Exhibit 9.2
INSTITUTIONAL SHAREHOLDERS' AGREEMENT
AGREEMENT (this "AGREEMENT"), dated as of July 31, 2002, by and
among WH HOLDINGS (CAYMAN ISLANDS) LTD. (the "COMPANY"), a Cayman Islands
company, WHITNEY V, L.P., a Delaware limited partnership, WHITNEY STRATEGIC
PARTNERS V, L.P., a Delaware limited partnership (together, "WHITNEY V"), and
CCG INVESTMENTS (BVI), L.P., a British Virgin Islands limited partnership, CCG
ASSOCIATES-QP, LLC, a Delaware limited liability company, CCG ASSOCIATES-AI,
LLC, a Delaware limited liability company, CCG INVESTMENT FUND-AI, LP, a
Delaware limited partnership, CCG AV, LLC - SERIES C, a Delaware limited
liability company, CCG AV, LLC - SERIES E, a Delaware limited liability company
(collectively, "GOLDEN GATE FUND"), WH Investments Ltd., a Cayman Islands
company ("INVESTMENTS"), and certain other persons who may, from time to time,
become party to this Agreement.
W I T N E S S E T H :
WHEREAS, pursuant to the terms of the Share Purchase Agreement (the
"PURCHASE AGREEMENT"), dated as of the date hereof, by and among the Company,
Investments, Whitney V and Golden Gate Fund, (A) Whitney V will purchase from
the Company certain 12% Series A Cumulative Convertible Preferred Shares, $0.001
par value per share, of the Company (the "PREFERRED SHARES"), (B) Golden Gate
Fund will purchase from the Company certain Preferred Shares and (c) Investments
will purchase from the Company certain Preferred Shares;
WHEREAS, as a condition precedent to consummation of the
transactions in the Purchase Agreement, each of Whitney V, Golden Gate Fund and
Investments are required to duly execute and deliver this Agreement; and
WHEREAS, each of the Whitney V, Golden Gate Fund and Investments
believe that it is in the best interests of the Company and Whitney V, Golden
Gate Fund and Investments that provision be made for the continuity and
stability of the business and policies of the Company, and, accordingly, desire
to make certain arrangements among themselves with respect to the election of
directors of the Company and with respect to certain other matters.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby agree
as follows:
SECTION 1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings, and all capitalized terms used herein which are
not otherwise defined shall have the meaning assigned thereto in the Purchase
Agreement:
(a) "AFFILIATE" shall mean (i) in the case of an entity, any Person
who or which, directly or indirectly, through one or more intermediaries,
controls or is controlled by, or is under common control with, any specified
Person and shall include the partners, members or shareholders of such Person
for the purposes of any distribution of Shares by an Institution or (ii)
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in the case of an individual, such individual's spouse, children, grandchildren
or parents or a trust primarily for the benefit of any of the foregoing.
(b) "ARTICLES OF ASSOCIATION" shall mean the Amended and Restated
Memorandum and Articles of Association of the Company, as amended, as in effect
from time to time.
(c) "BONA FIDE PURCHASER" shall mean any Person (other than a
Selling Shareholder's Affiliates) who or which has delivered a good faith
written offer to purchase all or any portion of such Shareholder's Shares and
shall agree to be bound by and to comply with all applicable provisions of this
Agreement and the Shareholders' Agreement.
(d) "COMMON SHARES" shall mean, collectively, the common shares,
$0.001 par value per share, of the Company and any class or series of common
shares of the Company authorized after the date hereof, or any other class or
series of shares resulting from successive changes or reclassifications of any
class or series of common shares of the Company.
(e) "COST" of a Share shall mean the U.S. dollar amount paid by a
Shareholder for such Share.
(f) "DISPOSE" or "DISPOSITION" (and any derivatives thereof) shall
mean (i) a voluntary or involuntary sale, assignment, mortgage, grant, pledge,
hypothecation, exchange, transfer, conveyance or other disposition of a
Shareholder's Shares, and (ii) any agreement, contract or commitment to do any
of the foregoing.
(g) "GOLDEN GATE" shall mean Golden Gate Private Equity, Inc.
(h) "INITIAL PUBLIC OFFERING" shall mean the underwritten public
offering by the Company or any of its Subsidiaries of its common shares pursuant
to a registration statement (other than a registration statement relating solely
to an employee benefit plan or transaction covered by Rule 145 of the Securities
Act) that has been filed under the Securities Act and declared effective by the
Commission; provided, however, that for this purpose any offering under Rule
144A under the Securities Act or any similar rule or regulation promulgated
under the Securities Act shall not be deemed to be an Initial Public Offering.
(i) "INSTITUTION" shall mean (i) Whitney V and its Affiliates, (ii)
Golden Gate Fund and its Affiliates and (iii) any Qualified Transferee of the
foregoing Persons.
(j) "OTHER SHAREHOLDERS" shall have the meaning given to such term
in the Shareholders' Agreement and shall include any transferee of Whitney V,
Golden Gate Fund or their Affiliates who are not Qualified Transferees.
(k) "PERMITTED TRANSFEREES" shall mean (i) with respect to Whitney
V, (A) Whitney and its Affiliates with respect to a transfer to such Persons and
the limited partners, members or shareholders in such entities if Shares are
distributed to such Persons, and (B) Golden Gate, Golden Gate Fund and their
Affiliates, (ii) with respect to Golden Gate Fund, (A) Golden Gate and its
Affiliates with respect to a transfer to such Persons and the limited
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partners, members or shareholders in such entities if Shares are distributed to
such Persons, and (B) Whitney, Whitney V and their Affiliates, (iii) with
respect to Qualified Transferees, (A) Whitney, Whitney V and their Affiliates
and (B) Golden Gate, Golden Gate Fund and their Affiliates, and (iv) with
respect to Investments, (A) Whitney, Whitney V and their Affiliates, (B) Golden
Gate, Golden Gate Fund and their Affiliates and (C) the Company; provided,
however, that in each case such Person shall agree in writing with the parties
hereto to be bound by and to comply with all applicable provisions of this
Agreement.
(l) "PERSON" shall mean any individual, partnership, corporation,
limited liability company, joint venture, trust, firm, association,
unincorporated organization or other entity.
(m) "PURCHASING SHAREHOLDERS" shall mean Institutions where
Institutions may elect to exercise rights of first refusal under Section 3
hereof. However, if Institutions are Selling Shareholders, then such Selling
Shareholder shall not be considered a Purchasing Shareholder.
(n) "QUALIFIED TRANSFEREE" shall mean a transferee of Whitney V,
Golden Gate Fund or their Affiliates who holds 5% or more of the Preferred
Shares, provided, however, that such Person shall agree in writing with the
parties hereto to be bound by and to comply with all applicable provisions of
this Agreement and the Shareholders' Agreement.
(o) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, or any similar Federal statute, and the rules and regulations
thereunder, all as the same shall be in effect at the time.
(p) "SHARES" shall mean, with respect to any Shareholder, (i) the
share capital of the Company, including, without limitation, Common Shares and
Preferred Shares, held at any time by such Shareholder, (ii) any option,
warrant, or other right held at any time by any Shareholder, exercisable for
share capital of the Company, and (iii) any security, including, without
limitation, Preferred Shares, held at any time by such Shareholder, convertible
or exchangeable for share capital of the Company.
(q) "SHAREHOLDER" shall mean each Institution and any other Person
who agrees in writing to be bound by and to comply with all applicable
provisions of this Agreement and the Shareholders' Agreement and all Permitted
Transferees thereof.
(r) "SHAREHOLDERS' AGREEMENT" shall mean the Shareholders' Agreement
dated July 31, 2002 among the Company, the Institutions and certain members of
management and distributors of Herbalife International, Inc. party to such
agreement.
(s) "SUBSIDIARIES" shall mean, with respect to any Person, a
corporation or other entity of which 50% or more of the voting power of the
voting equity securities or equity interest is owned, directly or indirectly, by
such Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries of
the Company or to Subsidiaries thereof.
(t) "WHITNEY" shall mean Whitney & Co., LLC.
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SECTION 2. TRANSFER OF SHARES. An Institution may effect a Disposition of
any of his, her or its Shares, subject to rights of first refusal and co-sale
and other rights provided for in this Agreement, so long as such Disposition
would not cause the Company to be required to register its Shares under Section
12(g)(1) of the Securities Exchange Act of 1934, as amended. Any purported
Disposition in violation of this Agreement shall be null and void ab initio, and
the Company shall not recognize any such Disposition or accord to any such
purported transferee any rights as a Shareholder.
SECTION 3. RIGHT OF FIRST REFUSAL; RIGHT OF CO-SALE.
(a) If any Institution shall desire at any time to effect a
Disposition of Shares ("OFFERED SHARES") and shall receive a purchase offer
therefor or the terms of a potential purchase offer therefor from a Bona Fide
Purchaser (such offers being hereinafter referred to as a "PURCHASE OFFER"),
then such Institution ("SELLING SHAREHOLDER") shall promptly notify the Company
and the Purchasing Shareholders of the terms and conditions of such Purchase
Offer (which notice shall constitute notice of the Purchase Offer for purposes
of Section 3(b) and 3(c) below and shall specify the circumstances under which a
Co-Sale Right may be exercised); provided, however, (i) that this Section 3
shall not apply to any Disposition by a Selling Shareholder to its Permitted
Transferee, (ii) the Co-Sale Rights set forth in Section 3(c) shall only apply
to a Disposition or portion of a Disposition by (A) Whitney V only to the extent
that after giving effect to such Disposition the number of Preferred Shares
(and/or the number of Common Shares into which such Preferred Shares have been
converted) held by Whitney V has an aggregate cost to Whitney V of less than
$38.2 million and (B) Golden Gate Fund only to the extent that after giving
effect to such Disposition the number of Preferred Shares (and/or the number of
Common Shares into which such Preferred Shares have been converted) held by
Golden Gate Fund has an aggregate Cost to Golden Gate Fund of less than U.S.
$23.4 million and (iii) the right of first refusal in Section 3(b) and the
Co-Sale Rights in Section 3(c) shall not apply to a Disposition or portion of a
Disposition by Whitney V or Golden Gate Fund subject to the Syndication Right in
Section 4 hereof.
(b) Upon receipt of such notice of the Purchase Offer, each
Purchasing Shareholder shall have the right to elect to purchase, at the price
and on the terms stated in such notice, a number of the Offered Shares subject
to the Purchase Offer equal to the product obtained by multiplying (i) the
aggregate number of Offered Shares covered by the Purchase Offer by (ii) a
fraction the numerator of which is the number of Common Shares (calculated on an
as-if converted basis) at the time owned by such Purchasing Shareholder, and the
denominator of which is the aggregate number of Common Shares (calculated on an
as-if converted basis) owned by all Purchasing Shareholders. Such election is to
be made by written notice ("NOTICE OF ELECTION") to the Selling Shareholder and
to the Company no later than 30 days after receipt by such Purchasing
Shareholder of the notice of a Purchase Offer (the "ACCEPTANCE PERIOD"). Each
Purchasing Shareholder who elects to exercise its rights under this Section 3
("ELECTING SHAREHOLDER") shall also have the option, exercisable by so
specifying in the Notice of Election, to purchase on a pro rata basis similar to
that described above (with respect to all such Purchasing Shareholders electing
to purchase such remaining Offered Shares) any remaining Offered Shares covered
by the Purchase Offer not purchased by the other Purchasing Shareholders, in
which case the Shareholders exercising such further option shall be deemed to
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have elected to purchase such remaining Offered Shares on such pro rata basis,
up to the aggregate number of Offered Shares which such Electing Shareholders
shall have specified until either (A) no Electing Shareholder shall have elected
to purchase any further amount of the Offered Shares or (B) all the Offered
Shares have been purchased by the Electing Shareholders.
(c) If effective acceptances shall not have been received pursuant
to Section 3(b) above in respect of all of the Offered Shares subject to the
Purchase Offer, then the Selling Shareholder may, at his, her or its election,
either (i) sell to the Electing Shareholders pursuant to their elections and
sell any remaining Offered Shares subject to the Purchase Offer to the Bona Fide
Purchaser, or (ii) rescind the notice of the Purchase Offer, which rescission
shall be effected by notice in writing delivered to the Electing Shareholders
and to the Company within 10 days after expiration of the Acceptance Period, and
keep all, but not less than all, of the Offered Shares subject to the Purchase
Offer. In the event that the Selling Shareholder elects to sell any Offered
Shares pursuant to the Purchase Offer, pursuant to clause (i) of this (c), the
Bona Fide Purchaser and the Electing Shareholders must purchase such Offered
Shares no more than 60 days after the end of the Acceptance Period strictly in
accordance with the terms and conditions of the Purchase Offer; provided,
however, that, in the event that the Selling Shareholder shall so elect to sell
Offered Shares to the Bona Fide Purchaser, such Person, as a condition precedent
to the purchase of the Offered Shares, or any part thereof, shall subscribe to
this Agreement and agree to be bound by all of the terms and conditions hereof,
if not already bound. In the event that the Selling Shareholder shall so elect
to sell Offered Shares subject to the Purchase Offer to the Bona Fide Purchaser
or Electing Shareholders pursuant to clause (i) of this Section 3(c), no such
Disposition shall be made unless and until each Purchasing Shareholder who is
not an Electing Shareholder (the "ELIGIBLE CO-SALE SHAREHOLDER") shall have been
afforded the right (the "CO-SALE RIGHT"), exercisable by such Eligible Co-Sale
Shareholder upon written notice to the Company and the Selling Shareholder
during the Acceptance Period, to participate in the sale of Offered Shares to
the Bona Fide Purchaser at the same time and on the same terms and conditions
under which the Selling Shareholder will sell the Selling Shareholder's Offered
Shares to the Bona Fide Purchaser. Each such Eligible Co-Sale Shareholder may
sell all or any part of that number of Shares held by such Eligible Co-Sale
Shareholder equal to the product obtained by multiplying (x) the aggregate
number of Offered Shares covered by the Purchase Offer to be sold to the Bona
Fide Purchaser by (y) a fraction the numerator of which is the number of Common
Shares (calculated on an as-if converted basis) at the time owned by such
Eligible Co-Sale Shareholder and the denominator of which is the aggregate
number of Common Shares (calculated on an as-if converted basis) owned by all
Eligible Co-Sale Shareholders exercising their Co-Sale Right plus the number of
Common Shares (calculated on an as-if converted basis) then owned by the Selling
Shareholder plus the number of Common Shares (calculated on an as-if converted
basis) then owned by all Other Shareholders exercising Tag-Along Rights pursuant
to Section 4 of the Shareholders' Agreement. To the extent that Eligible Co-Sale
Shareholders participate in the subject sale of Offered Shares hereunder to the
Bona Fide Purchaser, the Selling Shareholder shall be required to reduce the
number of its Shares included in the Offered Shares to be sold to the Bona Fide
Purchaser.
(d) If the Company so requests, each Eligible Co-Sale Shareholder
exercising his, her or its Co-Sale Right shall deliver to the Company, as agent
for such Eligible Co-Sale Shareholder, for transfer to the Bona Fide Purchaser
one or more certificates, properly endorsed
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for transfer, which represent the number of Shares of which such Eligible
Co-Sale Shareholder is entitled to and elects to Dispose pursuant to this
Section 3. No Disposition of such Shares shall be made on terms and conditions,
including the form of consideration, different from those contained in the
Purchase Offer unless the Selling Shareholder re-offers the Offered Shares
subject to the Purchase Offer to the Shareholders in accordance with this
Section 3.
(e) The shares represented by the stock certificate or certificates
delivered by the Eligible Co-Sale Shareholders to the Company pursuant to
Section 3(d) shall be transferred by the Company to the Bona Fide Purchaser in
consummation of the Disposition of the Shares pursuant to the terms and
conditions specified in Section 3(a) and the Company shall promptly thereafter
remit to each Eligible Co-Sale Shareholder that portion of the Disposition
proceeds to which such Eligible Co-Sale Shareholder is entitled by reason of
his, her or its participation in such Disposition.
(f) In the event that a Selling Shareholder shall not have Disposed
of all of his, her or its Offered Shares subject to a Purchase Offer within 120
days after the date of the notice given pursuant to Section 3(a), such Selling
Shareholder shall not thereafter Dispose of any Shares pursuant to the Purchase
Offer or otherwise without first reoffering such Shares to the Purchasing
Shareholders in the manner set forth in Section 3 hereof.
(g) Notwithstanding anything contained in this Section 3 or any
notice given hereunder, the provisions of this Section 3 shall be suspended
immediately upon the occurrence of any event within the scope of Section 5 of
the Shareholders' Agreement.
SECTION 4. SYNDICATION RIGHTS.
(a) If Whitney V or Golden Gate Fund shall desire within 12 months
of the date hereof to effect a Disposition of Shares ("SYNDICATED SHARES") and
shall receive a purchase offer therefor or the terms of a potential purchase
offer therefor from a Bona Fide Purchaser (such offers being hereinafter
referred to as a "SYNDICATION OFFER"), then such selling Shareholder (the
"SELLING FUND") shall promptly notify ("SYNDICATION Notice") the Eligible Fund
(as defined below) of the terms and conditions of such Syndication Offer. No
shares shall be disposed of pursuant to this Section 4 to the extent clause (ii)
of Section 3(a) is applicable to such Disposition. For purposes of this Section
4: (i) "ELIGIBLE FUND" shall mean (A) Gold Gate Fund, where Whitney V is the
Selling Fund, and (B) Whitney V, where Golden Gate Fund is the Selling Fund; and
(ii) "BONA FIDE Purchaser" shall not include any employee or distributor of the
Company or its Subsidiaries, any Family Member (as defined in the Shareholders'
Agreement) of such employee or distributor or any other Person in which an
employee, distributor or Family Member has an interest.
(b) No Disposition subject to the requirements of this Section 4
shall be made to the Bona Fide Purchaser unless and until the Eligible Fund
shall have been afforded the right (the "SYNDICATION RIGHT"), exercisable upon
written notice to the Selling Fund within 10 days after receipt of the
Syndication Notice, to participate in the sale of Shares at the same time and on
the same terms and conditions under which the Selling Fund will sell the
Syndicated Shares. The Eligible Fund may sell all or any part of that number of
Shares held by the Eligible Fund equal to
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the product obtained by multiplying (x) the aggregate number of Syndicated
Shares covered by the Syndication Offer by (y) a fraction the numerator of which
is the number of Common Shares (calculated on an as-if converted basis) at the
time owned by the Eligible Fund and its Affiliates and the denominator of which
is the aggregate number of Common Shares (calculated on an as-if converted
basis) owned by Whitney V and Golden Gate Fund and their Affiliates. For
purposes of such calculation, Investments shall not be deemed to be an Affiliate
of Whitney V or Golden Gate Fund. To the extent that Eligible Funds participate
in the subject sale of Syndicated Shares hereunder, the Selling Fund shall be
required to reduce the number of its Shares included in Syndicated Shares.
(c) If the Selling Fund so requests, the Eligible Fund exercising
its Syndication Right shall deliver to the Selling Fund, as agent for the
Eligible Fund, for transfer to the Bona Fide Purchaser one or more certificates,
properly endorsed for transfer, which represent the number of Shares of which
the Eligible Fund is entitled to and elects to Dispose pursuant to this Section
4. No Disposition of such Shares shall be made on terms and conditions,
including the form of consideration, different from those contained in the
Syndication Offer unless the Selling Fund re-offers the Syndicated Shares
subject to the Syndication Offer to the Shareholders in accordance with this
Section 4.
(d) The Shares represented by the share certificate or certificates
delivered by the Eligible Fund to the Selling Fund pursuant to Section 4(c)
shall be transferred by the Selling Fund to the Bona Fide Purchaser in
consummation of the Disposition of the Shares pursuant to the terms and
conditions specified in Section 4(a) and the Selling Fund shall promptly
thereafter remit to the Eligible Fund that portion of the Disposition proceeds
to which the Eligible Fund is entitled by reason of its participation in such
Disposition.
SECTION 5. REPURCHASE RIGHTS UPON CESSATION OF EMPLOYMENT OR DISTRIBUTOR
RELATIONSHIP.
Any right to repurchase Shares by the Institutional Shareholders (as
defined in the Shareholders' Agreement) pursuant to Section 6 of the
Shareholders' Agreement shall be apportioned pro rata among (based on the number
of Common Shares held, on an as-if converted basis, as of the date of
determination) the Institutions who are Institutional Shareholders under the
Shareholders' Agreement. If any such Institution declines to purchase its pro
rata portion, then such portion shall be divided, pro rata, among the other such
Institutions.
SECTION 6. ELECTION OF DIRECTORS.
If Whitney V or Golden Gate Fund ceases to be an Institutional
Shareholder (as defined in the Shareholder's Agreement) and may no longer
designate a nominee to serve as a director on the Board of Directors of the
Company pursuant to Section 7 of the Shareholders' Agreement, then with respect
to the designation of replacements for the directors previously nominated by
Whitney V or Golden Gate Fund, the Institutions agree to vote the Shares owned
of record or beneficially by them to elect as replacement for the directors
previously nominated by Whitney V or Golden Gate Fund at least one nominee from
Whitney V, if Whitney ceases to be an Institutional Shareholder, or at least one
nominee from Golden Gate Fund, if Golden Gate
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Fund ceases to be an Institutional Shareholder; provided, however, if Whitney V
or Golden Gate Fund cease to be a Shareholder, Whitney V or Golden Gate Fund
will not be entitled to nominate a director.
SECTION 7. DURATION OF AGREEMENT. The rights and obligations of each
Shareholder under this Agreement shall terminate as to such Shareholder upon the
transfer of all Shares owned by such Shareholder in accordance with this
Agreement. Upon consummation of an Initial Public Offering, the rights and
obligations of each Shareholder under this Agreement shall terminate.
SECTION 8. REPRESENTATIONS AND WARRANTIES. Each Shareholder represents and
warrants to the other Shareholders as follows:
(a) The execution, delivery and performance of this Agreement by
such Shareholder will not violate any provision of law, any order of any court
or other agency of government, or any provision of any indenture, agreement or
other instrument to which such Shareholder or any of his, her or its properties
or assets is bound, or conflict with, result in a breach of or constitute (with
due notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any of the properties
or assets of such Shareholder.
(b) This Agreement has been duly executed and delivered by such
Shareholder and constitutes the legal, valid and binding obligation of such
Shareholder, enforceable against such Shareholder in accordance with its terms
except as enforceability may be limited by applicable bankruptcy, insolvency, or
other similar laws affecting the enforceability of creditors' rights generally
and by general principles of equity relating to enforceability.
(c) The Shares of such Shareholder listed on the Schedule of
Purchasers to the Purchase Agreement hereto constitute all the shares of share
capital of the Company owned by such Shareholder and, except as set forth in the
Purchase Agreement, such Shareholder does not have any right or obligation to
acquire any additional shares of share capital of the Company.
(d) The representations and warranties contained in this Section 8
shall survive the execution and delivery of this Agreement.
SECTION 9. GOVERNING LAW. This agreement shall be governed by, construed
in accordance with, and enforced under, the law of the State of New York
applicable to agreements or instruments entered into and performed entirely
within such state.
SECTION 10. JURISDICTION.
(a) Each party to this agreement hereby irrevocably agrees that the
any legal action or proceeding arising out of or relating to this Agreement, the
Shares, or any agreements or transactions contemplated hereby may be brought in
the courts of the State of New York or of the United States of America for the
Southern District of New York and hereby expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and
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expressly waives any claim of improper venue and any claim that the such courts
are an inconvenient forum. Each party hereby irrevocably consents to the service
of process of any of the aforementioned courts in any such suit, action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to its address set forth in Section 12 hereof, such service to
become effective 10 days after such mailing.
(b) Each of the Company and the other Shareholders hereby waives its
right to a jury trial with respect to any action or claim arising out of any
dispute in connection with this Agreement or the Shares, any rights or
obligations hereunder or the performance of such rights and obligations. Except
as prohibited by law, each of the Company and each of the other Shareholders
hereby waives any right it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages.
SECTION 11. BENEFITS OF AGREEMENT. This Agreement shall be binding upon
and inure to the benefit of the parties and their respective successors and
assigns, legal representatives and heirs. Any purported Disposition of the
Shares in violation of the provisions of this Agreement shall be null and void
ab initio.
SECTION 12. NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier
(with receipt confirmed), courier service or personal delivery:
(a) if to the Company:
WH Holdings (Cayman Islands) Ltd.
c/o M&C Corporate Services Ltd.
P.O. Box 309GT
Ugland House
South Church Street
Georgetown, Grand Cayman
Cayman Islands
Telecopier No.: (345) 949-8080
Attention: Alasdair Robertson
(b) if to Whitney V:
Whitney V, L.P.
177 Broad Street
Stamford, Connecticut 06901
Telecopier No.: (203) 975-1422
Attention: Daniel J. O'Brien
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with a copy to:
Chadbourne & Parke LLP
30 Rockefeller Plaza
New York, NY 10112
Telecopier No.: (212) 541-5369
Attention: Thomas C. Meriam
(c) if to Golden Gate Fund
c/o Golden Gate Private Equity, Inc.
One Embarcadero Center
Suite 3300
San Francisco, CA 94111
Telecopier No.: (415) 627-4501
Attention: Jesse Rogers
with a copy to:
Kirkland & Ellis
200 E. Randolph Drive
Chicago, IL 60601
Telecopier No.: (312) 861-2200
Attention: Gary M. Holihan
or to such other address or addresses as shall have been furnished in writing to
the other parties hereto. Each Shareholder agrees, at all times, to provide the
Company with an address for notices hereunder.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial overnight courier service; if mailed, five
Business Days (as defined in the Purchase Agreement) after being deposited in
the mail, postage prepaid; or if telecopied, when receipt is acknowledged.
SECTION 13. SUBSIDIARY COMPLIANCE. The Company hereby agrees that it shall
exercise all voting and other rights and powers available to it to cause each of
its Subsidiaries to comply with any and all limitations and restrictions
contained in the Articles of Association of the Company relating to the conduct
of its business and actions of its Board of Directors.
SECTION 14. MODIFICATION. Except as otherwise provided herein, neither
this Agreement nor any provision hereof shall be modified, changed, discharged
or terminated except by the agreement of the Institutions holding 80% of all
Shares (on an as-if converted basis) held by all Institutions; provided,
however, that no modification or amendment shall be effective to reduce the
requirements for the consent of the holders of which is required under this
Section 14.
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SECTION 15. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the undersigned with respect to the subject matter contained
herein and supersedes any and all prior agreements or understandings, oral or
written, among any or all of the undersigned relating to such subject matter.
SECTION 16. SIGNATURES; COUNTERPARTS. Telefacsimile transmissions of any
executed original document and/or retransmission of any executed telefacsimile
transmission shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties hereto shall
confirm telefacsimile transmissions by executing duplicate original documents
and delivering the same to the requesting party or parties. This Agreement may
be executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
SECTION 17. SEVERABILITY. If any one or more of the provisions contained
in this Agreement, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions of this Agreement. The parties hereto
further agree to replace such invalid, illegal or unenforceable provision of
this Agreement with a valid, legal and enforceable provision that will achieve,
to the extent possible, the economic, business and other purposes of such
invalid, illegal or unenforceable provision.
SECTION 18. INCONSISTENCY. To the extent there is any inconsistency
between this Agreement and the Articles of Association then this Agreement shall
control and the parties hereto shall agree to amend the Articles of Association
only to the extent necessary to eliminate such inconsistency.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
on the date first above written.
WH HOLDINGS (CAYMAN ISLANDS) LTD.
By: /s/ Steven E. Rodgers
------------------------------------
Name: Steven E. Rodgers
Title: President
WH INVESTMENTS LTD.
By: /s/ Steven E. Rodgers
------------------------------------
Name: Steven E. Rodgers
Title: President
WHITNEY V, L.P.
By: Whitney Equity Partners V, LLC,
Its General Partner
By: /s/ Daniel J. O'Brien
------------------------------------
Name: Daniel J. O'Brien
A Managing Member
WHITNEY STRATEGIC PARTNERS V, L.P.
By: /s/ Daniel J. O'Brien
------------------------------------
Name: Daniel J. O'Brien
Title: Managing Member
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CCG INVESTMENTS (BVI), L.P.
CCG ASSOCIATES - QP, LLC
CCG ASSOCIATES - AI, LLC
CCG INVESTMENT FUND - AI, LP
CCG AV, LLC - SERIES C
CCG AV, LLC - SERIES E
By: Golden Gate Capital Management, L.L.C.
Its: Authorized Representative
By: /s/ Jesse Rogers
--------------------------------------
Name: Jesse Rogers
Its: Managing Director
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