Agreement Among Members - The Carlyle Group, Welsh, Carson, Anderson & Stowe IX LP, WD Investors LLC, Dex Holdings LLC, Dex Media Inc., Dex Media East Inc. and Dex Media East LLC
AGREEMENT AMONG MEMBERS
(DEX HOLDINGS LLC)
THIS AGREEMENT AMONG MEMBERS (this "AGREEMENT") is made and effective
as of November 8, 2002, by and among Carlyle Partners III, L.P., a Delaware
limited partnership ("CP III"), Carlyle-Dex Partners L.P., a Delaware limited
partnership ("CARLYLE COINVEST I"), Carlyle-Dex Partners II L.P., a Delaware
limited partnership ("CARLYLE COINVEST II" and, together with CP III and Carlyle
Coinvest I, the "CARLYLE HOLDERS"), and Welsh, Carson, Anderson & Stowe IX,
L.P., a Delaware limited partnership ("WELSH CARSON IX"), and WD Investors LLC,
a Delaware limited partnership ("WCAS COINVEST I" together with Welsh Carson IX,
the "WCAS HOLDERS") (the Carlyle Holders and the WCAS Holders, collectively, the
"MEMBERS," and each individually a "MEMBER"), Dex Holdings LLC, a Delaware
limited liability company ("COMPANY"), Dex Media, Inc., a Delaware corporation,
Dex Media East, Inc., a Delaware corporation and Dex Media East LLC, a Delaware
limited liability company, together with each subsequently acquired or formed,
direct or indirect Subsidiary of the Company (collectively, "DEX MEDIA
ENTITIES").
RECITALS
WHEREAS, the Members wish to allocate certain of their management
rights with regard to each of the Dex Media Entities among each other and to set
forth their mutual understandings with regard to the operations, control and
management of each of the Dex Media Entities.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"AFFILIATES" means with respect to a specified
Person, any Person that directly or indirectly 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.
"AMENDED AND RESTATED LLC AGREEMENT" means the
Amended and Restated Limited Liability Company Agreement of Dex Holdings LLC by
and among the Members and the other Members parties thereto, dated as of the
date hereof as it may be modified or supplemented from time to time.
"BENEFICIAL OWNERSHIP" shall mean the power, directly
or indirectly, through any contract, arrangement, understanding, relationship or
otherwise, to (i) vote, or to
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direct the voting of, a security, and (ii) dispose, or to direct the disposition
of, such security. "BENEFICIALLY OWNS" shall mean having Beneficial Ownership.
"PERCENTAGE INTEREST" shall have the meaning given to
it in the Amended and Restated LLC Agreement.
"PERSON" includes any individual, corporation,
association, partnership (general or limited), joint venture, trust, estate,
limited liability company, or other legal entity or organization.
"SUBSIDIARIES" means, with respect to any Person, (i)
any corporation, limited liability company, partnership or other entity of which
shares of capital stock or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other similar managing
body of such corporation, limited liability company, partnership or other entity
are at the time owned or controlled by such Person, or (ii) the management of
which is otherwise controlled, directly or indirectly, through one or more
intermediaries by such Person.
2. Election of Directors; Board Observer.
(a) Each of the Members agrees to (i) vote (at any
regular or special meeting of the Members or via written consent) all its
Percentage Interest then Beneficially Owned by it (whether so Beneficially Owned
as of the date hereof or hereafter acquired) in favor of, or otherwise to
consent to, and (ii) to cause the applicable Nominees (as hereinafter defined)
to take all actions necessary and appropriate (whether by vote or consent or
otherwise) to cause, the election of the persons nominated in accordance with
Section 2(b) hereof (the "NOMINEES") to the Dex Holdings LLC Board of Directors
(the "COMPANY BOARD"), Dex Media, Inc. Board of Directors (the "DEX MEDIA
BOARD"), the Dex Media East, Inc. Board of Directors (the "DEX MEDIA EAST
BOARD"), the Dex Media East LLC Board of Directors (the "DEX EAST BOARD") and to
each of the Board of Directors (or comparable governing bodies) for each other
Dex Media Entity (collectively, the "DEX MEDIA ENTITIES BOARDS").
(b) During the term of this Agreement, so long as such
Member has a right to appoint a director pursuant to the Equityholders
Agreement, each of the Members shall either directly through the Company or
indirectly, through one of its Subsidiaries, as applicable, be entitled to
designate one (1) Nominee to each of the Dex Media Entities Boards (such Nominee
for any of the Dex Media Entities Boards, if designated by CP III, a "CP III
NOMINEE," if designated by Carlyle Coinvest I, a "CARLYLE COINVEST I NOMINEE,"
if designated by Carlyle Coinvest II, a "CARLYLE COINVEST II NOMINEE," if
designated by Welsh Carson IX, a "WELSH CARSON IX NOMINEE"), and if designated
by WCAS Coinvest I, a "WCAS COINVEST I NOMINEE").
(c) If any Nominee is unable or unwilling to serve upon
his or her election to any Dex Media Entities Board, the Members shall, through
the applicable Dex Media Entity be entitled to nominate a replacement who shall
then be a Nominee for the purposes of this Agreement. If, following election to
any Dex Media Entities Board, any Nominee shall resign or be removed or be
unable to serve by reason of death or disability, the Members on behalf of which
such Nominee serves shall, through such applicable Dex Media Entity, within
thirty days
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of such event, notify the applicable Dex Media Entities Board in writing of a
replacement, and the Members shall, through such applicable Dex Media Entity,
take such steps as may be necessary to elect such replacement to the applicable
Dex Media Entities Board to fill the unexpired term of the Nominee.
(d) Each Member agrees not to take any action or permit
any Nominee to take any action without the written consent of
(A) CP III, which consent may be given or
withheld in its sole discretion, to remove, whether or not for cause, any CP III
Nominee from any Dex Media Entities Board following his or her election thereto,
including, without limitation, by decreasing the size of such Dex Media Entities
Board such that there are an insufficient number of directors on such Dex Media
Entities Board to permit CP III to exercise its rights to nominate a director to
such Dex Media Entities Board pursuant to this Section 2;
(B) Carlyle Coinvest I, which consent may be
given or withheld in its sole discretion, to remove, whether or not for cause,
any Carlyle Coinvest I Nominee from any Dex Media Entities Board following his
or her election thereto, including, without limitation, by decreasing the size
of such Dex Media Entities Board such that there are an insufficient number of
directors on such Dex Media Entities Board to permit Carlyle Coinvest I to
exercise its rights to nominate a director to such Dex Media Entities Board
pursuant to this Section 2;
(C) Carlyle Coinvest II, which consent may be
given or withheld in its sole discretion, to remove, whether or not for cause,
any Carlyle Coinvest II Nominee from any Dex Media Entities Board following his
or her election thereto, including, without limitation, by decreasing the size
of such Dex Media Entities Board such that there are an insufficient number of
directors on such Dex Media Entities Board to permit Carlyle Coinvest II to
exercise its rights to nominate a director to such Dex Media Entities Board
pursuant to this Section 2;
(D) Welsh Carson IX, which consent may be given
or withheld in its sole discretion, to remove, whether or not for cause, any
Welsh Carson IX Nominee from any Dex Media Entities Board following his or her
election thereto, including, without limitation, by decreasing the size of such
Dex Media Entities Board such that there are an insufficient number of directors
on such Dex Media Entities Board to permit Welsh Carson IX to exercise its
rights to nominate a director to such Dex Media Entities Board pursuant to this
Section 2; and.
(E) WCAS Coinvest I, which consent may be given
or withheld in its sole discretion, to remove, whether or not for cause, any
WCAS Coinvest I Nominee from any Dex Media Entities Board following his or her
election thereto, including, without limitation, by decreasing the size of such
Dex Media Entities Board such that there are an insufficient number of directors
on such Dex Media Entities Board to permit WCAS Coinvest I to exercise its
rights to nominate a director to such Dex Media Entities Board pursuant to this
Section 2.
(e) If, during the term of this Agreement, any Member no
longer has a right to appoint a director pursuant to the Equityholders
Agreement, such Member shall have the right to appoint a representative to
attend as a non-voting observer (with respect to such Member, its "OBSERVER")
each and every meeting of any Dex Media Entity Board. The appointment and
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removal of a Member's Observer shall be by written notice from such Member to
the applicable Dex Media Entity and shall take effect upon the delivery of
written notice thereof at the such Dex Media Entity's headquarters, attention:
Chief Executive Officer. Each Observer shall receive, on a timely basis, copies
of all notices, minutes, consents, and other materials that the Dex Media
Entities provide to the members of its board (the "BOARD MATERIALS"), provided,
however, that the Dex Media Entities reserve the right to exclude such
representative from access to any meeting or any materials if it is reasonably
believed that such exclusion is necessary to preserve any privilege, to protect
confidential or otherwise proprietary information or for any other reason if the
applicable Dex Media Entity Board, acting in good faith, reasonably determines
that the presence of such Observer would not be appropriate given the subject
matter being discussed. Except to the extent so excluded, each Observer may
participate in discussions of any and all matters brought before any meeting it
attends as a non-voting observer.
3. Proxy.
For so long as this Agreement is in effect, if any Member fails or
refuses to vote that Member's Percentage Interest as provided in Section 2 (the
"NONVOTING MEMBER"), without further action by the Nonvoting Member,
(a) CP III shall have an irrevocable proxy to
vote the Nonvoting Member's Percentage Interest to the extent such vote relates
to any of the CP III Nominees, and each Member hereby grants to CP III such
irrevocable proxy;
(b) Carlyle Coinvest I shall have an irrevocable
proxy to vote the Nonvoting Member's Percentage Interest to the extent such vote
relates to any of the Carlyle Coinvest I Nominees, and each Member hereby grants
to Carlyle Coinvest I such irrevocable proxy;
(c) Carlyle Coinvest II shall have an
irrevocable proxy to vote the Nonvoting Member's Percentage Interest to the
extent such vote relates to any of the Carlyle Coinvest II Nominees, and each
Member hereby grants to Carlyle Coinvest II such irrevocable proxy;
(d) Welsh Carson IX shall have an irrevocable
proxy to vote the Nonvoting Member's Percentage Interest to the extent such vote
relates to any of the Welsh Carson IX Nominees, and each Member hereby grants to
Welsh Carson IX such irrevocable proxy; and
(e) WCAS Coinvest I shall have an irrevocable
proxy to vote the Nonvoting Member's Percentage Interest to the extent such vote
relates to any of the WCAS Coinvest I Nominees, and each Member hereby grants to
WCAS Coinvest I such irrevocable proxy.
4. Access to Financial Information. The Company shall
cause each of the other Dex Media Entities to provide each Member (i) with
reasonable access to all books of account at reasonable times and allow each of
the Members to make copies and abstracts thereof, and (ii) from time to time
with reasonable access to management of such Dex Media Entity at its
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respective places of business to consult with such management regarding
operating and financial matters.
5. Acceptance and Acknowledgment.
(a) The Company acknowledges that the provisions
of Section 2, together with Section 4, are intended to provide the Members with
"contractual management rights" within the meaning of ERISA and the regulations
promulgated thereunder.
(b) Each of the Dex Media Entities hereby
acknowledges and agrees to the rights granted to the Members hereunder.
6. Miscellaneous.
(a) Each party hereto agrees to execute and
deliver such documents and take such further actions as may be necessary or
desirable to effect the purposes and objectives of this Agreement.
(b) This Agreement may not be amended or
modified except by a written instrument signed by each of the parties hereto.
The waiver by any party of such party's rights under this Agreement in any
particular instance or instances, whether intentional or otherwise, shall not be
considered as a continuing waiver which would prevent subsequent enforcement of
such rights or of any other rights.
(c) All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
sent by recognized overnight delivery service, return receipt requested, to (i)
a Member shall be sent to or made at the addresses given for that Member on the
list attached to the Amended and Restated LLC Agreement as Exhibit A or such
other address as that Member may specify by notice to the other Members, with a
copy (in the case of notice to a Carlyle Holder) to Latham & Watkins, 885 Third
Avenue, Suite 1000, New York, NY 10022, Attn: Jed Brickner, and a copy (in the
case of notice to a WCAS Holder) to Reboul, MacMurray, Hewitt, Maynard &
Kristol, 45 Rockefeller Plaza, New York, NY 10111, Attn: Bill Hewitt, and (ii)
the Company shall be sent to or made the address for the Company set forth in
the Amended and Restated LLC Agreement. Any notice, request or consent to the
Company shall be given to each other Member. Notice so given shall be deemed to
be given and received on the second business day after sending by recognized
overnight delivery service, return receipt requested.
(d) The parties acknowledge and agree that the
breach of the provisions of this Agreement by any Member could not be adequately
compensated with monetary damages, and the parties hereto agree, accordingly,
that injunctive relief and specific performance shall be appropriate remedies to
enforce the provisions of this Agreement and waive any claim or defense that
there is an adequate remedy at law for such breach; provided, however, that
nothing herein shall limit the remedies herein, legal or equitable, otherwise
available and all remedies herein are in addition to any remedies available at
law or otherwise.
(e) This Agreement and those documents expressly
referred to herein constitute the entire agreement and understanding among the
parties and supersede all other prior
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agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof and thereof.
(f) If any provision of this Agreement shall be
held to be illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
(g) This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their heirs, administrators, executors,
successors and assigns.
(h) The headings of the Sections and paragraphs
of this Agreement have been inserted for convenience of reference only and do
not constitute a part of this Agreement.
(i) The parties agree that this Agreement shall
be governed by and construed in accordance with the laws of the state of
Delaware, excluding any laws thereof which would direct application of law of
another jurisdiction.
(j) This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, with the
same effect as if each party had signed the same document. All such counterparts
shall be deemed an original, shall be construed together and shall constitute
one and the same instrument.
(k) When the context requires, the gender of all
words used herein shall include the masculine, feminine and neuter and the
number of all words shall include the singular and plural.
(l) Subject to the Amended and Restated LLC
Agreement, this Agreement shall remain in effect with respect to the Company so
long as any of the Carlyle Holders or the WCAS Holders Beneficially Own any
Percentage Interest in the Company, and shall remain in effect with respect to
each of Dex Media Entity (other than the Company) so long as the Company
Beneficially Owns (directly or indirectly) shares of voting stock or membership
interests (as applicable) of such other Dex Media Entity representing not less
than 51% of the votes entitled to be cast for members of the applicable Dex
Media Entity Board.
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IN WITNESS WHEREOF, the Members have caused this Agreement to be
executed 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
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
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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
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WCAS HOLDERS
WELSH, CARSON, ANDERSON & STOWE IX, L.P.
By: WCAS IX Associates, LLC
as its General Partner
By: /s/ Anthony J. de Nicola
--------------------------------------
Name: Anthony J. de Nicola
Title: Managing Member
WD INVESTORS LLC
By: WCAS IX Associates, LLC,
as its General Partner
By: /s/ Anthony J. de Nicola
--------------------------------------
Name: Anthony J. de Nicola
Title: Managing Member
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DEX HOLDINGS LLC
By: /s/ James A. Attwood, Jr.
-----------------------------------
Name: James A. Attwood, Jr.
Title: Managing Director
DEX MEDIA, INC.
By: /s/ George Burnett
--------------------------------------
Name: George Burnett
Title: CEO and President
DEX MEDIA EAST, INC.
By: /s/ George Burnett
-------------------------------
Name: George Burnett
Title: CEO and President
DEX MEDIA EAST LLC
By: /s/ George Burnett
-------------------------------
Name: George Burnett
Title: CEO and President
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