AGREEMENT AMONG PARTNERSHIPS
(XX XX)
THIS AGREEMENT AMONG PARTNERSHIPS (XX XX) (this "Agreement") is dated
as of November 20, 1996, by and among Carlyle Partners II, L.P., a Delaware
limited partnership ("XX XX"), Xxxxxxx Partners III, L.P., a Delaware limited
partnership ("CP III"), Carlyle International Partners II, L.P., a Cayman
Islands exempted limited partnership ("CIP II"), Carlyle International Partners
III, L.P., a Cayman Islands exempted limited partnership ("CIP III"), C/S
International Partners, a Cayman Islands partnership ("C/S"), Carlyle Investment
Group, L.P., a Delaware limited partnership ("CIG"), Carlyle-IT Partners, L.P.,
a Delaware limited partnership ("CITP"), Carlyle-IT International Partners,
L.P., a Cayman Island limited partnership ("CITIP"); and Carlyle-IT
International Partners II, L.P., a Cayman Island limited partnership ("CITIP II"
and together with XX XX, CP III, CIP II, CIP III, C/S, CIG, CITP, and CITIP
collectively, the "Partnerships," and each individually the "Partnership").
RECITALS
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A. The Partnerships now wish to provide XX XX with certain rights
with regard to the Preferred Stock (as defined herein) of International
Technology Corporation ("IT").
NOW THEREFORE, in consideration of the premises and the respective
mutual agreements herein contained, the parties hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following
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terms shall have the following respective meanings:
"Beneficial Ownership" shall mean the power, directly or
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indirectly, through any contract, arrangement, understanding, relationship or
otherwise, to (i) vote, or to direct the voting of, a security, and (ii)
dispose, or to direct the disposition of, such security. "Beneficially Owns"
shall mean having Beneficial Ownership.
"Preferred Stock" shall mean, collectively, the issued and
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outstanding Cummulative Convertible Participating Preferred Stock of IT held by
the Partnerships.
2. Election of Director.
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(a) Each of the Partnerships agrees to vote all Preferred Stock now
owned or hereafter acquired by it, at any regular or special meeting of
stockholders of IT called for the purpose, for, or otherwise to consent to, the
election to the IT Board of Directors (the "Board") of the persons nominated in
accordance with Section 2(b) hereof (the "Nominees").
(b) During the term of this Agreement, XX XX shall be entitled to
designate one Nominee; provided, that the Partnerships collectively Beneficially
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Own shares of Preferred Stock representing not less than 57.14% of the votes
entitled to be cast for members of the Board.
(c) If any Nominee shall be unable or unwilling to serve prior to his
or her election to the Board, XX XX shall be entitled to nominate a replacement
who shall then be a Nominee for the purposes of this Agreement. If, following
election to the Board, any Nominee shall resign or be removed for cause or be
unable to serve by reason of death or disability, XX XX shall, within thirty
days of such event, notify the Board in writing of a replacement, and the
Partnerships shall take such steps as may be necessary to elect such replacement
to the Board to fill the unexpired term of the Nominee.
3. Proxy.
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For so long as this Agreement is in effect, if any Partnership fails
or refuses to vote that Partnership's Preferred Stock as provided in Section 2
hereof, without further action by that Partnership, XX XX shall have an
irrevocable proxy so to vote such Preferred Stock in accordance with this
Agreement, and each Partnership hereby grants to XX XX such irrevocable proxy.
4. Miscellaneous.
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(a) Each party hereto agrees to execute and deliver such
documents and take such further actions as may be necessary or desirable to
effect the purposes and objectives of this Agreement.
(b) This Agreement may not be amended or modified except by a
written instrument signed by each of the Partnerships. The waiver by any party
of such party's rights under this Agreement in any particular instance or
instances, whether intentional or otherwise, shall not be considered as a
continuing waiver which would prevent subsequent enforcement of such rights or
of any other rights.
(c) All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if sent by recognized
overnight delivery service, return receipt requested, to the following parties
at the following addresses or to such other parties and at such other addresses
as shall be specified by like notices:
TC Group, L.L.C.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000 Xxxxx
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxxx X. Xxxxxx, Xx.
with a copy to:
Xxxxxx & Xxxxxxx
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxxx, Esq.
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Notice so given shall be deemed to be given and received on the second business
day after sending by recognized overnight delivery service, return receipt
requested.
(d) The parties acknowledge and agree that the breach of the
provisions of this Agreement by any Partnership, could not be adequately
compensated with monetary damages, and the parties hereto agree, accordingly,
that injunctive relief and specific performance shall be appropriate remedies to
enforce the provisions of this Agreement and waive any claim or defense that
there is an adequate remedy at law for such breach; provided, however, that
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nothing herein shall limit the remedies herein, legal or equitable, otherwise
available and all remedies herein are in addition to any remedies available at
law or otherwise.
(e) This Agreement and those documents expressly referred to
herein constitute the entire agreement and understanding among the parties and
supersede all other prior agreements and undertakings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof and
thereof.
(f) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable under any applicable law, then such
contravention or invalidity shall not invalidate the entire Agreement. Such
provision shall be deemed to be modified to the extent necessary to render it
legal, valid and enforceable, and if no such modification shall render it legal,
valid and enforceable then this Agreement shall be construed as if not
containing the provision held to be invalid, and the rights and obligations of
the parties shall be construed and enforced accordingly.
(g) This Agreement shall inure to the benefit of and be binding
upon the parties hereto, their heirs, administrators, executors, successors and
assigns.
(h) The headings of the Sections and paragraphs of this Agreement
have been inserted for convenience of reference only and do not constitute a
part of this Agreement.
(i) The parties agree that this Agreement shall be governed by
and construed in accordance with the laws of the state of Delaware, excluding
any laws thereof which would direct application of law of another jurisdiction.
(j) This Agreement may be executed in any number of counterparts
and by the parties hereto in separate counterparts, with the same effect as if
each party had signed the same document. All such counterparts shall be deemed
an original, shall be construed together and shall constitute one and the same
instrument.
(k) When the context requires, the gender of all words used
herein shall include the masculine, feminine and neuter and the number of all
words shall include the singular and plural.
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IN WITNESS WHEREOF, the Partnerships have caused this
Agreement to be executed as of the date first above written.
CARLYLE PARTNERS II, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
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Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
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CARLYLE PARTNERS III, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
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CARLYLE INTERNATIONAL PARTNERS II, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
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CARLYLE INTERNATIONAL PARTNERS III, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
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C/S INTERNATIONAL PARTNERS
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
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CARLYLE INVESTMENT GROUP, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
-------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
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CARLYLE-IT PARTNERS, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
CARLYLE-IT INTERNATIONAL PARTNERS, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------
CARLYLE-IT INTERNATIONAL PARTNERS II, L.P.
By: TC Group, L.L.C., its General Partner
By: TCG HOLDINGS, L.L.C.
as Managing Member of TC Group,
L.L.C.
By: /s/ Xxxxxx X. X'Xxxxxxx
------------------------------------
Name: Xxxxxx X. X'Xxxxxxx
-----------------------------------
Title: Managing Director
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