Management Stockholders Agreement - Dex Media Inc., Dex Holdings LLC
AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
This Amended and Restated Management Stockholders Agreement
("Agreement") is entered into as of November 11, 2003, by and among Dex Media,
Inc., a Delaware corporation (the "Company"), Dex Holdings LLC, a Delaware
limited liability company ("Holdings LLC"), and each of the individual
purchasers who become parties hereto from time to time in accordance with the
terms hereof (each individually, a "Management Stockholder," and collectively,
the "Management Stockholders"). These parties are sometimes referred to herein
individually by name or as a "Party" and collectively as the "Parties."
RECITALS:
WHEREAS, each of the Management Stockholders is an employee,
executive officer, or director of the Company or one or more subsidiaries of the
Company;
WHEREAS, the Company has issued (or may hereafter issue) to
each Management Stockholder shares of the Company's common stock, par value
$0.01 per share ("Common Stock"), as a result of the exercise by such Management
Stockholder of vested options to purchase Common Stock ("Vested Options"), which
options were issued (or may hereafter be issued) to such Management Stockholder
pursuant to the Stock Option Plan of Dex Media, Inc. (the "Stock Option Plan")
or any other employee benefit plan hereafter adopted by the board of directors
of the Company (the "Board");
WHEREAS, pursuant to that certain Stock Purchase Agreement,
dated as of the date hereof (the "Management Stock Purchase Agreement"), between
the Company and certain of the Management Stockholders parties thereto, the
Company has issued and sold to such Management Stockholders, and such Management
Stockholders have purchased, the number of shares of Common Stock and the number
of shares of the Company's 5% series A preferred stock, par value $.01 per share
("Preferred Stock", and together with the Common Stock, the "Dex Capital Stock")
designated therein, on the terms and conditions set forth in the Management
Stock Purchase Agreement;
WHEREAS, the Company, Holdings LLC and the Management
Stockholders entered into the Management Stockholders Agreement, dated as of
November 8, 2002 (the "Original Management Stockholders Agreement") and now
desire to enter into this Agreement to provide for certain matters with respect
to the ownership and transfer by the Management Stockholders of all shares of
Dex Capital Stock now or hereafter issued to or acquired by the Management
Stockholders as a result of the exercise of Vested Options, their purchase of
such shares pursuant to the Management Stock Purchase Agreement or otherwise
(collectively, the "Restricted Shares").
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AGREEMENT:
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 that the Original Management
Stockholders Agreement is amended and restated in its entirety as follows:
Section 1. Sales to Third Parties.
(a) Each Management Stockholder hereby agrees that he or
she shall not sell, assign, transfer, convey, pledge or otherwise dispose of
(collectively, "Transfer") any Restricted Shares without the prior written
consent of the Company, which consent shall have been authorized by a majority
of the members of the Board and which consent may be (i) withheld in the sole
discretion of the Board, or (ii) given subject to reasonable terms and
conditions determined by the Board in its sole discretion. Each Management
Stockholder further agrees that in connection with any Transfer consented to by
the Company, the Management Stockholder shall, if requested by the Company,
deliver to the Company an opinion of counsel in form and substance reasonably
satisfactory to the Company and counsel for the Company, to the effect that the
Transfer is not in violation of this Agreement, the Securities Act of 1933, as
amended (the "Securities Act"), or the securities laws of any state. Any
purported Transfer in violation of the provisions of this Section 1 shall be
null and void and shall have no force or effect.
(b) (i) If a Management Stockholder (the "Offering
Stockholder") shall have received a bona fide offer or offers from a third party
or parties to purchase any Restricted Shares, and the Transfer shall have been
approved pursuant to Section 1(a), prior to selling any Restricted Shares to the
third party or parties, the Offering Stockholder shall deliver the Company a
letter signed by the Offering Stockholder setting forth: (A) the name of the
third party or parties; (B) the prospective purchase price per share of the
Restricted Shares; (C) all material terms and conditions contained in the offer
of the third party or parties; and (D) the Offering Stockholder's offer
(irrevocable by its terms for 60 days following receipt) to sell to the Company
all (but not less than all) of the Restricted Shares covered by the offer of the
third party or parties, for a purchase price per share and on other terms and
conditions not less favorable to the Company than those contained in the offer
of the third party or parties (an "Offer").
(ii) If, upon the expiration of 60 days following
receipt by the Company of the letter described in Section 1(b)(i), the Company
shall not have accepted the Offer, the Management Stockholder may on or prior to
the 90th day following the receipt of such letter sell to the third party or
parties all (but not less than all) of the Restricted Shares covered by the
Offer, for the purchase price and on the other terms and conditions contained in
the Offer.
(iii) If the Company accepts the Offer, the
Company shall, in its discretion, select a closing date (not less than 60 nor
more than 90 days following the date of the Management Stockholder's Offer
letter but in any event subject to the receipt by the Company of all necessary
governmental approvals) for the purchase of Restricted Shares by the Company
(which closing shall, unless otherwise mutually agreed, be consummated at the
principal offices of the Company). On such date, the Management Stockholder
shall transfer the Restricted
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Shares subject to such Offer to the Company, free and clear of all liens and
encumbrances, by delivering to the Company the certificates representing the
Restricted Shares to be purchased, duly endorsed for transfer to the Company or
accompanied by a stock power duly executed in blank, and the Company shall pay
to the Management Stockholder the Offer price.
(c) Notwithstanding the foregoing, nothing in this
Section 1 shall prevent the Transfer of any Restricted Shares by any Management
Stockholder to (i) the Company or Holdings LLC; (ii) any member of a Management
Stockholder's immediate family or trusts for their benefit provided the
Management Stockholder retains the sole and exclusive right to vote or dispose
of any Restricted Shares transferred to the family member or trust; and (iii)
upon a Management Stockholder's death, the Management Stockholder's executors,
administrators, testamentary trustees, legatees and beneficiaries (with
Transfers pursuant to clause (ii) or (iii) being referred to as a "Permitted
Transfer" and the related transferee, a "Permitted Transferee").
(d) Each Management Stockholder agrees that, as a
condition precedent to any Transfer described in this Section 1, each transferee
described in this Section 1 (other than the Company or Holdings LLC) shall
deliver to the Company a copy of this Agreement signed by such transferee.
Section 2. Rights to Repurchase Shares.
(a) With respect to all Restricted Shares held by any
Management Stockholder (and its Permitted Transferees), during the period
beginning on the date of the Management Stockholder's Termination of Employment
(as defined below) and ending on the later of (i) the seven month anniversary of
such Termination of Employment; or (ii) the seven month anniversary of the date
of the exercise of any Vested Options held by any Management Stockholder as of
the time of the Management Stockholder's Termination of Employment, the Company
shall have the option to repurchase Restricted Shares held by the Management
Stockholder or his or her successor in interest thereunder ("Call Right"). The
Call Right may be exercised more than once, but must be exercised with respect
to all (but not less than all) of the Restricted Shares outstanding on the date
of any Call Notice (as defined below). The repurchase price payable by the
Company upon exercise of the Call Right ("Repurchase Price") shall be the Fair
Market Value (as defined below) of the Restricted Shares subject to the Call
Right on the date of the Call Notice. The Call Right shall be exercised by
written notice ("Call Notice") to the Management Stockholder given in accordance
with Section 7(f) of this Agreement on or prior to the last date on which the
Call Right may be exercised by the Company. For purposes of this Agreement,
"Termination of Employment" shall mean the time when the employee-employer
relationship between a Management Stockholder and the Company or one of its
subsidiaries is terminated for any reason, with or without cause, including, but
not by way of limitation, a termination by resignation, discharge, death or
retirement, but excluding a termination where there is a simultaneous
reemployment by the Company or one of its subsidiaries. The committee appointed
to administer the Stock Option Plan (the "Committee") or the Board shall
determine the effect of all matters and questions relating to Termination of
Employment, including, but not by way of limitation, all questions of whether a
particular leave of absence constitutes a Termination of Employment.
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(b) In addition, the Company shall have a Call Right
effective immediately prior to any Change in Control (as defined below) to occur
following the date hereof. For purposes of this Agreement: (i) "Change in
Control" shall mean shall mean a change in beneficial ownership or control of
the Company effected through a transaction or series of transactions (other than
an offering of Common Stock to the general public through a registration
statement filed with the Securities and Exchange Commission) whereby any
"person" or related "group" of "persons" (as such terms are used in Sections
13(d) and 14(d)(2) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) (other than the Company, any of its subsidiaries, an employee
benefit plan maintained by the Company or any of its subsidiaries, a Principal
Stockholder (as defined below) or a "person" that, prior to such transaction,
directly or indirectly controls, is controlled by, or is under common control
with, the Company or a Principal Stockholder) directly or indirectly acquires
beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act)
of securities of the Company possessing more than 50% of the total combined
voting power of the Company's securities outstanding immediately after such
acquisition; (ii) "Principal Stockholders" shall mean Carlyle Partners III, L.P.
a Delaware limited partnership; Welsh, Carson, Anderson & Stowe IX, L.P., a
Delaware limited partnership; and each of their respective Affiliates; and (iii)
"Affiliate" shall mean, with respect to any individual, partnership,
corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, joint venture, governmental authority or
other entity of whatever nature (each, a "Person"), any other Person directly or
indirectly controlling, controlled by, or under common control with, such Person
where "control" shall have the meaning given such term under Rule 405 of the
Securities Act.
(c) Subject to Section 2(f) below, the repurchase of
Restricted Shares pursuant to the exercise of a Call Right shall take place on a
date specified by the Company, but in no event following the later of the 60th
day following the date of the Call Notice or the 10th day following the receipt
by the Company of all necessary governmental approvals. On such date, the
Management Stockholder shall transfer the Restricted Shares subject to the Call
Notice to the Company, free and clear of all liens and encumbrances, by
delivering to the Company the certificates representing the Restricted Shares to
be purchased, duly endorsed for transfer to the Company or accompanied by a
stock power duly executed in blank, and the Company shall pay to the Management
Stockholder the Repurchase Price. The Company and the Management Stockholder
each shall use his, her or its reasonable efforts to expedite all proceedings
contemplated hereunder to obtain a determination of the Repurchase Price of the
Restricted Shares at the earliest practicable date.
(d) (i) In the case of any transfer of title or
beneficial ownership of Restricted Shares upon default, foreclosure, forfeit,
divorce, court order or otherwise, other than by a voluntary decision on the
part of a Management Stockholder (each, an "Involuntary Transfer"), the
Management Stockholder shall promptly (but in no event later than two days after
the Involuntary Transfer) furnish written notice (the "Involuntary Transfer
Notice") to the Company indicating that the Involuntary Transfer has occurred,
specifying the name of the person to whom the shares were transferred (the
"Involuntary Transferee"), giving a detailed description of the circumstances
giving rise to, and stating the legal basis for, the Involuntary Transfer.
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(ii) Upon the receipt of the Involuntary Transfer
Notice, and for 60 days thereafter, the Company shall have the right to
repurchase, and the Involuntary Transferee shall have the obligation to sell,
all (but not less than all) of the Restricted Shares acquired by the Involuntary
Transferee for a repurchase price equal to the Fair Market Value of such
Restricted Shares as of the date of the Involuntary Transfer (the "Involuntary
Transfer Repurchase Price" and such right, the "Involuntary Transfer Repurchase
Right"). The Involuntary Transfer Repurchase Right shall be exercised by written
notice (the "Involuntary Transfer Repurchase Notice") to the Involuntary
Transferee given in accordance with Section 7(f) of this Agreement on or prior
to the last date on which the Involuntary Transfer Repurchase Right may be
exercised by the Company.
(iii) Subject to Section 2(f) below, the
repurchase of Restricted Shares pursuant to the exercise of the Involuntary
Transfer Repurchase Right shall take place on a date specified by the Company,
but in no event following the later of the 60th day following the date of the
date of the Involuntary Transfer Repurchase Notice or the 10th day following the
receipt by the Company of all necessary governmental approvals. On such date,
the Involuntary Transferee shall transfer the Restricted Shares subject to the
Involuntary Transfer Repurchase Notice to the Company, free and clear of all
liens and encumbrances, by delivering to the Company the certificates
representing the Restricted Shares to be purchased, duly endorsed for transfer
to the Company or accompanied by a stock power duly executed in blank, and the
Company shall pay to the Involuntary Transferee the Involuntary Transfer
Repurchase Price. The Company and the Involuntary Transferee each shall use his,
her or its reasonable efforts to expedite all proceedings contemplated hereunder
to obtain a determination of the Involuntary Transfer Repurchase Price of the
Restricted Shares at the earliest practicable date. If the Involuntary
Transferee does not transfer the Restricted Shares to the Company as required,
the Company will cancel such Restricted Shares and deposit the funds in a
non-interest bearing account and make payment upon delivery.
(e) The "Fair Market Value" of Restricted Shares, as of
any date of determination, shall be determined by the Board as follows:
(i) If such Restricted Shares are listed on one
or more National Securities Exchanges (within the meaning of the Exchange Act),
each such Restricted Share so listed to be repurchased shall be valued at the
closing price of such Restricted Share on the principal exchange on which such
shares are then trading on the most recent trading day preceding such date of
determination;
(ii) If such Restricted Shares are not traded on
a National Securities Exchange but is quoted on Nasdaq or a successor quotation
system and such Restricted Shares are listed as a National Market Issue under
the NASD National Market System, each such Restricted Share to be repurchased
shall be valued at the mean between the closing representative bid and asked
prices for such Restricted Share on the most recent trading day preceding such
date of determination as reported by Nasdaq or such successor quotation system;
or
(iii) If such Restricted Shares are not publicly
traded on a National Securities Exchange and are not quoted on Nasdaq or a
successor quotation system, the Fair
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Market Value of such Restricted Shares to be repurchased shall be determined in
good faith by the Committee or the Board.
(f) Notwithstanding anything to the contrary herein,
(i) The Company shall not be permitted to
purchase any Restricted Shares held by any Management Stockholder or Involuntary
Transferee upon exercise of the Call Right or the Involuntary Transfer
Repurchase Right if the Board determines that:
(A) The purchase of Restricted Shares
would render the Company or its subsidiaries unable to meet their obligations in
the ordinary course of business taking into account any pending or proposed
transactions, capital expenditures or other budgeted cash outlays by the
Company, including, without limitation, any proposed acquisition of any other
entity by the Company or any of its subsidiaries;
(B) The Company is prohibited from
purchasing the Restricted Shares by applicable law restricting the purchase by a
corporation of its own shares; or
(C) The purchase of Restricted Shares
would constitute a breach of, default, or event of default under, or is
otherwise prohibited by, the terms of any loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party (the
"Financing Documents") or the Company is not able to obtain the requisite
consent of any of its senior lenders to the purchase of the Restricted Shares.
The events described in (A) through (C) above each constitute a "Repurchase
Disability."
(ii) In the event of a Repurchase Disability, the
Company shall notify in writing the Management Stockholder or Involuntary
Transferee with respect to whom the Call Right or the Involuntary Transfer
Repurchase Right has been exercised (a "Disability Notice"). The Disability
Notice shall specify the nature of the Repurchase Disability. The Company shall
thereafter repurchase the Restricted Shares described in the Call Notice or
Involuntary Transfer Repurchase Notice as soon as reasonably practicable after
all Repurchase Disabilities cease to exist (or the Company may elect, but shall
have no obligation, to cause its nominee to repurchase the Restricted Shares
while any Repurchase Disabilities continue to exist). In the event the Company
suspends its obligations to repurchase the Restricted Shares pursuant to a
Repurchase Disability, (A) the Company shall provide written notice to each
applicable Management Stockholder or Involuntary Transferee as soon as
practicable after all Repurchase Disabilities cease to exist (the "Reinstatement
Notice"); (B) the Fair Market Value of the Restricted Shares subject to the Call
Notice or Involuntary Transfer Repurchase Notice shall be determined as of the
date the Reinstatement Notice is delivered to the Management Stockholder or
Involuntary Transferee, which Fair Market Value shall be used to determine the
Repurchase Price or Involuntary Transfer Repurchase Price in the manner
described above; and (C) the repurchase shall occur on a date specified by the
Company within 10 days following the determination of the Fair Market Value of
the Restricted Shares to be repurchased as provided in subsection (B) above.
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Section 3. Bring-Along Rights.
(a) If Holdings LLC (or, following any liquidation or
dissolution of Holdings LLC, holders of 51% or more of the outstanding shares of
Dex Capital Stock) (such party, the "Seller Party") at any time, or from time to
time, in one transaction or a series of related transactions, proposes to
Transfer shares of Dex Capital Stock (or rights to acquire Dex Capital Stock) to
one or more Persons (a "Third Party Purchaser"), then the Seller Party shall
have the right (a "Bring-Along Right"), but not the obligation, to require each
Management Stockholder to tender for purchase to the Third Party Purchaser, on
the same terms and conditions as apply to the Seller Party, a number of
Restricted Shares and Vested Options (including any options that vest as a
result of the consummation of the Transfer to the Third Party Purchaser) that,
in the aggregate, equal the lesser of (A) the number derived by multiplying (1)
the total number of Restricted Shares owned by the Management Stockholder
(including Restricted Shares issuable in respect of all Vested Options held by
the Management Stockholder whether or not exercised and including any options
that vest as a result of the consummation of the Transfer to the Third Party
Purchaser); by (2) a fraction, the numerator of which is the total number of
shares of Dex Capital Stock to be sold by the Seller Party in connection with
the transaction or series of related transactions and the denominator of which
is the total number of the then outstanding shares of Dex Capital Stock and
Vested Options held by the Seller Party; or (B) the number of shares as the
Seller Party shall designate in the Bring-Along Notice (as defined below).
(b) If the Seller Party elects to exercise its
Bring-Along Right under this Section 3 with respect to the Restricted Shares
held by the Management Stockholders, the Seller Party shall notify each
Management Stockholder in writing (collectively, the "Bring-Along Notices").
Each Bring-Along Notice shall set forth: (i) the proposed amount and form of
consideration and terms and conditions of payment offered by the Third Party
Purchaser(s) and a summary of any other material terms pertaining to the
Transfer ("Third Party Terms"); and (ii) the number of Restricted Shares and
Vested Options that the Seller Party elects each Management Stockholder to sell
in the Transfer. The Bring-Along Notices shall be given at least five days
before the closing of the proposed Transfer.
(c) Upon the giving of a Bring-Along Notice, each
Management Stockholder shall be obligated to sell the number of Restricted
Shares and Vested Options set forth in each Management Stockholder's Bring-Along
Notice on the Third Party Terms.
(d) At the closing of the Transfer to any Third Party
Purchaser(s) pursuant to this Section 3, the Third Party Purchaser(s) shall
remit to the Management Stockholder the consideration for the total sales price
of the Dex Capital Stock and Vested Options held by the Management Stockholder
sold pursuant hereto minus any consideration to be escrowed or otherwise held
back in accordance with the Third Party Terms, and minus the aggregate exercise
price of any Vested Options being Transferred by the Management Stockholder to
the Third Party Purchaser(s), against delivery by the Management Stockholder of
certificates for Dex Capital Stock, duly endorsed for Transfer or with duly
executed stock powers and an instrument evidencing the transfer or the
cancellation of the Vested Options subject to the Bring-Along Right reasonably
acceptable to the Company, and the compliance by the Management Stockholder with
any other conditions to closing generally applicable to the Seller Party and all
other holders of Dex Capital Stock selling shares in the transaction.
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Section 4. Tag-Along Rights.
(a) Subject to the prior exercise of the Company's Call
Right pursuant to Section 2(b), if the Seller Party at any time proposes to
Transfer shares of Dex Capital Stock (or rights to acquire Dex Capital Stock) to
a Third Party Purchaser, in a single Transfer or a series of related Transfers
constituting a Change in Control, then each Management Stockholder shall have
the right (the "Tag-Along Right") to require that the proposed Third Party
Purchaser purchase from such Management Stockholder up to the number of whole
Restricted Shares (including any Restricted Shares issuable upon the exercise of
Vested Options or any options that vest as a result of the consummation of the
Transfer to the Third Party Purchaser) equal to the number derived by
multiplying (x) the total number of shares of Dex Capital Stock that the
proposed Third Party Purchaser has agreed or committed to purchase, by (y) a
fraction, the numerator of which is the total number of Restricted Shares
(including any Restricted Shares issuable upon the exercise of Vested Options
(including options that vest as a result of the consummation of the Transfer to
the Third Party Purchaser)) owned by the Management Stockholder, and the
denominator of which is the aggregate number of shares of Dex Capital Stock
owned by the Seller Party, the Management Stockholder and all other holders of
Dex Capital Stock who have exercised a Tag-Along Right similar to the rights
granted to the Management Stockholder in this Section 4 (including any
Restricted Shares issuable upon the exercise of all Vested Options (including
options that vest as a result of the consummation of the Transfer to the Third
Party Purchaser)). The intent of this computation is to accord to the Management
Stockholder the right to sell the same percentage of its holdings of Dex Capital
Stock as the Seller Party is entitled to sell in such transaction. Any
Restricted Shares purchased from the Management Stockholder pursuant to this
Section 4(a) shall be purchased upon the same terms and conditions as such
proposed Transfer by the Seller Party.
(b) The Seller Party shall notify each Management
Stockholder in writing in the event the Seller Party proposes to make a Transfer
or series of Transfers giving rise to a Tag-Along Right at least seven (7)
business days prior to the date on which the Seller Party expects to consummate
such Transfer (the "Sale Notice") which notice shall specify the number of
shares of Dex Capital Stock which the Third Party Purchaser intends to purchase
in such Transfer. The Tag-Along Right may be exercised by any Management
Stockholder by delivery of a written notice to the Seller Party proposing to
sell Restricted Shares (the "Tag-Along Notice") within five (5) business days
following receipt of the Sale Notice from the Seller Party. The Tag-Along Notice
shall state the number of Restricted Shares that the Management Stockholder
proposes to include in such Transfer to the proposed Third Party Purchaser (not
to exceed the number as determined above). In the event that the proposed Third
Party Purchaser does not purchase the specified number of Restricted Shares from
the Management Stockholder on the same terms and conditions as specified in the
Sale Notice, then the Seller Party shall not be permitted to sell any shares of
Dex Capital Stock to the proposed Third Party Purchaser unless the Seller Party
purchases from the Management Stockholder such specified number of Restricted
Shares on the same terms and conditions as specified in such Sale Notice.
(c) At the closing of the Transfer to any Third Party
Purchaser pursuant to this Section 4, the Third Party Purchaser shall remit to
each Management Stockholder who exercised its Tag-Along Right the consideration
for the total sales price of the Dex Capital Stock held by such Management
Stockholder sold pursuant hereto minus any such consideration to be
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escrowed or otherwise held back in accordance with the Third Party Terms and
minus the aggregate exercise price of any Vested Options being Transferred by
the Management Stockholder to the Third Party Purchaser, against delivery by the
Management Stockholder of certificates for Dex Capital Stock, duly endorsed for
Transfer or with duly executed stock powers and an instrument evidencing the
transfer or the cancellation of the Vested Options subject to the Tag-Along
Right reasonably acceptable to the Company, and the compliance by the Management
Stockholder with any other conditions to closing generally applicable to the
Seller Party and all other holders of Dex Capital Stock selling shares in the
transaction.
Section 5. Cooperation.
(a) In the event that any Seller Party exercises its
rights pursuant to Section 3, each Management Stockholder shall consent to and
raise no objections against the transaction, and if the transaction is
structured as a sale of stock, each Management Stockholder shall take all
actions that the Board reasonably deems necessary or desirable in connection
with the consummation of the transaction. Without limiting the generality of the
foregoing, each Management Stockholder agrees to (i) consent to and raise no
objections against the transaction; (ii) execute any stock purchase agreement,
merger agreement or other agreement entered into with the Third Party Purchaser
with respect to the transaction setting forth the Third Party Terms and any
ancillary agreement with respect thereto; (iii) shall vote the Dex Capital Stock
held by the Management Stockholder in favor of the transaction; and (iv) shall
refrain from the exercise of dissenters' appraisal rights with respect to the
transaction.
(b) If the Company or the holders of the Company's
securities enter into any negotiation or transaction for which Rule 506 (or any
similar rule then in effect) promulgated under the Securities Act, may be
available with respect to the negotiation or transaction (including a merger,
consolidation, or other reorganization), each Management Stockholder shall, if
requested by the Company, appoint a purchaser representative (as defined in Rule
501 of the Securities Act) reasonably acceptable to the Company. If the
purchaser representative is designated by the Company, the Company shall pay the
fees of the purchaser representative, but if any Management Stockholder appoints
another purchaser representative, the Management Stockholder shall be
responsible for the fees of the purchaser representative so appointed.
(c) Each Management Stockholder shall bear its pro-rata
share of the costs of any transaction in which it sells Restricted Shares or
Vested Options (based upon the number of Restricted Shares and Vested Options
held by the Management Stockholder that are sold in such transaction) to the
extent such costs are incurred for the benefit of all holders of Dex Capital
Stock and Vested Options and are not otherwise paid by the Company or the
acquiring party.
Section 6. Termination. This Agreement shall terminate on the
first to occur of:
(a) The date the Company consummates an underwritten
public offering of at least $500,000,000 of Common Stock by the Company pursuant
to an effective registration statement filed by the Company with the United
States Securities and Exchange Commission (other than on Forms S-4 or S-8 or
successors to such forms) under the Securities Act;
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(b) The complete liquidation of the Company or an
agreement for the sale, lease or other disposition by the Company of all or
substantially all of the Company's assets; or
(c) The execution of a resolution of the Board terminating
this Agreement
provided, however, that, except as set forth in subsection (c), in no event
shall this Agreement terminate prior to November 8, 2005.
Section 7. Miscellaneous.
(a) Legends. Each certificate representing the Restricted
Shares shall bear the following legends:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT AND SAID LAWS OR AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF."
"THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO ADDITIONAL
RESTRICTIONS ON TRANSFER AND CERTAIN OTHER AGREEMENTS SET
FORTH IN THE AMENDED AND RESTATED MANAGEMENT STOCKHOLDERS
AGREEMENT OF THE COMPANY ENTERED INTO AS OF NOVEMBER 11, 2003.
A COPY OF SUCH AGREEMENT SHALL BE FURNISHED WITHOUT CHARGE BY
THE COMPANY TO THE HOLDER HEREOF UPON WRITTEN REQUEST."
(b) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Parties hereto and their respective
legal representatives, heirs, legatees, successors and assigns and shall also
apply to any Restricted Shares acquired by any Management Stockholder after the
date hereof.
(c) Specific Performance, Etc. Each Party, in addition to
being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, shall be entitled to specific performance of the
Party's rights under this Agreement. Each Party agrees that monetary damages
would not be adequate compensation for any loss incurred by reason of a breach
by the Party of the provisions of this Agreement and each Party hereby agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(d) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the state of Delaware.
(e) Interpretation. The headings of the Sections
contained in this Agreement are solely for the purpose of reference, are not
part of the agreement of the Parties and shall not affect the meaning or
interpretation of this Agreement.
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(f) Notices. All notices and other communications
provided for or permitted hereunder shall be in writing and shall be deemed to
have been duly given and received when delivered by overnight courier or hand
delivery, when sent by telecopy, or five days after mailing if sent by
registered or certified mail (return receipt requested) postage prepaid, to the
Parties at the following addresses (or at such other address for any Party as
shall be specified by like notices, provided that notices of a change of address
shall be effective only upon receipt thereof).
(i) If to the Company at:
Dex Media, Inc.
198 Inverness Drive West
Englewood, CO 80112
Attention: Vice President of Human Resources
Facsimile: (303) 784-1964
with copies to Holdings LLC at the address
set forth below and:
Latham & Watkins LLP
885 Third Avenue
New York, New York
Attention: R. Ronald Hopkinson
Facsimile: (212) 751-4864
(ii) If to Holdings LLC at:
Carlyle Management Group
520 Madison Avenue
41st Floor
New York, New York 10022
Attention: James A. Atwood, Jr.
Facsimile: (212) 381-4901
and
Welsh, Carson, Anderson & Stowe
320 Park Avenue
Suite 2500
New York, New York 10022
Attention: Anthony J. de Nicola
Facsimile: (212) 893-9548
with a copy to Latham & Watkins LLP, at the
address set forth above.
(iii) If to a Management Stockholder, to the
address set forth on the Management Stockholder's signature page hereto.
11
<PAGE>
(g) Recapitalization, Exchange, Etc. Affecting the
Company's Stock. The provisions of this Agreement shall apply, to the full
extent set forth herein, with respect to any and all shares of Dex Capital Stock
and all of the shares of capital stock of the Company or any successor or assign
of the Company (whether by merger, consolidation, sale of assets, business
combination or otherwise) that may be issued in respect of, in exchange for, or
in substitution of such Dex Capital Stock and shall be appropriately adjusted
for any stock dividends, splits, reverse splits, combinations,
recapitalizations, and the like occurring after the date hereof.
(h) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to constitute one and the same agreement.
(i) Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal, or unenforceable in any respect for any
reason, the validity, legality, and enforceability of any such provision in
every other respect and of the remaining provisions contained herein shall not
be in any way impaired thereby.
(j) Amendment. This Agreement may be amended by
resolution of the Board provided the amendment has been approved by Holdings
LLC. At any time hereafter, additional Management Stockholders may be made
parties hereto by executing a signature page in the form attached as Exhibit A
hereto, which signature page shall be countersigned by the Company and shall be
attached to this Agreement and become a part hereof without any further action
of any other Party hereto.
(k) Tax Withholding. The Company shall be entitled to
require payment in cash or deduction from other compensation payable to any
Management Stockholder of any sums required by federal, state, or local tax law
to be withheld with respect to the issuance, vesting, exercise, repurchase, or
cancellation of any Restricted Share or any option to purchase Restricted
Shares.
(l) No Employment Rights. Nothing contained in this
Agreement (i) obligates the Company or any Affiliate of the Company to employ
any Management Stockholder in any capacity whatsoever; or (ii) prohibits or
restricts the Company or any Affiliate of the Company from terminating the
employment, if any, of any Management Stockholder at any time or for any reason
whatsoever and each Management Stockholder hereby acknowledges and agrees that,
except as may otherwise be set forth in any written agreement between the
Company and such Management Stockholder, neither the Company nor any other
person has made any representations or promises whatsoever to such Management
Stockholder concerning his or her employment or continued employment by the
Company or any Affiliate of the Company.
(m) Offsets. The Company shall be permitted to offset and
reduce from any amounts payable to a Management Stockholder the amount of any
indebtedness or other obligation or payment owing to the Company by the
Management Stockholder.
(n) Entire Agreement. This writing constitutes the entire
agreement of the Parties with respect to the subject matter hereof.
12
<PAGE>
[signature pages follow]
13
<PAGE>
IN WITNESS WHEREOF, the undersigned have executed this
Agreement on the date first written above.
DEX MEDIA, INC.
By: /s/ George Burnett
-------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
-------------------------------
Its: George Burnett, Vice President
Each Management Stockholder has agreed to be bound by the
terms of this Agreement by execution and delivery of the signature page set
forth as Exhibit A hereto.
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Francis Barker hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Francis B. Barker
-------------------------------
Francis Barker
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
---------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
---------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Anthony Basile hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Anthony Basile
---------------------------------
Anthony Basile
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
---------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
---------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, George Burnett hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ George Burnett
---------------------------------
George Burnett
Accepted:
DEX MEDIA, INC.
By: /s/ Robert M. Neumeister
---------------------------------------------------
Its: Robert M. Neumeister, EVP and Chief Financial Officer
DEX HOLDINGS LLC
By: /s/ Robert M. Neumeister
-----------------------------------------------------
Its: Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Frank M. Eichler hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Frank M. Eichler
------------------------------------------
Frank M. Eichler
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Robert Houston hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Robert Houston
--------------------------------
Robert Houston
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Margaret Le Beau hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Margaret Le Beau
----------------------------------
Margaret Le Beau
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
---------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
---------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Linda Martin hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Linda A. Martin
------------------------------------
Linda Martin
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
---------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
---------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, John W. Meyer hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ John W. Meyer
----------------------------
John W. Meyer
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Marilyn B. Neal hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Marilyn B. Neal
---------------------------------
Marilyn Neal
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Robert M. Neumeister, Jr.
hereby agrees to become a party to, be bound by the obligations of, and receive
the benefits of, that certain Amended and Restated Management Stockholders
Agreement of Dex Media, Inc. originally dated as of November 8, 2002 by and
among Dex Media, Inc., Dex Holdings LLC and certain other parties named therein,
as amended from time to time thereafter.
/s/ Robert M. Neumeister, Jr.
-----------------------------------
Robert M. Neumeister, Jr.
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, the Elizabeth Anne
Neumeister Trust (the "EAN Trust") hereby agrees to become a party to, be bound
by the obligations of, and receive the benefits of, that certain Amended and
Restated Management Stockholders Agreement of Dex Media, Inc. originally dated
as of November 8, 2002 by and among Dex Media, Inc. (the "Company"), Dex
Holdings LLC ("Holdings LLC") and certain other parties named therein, as
amended from time to time thereafter (the "MSA"). The EAN Trust, the Company and
Holdings LLC hereby acknowledge and agree that unless the context clearly
indicates otherwise (a) for purposes of Section 2 of the MSA relating to
"Termination of Employment", the "Management Stockholder" for purposes of the
MSA shall be Robert M. Neumeister, Jr., and (b) for all other purposes under the
MSA (as it relates to the EAN Trust), the EAN Trust shall be considered, and
shall have the rights and obligations of, a "Management Stockholder".
ELIZABETH ANNE NEUMEISTER TRUST
/s/ Mary Anne Neumeister
----------------------------------
Trustee
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, the Jennifer Lee
Neumeister Trust (the "JLN Trust") hereby agrees to become a party to, be bound
by the obligations of, and receive the benefits of, that certain Amended and
Restated Management Stockholders Agreement of Dex Media, Inc. originally dated
as of November 8, 2002 by and among Dex Media, Inc. (the "Company"), Dex
Holdings LLC ("Holdings LLC") and certain other parties named therein, as
amended from time to time thereafter (the "MSA"). The JLN Trust, the Company and
Holdings LLC hereby acknowledge and agree that unless the context clearly
indicates otherwise (a) for purposes of Section 2 of the MSA relating to
"Termination of Employment", the "Management Stockholder" for purposes of the
MSA shall be Robert M. Neumeister, Jr., and (b) for all other purposes under the
MSA (as it relates to the JLN Trust), the JLN Trust shall be considered, and
shall have the rights and obligations of, a "Management Stockholder".
JENNIFER LEE NEUMEISTER TRUST
/s/ Mary Anne Neumeister
----------------------------------
Trustee
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Scott Pomeroy hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Scott Pomeroy
-------------------------------
Scott Pomeroy
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Bradley Richards hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Bradley Richards
----------------------------------
Bradley Richards
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President
<PAGE>
EXHIBIT A
SIGNATURE PAGE
TO THE AMENDED AND RESTATED
MANAGEMENT STOCKHOLDERS AGREEMENT
OF
DEX MEDIA, INC.
By execution of this signature page, Kristine Shaw hereby
agrees to become a party to, be bound by the obligations of, and receive the
benefits of, that certain Amended and Restated Management Stockholders Agreement
of Dex Media, Inc. originally dated as of November 8, 2002 by and among Dex
Media, Inc., Dex Holdings LLC and certain other parties named therein, as
amended from time to time thereafter.
/s/ Kristine Shaw
------------------------------
Kristine Shaw
Accepted:
DEX MEDIA, INC.
By: /s/ George Burnett
----------------------------------
Its: George Burnett, CEO and President
DEX HOLDINGS LLC
By: /s/ George Burnett
----------------------------------
Its: George Burnett, Vice President