EXHIBIT 5 - FORM OF AMENDED AND RESTATED LOCK-UP AGREEMENT
May 5, 2000
GS Capital Partners III, L.P.
GS Capital Partners III Offshore, X.X.
Xxxxxxx, Xxxxx & Co. Xxxxxxxxxxx XXXX
Xxxxx Xxxxxx Xxxx 0000, X.X.
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Sale of ProMedCo Management Company Securities
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Ladies and Gentlemen:
The undersigned is a holder of securities of ProMedCo Management
Company, a Delaware Corporation (the "Company"), and understands that the
Company and GS Capital Partners III, L.P., GS Capital Partners III
Offshore, L.P., Xxxxxxx, Sachs & Co. Verwaltungs GMBH and Stone Street Fund
2000, L.P. (collectively, the "Purchaser") have entered into a Securities
Purchase Agreement, dated as of January 13, 2000, and are simultaneously
herewith entering into a First Amendment to Securities Purchase Agreement
(as amended, the "Purchase Agreement"), which provides, among other things,
for the acquisition by the Purchaser of certain securities of the Company
(the "Acquisition") upon the terms and subject to the conditions set forth
therein. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Purchase Agreement.
To facilitate the Acquisition and as a material inducement for
the Purchaser to enter into the Purchase Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees that subject to the next paragraph
hereof, (i) during a period of six months from the date hereof (the
"Initial Lock-up Period"), the undersigned will not, directly or
indirectly, (x) offer, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant for the sale of, or otherwise dispose of or
transfer (collectively, "Transfer") any shares of the Company's Common
Stock, par value $0.01 per share (the "Common Stock") or any securities
convertible into or exchangeable or exercisable for Common Stock, owned by
the undersigned or with respect to which the undersigned has the power of
disposition as of the date hereof, or (y) enter into any swap or any other
agreement or any transaction that Transfers, in whole or in part, directly
or indirectly, the economic consequence of the undersigned's ownership of
the Common Stock as of the date hereof, whether any such swap or
transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, and (ii) for a period of eighteen months
following the end of the Initial Lock-up Period, the undersigned will not,
directly or indirectly, (x) Transfer greater than 25% of the undersigned's
shares of Common Stock or any securities convertible into or exchangeable
or exercisable for Common Stock, owned by the undersigned or with respect
to which the undersigned has the power of disposition as of the date
hereof, or (y) enter into any swap or any other agreement or any
transaction that Transfers, in whole or in part, directly or indirectly,
greater than 25% of the economic consequence of the undersigned's ownership
of the Common Stock as of the date hereof, whether any such swap or
transaction is to be settled by delivery of Common Stock or other
securities, in cash or otherwise.
Notwithstanding the foregoing, the undersigned may Transfer any
and all of its shares of Common Stock (i) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound in writing by
the restrictions set forth herein, (ii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any
such Transfer shall not involve a disposition for value, (iii) with the
prior written consent of the Purchaser, or (iv) at any time after the
Second Closing Date and following the occurrence of a Purchaser Transfer
Event (as defined below), Transfer shares of Common Stock in an amount up
to the Released Amount (as defined below). For purposes of subclause (iv)
(A) a "Purchaser Transfer Event" shall be deemed to have occurred on the
date the Purchaser Transfers in excess of 25% of the shares of Common Stock
beneficially owned by the Purchaser as of the Second Closing Date to a
Person who or which is not an Affiliate of the Purchaser and (B) the
"Released Amount", as at any date, shall mean a number of shares of Common
Stock equal to the number of shares of Common Stock beneficially owned by
the undersigned in the date hereof multiplied by a fraction, the numerator
of which is the number of shares of Common Stock sold or transferred by the
Purchaser prior to such date in excess of 25% of the shares of Common Stock
beneficially owned by the Purchaser as of the Second Closing and the
denominator of which is the number of shares of Common Stock equal to 75%
of the shares of Common Stock beneficially owned by the Purchaser as of the
Second Closing (as such numbers may be adjusted for stock splits, reverse
stock splits, dividends paid in Common Stock, reclassifications of the
Common Stock, and other similar events). For purposes hereof, "immediate
family" shall mean any relationship by blood, marriage or adoption, not
more remote than first cousin.
The undersigned understands that the Company and the Purchaser
are relying upon this letter in proceeding toward consummation of the
Acquisition. The undersigned further understands that this letter is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors, and assigns.
This letter shall terminate on the earlier to occur of (i) the
Second Closing Termination Date and (ii) the date on which the Purchaser
owns less than 10.0% of the number of shares of Common Stock beneficially
owned by the Purchaser and its affiliates as of the Second Closing, as such
number may be adjusted for stock splits, reverse stock splits, dividends
paid in Common Stock, reclassifications of the Common Stock, and other
similar events.
The undersigned and the Purchaser acknowledge that this letter
supersedes the letter dated January 13, 2000 from the undersigned to the
Purchaser and that such letter shall be deemed to be terminated as of the
execution of this letter.
Very truly yours,
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Exact Name of Shareholder
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Authorized Signature
