EXHIBIT 4.6
FORM OF
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of , 2003
(this "Agreement"), among (i) Volume Services America Holdings, Inc., a Delaware
corporation (the "Company"), (ii) BCP Volume L.P., a Delaware limited
partnership ("BCP Volume") and BCP Offshore Volume L.P., a Cayman Islands
exempted limited partnership, ("BOCP Volume," and together with BCP Volume,
"Blackstone"), (iii) VSI Management Direct L.P., a Delaware limited partnership
("Management Direct," and together with Blackstone, the "Blackstone Group"),
(iv) General Electric Capital Corporation ("GECC") and (v) Recreational Services
L.L.C., a Delaware limited liability company ("GE LLC," and together with the
Blackstone Group, the "Investors").
BACKGROUND
1. Prior to the initial public offering described below, the
Investors are the beneficial holders of all the outstanding shares of common
stock of the Company, par value $0.01 per share ("Common Stock," including any
securities issued or distributed in respect thereof, or in substitution
therefor, in connection with any stock split, dividend, spin-off or combination,
or any reclassification, recapitalization, merger, consolidation, exchange or
other similar reorganization or business combination).
2. The Company desires to conduct an initial public offering of its
Income Deposit Securities ("IDSs"), representing shares of Common Stock and an
aggregate principal amount of its subordinated notes ("Subordinated Notes")
pursuant to a registration statement under the Securities Act of 1933, as
amended (together with the rules and regulations of the SEC promulgated
thereunder) in the United States and pursuant to a long form prospectus or any
amendment or supplement thereto, in the English and French languages, under
applicable securities laws in all the provinces of Canada (the "IPO").
3. The Company shall (i) immediately prior to the IPO, effect a
stock split (the "Stock Split") of shares of Common Stock for each share of
Common Stock outstanding prior to such Stock Split, so that the Company's
outstanding Common Stock shall total shares as of such date and (ii) issue
shares of Common Stock underlying the IDSs in respect of the IPO.
4. The Company, certain Investors and GECC are parties to the
Amended and Restated Stockholders' Agreement, dated as of August 24, 1998, as
amended (the "Existing Stockholders Agreement"), which agreement shall be
replaced in its entirety by this Agreement upon completion of the IPO.
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5. Upon completion of the IPO, the Company shall repurchase from the
Investors shares of Common Stock and the Investors will retain
shares of Common Stock.
6. Pursuant to the underwriting agreement among the Company and CIBC
World Markets Corp. and any other underwriters thereto (collectively, the
"Underwriters"), dated , 2003 (the "Underwriting Agreement"), the Company has
granted the Underwriters an option to purchase up to an additional IDSs
(the "Over-allotment Option").
7. If the Underwriters exercise their Over-allotment Option, the
Company shall repurchase a portion of the remaining shares of Common Stock held
by the Investors.
8. Upon completion of the IPO, the Company, BCP Volume, BOCP Volume,
Management Direct, GE LLC and certain members of management shall enter into a
Registration Rights Agreement (the "Registration Rights Agreement") with respect
to their shares of Common Stock and any IDSs and Subordinated Notes that the
parties to such agreement may hold.
NOW THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
ARTICLE I
RESTATEMENT, REPURCHASE AND EXCHANGE
1.1 AMENDMENT AND RESTATEMENT OF EXISTING STOCKHOLDERS' AGREEMENT;
APPROVALS OF IPO TRANSACTIONS.
(a) Each party hereto agrees that, upon completion of the IPO, (i) the
Existing Stockholders' Agreement shall be amended and restated and replaced in
its entirety with this Agreement and (ii) the terms of the Existing
Stockholders' Agreement shall cease to be of any effect.
(b) Each party hereto consents and agrees to take all action necessary for
the completion of the IPO and the related transactions, including, without
limitation, the execution and delivery of this Agreement and the Registration
Rights Agreement and the transactions contemplated hereby and thereby, and
consents to the Company entering into this Agreement, the Underwriting Agreement
and the Registration Rights Agreement and the transactions contemplated hereby
and thereby.
(c) Each party hereto consents to the restatement of the certificate of
incorporation of the Company and to the amendment and restatement of the by-laws
of the Company, substantially in the forms as filed by the Company as exhibits
to the registration statement on Form S-1.
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1.2 REPURCHASE OF COMMON STOCK UPON IPO. Upon consummation of the IPO and
in consideration for the payment by the Company of $ , at a price equal to
$ per share of Common Stock, and the covenants and agreements herein
contained, the parties hereto do hereby agree that the shares of Common Stock
held by BCP Volume, BOCP Volume, Management Direct and GE LLC will be
repurchased by the Company in the amounts described below and each of BCP
Volume, BOCP Volume, Management Direct and GE LLC does hereby agree to deliver
and duly transfer, or cause to be duly delivered and transferred, to the
Company, certificates representing the number of shares of Common Stock held by
each party in the amounts described below, free and clear of all liens,
encumbrances and adverse claims:
Investor Shares of Common Stock
-------- ----------------------
BCP Volume:
BOCP Volume:
Management Direct:
GE LLC:
1.3 REPURCHASE OF COMMON STOCK UPON EXERCISE OF OVER-ALLOTMENT Option.
Upon exercise by the Underwriters of the Over-allotment Option and in
consideration for the payment by the Company at a price equal to $ per share
of Common Stock, and the covenants and agreements herein contained, the parties
hereto do hereby agree that the shares of Common Stock held by BCP Volume, BOCP
Volume, Management Direct and GE LLC in the Company shall be repurchased by the
Company and each of BCP Volume, BOCP Volume, Management Direct and GE LLC does
hereby agree, upon such exercise of the Over-allotment Option, to deliver and
duly transfer, or cause to be duly delivered and transferred, to the Company,
certificates representing the number of shares of Common Stock held by each
party in the amounts described below, free and clear of all liens, encumbrances
and adverse claims:
Investor Maximum Number of Shares of Common Stock
-------- ----------------------------------------
Assuming Exercise of Over-Allotment Option in Full
--------------------------------------------------
BCP Volume:
BOCP Volume:
Management Direct:
GE LLC:
Upon any partial exercise of the Over-Allotment Option, BCP Volume, BOCP
Volume, Management Direct and GE LLC shall sell, and the Company shall purchase,
such pro rata number of shares of Common Stock of each such Investor as will be
purchased by the total proceeds received by the Company in such partial exercise
of the Over-Allotment Option.
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1.4 TRANSFEREE EXCHANGE; LEGENDS. (a) With respect to any shares of Common
Stock (other than shares subject to repurchase) held by the Blackstone Group or
GE LLC, upon any sale of the shares of Common Stock (other than shares subject
to repurchase) held by the Blackstone Group or GE LLC, such parties agree with
the Company that at the option of the selling party, upon prior written notice
to the Company, the Company shall exchange with the transferee in such sale a
portion of the shares of Common Stock for an amount of Subordinated Notes such
that the number of shares of Common Stock and amount of Subordinated Notes
received by the transferee of such shares of Common Stock shall make an integral
whole number of IDSs, with the initial exchange rate being one share of Common
Stock per $ aggregate principal amount of Subordinated Notes (such exchange
rate subject to customary adjustment for adjustments specified in the definition
of "Common Stock" set forth above). For the purposes of this Section 1.4(a), if
the transferee receives such shares of Common Stock in a distribution in kind
from any member of the Blackstone Group or GE LLC, the Company agrees that the
transferee may, at its option, not require the Company to exchange a portion of
such shares of Common Stock for Subordinated Notes, but rather, at such
transferee's option, have such exchange occur upon the subsequent sale to
another transferee.
The parties hereto agree that, prior to any sale of shares of Common Stock
in which there will be an exchange of a portion of such shares of Common Stock
for an amount of Subordinated Notes pursuant to this Section 1.4(a), the
following conditions must be met: (i) such sale and exchange shall comply with
applicable laws, including, without limitation, securities laws, laws relating
to the redemption of common stock and laws relating to the issuance of debt,
(ii) such sale and exchange shall occur pursuant to an effective registration
statement in the United States and a receipted prospectus for all the provinces
of Canada, (iii) such sale and exchange will not conflict with or cause a
default under any material financing agreement, (iv) such sale and exchange
shall not cause a mandatory suspension of dividends or deferral of interest
under any material financing agreement as of the measurement date immediately
following the proposed sale and exchange date, (v) the selling party shall have
given the Company at least 30 but not more than 60 days advance notice of its
desire to effect such sale and exchange and (vi) on or prior to such sale and
exchange, for so long as the Credit Agreement, dated , 2003, among the
Company, Volume Services America, Inc., the guarantor parties thereto, ,
as Administrative Agent and the lenders parties thereto (the "Credit
Agreement"), remains outstanding, the selling party shall pay to the Company
from the proceeds of such sale an amount equal to five months interest on the
aggregate principal amount of the Subordinated Notes that the Company has issued
in such exchange (unless such amounts have been otherwise paid by or on behalf
of the selling party), and Volume Services America, Inc. shall deposit such
amount in the cash collateral account maintained under the Credit Agreement;
provided, that the Company shall not be required to effect more than two (2)
such transactions on behalf of the Investors in any 12 month period (other than
a transaction effected pursuant to Article III of the Registration Rights
Agreement) if such transactions would result in a determination that the
Subordinated Notes to be issued require a different CUSIP number than the
Subordinated Notes then outstanding.
(b) A copy of this Agreement and the Registration Rights Agreement
shall be filed with the secretary of the Company and kept with the records of
the Company. Each
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certificate representing shares of Common Stock subject to this Agreement shall
bear the following legend on the face thereof (in addition to any legend
required by state securities or "blue sky" laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAWS OF
ANY STATE AND ARE SUBJECT TO AN AMENDED AND RESTATED STOCKHOLDERS
AGREEMENT AND REGISTRATION RIGHTS AGREEMENT. A COPY OF EACH OF THE
STOCKHOLDERS AGREEMENT AND REGISTRATION RIGHTS AGREEMENT IS AVAILABLE FOR
INSPECTION AT THE COMPANY'S PRINCIPAL OFFICES. NO TRANSFER, SALE,
ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT IN ACCORDANCE WITH THE
PROVISIONS OF THE STOCKHOLDERS AGREEMENT AND REGISTRATION RIGHTS AGREEMENT
AND (A) PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR (B) A TRANSFER, SALE, ASSIGNMENT,
PLEDGE, HYPOTHECATION OR OTHER DISPOSITION THAT IS EXEMPT FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT OF 1933, AS AMENDED, AND THE
RULES AND REGULATIONS THEREUNDER AND, IF REQUESTED, THE COMPANY MAY
REQUIRE PROOF OF SUCH EXEMPTION. UPON CERTAIN TRANSFERS OF THE SHARES OF
COMMON STOCK REPRESENTED BY THIS CERTIFICATE, THE COMPANY SHALL EXCHANGE
WITH THE TRANSFEREE A CERTAIN AMOUNT OF THE SHARES OF COMMON STOCK FOR THE
COMPANY'S SUBORDINATED NOTES PURSUANT TO THE TERMS OF, AND SUBJECT TO THE
LIMITATIONS CONTAINED IN, THE STOCKHOLDERS AGREEMENT AND REGISTRATION
RIGHTS AGREEMENT. THE HOLDER OF THIS CERTIFICATE AGREES TO BE BOUND BY ALL
OF THE PROVISIONS OF SUCH STOCKHOLDERS AGREEMENT AND REGISTRATION RIGHTS
AGREEMENT."
The Company agrees to promptly remove (or cause to be removed) the legend
set forth above and to take such further action to remove any restrictions on
the shares of Common Stock in connection with a transfer that is pursuant to a
registration statement effective under the Securities Act and, if applicable, a
receipted prospectus under applicable Canadian securities laws, or exempt from
such registration or filing both in the United States and, if applicable,
Canada.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
hereby represents and warrants as follows:
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(a) Organization, Standing and Power. The Company is a corporation, duly
organized, validly existing and in good standing under the laws of the State of
Delaware. The Company has all requisite power and authority to own, operate and
lease its properties and to carry on its business as currently conducted, and is
qualified or licensed to do business and in good standing in each jurisdiction
in which its ownership or leasing of property or the conduct of its business
requires such licensing or qualification, except where the failure to so qualify
would not, individually or in the aggregate, have a material adverse effect on
the business, condition, financial or otherwise, or results of operations of the
Company and its subsidiaries considered as a whole (a "Material Adverse
Effect").
(b) Authority. The Company has all requisite corporate power and authority
to execute and deliver this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the performance by
the Company of its obligations hereunder have been duly authorized, and no other
corporate proceeding on the part of the Company or its stockholders is required.
This Agreement has been duly executed and delivered by the Company and, assuming
the due authorization, execution and delivery hereof by the Investors, is a
valid and binding obligation of the Company, enforceable against the Company in
accordance with its terms.
(c) No Conflicts. To the best of the Company's knowledge, the execution
and delivery of this Agreement by the Company, the performance by the Company of
its obligations hereunder and the consummation of the transactions to be
performed by the Company contemplated by this Agreement will not (a) conflict
with or result in any breach of any provision of the certificate of
incorporation or by-laws of the Company, (b) conflict with, or result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default or give rise to any right of termination, cancellation
or acceleration under, any of the terms or conditions of any note, bond,
mortgage, indenture, license, agreement or other instrument or obligation to
which the Company or any of its subsidiaries is a party or by which any of them
or any of their properties or assets may be bound or (c) violate any statute or
law, or any rule, regulation, writ, injunction, judgment, order or decree of any
court, administrative agency or governmental authority binding on the Company or
any of its subsidiaries, or any of their respective properties or assets,
excluding from the foregoing clauses (b) and (c), conflicts, violations,
breaches and defaults which, individually and in the aggregate, would not have a
material adverse effect on the ability of the Company to perform its obligations
hereunder.
(d) Validity of Stock.
(i) All outstanding shares of the Company's Common Stock have been
duly authorized and validly issued, are fully paid and non-assessable, and
have not been issued in violation of any pre-emptive rights, and BCP
Volume, BOCP Volume, Management Direct and GE LLC have acquired valid and
marketable title thereto from the Company, free and clear of any lien,
claim, charge, equity or encumbrance of any kind.
(ii) Except for this Agreement, the Underwriting Agreement and as
otherwise disclosed in each of the U.S. and Canadian prospectus relating
to the IPO, there is
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outstanding no security, option, warrant, right, call, subscription,
agreement, commitment or understanding of any nature whatsoever, fixed or
contingent, that directly or indirectly:
(A) calls for the issuance, sale, pledge or other disposition of
any shares of Common Stock or IDSs or of any other capital
stock of the Company or any securities convertible into, or
other rights to acquire, any such shares or other capital
stock of the Company; or
(B) obligates the Company to grant, offer or enter into any of
the foregoing; or
(C) relates to the voting or control of such shares of Common
Stock or of IDSs or other foregoing securities;
provided, however, that the foregoing does not apply to any
security, option, warrant, right, call, subscription, agreement,
commitment or understanding relating to the partnership or membership
interests of any of the Investors or GECC.
(e) Compliance with Applicable Law. The Company and each of its
subsidiaries are currently in compliance with all applicable laws (whether
statutory or otherwise), rules, regulations, orders, ordinances, judgments,
decrees, writs, requirements and injunctions of all governmental authorities in
such jurisdictions where the Company and its subsidiaries do business, except
where the failure to so comply would not, individually or in the aggregate,
result in a Material Adverse Effect.
(f) Consents and Approvals. No authorization, consent, order or approval
of or notice to or filing with, any federal, state, provincial or local
governmental authority is required in connection with the execution, delivery
and performance by the Company of this Agreement or of the performance of its
obligations hereunder, except for those required under U.S. federal securities
laws, state "blue sky" laws and/or Canadian securities laws in connection with
the IPO and the Registration Rights Agreement, except for such authorizations,
consents, orders or approvals the failure of which to obtain would not have a
material adverse effect on the ability of the Company to perform its obligations
hereunder.
2.2 REPRESENTATIONS AND WARRANTIES OF THE INVESTORS. Each of the Investors
and, where applicable, GECC, hereby, severally and not jointly, represents and
warrants as follows:
(a) Authority. Each of the Investors and GECC has all requisite power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery of this Agreement and the performance by
each of the Investors and GECC of their obligations hereunder has been duly
authorized by each of the Investors and GECC and no other proceeding on the part
of any Investor or GECC is required. This Agreement has been duly executed and
delivered by the Investors and GECC and, assuming the due authorization,
execution and delivery hereof by the Company, is a valid and binding obligation
of the Investors and GECC, enforceable against each of the Investors in
accordance with its terms.
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(b) No Conflicts. The execution and delivery of this Agreement by each of
the Investors and GECC, the performance by each of the Investors and GECC of
their obligations hereunder and the consummation of the transactions to be
performed by each of the Investors and GECC contemplated by this Agreement will
not (i) conflict with or result in any breach of any provision of the
organizational documents of such Investor or GECC, (ii) conflict with, or result
in a violation or breach of, or constitute (with or without due notice or lapse
of time or both) a default or give rise to any right of termination,
cancellation or acceleration under, any of the terms or conditions of any note,
bond, mortgage, indenture, license, agreement or other instrument or obligation
to which any of the Investors or GECC is a party or by which any of them or any
of their properties or assets may be bound, or (iii) violate any statute or law,
or any rule, regulation, writ, injunction, judgment, order or decree of any
court, administrative agency or governmental authority binding on the Investors
or GECC, or any of their respective properties or assets, excluding from the
foregoing clauses (ii) and (iii), conflicts, violations, breaches and defaults
which, individually and in the aggregate, would not have a material adverse
effect on the ability of the Investors or GECC to perform their respective
obligations hereunder.
(c) Title to Shares.
(i) The Company shall, upon delivery of the shares of Common Stock
held by the Investors as a result of (A) repurchase by the Company of the
amount of such shares pursuant to Section 1.2 hereto or (B) repurchase by
the Company of the amount of such shares pursuant to Section 1.3 hereto,
obtain valid and marketable title to such Common Stock, free and clear of
any lien, claim, charge, equity or encumbrance of any kind.
(ii) Each subsequent purchaser shall, upon purchase of shares of
Common Stock held by the Investors (followed by the exchange for
Subordinated Notes described in section 1.4(a) hereto), obtain valid and
marketable title to such Common Stock, free and clear of any lien, claim,
charge, equity or encumbrance of any kind.
(d) Consents and Approvals. No authorization, consent, order or approval
of or notice to or filing with, any federal, state, provincial or local
governmental authority is required in connection with the execution, delivery
and performance by the Investors or GECC of this Agreement or of the performance
of their respective obligations hereunder, except for those required under U.S.
federal securities laws, state "blue sky" laws and/or Canadian securities laws
in connection with the IPO and the Registration Rights Agreement.
ARTICLE III
CERTAIN COVENANTS
3.1 PERFORMANCE. Each of the parties hereto covenants and agrees that it
shall not avoid or seek to avoid the observance or performance of any of the
terms of this Agreement, but will at all times in good faith assist in the
carrying out of all such terms and in the taking of all such action as may be
reasonably necessary or appropriate to protect the rights of the parties hereto
against impairment of their respective rights hereunder.
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3.2 ISSUABLE SUBORDINATED NOTES. The Company shall at all times have
authorized and issuable under the indenture related to the Subordinated Notes a
sufficient aggregate principal amount of Subordinated Notes so that the Company
will be able to deliver the Subordinated Notes to the transferees of the
Investors in accordance with the terms of this Agreement.
ARTICLE IV
CONDITIONS TO OBLIGATIONS OF THE PARTIES
4.1 CONDITIONS TO OBLIGATIONS OF THE COMPANY. The obligation of the
Company to consummate the transactions contemplated hereby shall be subject to
the satisfaction or waiver of the following conditions on or prior to each of
(i) the date of repurchase by the Company of the shares of Common Stock upon
completion of the IPO pursuant to Section 1.2 hereto, (ii) the date of
repurchase by the Company of the shares of Common Stock upon exercise of the
Over-allotment Option pursuant to Section 1.3 hereto and (iii) any transfer and
exchange date pursuant to Section 1.4(a) hereto (each such date a "Performance
Date"), as applicable:
(a) Representations, Warranties and Covenants of the Investors. The
representations and warranties of the applicable Investors contained in this
Agreement shall be true and correct in all material respects when made and at
and as of the applicable Performance Date as if made at and as of such date, and
each of the applicable Investors shall have performed or complied in all
material respects with all agreements and covenants required by this Agreement
to be performed or complied with by it prior to or at and as of the applicable
Performance Date.
(b) Consents. All governmental and regulatory consents, approvals,
authorizations, declarations, filings and registrations necessary for
consummation of the transactions contemplated hereby shall have been obtained.
(c) No Governmental or Other Proceeding. There shall not exist any
statute, rule, regulation, executive or other order, judgment, injunction, stay
or decree that restrains or prohibits the Company from consummating the
transactions contemplated hereby, and there shall be no litigation or
administrative or regulatory proceeding pending or threatened which, in the
reasonable judgment of the Company, is likely to restrain, prohibit or result in
the imposition of materially adverse conditions on the ability of the Company to
consummate any of such transactions.
4.2 CONDITIONS TO OBLIGATIONS OF THE INVESTORS. The obligation of the
Investors to consummate the transactions contemplated hereby shall be subject to
the satisfaction or waiver of the following conditions on or prior to each
Performance Date, as applicable:
(a) Representations, Warranties and Covenants of the Company. The
representations and warranties of the Company contained in this Agreement shall
be true and correct in all material respects when made and at and as of the
applicable Performance Date, as if made at and as of such date, and the Company
shall have performed or complied in all material respects with
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all agreements and covenants required by this Agreement to be performed or
complied with by it prior to or at and as of the applicable Performance Date.
(b) Consents. All governmental and regulatory consents, approvals,
authorizations, declarations, filings and registrations necessary for
consummation of the transactions contemplated hereby shall have been obtained.
(c) No Governmental or Other Proceeding. There shall not exist any
statute, rule, regulation, executive or other order, judgment, injunction, stay
or decree that restrains or prohibits the applicable Investor from consummating
the transactions contemplated hereby, and there shall be no litigation or
administrative or regulatory proceeding pending or threatened which, in the
reasonable judgment of the applicable Investor, is likely to restrain, prohibit
or result in the imposition of materially adverse conditions on the ability of
the such Investor to consummate any of such transactions.
(d) Registration Rights Agreement. On the consummation of the IPO, the
Company shall have executed and delivered the Registration Rights Agreement and
on the applicable Performance Date, the Registration Rights Agreement shall be
in full force and effect pursuant to its terms.
(e) Restated Certificate of Incorporation and By-laws. On the consummation
of the IPO, the Restated Certificate of Incorporation of the Company, in
substantially the form attached hereto as Annex A, shall have been filed with
and certified by the Secretary of State of the State of Delaware and the Amended
and Restated By-laws of the Company, in substantially the form attached hereto
as Annex B, shall have been approved by the board of directors of the Company
and be in full force and effect.
ARTICLE V
MISCELLANEOUS
5.1 TERM. Unless otherwise agreed to in writing by the parties hereto, the
term of this Agreement shall commence on the date hereof and end on the date, if
any, on which the Company shall have advised the Investors that it has abandoned
its plans to consummate the IPO, and otherwise shall end when no shares of
Common Stock are subject to exchange pursuant to Section 1.4(a) hereto.
5.2 SUCCESSORS. All the provisions of this Agreement by or for the benefit
of the parties hereto shall bind and inure to the benefit of their respective
successors and assigns and the parties agree that any transferee by distribution
in kind of shares of Common Stock shall be deemed to be a successor party to
this agreement upon accepting such shares of Common Stock.
5.3 NO ASSIGNMENT. No party hereto may assign its rights and
obligations hereunder without the prior consent of the other parties hereto,
subject to Section 1.4(a).
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5.4 HEADINGS. The headings of articles and sections of this Agreement have
been inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms or provisions
hereof.
5.5 REMEDIES; AMENDMENT. The rights and remedies of the parties hereto are
cumulative and not exclusive of any rights or remedies which they would
otherwise have. This Agreement may be amended or modified only by a written
instrument signed by each of the parties hereto; provided however, that if any
Investor no longer owns any shares of Common Stock, such Investor shall no
longer be a party to this Agreement and shall not be required to sign such
written instrument (and, if GE LLC ceases to be a party to this Agreement, GECC
shall cease to be a party to this Agreement).
5.6 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, and such invalid, void or otherwise unenforceable
provisions shall be null and void. It is the intent of the parties, however,
that any invalid, void or otherwise unenforceable provisions be automatically
replaced by other provisions which are as similar as possible in terms to such
invalid, void or otherwise unenforceable provisions but are valid and
enforceable to the fullest extent permitted by law.
5.7 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, except to the extent that the
laws of the State of Delaware are mandatorily applicable.
5.8 NOTICES. Any notice, request, instruction or other document (each, a
"notice") to be given hereunder by any party hereto to any other party hereto
shall be in writing and shall be deemed to have been duly given if delivered
personally, sent by facsimile transmission, or registered or certified mail,
postage prepaid, to the parties hereto at the following addresses or to such
other addresses as any party hereto shall hereafter specify by notice to the
other party or parties hereto:
(a) If to the Company to:
Volume Services America Holdings, Inc.
300 First Stamford Place
Stamford, CT 06927
Attention: Janet Steinmayer
(b) If to the Blackstone Group to:
The Blackstone Group
345 Park Avenue
31st Floor
New York, NY 10154
Attention: Peter Wallace
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(c) If to the GE Capital Group to:
GE Capital Corporation
201 High Ridge Road
Stamford, CT 06297
Attention: Barbara Lane
Any notice, request, instruction or document shall be deemed to have been
received on the date of delivery thereof.
5.9 COUNTERPARTS; FACSIMILE SIGNATURE. This Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original,
and such counterparts shall together constitute one and the same instrument.
This Agreement may be executed by facsimile signature.
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT as of the day and year first above written.
VOLUME SERVICES AMERICA HOLDINGS, INC.
By:
--------------------------------------------
Name:
Title:
BCP VOLUME L.P.
By: Blackstone Capital Partners II Merchant
Banking Fund L.P.
By: Blackstone Management Associates II
L.L.C., as General Partner
By:
-------------------------------
Name:
Title:
BCP OFFSHORE VOLUME L.P.
By: Blackstone Offshore Capital Partners II L.P.
By: Blackstone Management Associates II
L.L.C., as General Partner
By:
-------------------------------
Name:
Title:
By: Blackstone Service (Cayman) LDC, as
Administrative General Partner
By:
-------------------------------
Name:
Title:
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VSI MANAGEMENT DIRECT, L.P.
By: VSI Management I L.L.C., as General
Partner
By:
-------------------------------------
Name:
Title:
By: Blackstone Management Associates II
L.L.C., as Managing Member
By:
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Name:
Title:
RECREATIONAL SERVICES L.L.C.
By: General Electric Capital Corporation, as
Managing Member
By:
-------------------------------------
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
------------------------------------------
Name:
Title: