINGS III, L.P.
By: DLJ MB Advisors, Inc., its indirect
general partner
By: /s/ Xxxxx Xxxx
_________________________
Name: Xxxxx Xxxx
Title: Vice President
[DLJ SIGNATURE PAGE 3 TO STOCKHOLDERS AGREEMENT]
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
/s/ Xxxx X. XxXxxxx
----------------------------------------
Name: Xxxx X. XxXxxxx
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxx
/s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxx
----------------------------------------
Name: Xxxxxxx Xxxxxx
[MANAGEMENT HOLDER SIGNATURE PAGE TO STOCKHOLDERS AGREEMENT]
A-1
