TAL INTERNATIONAL GROUP, INC.
AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
Dated as of October 11, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I
CERTAIN
DEFINITIONS.......................................................1
Section 1.1
Defined Terms.....................................................1
Section 1.2
Other Interpretive Provisions.....................................6
ARTICLE II
CORPORATE
GOVERNANCE......................................................7
Section 2.1
Board of Directors................................................7
Section 2.2
Restrictions On Other Agreements..................................9
Section 2.3
Other Matters Regarding the Resolute Investors and the Seacon
Investors.........................................................9
ARTICLE III
TRANSFERS OF
SHARES......................................................10
Section 3.1
Restrictions on Transfer.........................................10
Section 3.2
Limitation on Number of Shares Transferred.......................10
Section 3.3
Securities Laws..................................................10
Section 3.4
Endorsement of Certificates......................................10
Section 3.5
Improper Transfer................................................11
ARTICLE IV
REGISTRATION
RIGHTS......................................................11
Section 4.1
Demand Registrations.............................................11
Section 4.2
Piggyback Registrations..........................................13
Section 4.3
Registration Procedures..........................................14
Section 4.4
Indemnification..................................................17
Section 4.5
Contribution.....................................................19
Section 4.6
Rule 144.........................................................20
Section 4.7
Limitations on Subsequent Registration Rights....................20
Section 4.8
Other Provisions Regarding Registration Rights...................20
ARTICLE V
MISCELLANEOUS............................................................21
Section 5.1
Waiver by Shareholders...........................................21
Section 5.2
Acknowledgment...................................................21
Section 5.3
Successors and Assigns; Benefit..................................21
Section 5.4
Severability.....................................................21
Section 5.5
Amendment and Modification; Waiver of Compliance;
Conflicts........................................................21
Section 5.6
Notices..........................................................22
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TABLE OF CONTENTS
(continued)
PAGE
Section 5.7
Entire Agreement.................................................22
Section 5.8
Inspection.......................................................22
Section 5.9
Recapitalizations, Exchanges, Etc., Affecting the Common
Stock; New Issuances.............................................23
Section 5.10
LITIGATION.......................................................23
Section 5.11
Counterparts.....................................................24
Section 5.12
Effectiveness....................................................24
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TABLE OF CONTENTS
EXHIBITS
Exhibit A
Shareholder Schedule
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Shareholders Agreement
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS AGREEMENT, dated as of
October
11, 2005 (this "Agreement"), is by and among TAL International
Group, Inc., a
Delaware corporation (the "Company"), and the shareholders of the
Company listed
on Exhibit A hereto (the "Shareholders").
W I T N E S S E T H:
WHEREAS, the Company and the Shareholders have previously entered
into
that certain Shareholders Agreement dated November 3, 2004 (the
"Original
Agreement");
WHEREAS, the Company is proposing to sell shares of the Company's
common
stock, par value $0.001 per share (the "Common Stock"), to the
public in an
initial public offering (the "Initial Public Offering"), as set
forth in the
prospectus dated October 11, 2005 (as amended, the "IPO
Prospectus");
WHEREAS, in connection with the Initial Public Offering, the
Company
will cause to be filed with the Secretary of State of the State of
Delaware an
amended and restated certificate of incorporation of the Company
pursuant to
which, immediately prior to the consummation of the Initial Public
Offering, (i)
the Company will consummate a 101.5052-to-1 stock split of the
Common Stock (the
"Stock Split") and (ii) all of the outstanding shares of the
Company's 12%
series A cumulative senior preferred stock, par value $0.001 per
share (the
"Series A Preferred Stock") will be converted (the "Preferred Share
Exchange")
into shares of Common Stock at a conversion price equal to the
initial public
offering price of the Common Stock in the Initial Public Offering;
WHEREAS, in connection with the proposed Initial Public Offering,
in the
event that the underwriters exercise their overallotment option to
purchase
additional shares of Common Stock as described in the IPO
Prospectus (the
"Overallotment Option"), certain Shareholders have agreed to sell
certain shares
of Common Stock to the underwriters; and
WHEREAS, the parties to the Original Agreement wish to, effective
as of
the consummation of the Initial Public Offering, amend and restate
the Original
Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree to
amend and
restate the Original Agreement in its entirety to read as follows:
ARTICLE I
Certain Definitions
Section 1.1 Defined Terms. As used in this Agreement, the following
terms shall have the following respective meanings:
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Shareholders Agreement
"Affiliate" shall mean, with respect to any Person, any other
Person
that directly or indirectly controls, is controlled by, or is under
common
control with, such Person. For these purposes, "control" shall mean
the
possession, direct or indirect, of the power to direct or cause the
direction of
the management and policies of such Person, whether through the
ownership of
voting securities, by contract or otherwise.
"Aggregation Shares" shall have the meaning specified in the
definition
of "Restriction Expiration Event".
"Agreement" shall mean this Agreement as in effect on the date
hereof
and as hereafter from time to time amended, modified or
supplemented in
accordance with the terms hereof.
"Audit Committee" shall have the meaning specified in Section
2.1(b)(ii).
"Board of Directors" shall mean the Board of Directors of the
Company,
as duly constituted in accordance with this Agreement, or any
committee thereof
duly constituted in accordance with this Agreement, the Bylaws and
applicable
law and duly authorized to make the relevant determination or take
the relevant
action.
"Bylaws" shall mean the Bylaws of the Company as amended from time
to
time.
"Common Stock" shall have the meaning specified in the Recitals.
"Company" shall have the meaning specified in the Preamble.
"Company Securities" shall have the meaning specified in Section
4.1(f).
"Compensation Committee" shall have the meaning specified in
Section
2.1(b)(i).
"Corporate Governance and Nominating Committee" shall have the
meaning
specified in Section 2.1(b)(iii).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute then in effect, and a
reference to a
particular section thereof shall include a reference to the
comparable section,
if any, of such similar federal statute.
"Holder" means any holder of Registrable Securities who is a party
hereto or who succeeds to rights here under this Agreement.
"Holder Request" shall have the meaning specified in Section
4.1(a).
"Independent Directors" shall have the meaning specified in Section
2.1(a)(ii)(C).
"Initial Public Offering" shall have the meaning specified in the
Recitals.
"Initial Shares" shall have the meaning specified in Section
4.3(f).
"Investor" shall mean any Shareholder together with any of its
Affiliates who are then Shareholders.
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Shareholders Agreement
"IPO Prospectus" shall have the meaning specified in the Recitals.
"Managing Underwriter" shall mean the investment banker or
investment
bankers that manage or act as "book runner" for any offering of the
Company's
Shares.
"NASD" shall mean the National Association of Securities Dealers,
Inc.
"Necessary Action" shall mean, with respect to a specified result,
all
actions (to the extent such actions are permitted by law) necessary
to cause
such result, including (i) voting or providing a written consent or
proxy with
respect to the Common Stock, (ii) causing the adoption of
shareholders'
resolutions and amendments to the organizational documents of the
Company, (iii)
causing members of the Board of Directors (to the extent such
members were
nominated or designated by the Person obligated to undertake the
Necessary
Action, and subject to any fiduciary duties that such members may
have as
directors of the Company) to act in a certain manner or other or
causing them to
be removed in the event they do not act in such a manner, (iv)
executing
agreements and instruments, and (v) making, or causing to be made,
with
governmental, administrative or regulatory authorities, all
filings,
registrations or similar actions that are required to achieve such
result.
"Option Shares" shall have the meaning specified in Section 4.3(f).
"Original Agreement" shall have the meaning specified in the
Recitals.
"Original Permitted Transfer" shall have the meaning specified in
the
definition of "Permitted Transfer".
"Original Shareholder" shall mean the Shareholders party to this
Agreement as of immediately prior to the Initial Public Offering.
"Overallotment Option" shall have the meaning specified in the
Recitals.
"Permitted Transfer" means (i) a Transfer by any Shareholder to any
Permitted Transferee of such Shareholder and (ii) a Transfer by any
Shareholder
to the Company pursuant to the repurchase provisions of any
subscription
agreement, option agreement or other similar agreement between the
Company and
such Shareholder. Following a Permitted Transfer in respect of
Shares (the
"Original Permitted Transfer"), the transferee in such Original
Permitted
Transfer may further Transfer any such Shares and have such further
Transfer
constitute a "Permitted Transfer" hereunder only to the extent such
further
Transfer would have been a Permitted Transfer hereunder if made by
the Person
who was the transferor in the Original Permitted Transfer.
"Permitted Transferee" means (i) in the case of any Shareholder
that is
a partnership or limited liability company, any general or limited
partner,
member, or Affiliate of such Shareholder, (ii) in the case of any
Shareholder
that is a corporation, any Person that owns a majority of the
voting stock of
such Shareholder, or any Person that is a direct or indirect
wholly-owned
Subsidiary of such Shareholder, (iii) in the case of any
Shareholder that is an
individual, any successor by death or divorce, (iv) in the case of
any
individual, any trust, partnership, limited liability company or
similar entity
solely for the benefit of such individual or such
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Shareholders Agreement
individual's spouse or lineal descendants (provided, that such
individual acts
as trustee, general partner or managing member and retains the sole
power to
direct the voting and disposition of such shares), (v) the Resolute
Investors,
or (vi) in the case of any Shareholder that is a trust whose sole
beneficiaries
are individuals, such individuals or their spouses or lineal
descendants;
provided, however, that no Person shall be deemed to be a Permitted
Transferee
of a Shareholder unless, in connection with any Transfer of Shares
by such
Shareholder to such Person, such Person shall duly execute and
deliver to the
Company a counterpart or joinder to this Agreement, in for and
substance
reasonably acceptable to the Company, pursuant to which such Person
shall agree
to be bound as a Shareholder hereunder.
"Person" shall mean an individual, a corporation, limited liability
company, association, partnership, joint venture, organization,
business, trust,
or any other entity or organization, including a government or any
subdivision
or agency thereof.
"Preferred Share Exchange" shall have the meaning specified in the
Recitals.
"Preferred Stock" shall mean the preferred stock of the Company,
par
value $0.001 per share.
"Prospectus" means the prospectus included in any Registration
Statement, all amendments and supplements to such prospectus,
including
post-effective amendments, and all other material incorporated by
reference in
such prospectus.
"Public Offering" shall mean a public offering and sale of equity
securities of the Company pursuant to an effective Registration
Statement under
the Securities Act.
"Registrable Securities" shall mean:
(a)
all Common Stock issued and outstanding on the date
hereof and now or hereafter owned of record by the Shareholders;
and
(b)
any Common Stock issued or issuable by the Company in
respect of any Common Stock referred to in the foregoing clause (a)
by
way of a share dividend, bonus issue, or share split or in
connection
with a combination or subdivision of shares, reclassification,
recapitalization, merger, consolidation or other reorganization of
the
Company.
As to any particular Registrable Securities that have been issued,
such
securities shall cease to be Registrable Securities when (i) a
registration
statement with respect to the sale of such securities shall have
become
effective under the Securities Act and such securities shall have
been disposed
of under such registration statement, (ii) they shall be saleable
under Rule 144
under the Securities Act without regard to the volume or manner of
sale
limitations contained therein, (iii) they shall have been
distributed to the
public pursuant to Rule 144 under the Securities Act or (iv) they
shall have
ceased to be outstanding.
"Registration Expenses" shall mean any and all out-of-pocket
expenses
incident to the Company's performance of or compliance with Article
IV hereof,
including, without limitation, all SEC, stock exchange or NASD
registration and
filing fees, all fees and expenses of
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Shareholders Agreement
complying with securities and blue sky laws (including the
reasonable fees and
disbursements of underwriters' counsel in connection with blue sky
qualifications and NASD filings), all fees and expenses of the
transfer agent
and registrar for the Registrable Securities, all printing
expenses, the fees
and disbursements of counsel for the Company and of its independent
public
accountants, including the expenses of any special audits and/or
"cold comfort"
letters required by or incident to such performance and compliance,
and one firm
of counsel (other than in-house counsel) retained by the holders of
Registrable
Securities held by the Resolute Investors, but excluding
underwriting discounts
and commissions and applicable transfer and documentary stamp
taxes, if any,
which shall be borne by the seller of the securities in all cases.
"Registration Statement" means any registration statement of the
Company
filed with, or to be filed with, the SEC under the rules and
regulations
promulgated under the Securities Act, including the related
Prospectus,
amendments and supplements to such registration statement,
including
post-effective amendments, and all exhibits and all material
incorporated by
reference in such registration statement other than a registration
statement
(and related Prospectus) filed on Form S-8 or any successor form
thereto.
"Requesting Shareholder" shall have the meaning specified in
Section
4.1(a).
"Resolute Directors" shall have the meaning specified in Section
2.1(a)(ii)(A).
"Resolute Investors" shall mean The Resolute Fund, L.P., The
Resolute
Fund Singapore PV, L.P., The Resolute Fund Netherlands PV I, L.P.,
The Resolute
Fund Netherlands PV II, L.P., The Resolute Fund NQP, L.P., JZ
Equity Partners
PLC, Fairholme Partners, L.P., Fairholme Ventures II, LLC,
Fairholme Holdings,
Ltd., Edgewater Private Equity Fund III, L.P., Edgewater Private
Equity IV,
L.P., and any of their respective Affiliates who becomes a
Shareholder in
accordance with the terms hereof.
"Restriction Expiration Event" shall mean the earlier of (i) the
fifth
anniversary of the date hereof and (ii) the Transfer (other than,
subject to the
next sentence, Permitted Transfers) of at least 90% of the shares
of Common
Stock issued by the Company in connection with the Preferred Stock
Exchange.
Other than Shares Transferred by the Resolute Investors to their
respective
limited partners, no Shares Transferred pursuant to a Permitted
Transfer shall
be considered Transferred for purposes of this definition.
"Seacon Director" shall have the meaning specified in Section
2.1(a)(ii)(B).
"Seacon Investors" shall mean Seacon Holdings Limited and any
Permitted
Transferee thereof who becomes a Shareholder in accordance with the
terms
hereof.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" shall mean, as of any date, the U.S. Securities
Act of
1933, as amended, or any similar federal statute then in effect,
and in
reference to a particular section thereof shall include a reference
to the
comparable section, if any, of any such similar federal statute and
the rules
and regulations thereunder.
"Series A Preferred Stock" shall have the meaning specified in the
Recitals.
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Shareholders Agreement
"Shareholder" shall have the meaning specified in the Preamble to
this
Agreement and any Permitted Transferee of any such Person or other
transferee
who becomes a party to or bound by the provisions of this Agreement
in
accordance with the terms hereof.
"Shares" shall mean (a) the Shares of Common Stock and Preferred
Stock
issued and outstanding at the date hereof, and (b) any Shares of
Common Stock or
other shares of the Company hereafter acquired by any Shareholder,
or pursuant
to any convertible security, option, warrant or other right to
acquire Shares of
Common Stock, Preferred Stock or other shares of the Company,
whether or not
held by them as of the date hereof.
"Share Group" means, with respect to any Shareholder, (i) such
Shareholder, (ii) in the event that such Shareholder has been
directly or
indirectly Transferred Shares in a Permitted Transfer from an
Original
Shareholder, the Original Shareholder which, directly or
indirectly, Transferred
any such Aggregation Shares to such Shareholder, and (iii) any
Permitted
Transferee of such Shareholder to which such Shareholder
Transferred any
Aggregation Shares.
"Stock Split" shall have the meaning specified in the Recitals.
"Subsidiary" shall mean as to any Person any other Person of which
outstanding shares, shares of stock or other equity interests
having, voting
power (other than shares, stock or other equity interests having
such power only
by reason of the happening of a contingency) to elect a majority of
the board of
directors or other comparable governing body of such Person are at
the time
owned, directly or indirectly through one or more intermediaries,
or both, by
such Person.
"Transfer" shall have the meaning set forth in Section 3.1.
"Transfer Limit Amount" shall mean, with respect to each
Shareholder,
the number of shares of Common Stock issued to such Shareholder
pursuant to the
Preferred Share Exchange, which, for the avoidance of doubt, shall
be calculated
after giving effect to the Stock Split (as such number shall be
appropriately
adjusted to reflect any future stock split (other than the Stock
Split) or stock
combination or other similar event affecting the outstanding number
of shares of
Common Stock). As of the occurrence of the Initial Public Offering,
each
Shareholder's Transfer Limit Amount shall be as specified on
Exhibit A hereto.
"Underwritten Offering" means a Registration in which securities of
the
Company are sold to an underwriter or underwriters on a firm
commitment basis
for reoffering to the public.
Section 1.2 Other Interpretive Provisions.
(a)
The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b)
The words "hereof", "herein", "hereunder" and similar words
refer to this Agreement as a whole and not to any particular
provision of this
Agreement; and any subsection and Section references are to this
Agreement
unless otherwise specified.
(c)
The term "including" is not limiting and means "including
without limitation."
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Shareholders Agreement
(d)
The captions and headings of this Agreement are for convenience
of reference only and shall not affect the interpretation of this
Agreement.
(e)
Whenever the context requires, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms.
ARTICLE II
Corporate Governance
Section 2.1
Board of Directors.
(a)
Each of the Resolute Investors and the Seacon Investors hereby
agree that at all times from and after the consummation of the
Initial Public
Offering, at each annual or special meeting of the shareholders of
the Company
at which action is to be taken with respect to the election of
directors of the
Company, to take all Necessary Action, and the Company shall take
all necessary
and desirable actions within its control (including to support the
nomination
of, and the Corporate Governance and Nominating Committee shall
recommend to the
Board of Directors the inclusion in the slate of nominees
recommended by the
Board of Directors to the shareholders of the Company, such
directors as set
forth in Section 2.1(a)(ii) below), in order to cause:
(i)
the authorized number of directors on the Board of
Directors to be established at ten (10) immediately prior to the
Initial
Pubic Offering and at eleven (11) on or prior to the first
anniversary
of the Initial Public Offering;
(ii)
the election to the Board of Directors of:
(A)
seven (7) individuals designated by The Resolute Fund,
L.P. (the "Resolute Directors"), which Resolute
Directors initially shall be A. Richard Caputo, Jr.,
John W. Jordan II, David W. Zalaznick, Douglas J. Zych,
Brian J. Higgins, Bruce Berkowitz and Brian M. Sondey;
(B)
for so long as the Seacon Investors own at least five
percent (5%) of the outstanding Common Stock, one (1)
individual designated by the Seacon Investors (the
"Seacon Director"), which Seacon Director initially
shall be A. Gary Klesch; and
(C)
(x) initially, up to two (2) independent directors
(each, an "Initial Independent Director") designated by
The Resolute Fund, L.P. which Initial Independent
Directors shall be Fred Lindeberg and another individual
to be designated by the Corporate Governance and
Nominating Committee and (y) within one (1) year of the
Initial Public Offering, up to three (3) independent
directors (including the two (2) Initial Independent
Directors contemplated by clause (x) above) designated
by the Corporate Governance and Nominating Committee;
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Shareholders Agreement
all of which directors shall hold office, subject to their earlier
removal in accordance with clause (a)(iii) below and applicable
law,
until their respective successors shall have been elected and shall
have
qualified;
(iii)
the removal from the Board of Directors of (x) any
director upon the written request of the Shareholders that
designated
such director and (y) in the event that the Seacon Investors shall
cease
to have the right to designate the Seacon Director pursuant to
clause
(ii)(B) above, the Seacon Director by duly adopted action of the
Shareholders; and
(iv)
upon any vacancy in the Board of Directors as a result
of any individual (x) then entitled to be designated by any
Shareholder(s) pursuant to clause (ii) above ceasing to be a member
of
the Board of Directors, whether by resignation or otherwise, the
election to the Board of Directors of an individual designated by
such
Shareholder(s), or (y) not then entitled to be designated by any
Shareholder(s) pursuant to clause (ii) above ceasing to be a member
of
the Board of Directors, whether by resignation or otherwise, the
election to the Board of Directors of an individual appointed by a
majority of the remaining directors.
(b)
The Board of Directors may, by duly adopted action of the Board
of Directors, designate one or more committees of one or more of
the directors,
including alternates who may replace any absent or disqualified
member at any
meeting of the committee. In addition, each of the Resolute
Investors and the
Seacon Investors agrees to take all necessary and desirable actions
within its
control to cause its designees to the Board of Directors to vote or
otherwise
give such director's consent to the creation and maintenance of:
(i)
a Compensation Committee of the Board of Directors (the
"Compensation Committee"), which shall consist of such directors as
the
Board of Directors may determine on the recommendation of the
Corporate
Governance and Nominating Committee;
(ii)
an Audit Committee of the Board (the "Audit Committee"),
which shall consist of such directors as the Board of Directors may
determine on the recommendation of the Corporate Governance and
Nominating Committee, with at least one (1) member of the Audit
Committee satisfying the independence requirements of the New York
Stock
Exchange and Rule 10A-3(b)(1) under the Securities Exchange Act;
and
(iii)
a Corporate Governance and Nominating Committee (the
"Corporate Governance and Nominating Committee"), which shall
consist of
such directors as the Board of Directors may determine.
(c)
The Company shall take all Necessary Action to cause the persons
constituting the Board of Directors to be appointed as the sole
members of the
board of directors of TAL International Container Corporation,
Trans Ocean Ltd.
and Trans Ocean Container Corporation.
(d)
Notwithstanding the provisions of this Section 2.1, no
Shareholder(s) shall be entitled to designate any person to the
Board of
Directors (or any committee thereof) in the event that the Company
receives a
written opinion of its outside counsel that such designee would not
8
Shareholders Agreement
be qualified under any applicable law, rule or regulation to serve
as a director
of the Company or if the Company objects to such designee because
such designee
has been involved in any of the events enumerated in Item 2(d) or
(e) of
Schedule 13D or such person is currently the target of an
investigation by any
governmental authority or agency relating to felonious criminal
activity 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 designating
Shareholder(s) shall
withdraw the designation of such proposed designee and designate a
replacement
therefor (which replacement designee shall also be subject to the
requirements
of this subsection (d)). The Company shall use its reasonable best
efforts to
notify the applicable Shareholder(s) of any objection to a designee
sufficiently
in advance of the date on which proxy materials are mailed by the
Company in
connection with such election of directors to enable such
Shareholder(s) to
propose a replacement designee in accordance with the terms of this
Agreement.
(e)
Notwithstanding anything in this Agreement to the contrary, the
Board of Directors and all of the committees of the Board of
Directors will
operate in such a way to permit the Company to comply with
applicable law and
maintain its listing on The New York Stock Exchange.
(f)
The Company shall pay to each non-employee director on the Board
of Directors a annual directors fee to be determined by the
Compensation
Committee. Additionally, the Company or its Subsidiaries as the
case may be,
shall reimburse the directors for all reasonable and documented
out-of-pocket
expenses incurred in connection with their attendance at meetings
of the Board
of Directors, the board of directors of the Company's Subsidiaries
and any
committees thereof, including without limitation travel, lodging
and meal
expenses; provided, however, that any use of private aviation by
members of the
Board of Directors shall be reimbursed at a rate which is equal to
a first class
ticket for such flight, as determined in good faith by the Company.
Section 2.2 Restrictions On Other Agreements. No Shareholder shall
enter
into any other agreements or arrangements of any kind with any
Person with
respect to the Shares on terms which conflict with the provisions
of this
Article II (whether or not such proxy, voting trust, agreements or
arrangements
are with other Shareholders, holders of Shares that are not parties
to this
Agreement or otherwise), including but not limited to, agreements
or
arrangements with respect to the acquisition, disposition or voting
of Shares
inconsistent with such Shareholder's obligations hereunder.
Section 2.3 Other Matters Regarding the Resolute Investors and the
Seacon Investors.
(a)
Each Shareholder agrees and acknowledges that the directors
designated by the Seacon Investors and the Resolute Investors may
share
confidential, non-public information about the Company and its
subsidiaries with
the Seacon Investors and the Resolute Investors, respectively,
subject to
applicable law including Regulation FD under the Securities Act.
Each
Shareholder agrees not to buy or sell securities when in possession
of material
non-public information.
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Shareholders Agreement
(b)
The Shareholders hereby agree that, subject to applicable law,
notwithstanding anything to the contrary in any other agreement,
when the Seacon
Investors and/or the Resolute Investors take any action under this
Agreement to
give or withhold its consent, the Seacon Investors and/or the
Resolute
Investors, as applicable, shall have no duty to consider the
interests of the
Company or the other Shareholders and may act exclusively in its
own interest;
provided, however, that (i) the foregoing shall in no way affect
the obligations
of the parties hereto to comply with the provisions of this
Agreement and (ii)
the foregoing shall in no way limit the fiduciary duties of members
of the Board
of Directors or majority shareholders under the Delaware General
Corporation
Law.
ARTICLE III
Transfers of Shares
Section 3.1 Restrictions on Transfer. Each Shareholder agrees that
such
Shareholder will not, directly or indirectly, whether by operation
of law or
otherwise, offer, sell, transfer, assign or otherwise dispose of
(or make any
exchange, gift, assignment, charge or pledge of) any Shares or any
rights or
interests therein (collectively, a "Transfer") in violation of the
provisions of
this Agreement.
Section 3.2 Limitation on Number of Shares Transferred. Until the
occurrence of the Restriction Expiration Event, no Shareholder
shall be entitled
to Transfer any Shares (other than pursuant to a Permitted
Transfer) if the
aggregate number of Shares so Transferred, when aggregated with the
cumulative
amount of Shares Transferred (other than Shares Transferred
pursuant to any
Permitted Transfer) by such Shareholder's Share Group since the
date hereof,
including any Shares so Transferred in connection with the Initial
Public
Offering and the exercise of the Overallotment Option, exceeds such
Shareholder's Transfer Limit Amount. Notwithstanding the foregoing,
this Section
3.2 shall not apply to or restrict the Transfer of (i) Shares
purchased by any
Shareholder following the Initial Public Offering, (ii) Shares
acquired by any
Shareholder pursuant to the options granted by the Company in
conjunction with
or following the Initial Public Offering or (iii) Shares held by
any officer or
employee of the Company or its Subsidiaries following such Person's
retirement
if such Person attained the age of 65 at the time of such
retirement.
Section 3.3 Securities Laws. Each Shareholder agrees that it will
not,
directly or indirectly, Transfer any of its Shares except as
permitted under the
Securities Act and other applicable securities laws.
Section 3.4 Endorsement of Certificates. To the extent applicable,
in
addition to any other legend which the Company may deem advisable
under the
Securities Act and applicable state securities laws, each
certificate
representing Shares shall bear the following legend until such time
as the
Shares represented thereby are not longer subject to the provisions
hereof:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO, AND
ARE
TRANSFERABLE ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF AN
AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT, DATED OCTOBER 11, 2005, AS AMENDED
FROM
TIME
10
Shareholders Agreement
TO TIME, AMONG THE COMPANY AND CERTAIN OF ITS SHAREHOLDERS, A COPY
OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICE OF THE COMPANY
AND
MAY BE OBTAINED FROM THE SECRETARY OF THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICE.
Section 3.5 Improper Transfer. Any attempt to Transfer or encumber
any
Shares not in accordance with this Agreement shall be null and void
and neither
the Company nor any transfer agent of the Shares shall give any
effect to such
attempted transfer or encumbrance in its records.
ARTICLE IV
Registration Rights
Section 4.1 Demand Registrations.
(a)
At any time and from time to time from and after the first
anniversary of the Initial Public Offering, any Investor owning at
least 10% of
Common Sto
