Exhibit
10.26e
FIFTH AMENDMENT
TO THE
STOCKHOLDERS
AGREEMENT
DATED AS OF J ANUARY 31, 2006
BETWEEN
FGIC C ORPORATION ,
T HE PMI G ROUP , I NC .,
B LACKSTONE C APITAL P ARTNERS IV L.P.,
B LACKSTONE C APITAL P ARTNERS IV-A L.P.,
B LACKSTONE F AMILY I NVESTMENT P ARTNERSHIP IV-A L.P.,
C YPRESS M ERCHANT B ANKING P ARTNERS II L.P.,
C YPRESS M ERCHANT B ANKING II C.V.,
C YPRESS S IDE - BY -S IDE LLC,
55 TH S TREET P ARTNERS II L.P.,
C YPRESS FGIC I NVESTORS LLC,
CIVC/FGIC I
NVESTMENT
C OMPANY LLC
CIVC P ARTNERS F UND III, L.P.
CIVC P ARTNERS F UND IIIA, L.P.
AND THE
M ANAGEMENT I NVESTORS
FIFTH AMENDMENT TO THE
STOCKHOLDERS AGREEMENT
This FIFTH AMENDMENT TO THE
STOCKHOLDERS AGREEMENT (this “ Amendment
”) is made as of January 31, 2006, and is among the
parties signatory hereto.
BACKGROUND
1. FGIC Corporation (as successor by
merger to Falcons Acquisition Corp.), a Delaware corporation (the
“ Company ”), The PMI Group, Inc., a
Delaware corporation (together with any Affiliated transferee
within the contemplation of Section 2.5 of the Agreement (as
defined below), “ PMI ”), Blackstone
Capital Partners IV L.P., a Delaware limited partnership (“
BCP IV ”), Blackstone Capital Partners IV-A
L.P., a Delaware limited partnership (“ BCP
IV-A ”) and Blackstone Family Investment Partnership
IV-A L.P., a Delaware limited partnership (“ BFIP
IV-A ,” and together with BCP IV, BCP IV-A and any
other Affiliated transferee within the contemplation of
Section 2.5, “ Blackstone ”),
Cypress Merchant Banking Partners II L.P., a Delaware limited
partnership (“ Cypress Onshore ”),
Cypress Merchant Banking II C.V., a Netherlands limited partnership
(“ Cypress Offshore ”), Cypress
Side-by-Side LLC, a Delaware limited liability company (“
Cypress Side-by-Side ”), 55th Street Partners
II L.P., a Delaware limited partnership (“ Cypress 55th
Street ”), Cypress FGIC Investors LLC, a Delaware
limited liability company, as a “Cypress Vehicle” (as
described below) (“ Cypress/FGIC ,” and
together with Cypress Onshore, Cypress Offshore, Cypress
Side-by-Side, Cypress 55th Street, any other “Cypress
Vehicle,” any “Cypress Coinvestor” (as described
below) and any other Affiliated transferee within the contemplation
of Section 2.5 of the Agreement, “ Cypress
”), CIVC/FGIC Investment Company LLC, a Delaware limited
liability company, as a “CIVC Vehicle” (as described
below) ( “ CIVC/FGIC ” ), CIVC Partners
Fund III, L.P., a Delaware limited partnership (“ CIVC
Fund III ”), CIVC Partners Fund IIIA, L.P., a
Delaware limited partnership (“ CIVC Fund IIIA
”, and together with CIVC/FGIC, CIVC Fund III, any other
“CIVC Vehicle” and any other Affiliated transferee
within the contemplation of Section 2.5 of the Agreement,
“ CIVC ”; and together with PMI,
Blackstone and Cypress, the “ Investors
”) and the management investors listed on Annex A to the
Agreement and any other management investors who subsequently
become a party to the Agreement (the “ Management
Investors ”) pursuant to the Agreement have entered
into a Stockholders Agreement dated as of August 3, 2003, as
amended by the First Amendment thereto dated as of
December 18, 2003, the Second Amendment thereto dated as of
February 25, 2004, the Third Amendment thereto dated as of
July 14, 2004 and the Fourth Amendment thereto dated as of
October 25, 2005 (as so amended, the “
Agreement ”). Capitalized terms used and not
otherwise defined herein have the meanings set forth in the
Agreement.
2. The Company and the Investors
desire to enter into Director Investor Agreements (as defined
below) with certain non-employee directors of the Company or one of
its subsidiaries.
3. The parties hereto desire to
amend the Agreement in order to reflect such Director Investor
Agreements.
1
NOW, THEREFORE, in consideration of
the mutual promises and covenants contained herein, the parties,
intending legally to be bound, agree as follows:
|
|
1.
|
Amendments to Article I
.
|
(a) Section 1.1 of the
Agreement is hereby amended by adding the following definitions in
their proper alphabetical order:
“ Director
Investor ” means an individual who is or will be a
non-employee director of the Company or one of its subsidiaries and
who has entered or will enter into a Director Investor Agreement,
it being understood that an individual shall not be deemed a
Director Investor hereunder until such individual is a non-employee
director of the Company or one of its subsidiaries and has entered
into a Director Investor Agreement.
“ Director Investor
Agreement ” means a stockholder’s agreement in
substantially the form attached as Annex F hereto which has been,
or which in the future will be, entered into among the Company, one
or more Director Investors and the Investors.
(b) Section 1.2 of the
Agreement is hereby amended by adding the term “Separate
Agreement” in its proper alphabetical order, with a reference
to such term in Section 2.7(a) where such term first
appears.
|
|
2.
|
Amendments to Article II
.
|
(a) Section 2.7(a) of the
Agreement is hereby amended by deleting it in its entirety and
replacing it with the following Section 2.7(a):
In the event that the rights of
first offer set forth in Section 2.9 are not exercised, any
Investor or Permitted Transferee of any Investor proposing to
Transfer any Equity Securities (a “ Transferring
Investor ”) after the end of the Stockholders’
Agreement Transfer Restriction Period, or as otherwise permitted
under Section 2.2(c), but prior to the Qualified IPO, shall be
entitled to Transfer such Equity Securities during the time periods
set forth in S
