Exhibit 10.26d
FOURTH AMENDMENT
TO THE
STOCKHOLDERS
AGREEMENT
D ATED AS OF O CTOBER 25, 2005
B ETWEEN
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 -B Y -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
FOURTH AMENDMENT TO THE
STOCKHOLDERS AGREEMENT
This FOURTH AMENDMENT TO THE
STOCKHOLDERS AGREEMENT (this “ Amendment
”) is made as of October 25, 2005, 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 and the Third Amendment thereto dated as of
July 14, 2004 (as so amended, the “
Agreement ”). Capitalized terms used and not
otherwise defined herein have the meanings set forth in the
Agreement.
2. The parties hereto desire to
provide for the election of a Management Director (as defined
below).
3. The parties hereto desire to
amend the Agreement in order to provide for such election and to
effect certain other changes to the Agreement.
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NOW, THEREFORE, in consideration of
the mutual promises and covenants contained herein, the parties,
intending legally to be bound, agree as follows:
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1.
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Amendments to Article I
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Section 1.2 of the Agreement is
hereby amended by amending the definition of “Quorum”
to read in its entirety as follows:
“ Quorum ”
means a majority of the directors serving on the Company Board and
shall include all of the director-designees of each of PMI,
Blackstone and Cypress (or, with respect to any such Investor, a
majority of such Investor’s director-designees if a majority
of such Investor’s director-designees so consents);
provided , however , that any action of the Company
Board specified in Article III that may be approved by the
director-designees of certain Investor(s) shall be approved by a
vote of such director-designees of such Investor(s) without a
Quorum; provided further , that for the purposes of
determining whether a quorum is present under this definition of
“Quorum,” the Management Director will not be treated
as a director present at any particular meeting, or a member of the
Company Board. The bylaws of the Company will include a provision
to prevent any person from denying a Quorum.
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2.
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Amendments to Article III
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(a) Section 3.1(a) of the
Agreement is hereby amended by deleting the penultimate sentence
thereof in its entirety and replacing it with the
following:
Subject to the next two succeeding
sentences, the Company Board shall be comprised of 14 members,
which number shall decrease to the extent that any of PMI,
Blackstone, Cypress or CIVC lose the right to designate a director
pursuant to this Section 3.1(a) or pursuant to
Section 3.1(g). Notwithstanding the immediately preceding
sentence, the Company Board, by resolution duly adopted (including
the affirmative vote of a majority of the director-designees of
each of the Principal Investors), may increase the number of
directors to one more than the number of directors determined in
accordance with the preceding sentence; provided ,
however , that the directorship created by such increase
shall be filled only by a member of management of the Company,
which individual shall be agreed upon and designated by the
Principal Investors (the “ Management Director
”) and who shall have the voting rights specified in
Section 3.1(f); and provided further , that the
Management Director shall not be considered a director-designee of
any of the Investors or Principal Investors for purposes of this
Agreement. In the event that the directorship created by the
increase described in the preceding sentence becomes vacant and the
Principal Investors cannot agree upon, and designate, a new
Management Director, the number of members comprising the Company
Board shall decrease by one.
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(b) Section 3.1(f) of the
Agreement is hereby amended and restated to read in its entirety as
follows:
(f) Special Voting Provisions
. (i) The director-designee of CIVC shall vote on any matter
presented to the Company Board, except as otherwise set forth in
this Agreement. The Certificate of Incorporation will provide that
CIVC’s director-designee will not be entitled to vote on a
matter if (A) the numb
