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Exhibit 4.7
AMENDED AND RESTATED INVESTORS AGREEMENT
THIS AGREEMENT (the "Agreement") is made as of June 28, 2001, by
and among TransWestern Communications Company, Inc., a Delaware corporation (the
"Company"), TransWestern Holdings, L.P., a Delaware limited partnership (the
"Partnership"), each of the investors listed on the Schedule of Investors
attached hereto (the "Investors") and each of the executives (and, in some
cases, certain of their affiliates) listed on the Schedule of Executives
attached hereto (the "Executives"). Capitalized terms used, but not otherwise
defined, herein are defined in paragraph 8 hereof.
The Company, the Partnership (f/k/a TransWestern Publishing
Company, L.P.) and certain of the parties hereto, entered into that certain
Investors Agreement, dated October 1, 1997 (the "Original Investors Agreement").
The parties hereto hold an amount of securities of the
Partnership subject to the Original Investors Agreement that is sufficient to
effect an amendment and restatement of the Original Investors Agreement.
The parties hereto desire to enter into this Agreement for the
purposes, among others, of amending and restating the Original Investors
Agreement to (i) establish the composition of the Company's Board of Directors
(the "Board"), (ii) assure continuity in the management and ownership of the
Company and the Partnership and (iii) limit the manner and terms by which the
Stockholder Shares and the Partnership Securities may be transferred.
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:
1. Board of Directors.
(a) From and after the Closing (as defined in the
Recapitalization Agreement) and until the provisions of this paragraph 1 cease
to be effective, each Investor shall vote all of his or its Stockholder Shares
and any other voting securities of the Company over which such Stockholder has
voting control and will take all other necessary or desirable actions within his
or its control (whether in his capacity as a stockholder, director, member of a
board committee or officer of the Company or otherwise), and the Company will
take all necessary and desirable actions within its control, in order to cause:
(i) subject to paragraph 1(g) below, the authorized number of
directors on the Board to be established at nine (9) directors, or in the event
the condition in paragraph 1(f) below is satisfied, the authorized number of
directors on the Board will be established at eight (8);
(ii) the election to the Board of
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(A) three (3) representatives designated by THL Fund V
(the "THL Fund V Directors");
(B) one (1) representative designated by THL Cayman V
(the "THL Cayman V Director");
(C) one (1) representative designated by THL Parallel V
(the "THL Parallel V Director");
(D) each of the then current chairman and president of
the Partnership (the "Executive Directors"); and
(E) two (2) representatives designated by CIVC (the "CIVC
Directors") (with it being understood that one (1)
CIVC Director shall be a voting member of the Board's
audit committee, compensation committee, and
executive committee).
(iii) the removal from the Board (with or without cause) of any
representative designated hereunder by THL Fund V, THL Cayman V, THL Parallel V,
CIVC, or by the Executives at the written request of THL Fund V, THL Cayman V,
THL Parallel V, CIVC, or the Executives, respectively, but only upon such
written request and under no other circumstances (in each case, determined on
the basis of a vote of the holders of a majority of the Stockholder Shares held
by such persons, respectively), provided that if any director elected pursuant
to (ii)(B) above ceases to be an employee of the Partnership he or she shall be
removed as a director promptly after his employment ceases; and
(iv) in the event that any representative designated hereunder by
CIVC, THL Fund V, THL Cayman V, THL Parallel V, or by the Executives for any
reason ceases to serve as a member of the Board during his or her term of office
or until any such representative is initially designated, the resulting vacancy
on the Board shall be filled by a representative designated by CIVC, THL Fund V,
THL Cayman V, THL Parallel V, or the Executives, respectively, as provided
hereunder, without any further action by the stockholders of the Company.
(b) The Company shall pay the reasonable out-of-pocket expenses
incurred by each director in connection with attending the meetings of the Board
and any committee thereof.
(c) The rights of THL Fund V, THL Cayman V and THL Parallel V under
this paragraph 1 will terminate at such time as the THL Investors and their
Permitted Transferees (as defined in paragraph 2(e) hereof) hold in the
aggregate less than 30% of the Common Units held by such persons on the date
hereof.
(d) The rights of CIVC under this paragraph 1 will terminate at such
time as CIVC and its Permitted Transferees (as defined in paragraph 2(e) hereof)
hold in the aggregate less than 30% of the Common Units held by such persons on
the date hereof.
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(e) The Board will not directly or indirectly approve or permit the
Company or the Partnership to take, engage or participate in any of the
following activities without the express approval of at least one of the CIVC
Directors or at least one of the Executive Directors:
(i) transfer of any material assets, business, or shares of any
subsidiaries;
(ii) any amendment to the Partnership's Partnership Agreement or
the Company's Certificate of Incorporation or bylaws which is material or has an
adverse impact on any of the Investors;
(iii) incur any indebtedness if after giving effect thereto the
Partnership would have an aggregate amount of indebtedness in excess of 5.5
times the Partnership's trailing twelve (12) months EBITDA (on a pro forma basis
giving effect to any acquisition completed on or before the date such proposed
indebtedness is incurred); provided, however, that this subparagraph (iii) shall
not restrict (a) working capital borrowings in the ordinary course of business
pursuant to a committed facility in effect as of Closing or entered into after
Closing in compliance with this subparagraph (iii); (b) indebtedness incurred
under committed facilities existing on the Closing in connection with add-on
acquisitions permitted under subparagraph (i) below, or (c) refinancings which
do not increase the aggregate amount of the Partnership's indebtedness
outstanding as of the date of any such refinancing;
(iv) enter into any hedging agreements outside the ordinary
course of business;
(v) enter into any new agreement or transaction or amend any
existing agreement with THL or any party affiliated with, related to, or
directly or indirectly employed or owned by THL or any of its affiliates;
(vi) appoint auditors;
(vii) liquidate or wind up its affairs other than directly as a
part of a Sale of the Company or Sale of the Partnership;
(viii) terminate any Executive, hire any other key executive or
take any action which results in a material diminution in compensation or
responsibility of any Executive or other key executives;
(ix) make any material investment or acquisition other than
acquisitions in the yellow pages business for an aggregate purchase price
(including assumed liabilities, deferred payments, earnouts, and similar
payments) less than $10 million in any transaction or series of related
transactions; and/or
(x) redeem or repurchase any shares of the Company or any
partnership interests of the Partnership other than (a) as part of a pro rata
redemption in which CIVC participates
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or (b) repurchases of Securities from management pursuant to the terms of an
Executive Agreement.
(f) Notwithstanding anything herein to the contrary other than
paragraph 1(c), if at any time the THL Investors (together with their Permitted
Transferees) collectively own less Partnership Securities or Stockholder Shares
than the amount of Partnership Securities or Stockholder Shares then owned by
CIVC, the Executives and their respective Permitted Transferees (taken as a
group), then (i) the number of THL Fund V Directors will be reduced from three
(3) to one (1), and (ii) the number of CIVC Directors will be increased from two
(2) to three (3).
(g) The provisions of this paragraph 1 will terminate automatically and
be of no further force and effect upon the occurrence of a Qualified Public
Offering.
2. Restrictions on Transfer of Securities.
(a) Transfer of Securities Other than Executive Securities. No
holder of any Securities (other than THL and CIVC) may sell, transfer, assign,
pledge, be redeemed, have repurchased, or otherwise dispose of (a "Transfer")
any interest in any Stockholder Shares or Partnership Securities (other than the
Transfer of Executive Securities pursuant to the Executive Agreements) without
the prior written consent of THL (which consent will not be unreasonably
withheld), except pursuant to (i) the provisions of this paragraph 2, (ii)
pursuant to a Public Sale or (iii) pursuant to a Sale of the Company or Sale of
the Partnership, as applicable (with it being understood that any such Transfer
for which the consent of THL has been obtained shall nonetheless be subject to
the restrictions on Transfer set forth in this paragraph 2). Transfers (other
than pledges) by THL and CIVC are subject to paragraph 2(c) hereof. Pledges of
Securities by THL and the exercise of rights and remedies with respect thereto
(including, without limitation, the foreclosure or realization upon, or sale or
other disposition of, such Securities in respect of such pledge or in lieu
thereof), shall not be restricted by the provisions of this Agreement or the
Partnership Agreement, and, without limiting the generality of the foregoing,
shall not be subject to paragraph 2(c) hereof. The Company hereby irrevocably
consents to the admission as a Substitute Limited Partner (as defined in the
Partnership Agreement) of any successor to THL as the owner of any Securities
pursuant to the exercise of any rights and remedies with respect to such pledge
pursuant to Section 11.1 of the Partnership Agreement (subject to the
requirements of Section 11.4 of the Partnership Agreement and to the immediately
following sentence of this paragraph 2(a)). Neither THL nor CIVC will sell,
transfer or otherwise convey any Securities to any person who directly or
indirectly owns (beneficially or otherwise) more than 5% of any class of
securities of any entity engaged in the yellow pages business without the prior
written consent of the other party other than pursuant to a Sale of the Company
or a Sale of the Partnership.
(b) Transfer of Executive Securities. At least 30 days prior to
making any Transfer (other than a Public Sale or pursuant to paragraphs 2(c) or
5 hereof) of Executive Securities which have vested, the holder of such
Executive Securities (the "Transferring Partner") will deliver a written notice
(the "Offer Notice") to the Partnership and the other Partners (the
"Non-Transferring Partners"). The Offer Notice will disclose in reasonable
detail the proposed number of vested Executive Securities to be transferred, the
identity of the transferee(s) and the proposed terms and conditions of the
Transfer. First, the Partnership may elect to purchase all (but not less than
all) of
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such vested Executive Securities specified in the Offer Notice at the
price and on the terms specified therein by delivering written notice of such
election to the Transferring Partner and the Non-Transferring Partners as soon
as practical but in any event within ten days after the delivery of the Offer
Notice. If the Partnership has not elected to purchase all of such Executive
Securities within such ten-day period, the Non-Transferring Partners or a
combination of the Partnership and the Non-Transferring Partners may elect to
purchase all (but not less than all) of their Pro Rata Share (as defined below)
of the Executive Securities specified in the Offer Notice at the price and on
the terms specified therein by delivering written notice of such election to the
Transferring Partner as soon as practical but in any event within 20 days after
delivery of the Offer Notice (the "Election Period"). Any Executive Securities
not elected to be purchased by the end of such Election Period shall be
reoffered by the Transferring Partner on a pro rata basis to the
Non-Transferring Partners who have elected to purchase their Pro Rata Share. If
the Partnership or any Non-Transferring Partners have elected to purchase all of
such vested Executive Securities from the Transferring Partner, the transfer
will be consummated as soon as practical after the delivery of the election
notices, but in any event within 15 days after the expiration of the Election
Period. If the Partnership or any Non-Transferring Partners have not elected to
purchase all of the vested Executive Securities being offered, the Transferring
Partner may, within 90 days after the expiration of the Election Period,
transfer all of such vested Executive Securities to the party identified in the
Offer Notice at the price and on the terms specified in the Offer Notice. The
purchase price specified in any Offer Notice shall be payable solely in cash at
the closing of the transaction or in installments over time. Notwithstanding any
provision herein to the contrary, no vested Executive Securities may be pledged,
except on terms and conditions satisfactory to THL. Each Non-Transferring
Partner's "Pro Rata Share" shall be based upon such Partner's proportionate
ownership of Common Units on a fully diluted basis.
(c) Participation Rights. In the event of a Transfer of
Securities by any Investor (the "Transferring Investor"), at least 30 days prior
to such Transfer (other than a Public Sale), such Transferring Investor will
deliver a written notice (the "Sale Notice") to the Company and the other
Stockholders (the "Other Stockholders") if such Transferring Investor is
transferring Stockholder Shares or to the Partnership and the other Partners
(the "Other Partners") if such Transferring Investor is transferring Partnership
Securities, specifying in reasonable detail the identity of the prospective
transferee(s), the Securities to be sold and the terms and conditions of the
Transfer. In the event that the Other Stockholders or Other Partners (as the
case may be) hold the type of Securities which are to be transferred, they may
elect to participate in the contemplated Transfer by delivering written notice
to such Transferring Investor within 30 days after delivery of the Sale Notice.
If any Other Stockholder or Other Partner has elected to participate in such
Transfer, each of such Transferring Investor and each such Other Stockholder or
Other Partner will be entitled to sell in the contemplated Transfer, at the same
price and on the same terms, a number of Securities equal to the product of (i)
the quotient determined by dividing the percentage of such Securities held by
such person or entity by the aggregate percentage of such Securities owned by
such Transferring Investor and the Other Stockholders and/or Other Partners
participating in such sale and (ii) the number of such Securities to be sold in
the contemplated Transfer.
For example, if the Sale Notice contemplated a sale of 100 Stockholder
Shares by a Transferring Investor, and if such Transferring Investor at
such time owns 30% of all Stockholder Shares and if one Other
Stockholder elects to participate and owns 20%
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of all Stockholder Shares, such Transferring Investor would be entitled
to sell 60 shares (30%) 50% x 100 shares) and the other Stockholder
would be entitled to sell 40 shares (20%) 50% x 100 shares).
A Transferring Investor shall use its best efforts to obtain the agreement of
the prospective transferee(s) to the participation of the Other Stockholders
and/or Other Partners in any contemplated Transfer, and notwithstanding any
provision herein to the contrary, in the event that the prospective transferees
do not allow such participation, such Transferring Investor may not transfer any
of its Securities to the prospective transferee(s).
(d) Preemptive Rights.
(i) Neither the Company nor the Partnership (individually or
together referred to as "Issuer") will issue or sell or otherwise transfer any
"equity securities" (including any options, warrants, securities convertible,
exchangeable or exercisable into equity or any other securities containing
equity features) (an "Issuance") unless, at least 30 days and not more than 60
days prior to such Issuance, Issuer notifies each holder of Securities in
writing of the Issuance (including the price, the purchaser(s) thereof and other
terms thereof) and grants to each holder of Securities in such Issuer, the right
(the "Right") to subscribe for and purchase such additional stock or other
Securities so issued at the same price and on the same terms to be issued in the
Issuance such that, after giving effect to the Issuance and exercise of the
Right, the shares owned by such holder shall represent the same percentage of
total voting and economic interests (on a fully diluted basis) in such Issuer as
was owned by such holder prior to the Issuance, or such lesser amount designated
by such holder. The Right may be exercised by such holder or its nominee at any
time by written notice by such holder to Issuer received within 30 days after
receipt of notice by such holder from Issuer of the Issuance. The closing of the
purchase and sale pursuant to the exercise of the Right shall occur at least 10
days after Issuer receives notice of the exercise of the Right and concurrently
with the closing of the Issuance.
(ii) Notwithstanding the foregoing, the Right shall not apply to
(A) issuances of securities pro rata to all holders of Securities, as a dividend
on, subdivision of, or other distribution in respect of, Securities, (B) options
and sales of securities to management in the ordinary course of business as
approved by the Board (including under the Executive Agreements) and (C)
issuances in connection with a public offering of securities by the Partnership
or the Company.
(iii) If all of the Issuance offered to the holders of Securities
of such Issuer are not fully subscribed by such holders, the shares that are not
so subscribed for will be reoffered to such holders purchasing their full
allotment upon the terms set forth in this paragraph 2(d) except that such
holders must exercise their purchase rights within five (5) days after the
receipt of such reoffer.
(iv) Upon the expiration of the offering periods described above,
Issuer will be free to sell such Issuance during the one hundred twenty (120)
days following such expiration on terms and conditions no more favorable to the
purchaser(s) thereof than those offered to such
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holders. Any shares of such Issuance not sold after such one hundred twenty
(120) days period must be reoffered to the holders of Securities of such Issuer
pursuant to the terms of this paragraph 2(d).
(v) If any holder of Securities in such Issuer determines that it
may have a regulatory problem if issued securities of the class in the proposed
Issuance, the Issuer shall, upon written request of such holder, take all such
commercially reasonable actions requested by such holder to allow such holder to
purchase securities which are identical to the securities of the proposed
Issuance, except that such securities shall be non-voting and shall be
convertible into securities issued in the Issuance on such terms as are
requested by such holder in light of regulatory considerations then prevailing.
(vi) Except for Issuances subject to subparagraph (i) above or
excluded from subparagraph (i) pursuant to subparagraph (ii), neither the
Company of the Partnership will authorize or issue any equity securities
including any stock appreciation rights or phantom stock rights (each right to
be considered on a per share basis).
(e) Permitted Transfers. The restrictions contained in this paragraph 2
shall not apply with respect to any Transfer of Securities by any Investor (i)
in the case of any individual Investor, pursuant to applicable laws of descent
and distribution or among such Investor's Family Group or (ii) in the case of
any Investor, among its Affiliates (collectively referred to herein as
"Permitted Transferees"); provided that the restrictions contained in this
paragraph 2 shall continue to be applicable to the Securities after any such
Transfer and provided further that the transferees of such Securities shall have
agreed in writing to be bound by the provisions of this Agreement affecting the
Securities so transferred. "Family Group" means an Investor's spouse and
descendants (whether natural or adopted) and any trust solely for the benefit of
the Investor and/or any of the Investor's spouse and/or descendants. "Affiliate"
of an Investor means any other person, entity or investment fund controlling,
controlled by or under common control with the Investor and any partner of an
Investor which is a partnership or any employee of an Investor. Each THL
Investor shall be deemed to be an Affiliate of each other THL Investor.
(f) Termination of Restrictions. The restrictions set forth in this
paragraph 2 will continue with respect to each Security until the earlier of (i)
the date on which such Security has been transferred in a Public Sale, (ii) the
consummation of a Qualified Public Offering, (iii) with respect to Stockholder
Shares, the consummation of a Sale of the Company, and (iv) with respect to
Partnership Securities, the consummation of a Sale of the Partnership.
3. Legend. Each certificate evidencing Securities and each
certificate issued in exchange for or upon the transfer of any Securities (if
such securities remain subject to the terms of this Agreement after such
transfer) shall be stamped or otherwise imprinted with a legend in substantially
the following form:
"The securities represented by this certificate are subject to an
Investors Agreement dated as of June 28, 2001 among the issuer of
such securities (the "Company") and certain of the Company's
security holders. A copy of such Investors Agreement will be
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furnished without charge by the Company to the holder hereof upon
written request."
The legend set forth above shall be removed from the certificates or notes
evidencing any Securities which cease to be subject to the terms of this
Agreement, in accordance with the definition of such term contained in paragraph
8 hereof.
4. Transfer. Prior to transferring any Security (other than in a
Public Sale) to any person or entity, the transferring Stockholder or
transferring Partner will cause the prospective transferee to execute and
deliver to the Company or the Partnership (as the case may be) and the Other
Stockholders or Other Partners (as the case may be) a counterpart of this
Agreement; provided, however, that no pledgee of any pledge described in the
third sentence of Section 2(a) shall be required to execute and deliver a
counterpart of this Agreement.
5. Sale of the Company.
(a) If the Board and the holders of a majority of the Stockholder
Shares then outstanding approve a Sale of the Company (the "Approved Company
Sale"), the holders of Stockholder Shares will consent to and raise no
objections against the Approved Company Sale. If the Approved Company Sale is
structured as a (i) merger or consolidation, each holder of Stockholder Shares
shall waive any dissenters rights, appraisal rights or similar rights in
connection with such merger or consolidation or (ii) sale of stock, each holder
of Stockholder Shares shall agree to sell all of his Stockholder Shares and
rights to acquire Stockholder Shares on the terms and conditions approved by the
Board and the holders of a majority of the Stockholder Shares then outstanding.
Each holder of Stockholder Shares shall take all necessary or desirable actions
in connection with the consummation of the Approved Company Sale as requested by
the Company.
(b) The obligations of the holders of Stockholder Shares with
respect to the Approved Company Sale are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Approved Company Sale,
each holder of Stockholder Shares shall receive the same form of consideration
and the same portion of consideration such holder would have received if the
aggregate consideration had been distributed by the Company in complete
liquidation pursuant to the rights and preferences set forth in the Company's
Certificate of Incorporation as in effect immediately prior to the consummation
of the Approved Company Sale; (ii) if any holders of a class of Stockholder
Shares are given an option as to the form and amount of consideration to be
received, each holder of such class of Stockholder Shares shall be given the
same option; and (iii) each holder of then currently exercisable rights to
acquire a class of Stockholder Shares shall be given an opportunity to exercise
such rights prior to the consummation of the Approved Company Sale and
participate in such sale as holders of such class of Stockholder Shares.
(c) If the Company or the holders of any of the Company's
securities enter into any negotiation or transaction for which Rule 506 (or any
similar rule then in effect) promulgated by the Securities Exchange Commission
may be available with respect to such negotiation or transaction (including a
merger, consolidation or other reorganization), each holder of Stockholder
Shares will, at the request of the Company, appoint either a purchaser
representative (as such term
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is defined in Rule 501) designated by the Company, in which event the Company
will pay the fees of such purchaser representative, or another purchaser
representative (reasonably acceptable to the Company), in which event such
holder will be responsible for the fees of the purchaser representative so
appointed.
(d) All holders of Stockholder Shares will bear their pro-rata
share (based upon the number of shares sold) of the costs of any sale of
Stockholder Shares pursuant to an Approved Company Sale to the extent such costs
are incurred for the benefit of all such holders of Stockholder Shares and are
not otherwise paid by the Company or the acquiring party. Costs incurred by the
holders of Stockholder Shares on their own behalf will not be considered costs
of the Approved Company Sale.
(e) In no event will the Board or Stockholders enter into an
agreement for, or otherwise effect, a Sale of the Company unless it is in
connection with a contemporaneous Sale of the Partnership without the prior
approval of the THL Directors and the CIVC Directors.
6. Sale of the Partnership.
(a) If the General Partner and the holders of a majority of the
Class A Common Units then outstanding approve a Sale of the Partnership (the
"Approved Partnership Sale"), the holders of Partnership Securities will consent
to and raise no objections against the Approved Partnership Sale. If the
Approved Partnership Sale is structured as a (i) merger or consolidation, each
holder of Partnership Securities shall waive any dissenters rights, appraisal
rights or similar rights in connection with such merger or consolidation or (ii)
sale of Partnership Securities, each holder of Partnership Securities shall
agree to sell all of his Partnership Securities and rights to acquire
Partnership Securities on the terms and conditions approved by the General
Partner and the holders of a majority of the Class A Common Units then
outstanding. Each holder of Partnership Securities shall take all necessary or
desirable actions in connection with the consummation of the Approved
Partnership Sale as requested by the Partnership.
(b) The obligations of the holders of Partnership Securities with
respect to the Approved Partnership Sale are subject to the satisfaction of the
following conditions: (i) upon the consummation of the Approved Partnership
Sale, each holder of Partnership Securities shall receive the same form of
consideration and the same portion of consideration such holder would have
received if the aggregate consideration had been distributed by the Partnership
in complete liquidation pursuant to the rights and preferences set forth in the
Partnership's Partnership Agreement as in effect immediately prior to the
consummation of the Approved Partnership Sale; (ii) if any holders of a class or
type of Partnership Securities are given an option as to the form and amount of
consideration to be received, each holder of such class or type of Partnership
Securities shall be given the same option; and (iii) each holder of then
currently exercisable rights to acquire Partnership Securities shall be given an
opportunity to exercise such rights prior to the consummation of the Approved
Partnership Sale and participate in such sale as holders of such Partnership
Securities.
(c) If the Partnership or any of the holders of the Partnership's
Securities enter
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into any negotiation or transaction for which Rule 506 (or any similar rule then
in effect) promulgated by the Securities Exchange Commission may be available
with respect to such negotiation or transaction (including a merger,
consolidation or other reorganization), each holder of Partnership Securities
will, at the request of the Partnership, appoint either a purchaser
representative (as such term is defined in Rule 501) designated by the
Partnership, in which event the Partnership will pay the fees of such purchaser
representative, or another purchaser representative (reasonably acceptable to
the Partnership), in which event such holder will be responsible for the fees of
the purchaser representative so appointed.
(d) All holders of Partnership Securities will bear their
pro-rata share (based upon the amount of securities sold) of the costs of any
sale of Partnership Securities pursuant to an Approved Partnership Sale to the
extent such costs are incurred for the benefit of all such holders of
Partnership Securities and are not otherwise paid by the Partnership or the
acquiring party. Costs incurred by the holders of Partnership Securities on
their own behalf will not be considered costs of the Approved Partnership Sale.
7. Public Offering. In the event that the General Partner and the
holders of a majority of the Class A Common Units approve an initial public
offering and sale of equity securities of the Partnership (a "Public Offering")
pursuant to an effective registration statement under the Securities Act, the
holders of Securities will take all necessary or desirable actions in connection
with the consummation of the Public Offering. In the event that such Public
Offering is an underwritten offering and the managing underwriters advise the
Partnership in writing that in their opinion the capital structure will
adversely affect the marketability of the offering, each security holder will
vote for a recapitalization or exchange of the existing securities into
securities that the managing underwriters, the General Partner and the holders
of a majority of the Class A Common Units then outstanding find acceptable;
provided, that the resulting securities reflect and are consistent with the
rights and preferences set forth in the Partnership Agreement as in effect
immediately prior to such Public Offering and that the Partnership's Partners
are as a result of holding such resulting securities in substantially the same
economic position they were in prior to such recapitalization or exchange.
8. Definitions. Capitalized terms used herein and not otherwise
defined in this Agreement have the meanings set forth in the Recapitalization
Agreement.
"CIVC" means, collectively, CIVC Partners Fund, L.P., CIVC
Partners IIIA and CIVC Associates Fund II.
"Class A Common Units" means the Partnership's Class A Common
Units.
"Common Stock" means the Company's Common Stock, par value $.01
per share.
"Common Unit" has the meaning given to such term in the
Partnership Agreement.
"Executive" means anyone who has executed or will execute an
Executive Agreement with the Partnership; provided that for purposes of
paragraph 1 hereof, the Executive
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must also be employed by the Partnership.
"Executive Agreements" means the Executive Agreements by and
between the Partnership and each Executive relating to such Executive's
Securities.
"Executive Securities" means the Partnership Securities and/or
Common Stock held by the Executives and/or their Permitted Transferees.
"General Partner" means the Company or any successor general
partner of the Partnership.
"Independent Third Party" means any person who, immediately prior
to the contemplated transaction, does not own in excess of 5% of the Company's
Common Stock or 5% of the Partnership's Common Units on a fully-diluted basis (a
"5% Owner"), who is not controlling, controlled by or under common control with
any such 5% Owner and who is not the spouse or descendent (by birth or adoption)
of any such 5% Owner or a trust for the benefit of any such 5% Owner and/or such
other persons.
"Partner" means the General Partner or any of the limited partners
of the Partnership who are bound by the terms of this Agreement.
"Partnership Agreement" means that certain Fourth Amended and
Restated Agreement of Limited Partnership, dated as of the date hereof, by and
among the General Partner and the limited partners listed on Schedule I attached
thereto, as may be amended and restated from time to time.
"Partnership Securities" mean (i) any Common Units held by a
Partner, (ii) any Preferred Units held by a Partner, (iii) any equity securities
issued or issuable directly or indirectly with respect to the securities
referred to in clauses (i) and (iii) above by any of a split or dividend or in
connection with a combination of securities, recapitalization, merger,
consolidation or other reorganization, and (iv) any other securities of the
Partnership held by a Partner. As to any particular securities constituting
Partnership Securities, such securities will cease to be Partnership Securities
when they have been transferred in a Public Sale.
"Preferred Unit" has the meaning given to such term in the
Partnership Agreement.
"Providence" means Providence Equity Partners III L.P. and
Providence Equity Operating Partners III L.P.
"Public Sale" means any sale of Securities to the public pursuant
to an offering registered under the Securities Act or to the public through a
broker, dealer or market maker pursuant to the provisions of Rule 144 (or any
similar provision then in effect) adopted under the Securities Act.
"Qualified Public Offering" means the sale in an underwritten
public offering
-11-
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registered under the Securities Act of equity securities of the Partnership (or
its successor) having an aggregate value of at least $40 million.
"Recapitalization Agreement" means that certain Recapitalization
Agreement, dated as of the date hereof, between the Partnership, the Investors,
the Executives and the other persons listed on the signature pages thereto.
"Sale of the Company" means the sale of the Company to an
Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (i) capital stock of the Company possessing the
voting power under normal circumstances to elect a majority of the Company's
board of directors (whether by merger, consolidation, recapitalization, or sale
or transfer of the Company's capital stock) or (ii) all or substantially all of
the Company's assets determined on a consolidated basis.
"Sale of the Partnership" means the sale of the Partnership to an
Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (i) equity securities of the Partnership
constituting a majority of the residual equity of the Partnership (whether by
merger, consolidation, or sale or transfer of Preferred Units the Common Units)
or (ii) all or substantially all of Partnership's assets determined on a
consolidated basis.
"Securities" means the Stockholder Shares and the Partnership
Securities.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Stockholder" means any stockholder of the Company who is subject
to the terms of this Agreement.
"Stockholder Shares" means (i) any Common Stock held by any
Stockholder, (ii) any equity securities issued or issuable directly or
indirectly with respect to the Common Stock referred to in clause (i) above by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization, and
(iii) any other shares of any class or series of capital stock of the Company
held by a Stockholder. As to any particular shares constituting Stockholder
Shares, such shares will cease to be Stockholder Shares when they have been
transferred in a Public Sale.
"THL" means the THL Equity V, THL Parallel V, THL Cayman V,
Parallel Blocker I Corp. and Cayman Blocker I Corp.
"THL Cayman V" means Thomas H. Lee Equity (Cayman) Fund V, L.P.
"THL Coinvestors" means those limited partners of THL designated
by THL.
"THL Fund V" means Thomas H. Lee Equity Fund V, L.P.
"THL Individuals" means Thomas H. Lee, David V. Harkins, The 1995
Harkins Gift
-12-
13
Trust, Thomas R. Shepard, Scott A. Schoen, The Schoen Family Limited
Partnership, C. Hunter Boll, The Sperling Family Limited Partnership, Anthony J.
DiNovi, Thomas M. Hagerty, Warren C. Smith, Jr., The Smith Family Limited
Partnership, Seth W. Lawry, Joseph J. Incandela, Kent R. Weldon, Terrence M.
Mullen, Todd M. Abbrecht and Barbara F. Lee.
"THL Investors" means THL, Thomas H. Lee Investors Limited
Partnership, 1997 Thomas H. Lee Nominee Trust, Putnam Investment Holdings LLC,
Putnam Investment Employees' Securities Company I, LLC, Putnam Investment
Employees Company II, LLC, Providence, the THL Coinvestors, the THL Individuals
and any of their respective assignees.
"THL Parallel V" means Thomas H. Lee Parallel Fund V, L.P.
9. Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement will be
effective against the Company, the Partnership or the Investors unless such
modification, amendment or waiver is approved in writing by the Company, the
Partnership, the holders of at least a majority of the Stockholder Shares and a
majority of the Class A Common Units, respectively. The failure of any party to
enforce any of the provisions of this Agreement will in no way be construed as a
waiver of such provisions and will not affect the right of such party thereafter
to enforce each and every provision of this Agreement in accordance with its
terms.
10. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
11. Entire Agreement. Except as otherwise expressly set forth
herein, this document, the Executive Agreements, the Recapitalization Agreement,
the Registration Agreement and the other agreements being executed and delivered
by the parties on the date hereof pursuant hereto or thereto embody the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and supersede and preempt any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way.
12. Successors and Assigns. Except as otherwise provided herein,
this Agreement will bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns, the Partnership and its successors and
assigns and the Stockholders and any subsequent holders of Stockholder Shares
and the Partners and any subsequent holders of Partnership Securities and the
respective successors and assigns of each of them, so long as they hold
Stockholder Shares and/or Partnership Securities.
13. Counterparts. This Agreement may be executed in separate
counterparts each
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of which will be an original and all of which taken together will constitute one
and the same agreement.
14. Remedies. The Company, the Partnership and the Investors shall
be entitled to enforce their rights under this Agreement specifically to recover
damages by reason of any breach of any provision of this Agreement and to
exercise all other rights existing in their favor. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any Investor may in its sole
discretion apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of this
Agreement.
15. Notices. Any notice provided for in this Agreement shall be in
writing and shall be either personally delivered, or mailed first class mail
(postage prepaid) or sent by reputable overnight courier service (charges
prepaid) to the recipient at the address indicated on the schedules hereto, to
the Company or the Partnership at the address for THL indicated on the schedules
hereto and to any subsequent holder of Securities subject to this Agreement at
such address as indicated by the Company's or the Partnership's records, or at
such address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party. Notices will be deemed
to have been given hereunder when delivered personally, three days after deposit
in the U.S. mail and one day after deposit with a reputable overnight courier
service.
16. Governing Law. The corporate law of the State of Delaware will
govern all issues concerning the relative rights of the Company and its
stockholders. The partnership law of the State of Delaware will govern all
issues concerning the relative rights of the Partnership and its Partners. All
questions concerning the construction, validity and interpretation of this
Agreement will be governed by the internal law, and not the law of conflicts, of
the State of Delaware.
17. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
18. Approved Corporate Conversion. It is the intention of the
parties hereto that the agreements set forth in this Agreement with respect to
such party's Partnership Securities or Stockholder Shares (including, without
limitation, all voting agreements and agreements regarding transferability of
such equity securities) shall continue in full force and effect following an
Approved Corporate Conversion (as defined in the Partnership Agreement). Each
Investor and each Executive and each of their assignees acknowledges and agrees
that the provisions of this Agreement shall survive any Approved Corporate
Conversion with respect to all equity securities [of any successor entity to the
Company, the Partnership or any of their Subsidiaries] received by such parties
in exchange for their Partnership Securities or Stockholder Shares or otherwise
in connection with such Approved Corporate Conversion. Each of the parties
hereto agrees to execute and deliver all amendments to or reinstatements of this
Agreement to the extent necessary to accomplish and/or reflect the foregoing in
connection with an Approved Corporate Conversion.
19. Proxy. Each THL Investor (other than THL and Providence)
agrees that so
-14-
15
long as such THL Investor holds any equity securities of the Company or the
Partnership, each such THL Investor shall vote all of its Securities (or any
other voting securities or interests of the Company or the Partnership) and take
all other necessary or desirable actions as are requested by THL in connection
with any vote of equity interests of the Company or the Partnership (including,
without limitation, any vote required by applicable law or by the Company's
charter or bylaws or the Agreement of Limited Partnership of the Partnership).
In order to secure a THL Investor's obligation to vote its Securities as
provided in the foregoing sentence, each THL Investor (other than THL and
Providence) hereby appoints THL as its true and lawful proxy and
attorney-in-fact, with full power of substitution, to vote all of its Securities
or other voting securities or interest of the Company or the Partnership. The
proxies and powers granted to THL pursuant hereto are coupled with an interest,
are given to secure the performance of each THL Investor's obligations pursuant
to the first sentence of this paragraph, shall be irrevocable until expiration
or termination of this Agreement and shall be binding upon any subsequent holder
of equity securities of the Company or the Partnership that are held by a THL
Investor (other than THL and Providence).
20. Lockstep. Each THL Investor (other than THL and Providence)
agrees that, so long as such it holds any equity securities of the Company or
the Partnership (or their respective successors), it shall, with respect to its
equity securities of the Company and/or the Partnership (or their respective
successors), take any and all action which may be requested by THL from time to
time with respect to its Securities, including but not limited to selling its
Securities in connection with a sale of Securities by THL or its Affiliates;
provided that nothing herein shall be construed to require a THL Investor to
purchase any additional equity securities of the Company or the Partnership.
Without limiting the generality of the foregoing, upon THL's request, each THL
Investor (other than THL and Providence) shall be obligated hereunder to
participate with THL in any sale, exchange or any other Transfer of equity
securities of the Company and/or the Partnership (or their respective
successors) at the same price and on the same terms as THL.
-15-
16
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first above written.
TRANSWESTERN HOLDINGS, L.P.
By: TransWestern Communications
Company, Inc.
Its: General Partner
By: /s/
------------------------------------------------------
Its: Vice President - Chief Financial Officer
------------------------------------------------------
TRANSWESTERN COMMUNICATIONS COMPANY,
INC.
By: /s/
------------------------------------------------------
Its: Vice President - Chief Financial Officer
------------------------------------------------------
INVESTORS:
By: /s/ Jody Smyth Jackson
------------------------------------------------------
Name: Jody Smyth Jackson
By: /s/ Suzanne M. Stadick
------------------------------------------------------
Name: Suzanne M. Stadick
By: /s/ Steven Boucher
------------------------------------------------------
Name: Steven Boucher
By: /s/ William Lexa
------------------------------------------------------
Name: William Lexa
By: /s/ Lois E. Speights
------------------------------------------------------
Name: Lois E. Speights
By: /s/ Keith J. Pattison
------------------------------------------------------
Name: Keith J. Pattison
(SIGNATURE PAGE TO INVESTORS AGREEMENT)
17
/s/ Robert DiBella
----------------------------------------------------------
Name: Robert DiBella
/s/ Lauren L. Jannotto
----------------------------------------------------------
Name: Lauren L. Jannotto
/s/ W. Stephen Martin
----------------------------------------------------------
Name: W. Stephen Martin
/s/ Laurence H. Bloch
----------------------------------------------------------
Name: Laurence H. Bloch - Trustee
Laurence H. Bloch and Cindy Bloch Living Trust
/s/ Cindy Bloch
----------------------------------------------------------
Name: Cindy Bloch - Trustee
/s/ Cindy Bloch
----------------------------------------------------------
Name: Cindy Bloch - Trustee
/s/ Victoria L. Welch
----------------------------------------------------------
Name: Victoria L. Welch - Trustee:
Victoria L. Welch Declaration of Trust
/s/ Richard Mellert
----------------------------------------------------------
Name: Richard Mellert
/s/ Robert Bambace
----------------------------------------------------------
Name: Robert Bambace
/s/ William Raymond
----------------------------------------------------------
Name: William Raymond
/s/ Joan M. Fiorito
----------------------------------------------------------
Name: Joan M. Fiorito - Trustee:
Fiorito Family Trust
/s/ Laurence H. Bloch
----------------------------------------------------------
Name: Laurence H. Bloch
/s/ Laurence H. Bloch
----------------------------------------------------------
Name: Laurence H. Bloch
/s/ Rock B. Clum
----------------------------------------------------------
Name: Rock B. Clum
(SIGNATURE PAGE TO INVESTORS AGREEMENT)
18
/s/ James D. Durance
----------------------------------------------------------
Name: James D. Durance
/s/ Ita Shea Oglesby
----------------------------------------------------------
Name: Ita Shea Oglesby
/s/ Laurence H. Bloch
----------------------------------------------------------
Name: Laurence H. Bloch
/s/ Laurence H. Bloch
----------------------------------------------------------
Name: Laurence H. Bloch
/s/ Arthur Flick
----------------------------------------------------------
Name: Arthur Flick
/s/ Richard Dailey
----------------------------------------------------------
Name: Richard Dailey
/s/ Dennis Reinert
----------------------------------------------------------
Name: Dennis Reinert
/s/ Marybeth Brennan
----------------------------------------------------------
Name: Marybeth Brennan
/s/ Ricardo Puente
----------------------------------------------------------
Name: Ricardo Puente
/s/ Geri Reid Suster
----------------------------------------------------------
Name: Geri Reid Suster - Trustee: Bar John Suster III and
Geri Reid Suster Family Trust
/s/ Richard L. Larkin
----------------------------------------------------------
Name: Richard L. Larkin
/s/ Greg Hopwood
----------------------------------------------------------
Name: Greg Hopwood
/s/ Michael Bynum
----------------------------------------------------------
Name: Michael Bynum - Trustee of the Michael and
Valerie Bynum Living Trust
/s/ Billy J. Huddleston, Jr.
----------------------------------------------------------
Name: Billy J. Huddleston, Jr.
/s/ Cynthia Hardesty
----------------------------------------------------------
Name: Cynthia Hardesty
/s/ John K. Erickson
----------------------------------------------------------
Name: John K. Erickson
(SIGNATURE PAGE TO INVESTORS AGREEMENT)
19
/s/ Richard Beck
----------------------------------------------------------
Name: Richard Beck
/s/ Kim A. Kaznowski
----------------------------------------------------------
Name: Kim A. Kaznowski
/s/ Shari Godgart
----------------------------------------------------------
Name: Shari Godgart
/s/ Gary Freeman Nevins
----------------------------------------------------------
Name: Gary Freeman Nevins
/s/ Russell K. Martin
----------------------------------------------------------
Name: Russell K. Martin
/s/ Steve Sparks
----------------------------------------------------------
Name: Steve Sparks
/s/ Seth A. Flynn
----------------------------------------------------------
Name: Seth A. Flynn
/s/ Seth A. Flynn
----------------------------------------------------------
Name: Seth A. Flynn
/s/ Seth A. Flynn
----------------------------------------------------------
Name: Seth A. Flynn
/s/ Name Illegible
----------------------------------------------------------
Name: Name Illegible
/s/ Name Illegible
----------------------------------------------------------
Name: Name Illegible
/s/ Name Illegible
----------------------------------------------------------
Name: Name Illegible
/s/ Name Illegible
----------------------------------------------------------
Name: Name Illegible
/s/ Name Illegible
----------------------------------------------------------
Name: Name Illegible
/s/ Name Illegible
----------------------------------------------------------
Name: Name Illegible
(SIGNATURE PAGE TO INVESTORS AGREEMENT)
20
/s/ Scott Perper
----------------------------------------------------------
Name: Scott Perper
/s/ Scott A. Shoen
----------------------------------------------------------
Name: Scott A. Shoen
/s/ Scott A. Shoen
----------------------------------------------------------
Name: Scott A. Shoen
/s/ Scott A. Shoen
----------------------------------------------------------
Name: Scott A. Shoen
/s/ Gerald R. Wheeler
----------------------------------------------------------
Name: Gerald R. Wheeler
/s/ William H. Woolverton
----------------------------------------------------------
Name: William H. Woolverton
/s/ William H. Woolverton
----------------------------------------------------------
Name: William H. Woolverton
/s/ William H. Woolverton
----------------------------------------------------------
Name: William H. Woolverton
/s/ Thomas H. Lee
----------------------------------------------------------
Name: Thomas H. Lee
/s/ Thomas H. Lee
----------------------------------------------------------
Name: Thomas H. Lee
/s/ David V. Harkins
----------------------------------------------------------
Name: David V. Harkins
/s/ Sheryll J. Harkins
----------------------------------------------------------
Name: Sheryll J. Harkins
/s/ Thomas R. Shepherd
----------------------------------------------------------
Name: Thomas R. Shepherd
/s/ Scott A. Schoen
----------------------------------------------------------
Name: Scott A. Schoen
/s/ Scott A. Schoen
----------------------------------------------------------
Name: Scott A. Schoen
/s/ C. Hunter Boll
----------------------------------------------------------
Name: C. Hunter Boll
(SIGNATURE PAGE TO INVESTORS AGREEMENT)
21
/s/ Anthony J. DiNovi
----------------------------------------------------------
Name: Anthony J. DiNovi
/s/ Anthony J. DiNovi
----------------------------------------------------------
Name: Anthony J. DiNovi
/s/ Thomas M. Hagerty
----------------------------------------------------------
Name: Thomas M. Hagerty
/s/ Warren C. Smith
----------------------------------------------------------
Name: Warren C. Smith
/s/ Warren C. Smith
----------------------------------------------------------
Name: Warren C. Smith
/s/ Seth W. Lawry
----------------------------------------------------------
Name: Seth W. Lawry
/s/ Joseph J. Incandela
----------------------------------------------------------
Name: Joseph J. Incandela
/s/ Kent R. Weldon
----------------------------------------------------------
Name: Kent R. Weldon
/s/ Terrence M. Mullen
----------------------------------------------------------
Name: Terrence M. Mullen
/s/ Todd M. Abbrecht
----------------------------------------------------------
Name: Todd M. Abbrecht
/s/ Barbara F. Lee
----------------------------------------------------------
Name: Barbara F. Lee
(SIGNATURE PAGE TO INVESTORS AGREEMENT)