Exhibit 10.2.2
SECOND AMENDMENT AND WAIVER TO
SHAREHOLDERS' AGREEMENT
This Second Amendment and Waiver (the "AMENDMENT") to the Shareholders'
Agreement dated as of October 11, 2000 is made as of April 4, 2001 among
Advanstar Holdings Corp. (the "COMPANY"), the DLJ Funds, the Existing
Shareholders, the DLJIP Funds, the Management Shareholders, Ares Leveraged
Investment Fund, L.P. ("ARES I") and Ares Leveraged Investment Fund II, L.P.
("ARES II", and together with Ares I, the "ARES FUNDS").
W I T N E S S E T H :
WHEREAS, the Company, the DLJ Funds, the Existing Shareholders, the
DLJIP Funds and the Management Shareholders are parties to the Shareholders'
Agreement dated as of October 11, 2000, as amended by the First Amendment and
Waiver to Shareholders' Agreement dated as of February 21, 2001 among such
parties (the "SHAREHOLDER'S AGREEMENT");
WHEREAS, Peter J. Solomon Co., Ltd. ("PJS") and the H&F Funds desire to
transfer to the Ares Funds 4,349 shares and 195,651 shares, respectively, of the
Common Shares that each of PJS and the H&F Funds beneficially own, so that after
such transfers the Ares Funds shall beneficially own 200,000 Common Shares in
the aggregate; and
WHEREAS, the parties hereto desire to amend the Shareholders' Agreement
to include the Ares Funds as parties thereto and to make certain changes
concerning certain of the Ares Funds' rights, duties and obligations in respect
thereof;
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
SECTION 1. DEFINITIONS; REFERENCES. Unless otherwise specifically
defined herein, each term used herein which is defined in the Shareholders'
Agreement shall have the meaning assigned to such term in the Shareholders'
Agreement. Each reference to "hereof", "hereunder", "herein", and "hereby" and
each other similar reference and each reference to "this Agreement" and each
other similar reference contained in the Shareholders' Agreement shall from and
after the date hereof refer to the Shareholders' Agreement as amended hereby.
SECTION 2. WAIVER TO PERMIT PJS AND THE H&F FUNDS TO MAKE TRANSFERS TO
THE ARES FUNDS; ADDITION OF THE ARES FUNDS AS SHAREHOLDERS UNDER THE
SHAREHOLDERS' AGREEMENT. The parties hereto waive the requirements of Section
3.04 of the Shareholders' Agreement solely to the extent necessary to permit PJS
and the H&F Funds
to transfer 4,349 shares and 195,651 shares of the Common Shares that PJS and
the H&F Funds beneficially own to the Ares Funds at any time prior to April 6,
2001. Each of the Ares Funds hereby acknowledges, agrees and confirms that as of
the date of such transfer, by its execution of this Amendment, each shall be
deemed to be a party to the Shareholders' Agreement, as amended hereby, with all
of the rights and obligations of a Shareholder and the Ares Funds under the
Shareholders' Agreement, as amended hereby. Each of the Ares Funds hereby
ratifies, as of the date of such transfer, and agrees to be bound by, all of the
terms, provisions and conditions contained in the Shareholders' Agreement, as
amended hereby.
SECTION 3. AMENDMENTS TO INTRODUCTION AND DEFINITIONS.
(a) The introduction to the Shareholders' Agreement is amended by
deleting the word "and" at the end of clause (iv), by replacing the period at
the end of clause (v) with "; and", and by adding the following clause after
clause (v):
(vi) each other Shareholder party hereto.
(b) The following new definitions are added to Section 1.01 of
Shareholders' Agreement in appropriate alphabetical order:
"ARES I" means Ares Leveraged Investment Fund, L.P.,
a Delaware limited partnership.
"ARES II" means Ares Leveraged Investment Fund II,
L.P., a Delaware limited partnership.
"ARES FUNDS" means Ares I and Ares II. If either or
both of the Ares Funds shall hereafter transfer any of their
Company Securities to any of their Permitted Transferees, the
term "THE ARES FUNDS" shall mean the Ares Funds and their
Permitted Transferees, taken together, and any right,
obligation or other action that may be exercised or taken at
the election of the Ares Funds may be exercised or taken at
the election of the Ares Funds and their Permitted
Transferees.
(c) The definition of "Initial Ownership" in Section 1.01 of the
Shareholders' Agreement is amended by inserting "or Other Shareholder" after the
term "Management Shareholder" in every place where it appears therein.
(d) The definition of "Permitted Transferee" in Section 1.01 of the
Shareholders' Agreement is amended by deleting "and" at the end of clause (iv),
by replacing the period at the end of clause (v) with "; and", and by adding the
following clause after clause (v):
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(vi) in the case of the Ares Funds, any other
investment fund that is an Affiliate of the Ares Funds.
SECTION 4. AMENDMENT TO RESTRICTIONS ON TRANSFERS. The title of Section
3.04 and the portion of Section 3.04(a) of the Shareholder's Agreement that
precedes clause (i) are amended, restated and superceded in their entirety with
the following:
SECTION 3.04. RESTRICTIONS ON TRANSFERS BY EXISTING
SHAREHOLDERS, THE ARES FUNDS AND DLJIP FUNDS, AND TRANSFERS OF
ROLLOVER SHARES GENERALLY. (a) Subject to Section 3.04(b),
none of the Existing Shareholders, the Ares Funds or DLJIP
Funds shall Transfer any of its Company Securities and neither
Krakoff nor Alic shall sell any of their respective Rollover
Shares, except to one or more of its Permitted Transferees in
accordance with Section 3.03 or as follows (in each case in
compliance with the Securities Act, any other applicable
securities or "blue sky" laws, any restrictions contained in
the terms and conditions for such Company Securities and any
agreement or instrument pursuant to which such Company
Securities have been issued):
SECTION 5. AMENDMENT TO REGISTRATION RIGHTS. Section 5.02(c) of the
Shareholders' Agreement is amended by deleting "No Existing Shareholder" in each
place where it appears therein and replacing it in each such place with "None of
the Existing Shareholders or the Ares Funds".
SECTION 6. AMENDMENT TO NOTICE PROVISION. Section 7.02 of the
Shareholders' Agreement is amended by inserting after "if to any Management
Shareholder, to such Management Shareholder at the Company's address listed
above," the following:
if to the Ares Funds:
Ares Leveraged Investment Fund, L.P.
Ares Leveraged Investment Fund II, L.P.
c/o Ares Management, L.P.
1999 Avenue of the Stars, Suite 1900
Los Angeles, CA 90067
Attention: Eric Beckman
SECTION 7. GOVERNING LAW. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of laws rules of such state.
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SECTION 8. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed
in any number of counterparts, each of which shall be deemed to be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Amendment shall become effective (i) when all parties required
to execute this Amendment pursuant to Section 7.03 of the Shareholders'
Agreement shall have executed this Amendment or a counterpart hereto and (ii)
when the Ares Funds shall have executed this Amendment or a counterpart hereto.
SECTION 9. EFFECT OF AMENDMENT. Except as expressly set forth herein,
the amendments contained herein shall not constitute an amendment or waiver of
any term or condition of the Shareholders' Agreement, and all such terms and
conditions shall remain in full force and effect and are hereby ratified and
confirmed in all respects.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed by their respective authorized officers as of the day and year
first above written.
ADVANSTAR HOLDINGS CORP.
By: /s/ David Wittels
---------------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS III, L.P.
By: DLJ Merchant Banking III, Inc.,
its Managing General Partner
By: /s/ David Wittels
----------------------------------------
Name:
Title:
DLJMB FUNDING III, INC.
By: /s/ David Wittels
---------------------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS III, C.V.
By: DLJ Merchant Banking III, Inc.,
its Managing General Partner
By: /s/ David Wittels
---------------------------------------
Name:
Title:
HELLMAN & FRIEDMAN CAPITAL
PARTNERS III, L.P.
By: H&F Investors III, as general partner
By: Hellman & Friedman Associates III, L.P., as
managing general partner
By: H&F Investors III, Inc., as managing general
partner
By: /s/ Mitchell R. Cohen
---------------------------------------------
Name:
Title:
H&F ORCHARD PARTNERS III, L.P.
By: H&F Investors III, as general partner
By: Hellman & Friedman Associates III, L.P., as
managing general partner
By: H&F Investors III, Inc., as managing general
partner
By: /s/ Mitchell R. Cohen
---------------------------------------------
Name:
Title:
H&F INTERNATIONAL PARTNERS III, L.P.
By: H&F Investors III, as general partner
By: Hellman & Friedman Associates III, L.P., as
managing general partner
By: H&F Investors III, Inc., as managing general
partner
By: /s/ Mitchell R. Cohen
---------------------------------------------
Name:
Title:
PETER J. SOLOMON CO., LTD.
By: /s/ Kenneth T. Berliner
---------------------------------------------
Name:
Title:
DLJ INVESTMENT PARTNERS II, L.P.
By: DLJ INVESTMENT PARTNERS II, INC., as
Managing General Partner
By: /s/ John Moriarty
------------------------------------------
Name:
Title:
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ INVESTMENT PARTNERS, INC., as
Managing General Partner
By: /s/ John Moriarty
------------------------------------------
Name:
Title:
DLJ INVESTMENT FUNDING II, INC.
By: /s/ Ivy B. Dodes
------------------------------------------
Name:
Title:
DLJ ESC II, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ Ivy B. Dodes
------------------------------------------
Name:
Title:
MANAGEMENT SHAREHOLDERS:
ROBERT L. KRAKOFF
/s/ Robert L. Krakoff
------------------------------------------------
JAMES M. ALIC
/s/ James M. Alic
-----------------------------------------------
ARES LEVERAGED INVESTMENT FUND, L.P.
By: ARES MANAGEMENT, L.P., as general partner
By: /s/ Bennett Rosenthal
--------------------------------------------
Name:
Title:
ARES LEVERAGED INVESTMENT FUND II, L.P.
By: ARES MANAGEMENT II, L.P., as general partner
By: /s/ Bennett Rosenthal
--------------------------------------------
Name:
Title: