Exhibit 10.2
SPONSOR STOCKHOLDERS AGREEMENT
This SPONSOR STOCKHOLDERS AGREEMENT (this "Agreement") is made as of
October 3, 2005, among R.H. Donnelley Corporation, a Delaware corporation
("Parent"), Carlyle Partners III, L.P., a Delaware limited partnership ("CP
III"), CP III Coinvestment, L.P., a Delaware limited partnership ("Carlyle
Coinvest"), Carlyle High Yield Partners, L.P., a Delaware limited partnership
("CHYP Coinvest"), Carlyle-Dex Partners L.P., a Delaware limited partnership
("Carlyle Coinvest I"), and Carlyle-Dex Partners II L.P., a Delaware limited
partnership ("Carlyle Coinvest II") (each of CP III, Carlyle Coinvest, CHYP
Coinvest, Carlyle Coinvest I and Carlyle Coinvest II, a "Stockholder" and
collectively, the "Stockholders") and any other subsequent holder of Shares who
agrees to be bound by the terms of this Agreement in accordance with the terms
hereof. Parent and the Stockholders are sometimes referred to herein
individually as a "Party" and collectively as the "Parties." The meaning of
certain capitalized terms used herein are set forth in Section 7 hereto.
RECITALS
A. Dex Media, Inc., a Delaware corporation (the "Company"), Dex Holdings
LLC, a Delaware limited liability company ("Holdings"), the Stockholders and
certain other members of Holdings have entered into a Sponsor Stockholders
Agreement, dated as of July 27, 2004 (the "Current Stockholders Agreement"), to
provide for certain matters with respect to the Stockholders' and these other
members' holdings of shares of capital stock of the Company and the governance
of the Company. Holdings was dissolved on January 5, 2005.
B. On the date hereof, the Company, Parent and a wholly owned subsidiary of
Parent ("Merger Sub") have entered into an Agreement and Plan of Merger (as
amended from time to time, the "Merger Agreement") pursuant to which the Company
will be merged with and into Merger Sub (the "Merger").
C. The Parties wish to provide for certain matters relating to the
Stockholders' holdings of shares of capital stock of Parent received in the
Merger and the governance of Parent following the Effective Time (as defined in
the Merger Agreement).
D. In connection with the Merger Agreement, it is contemplated that,
effective upon and following the Effective Time, the Current Stockholders
Agreement (and certain related agreements) will terminate and be of no further
force or effect.
NOW, THEREFORE, in consideration of the foregoing, and the mutual
agreements set forth herein and other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Parties hereto,
intending to be legally bound, hereby agree as follows:
AGREEMENT
Section 1. Parent Board Representation and Voting.
(a) From and after the Effective Time, at each annual or special meeting of
stockholders of Parent at which action is to be taken with respect to the
election of directors of
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Parent, each Stockholder, severally and not jointly, agrees to vote or otherwise
give such Stockholder's consent in respect of all Shares (whether now or
hereafter acquired) owned by such Stockholder, and Parent will take all
necessary and desirable actions within its control (including to support the
nomination of, and the Nominating Committee of Parent will recommend to the
Board of Directors of Parent (the "Parent Board") the inclusion in the slate of
nominees recommended by the Parent Board to stockholders of Parent for election
as directors, such directors as set forth in subsection 1(a)(ii) below), in
order to cause:
(i) the authorized number of directors on the Parent Board to be
established at no more than 13;
(ii) the election to the Parent Board of such slate, so long as upon
such election, the Parent Board consists of:
(A) one director designated by one or more of the Stockholders as
the Stockholders shall agree (the "Stockholder Designee") if at the
relevant time the Stockholders Beneficially Own at least 5% of the
then issued and outstanding shares of Parent's common stock, par value
$1.00 per share (the "Parent Common Stock");
(B) the Chief Executive Officer of Parent;
(C) the Chairman of Parent; and
(D) the remaining directors, (i) with a number equal to a
majority of the entire Parent Board being individuals who would
satisfy the independence requirements of the New York Stock Exchange
and Rule 10A-3(b)(1) under the Exchange Act and (ii) none of whom are
Affiliates of the Stockholders;
all of such designees will hold office, subject to their earlier removal or
resignation in accordance with clause (a)(iii) below and Section 1(d),
respectively, and applicable law, until their respective successors have
been duly elected and qualified;
(iii) the removal from the Parent Board for cause of the Stockholder
Designee upon the written request of such of the Stockholders as the
Stockholders shall agree; and
(iv) upon any vacancy in the Parent Board as a result of any (A)
individual designated by one or more of the Stockholders pursuant to clause
(ii)(A) above, ceasing to be a member of the Parent Board, whether by
resignation or otherwise, the election to the Parent Board of an individual
designated by one or more of the Stockholders as the Stockholders shall
agree, or (B) other individual ceasing to be a member of the Parent Board,
whether by resignation or otherwise, the election to the Parent Board of an
individual (consistent with clause (ii) above) appointed by a majority of
the remaining directors then in office.
(b) Notwithstanding the provisions of this Section 1, the Stockholders will
not be entitled to designate any person to the Parent Board (or any committee
thereof), in the event that Parent receives a written opinion of its outside
counsel that a Stockholder Designee would not be qualified under any applicable
law, rule or regulation to serve as a director of Parent or if Parent objects to
a Stockholder Designee because such Stockholder Designee has been involved in
any
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of the events enumerated in Item 2(d) or (e) of Schedule 13D or Item 401(f) of
Regulation S-K or is subject to any order, decree or judgment of any court or
agency prohibiting service as a director of any public company or providing
investment or financial advisory services and, in any such event, the
Stockholders will withdraw the designation of such proposed Stockholder Designee
and designate a replacement therefor (which replacement Stockholder Designee
will also be subject to the requirements of this Subsection 1(b)). Parent will
use its best efforts to notify the Stockholders of any objection to a
Stockholder Designee sufficiently in advance of the date on which proxy
materials are mailed by Parent in connection with such election of directors to
enable the Stockholders to propose a replacement Stockholder Designee in
accordance with the terms of this Agreement.
(c) Notwithstanding anything in this Agreement to the contrary, the Parent
Board and all of the committees of the Parent Board will operate in such a way
to permit Parent to comply with applicable law and maintain its listing on The
New York Stock Exchange. Without limiting the foregoing, at all times a majority
of the Parent Board and all Committee members will (i) satisfy the independence
requirements of the New York Stock Exchange and Rule 10A-3(b)(1) under the
Exchange Act and (ii) not be Affiliates of the Stockholders.
(d) Notwithstanding anything to the contrary in this Section 1, immediately
upon the consummation of any Transfer following which the Stockholders
Beneficially Own, in the aggregate, less than 5% of the then issued and
outstanding shares of Parent Common Stock, the Stockholders agree to cause the
Stockholder Designee to tender to the Parent Board his or her resignation from
the Parent Board.
(e) This Section 1 will become effective at the Effective Time and will
terminate and have no further force and effect if the Merger Agreement is
terminated.
Section 2. Limitations on Acquisitions and Transfers.
(a) Except for the acquisition of shares of Parent Common Stock pursuant to
the Merger Agreement, and subject to Section 2(c), during the Standstill Period,
the Stockholders and their respective Affiliates will not, directly or
indirectly, acquire, agree to acquire or make a proposal to acquire legal or
Beneficial Ownership of any Share or any security of Parent convertible into or
exchangeable or exercisable for Shares if, as a result of such acquisition,
agreement or proposal, such Stockholder and/or its Affiliates would Beneficially
Own, in the aggregate, or have the right to acquire Shares representing more
than 15% of Parent's then issued and outstanding Shares.
(b) Subject to Section 2(c), during the Standstill Period, each Stockholder
and its respective Affiliates will not, directly or indirectly:
(i) seek, make or take any action to solicit or initiate any offer or
proposal for, or any indication of interest in, a merger (other than the
Merger), consolidation, tender or exchange offer, sale or purchase of
assets or securities or other business combination (other than the sale of
Parent Common Stock by such Stockholder or its Affiliates in accordance
with the terms of this Agreement) or any dissolution, liquidation,
restructuring, recapitalization or similar transaction in each case
involving Parent or any
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of its subsidiaries or the acquisition of any voting Shares of Parent or
any of its subsidiaries (each, an "Acquisition Transaction"), if, as a
result of such Acquisition Transaction, such Stockholder and/or its
Affiliates would Beneficially Own, in the aggregate, or have the right to
acquire Shares representing more than 15% of Parent's then issued and
outstanding Shares;
(ii) "solicit," or become a "participant" in any "solicitation" (other
than a "solicitation" approved by the Parent Board) of, any "proxy" (as
such terms are defined in Regulation 14A under the Exchange Act) from any
holder of voting Shares in connection with any vote on any matter (whether
or not relating to the election or removal of members of the Parent Board);
(iii) form, join or in any way participate in a 13D Group with respect
to any voting Shares (other than a 13D Group (A) composed of Parent and its
subsidiaries, (B) composed of such Stockholder and its Affiliates, (C)
formed as a result of this Agreement or (D) deemed to have been formed by
the Company Sponsors (as defined in the Merger Agreement) as a result of
the execution, delivery or performance of the Merger Agreement, the Company
Sponsor Agreements (as defined in the Merger Agreement), this Agreement or
the transactions contemplated hereby or thereby);
(iv) grant any proxies with respect to any voting Shares to any Person
(other than as recommended by the Parent Board), deposit any voting Shares
in a voting trust (unless the trustee of such trust agrees to be bound by
the terms of this Agreement) or enter into any other arrangement or
agreement with respect to the voting thereof;
(v) publicly request, propose or otherwise seek any amendment or
waiver of the provisions of Section 2(a) or (b);
(vi) publicly seek, alone or in concert with other Persons, additional
representation on the Parent Board or publicly seek the removal of any
member of the Parent Board that is not a Stockholder Designee or publicly
seek a change in the composition or size of the Parent Board;
(vii) seek in their capacity as stockholders of Parent to have any
matter presented to stockholders for a vote at any annual or special
meeting (other than matters presented with the approval of the Parent
Board);
(viii) publicly call or seek to have called any meeting of the holders
of voting Shares for the purpose of voting on any of the foregoing; or
(ix) make any proposal, statement or inquiry, disclose any intention,
plan or arrangement to the public (whether written or oral) inconsistent
with the foregoing;
provided, however, that neither this Section 2(b) nor Section 2(a) will (1)
prevent, restrict, encumber or in any way limit the exercise of the fiduciary
rights and obligations of the Stockholder Designee as a director of Parent or
prevent, restrict, encumber or in any way limit the ability of the Stockholder
Designee to vote on matters, influence officers, employees, agents, management
or the other directors of Parent, take any action or make any statement at any
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meeting of the Parent Board or any committee thereof, or otherwise to act in his
or her capacity as a director of Parent, (2) prevent any Stockholder from
selling any securities of Parent held by it or voting such securities, (3) apply
to or restrict any discussions or other communications between or among
directors, members, officers, employees or agents of any Stockholder or any
Affiliate thereof, (4) prohibit any Stockholder or any Affiliate thereof from
soliciting, offering, seeking to effect or negotiating with any Person with
respect to transfers of Shares otherwise permitted by this Section 2 or (5)
restrict any disclosure or statements required to be made by the Stockholder
Designee or the Stockholders under applicable law, rule or regulation (including
any NYSE regulation).
(c) Notwithstanding Sections 2(a) and (b), during the Standstill Period,
the Stockholders or their respective Affiliates will be permitted to make
requests to the Parent Board to amend or waive any of the limitations set forth
in Section 2(a) or (b), which the members of the Parent Board (other than the
Stockholder Designee and any designee of the other Company Sponsor), acting by
majority, may accept or reject in their sole discretion; provided, however, that
(i) any such request will not be publicly disclosed by the Stockholders or any
of their respective Affiliates, unless such Stockholder or such Affiliate
reasonably believes that it is required by applicable law to make such
disclosure and (ii) any such request will be made in a manner that is not
reasonably likely to require the public disclosure of such request by Parent.
(d) Notwithstanding any other provision hereof, in no event will a
Stockholder Transfer Shares to any Person or 13D Group in one or a series of
transactions if following such Transfer such Person or 13D Group would
Beneficially Own 5% or more of the then-outstanding number of any class of
Shares of Parent unless, prior to such Transfer, such Person or 13D Group
executes an agreement reasonably satisfactory to Parent pursuant to which such
Person or 13D Group agrees to be bound by the terms of Sections 2(a), (b), (c)
and (d) of this Agreement as if such Person or 13D Group were a "Stockholder"
hereunder; provided, however, that if the transferee Person or 13D Group
qualifies at the time of such Transfer under Rule 13d of the Exchange Act to
report its ownership on a Schedule 13G, the percentage in this Section 2(d) will
be 15%, rather than 5%.
(e) Prior to any proposed Transfer of any Shares (other than a Transfer to
an Affiliate of a Stockholder or a Transfer made in connection with an offering
of securities pursuant to the exercise of a Stockholder's registration rights),
the holder thereof will give written notice to Parent of its intention to effect
such Transfer as soon as reasonably practicable. Each such notice will describe
the manner of the proposed Transfer and, if requested by Parent for a proposed
Transfer other than pursuant to Rule 144 or Rule 145(a), will be accompanied by
an opinion of counsel reasonably satisfactory to Parent to the effect that the
proposed Transfer of the Shares may be effected without registration under the
Securities Act of 1933, as amended (the "Securities Act"), whereupon the holder
of such Shares will be entitled to Transfer such Shares in accordance with the
terms of its notice.
(f) Parent may place appropriate legends on the certificates representing
Shares held by the Stockholders setting forth any restrictions appropriate for
compliance with U.S. federal securities laws. Parent will promptly issue
replacement certificates to the Stockholders, upon request, in order to permit
the Stockholders to engage in sales, transfers and other dispositions that are
not restricted under U.S. federal securities laws.
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Section 3. Registration Rights. This Section 3 will become effective at the
Effective Time and will terminate and be of no further force and effect if the
Merger Agreement is terminated.
(a) Demand Registrations.
(i) Right to Demand Registration. From and after the three-month
anniversary of the Effective Time until the second anniversary of the
Effective Time (the "Demand Period"), the Stockholders will have the right
at any time to make a written request of Parent for registration (any such
request, a "Stockholder Demand") with the Securities and Exchange
Commission (the "Commission"), under and in accordance with the provisions
of the Securities Act, of all or part of the Registrable Shares owned by
the Stockholders (each a "Demand Registration" and such Stockholders, the
"Demanding Holders"); provided that (x) Parent need not effect a Demand
Registration involving less than $100 million of gross proceeds and (y)
Parent may defer the filing or effectiveness of a Registration Statement
(as defined below) in respect of such Demand Registration for a single
period not to exceed 90 days during any one-year period, if the Parent
Board determines in the exercise of its reasonable judgment and in good
faith that to effect such Demand Registration at such time would have a
material and adverse effect on any proposal or plan by Parent to engage in
any significant corporate transaction; provided that in such event the
Stockholders making such Stockholder Demand will be entitled to withdraw
such Stockholder Demand and, if such Stockholder Demand is withdrawn, such
registration will not be counted as a Stockholder Demand for purposes of
Section 3(a)(ii), and the Demand Period will be extended by the length of
such deferral. Within ten days after receipt of the request for a Demand
Registration, Parent will send written notice (the "Demand Notice") of such
registration request and its intention to comply therewith to all holders
of Registrable Shares and, subject to subsection (iii) below, Parent will
include in such registration all the Registrable Shares with respect to
which Parent has received written requests for inclusion therein within 20
Business Days after the date such Demand Notice is given. All requests made
pursuant to this subsection (i) will specify the aggregate number of
Registrable Shares requested to be registered and will also specify the
intended methods of disposition thereof. Upon receipt of a Stockholder
Demand, Parent will take all necessary and desirable actions within its
control to effect registration of the Registrable Shares to be registered
in accordance with the intended method of distribution specified in writing
by the Demanding Holders as soon as practicable and will maintain the
effectiveness of such Registration Statement until the earlier of the date
(as such date may be extended pursuant to the terms hereof, the
"Registration Termination Date") (A) which is one hundred eighty (180) days
following the effective date of such Registration Statement and (B) on
which all of the Registrable Shares covered by such Registration Statement
have been disposed of in accordance with the intended methods of
disposition by the seller or sellers thereof as set forth in such
Registration Statement (but in any event not before the expiration of any
longer period required under the Securities Act), which methods shall
include, without limitation, block trades. If available to Parent, Parent
will effect such registration on Form S-3 or such other form of
registration statement that counsel to Parent advises and, if requested by
the Demanding Holders, such registration will be a "shelf" registration
statement providing for the registration of, and the sale on a continuous
or delayed basis of the Registrable Shares, pursuant to Rule 415
promulgated under the Securities Act or any similar rule
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that may be adopted by the Commission (a "Registration Statement"), and
Parent will take all necessary and desirable actions within its control to
maintain the effectiveness of such Registration Statement until the
Registration Termination Date; provided, however, that Parent will not
effect a registration on Form S-3 or an equivalent form if Parent or the
managing underwriter or underwriters determine that using a different
registration form is in the best interests of Parent and/or the Demanding
Holders and other holders of Registrable Shares.
(ii) Number of Demand Registrations. The Stockholders, as a group,
will be entitled to up to, but no more than, two Stockholder Demands;
provided, however, that a Stockholder Demand will not be deemed to have
been made unless the Registration Statement filed in connection therewith
is kept continuously effective by Parent until the Registration Termination
Date unless the reason such Registration Statement does not remain
effective until the Registration Termination Date is solely as a result of
the failure of the relevant Stockholders to take all actions reasonably
required in order to have the Registration Statement remain effective for
such period. Parent will not be required to cause a registration pursuant
to Section 3(a)(i) to be declared effective within a period of 180 days
after the date of any other Parent registration statement was declared
effective pursuant to a Demand Registration request or a filing for
Parent's own behalf.
(iii) Priority on Demand Registrations. If in any Demand Registration
the managing underwriter or underwriters thereof (or in the case of a
Demand Registration not being underwritten, the Demanding Holders after
consultation with an investment banker of nationally recognized standing)
advise Parent in writing that in its or their reasonable opinion the number
of securities proposed to be sold in such Demand Registration exceeds the
number that can be sold in such offering without having a material and
adverse effect on the success of the offering, Parent will include in such
registration only the number of securities that, in the reasonable opinion
of such underwriter or underwriters (or the Demanding Holders, as the case
may be) can be sold without having a material and adverse effect on the
success of the offering, as follows: first, the securities which the
Stockholders, including the Demanding Holders, and the W Holders (pro rata
among all such Stockholders and the W Holders on the basis of the relative
percentage of Registrable Shares requested to be registered by all
Stockholders and W Holders who have requested that securities owned by them
be so included), propose to sell, and second, securities of any other
holders of Parent's securities eligible to participate in such offering,
pro rata among all such Persons on the basis of the relative percentage of
such securities held by each of them. In the event that the managing
underwriter or Demanding Holders determine that additional Registrable
Shares may be sold in any Demand Registration without having a material and
adverse effect on the success of the offering, Parent may include
comparable securities to be issued and sold by Parent or comparable
securities held by Persons other than the Parties.
(iv) Selection of Underwriters. If a Demand Registration is to be an
underwritten offering, the Stockholders will, after consultation with
Parent, select a managing underwriter or underwriters of recognized
national standing to administer the offering.
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(b) Piggyback Registrations. If Parent at any time proposes to register
under the Securities Act any Shares or any security convertible into or
exchangeable or exercisable for Shares (other than (i) any securities to be
registered on Form S-8 and (ii) any securities to be registered in connection
with the Merger), whether or not for sale for its own account and other than
pursuant to a Demand Registration, on a form and in a manner which would permit
registration of the Registrable Shares held by the Stockholders for sale to the
public under the Securities Act, Parent will give written notice of the proposed
registration to the Stockholders not later than 30 days prior to the filing
thereof. Each Stockholder will have the right to request that all or any part of
its Registrable Shares be included in such registration. Each Stockholder can
make such a request by giving written notice to Parent within ten Business Days
after the giving of such notice by Parent; provided, however, that if the
registration is an underwritten registration and the managing underwriters of
such offering determine that the aggregate amount of securities of Parent which
Parent and all Stockholders propose to include in such Registration Statement
exceeds the maximum amount of securities that may be sold without having an
adverse effect on the success of the offering, including the selling price and
other terms of such offering, Parent will include in such registration, first,
the securities which Parent proposes to sell, second, the Registrable Shares of
the Stockholders and any W Holders requesting registration, pro rata among all
such Stockholders and W Holders on the basis of the relative percentage of
Registrable Shares requested to be registered by all Stockholders and W Holders
who have requested that securities owned by them be so included (it being
further agreed and understood, however, that such underwriters will have the
right to eliminate entirely the participation of the Stockholders and the W
Holders), and third, the comparable securities of any additional holders of
Parent's securities, pro rata among all such holders on the basis of the
relative percentage of such securities held by each of them. Registrable Shares
proposed to be registered and sold pursuant to an underwritten offering for the
account of any Stockholder pursuant to this Section 3(b) will be sold to the
prospective underwriters selected or approved by Parent, after consultation with
the Stockholders, and on the terms and subject to the conditions of one or more
underwriting agreements negotiated between Parent and the prospective
underwriters. Any Stockholder who holds Registrable Shares being registered in
any offering will have the right to receive a copy of the form of underwriting
agreement and will have an opportunity to hold discussions with the lead
underwriter of the terms of such underwriting agreement. Parent may withdraw any
Registration Statement at any time before it becomes effective, or postpone or
terminate the offering of securities, without obligation or liability to any
Stockholder.
(c) Holdback Agreements. Notwithstanding any other provision of this
Section 3, each Stockholder agrees that (if and to the extent the managing
underwriter(s) in an underwritten offering determine that such action is
necessary with respect to such offering and provided that such condition is also
applicable to the W Holders, if any, requesting registration of Registrable
Shares in such offering) it will not (and it will be a condition to the rights
of each Stockholder under this Section 3 that such Stockholder does not) offer
for Public Sale any Shares during the 90-day period after the effective date of
any Registration Statement filed by Parent in connection with an underwritten
public offering (except as part of such underwritten registration or as
otherwise permitted by such underwriters); provided, however, no Stockholder
will object to shortening such period if the underwriter agrees that shortening
such period would not materially and adversely effect the success of the
offering.
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(d) Expenses. Except as otherwise provided herein, all expenses,
disbursements and fees incurred by Parent and the Stockholders in connection
with any registration under this Section 3 (including, without limitation, the
reasonable expenses, disbursements and fees of one counsel retained in
connection with the Stockholders' first Demand Registration, in an aggregate
amount of up to $50,000) will be borne by Parent, except that the following
expenses will be borne by the Stockholders: (i) the expenses, disbursements and
fees of counsel to the Stockholders to the extent the Stockholders retain
counsel (other than as provided above with respect to the Stockholders' first
Demand Registration); (ii) discounts, commissions, fees or similar compensation
owing to underwriters, selling brokers, dealer managers or other industry
professionals, to the extent relating to the distribution or sale of the
Stockholders' securities; and (iii) transfer taxes with respect to the
securities sold by the Stockholders; provided, however, that the Stockholders
will reimburse Parent for any fees, costs and expenses paid by Parent in
connection with any Stockholder Demand (i) which is subsequently withdrawn by
the Stockholders after Parent has filed a Registration Statement with the
Commission in connection therewith or (ii) which is not declared effective
solely as a result of the failure of the Stockholders to take all actions
reasonably required in order to have the registration and the related
Registration Statement declared effective by the Commission. In any such event,
such demand registration will be counted as a Stockholder Demand for purposes of
Section 3(a)(ii).
(e) Registration Procedures. In connection with any registration of
Registrable Shares under the Securities Act pursuant to this Agreement, Parent
will consult with each Stockholder whose equity interest is to be included in
any such registration concerning the form of underwriting agreement, will
provide to such Stockholders the form of underwriting agreement prior to
Parent's execution thereof and will provide to such Stockholders and their
representatives such other documents (including comments by the Commission on
the Registration Statement) as such Stockholders reasonably request in
connection with its participation in such registration. Parent will furnish such
Stockholders and each underwriter, if any, with a copy of the Registration
Statement and all amendments thereto and will supply such Stockholders and each
underwriter, if any, with copies of any prospectus (a "Prospectus") included
therein (including a preliminary Prospectus and all amendments and supplements
thereto), in such quantities as may be reasonably necessary for the purposes of
the proposed sale or distribution covered by such registration. Parent will not,
however, be required to maintain the Registration Statement effective or to
supply copies of a Prospectus for a period beyond the Registration Termination
Date and, following such date, Parent may deregister any securities covered by
such Registration Statement and not then sold or distributed. Whenever required
to effect the registration of any Registrable Shares under this Agreement,
Parent will, as promptly as possible:
(i) prepare and file with the Commission a Registration Statement on
any form on which Parent then qualifies, which counsel for Parent deems
appropriate and pursuant to which an offering of such Registrable Shares
may be made in accordance with the intended method of distribution thereof,
and use its commercially reasonable efforts to cause any Registration
Statement required hereunder to become effective as soon as practicable
after the initial filing thereof and keep such Registration Statement
effective until the Registration Termination Date;
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(ii) provide such Stockholders, any underwriter participating in any
disposition pursuant to such Registration Statement and any attorney,
accountant or other agent retained by such Stockholders, a reasonable
opportunity to review and comment on such Registration Statement and each
Prospectus included therein or filed with the Commission and each amendment
or supplement thereto other than any amendments or supplements resulting
from the incorporation by reference in such Registration Statement or
Prospectus to Parent's periodic and current reports filed with the
Commission under the Exchange Act;
(iii) upon filing a Registration Statement or any Prospectus related
thereto or any amendments or supplements thereto, furnish to such
Stockholders and the underwriters, if any, copies of all such documents;
(iv) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep such Registration Statement effective until the Registration
Termination Date; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented, to be filed
pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act and the Exchange Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement
or supplement to such Prospectus;
(v) promptly notify such Stockholders and any managing underwriters in
writing, (A) when a Registration Statement or post-effective amendment to a
Registration Statement or the related Prospectus or Prospectus supplement
has been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any
request by the Commission or any state securities commission for amendments
or supplements to a Registration Statement or related Prospectus or for
additional information, (C) of the issuance by the Commission or any state
securities commission of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (D) of the receipt by Parent of any notification with respect to
the suspension of the qualification of any of the Registrable Shares for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, and (E) upon discovery that, or upon the happening of any
event as a result of which, any Registration Statement or Prospectus (or
any amendment or supplement thereto or document incorporated by reference
therein) contains an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(vi) use its commercially reasonable efforts to prevent the issuance
of any stop order by the Commission suspending the effectiveness of a
Registration Statement to the extent the Company had knowledge of the
threat of such stop order prior to its issuance, and in the event of such
issuance, to use its reasonable best efforts to obtain the withdrawal of
such stop order;
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(vii) except as prohibited under applicable law, if requested by the
managing underwriters or such Stockholders, promptly consider for inclusion
in a Prospectus supplement or post-effective amendment such information as
the managing underwriters or the Stockholders holding a majority of the
Registrable Shares being sold by such Stockholders agree should be included
therein relating to the sale of such Registrable Shares, including
information with respect to the amount of Registrable Shares being sold to
such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten (or
best efforts underwritten) offering of the Registrable Shares to be sold in
such offering; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as reasonably practicable after being
notified of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;
(viii) furnish to such Stockholders and each managing underwriter at
least one signed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(ix) deliver to such Stockholders and the underwriters, if any, as
many copies of the Prospectus (including each preliminary Prospectus) and
any amendment or supplement thereto as such Persons or entities may
reasonably request;
(x) prior to any Public Sale of Registrable Shares, register or
qualify or cause to be registered or qualified such Registrable Shares for
offer and sale under the securities or blue sky laws of such jurisdictions
within the United States as such Stockholders or any underwriter reasonably
requests in writing and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Shares covered by the applicable Registration Statement;
provided, however, that Parent will not be required to qualify generally to
do business in any jurisdiction where it is not then so qualified or to
take any action which would subject it to general service of process or
taxation in any such jurisdiction where it is not then so subject;
(xi) cooperate with such Stockholders and the managing underwriters,
if any, to facilitate the timely preparation and delivery of certificates
representing Registrable Shares to be sold pursuant to such Registration
Statement and not bearing any restrictive legends, and enable such
Registrable Shares to be in such denominations and registered in such names
as the managing underwriters may request at least two Business Days prior
to any sale of Registrable Shares to the underwriters;
(xii) if any discovery or event described in clause (v)(E) above
occurs, notify such Stockholders of such discovery or event and prepare a
supplement or post-effective amendment to the applicable Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Shares being sold
thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that in the event of the
11
foregoing, the Registration Termination Date will be extended by the number
of days during the period from and including the date of such notice from
Parent to the Stockholders until and including the date of delivery of such
supplement or amendment to such Registration Statement or related
Prospectus;
(xiii) cause all Registrable Shares covered by the Registration
Statement to be listed on The New York Stock Exchange or each other
securities exchange on which similar securities issued by Parent are then
listed;
(xiv) provide and cause to be maintained a transfer agent and
registrar for all such Registrable Shares covered by the Registration
Statement not later than the effective date of the Registration Statement;
(xv) use its reasonable best efforts to obtain an opinion from
Parent's counsel and a "cold comfort" letter from Parent's independent
public accountants in customary form and covering such matters as are
customarily covered by such opinions and "cold comfort" letters delivered
to underwriters in underwritten public offerings and reasonably
satisfactory to the Stockholders holding a majority of the Registrable
Shares being sold by such Stockholders;
(xvi) deliver promptly to each Stockholder participating in the
offering and each underwriter, if any, copies of all correspondence between
the Commission and Parent, its counsel or auditors and all memoranda
relating to discussions with the Commission or its staff with respect to
the Registration Statement, other than those portions of any such
correspondence and memoranda which contain information subject to
attorney-client privilege with respect to Parent, and, upon receipt of such
confidentiality agreements as Parent may reasonably request, make
reasonably available for inspection by any Stockholder selling such
Registrable Shares covered by such Registration Statement, by any
underwriter, if any, participating in any disposition to be effected
pursuant to such Registration Statement and by any attorney, accountant or
other agent retained by any such Stockholder or any such underwriter, all
pertinent financial and other records, pertinent corporate documents and
properties of Parent, and cause all of Parent's officers, directors and
employees to supply all information reasonably requested by any such
seller, underwriter, attorney, accountant or agent in connection with such
Registration Statement;
(xvii) provide a CUSIP number for all Registrable Shares included in
such Registration Statement, not later than the effective date of the
applicable Registration Statement;
(xviii) enter into such agreements (including an underwriting
agreement in form reasonably satisfactory to Parent) and take all such
other reasonable actions in connection therewith in order to expedite or
facilitate the disposition of such Registrable Shares;
(xix) make available for inspection by a representative of such
Stockholders, any underwriter participating in any disposition pursuant to
a Registration Statement, and any attorney or accountant retained by such
Stockholders or such underwriter, all
12
financial and other records, any pertinent corporate documents and
properties of Parent reasonably requested by such representative,
underwriter, attorney or accountant in connection with such Registration
Statement; provided, however, that any records, information or documents
that are designated by Parent in writing as confidential will be kept
confidential by such Persons or entities unless disclosure of such records,
information or documents is required by court or administrative order;
(xx) otherwise comply in all material respects with all applicable
rules and regulations of the Commission and relevant state securities
commissions, and make generally available to such Stockholders, earning
statements satisfying the provisions of Section 12(a) of the Securities Act
no later than 45 days after the end of any 12-month period (or 120 days, if
such period is a fiscal year) commencing at the end of any fiscal quarter
in which Registrable Shares of such Stockholders are sold to underwriters
in an underwritten offering, or, if not sold to underwriters in such an
offering, beginning with the first month of Parent's first fiscal quarter
commencing after the effective date of a Registration Statement, which
statements will cover said 12-month periods;
(xxi) cause senior management to participate in "roadshow"
presentations and other customary marketing efforts at reasonable times
upon reasonable notice and in a manner that will not adversely affect
Parent's business;
(xxii) cooperate with such Stockholders, each underwriter
participating in the disposition of such Registrable Shares and such
underwriters' counsel in connection with any filings required to be made
with the NASD;
(xxiii) upon the request of the Stockholders holding a majority of the
Registrable Shares being sold by such Stockholders, to request from the
Commission acceleration of the effectiveness of such Registration
Statement; and
(xxiv) take all such other commercially reasonable actions as are
necessary or advisable and/or reasonably requested by such Stockholders in
order to expedite or facilitate the disposition of such Registrable Shares.
(f) Each Stockholder hereby agrees that, upon receipt of any notice from
Parent of the happening of any event of the type described in Section
3(e)(v)(E), such Stockholder will forthwith discontinue disposition of such
Registrable Shares covered by such Registration Statement or related Prospectus
until such Stockholder's receipt of the copies of the supplemental or amended
Prospectus contemplated by Section 3(e)(xii), and, if so directed by Parent,
such Stockholder will deliver to Parent (at Parent's expense) all copies, other
than permanent file copies then in such Stockholder's possession, of the
Prospectus covering such Registrable Shares at the time of receipt of such
notice.
Section 4. Indemnification.
(a) Indemnification by Parent. In the event of any registration of any
securities of Parent under the Securities Act pursuant to Section 3, Parent
will, and it hereby does, indemnify and hold harmless, to the extent permitted
by law, each of the Stockholders that holds any Registrable Shares covered by
such Registration Statement, each Affiliate of such Stockholder
13
and such Stockholder's directors, officers, employees and agents or general and
limited partners, each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who controls
such Stockholder or any such underwriter within the meaning of the Securities
Act (collectively, the "Stockholder Indemnified Parties"), against any and all
losses, claims, damages, or liabilities, joint or several, and expenses
(including reasonable attorneys' fees and expenses and any amounts paid in any
settlement effected with Parent's consent) to which any Stockholder Indemnified
Party may become subject under the Securities Act, state securities or blue sky
laws, common law or otherwise, insofar as such losses, claims, damages, or
liabilities (or actions or proceedings in respect thereof, whether or not such
Stockholder Indemnified Party is a party thereto) or expenses arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which such
securities were registered under the Securities Act, any preliminary, final or
summary Prospectus contained therein, or any amendment or supplement thereto,
(ii) any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (iii) any
violation by Parent of any federal, state or common law rule or regulation
applicable to Parent and relating to action required of or inaction by Parent in
connection with any such registration; provided, that Parent will not be liable
to any Stockholder Indemnified Party in any such case to the extent that any
such loss, claim, damage, liability (or action or proceeding in respect thereof)
or expense arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such Registration Statement or
amendment or supplement thereto or in any such preliminary, final or summary
Prospectus in reliance upon and in conformity with written information with
respect to such Stockholder or any underwriter who participates in the offering
or sale of Registrable Shares covered by a Registration Statement furnished by
such Stockholder or such underwriter to Parent. Such indemnity will remain in
full force and effect regardless of any investigation made by or on behalf of
such Stockholder or any Stockholder Indemnified Party and will survive the
transfer of such securities by such Stockholder.
(b) Indemnification by the Stockholders and Underwriters. Parent may
require, as a condition to including any Registrable Shares in any Registration
Statement filed in accordance with Section 3, that Parent has received an
undertaking reasonably satisfactory to it from the Stockholders that own such
Registrable Shares or any underwriter to indemnify and hold harmless (in the
same manner and to the same extent as set forth in Section 4(a)) Parent, each
Affiliate of Parent, each of Parent's directors, officers, employees and agents
and each other Person who controls Parent within the meaning of the Securities
Act with respect to any statement or alleged statement in or omission or alleged
omission from such Registration Statement, any preliminary, final or summary
Prospectus contained therein, or any amendment or supplement, if such statement
or alleged statement or omission or alleged omission was made in reliance upon
and in conformity with written information with respect to the Stockholders
holding any of the Registrable Shares being registered or such underwriter that
is furnished in writing to Parent by such Stockholders or such underwriter, or a
document incorporated by reference into any of the foregoing; provided, that no
such Stockholder will be liable for any indemnity claims in excess of the amount
of net proceeds received by such Stockholder from the sale of Registrable
Shares. Such indemnity will remain in full force and effect regardless of any
investigation made by or on behalf of Parent or any of the Stockholders, or any
of their
14
respective Affiliates, directors, officers or controlling Persons, and will
survive the transfer of such securities by such Stockholder.
(c) Notices of Claims, Etc. Promptly after receipt by a Stockholder
Indemnified Party or Parent of written notice of the commencement of any action
or proceeding with respect to which a claim for indemnification may be made
pursuant to Section 4 (a) or (b), as applicable (an "Indemnified Party"), such
Indemnified Party will, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, that the failure of the Indemnified Party to give notice
as provided herein will not relieve the indemnifying party of its obligations
under this Section 4, except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice. In case any such action is
brought against an Indemnified Party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, with counsel satisfactory to
such Indemnified Party, and after notice from the indemnifying party to such
Indemnified Party of its election to assume the defense thereof, the
indemnifying party will not be liable to such Indemnified Party for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof; provided that the Indemnified Party will have the right to
employ counsel to represent the Indemnified Party and its respective controlling
persons, directors, officers, general or limited partners, employees or agents
who may be subject to liability arising out of any claim in respect of which
indemnity may be sought by the Indemnified Party against such indemnifying party
under this Section 4 if (i) the employment of such counsel has been authorized
in writing by such indemnifying party in connection with the defense of such
action, (ii) the indemnifying party has not promptly employed counsel reasonably
satisfactory to the Indemnified Party to assume the defense of such action or
(iii) any Indemnified Party has reasonably concluded that there may be defenses
available to such Indemnified Party or its respective controlling persons,
directors, officers, employees or agents which are in conflict with or in
addition to those available to the indemnifying party, and in that event the
reasonable fees and expenses of one firm of separate counsel for the Indemnified
Party will be paid by the indemnifying party. No indemnifying party will consent
to entry of any judgment or enter into any settlement in connection with any
claim or litigation which does not include as a term thereof the giving by the
claimant or plaintiff to such Indemnified Party of an unconditional release from
all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 4 shall for any
reason be unavailable to any Indemnified Party under Section 4(a) or Section
4(b) or is insufficient to hold it harmless in respect of any loss, claim,
damage, expense or liability, or any action in respect thereof referred to
therein, then each indemnifying party will contribute to the amount paid or
payable by such Indemnified Party as a result of such loss, claim, damage,
expense or liability, or action in respect thereof, (i) in such proportion as
may be appropriate to reflect the relative benefits received by the Indemnified
Party and indemnifying party or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Indemnified Party and indemnifying party with
respect to the statements or omissions which resulted in such loss, claim,
damage, expense or liability, or action in respect thereof, as well as any other
relevant equitable considerations. Notwithstanding any other provision of this
Section 4(d), no Stockholder will be required to contribute an amount greater
than the dollar amount of the proceeds received by such Stockholder with respect
to the sale of
15
any Registrable Shares. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) will be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(e) Non-Exclusivity. The obligations of the parties under this Section 4
will be in addition to any liability which any party may otherwise have to any
other party.
Section 5. Information Requirements. Parent covenants that it will (i) file
the reports required to be filed by it under the Securities Act and the Exchange
Act, and the rules and regulations adopted by the Commission thereunder, and the
rules and regulations of the NYSE and any other securities markets or exchanges
on which the Shares are listed or quoted, within the time periods prescribed
thereby and (ii) take such further action as any Stockholder may reasonably
request, in each case to the extent required from time to time to enable such
Stockholder to sell Registrable Shares without registration under the Securities
Act within the limitation of the exemptions provided by Rule 144 and Rule 144A
promulgated under the Securities Act (as such rules may be amended from time to
time) or any similar rule or regulation adopted by the Commission after the date
hereof, including making available adequate current public information within
the meaning of Rule 144(c)(2) and delivering the information required by Rule
144A(d). Upon the request of any Stockholder, Parent will deliver to such
Stockholder a written statement as to whether it has complied with such
requirements.
Section 6. Termination of Agreement. This Agreement will terminate upon the
mutual agreement of the Parties or the termination of the Merger Agreement. In
addition, this Agreement will terminate on the date on which the Stockholders no
longer Beneficially Own, in the aggregate, at least 5% of the issued and
outstanding shares of the Parent Common Stock.
Section 7. Definitions, Etc.
(a) In addition to terms defined elsewhere herein, as used in this
Agreement, the following terms have the following meanings:
"13D Group" means any group of Persons formed for the purpose of acquiring,
holding, voting or disposing of voting Shares that would be required under
Section 13(d) of the Exchange Act, and the rules and regulations thereunder (as
in effect on, and based on legal interpretations thereof existing on, the date
hereof), to file a statement on Schedule 13D with the Commission as a "person"
within the meaning of Section 13(d)(3) of the Exchange Act if such group
Beneficially Owned voting Shares representing more than 5% of any class of
voting Shares then outstanding.
"Affiliate" means with respect to a specified Person, any Person that
directly or indirectly through one or more intermediaries controls, is
controlled by or is under common control with the specified Person. As used in
this definition, the term "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through ownership of voting securities, by
contract or otherwise. For purposes of this Agreement, (i) none of the following
will be deemed to be an Affiliate of any Stockholder: (A) the Company, (B) any
portfolio company of the Stockholders or their Affiliates, (C) any limited
partner of the Stockholders or their Affiliates or (D) any investment
16
fund that does not share the same general partner as such Stockholder and (ii)
no Company Sponsor will be deemed to be an Affiliate of the other Company
Sponsor.
"Beneficially Own" or "Beneficial Ownership" with respect to any securities
means having "beneficial ownership" of such securities as determined pursuant to
Rule 13d-3 under the Exchange Act. Without duplicative counting of the same
securities by the same holder, securities Beneficially Owned by a Person include
securities Beneficially Owned by all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act
with respect to the securities of the same issuer. Notwithstanding anything in
this Agreement, neither (i) the Stockholders and Parent nor (ii) the Company
Sponsors, are intended to be a "group" for purposes of Rule 13d-5 of the
Exchange Act and nothing in this Agreement will be interpreted in a manner that
requires that they be deemed to be a "group" thereunder.
"Business Day" means any day that is not a Saturday, a Sunday or other day
on which banks are required or authorized by law to be closed in New York, New
York.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"G Holders Registration Rights Agreement" means the Registration Rights
Agreement, dated November 25, 2002, among Parent and the other parties thereto.
"Person" includes any individual, corporation, association, partnership
(general or limited), joint venture, trust, estate, limited liability company or
other legal entity or organization.
"Public Sale" means a Transfer pursuant to a bona fide underwritten public
offering pursuant to an effective registration statement filed under the
Securities Act or pursuant to Rule 144 under the Securities Act (other than in a
privately negotiated sale).
"Registrable Shares" means the Shares; provided, that Shares shall cease to
be "Registrable Shares" when such Shares are sold (i) by a Stockholder in a
transaction in which its rights under this Agreement are not assigned, (ii)
pursuant to an effective registration statement under the Securities Act, or
(iii) in a transaction exempt from the registration and prospectus delivery
requirements of the Securities Act (including transactions under Rule 144, or a
successor thereto, promulgated under the Securities Act) so that all restrictive
legends with respect thereto, if any, are removed upon the consummation of such
sale; and, provided further, that, with respect to any Transfer by a Stockholder
of Registrable Shares in accordance with this Agreement, such transferee's
Registrable Shares shall be limited to the Registrable Shares received from such
Stockholder hereunder.
"Shares" means (i) shares of voting stock of Parent or (ii) any other
security of Parent or any successor thereto which is convertible into, or
exercisable or exchangeable for, shares of voting stock of Parent.
"Standstill Period" means the period from the date hereof through the date
on which Parent issues its first quarterly earnings release after the later to
occur of (i) the Stockholders ceasing to own, in the aggregate, more than 5% of
the then-outstanding shares of Parent
17
Common Stock and (ii) the Stockholder Designee, if any, having resigned from the
Parent Board pursuant to Section 1(d) hereof.
"Transfer" means a transfer, sale, assignment, pledge, hypothecation or
other disposition or exchange, and "Transferring" or "Transferred" have
correlative meanings.
"W Holders" means, collectively, Welsh, Carson, Anderson & Stowe IX, L.P.,
a Delaware limited partnership, WD GP Associates LLC and WD Investors LLC.
(b) When a reference is made in this Agreement to Articles, Sections or
Exhibits, such reference will be to an Article or Section of or Exhibit to this
Agreement unless otherwise indicated. Whenever the words "include," "includes"
or "including" are used in this Agreement, they will be deemed to be followed by
the words "without limitation." Unless the context otherwise requires (i) "or"
is disjunctive but not necessarily exclusive, (ii) words in the singular include
the plural and vice versa, and (iii) the use in this Agreement of a pronoun in
reference to a party hereto includes the masculine, feminine or neuter, as the
context may require. No provision of this Agreement will be interpreted in favor
of, or against, any of the Parties to this Agreement by reason of the extent to
which any such Party or its counsel participated in the drafting thereof or by
reason of the extent to which any such provision is inconsistent with any prior
draft hereof, and no rule of strict construction will be applied against any
party hereto. This Agreement will not be interpreted or construed to require any
Person to take any action, or fail to take any action, if to do so would violate
any applicable Law.
(c) References to agreements and other documents will be deemed to include
all subsequent amendments and other modifications thereto.
(d) References to statutes will include all regulations promulgated
thereunder and references to statutes or regulations will be construed as
including all statutory and regulatory provisions consolidating, amending or
replacing the statute or regulation.
Section 8. Miscellaneous
(a) Access to Information. Parent shall permit, and shall cause its direct
and indirect subsidiaries to permit, any representatives designated by any
Stockholder (a "VCOC Stockholder") (x) that is required to be a "venture capital
operating company" pursuant to the terms of its Partnership Agreement or (y) the
assets of which would be considered "plan assets" unless it is considered to be
a venture capital operating company, in each case within the meaning of the
Department of Labor "plan asset" regulation, 29 C.F.R. Section 2510.3-101 (the
"Plan Asset Regulation"), upon reasonable notice, during normal business hours
and in a manner that does not unreasonably interfere with the management and
operation of Parent and/or such subsidiaries to: (i) examine the corporate and
financial records of Parent and such subsidiaries and make copies or extracts of
such records and (ii) discuss the affairs, finances and accounts of any such
entities with the officers and independent accountants of Parent and such
subsidiaries. In addition, Parent shall permit, and shall cause its direct and
indirect subsidiaries to permit, any one representative designated by any VCOC
Stockholder to attend meetings of the Parent Board (to the extent that such VCOC
Stockholder has not designated the Stockholder Designee pursuant to Section
1(a)(ii)(A)) or the board of directors of any such subsidiary as a non-voting
observer (with such rights and privileges as are reasonably necessary or
appropriate such that the right of the VCOC Stockholder to appoint such board
observer shall, collectively with the other rights described in this Section
8(a), constitute "management rights" within the meaning of the Plan Asset
Regulation); provided, that to the extent that any VCOC Stockholder has
appointed the Stockholder Designee to the Parent Board, such VCOC Stockholder
shall designate the Stockholder Designee as its non-voting observer with respect
to the board of directors of each applicable subsidiary. No representative of a
Stockholder will be entitled to the access rights specified in clauses (i) or
(ii) of the first sentence of this Section 8(a) or the rights to attend meetings
of the boards of directors under the second sentence of this Section 8(a) unless
and until such representative has entered into a customary confidentiality
agreement with Parent. Parent will have the right, after reasonable notice, to
require that any representative designated by a Stockholder under this Section
8(a) be replaced with another representative of such Stockholder.
(b) Successors, Assigns and Transferees. This Agreement will be binding
upon and inure to the benefit of the Parties hereto and their respective legal
representatives, heirs, legatees, successors and assigns and any other
transferee of the Shares that is an Affiliate of a Stockholder and will also
apply to any Shares acquired by Stockholders after the date hereof. This
Agreement is not intended to and does not confer upon any Person other than the
Parties to any rights or remedies under this Agreement. The rights granted to
each Stockholder (together with the related obligations) pursuant to this
Agreement (but not including the rights and obligations of the Stockholder
pursuant to Section 1 of this Agreement and subject to the proviso in
18
Section 2(d)) may be Transferred by such Stockholder to any Person who acquires
from such Stockholder at least 5% of the Parent Common Stock outstanding on the
date of such Transfer; provided, that such Stockholder shall give Parent written
notice at the time of such Transfer stating the name and address of the
transferee and identifying the securities with respect to which such rights are
being assigned. In the event that any Stockholder Transfers all or any portion
of its Shares to any Affiliate of such Stockholder or to any other Person
pursuant to the prior sentence, such transferee will execute a counterpart of
this Agreement in the form attached as Exhibit A hereto and agree to be bound by
the terms hereof other than Section 1 of this Agreement, and be entitled to the
rights provided herein, for all purposes hereunder. Any Affiliate of a
Stockholder that receives Shares hereunder will be considered a "Stockholder"
for all purposes hereunder other than under Sections 1 and 8(a) of this
Agreement. The Company may not assign this Agreement without the written consent
of the Stockholders holding a majority of the Registrable Shares then held by
the Stockholders.
(c) Specific Performance. The Parties acknowledge and agree that any breach
of the terms of this Agreement would give rise to irreparable harm for which
money damages would not be an adequate remedy, and, accordingly, the Parties
agree that, in addition to any other remedies, each will be entitled to enforce
the terms of this Agreement by a decree of specific performance without the
necessity of proving the inadequacy of money damages as a remedy and without the
necessity of posting bond.
(d) Governing Law. This Agreement will be governed and construed in
accordance with the internal laws of the State of Delaware applicable to
contracts made and wholly performed within such state, without regard to any
applicable conflict of laws principles.
(e) Submission to Jurisdiction; Waiver of Jury Trial. Each of the Parties
hereby agrees that any claim, suit, action or other proceeding, directly or
indirectly, arising out of, under or relating to this Agreement will be heard
and determined in the Chancery Court of the State of Delaware (and each agrees
that no such claim, action, suit or other proceeding relating to this Agreement
will be brought by it or any of its Affiliates except in such court), and the
Parties hereby irrevocably and unconditionally submit to the exclusive
jurisdiction of any such court in any such claim, suit, action or other
proceeding and irrevocably and unconditionally waive the defense of an
inconvenient forum to the maintenance of any such claim, suit, action or other
proceeding. Each of the parties hereto further agrees that, to the fullest
extent permitted by applicable law, service of any process, summons, notice or
document by U.S. registered mail to such Person's address for notice forth in
Section 8(g) will be effective service of process for any claim, action, suit or
other proceeding in Delaware with respect to any matters to which it has
submitted to jurisdiction as set forth above in the immediately preceding
sentence. The Parties hereto hereby agree that a final judgment in any such
claim, suit, action or other proceeding will be conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided
by applicable law. Each of the Parties irrevocably and unconditionally waives,
to the fullest extent permitted by applicable law, any and all rights to trial
by jury in connection with any litigation arising out of or relating to this
Agreement or the transactions contemplated hereby.
(f) Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
19
(g) Notices. All notices and other communications in connection with this
Agreement will be in writing and will be deemed given (and will be deemed to
have been duly given upon receipt) if delivered personally, sent via facsimile
(with confirmation), mailed by registered or certified mail (return receipt
requested) or delivered by an express courier (with confirmation) to the parties
at the following addresses (or at such other address for a party as will be
specified by like notice): (i) for a Stockholder, at the addresses given for
that Stockholder on the list attached hereto as Exhibit B or such other address
as that Stockholder may specify by notice to Parent, and (ii) for Parent, at the
address for Parent set forth at Exhibit B.
(h) Recapitalization, Exchange, Etc. Affecting Parent's Shares. The
provisions of this Agreement will apply, to the full extent set forth herein,
with respect to any and all Shares of Parent or any successor or assign of
Parent (whether by merger, consolidation, sale of assets, conversion to a
corporation or otherwise) that may be issued in respect of, in exchange for, or
in substitution of, the Shares and will be appropriately adjusted for any
dividends, splits, reverse splits, combinations, recapitalizations, and the like
occurring after the date hereof.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, all of which will be considered one and the same agreement and
will become effective when counterparts have been signed by each of the parties
and delivered to the other party, it being understood that each party need not
sign the same counterpart.
(j) Severability. If any term or other provision of this Agreement is
declared invalid, illegal or unenforceable, all other conditions and provisions
of this Agreement will nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
Parties will negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to the
maximum extent possible.
(k) Amendment. This Agreement may be amended only by written agreement
signed by the Parties. At any time hereafter, Persons acquiring Shares that are
Affiliates of a Stockholder may be made parties hereto by executing a signature
page in the form attached as Exhibit A hereto, which signature page will be
countersigned by Parent and will be attached to this Agreement and become a part
hereof without any further action of any other Party hereto.
(l) Integration; No Inconsistent Agreements. This Agreement (including the
documents and the instruments referred to in this Agreement) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter of this
Agreement. Except for the G Holders Registration Rights Agreement, which will be
terminated effective before or as of the Effective Time, and the Sponsor
Stockholders Agreement entered into between Parent and the W Holders on the date
hereof, (i) Parent has not entered into and will not enter into any agreement
that is inconsistent with the rights granted to the Stockholders in this
Agreement or that otherwise conflicts with the provisions hereof and (ii) the
rights granted to the Stockholders hereunder do not in any way conflict with,
and are not inconsistent with the rights granted to the holders of Parent's
other issued and outstanding securities under, any such agreements.
20
(m) Further Assurances. In connection with this Agreement and the
transactions contemplated thereby, each Stockholder will execute and deliver any
additional documents and instruments and perform any additional acts that may be
necessary or appropriate to effectuate and perform the provisions of this
Agreement and such transactions.
(n) Current Agreements. Effective at the Effective Time, the following
agreements will without further action be terminated and of no further force and
effect.
(i) the Current Stockholders Agreement;
(ii) Agreement Among Members (Dex Holdings LLC) among Carlyle Partners
III, L.P., Carlyle-Dex Partners L.P., Carlyle-Dex Partners II L.P., Welsh,
Carson, Anderson & Stowe IX, L.P., WD Investors LLC, Dex Holdings LLC, Dex
Media, Inc., Dex Media East, Inc. and Dex Media East LLC, dated November 8,
2002 (as amended);
(iii) Amended and Restated Management Consulting Agreement, dated as
of June, 2004, between Dex Media East LLC and The Carlyle Group.;
(iv) Amended and Restated Management Consulting Agreement, dated as of
June, 2004, between Dex Media East LLC and Welsh, Carson, Anderson & Stowe;
(v) Amended and Restated Management Consulting Agreement, dated as of
June, 2004, between Dex Media West LLC and The Carlyle Group; and
(vi) Amended and Restated Management Consulting Agreement, dated as of
June, 2004, between Dex Media West LLC and Welsh, Carson, Anderson & Stowe.
[Remainder of Page Intentionally Left Blank]
21
IN WITNESS WHEREOF, the Parties have executed this Sponsor Stockholders
Agreement as of the date first above written.
CARLYLE HOLDERS
CARLYLE PARTNERS III, L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ James A. Attwood, Jr.
---------------------------------
Name: James A. Attwood, Jr.
Title: Managing Director
CP III COINVESTMENT, L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ James A. Attwood, Jr.
---------------------------------
Name: James A. Attwood, Jr.
Title: Managing Director
22
CARLYLE-DEX PARTNERS L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ James A. Attwood, Jr.
---------------------------------
Name: James A. Attwood, Jr.
Title: Managing Director
CARLYLE-DEX PARTNERS II L.P.
By: TC Group III, L.P.,
its General Partner
By: TC Group III, L.L.C.,
its General Partner
By: TC Group, L.L.C.,
its Managing Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ James A. Attwood, Jr.
---------------------------------
Name: James A. Attwood, Jr.
Title: Managing Director
23
CARLYLE HIGH YIELD PARTNERS, L.P.
By: TCG High Yield, L.L.C.,
its General Partner
By: TCG High Yield Holdings, L.L.C.,
its Managing Member
By: TC Group, L.L.C.,
its Sole Member
By: TCG Holdings, L.L.C.,
its Managing Member
By: /s/ James A. Attwood, Jr.
---------------------------------
Name: James A. Attwood, Jr.
Title: Managing Director
24
R.H. DONNELLEY CORPORATION
By: /s/ Robert J. Bush
---------------------------------
Name: Robert J. Bush
Title: Vice President, General Counsel
and Corporate Secretary
25
EXHIBIT A
SIGNATURE PAGE
TO THE
SPONSOR STOCKHOLDERS AGREEMENT
By execution of this signature page, ________________________________
hereby agrees to become a party to, be bound by the obligations of and receive
the benefits of the Sponsor Stockholders Agreement, dated as of October 2, 2005,
by and among R.H. Donnelley Corporation, Carlyle Partners III, L.P., CP III
Coinvestment, L.P., Carlyle High Yield Partners, L.P., Carlyle-Dex Partners
L.P., and Carlyle-Dex Partners II L.P.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Notice Address:
----------------------------------------
----------------------------------------
----------------------------------------
Accepted:
R.H. DONNELLEY CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
EXHIBIT B
If to any Stockholder:
c/o The Carlyle Group
520 Madison Avenue
41st Floor
New York, New York 10022
Attention: James A. Atwood, Jr.
Facsimile: (212) 381-4901
with a copy to
Latham & Watkins LLP
885 Third Avenue, Suite 1000
New York, NY 10022
Attention: R. Ronald Hopkinson
Facsimile: (212) 751-4864
If to Parent:
R.H. Donnelley Corporation
1001 Winstead Drive
Cary, NC 27531
Attention: Robert J. Bush
Vice President, General Counsel and Corporate Secretary
Facsimile: (919) 279-1518
with a copy to:
Jones Day
222 East 41st Street
New York, NY 10017
Attention: John J. Hyland
Facsimile: (212) 755-7306