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EXHIBIT 10.24
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
r
