EXHIBIT 10.2
SHAREHOLDERS* AGREEMENT
This Shareholders* Agreement is entered into as of this 13th day of May,
1996, by and among HANSBERGER GLOBAL INVESTORS, INC., a Delaware corporation
with its principal place of business at 515 East Las Olas Boulevard, Fort
Lauderdale, Florida (*HGI*), VK/AC HOLDING, INC., a Delaware corporation with
its principal place of business at One Parkview Plaza, Oakbrook Terrace,
Illinois (*VK/AC*), and THOMAS L. HANSBERGER, an individual residing at 1300
Brickel Drive, Fort Lauderdale, Florida 33301 (*Hansberger*).
WHEREAS, HGI and VK/AC are entering into a Stock Purchase Agreement,
dated as of May 13, 1996 (the *Stock Purchase Agreement*), under which VK/AC
is acquiring 2,666,000 shares of HGI*s Common Stock, par value $.01 per share
(*Common Stock*);
WHEREAS, on the date hereof, 7,800,000 shares of Common Stock are issued,
outstanding and held by Hansberger and SLW Family L.P., a Delaware limited
partnership for which Hansberger serves as the sole general partner, and the
parties contemplate that Hansberger, and any officers and employees of HGI as
Hansberger may designate (collectively, the *Designated Employees*), may
subscribe for and purchase up to an additional 200,000 shares of Common Stock
for a price per share equal to the cash price per share paid by VK/AC under
the Stock Purchase Agreement;
WHEREAS, the parties contemplate that up to an additional 3,136,000
shares of Common Stock may be issued or reserved for issuance to HGI*s current
and future officers and employees other than Hansberger (collectively, the
*Employees*) pursuant to a restricted stock program, or offered and sold to
such Employees on such terms, as may be established by the Board of Directors
of HGI;
WHEREAS, the parties contemplate that each of Max C. Chapman, Jr. and
Sassoon Holdings Pte Ltd., a Singapore corporation, or an affiliate thereof
(collectively, the *Other Investors*), will subscribe for and purchase 942,000
shares of Common Stock pursuant to separate stock purchase agreements;
WHEREAS, the parties deem it to be in the best interests of HGI and its
shareholders to ensure that, subject to certain conditions, designees of
Hansberger and VK/AC or the VK/AC Representative (as defined below) serve on
HGI*s Board of Directors;
WHEREAS, the parties desire to enter into an agreement specifically
enforceable against each of them pursuant to which they agree to vote their
shares of Common Stock in the manner and for the purposes specified in this
Shareholders* Agreement;
WHEREAS, the parties desire to enter into an agreement specifying
limitations on the transfer of shares of Common Stock, including any shares
acquired as a result of any stock split, stock dividend, recapitalization or
the like (the *Shares*);
WHEREAS, HGI and Hansberger desire that VK/AC and VK/AC Permitted
Transferees remain CD&R Related Persons (as each such term is defined below)
so long as they hold any of the Shares; and
WHEREAS, it is a condition to HGI*s and VK/AC*s obligations to consummate
the transactions contemplated by the Stock Purchase Agreement that the parties
hereto enter into this Shareholders* Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, undertakings
and covenants set forth in this Shareholders* Agreement, and for other good
and valuable consideration, the receipt, sufficiency and adequacy of which are
hereby acknowledged, the parties, intending to be legally bound, agree as
follows:
1. Governance Matters.
1.1. Composition of Board of Directors. Each person (other than
HGI) who is the holder of shares of Common Stock or other voting capital stock
of HGI or who controls any such shares, and is a party to or otherwise bound
by this Shareholders* Agreement, whether by joinder or otherwise
(*Shareholder*), agrees to vote all such shares held or controlled by such
Shareholder so as to provide, and HGI will use its reasonable best efforts to
cause, the Board of Directors of HGI to be comprised of not more than five (5)
members, of whom: One (1) member will be designated in writing by VK/AC or, on
and after the date (the *Transition Date*) on which a majority of the Shares
held by VK/AC and VK/AC Permitted Transferees are held by VK/AC Permitted
Transferees, the VK/AC Representative; and the remainder will be designated in
writing by Hansberger.
1.2 Amendment of Charter. Each Shareholder agrees to vote all
shares held or controlled by such Shareholder so as to provide, and HGI will
use its reasonable best efforts to cause, Article Four of the Amended and
Restated Certificate of Incorporation of HGI to be appropriately amended,
promptly after the date hereof, to require the consent of a majority of the
holders of shares of Common Stock at the time outstanding in order to effect
or validate any matters that would be subject to the veto described in Section
1.3 below.
1.3. Voting on Major Matters. Subject to Section 1.4 below, HGI and
Hansberger agree that neither HGI nor any of its subsidiaries will take any
action in respect of a Major Matter (as defined below) if VK/AC or, on and
after the Transition Date, the VK/AC Representative, has vetoed such Major
Matter by written notice delivered as provided below. HGI will give prompt
(but in no event less than five (5) business days*) prior written notice to
VK/AC or the VK/AC Representative, as the case may be, of any proposal to
approve any Major Matter and, on receipt of prior written notice of the
election by VK/AC or the VK/AC Representative, as the case may be, to veto the
Major Matter, Hansberger will vote all shares of Common Stock and other voting
capital stock of HGI held or controlled by him, and use his reasonable best
efforts to cause any directors designated by him to vote, against the Major
Matter. For purposes of this Section 1.3, a *Major Matter* will
mean:
(a) The authorization or issuance of additional shares of any
class of HGI*s or any of its subsidiaries* capital stock or other equity
interests, other than (i) not more than 942,000 shares of Common Stock
contemplated to be subscribed for and purchased by each of the Other
Investors; (ii) not more than 200,000 shares of Common Stock that Hansberger
or the Designated Employees may subscribe for and purchase for a price per
share equal to the cash price per share paid by VK/AC under the Stock Purchase
Agreement; and (iii) not more than 3,136,000 shares of Common Stock to
Employees pursuant to a restricted stock program, or offered and sold to such
Employees on such terms, as may be established by the Board of Directors of
HGI; provided in each case that no shares of Common Stock, or any interest
therein or right thereto, may be issued or granted to any Other Investor,
Designated Employee or Employee unless, in the reasonable judgment of the
Board of Directors of HGI, such issuance or grant is made pursuant to, and
such Other Investor, Designated Employee or Employee, as the case may be, is
bound by, terms that are no more favorable in the aggregate (other than, in
the case of any Employee, with respect to the purchase price of such Common
Stock) to such Other Investor, Designated Employee or Employee than the terms
in the Stock Purchase Agreement and this Shareholders* Agreement to which
VK/AC is subject;
(b) Any increase in the size of the Board of Directors of HGI;
(c) The incurrence (including through any guarantee) by HGI or
any of its subsidiaries of indebtedness for borrowed money, other than
intercompany indebtedness between or among HGI and its wholly-owned
subsidiaries, indebtedness under the Credit Facility (as defined in the Stock
Purchase Agreement) or substantially similar credit facilities arranged with
the Other Investors (under which the aggregate amount of indebtedness
(excluding amounts attributable to interest) may not exceed $2,355,000 in the
aggregate), or line of credit with a bank in the ordinary course of business,
so long as borrowings under the Credit Facility are outstanding; or
(d) Any merger, recapitalization, reorganization, acquisition
of any material business or disposition of any material portion of the
business of HGI and its subsidiaries taken as a whole.
1.4. Duration and Extent of Obligations.
(a) The obligations of VK/AC under Section 1.1 above will
cease if at any time Hansberger and Hansberger Permitted Transferees (as
defined in Section 2.1(a) below) hold in the aggregate less than ten percent
(10%) of HGI*s issued and outstanding Shares.
(b) The obligations of Hansberger and HGI under Sections 1.1
and 1.3 above will cease (i) if at any time VK/AC or, on or after the
Transition Date, the VK/AC Representative ceases to be a CD&R Related Person;
or (ii) if at any time VK/AC and the VK/AC Permitted Transferees hold in the
aggregate less than ten percent (10%) of HGI*s issued and outstanding Shares.
(c) For purposes of this Shareholders* Agreement, *CD&R
Related Person* means (i) Clayton, Dubilier & Rice, Inc. (*CD&R*), any
investment vehicle managed by CD&R, or any entity at least sixty-six percent
(66%) of the voting interests of which are controlled by an investment vehicle
managed by CD&R (any such investment vehicle or entity, a *CD&R Investment
Vehicle*); and (ii) subject to the proviso below, any of the ten largest
stockholders of VK/AC, measured by number of shares owned on a fully diluted
basis, who (A) are stockholders of VK/AC as of the date hereof; and (B) become
shareholders of HGI solely as a result of the distribution or other transfer
by VK/AC of Shares to stockholders of VK/AC prior to or simultaneously with
(x) a sale or other disposition (including by merger) of substantially all of
the assets of VK/AC or of at least a majority of the stock of VK/AC now held
by The Clayton & Dubilier Private Equity Fund IV Limited Partnership (*Fund
IV*) or (y) a public offering of shares of VK/AC*s common stock (such
distribution or other transfer by VK/AC of Shares, the *VK/AC Share
Distribution,* and such stockholders of VK/AC, the *Participating VK/AC
Stockholders*); provided, however, that a Participating VK/AC Stockholder will
be a CD&R Related Person only for so long as (x) CD&R, a CD&R Investment
Vehicle or an individual who is a shareholder, officer or professional
employee of CD&R (the *VK/AC Representative*) shall have all power and
authority to vote, and act on behalf of such Participating VK/AC Stockholder
in respect of all matters relating to, the Shares held by such Participating
VK/AC Stockholder; (y) such power and authority shall be evidenced by a
written agreement or other instrument (an *Authorization*) containing
provisions providing, among other things, that the granting of such power and
authority to the VK/AC Representative shall effectively not be revocable in
whole or in part by the Participating VK/AC Stockholder for so long as such
Participating VK/AC Stockholder shall hold or beneficially own any Shares; and
(z) the VK/AC Representative will, effective on or before the date of the
VK/AC Share Distribution, have become a party to this Shareholders* Agreement
by filing with HGI an executed letter, substantially in the form attached as
Exhibit A (the *Shareholder Letter*).
(d) Nothing in this Section 1 will require that any party
refrain from or take any action that is prohibited by applicable law or is
determined by such person, in good faith and with advice of counsel to such
effect, to conflict with the proper discharge by such party of its fiduciary
obligations.
2. Restrictions and Obligations Relating to Transfers of Shares. No
Shareholder will Transfer (as defined below) any Shares held or hereafter
acquired by it except as permitted under this Shareholders* Agreement, and any
purported Transfer in violation of the provisions of this Shareholders*
Agreement will be void. For purposes of this Shareholders* Agreement,
*Transfer* means transfer, sell, assign, pledge, hypothecate, give, create a
security interest in or lien on, place in trust (voting or otherwise), or in
any other way encumber or dispose of an interest in or rights in or to,
directly or indirectly (including by merger) and whether or not voluntarily,
by operation of law or otherwise. VK/AC agrees that it will not directly or
indirectly enter into any binding agreement with respect to or involving a
sale or other disposition (including by merger) of substantially all of the
assets of VK/AC or of at least a majority of the stock of VK/AC now held by
Fund IV unless the VK/AC Share Distribution has occurred or such binding
agreement provides that it shall occur prior to or simultaneously with the
effectiveness of such sale or other disposition. HGI, by its execution of
this Shareholders* Agreement, agrees that it will not cause or permit the
Transfer of any Shares held by a Shareholder to be reflected on HGI*s books
except in accordance with the terms of this Shareholders*
Agreement.
2.1. Permitted Transfers.
(a) Permitted Transfers by Hansberger.
(i) Family Members. Hansberger may, consistent with
applicable law, Transfer any of the Shares held by him to (a) members of his
immediate family, including his spouse, children (including adopted and step
children), grandchildren, or trustees of one or more trusts established for
the benefit of Hansberger or the above-listed family members, provided,
however, that Hansberger retains the power and authority to exercise all
voting rights, and to act on behalf of such persons or trusts in respect of
all matters, related to such Shares; (b) any guardian or conservator
appointed for Hansberger; or (c) on or after Hansberger*s death, by will,
intestacy laws, or the law of survivorship, to Hansberger*s legal
representative, heirs or legatees (collectively, *Hansberger Permitted
Transferees*). Each Hansberger Permitted Transferee may, consistent with
applicable law, Transfer any of the Shares held by such Hansberger Permitted
Transferee to another Hansberger Permitted Transferee.
(ii) Employees of HGI. Hansberger and the Hansberger
Permitted Transferees may, consistent with applicable law, Transfer to
Employees of HGI up to such number of Shares held by Hansberger or such
Hansberger Permitted Transferees as are equal to twenty-five percent (25%) of
the number of shares of Common Stock issued and outstanding on the date hereof
(as such number may be increased or decreased to reflect any stock split,
stock dividend, recapitalization or the like); provided, however, that
Hansberger retains the power and authority to exercise all voting rights, and
to act on behalf of such persons or trusts in respect of all matters, related
to such Shares, and such power and authority shall be evidenced by an
Authorization containing provisions providing, among other things, that the
granting of such power and authority to Hansberger shall effectively not be
revocable in whole or in part by such Employees for so long as such Employees
shall hold or beneficially own any Shares.
(b) Permitted Transfers by VK/AC. VK/AC may, consistent with
applicable law, Transfer any of the Shares held by it to CD&R Related Persons
(*VK/AC Permitted Transferees* and, together with the Hansberger Permitted
Transferees, the *Permitted Transferees*). Each VK/AC Permitted Transferee
may, consistent with applicable law, Transfer any of the Shares held by it to
another VK/AC Permitted Transferee. Each VK/AC Permitted Transferee who is
both a natural person and a Participating VK/AC Stockholder may, consistent
with applicable law, Transfer his or her interest in any of the Shares (i)
with Hansberger*s prior written consent, to members of his or her immediate
family, including his or her spouse, children (including adopted and step
children), grandchildren, or trustees of one or more trusts established for
the benefit of such Participating VK/AC Stockholder or the above-listed family
members; (ii) to any guardian or conservator appointed for such Participating
VK/AC Stockholder; or (iii) on or after such Participating VK/AC Stockholder*s
death, by will, intestacy laws, or the law of survivorship, to the legal
representative of such Participating VK/AC Stockholder*s estate and, with
Hansberger*s prior written consent, to such Participating VK/AC Stockholder*s
heirs or legatees (and any person to whom Shares are transferred in accordance
with this sentence shall be a VK/AC Permitted Transferee in respect of such
Shares).
(c) Conditions of Transfer. Any Transfer under this Section
2.1 will be subject to the condition that the Permitted Transferee, if not
then a party to this Shareholders* Agreement, will simultaneously with such
Transfer become a party to this Shareholders* Agreement by filing with HGI an
executed Shareholder Letter. After such Permitted Transferee has filed the
Shareholder Letter with HGI, HGI, on the surrender for cancellation of the
certificate or certificates representing all of the Shares Transferred to the
Permitted Transferee, properly endorsed, will deliver to the Permitted
Transferee a certificate for the appropriate number of the Shares with the
legends set forth in Section 7 below, as applicable, printed on such
certificate; and such Permitted Transferee will thereupon become a Shareholder
for all purposes of this Shareholders* Agreement, without, however, in any way
discharging the Shareholder making the Transfer from any obligations hereunder
if such Shareholder holds or beneficially owns any Shares after such Transfer.
Any Transfer under Section 2.1(b) will be subject to the condition that (i)
VK/AC (prior to the Transition Date) or the VK/AC Representative (on and after
the Transition Date) shall retain or be granted all power and authority to
vote, and act on behalf of any such VK/AC Permitted Transferee in respect of
all matters relating to, the Shares in which such VK/AC Permitted Transferee
has an interest; (ii) such power and authority shall be evidenced by an
Authorization containing provisions providing, among other things, that the
granting of such power and authority to the VK/AC Representative shall
effectively not be revocable in whole or in part by such transferee for so
long as such transferee shall hold or beneficially own any Shares; and (iii)
the VK/AC Representative will, effective on or before the Transition Date,
have become a party to this Shareholders* Agreement by filing with HGI an
executed Shareholder Letter. Any Transfer made pursuant to this Section 2.1
may be made without reference to, or compliance with, the provisions of
Section 2.2 below.
2.2. Rights of First Offer. Hansberger, VK/AC, or any Permitted
Transferee may, consistent with applicable law, Transfer any Shares held by
such shareholder (the *Transferring Shareholder*) to a third party if such
Shares are first offered to VK/AC or, after the Transition Date, the VK/AC
Representative, on behalf of VK/AC and the VK/AC Permitted Transferees, as
applicable, in the case of a Transfer by Hansberger or a Hansberger Permitted
Transferee, or to Hansberger, in the case of a Transfer by VK/AC or a VK/AC
Permitted Transferee (the person to whom such Shares are first offered, the
*Non-Transferring Shareholder*), in accordance with the terms of this Section.
Hansberger may assign to HGI his right under this Section 2.2 to make a first
offer to purchase Shares held by VK/AC and the VK/AC Permitted Transferees, as
applicable, if VK/AC and the VK/AC Permitted Transferees are offering to sell
all (but not less than all) of the Shares held by them.
(a) Initial Notice. The Transferring Shareholder must give
prior written notice to the Non-Transferring Shareholder of any proposed
Transfer of Shares (the *Initial Notice*). The Initial Notice will indicate
the number of Shares proposed to be Transferred and the other material terms
(including purchase price) of such proposed Transfer. If the Transferring
Shareholder will have received any offer from any third party in respect of a
Transfer of Shares, the Initial Notice will include the material terms
(including the purchase price) of that offer. Such Initial Notice will
constitute a solicitation for firm offers, during the periods described in
Section 2.2(b) below, to buy all or any portion of the Shares specified in the
Initial Notice (collectively, *Firm Offers,* and individually a *Firm
Offer*).
(b) Offer Period. The Non-Transferring Shareholder will,
within sixty (60) days after receipt of the Initial Notice, give written
notice to the Transferring Shareholder of the Non- Transferring Shareholder*s
intent to make or not to make a Firm Offer, stating the number of Shares to be
purchased by such Non-Transferring Shareholder and the proposed purchase price
per share. The failure of a Non-Transferring Shareholder to respond within
the sixty (60) day period will be deemed to be a statement that the
Non-Transferring Shareholder does not intend to make a Firm Offer. Every Firm
Offer made to the Transferring Shareholder will be irrevocable for six (6)
months (the *Offer Period*) after its receipt by the Transferring Shareholder.
At any time during the Offer Period, the Transferring Shareholder may (i)
accept a Firm Offer; (ii) accept, subject to Section 2.2(c) below, an offer
from a third-party purchaser, but only if such offer is on terms (including
price) more favorable in the aggregate to the Transferring Shareholder than
those offered by the Non- Transferring Shareholder; or (iii) decide not to
sell the Shares.
(c) Participation Rights. If the Transferring Shareholder
accepts an offer of a third-party purchaser pursuant to the last sentence of
Section 2.2(b) above, the Transferring Shareholder will give prompt prior
written notice (but in any event not less than twenty (20) days prior to the
closing of the proposed sale) to the Non-Transferring Shareholder, stating the
terms of such offer (the *Second Notice*). Any such Transfer by the
Transferring Shareholder to a third-party purchaser will be subject to the
Non-Transferring Shareholder*s right to include in such Transfer, on the same
terms on which the Transfer by the Transferring Shareholder is being made, up
to a percent age of the then issued and outstanding Shares held or controlled
by such Non-Transferring Shareholder equal to that percentage of the then
issued and outstanding Shares held or controlled by the Transferring
Shareholder that the Transferring Shareholder wishes to Transfer; provided
that a Non-Transferring Shareholder desiring to participate in such Transfer
will (i) within ten (10) days after receipt of the Second Notice, give written
notice to the Transferring Shareholder of such Non- Transferring Shareholder*s
intent to participate in the Transfer and the number of Shares it desires to
Transfer; and (ii) make such reasonable representations, warranties and
covenants, and provide such indemnifications with respect thereto, to the
third-party purchaser to the same extent as the Transferring Shareholder will
have so made or provided and otherwise abide by such terms as the Transferring
Shareholder makes or is subject to in such Transfer.
(d) Subject to this Shareholders* Agreement. Any Shares at
any time Transferred pursuant to this Section 2.2 will remain subject to the
terms of this Shareholders* Agreement. Any sale under this Section 2.2 will
be subject to the condition that the transferee, if not then a party to this
Shareholders* Agreement, will simultaneously with such Transfer become a party
to this Shareholders* Agreement by filing with HGI an executed Shareholder
Letter.
(e) Certificates. After a transferee pursuant to this Section
2.2 has filed with HGI the Shareholder Letter and fulfilled all of its
obligations to the Transferring Shareholder (and the Non-Transferring
Shareholder if it is participating in the Transfer), HGI, on the surrender for
cancellation of the certificate or certificates representing all of the Shares
covered by the offer properly endorsed, will deliver to such transferee a
certificate or certificates for the appropriate number of Shares with the
legend set forth in Section 7 below printed on such certificate or
certificates; and such transferee will thereupon become a Shareholder for all
purposes of this Shareholders* Agreement, without, however, in any way
discharging the Transferring Shareholder and participating Non-Transferring
Shareholder, if applicable, from any obligations hereunder if such
Shareholder(s) hold or beneficially own any Shares after such
Transfer.
3. VK/AC Option to Purchase the Hansberger Shares. On the death or
Incapacity (as defined below) of Hansberger, VK/AC or, after the Transition
Date, the VK/AC Representative, on behalf of VK/AC and the VK/AC Permitted
Transferees, as applicable, will have the option, in accordance with the terms
of this Section 3, to purchase all, but not less than all, of the Shares then
held by Hansberger and the Hansberger Permitted Transferees (the *Hansberger
Shares*) at an aggregate purchase price equal to the Formula Price (as defined
in Section 3.1 below) multiplied by a fraction the numerator of which is the
number of Hansberger Shares and the denominator of which is the number of
Shares then issued and outstanding. For purposes of this Shareholders*
Agreement, *Incapacity* has the meaning set forth in the Employment Agreement
(as defined in the Stock Purchase Agreement).
3.1. Formula Price. For purposes of this Shareholders* Agreement,
the *Formula Price* means the price, on the date of determination, at which
HGI would change hands between a willing buyer and a willing seller, neither
being under any compulsion to buy or sell and both having reasonable knowledge
of relevant facts, taking into consideration all factors relevant to
determinations of value, including as applicable, (a) the types of business
engaged in by HGI; (b) analysis of recent public trading values or purchase
prices of comparable investment management companies adjusted for relevant
differences between the HGI and the respective comparable companies; (c)
Hansberger*s involvement in HGI*s business or his absence therefrom; (d) a
control premium; and (e) a liquidity discount based on Transfer restrictions
relating to the Shares. The Formula Price will be determined, using customary
investment banking methodologies, by a nationally recognized investment bank
or an similar expert on the financial valuation of investment management
businesses and their securities (an *Expert*).
3.2. Mechanics.
(a) VK/AC or the VK/AC Representative, as applicable, will,
within thirty (30) days after receipt of written notice of Hansberger*s death
or Incapacity, give written notice to Hansberger or the Hansberger
Representatives (as defined below), as applicable, of VK/AC*s or the VK/AC
Representative*s intent, as the case may be, to exercise its option under this
Section 3.
(b) VK/AC or the VK/AC Representative, as applicable, will, in
the first instance, select the Expert responsible for determining the Formula
Price (the *VK/AC Expert*), and such Expert will determine the Formula Price
within thirty (30) days of delivery of the first written notice of an intent
to exercise the option under this Section 3. If Hansberger, the Hansberger
Permitted Transferees or their respective legal representatives, heirs or
legatees (collectively, the *Hansberger Representatives*) disagree with the
Formula Price determined by the VK/AC Expert, they will notify VK/AC or the
VK/AC Representative, as applicable, in writing to that effect, such Formula
Price will be disregarded, and the Formula Price will be determined as
follows:
(i) Within fifteen (15) days of the Hansberger
Representatives* written notice to VK/AC or the VK/AC Representative, as
applicable, of their disagreement with the Formula Price determined by the
VK/AC Expert, the Hansberger Representatives (as a group) will select an
Expert (the *Hansberger Expert*), and such Hansberger Expert and the VK/AC
Expert will, within fifteen (15) days of the appointment of the Hansberger
Expert, together select a third Expert.
(ii) The three (3) Experts will each, within thirty (30)
days of the selection of the third Expert, make its estimate of the Formula
Price, and the Formula Price will be the average of the two (2) estimates that
differ the least from each other.
(c) VK/AC or the VK/AC Representative, as applicable, may
exercise its option within thirty (30) days of the determination of the
Formula Price in accordance with Section 3.2(b) above. If VK/AC or the VK/AC
Representative, as applicable, elects not to or fails to give written notice
of its intent to exercise its option within the thirty (30) day period
specified in Section 3.2(a) above or to exercise its option within the thirty
(30) day period specified in this Section 3.2(c), such option will expire, and
Hansberger and the Hansberger Permitted Transferees may freely Transfer their
Shares without any obligation under this Shareholders* Agreement to offer
VK/AC or the VK/AC Representative, as applicable, the opportunity to make an
offer for or purchase their Shares.
3.3. Certificates. HGI, on the surrender for cancellation of the
certificate or certificates representing all of the Hansberger Shares
Transferred to VK/AC, the VK/AC Representative, and the VK/AC Permitted
Transferees, as applicable, properly endorsed, will deliver to VK/AC, the
VK/AC Representative, and the VK/AC Permitted Transferees, as applicable, a
certificate or certificates for the appropriate number of Shares with the
legend set forth in Section 7 below printed on such certificate or
certificates.
3.4. Expenses. The Hansberger Representatives will pay the fees and
expenses of any Expert selected by them, VK/AC or the VK/AC Representative,
on behalf of VK/AC and the VK/AC Permitted Transferees, as applicable, will
pay the fees and expenses of any Expert selected by it, and HGI will pay the
fees and expenses of any *third* Expert selected under Section 3.2(b)(i)
above; provided, however, that if for any reason VK/AC or the VK/AC
Representative, as applicable, after having given notice of an intent to
exercise its option (which notice is not revoked or rescinded before the
selection of any Experts pursuant to Section 3.2(b)(i) above), does not
exercise its option within the thirty (30) day period specified in Section
3.2(c), VK/AC or the VK/AC Representative, on behalf of VK/AC and the VK/AC
Permitted Transferees, as applicable, will pay the fees and expenses of all
Experts selected pursuant to Section 3.2(b) above.
4. Hansberger Option to Purchase VK/AC Shares. If at any time after
the date of this Shareholders* Agreement, (i) VK/AC and the VK/AC Permitted
Transferees hold in the aggregate less than ten percent (10%) of HGI*s issued
and outstanding Shares; or (ii) the Requisite VK/AC Principal Shareholders (as
defined in Section 6.1) demand a registration of Shares pursuant to Section
6.1 of this Shareholders* Agreement, Hansberger will have the option, in
accordance with the terms of this Section 4, to purchase (A) in the case of
clause (i) above, all, but not less than all, of the Shares then held by VK/AC
and the VK/AC Permitted Transferees, or (B) in the case of clause (ii) above,
all, but not less than all, of the Shares requested by such Requisite VK/AC
Principal Shareholders to be so registered (the *VK/AC Shares*) at an
aggregate purchase price equal to the Formula Price (as defined in Section 3.1
above) multiplied by a fraction the numerator of which is the number of VK/AC
Shares and the denominator of which is the number of Shares then issued and
outstanding. In consideration for the VK/AC Shares, Hansberger may, at his
option, deliver to VK/AC or the applicable VK/AC Permitted Transferees, as the
case may be, a promissory note, payable by Hansberger to VK/AC or such VK/AC
Permitted Transferees, as the case may be, in the aggregate principal amount
of such purchase price, substantially in the form attached to this
Shareholders* Agreement as Exhibit B. Hansberger may assign to HGI his option
under clause (i) of the first sentence of this Section 4 or under clause (ii)
of the first sentence of this Section 4 if the Requisite VK/AC Principal
Shareholders have demanded registration and there is a registration of all
(but not less than all) of the Shares then held by VK/AC and the VK/AC
Permitted Transferees; provided, (x) HGI will pay the purchase price for such
Shares in cash; and (y) Hansberger will unconditionally guarantee the payment
by HGI of fees and expenses of Experts in accordance with Section 4.3 below to
the extent that Hansberger has assigned his option to HGI and HGI has failed
to make such payments.
4.1. Mechanics.
(a) Hansberger will, within thirty (30) days after receipt of
written notice that (i) VK/AC and the VK/AC Permitted Transferees hold in the
aggregate less than ten percent (10%) of HGI*s issued and outstanding Shares;
or (ii) the Requisite VK/AC Principal Shareholders have demanded registration
of Shares pursuant to Section 6.1 of this Shareholders* Agreement, give
written notice to VK/AC or the applicable VK/AC Permitted Transferees, as the
case may be, of Hansberger*s intent to exercise his option under this Section
4.
(b) Hansberger will, in the first instance, select the Expert
responsible for determining the Formula Price, and such Expert will determine
the Formula Price within thirty (30) days of Hansberger*s written notice of
his intent to exercise his option under this Section 4. If VK/AC or the
applicable VK/AC Permitted Transferees, as the case may be, disagree with the
Formula Price determined by the Expert selected by Hansberger, they will
notify Hansberger in writing to that effect, the Formula Price determined by
the Expert selected by Hansberger will be disregarded, and the Formula Price
will be determined as follows:
(i) Within fifteen (15) days of VK/AC*s or the applicable
VK/AC Permitted Transferees*, as the case may be, notice to Hansberger of its
or their disagreement with the Formula Price determined by the Expert selected
by Hansberger, VK/AC and the applicable VK/AC Permitted Transferees, as the
case may be, will select an Expert, and such Expert and the Expert selected by
Hansberger will, within fifteen (15) days of the last of their appointments,
together select a third Expert.
(ii) The three (3) Experts will each, within thirty (30)
days of the selection of the third Expert, make its estimate of the Formula
Price, and the Formula Price will be the average of the two (2) estimates that
differ the least from each other.
(c) Hansberger may exercise his option within thirty (30) days
of the determination of the Formula Price in accordance with Section 4.1(b)
above. If Hansberger elects not to or fails to give written notice of his
intent to exercise his option within the thirty (30) day period specified in
Section 4.1(a) above or to exercise his option within the thirty (30) day
period specified in this Section 4.1(c), the option will expire.
4.2. Certificates. HGI, on the surrender for cancellation of the
certificate or certificates representing all of the VK/AC Shares Transferred
to Hansberger, properly endorsed, will deliver to Hansberger a certificate for
the appropriate number of Shares with the legend set forth in Section 7 of
this Shareholders* Agreement printed on the certificate.
4.3. Expenses. VK/AC and the applicable VK/AC Permitted
Transferees, as the case may be, will pay the fees and expenses of any Expert
selected by them, Hansberger will pay the fees and expenses of any Expert
selected by him, and HGI will pay the fees and expenses of any *third* Expert
selected under Section 4.1(b) above; provided, however, that if for any reason
Hansberger, after having given notice of his intent to exercise his option
(which notice is not revoked or rescinded before the selection of any Experts
pursuant to Section 4.1(b)(i) above), elects not to or fails to exercise his
option within the thirty (30) day period specified in Section 4.1(c),
Hansberger will pay the fees and expenses of all Experts selected pursuant to
Section 4.1(b) above.
5. Formula Buy-Back. VK/AC or, on or after the Transition Date, the
VK/AC Representative, on behalf of VK/AC and the VK/AC Permitted Transferees,
as applicable, may request that HGI, by written notice received by HGI at
least one hundred twenty (120) days before November 15, 2000, purchase all of
the Shares then held by VK/AC and the VK/AC Permitted Transferees on such date
at an aggregate purchase price in cash equal to the Formula Price (as defined
in Section 3.1 above) multiplied by a fraction the numerator of which is the
number of such Shares and the denominator of which is the number of Shares
then issued and outstanding. For purposes of this Section 5, (a) the Formula
Price will be determined in accordance with the procedures set forth in
Section 4.1(b) above; (b) certificates will be delivered in accordance with
Section 4.2 above; and (c) VK/AC or the VK/AC Representative, on behalf of
VK/AC and the VK/AC Permitted Transferees, as applicable, and HGI will each
pay the fees and expenses of any Expert selected by it, and HGI will pay the
fees and expenses of any *third* Expert selected under Section 4.1(b).
Subject to the last sentence of this Section 5, Hansberger hereby agrees that,
if for any reason HGI is unwilling or unable to purchase the Shares held by
VK/AC and the VK/AC Permitted Transferees pursuant to this Section 5,
Hansberger will purchase such Shares on the same terms and pursuant to the
same procedures provided for above; provided, however, that, in consideration
for such Shares, Hansberger may, at his option, deliver to VK/AC or the VK/AC
Representative, as applicable, cash or a promissory note or notes, payable by
Hansberger to VK/AC and the VK/AC Permitted Transferees, as the case may be,
in the aggregate principal amount of such purchase price, substantially in the
form attached to this Shareholders* Agreement as Exhibit B. Neither VK/AC nor
the VK/AC Representative will be entitled to require that Hansberger purchase
the Shares held by VK/AC and the VK/AC Permitted Transferees pursuant to this
Section 5 if (i) VK/AC or the VK/AC Representative, on behalf of VK/AC and the
VK/AC Permitted Transferees, as applicable, has previously purchased the
Hansberger Shares pursuant Section 2.2 or Section 3 above; or (ii) Hansberger
has died or is Incapacitated.
6. Registration Rights.
6.1. Demand Registrations.
(a) Requests for Registration. At any time after the
earlier of (i) November 15, 2000; or (ii) the end of the first calendar
quarter in which HGI*s assets under management on a discretionary basis exceed
fifteen billion dollars ($15,000,000,000), (A) the holders of at least two
thirds of the Shares then held by VK/AC and its Permitted Transferees (each a
*Principal Shareholder*), if any (collectively, the *Requisite VK/AC Principal
Shareholders*), and (B) the holders of at least two thirds of the Shares then
held by Hansberger and his Permitted Transferees (each a *Principal
Shareholder*), if any (collectively, the *Requisite Hansberger Principal
Shareholders*), may each demand registration (a *Demand Registration*) under
the Securities Act of 1933, as amended (the *1933 Act*), of at least that
number of Registrable Securities (as defined in Section 6.7(a) below) held by
such Principal Shareholders as is, together with the Registrable Securities
requested to be included pursuant to Section 6.1(b), equal to fifteen percent
(15%) of the Shares then issued and outstanding. To accomplish such demand,
the Principal Shareholders requesting the Demand Registration (the *Requesting
Principal Shareholders*) will send written notice of the demand to HGI,
specifying the number of Registrable Securities sought to be registered. The
Requisite Hansberger Principal Shareholders and the Requisite VK/AC Principal
Shareholders each will have the right to one Demand Registration at HGI*s
expense pursuant to Section 6.1(c) below and the additional right to one
Demand Registration at their own expense pursuant to Section 6.1(c) below;
provided, however, that the Principal Shareholders as a group will not have
the right to more than one Demand Registration in any six (6) month period.
Notwithstanding anything to the contrary contained in this Section 6, no
Demand Registration may be made under this Section 6.1 either within three (3)
months after the effective date of the most recent registration statement
filed by HGI under the 1933 Act (other than registration statements on Forms
S-4, S-8, or any other form not available for registering the Registrable
Securities for sale to the public, or any successor to such forms) or if less
than fifty percent (50%) of the Registrable Securities held by the Requesting
Principal Shareholders are to be registered.
(b) Procedure. Within ten (10) days after receipt of such a
demand, HGI will give written notice of such requested registration to all
other holders of Registrable Securities and will include in such registration,
subject to the allocation provisions below, all other Registrable Securities
with respect to which HGI has received written requests for inclusion within
twenty (20) days after HGI*s mailing of such notice, plus any securities of
HGI that HGI chooses to include on its own behalf.
(c) Expenses. In a Demand Registration at HGI*s expense, HGI
will pay the Registration Expenses (as defined in Section 6.7(b) below), but
the Underwriting Commissions (as defined in Section 6.7(d) below) will be
shared by HGI and those holders of Registrable Securities whose Registrable
Securities are included in the Demand Registration in proportion to any
securities included on their behalf. In a Demand Registration at the
Requesting Principal Shareholders* expense, the Registration Expenses and
Underwriting Commissions will be shared by HGI and those holders of
Registrable Securities whose Registrable Securities are included in the Demand
Registration in proportion to any securities included on their
behalf.
(d) Priority on Demand Registrations. If a Demand
Registration is underwritten, and the managing underwriters advise HGI and the
Requesting Principal Shareholders in writing that in their opinion the number
of Registrable Securities requested to be included exceeds the number that can
be sold in such offering, at a price reasonably related to fair value, HGI
will allocate the securities to be included in such Demand Registration as
follows: first, the Registrable Securities requested to be registered by the
Requesting Principal Shareholders pro rata on the basis of the respective
Registrable Securities requested for sale by them; second, Registrable
Securities requested to be included in such Demand Registration by the
Registering Shareholders pursuant to Section 6.1(b), pro rata on the basis of
the Registering Shareholders* respective ownership interests in HGI; third,
any securities that HGI desires to include on its own behalf; and fourth, any
equity securities that other shareholders of HGI having piggyback rights have
requested HGI to include in such Demand Registration, pro rata on the basis of
such shareholders* respective ownership interests in HGI. A Demand
Registration will not be considered to be the Requesting Principal
Shareholders* Demand Registration under Section 6.1(a), and HGI will pay the
Registration Expenses of such Demand Registration, if the registration
statement requested by such Shareholders does not become effective for any
reason.
(e) Selection of Underwriters. If any Demand Registration is
underwritten, the selection of investment banker(s) and manager(s) and the
other decisions regarding the underwriting arrangements for the offering will
be made by HGI and the Requesting Principal Shareholders.
(f) Restrictions on Demand Registrations. HGI will not be
obligated to effect any Demand Registration within six (6) months after the
effective date of a previous Demand Registration or any registration in which
the Principal Shareholders were given piggyback rights pursuant to Section 6.2
below.
6.2. Piggyback Registrations.
(a) Right to Piggyback. Whenever HGI proposes to register
any of its securities under the 1933 Act (other than a Demand Registration),
whether on its behalf or on behalf of the holders of such securities, and the
registration form to be used may be used for the registration of Registrable
Securities (a *Piggyback Registration*), HGI will give prompt written notice
to all holders of Registrable Securities and will include in such Piggyback
Registration, subject to the allocation provisions below, all Registrable
Securities with respect to which HGI has received written requests for
inclusion within twenty (20) days of such notice. HGI will not select a form
of registration statement which imposes, for its use, limitations on the
maximum value or number of securities to be registered if these limitations
would preclude registration of the Registrable Securities that HGI has been
requested to include in such registration.
(b) Piggyback Expenses. In all Piggyback Registrations, HGI
will pay the Registration Expenses related to the Registrable Securities of
the Registering Shareholders (as defined in Section 6.7(c) below), but the
Registering Shareholders will pay the Underwriting Commissions related to
their Registrable Securities.
(c) Priority on Primary Registrations. If a Piggyback
Registration is an underwritten primary registration on behalf of HGI, and the
managing underwriters advise HGI in writing that in their opinion the number
of securities requested to be included in such registration exceeds the number
that can be sold in such offering, at a price reasonably related to fair
value, HGI will allocate the securities to be included as follows: First,
the securities HGI proposes to sell on its own behalf; second, Registrable
Securities requested to be included in such registration by the Registering
Shareholders, pro rata on the basis of the Registering Shareholders*
respective ownership interests in HGI; and third, any equity securities that
other shareholders of HGI having piggyback rights have requested HGI to
include in such Piggyback Registration, pro rata on the basis of such
shareholders* respective ownership interests in HGI.
(d) Priority on Secondary Registrations. If a Piggyback
Registration is initiated as an underwritten secondary registration on behalf
of holders of HGI*s securities (other than a Demand Registration pursuant to
Section 6.1 above), and the managing underwriters advise HGI in writing that
in their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in such offering, at a price
reasonably related to fair value, HGI will allocate the securities to be
included as follows: first, the securities requested to be included by the
holders initiating such registration; and second, Registrable Securities
requested to be included in such registration by the Registering Shareholders,
pro rata on the basis of the Registering Shareholders* respective ownership
interests in HGI.
(e) Selection of Underwriters. If any Piggyback Registration
is underwritten, the selection of investment banker(s) and manager(s) and the
other decisions regarding the underwriting arrangements for the offering will
be made by HGI, if the registration is under Section 6.2(c) above, or by the
holders initiating such registration, if the registration is under Section
6.2(d) above.
6.3. Holdback Agreements. Neither HGI nor any holder of
Registrable Securities will effect any public sale or distribution of equity
securities of HGI or any securities convertible into or exchangeable or
exercisable for such securities during the seven (7) days prior to and the
ninety (90) days after any underwritten Demand Registration or underwritten
Piggyback Registration has become effective (except as part of such
underwritten registration).
6.4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered
pursuant to Section 6.1 or 6.2 of this Shareholders* Agreement, HGI will, as
expeditiously as possible:
(a) Prepare and file with the Securities and Exchange
Commission a registration statement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective (provided that before filing a registration statement or
prospectus or any amendments or supplements to such a registration statement
or prospectus, HGI will furnish each Registering Shareholder with copies of
all such documents proposed to be filed) as promptly as practical;
(b) Prepare and file with the Securities and Exchange
Commission such amendments and supplements to such registration statement and
the prospectus used in connection with such registration statement as may be
necessary to keep such registration statement effective for a period of not
less than one hundred twenty (120) days;
(c) Furnish to each Registering Shareholder such number of
copies of such registration statement, each amendment and supplement to such
registration statement and the prospectus included in such registration
statement (including each preliminary prospectus), and such other documents as
such Registering Shareholder may reasonably request in order to facilitate the
disposition of the Registrable Securities held by such Registering
Shareholder;
(d) Use its best efforts to register or qualify such
Registrable Securities under such other securities or state *Blue Sky* laws of
such jurisdictions as the managing underwriter(s) may reasonably request;
(e) Notify each Registering Shareholder, at any time when a
prospectus relating to the registration statement is required to be delivered
under the 1933 Act within the period that HGI is required to keep the
registration statement effective, of the happening of any event as a result of
which the prospectus included in such registration statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements in such prospectus not misleading, and, at the request of any such
seller, HGI will prepare a supplement or amendment to such prospectus so that,
as thereafter delivered to the purchasers of such Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statement in such prospectus not
misleading;
(f) Cause all such Registrable Securities to be listed or
included on securities exchanges on which similar securities issued by HGI are
then listed or included;
(g) Provide a transfer agent and registrar for all such
Registrable Securities not later than the effective date of such registration
statement;
(h) Enter into such customary agreements (including an
underwriting agreement in customary form) and take such other customary
actions as may be reasonably necessary to expedite or facilitate the
disposition of such Registrable Securities;
(i) Obtain an opinion from counsel to HGI experienced in
securities law covering such matters of the type customarily covered in
opinions of issuer*s counsel;
(j) Obtain a *comfort* letter addressed to HGI from its
independent public accountants in customary form and covering such matters of
the type customarily covered by *comfort* letters; and
(k) Make available for inspection by any Registering
Shareholder, any underwriter participating in any disposition and any
attorney, accountant or other agent retained by any such seller or any
underwriter, all financial and other records, pertinent corporate documents
and properties of HGI, and cause HGI*s officers, directors and employees to
supply all information reasonably requested by any such seller or any such
underwriter, attorney, accountant or agent in connection with such
registration statement.
6.5. Indemnification.
(a) HGI hereby indemnifies, to the extent permitted by law,
each Principal Shareholder, its officers and directors, and each person who
controls such holder (within the meaning of the 1933 Act), against all losses,
claims, damages, liabilities and expenses arising out of or resulting from any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any omission
or alleged omission to state in such a registration statement, prospectus or
preliminary prospectus a material fact required to be stated in such a
registration statement, prospectus or preliminary prospectus or necessary to
make the statements in such a registration statement, prospectus or
preliminary prospectus not misleading except insofar as the same are caused by
or contained in any information furnished in writing to HGI by such holder
expressly for use in such a registration statement, prospectus or preliminary
prospectus or by any such holder*s failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements to the
registration statement or prospectus after HGI has furnished such holder with
a sufficient number of copies of the same. In connection with an
underwritten offering, HGI will indemnify the underwriters, their officers and
directors, and each person who controls such underwriters (within the meaning
of the 1933 Act) to the same extent as provided above with respect to the
indemnification of the Principal Shareholders.
(b) In connection with any registration statement in which a
Registering Shareholder is participating, each such holder will furnish to HGI
in writing such information as is reasonably requested by HGI for use in any
such registration statement or prospectus and will indemnify, to the extent
permitted by law, HGI, its directors and officers and each person who controls
HGI (within the meaning of the 1933 Act) against any losses, claims, damages,
liabilities and expenses resulting from any untrue or alleged untrue statement
of material fact or any omission or alleged omission of a material fact
required to be stated in the registration statement or prospectus or any
amendment or supplement to the registration statement or prospectus or
necessary to make the statements in the registration statement or prospectus
or any amendment or supplement to the registration statement or prospectus not
misleading, but only to the extent that such untrue statement or omission is
contained in information so furnished in writing by such holder specifically
for use in preparing the registration statement. Notwithstanding the
foregoing, the liability of a Registering Shareholder under this Section
6.5(b) will be limited to an amount equal to the net proceeds actually
received by the Registering Shareholder from the sale of Registrable
Securities covered by the registration statement.
(c) Any person entitled to indemnification under this Section
6 will (i) give prompt notice to the indemnifying party of any claim with
respect to which it seeks indemnification; and (ii) unless in such indemnified
party*s reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. If such defense is assumed, the
indemnified party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). No
such claim may be settled unless such settlement includes an unconditional
release of all indemnified parties, whether or not named in the claim. An
indemnifying party who is not entitled, or elects not, to assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
(d) If the indemnification provided for in this Section 6.5 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, claim, damage, liability or expense referred
to herein, then the indemnifying party, in lieu of indemnifying such
indemnified party hereunder, will contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage, liability or
expense, in such proportion as is appropriate to reflect the relative fault of
the indemnifying party, on the one hand, and of the indemnified party, on the
other hand, in connection with the statements or omissions that resulted in
such loss, claim, damage, liability or expense, as well as any other relevant
equitable considerations. The relative fault of the indemnifying party and of
the indemnified party will be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the
parties* relative intent, knowledge, access to information, and opportunity to
correct or prevent such statement or omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f)(1) of the Securities
Act) will be entitled to contribution from any person who was not guilty of
fraudulent misrepresentation.
6.6. Participation in Underwritten Registrations. No Registering
Shareholder may participate in any underwritten registration under this
Section 6 unless such holder (a) agrees to sell such holder*s securities on
the basis provided in any underwriting arrangements approved by the persons
entitled to approve such arrangements under Sections 6.1(e) above or 6.2(e)
above, and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements.
6.7. Definitions.
(a) The term *Registrable Securities* means (i) the Shares
held by VK/AC and VK/AC Permitted Transferees, (ii) the Hansberger Shares,
(iii) the Shares held by the Other Investors and their respective Permitted
Transferees (as defined in the shareholders* agreements between HGI, each such
Other Investor, and Hansberger), and (iv) any securities issued or to be
issued with respect to the shares referred to above by way of a share dividend
or share split or in con nection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Registrable Securities, such securities will cease to be
Registrable Securities when they have been effectively registered under the
1933 Act and disposed of in accordance with the registration statement
covering them or are Transferred pursuant to Rule 144 (or any similar
provision then in force).
(b) The term *Registration Expenses* means all expenses
incident to HGI*s performance of or compliance with Section 6 of this
Shareholders* Agreement, including without limitation all registration and
filing fees, fees and expenses of compliance with securities or state *Blue
Sky* laws, printing expenses, messenger and delivery expenses, expenses and
fees for listing the securities to be registered on exchanges or electronic
quotation systems, and fees and disbursements of counsel for HGI and of all
independent certified public accountants, underwriters (other than
Underwriting Commissions) and other persons retained by HGI.
(c) The term *Registering Shareholders* means registered
holders of Registrable Securities who request inclusion of all or a portion of
their shares of Registrable Securities in a Demand Registration pursuant to
Section 6.1(b) above or a Piggyback Registration pursuant to Section 6.2(a)
above.
(d) The term *Underwriting Commissions* means all underwriting
discounts or commissions relating to the sale of securities of HGI, but
excludes any expenses reimbursed to underwriters.
6.8. Limitations on Subsequent Registration Rights. From and after
the date of this Shareholders* Agreement, HGI may enter into an agreement with
any holder or prospective holder of any securities of HGI that would allow
such holder or prospective holder to include such securities in any
registration filed under Sections 6.1 or 6.2 of this Shareholders* Agreement.
However, HGI will not enter into any such agreement without the prior written
consent of the beneficial holders of a majority of the outstanding Registrable
Securities unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only
to the extent that the inclusion of its securities would not reduce the amount
of the Registrable Securities that the holders thereof would be entitled to
include in such registration.
7. Legend on Share Certificates. The certificates for all Shares held
by Shareholders which are currently outstanding or are at any time after the
date of this Shareholders* Agreement issued or Transferred will bear the
following legends, until (a) in the case of the first legend, such Shares are
validly Transferred to persons who are not parties to or otherwise bound or
required to be bound by this Shareholders* Agreement (whether by joinder or
otherwise) or in the case of a sale of such Shares pursuant to a Demand or
Piggyback Registration pursuant to Section 6, or this Shareholders* Agreement
is terminated; and (b) in the case of the second legend below, such Shares
have been registered under the Securities Act or, subject to the provisions of
this Shareholders* Agreement, as applicable, sold pursuant to Rule 144 or
Regulation A thereunder:
*THIS CERTIFICATE AND THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT IN ALL RESPECTS TO THE PROVISIONS OF A SHAREHOLDERS*
AGREEMENT, DATED AS OF MAY 13, 1996, BY AND AMONG HANSBERGER
GLOBAL INVESTORS, INC. (THE *COMPANY*), VK/AC HOLDING, INC., AND
THOMAS L. HANSBERGER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL
OFFICE OF THE COMPANY, WHICH SHAREHOLDERS* AGREEMENT, AMONG OTHER
THINGS, IMPOSES VARIOUS RESTRICTIONS ON THE TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION, GIFT, PLACEMENT IN TRUST
(VOTING OR OTHERWISE), OR OTHER ENCUMBRANCE OR DISPOSAL OF AN
INTEREST IN, DIRECTLY OR INDIRECTLY AND WHETHER OR NOT
VOLUNTARILY, BY OPERATION OF LAW OR OTHERWISE, THE COMPANY*S
COMMON STOCK, PAR VALUE $.01 PER SHARE (THE *COMMON STOCK*), AND
GRANTS TO CERTAIN SHAREHOLDERS OF THE COMPANY CERTAIN OPTIONS TO
PURCHASE AND SELL SHARES OF THE COMPANY*S COMMON
STOCK.*
*THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES
LAWS OF ANY STATE. THE SHARES MAY NOT BE OFFERED FOR SALE,
TRANSFERRED OR RESOLD IN THE ABSENCE OF SUCH REGISTRATION OR AN
EXEMPTION THEREFROM UNDER SUCH ACT AND SUCH LAWS.*
Any Transfer of any Shares will be reflected on the books of HGI only in
accordance with the provisions of this Shareholders* Agreement and the
provisions of Delaware law.
8. Specific Performance. The parties recognize that the obligations
imposed on them in this Shareholders* Agreement are special, unique, and of
extraordinary character, and that, in the event of breach by any party,
damages will be an insufficient remedy. Consequently, it is agreed that the
parties to this Shareholders* Agreement may have specific performance (in
addition to damages) as a remedy for the enforcement of this Shareholders*
Agreement without proving damages.
9. Arbitration. Any controversy or claim arising out of, or relating
to, this Shareholders* Agreement, or the breach of this Shareholders*
Agreement, will be settled by arbitration in accordance with the Commercial
Arbitration Rules of the American Arbitration Association, and judgment on the
award rendered by the arbitrators may be entered in any court having
jurisdiction over such a controversy or claim. The place of arbitration will
be Fort Lauderdale, Florida. Any determinations made by the arbitrators will
be final and binding on all of the parties to this Shareholders* Agreement and
their permitted successors and assigns.
10. Reporting to Facilitate Regulatory Disclosures. In order to
facilitate HGI*s compliance with disclosure and other obligations to which it
is subject under Federal and applicable state law, each Shareholder agrees to
notify HGI promptly in writing of any information or change in information
relating to that Shareholder that HGI is required to disclose in its Uniform
Application for Investment Adviser Registration on Form ADV, as amended from
time to time.
11. Miscellaneous.
11.1. Waivers and Amendments. No waiver by any party of any
condition, or the breach of any term or covenant contained in this
Shareholders* Agreement, whether by conduct or otherwise, in any one or more
instances, will be deemed or construed as a further or continuing waiver of
any such condition or breach or a waiver of any other condition. No provision
of this Shareholders* Agreement may be waived without a written instrument
signed by the waiving party. This Shareholders* Agreement may not be changed,
amended, discharged or terminated other than by an agreement in writing signed
by HGI, the Requisite Hansberger Principal Shareholders, and the Requisite
VK/AC Principal Shareholders.
11.2. Governing Law. This Shareholders* Agreement and all
questions relating to its validity, interpretation, performance and
enforcement will be governed by and construed in accordance with the internal
laws of the State of Delaware.
11.3. Permitted Successors and Assigns. Except as otherwise
expressly provided in this Shareholders* Agreement, the terms and conditions
of this Shareholders* Agreement will be binding on the parties to this
Shareholders* Agreement and to their respective representatives, permitted
successors and assigns, but rights and interests under this Shareholders*
Agreement will be assignable only in accordance with, and to the extent
expressly permitted in, this Shareholders* Agreement. Nothing in this
Shareholders* Agreement, express or implied, is intended to confer on any
party other than the parties to this Shareholders* Agreement or their
respective permitted successors and assigns any rights, remedies, obligations
or liabilities under or by reason of this Shareholders* Agreement.
11.4. Entire Agreement. This Shareholders* Agreement and the
other agreements and documents delivered pursuant to this Shareholders*
Agreement constitute the full and entire understanding and agreement among the
parties with regard to the subject of this Shareholders* Agreement and of such
other agreements and documents, and supersede all prior agreements,
understandings, inducements or conditions, express or implied, oral or
written, with respect to the subject of this Shareholders* Agreement and of
such other agreements and documents.
11.5. Notices. Unless otherwise provided, all notices, requests,
demands and other communications required or permitted under this
Shareholders* Agreement will be in writing and will be deemed to have been
duly made and received: (i) upon personal delivery or confirmed facsimile to
the party to be notified; (ii) three (3) business days after deposit with the
United States Post Office, by certified or registered mail or by first class
mail, postage prepaid, addressed as set forth below; or (iii) one (1) business
day after deposit with Federal Express or another reputable overnight courier
(for next business day delivery), shipping prepaid, addressed as set forth
below:
(a) If to HGI, then to:
Hansberger Global Investors, Inc.
515 East Las Olas Boulevard
Fort Lauderdale, FL 33301
Attn: Thomas L. Hansberger
Chairman and Chief Executive Officer
with a copy to:
Morgan, Lewis & Bockius LLP
1800 M Street, N.W.
Washington, DC 20036
Attn: Kathryn B. McGrath, Esquire
(b) If to VK/AC, then to:
VK/AC Holding, Inc.
One Parkview Plaza
Oakbrook Terrace, Illinois 60181
Attn: Ronald A. Nyberg, Esquire
with a copy to each of:
The Clayton & Dubilier Private Equity Fund IV Limited
Partnership
270 Greenwich Avenue
Greenwich, Connecticut 06830
Attn: Clayton & Dubilier Associates IV Limited
Partnership
Attn: Mr. Alberto Cribiore
and
Debevoise & Plimpton
875 Third Avenue
New York, NY 10022
Attn: Woodrow W. Campbell, Esquire
Either party may change the address to which communications are to be sent by
giving two (2) business days* advance notice of such change of address to the
other party in conformity with the provisions of this Section providing for
the giving of notice.
11.6. Headings. The headings contained in this Shareholders*
Agreement have been inserted for convenience of reference only, and neither
such headings nor the placement of any term of this Shareholders* Agreement
under any particular heading will in any way restrict or modify any of the
terms or provisions of this Shareholders* Agreement.
11.7. Severability. The provisions of this Shareholders*
Agreement will be deemed severable, and if any part of any provision is held
to be illegal, void, voidable, invalid, nonbinding or unenforceable, in its
entirety or partially, or as to any party, for any reason, such provision may
be changed, consistent with the intent of the parties to this Shareholders*
Agreement, to the extent reasonably necessary to make the provision, as so
changed, legal, valid, binding and enforceable. If any provision of this
Shareholders* Agreement is held to be illegal, void, voidable, invalid,
nonbinding or unenforceable, in its entirety or partially, or as to any party,
for any reason, and if such provision cannot be changed consistent with the
intent of the parties to this Shareholders* Agreement to make it fully legal,
valid, binding and enforceable, then such provision will be stricken from this
Shareholders* Agreement, and the remaining provisions of this Shareholders*
Agreement will not in any way be affected or impaired, but will remain in full
force and effect.
11.8. Survival. The provisions of Sections 6.5, 8, 9, 10 and 11
of this Shareholders* Agreement will survive the Transfer by a Shareholder of
all Shares held by such Shareholder and the termination of this Shareholders*
Agreement.
11.9. Execution; Counterparts. This Shareholders* Agreement may
be executed in any number of counterparts, each of which will be deemed to be
an original as against any party whose signature appears on such counterpart,
and all of which will together constitute one and the same instrument. This
Shareholders* Agreement will become binding when one or more counterparts of
this Shareholders* Agreement, individually or taken together, bear the
signatures of all of the parties to this Shareholders* Agreement.
IN WITNESS WHEREOF, the parties have caused this Shareholders*
Agreement to be duly executed and delivered as of the day and year first
written above.
HANSBERGER GLOBAL INVESTORS, INC.
By: /s/ Thomas L. Hansberger
Thomas L. Hansberger
Chairman and Chief Executive Officer
/s/ Thomas L. Hansberger
THOMAS L. HANSBERGER
VK/AC HOLDING, INC.
By: /s/ Ronald A. Nyberg
Ronald A. Nyberg, Esquire
Executive Vice President and General Counsel
EXHIBIT A
FORM OF SHAREHOLDER LETTER
Board of Directors
Hansberger Global Investors, Inc.,
Dear Sirs:
The undersigned (i) [is the VK/AC Representative] [is a VK/AC Permitted
Transferee] [is a Hansberger Permitted Transferee] (as defined in the
Shareholders* Agreement, dated as of May 13, 1996, by and among Hansberger
Global Investors, Inc., VK/AC Holding, Inc., and Thomas L. Hansberger (the
*Shareholders* Agreement*), and (ii) hereby agrees to become, and by signing
below hereby is, a party to the Shareholders* Agreement and agrees to be bound
by all of the terms and provisions thereof applicable to the undersigned.
This election will be binding on the executor, administrator, legal
representative, trustee, guardian, receiver, successor, or assignee of the
undersigned, as applicable.
Very truly yours,
EXHIBIT B
FORM OF PROMISSORY NOTE
THOMAS L. HANSBERGER
$_________.00 __________ __, ____
FOR VALUE RECEIVED, the undersigned, THOMAS L. HANSBERGER, an individual
residing at ________________ (*Hansberger*), hereby promises to pay to the
order of _______________________________ (*Holder*), the principal sum of
___________ dollars ($_________.00) with interest on the unpaid principal sum
from the date of the delivery of this Note at the prime rate of interest per
annum as published in The Wall Street Journal (Eastern Edition) on the date of
issuance of this Note (which interest rate is __.__%). If the date of
issuance of this Note falls on a Saturday or Sunday, then the interest rate on
this Note will be the prime rate of interest as published in the Wall Street
Journal (Eastern Edition) on the Friday immediately preceding the date of
issuance of this Note.
This Note is issued in accordance with and subject to the additional
terms and conditions herein set forth.
1. Principal on this Note will be repaid in cash three (3) years from
the date of this Note (the *Payment Date*). Interest on the outstanding
principal amount of this Note will be payable in cash semi-annually with the
first Interest Payment being payable six (6) months from the date of this
Note.
2. This Note is the Promissory Note referred to in Sections 4 and 5
of the Shareholders* Agreement, dated as of the 13th day of May, 1996 by and
among Hansberger Global Investors, Inc., VK/AC Holding, Inc., and
Hansberger.
3. Hansberger, at his election, may prepay all or any part of the
principal amount hereof, without penalty but with all interest accrued on the
amount of such prepayment to the date thereof, by giving to Holder not less
than five (5) calendar days prior written notice, which notice shall be
irrevocable, specifying the date on which such prepayment will be made and the
amount of principal and interest, respectively, to be prepaid.
4. If Hansberger fails to pay to Holder the accrued interest or
principal due on this Note on or prior to any interest payment date or the
repayment date specified in the notice described in Paragraph 3 hereof, as the
case may be, Hansberger will be deemed to be in default, and Holder will have
the right to accelerate the Note (in the case of any non-payment of interest,
if such default continues for a period of ten (10) days from the earlier of
the day on which Hansberger (i) has received written notice from Holder of
such default, or (ii) knows or, with the exercise of reasonable diligence,
should have known of such default) and if accelerated, all outstanding
principal of and accrued interest on this Note will become immediately due and
payable to Holder. Notwithstanding the ten (10) day cure period above, in the
case of the death of Hansberger, the legal representative of Hansberger*s
estate (the *Hansberger Representative*) will have thirty (30) days to cure
any default in the payment of accrued interest or principal due on this Note
on any interest payment date or repayment date specified in the notice
described in Paragraph 3 hereof occurring after the appointment of the
Hansberger Representative, or thirty (30) days after the appointment of the
Hansberger Representative to cure any such default occurring after
Hansberger*s death but prior to the appointment of the Hansberger
Representative, before Holder will have the right to accelerate the Note.
Holder will have the right to accelerate the payment of the principal of and
accrued but unpaid interest on the Note if, in the event of Hansberger*s
death, the Hansberger Representative fails at any time to maintain in
Hansberger*s estate assets sufficient to repay (i) on the Payment Date the
principal of and accrued but unpaid interest on the Note; and (ii) all other
liabilities to which such estate may be subject. The Hansberger
Representative will give the Holder prompt (but not less than five business
days*) prior written notice of any distribution of assets that might cause the
assets in Hansberger*s estate to be insufficient to satisfy such repayment
obligations and other liabilities. Holder will have the right to accelerate
the payment of the principal of and accrued but unpaid interest on the Note if
Hansberger should become insolvent or make a general assignment for the
benefit of creditors, or file a petition in bankruptcy, or if a petition in
bankruptcy should be filed against him, or if a receiver of substantially all
the Hansberger*s property or assets should be appointed and such petition or
appointment is not vacated or otherwise stayed within sixty (60) days
thereafter.
5. No failure or delay by Holder to insist on the strict performance
of any term hereof or to exercise any right, power or remedy consequent on a
breach thereof and no acceptance of any prepayment of principal or accrued
interest on account of this Note during the continuance of any such breach,
will constitute a waiver of any such term or of any such breach; nor will any
single or partial exercise by Holder of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. No waiver of
any breach will affect or alter this Note, which will continue in full force
and effect.
6. All terms of this Note will be binding on and inure to the benefit
of and be enforceable by the successors and assigns of Hansberger or Holder,
as the case may be.
7. This Note will be governed, construed and interpreted strictly in
accordance with the internal laws of the State of Delaware. Both Hansberger
and Holder agree to stipulate in any future proceeding that this Note is to be
considered for all purposes to have been executed and delivered within the
geographical boundaries of the State of Delaware, even if it was, in fact,
executed and delivered elsewhere.
8. All notices, requests and demands will be given to or made on
Hansberger at his address set forth herein or at such other address as may
have been furnished in writing by Hansberger to Holder. All notices, requests
and demands given or made in accordance with the provisions of this Note will
be deemed to have been given or made three business days after deposited in
the mails postage prepaid, by certified or registered mail or, if sent by
Federal Express, Airborne Courier or other reputable overnight courier, one
business day after such sending.
9. On the receipt of evidences of the loss, theft, destruction or
mutilation of this Note and, in the case of any such loss, theft and/or
destruction, on receipt of indemnification reasonably satisfactory to
Hansberger and, in the case of any such mutilation, on surrender and
cancellation of this Note, Hansberger will make and deliver in lieu thereof, a
new note of like tenor and in the aggregate principal amount equal to the
principal amount of this Note at the time of such loss, theft or destruction,
or at the time of such surrender in the case of the mutilation thereof.
10. If the interest rate payable on this Note is determined to exceed
the maximum rate of interest permitted by applicable law, the rate of interest
payable on this Note will be reduced to the maximum rate of interest permitted
by applicable law.
IN WITNESS WHEREOF, the undersigned has caused this Note to be signed on
the date first above written.
Thomas L. Hansberger