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Title: |
Stockholders Agreement |
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Date: |
2007 |
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Size: |
Preview shows 19KB of 79KB total |
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Price: |
$47 |
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ID: |
#3027685 |
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MSG WC HOLDINGS CORP.
STOCKHOLDERS AGREEMENT
THIS STOCKHOLDERS AGREEMENT (this ?Agreement?) is made as of August 1, 2006 by and among (i) MSG WC Holdings Corp., a Delaware corporation (the ?Company?), (ii) Welsh, Carson, Anderson & Stowe X, L.P., a Delaware limited partnership (?WCAS X?), (iii) WCAS Capital Partners IV, L.P., a Delaware limited partnership (?CP IV?), (iv) WCAS Management Corporation, a Delaware corporation (?WCAS Management Corporation?), (v) de Nicola Holdings, L.P. (together with WCAS X, CP IV and WCAS Management Corporation, the ?WCAS Investors?), (vi) the Persons set forth on Schedule Aattached hereto as Co-Investors (the ?Co-Investors?), (vii) the Persons set forth on Schedule A attached hereto as Management Stockholders (the ?Management Stockholders? and together with the WCAS Investors and the Co-Investors, the ?Initial Stockholders?), and (viii) each holder of Acquired Securities after the date hereof (individually, an ?Additional Stockholder? and collectively the ?Additional Stockholders?, together with the Initial Stockholders, the ?Stockholders?, and each individually, a ?Stockholder?). Unless otherwise specified herein, all of the capitalized terms used herein are defined in Section 1 hereof.
WHEREAS, the WCAS Investors, the Co-Investors and certain Management Stockholders shall purchase or acquire shares of Common Stock pursuant to a stock purchase agreement between such purchasers and the Company dated as of the date hereof (as such agreement may be amended or otherwise modified from time to time, the ?Purchase Agreement?) and the Company has granted options to purchase shares of Common Stock to certain Management Stockholders pursuant to option agreements dated as of the date hereof (the ?Option Agreements?); and
WHEREAS, the Company and the Stockholders desire to enter into this Agreement for the purposes, among others, of (i) establishing the composition of the Company?s Board of Directors (the ?Board?), (ii) assuring continuity in the management and ownership of the Company and (iii) limiting the manner and terms by which the Stockholder Shares may be transferred. The execution and delivery of this Agreement is a condition to each purchaser?s purchase of the Common Stock pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows:
1. Definitions.
?Acquired Securities? has the meaning set forth in Section 13.
?Additional Stockholder? has the meaning set forth in the preamble.
?Affiliate? of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where ?control? means the possession,
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directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities, contract or otherwise (provided that the Company or any of its Subsidiaries shall not be deemed an Affiliate of any Stockholder).
?Agreement? has the meaning set forth in the preamble.
?Approved Sale? has the meaning set forth in Section 9.
?Attorney-In-Fact? has the meaning set forth in Section 3.
?Board? has the meaning set forth in the preamble.
?Co-Investors? has the meaning set forth in the preamble.
?Common Stock? means the Company?s Common Stock, par value $0.01 per share.
?Company? has the meaning set forth in the preamble.
??Electing Offeree? has the meaning set forth in Section 5(a)(ii).
?Election Notice? has the meaning set forth in Section 5(a)(ii).
?Election Period? has the meaning set forth in Section 5(a)(ii).
?Equity Securities? of a Person means, as applicable, (i) any capital stock, membership interests or other share capital of such Person, (ii) any securities of such Person, directly or indirectly convertible into or exchangeable for any capital stock, membership interests or other share capital of such Person or containing any profit participation features with respect to such Person, (iii) any rights or options directly or indirectly to subscribe for or to purchase any capital stock, membership interests, other share capital of such Person or securities containing any profit participation features with respect to such Person or directly or indirectly to subscribe for or to purchase any securities directly or indirectly convertible into or exchangeable for any capital stock, membership interests, other share capital of such Person or securities containing any profit participation features with respect to such Person, (iv) any share appreciation rights, phantom share rights or other similar rights relating to such Person, or (v) any Equity Securities of such Person issued or issuable with respect to the securities referred to in clauses (i) through (iv) above in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization.
?Exempt Transfer? means any Transfer pursuant to a Public Sale.
?Family Group? means, with respect to any natural person, such person?s spouse, ancestors and descendants (whether natural or adopted) and any trust or other entity (including a partnership or limited liability company) solely for the benefit of such person and/or such person?s spouse, their respective ancestors and/or descendants.
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?First Refusal Notice? has the meaning set forth in Section 5(a)(i).
?Independent Third Party? means any Person who, immediately prior to the contemplated transaction, (i) does not own in excess of five percent (5%) of the Common Stock on a fully-diluted basis (any Person owning in excess of five percent (5%) of the Common Stock on a fully-diluted basis being referred to herein as a ?5% Owner?), (ii) is not an Affiliate of any such 5% Owner or any WCAS Investor, and (iii) is not a member of the Family Group of any such 5% Owner.
?Initial Public Offering? means an initial public offering of shares of Common Stock registered under the Securities Act.
?Initial Stockholders? has the meaning set forth in the preamble.
?Management Services Agreement? means the Management Services Agreement, dated as of the date hereof, by and among the Company, Mobile Services Group, Inc. and WCAS Management Corporation, as such agreement may be amended or otherwise modified from time to time.
?Management Stockholders? has the meaning set forth in the preamble.
?Maximum Amount? has the meaning set forth in Section 11.
?Merger Agreement? means the Agreement and Plan of Merger, dated as of May 24, 2006, by and among the Company, MSG WC Acquisition Corp., Mobile Services Group and Windward Capital Management, LLC (as stockholder representative), as such agreement may be amended or otherwise modified from time to time.
?Mobile Services Group? means Mobile Services Group, Inc., a Delaware corporation.
?Mobile Storage Group? means Mobile Storage Group, Inc., a Delaware corporation.
?MSG WC Intermediary? means MSG WC Intermediary Co., a Delaware corporation.
?Offered Securities? has the meaning set forth in Section 10(a).
?Offerees? has the meaning set forth in Section 5(a)(i).
?Option Agreements? has the meaning set forth in the recitals.
?Option Period? has the meaning set forth in Section 11.
?Other Stockholders? has the meaning set forth in Section 5(b).
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?Permitted Issuance? means any issuance of Equity Securities (i) to any director, prospective director, employee, prospective employee or consultant of or to the Company or any of its Subsidiaries pursuant to the Company?s 2006 Stock Option Plan, any other equity incentive plan approved by the Board or any benefit plan approved by the Board not made for the purpose of raising capital, (ii) as a stock dividend or other pro rata distribution or upon any subdivision, split or combination of outstanding Stockholder Shares, (iii) pursuant to an Initial Public Offering, (iv) issued as consideration in any merger, acquisition or joint venture with another business enterprise approved by the Board and the WCAS Majority Holders, not made for the purpose of raising capital, (v) by any Subsidiary of the Company to the Company or to any other Subsidiary of the Company, (vi) to any debt financing source of the Company (so long as such source is not an Affiliate of the Company (excluding CP IV and any of its Affiliates, but including WCAS X) or holder of ten percent (10%) or more of any class of Equity Securities of the Company and such debt financing is approved by the Board), in connection with a so-called ?equity-kicker,? and (vii) upon conversion, exchange or redemption of any outstanding convertible or exchangeable securities issued in accordance with the terms of this Agreement and the terms of such securities.
?Permitted Transferee? has the meaning set forth in Section 5(c).
?Person? means an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and a governmental entity or any department, agency or political subdivision thereof.
?PR Notice? has the meaning set forth in Section 10(a).
?Public Sale? means any sale of Stockholder Shares to the public pursuant to an effective registration statement or to the public through a broker, dealer or market maker on a securities exchange or in the over-the-counter market pursuant to the provisions of Rule 144 (if such rule is available) adopted under the Securities Act (or any other similar rule or rules then in effect); provided, that a Public Sale shall not include an offering made in connection with a business acquisition or combination pursuant to a registration statement on Form S-4 or any similar form, or an employee benefit plan pursuant to a registration statement on Form S-8 or any similar form.
?Purchase Agreement? has the meaning set forth in the recitals.
?Purchasing Holder? has the meaning set forth in Section 10(e).
?Sale Notice? has the meaning set forth in Section 5(b).
?Sale of the Company? means the sale of the Company, including in one transaction or a series of related transactions, to an Independent Third Party or group of Independent Third Parties pursuant to which such party or parties acquire (i) Equity Securities of the Company representing more than 50% of the voting power of all outstanding voting equity interests (whether by way of merger or consolidation or otherwise), together with the loss by
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WCAS X and its Affiliates, collectively, to elect a majority of the Board, or (ii) all or substantially all of the assets of the Company and its Subsidiaries determined on a consolidated basis.
?SEC? means the Securities and Exchange Commission.
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