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EXHIBIT 9.1
W-H ENERGY SERVICES, INC.
AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
Dated as of March 26, 1999
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TABLE OF CONTENTS
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PAGE
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Certain Definitions ................................................... 2
ARTICLE 2
MANAGEMENT
SECTION 2.01. Conduct of Business ................................................... 8
SECTION 2.02. Registration of Common Stock .......................................... 8
SECTION 2.03. No Conflict with Agreement ............................................ 8
ARTICLE 3
CORPORATE GOVERNANCE
SECTION 3.01. Board of Directors .................................................... 8
SECTION 3.02. Vacancies ............................................................. 9
SECTION 3.03. Covenant to Vote ...................................................... 10
SECTION 3.04. Significant Actions ................................................... 10
ARTICLE 4
TRANSFERS OF STOCK
SECTION 4.01. Restrictions on Transfer............................................... 10
SECTION 4.02. Exceptions to Restrictions ............................................ 11
SECTION 4.03. Endorsement of Certificates ........................................... 12
SECTION 4.04. Improper Transfer...................................................... 13
SECTION 4.05. Prohibition on Transfers to Competitors................................ 13
ARTICLE 5
RIGHTS OF FIRST OFFER; RIGHT TO JOIN IN SALE; TAKE ALONG
SECTION 5.01. Transfers by a Stockholder ............................................ 14
SECTION 5.02. Transfer of Offered Shares to Third Parties ........................... 16
SECTION 5.03. Purchase of Offered Shares............................................. 16
SECTION 5.04. Waiting Period with Respect to Subsequent Transfers ................... 17
SECTION 5.05. Legally Binding Obligation; Power of Attorney; Personal Rights ........ 17
SECTION 5.06. Right to Join in Sale.................................................. 17
SECTION 5.07. Take along............................................................. 18
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PAGE
ARTICLE 6
REGISTRATION RIGHTS
SECTION 6.01. Piggyback Registrations .......................................... 19
SECTION 6.02. Demand Registration............................................... 20
SECTION 6.03. Registration Procedures........................................... 23
SECTION 6.04. Indemnification................................................... 26
SECTION 6.05. Contribution...................................................... 29
SECTION 6.06. Rule 144.......................................................... 30
SECTION 6.07. Other Provisions Regarding Registration Rights.................... 30
ARTICLE 7
TERMINATION
SECTION 7.01. Certain Terminations ............................................. 31
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Successors and Assigns............................................ 31
SECTION 8.02. Amendment and Modification; Waiver of Compliance; Conflicts....... 31
SECTION 8.03. Notices .......................................................... 32
SECTION 8.04. Entire Agreement ................................................. 33
SECTION 8.05. Injunctive Relief................................................. 33
SECTION 8.06. Inspection........................................................ 33
SECTION 8.07. Headings.......................................................... 33
SECTION 8.08. Recapitalizations, Exchanges, Etc., Affecting the
Common Stock; New Issuances ...................................... 34
SECTION 8.09. Right to Negotiate................................................ 34
SECTION 8.10. CHOICE OF LAW..................................................... 34
SECTION 8.11. ARBITRATION....................................................... 34
SECTION 8.12. No Strict Construction............................................ 35
SECTION 8.13. Counterparts...................................................... 35
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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated as of March 26,
1999, among (i) W-H Energy Services, Inc., a Texas corporation (the "COMPANY"),
(ii) W-H Investment, L.P. and W-H Investment II, L.P., each a Delaware limited
partnership (collectively, "JORDAN"), (iii) the other existing stockholders of
the Company that are signatories hereto (the "EXISTING STOCKHOLDERS") and (iv)
DLJ Merchant Banking Partners II, L.P., a Delaware limited partnership ("DLJMB")
and the other DLJ Entities (as defined below).
W I T N E S S E T H:
WHEREAS, the Company, the Existing Stockholders and Jordan are parties
to a Stockholders Agreement dated as of August 11, 1997 (the "1997 STOCKHOLDERS
AGREEMENT");
WHEREAS, the DLJ Entities are on the date hereof making an investment
in the Company and its wholly owned subsidiary, Perf-O-Log, Inc., pursuant to a
Subscription Agreement dated as of the date hereof among the Company, such
subsidiary and the DLJ Entities (the "DLJ SUBSCRIPTION AGREEMENT");
WHEREAS, as of the date hereof and after giving effect to the
transactions contemplated by the DLJ Subscription Agreement, each party hereto
acknowledges that it owns the Stock (as defined below) that is set forth
opposite such party's name on Schedule A attached hereto;
WHEREAS, the parties hereto deem it in their best interests and in the
best interests of the Company to provide consistent and uniform management for
the Company and desire to enter into this Agreement, which shall amend and
restate the 1997 Stockholders Agreement, in order to effectuate that purpose and
to set forth their respective rights and obligations in connection with
their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of the shares of capital
stock of the Company, including issued and outstanding shares of Common Stock
that may be issued hereafter, and to provide for certain rights and obligations
with respect thereto as hereinafter provided;
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as follows:
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ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.01. Certain Definitions. As used in this Agreement, the
following terms shall have the following respective meanings:
"AFFILIATE" shall mean with respect to any Person, (a) any Person which
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such Person, or (b) any Person
who is a director or executive officer (i) of such Person, (ii) of any
Subsidiary of such Person, or (iii) of any Person described in clause (a) above,
or with respect to any Stockholder, the Company; provided, that any Affiliate of
a corporation shall be deemed an Affiliate of such corporation's stockholders.
For purposes of this definition, "control" of a Person shall mean the power,
direct or indirect, (i) to vote or direct the voting of more than 5% of the
outstanding shares of Voting Stock of such Person, or (ii) to direct or cause
the direction of the management and policies of such Person, whether by contract
or otherwise.
"AGREEMENT" shall mean this Agreement as in effect on the date hereof
and as hereafter from time to time amended, modified or supplemented in
accordance with the terms hereof.
"ARTICLES OF INCORPORATION" shall mean the Articles of Incorporation of
the Company as in effect on the date hereof, and as hereafter from time to time
amended, restated, modified or supplemented in accordance with the terms hereof
and pursuant to applicable law.
"BOARD OF DIRECTORS" shall mean the Board of Directors of the Company,
as duty constituted in accordance with this Agreement, or any committee thereof
duly constituted in accordance with this Agreement, the By-laws and applicable
law and duly authorized to make the relevant determination or take the relevant
action. To the extent that the Board of Directors is required under this
Agreement to authorize or approve, or make a determination in respect of a
transaction between the Company, on the one hand, and a Stockholder, and/or a
Stockholder's Affiliates, on the other hand, the Board of Directors shall be
deemed to exclude such Stockholder, any of its Affiliates, and any of the
directors, officers, employees, agents or representatives of such Stockholder
and/or its Affiliates, who are members of the Board of Directors.
"BY-LAWS" shall mean the By-Laws of the Company as amended and in
effect on the date hereof, and as hereafter further amended or restated in
accordance with the terms hereof and pursuant to applicable law.
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"CLASS A COMMON STOCK" shall mean the Class A Common Stock, par value
$0.01 per share, of the Company.
"CLASS B COMMON STOCK" shall mean the Class B Common Stock, par value
$0.01 per share, of the Company.
"COMMISSION" shall mean the Securities and Exchange Commission and any
successor commission or agency having similar powers.
"COMMON STOCK" shall mean the Class A Common Stock and the Class B
Common Stock.
"COMPANY" shall have the meaning specified in the preamble hereto.
"DEMAND REGISTRATION" shall have the meaning specified in Section
6.02(a).
"DLJ ENTITY" means each of DLJMB, DLJ Merchant Banking Partners II-A,
L.P., a Delaware limited partnership, DLJ Offshore Partners II, C.V., a
Netherlands Antilles limited partnership, DLJ Diversified Partners, L.P., a
Delaware limited partnership, DLJ Diversified Partners-A, L.P., a Delaware
limited partnership, DLJMB Funding II, Inc., a Delaware corporation, DLJ
Millennium Partners, L.P., a Delaware limited partnership, DLJ Millennium
Partners-A, L.P., a Delaware limited partnership, DLJ EAB Partners, L.P., a
Delaware limited partnership, UK Investment Plan 1997 Partners, a Delaware
general partnership, DLJ ESC II L.P., a Delaware limited partnership, and DLJ
First ESC L.P., a Delaware limited partnership.
"DLJ INVESTORS" shall mean the DLJ Entities and any Permitted
Transferee of any DLJ Entity who becomes a Stockholder in accordance with the
terms hereof.
"DLJMB" shall have the meaning specified in the preamble hereto.
"DLJ SUBSCRIPTION AGREEMENT" shall have the meaning specified in the
recitals hereto.
"DLJ WARRANTS" means warrants to purchase up to 185,311 shares of Class
A Common Stock issued to the DLJ Entities pursuant to the DLJ Subscription
Agreement.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar Federal statute then in effect, and a reference to a
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particular section thereof shall include a reference to the comparable section,
if any, of such similar Federal statute.
"EXISTING STOCKHOLDERS" shall have the meaning specified in the
preamble hereto.
"FIRST OFFER PRICE" shall have the meaning specified in Section 5.01
(a).
"INSTITUTIONAL INVESTORS" shall mean the DLJ Investors and the Jordan
Investors.
"JORDAN" shall have the meaning specified in the preamble hereto.
"JORDAN INVESTORS" shall mean Jordan and any Permitted Transferee of
Jordan who becomes a Stockholder in accordance with the terms hereof.
"JORDAN WARRANTS" shall mean the warrants exercisable for 37,812.5
shares of Common Stock issued to Jordan.
"MANAGEMENT AGREEMENTS" shall mean the TJC Management Consulting
Agreement and the TJC Transaction Advisory Agreement, each between TJC
Management Corporation and the Company, as each such agreement is in effect in
the date hereof.
"MAXIMUM OFFERING SIZE" shall have the meaning specified in Section
6.02(e).
"MCIT" shall mean MCIT PLC.
"1997 STOCKHOLDERS AGREEMENT" shall have the meaning specified in the
recitals hereto.
"NOTES" shall mean the Senior Subordinated Notes due 2006 of
Perf-o-Long, Inc. issued to DLJ Entities pursuant to the DLJ Subscription
Agreement.
"NOTICE OF EXERCISE" shall have the meaning specified in Section 5.01
(b).
"NOTICE OF INTENTION" shall have the meaning specified in Section 5.01
(a).
"OFFERED SHARES" shall have the meaning specified in Section 5.01.
"PERCENTAGE OWNERSHIP" means, with respect to any Stockholder at any
time, (i) the number of shares of Common Stock that such Stockholder
beneficially owns (and (without duplication) has the right to acquire pursuant
to
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any securities convertible into or exchangeable for Common Stock, stock
appreciation rights or options, warrants and other irrevocable rights to
purchase or subscribe for Common Stock or securities convertible into or
exchangeable for Common Stock) at such time, divided by (ii) the total number of
shares of Common Stock outstanding at such time and all shares described in the
parenthetical in clause (i) of this definition.
"PERMITTED TRANSFEREE" shall mean any Person to whom a Transfer of
Stock is permitted to be made pursuant to clauses (a), (b) or (c) of Section
4.02 or Section 5.01.
"PERSON" shall mean an individual or a corporation, association,
partnership, joint venture, organization, business, trust, or any other entity
or organization, including a government or any subdivision or agency thereof
"PROPOSED PURCHASER" shall have the meaning specified in Section
5.06(b).
"PUBLIC DISTRIBUTION" shall mean a Public Offering of Common Stock, at
the conclusion of which the aggregate number of shares of Common Stock that have
been sold to the public pursuant to one or more effective registration
statements under the Securities Act equals at least 20% of the shares of Common
Stock then outstanding (on a fully diluted basis) after giving effect to such
sale and results in the Company receiving at least $20 million in gross proceeds
from such sale.
"PUBLIC OFFERING" shall mean a public offering and sale of equity
securities of the Company pursuant to an effective registration statement under
the Securities Act.
"PURCHASE OFFER" shall have the meaning specified in Section 5.06(b).
"REGISTRABLE SECURITIES" shall mean the following:
(a) all shares of Class A Common Stock outstanding on the date hereof
and now or hereafter owned of record by any of the Institutional Investors; and
(b) all shares of Class A Common Stock outstanding on the date hereof
and now or hereafter owned of record by the Existing Stockholders; and
(c) any shares of capital stock issued or issuable by the Company in
respect of any shares of Common Stock referred to in the foregoing clauses (a)
or (b) by way of a stock dividend or stock split or in connection with a
combination
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or subdivision of shares, reclassification, recapitalization, merger,
consolidation or other reorganization of the Company.
As to any particular Registrable Securities that have been issued such
securities shall cease to be Registrable Securities when (i) a registration
statement with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of under such registration statement, (ii) they shall have been sold in
compliance with Rule 144 of the Commission, (iii) they shall have been otherwise
transferred or disposed of, and new certificates therefor not bearing a legend
restricting further transfer shall have been delivered by the Company, and
subsequent transfer or disposition of them shall not generally require their
registration or qualification under the Securities Act or any similar state law
then in force, or (iv) they shall have ceased to be outstanding.
"REGISTRATION EXPENSES" shall mean any and all out-of-pocket expenses
incident to the Company's performance of or compliance with Article 6 hereof,
including, without limitation, all Commission, stock exchange or National
Association of Securities Dealers, Inc. ("NASD") registration and filing fees,
all fees and expenses of complying with securities and blue sky laws (including
the reasonable fees and disbursements of underwriters' counsel in connection
with blue sky qualifications and NASD filings), all fees and expenses of the
transfer agent and registrar for the Registrable Securities, all printing
expenses, the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of any special audits
and/or "cold comfort" letters required by or incident to such performance and
compliance, and one firm of counsel (other than house counsel) retained by the
Existing Stockholders if holding Registrable Securities being registered, one
firm of counsel (other than in-house counsel) retained by the Jordan Investors
holding Registrable Securities being registered and one firm of counsel (other
than in-house counsel) retained by the DLJ Investors holding Registrable
Securities being registered, but excluding underwriting discounts and
commissions and applicable transfer and documentary stamp taxes, if any, which
shall be borne by the seller of the securities in all cases.
"SALE PROPOSAL" shall have the meaning specified in Section 5.01(a).
"SECURITIES ACT" shall mean, as of any date, the Securities Act of
1933, as amended, or any similar federal statute then in effect, and in
reference to a particular section thereof shall include a reference to the
comparable section, if any, of any such similar federal statute and the rules
and regulations thereunder.
"SELLING DLJ STOCKHOLDERS" shall have the meaning specified in Section
6.02(a).
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"SELLING HOLDERS" shall have the meaning specified in Section 6.02(a).
"SELLING INVESTORS" shall have the meaning specified in Section 5.07.
"SELLING STOCKHOLDER" shall have the meaning specified in Section
5.01(a).
"STOCK" shall mean the Common Stock, the Jordan Warrants, the DLJ
Warrants and any options or warrants issued to employees or directors of the
Company or any of its Subsidiaries.
"STOCKHOLDER" shall mean any of Jordan, the DLJ Entities, the Existing
Stockholders, and any Permitted Transferee of any such Person who becomes a
party to or bound by the provisions of this Agreement in accordance with the
terms hereof.
"SUBSIDIARY" shall mean as to any Person a corporation of which
outstanding shares of stock having ordinary voting power (other than stock
having such power only by reason of the happening of a contingency) to elect a
majority of the Board of Directors of such corporation are at the time owned,
directly or indirectly through one or more intermediaries, or both, by such
Person.
"UNDERWRITTEN OFFERING" shall mean an underwritten Public Offering.
"VOTING STOCK" shall mean capital stock of the Company of any class or
classes, the holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of corporate directors (or Persons performing
similar functions), which as of the date hereof comprises only the Class A
Common Stock.
"VOTING STOCKHOLDER" shall mean a Stockholder who holds Voting Stock or
retains, by proxy or otherwise, the power to vote Voting Stock.
ARTICLE 2
MANAGEMENT
SECTION 2.01. Conduct of Business. The parties hereto confirm that it
is their intention that the business and affairs of the Company shall be managed
by its Board of Directors in the best interests of the Company and its
Subsidiaries taken as a whole.
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SECTION 2.02. Registration of Common Stock. In the event of a Public
Offering of the Company's Common Stock, each Voting Stockholder shall, at a
meeting convened for the purpose of amending the Articles of Incorporation, vote
to increase the number of authorized shares of Class A Common Stock and, if
necessary, increase the number of issued and outstanding shares of Class A
Common Stock, whether by stock split, stock dividend or otherwise, or change in
its par value, as recommended by a majority of the members of the Board of
Directors in order to facilitate such Public Offering.
SECTION 2.03. No Conflict with Agreement. Each Voting Stockholder shall
vote his shares of Voting Stock, and shall take all actions necessary, to ensure
that the Articles of Incorporation and By-Laws do not, at any time, conflict
with the provisions of this Agreement.
ARTICLE 3
CORPORATE GOVERNANCE
SECTION 3.0 1. Board of Directors. (a) The Stockholders hereby agree
that at all times after the date hereof, the Board of Directors of the Company
shall consist of not less than seven members, including the individuals
described in this Section 3.01(a). Promptly after the date hereof, the Voting
Stockholders shall take all actions necessary to elect, or to cause the Board of
Directors to approve and appoint, the designees described below to be members of
the Board of Directors, and such other members as may, consistent with this
Agreement, be selected by the holders of Voting Stock from time to time
outstanding:
(i) Four individuals designated by the beneficial owners of
the majority of the shares of Class A Common Stock beneficially owned
by the Jordan investors ("JORDAN DIRECTORS"), which Jordan Directors
initially shall be ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ and J. ▇▇▇▇ ▇▇▇▇▇▇;
(ii) Three individuals designated by the holders of a majority
of the shares of Class A Common Stock held by the Existing Stockholders
("MANAGEMENT DIRECTORS"), which Management Directors initially shall be
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.;
and
(iii) A number of individuals designated by DLJMB ("DLJ
DIRECTORS"), which number shall be determined from time to time by
DLJMB and shall not exceed the lowest number (rounded up to the nearest
whole number) that would result in DLJ Directors representing, as a
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percentage of the total Board of Directors, at least the Percentage
Ownership of the DLJ Investors; provided that so long as the DLJ
Investors' Percentage Ownership is at least 10% or the DLJ Investors
own at least $10 million in aggregate principal amount of Notes, DLJMB
will be entitled to designate at least one director. Initially, DLJMB
has determined to designate one director.
(b) Each Voting Stockholder hereby agrees to vote all shares of Voting
Stock owned or held of record by such Stockholder at each annual or special
meeting of stockholders of the Company at which directors of the Company are to
be elected, in favor of, or to take all actions by written consent in lieu of
any such meeting as are necessary to cause, the election as members of the Board
of Directors of those individuals described in Section 3.01 (a) in accordance
with, and to otherwise effect the intent of, the provisions of Section 3.01(a).
(c) The Company and each member of the Board of Directors shall execute
a Directors Indemnification Agreement.
(d) As long as there is only one DLJ Director and the DLJ Investors'
Percentage Ownership is at least 10% or the DLJ Investors own at least $10
million in aggregate principal amount of Notes, DLJMB shall be entitled to
designate one non-voting observer to attend meetings of the Board of Directors.
The right of DLJMB to nominate DLJ Directors pursuant to Section 3.01 is not
assignable.
SECTION 3.02. Vacancies. In the event that a vacancy is created on the
Board of Directors at any time by the death, disability, retirement, resignation
or removal of any member of the Board of Directors, or for any other reason
there shall exist or occur any vacancy on the Board of Directors, each Voting
Stockholder hereby agrees to take such actions as will result in the election or
appointment as a director of an individual designated or elected to fill such
vacancy and serve as a director by the Stockholders that had designated or
elected (pursuant to Section 3.01) the director whose death, disability,
retirement, resignation or removal resulted in such vacancy on the Board of
Directors (in the manner set forth in Section 3.01). In the interim from the
time the vacancy is created until a new director is elected, (i) if the vacancy
is for a Jordan Director, the remaining Jordan Directors may appoint a
replacement to act as a director until a new director is duly elected, (ii) if
the vacancy is for a DLJ Director, the remaining (or if none are remaining, the
departing) DLJ Director(s) may appoint a replacement to act as a director until
a new director is duly elected and (iii) if the vacancy is for a Management
Director, the remaining Management Directors may appoint a replacement to act as
a director until a new director is duly elected.
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SECTION 3.03. Covenant to Vote. Each Voting Stockholder hereby agrees
to take all actions necessary to call, or cause the Company and the appropriate
officers and directors of the Company to call, an annual meeting (and when
circumstances so require, a special meeting) of stockholders of the Company and
to vote all shares of Voting Stock owned or held of record by such Voting
Stockholder at any such meeting and at any other annual or special meeting of
stockholders in favor of, or take all actions by written consent in lieu of any
such meeting as may be necessary to cause, the election as members of the Board
of Directors of those individuals so designated in accordance with, and to
otherwise effect the intent of, this Article 3. In addition, each Voting
Stockholder agrees to vote the shares of Voting Stock owned by such Stockholder
upon any other matter arising under this Agreement submitted to a vote of the
stockholders in such a manner as to implement the terms of this Agreement.
SECTION 3.04. Significant Actions. As long as the DLJ Investors'
Percentage Ownership is at least 10% or the DLJ Investors own at least $10
million in aggregate principal amount of Notes, the following actions shall
require the approval of a majority of the disinterested directors then in
office, including the approval of all DLJ Directors then in office:
(a) the election, appointment or removal of the Chief Executive Officer
of the Company; and
(b) transactions or agreements (or the amendment or waiver of any terms
thereof) between the Company or any of its Subsidiaries, on the one hand, and
any director, officer or Affiliate of the Company, on the other hand; provided
that the foregoing will not apply to transactions that are expressly
contemplated by the terms of any agreement with Jordan or its Affiliates
(including the Management Agreements) or with ▇▇▇▇▇▇▇ ▇▇▇▇▇ as in effect on the
date hereof, a copy of which has been furnished to the DLJ Entities.
ARTICLE 4
TRANSFERS OF STOCK
SECTION 4.01. Restrictions on Transfer. Each Stockholder agrees that
such Stockholder will not, directly or indirectly, offer, sell, transfer,
assign or otherwise dispose of (or make any exchange, gift, assignment or pledge
of) (collectively, for purposes of Articles 4 and 5 hereof only, a "TRANSFER")
any Stock except (a) as provided in Section 4.02; (b) in accordance with Article
5; and (c) in an exchange of Common Stock of one class for Common Stock of
another class in accordance with the Articles of Incorporation. In addition to
the other restrictions noted in this Article 4, each Stockholder agrees that it
will not, directly or
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indirectly, transfer any of its Stock except as permitted under the Securities
Act and other applicable securities laws.
SECTION 4.02. Exceptions to Restrictions. The provisions of Section
4.01 and Article 5 (other than Section 5.07) shall not apply to any of the
following transfers:
(a) In the case of Jordan, (i) from a Jordan partnership to any of its
partners, (ii) from any Jordan Investor to the other Jordan Investors, and (iii)
from any Jordan Investor to any trust solely for such Jordan Investor's benefit
or the benefit of such Jordan Investor's spouse or children (as the case may
be); provided, that such Jordan Investor acts as trustee and retains the sole
power to direct the voting and disposition of such Stock; and provided, further,
that each such Person including any such trust shall execute a counterpart of
and become a party to this Agreement and shall agree in writing in form and
substance satisfactory to the Company to be bound and becomes bound by the terms
of this Agreement.
(b) In the case of the Existing Investors, (i) among Existing
Stockholders or from any Existing Stockholder to such Existing Stockholder's
spouse or children or (ii) from any Existing Stockholder to any trust solely for
such Existing Stockholder's benefit or the benefit of such Existing
Stockholder's spouse or children; provided, that, in each case referred to
above, such Existing Stockholder acts as trustee and retains the sole power to
direct the voting and disposition of such Stock; and provided, further that each
such Person including any such trust shall execute a counterpart of and become a
party to this Agreement and shall agree in writing in form and substance
satisfactory to the Company to be bound and becomes bound by the terms of this
Agreement as a Stockholder.
(c) In the case of any DLJ Investor, from any DLJ Investor to (i) any
other DLJ Entity, (ii) any general or limited partner of any DLJ Entity (a "DLJ
PARTNER"), and any corporation, partnership, Affiliated Employee Benefit Trust
or other entity that is an Affiliate of any DLJ Partner (collectively, the "DLJ
AFFILIATES"), (iii) any managing director, director, general partner, limited
partner, officer or employee of any DLJ Entity or of any DLJ Affiliate, or the
heirs, executors, administrators, testamentary trustees, legatees or
beneficiaries of any of the foregoing persons referred to in this clause (iii)
(collectively, the "DLJ ASSOCIATES"), (iv) a trust, the beneficiaries of which,
or a corporation, limited liability company or partnership, the stockholders,
members or general or limited partners of which, include only ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ Associates, their spouses or their lineal descendants or (v) a
voting trustee for one or more DLJ Entities, DLJ Affiliates or DLJ Associates
under the terms of a voting trust; provided, that each such Person including any
such trust shall execute a counterpart of and become a party to this Agreement
and shall agree in writing in
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form and substance satisfactory to the Company to be bound and becomes bound by
the terms of this Agreement as a Stockholder. "AFFILIATED EMPLOYEE BENEFIT
TRUST" means any trust that is a successor to the assets held by a trust
established under an employee benefit plan subject to the Employee Retirement
Income Security Act of 1974, as amended, and the rules and regulations
promulgated thereunder, or any other trust established directly or indirectly
under such plan or any other such plan having the same sponsor.
(d) Pursuant to a merger or consolidation involving the Company or a
sale of all or substantially all of the outstanding shares of Common Stock.
(e) Pursuant to a Public Offering or an open market sale following a
Public Offering in accordance with Rule 144 of the Commission.
(f) Transfers by any Stockholders consisting of donations to charitable
organizations.
(g) Any pledge or hypothecation by any Stockholder, provided that the
pledgee acknowledges this Agreement and agrees to be bound by and subject to its
terms in the event of any Transfer of such pledged Stock resulting from such
pledge or any foreclosure thereunder.
(h) Any transfer of the DLJ Warrants to any transferee of the Notes.
SECTION 4.03. Endorsement of Certificates. (a) Upon the execution of
this Agreement, in addition to any other legend which the Company may deem
advisable under the Securities Act and certain state securities laws, all
certificates representing issued and outstanding Stock shall be endorsed at all
times prior to any Public Distribution as follows:
For Stock issued prior to the date hereof:
THIS CERTIFICATE IS SUBJECT TO, AND IS TRANSFERABLE
ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF THE SUBSCRIPTION
AGREEMENT, DATED AUGUST 11, 1997, AMONG THE COMPANY AND
CERTAIN INVESTORS THEREIN. REFERENCE ALSO IS MADE TO THE
RESTRICTIVE PROVISIONS OF THE ARTICLES OF INCORPORATION AND
BY-LAWS OF THE CORPORATION.
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For all Stock:
THIS CERTIFICATE IS SUBJECT TO, AND IS TRANSFERABLE
ONLY UPON COMPLIANCE WITH, THE PROVISIONS OF AN AMENDED AND
RESTATED STOCKHOLDERS AGREEMENT DATED AS OF MARCH 26, 1999.
COPIES OF THE ABOVE REFERENCED AGREEMENT(S) ARE ON FILE AT THE
OFFICE OF THE COMPANY AT THE JORDAN COMPANY, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY
NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT, OR AN EXEMPTION FROM REGISTRATION,
UNDER SAID ACT.
(b) Except as otherwise expressly provided in this Agreement, all
certificates representing Stock hereafter issued to or acquired by any of the
Stockholders or their successors hereto shall bear the legends set forth above,
and the Stock represented by such certificates shall be subject to the
applicable provisions of this Agreement. The obligations of each party hereto
shall be binding upon each transferee to whom Stock is transferred by any party
hereto, whether or not such transfer is permitted under the terms of this
Agreement, except for transfers described in Section 4.02(e) or Section 4.02(h).
Prior to consummation of any transfer, except for transfers described in Section
4.02(e) or Section 4.02(h), such party shall cause the transferee to execute an
agreement in form and substance reasonably satisfactory to the other parties
hereto, providing that such transferee shall fully comply with the terms of this
Agreement. Prompt notice shall be given to the Company and each Stockholder by
the transferor of any transfer (whether or not to a Permitted Transferee) of any
Stock.
SECTION 4.04. Improper Transfer. Any attempt to transfer or encumber
any Stock not in accordance with this Agreement shall be null and void and
neither the Company nor any transfer agent of such securities shall give any
effect to such attempted transfer or encumbrance in its stock records.
SECTION 4.05. Prohibition on Transfers to Competitors. Notwithstanding
anything in this Agreement to the contrary, no DLJ Investor shall transfer in a
private transaction any Stock or Notes to a direct competitor of a material
portion of the Company's and its Subsidiaries' business, unless such transfer is
approved by the Board of Directors.
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ARTICLE 5
RIGHTS OF FIRST OFFER; RIGHT TO JOIN IN SALE; TAKE ALONG
SECTION 5.01. Transfers by a Stockholder. (a) Except for transfers
permitted by Sections 4.01 and 4.02, and transactions subject to Section 5.07,
if at any time any Stockholder shall desire to sell any Stock owned by him or it
(such Stockholder desiring to sell shares of such Stock being referred to herein
as a "SELLING STOCKHOLDER"), then such Selling Stockholder shall deliver written
notice of its desire to sell such Stock (a "NOTICE OF INTENTION"), accompanied
by a copy of a proposal relating to such sale (the "SALE PROPOSAL"), to each of
the other Stockholders and to the Company, setting forth such Selling
Stockholder's desire to make such sale (which shall be for cash only), the
number and class or type of Stock proposed to be transferred (the "OFFERED
SECURITIES") and the price at which such Selling Stockholder proposes to sell
the Offered Securities (the "FIRST OFFER PRICE") and other terms applicable
thereto.
(b) Upon receipt of the Notice of Intention, the Company and the other
Stockholders shall then have the right to purchase at the First Offer Price and
on the other terms specified in the Sale Proposal all or, subject to Section
5.01(d), any portion of the Offered Securities in the following order of
priority:
(i) if the Selling Stockholder is an Existing Stockholder, the
other Existing Stockholders shall have the first right to purchase the
Offered Securities pro rata among those Existing Stockholders so
electing on the basis of the respective number of shares of Common
Stock owned or held as trustee by such Existing Stockholders (or in
such other proportions as such Existing Stockholders may agree), then
the Company shall have the second right to purchase the Offered
Securities, then the Jordan Investors shall have the third right to
purchase the Offered Securities pro rata among those of the Jordan
Investors so electing on the basis of the respective numbers of shares
of Common Stock owned by such Jordan Investors (or in such other
proportion as such Jordan Investors may agree), and thereafter the DLJ
Investors shall have the right to purchase the Offered Securities on a
basis agreed to among those of the DLJ Investors so electing;
(ii) if the Selling Stockholder is a Jordan Investor, the
other Jordan Investors shall have the first right to purchase the
Offered Securities pro rata among those of the Jordan Investors so
electing on the basis of the respective numbers of shares of Common
Stock owned by such Jordan Investors (or in such other proportion as
such Jordan Investors may agree), then the Company shall have the
second right to purchase the Offered Securities, then the Existing
Stockholders shall have the third right to purchase the Offered
Securities pro rata among the Existing
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Stockholders so electing to purchase on the basis of the respective numbers of
shares of Common Stock owned by such Existing Stockholders (or in such other
proportion as such other Existing Stockholders may agree), and thereafter the
DLJ Investors shall have the right to purchase the Offered Securities on a basis
agreed to among those of the DLJ Investors so electing; and
(iii) if the Selling Stockholder is a DLJ Investor, the other DLJ
Investors shall have the first right to purchase the Offered Securities on a
basis agreed to among those of the DLJ Investors so electing, then the Company
shall have the second right to purchase the Offered Securities, then the Jordan
Investors shall have the third right to purchase the Offered Securities pro rata
among those of the Jordan Investors so electing on the basis of the respective
numbers of shares of Common Stock owned by such Jordan Investors (or in such
other proportion as such Jordan Investors may agree) and thereafter the Existing
Stockholders shall have the right to purchase the Offered Securities pro rata
among the Existing Stockholders so electing to purchase on the basis of the
respective numbers of shares of Common Stock owned by such Existing Stockholders
(or in such other proportion as such other Existing Stockholders may agree).
The rights of the Jordan Investors, the DLJ Investors, the Existing
Stockholders and the Company pursuant to this Section 5.01(b) shall be
exercisable by the delivery of notice to the Selling Stockholder (the "NOTICE OF
EXERCISE"), within 30 calendar days from the date of delivery of the Notice of
Intention. The Notice of Exercise shall state the total number of Offered
Securities such Person is willing to purchase without regard to whether or not
other Persons purchase any shares of the Offered Securities. A copy of such
Notice of Exercise shall also be delivered to each other Stockholder. The rights
of the Existing Stockholders, the DLJ Investors, the Jordan Investors and the
Company pursuant to this Section 5.01(b) shall terminate if unexercised 30
calendar days after the date of delivery of the Notice of Intention.
(c) In the event that any Person exercises its rights to purchase any
or all of the Offered Securities in accordance with Section 5.01 (b), then the
Selling Stockholder must sell the Offered Securities in accordance therewith
within 30 calendar days from the date of delivery of the Notice of Exercise
received by the Selling Stockholder.
(d) Notwithstanding the foregoing provisions of this Section 5.01,
unless the Selling Stockholder shall have consented to the purchase of less than
all of the Offered Securities, no Stockholder or Stockholders nor the Company
may purchase any Offered Securities hereunder unless all of the Offered
Securities are to be so purchased.
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(e) For purposes of this Article 5, any Person who has failed to give
notice of the election of an option hereunder within the specified time period
will be deemed to have waived its rights on the day after the last day of such
period.
(f) Each Stockholder, solely in its capacity as a stockholder of the
Company, agrees and acknowledges that the Company may purchase or acquire Common
Stock pursuant to Section 5.01(b) hereof, and approves such purchases and
acquisitions, and waives any objection or claim relating thereto, whether
against the Company, the Board of Directors or otherwise.
(g) Sections 5.01 through 5.05 shall terminate in all respects as to
the DLJ Investors on and after the third anniversary of the date hereof.
SECTION 5.02. Transfer of Offered Shares to Third Parties. If all
notices required to be given pursuant to Section 5.01 have been duly given and
the Stockholders and the Company do not exercise their respective options to
purchase all of the Offered Securities at the First Offer Price and the Selling
Stockholder does not desire to sell less than all the Offered Securities or if
with the consent of the Selling Stockholder, the other Stockholders and the
Company purchase less than all of the Offered Securities pursuant to the
provisions hereof, then in either such event the Selling Stockholder shall have
the right, subject to compliance by the Selling Stockholder with the provisions
of Section 4.03(b) hereof, for a period of 120 calendar days from the earlier of
(a) the expiration of the option period pursuant to Section 5.01 with respect to
such Sale Proposal or (ii) the date on which such Selling Stockholder receives
notice from the other Stockholders and the Company that they will not exercise
in whole or in part the options granted pursuant to Section 5.01, to sell to any
third party which is not an Affiliate of, or related by consanguinity or
marriage to, the Selling Stockholder the Offered Securities remaining unsold at
a price of not less than the First Offer Price, and on the other terms specified
in the Sale Proposal.
SECTION 5.03. Purchase of Offered Shares. The consummation of any
purchase and sale pursuant to Section 5.01 shall take place on such date, not
later than 30 calendar days after the expiration of the option period pursuant
to Section 5.01 with respect to such option, as the Selling Stockholder shall
select. Prior to the consummation of any sale pursuant to Section 5.01, the
Selling Stockholder shall comply with Section 4.03(b) hereof. Upon the
consummation of any such purchase and sale, the Selling Stockholder shall
deliver certificates evidencing the Offered Securities sold duly endorsed, or
accompanied by written instruments of transfer in form satisfactory to the
purchaser duly executed by the Selling Stockholder free and clear of any liens,
against delivery of the First Offer Price, payable in the manner specified in
Section 5.01 (a).
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SECTION 5.04. Waiting Period with Respect to Subsequent Transfers. In
the event that the Stockholders and the Company do not exercise their options to
purchase all of the Offered Securities, and the Selling Stockholder shall not
have sold the remaining Offered Securities to a third party for any reason
before the expiration, as applicable, of the 120-day period described in Section
5.02, then such Selling Stockholder shall not give another Notice of Intention
pursuant to Section 5.01 for a period of 90 calendar days after the last day of
such 120-day period.
SECTION 5.05. Legally Binding Obligation; Power of Attorney; Personal
Rights. (a) Subject to Section 5.01(a), making a written offer, giving or
failing to give written notice within the stated period, accepting an offer or
making a decision or election, in each case as provided in Section 5.01 or 5.02,
shall create a legally binding obligation to buy or sell, or an obligation not
to buy or sell, as the case may be, the subject Stock as provided in such
Section 5.01 or 5.02.
(b) Subject to Section 5.01(a), each holder of Stock hereby appoints
any executive officer of the Company as an attorney-in-fact for such holder with
the power to execute such documents and take such other actions to provide for
the transfer of Stock owned by such holder in accordance with this Article 5.
Such executive officer is hereby authorized (i) to transfer such Stock on the
books of the Company at the direction and without regard to the surrender of
certificates or instruments representing such Stock held by such holder, and
(ii) to place on all certificates or instruments representing Stock a legend
reflecting this authority to transfer such Stock.
SECTION 5.06. Right to Join in Sale. (a) Anything in this Agreement to
the contrary notwithstanding, if any Stockholder or group of Stockholders (other
than any DLJ Investor) proposes, in a single transaction or a series of
transactions during any six-month period (other than transfers to a Permitted
Transferee pursuant to Section 4.02 and transactions subject to Section 5.07) to
sell, dispose of or otherwise transfer 5% or more of the outstanding Common
Stock or, if less than such amount, in the case of any Stockholder which owns
Common Stock on the date hereof, 50% or more of its initial holdings of such
interests in Common Stock, as the case may be (each a "DISPOSING STOCKHOLDER"),
such person or group shall refrain from effecting such transaction unless, prior
to the consummation thereof, each other Stockholder (but, in the case of any DLJ
Investor, only if such Disposing Stockholder is a Jordan Investor or ▇▇▇▇▇▇▇
▇▇▇▇▇) shall have been afforded the opportunity to join in such sale of Common
Stock on a pro rata basis, as hereinafter provided.
(b) Prior to consummation of any proposed sale, disposition or transfer
of shares of Common Stock described in Section 5.06(a), the Disposing
Stockholder shall cause the person or group that proposes to acquire such shares
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(the "PROPOSED PURCHASER") to offer (the "PURCHASE OFFER") in writing to each
other Stockholder (but, in the case of any DLJ Investor, only if such Disposing
Stockholder is a Jordan Investor or ▇▇▇▇▇▇▇ ▇▇▇▇▇) to purchase shares of Common
Stock owned by such Stockholder (regardless of whether the shares of Common
Stock proposed to be sold by the Disposing Stockholders are the same class as
the shares of Common Stock owned by such Stockholders), such that the number of
shares of such Common Stock so offered to be purchased from such Stockholder
shall be equal to the product obtained by multiplying the total number of shares
of such Common Stock then owned by such Stockholder by a fraction, the numerator
of which is the aggregate number of shares of Common Stock proposed to be
purchased by the Proposed Purchaser from all Stockholders (including the
Disposing Stockholder or Stockholders) and the denominator of which is the
aggregate number of shares of Common Stock then outstanding. Such purchase shall
be made at the highest price per share and on such other terms and conditions as
the Proposed Purchaser has offered to purchase shares of Common Stock to be sold
by the Disposing Stockholder or Stockholders. Each such Stockholder shall have
20 calendar days from the date of receipt of the Purchase Offer in which to
accept such Purchase Offer, and the closing of such purchase shall occur within
30 calendar days after such acceptance or at such other time as such Stockholder
and the Proposed Purchaser may agree. The number of shares of Common Stock to be
sold to the Proposed Purchaser by the Disposing Stockholder or Stockholders
shall be reduced by the aggregate number of shares of Common Stock purchased by
the Proposed Purchaser from the other Stockholders pursuant to the acceptance by
them of Purchase Offers in accordance with the provisions of this Section
5.06(b). In the event that a sale or other transfer subject to this Section 5.06
is to be made to a Proposed Purchaser who is not a Stockholder, the Disposing
Stockholder shall notify the Proposed Purchaser that the sale or other transfer
is subject to this Section 5.06 and shall ensure that no sale or other transfer
is consummated without the Proposed Purchaser first complying with this Section
5.06. It shall be the responsibility of each Disposing Stockholder to determine
whether any transaction to which it is a party is subject to this Section 5.06.
SECTION 5.07. Take along. If at any time the Jordan Investors (such
Jordan Investors being referred to in this Section 5.07 as the "SELLING
INVESTORS") shall determine to sell or exchange (in a business combination or
otherwise) two-thirds or more of the fully diluted shares of Common Stock in a
bona fide arm's length transaction to an unaffiliated third party in which the
same price per share shall be payable in respect of all shares of any class of
the Common Stock, then, upon the written request of such Selling Investors, each
other Stockholder shall be obligated to, and shall, if so requested by such
third party, (a) exercise all DLJ Warrants held by such Stockholder, (b) sell,
transfer and deliver or cause to be sold, transferred and delivered to such
third party, all (but not less than all) of the shares of Common Stock owned by
them (including Common Stock issued upon
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such mandatory exercise of the DLJ Warrants) at the same price per share
(irrespective of class) and on the same terms as are applicable to the Selling
Investors, and (c) if stockholder approval of the transaction is required, vote
his, her or its shares of Voting Stock in favor thereof. The provisions of
Sections 5.01 through 5.06 (excluding Section 5.05(b)) shall not apply to any
transactions to which this Section 5.07 applies.
ARTICLE 6
REGISTRATION RIGHTS
SECTION 6,01. Piggyback Registrations. (a) If the Company at any time
proposes to register any of its equity securities under the Securities Act
(other than a registration on Form S-4 or S-8 or any successor or similar forms
thereto or a registration of Warrants under the Notes Registration Rights
Agreement (as defined in the DLJ Subscription Agreement)) whether or not for
sale for its own account, on a form and in a manner that would permit
registration of Registrable Securities for sale to the public under the
Securities Act, it will give written notice to all the holders of Registrable
Securities and DLJ Warrants promptly of its intention to do so, describing such
securities and specifying the form and manner and the other relevant facts
involved in such proposed registration (including, without limitation, (x)
whether or not such registration will be in connection with an Underwritten
Offering of Registrable Securities and, if so, the identity of the Managing
Underwriter and whether such offering will be pursuant to a "best efforts" or
"firm commitment" underwriting and (y) the price (net of any underwriting
commissions, discounts and the like) at which the Registrable Securities are
reasonably expected to be sold). Upon the written request of any such holder
delivered to the Company within 30 calendar days after the receipt of any such
notice (which request shall specify the Registrable Securities intended to be
disposed of by such holder and the intended method of disposition thereof), the
Company will use best efforts to effect the registration under the Securities
Act of all of the Registrable Securities that the Company has been so requested
to register; provided, however, that:
(i) If, at any time after giving such written notice of its
intention to register any securities and prior to the effective date of
the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register such
securities, the Company may, at its election, give written notice of
such determination to each holder who made a request as hereinabove
provided and thereupon the Company shall be relieved of its obligation
to register any Registrable Securities in connection with such
registration (but not from its obligation to pay the Registration
Expenses in connection therewith), without prejudice,
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however, to the rights, of the DLJ Investors to request that such
registration be effected as a registration under Section 6.02.
(ii) If such registration involves an Underwritten Offering,
all holders requesting to be included in the Company's registration
must sell their Registrable Securities to the underwriters selected by
the Company on the same terms and conditions as apply to the Company.
(b) The Company shall not be obligated to effect any registration of
Registrable Securities under this Section 6.01 incidental to the registration of
any of its securities in connection with mergers, acquisitions, exchange offers,
dividend reinvestment plans or stock option or other employee benefit plans.
(c) The Registration Expenses incurred in connection with each
registration of Registrable Securities requested pursuant to this Section 6.01
shall be paid by the Company.
(d) If a registration pursuant to this Section 6.01 involves an
Underwritten Offering and the managing underwriter advises the issuer that, in
its opinion, the number of securities proposed to be included in such
registration should be limited due to market conditions, then the Company will
include in such registration (i) first, the securities the Company proposes to
sell and (ii) second, the number of Registrable Securities requested by holders
thereof to be included in such registration that, in the opinion of such
managing underwriter, can be sold, such amount to be allocated among all such
holders of Registrable Securities pro rata on the basis of the respective
number of Registrable Securities each such holder has requested to be included
in such registration.
(e) In connection with any Underwritten Offering with respect to which
holders of Registrable Securities shall have requested registration pursuant to
this Section 6.01, the Company shall have the right to select the managing
underwriter with respect to the offering; provided, that such managing
underwriter is reasonably acceptable to the holders of a majority of the
Registrable Securities requested to be sold in such Underwritten Offering.
Section 6.02. Demand Registration. (a) If the Company shall receive a
written request by DLJMB pursuant to this Section 6.02, on behalf of the DLJ
Investors (any such Person, a "SELLING DLJ STOCKHOLDER"), that the Company
effect the registration under the Securities Act of all or a portion of such
Selling DLJ Stockholder's Registrable Securities, and specifying the intended
method of disposition thereof, then the Company shall promptly give written
notice of such requested registration (a "DEMAND REGISTRATION") at least 5 days
prior to the anticipated filing date of the registration statement relating to
such Demand
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Registration to the other Stockholders and thereupon will use its best efforts
to effect, as expeditiously as possible, the registration under the Securities
Act of:
(i) the Registrable Securities which the Company has been so requested
to register by the Selling DLJ Stockholders; and
(ii) all other Registrable Securities of the same type as that to which
the request by the Selling DLJ Stockholders relates which any other
Stockholder entitled to request the Company to effect a registration
pursuant to Section 6.01 (all such Stockholders, together with the Selling
DLJ Stockholders, the "SELLING HOLDERS") has requested the Company to
register by written request received by the Company within 2 days (one of
which shall be a Business Day) after the receipt by such Selling Holders of
such written notice given by the Company,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; provided that, subject to Section 6.02(d) hereof, the Company shall
not be obligated to effect (A) more than two Demand Registrations for the DLJ
Investors pursuant to this Section 6.02, (B) any Demand Registration unless the
Registrable Securities to be sold (1) have an aggregate fair market value equal
to or in excess of $20 million or (2) represent at least 50% of the Registrable
Securities then held by the DLJ Investors, and (C) any Demand Registration until
the earlier of (x) the third anniversary of the date hereof and (y) six months
after an initial Public Offering (unless the underwriters thereof require a
longer period). In no event will the Company be required to effect more than
one Demand Registration within any 180-day period.
(b) Promptly after the expiration of the 2-day period referred to in
Section 6.02(a)(ii) hereof, the Company will notify all the Selling Holders to
be included in the Demand Registration of the other Selling Holders and the
number of Registrable Securities requested to be included therein. The Selling
DLJ Stockholders requesting a registration under Section 6.02(a) may, at any
time prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other Selling
Holders, by providing a written notice to the Company revoking such request, in
which case such request, so revoked, shall be considered a Demand Registration
unless such revocation arose out of the fault of the Company or an adverse
development in the Company's business or unless the participating Stockholders
reimburse the Company for the reasonable out-of-pocket expenses incurred by the
Company in connection with such registration, in which case such request shall
not be considered a Demand Registration.
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(c) The Company will pay all Registration Expenses in connection with
any Demand Registration.
(d) A registration requested pursuant to this Section 6.02 shall not be
deemed to have been effected (i) unless the registration statement relating
thereto (A) has become effective under the Securities Act and (B) has remained
effective for a period of at least 180 days (or such shorter period in which
all Registrable Securities of the Selling Holders included in such registration
have actually been sold thereunder); provided that if after any registration
statement requested pursuant to this Section 6.02 becomes effective (x) such
registration statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court and (y)
less than 75% of the Registrable Securities included in such registration
statement has been sold thereunder, such registration statement shall not be
considered a Demand Registration, or (ii) if the Maximum Offering Size (as
defined below) is reduced in accordance with Section 6.02(e) such that less
than 75% of the Registrable Securities of the Selling DLJ Stockholders sought
to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Offering and the
managing underwriter shall advise the Company and the Selling DLJ Stockholders
that, in its view, (i) the number of shares of Registrable Securities requested
to be included in such registration (including any securities which the Company
proposes to be included which are not Registrable Securities) or (ii) the
inclusion of some or all of the shares of Registrable Securities owned by the
Selling Holders, in any such case, exceeds the largest number of shares which
can be sold without having an adverse effect on such offering, including the
price at which such shares can be sold (the "MAXIMUM OFFERING SIZE"), the
Company will include in such registration, in the priority listed below, up to
the Maximum Offering Size:
(1) first, all Registrable Securities requested to be
registered by the parties requesting such Demand Registration;
(2) second, all Registrable Securities requested to be
included in such registration by any other Selling Holder (allocated,
if necessary for the offering not to exceed the Maximum Offering Size,
pro rata among such Selling Holders on the basis of the relative number
of Registrable Securities so requested to be included in such
registration); and
(3) third, any securities proposed to be registered by the
Company.
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(f) Upon written notice to each Selling DLJ Stockholder, the Company
may postpone effecting a registration pursuant to this Section 6.02 on one
occasion during any period of six consecutive months for a reasonable time
specified in the notice but not exceeding 90 days (which period may not be
extended or renewed), if (i) an investment banking firm of recognized national
standing shall advise the Company and the Selling DLJ Stockholders in writing
that effecting the registration would materially and adversely affect an
offering of securities of such Company the preparation of which had then been
commenced or (ii) the Company is in possession of material non-public
information the disclosure of which during the period specified in such notice
the Company believes, in its reasonable judgment, would not be in the best
interests of the Company.
(g) In connection with any Demand Registration, the Company shall
appoint the underwriter or underwriters chosen by DLJMB. The Company
acknowledges that such underwriters may include ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation.
SECTION 6.03. Registration Procedures. (a) If and whenever the Company
is required to use its best efforts to effect or cause the registration of any
Registrable Securities under the Securities Act as provided in Sections 6.01
and 6.02, the Company will, as expeditiously as possible:
(i) Prepare and, in any event within 90 calendar days after
the end of the period within which requests for registration may be
given to the Company, file with the Commission a registration statement
with respect to such Registrable Securities and use its best efforts to
cause such registration statements to become and remain effective;
provided, that in the case of a registration provided for in Section
6.01 or Section 6.02, before filing a registration statement or
prospectus or any amendments or supplements thereof, the Company will
furnish to counsel selected by the Jordan Investors and counsel
selected by the DLJ Investors (in each case, only if they are selling
Registered Securities) copies of all such documents proposed to be
filed, which documents will be subject to the review of such counsel;
and, provided, further, that the Company may discontinue any
registration of its securities that is being effected pursuant to
Section 6.01 at any time prior to the effective date of the
registration statement relating thereto.
(ii) Prepare and file with the Commission such amendments
(including post-effective amendments) and supplements to such
registration statement and the prospectus used in connection therewith
as may be necessary to keep such registration statement effective for a
period as may be requested by the Jordan Investors or the DLJ Investors
(in each
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case, only if they are selling Registered Securities) not exceeding
nine months and to comply with the provisions of the Securities Act
with respect to the disposition of all Common Stock covered by such
registration statement during such period in accordance with the
intended methods of disposition by the seller or sellers thereof set
forth in such registration statement.
(iii) Furnish to each holder of Registrable Securities covered
by the registration statement and to each underwriter, if any, of such
Registrable Securities, such number of copies of a prospectus and
preliminary prospectus for delivery in conformity with the requirements
of the Securities Act, and such other documents, as such Person may
reasonably request, in order to facilitate the public sale or other
disposition of the Registrable Securities.
(iv) Use its best efforts to register or qualify such
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions as each
seller shall reasonably request, and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
seller to consummate the disposition of the Registrable Securities
owned by such seller, in such jurisdictions, except that the Company
shall not for any such purpose be required (A) to qualify to do
business as a foreign corporation in any jurisdiction where, but for
the requirements of this Section 6.03(a)(iv), it is not then so
qualified, or (B) to subject itself to taxation in any such
jurisdiction, or (C) to take any action which would subject it to
general or unlimited service of process in any such jurisdiction where
it is then so subject.
(v) Use its best efforts to cause such Registrable Securities
covered by such registration statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the
disposition of such Registrable Securities.
(vi) Immediately notify each seller of Registrable Securities
covered by such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the Securities Act
within the appropriate period mentioned in Section 6.03(a)(ii), if the
Company becomes aware that the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing, and, at the request of
any such seller, deliver a reasonable number
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of copies of an amended or supplemental prospectus as may be necessary
so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
(vii) Otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make generally
available to its security holders, in each case as soon as practicable,
but not later than 45 calendar days after the close of the period
covered thereby (90 calendar days in case the period covered
corresponds to a fiscal year of the Company), an earnings statement of
the Company which will satisfy the provisions of Section 11(a) of the
Securities Act.
(viii) Use its best efforts in cooperation with the
underwriters to list such Registrable Securities on each securities
exchange as they may reasonably designate.
(ix) In the event the offering is an Underwritten Offering,
use its best efforts to obtain a "cold comfort" letter from the
independent public accountants for the Company in customary form and
covering such matters of the type customarily covered by such letters
as (i) the Jordan Investors or the DLJ Investors (in each case, only if
they are selling Registered Securities) or (ii) the sellers of a
majority of any class of such Registrable Securities (excluding shares
being sold by the Jordan Investors or the DLJ Investors) reasonably
request.
(x) Execute and deliver all instruments and documents
(including in an Underwritten Offering an underwriting agreement in
customary form) and take such other actions and obtain such
certificates and opinions as (i) the Jordan Investors or the DLJ
Investors (in each case, only if they are selling Registered
Securities) or (ii) sellers of a majority of any class of such
Registrable Securities (excluding shares being sold by the Jordan
Investors or the DLJ Investors) reasonably request in order to effect
an Underwritten Offering of such Registrable Securities.
(b) each holder of Registrable Securities will, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 6.03(a)(vi), forthwith discontinue disposition of the Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 6.03(a)(vi).
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(c) If a registration pursuant to Section 6.01 or Section 6.02 involves
an Underwritten Offering, each holder of Registrable Securities agrees, whether
or not such holder's Registrable Securities are included in such registration,
not to effect any public sale or distribution, including any sale pursuant to
Rule 144 under the Securities Act, of any Registrable Securities, or of any
security convertible into or exchangeable or exercisable for any Registrable
Securities (other than as part of such Underwritten Offering), without the
consent of the managing underwriter, during a period commencing seven calendar
days before and ending 90 calendar days (or such lesser number as the managing
underwriter shall designate) after the effective date of such registration.
(d) If a registration pursuant to Section 6.01 or Section 6.02 involves
an Underwritten Offering, the Company agrees, if so required by the managing
underwriter, not to effect any public sale or distribution of any of its equity
or debt securities, as the case may be, or securities convertible into or
exchangeable or exercisable for any of such equity or debt securities, as the
case may be, during a period commencing seven calendar days before and ending
180 calendar days after the effective date of such registration, except for such
Underwritten Offering or except in connection with a stock option plan, stock
purchase plan, savings or similar plan, or an acquisition, merger or exchange
offer.
(e) If a registration pursuant to Section 6.01 involves an Underwritten
Offering, any holder of Registrable Securities requesting to be included in such
registration may elect, in writing, prior to the effective date of the
registration statement filed in connection with such registration, not to
register such securities in connection with such registration, unless such
holder has agreed with the Company or the managing underwriter to limit its
rights under this Section 6.03.
(f) It is understood that in any Underwritten Offering in addition to
any shares of Common Stock (the "INITIAL SHARES") the underwriters have
committed to purchase, the underwriting agreement may grant the underwriters an
option to purchase up to a number of additional shares of authorized but
unissued shares of Common Stock (the "OPTION SHARES") equal to 15% of the
initial shares (or such other maximum amount as the NASD may then permit),
solely to cover over-allotments. Shares of Common Stock proposed to be sold by
the Company and the other sellers pursuant to Section 6.01 shall be allocated
between initial shares and option shares as agreed or, in the absence of
agreement, pursuant to Section 6.01(d). The number of initial shares and option
shares to be sold by requesting holders shall be allocated pro rata among all
such holders on the basis of the relative number of shares of Registrable
Securities each such holder has requested to be included in such registration.
SECTION 6.04. Indemnification. (a) In the event of any registration of
any securities of the Company under the Securities Act pursuant to Section 6.01
or
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Section 6.02, the Company will, and it hereby agrees to, indemnify and hold
harmless, to the extent permitted by law, each seller of any Registrable
Securities covered by such registration statement, its directors and officers
or general and limited partners, each other Person who participates as an
underwriter in the offering or sale of such securities and each other Person, if
any, who controls such seller or any such underwriter within the meaning of the
Securities Act, as follows:
(i) against any and all loss, liability, claim, damage or
expense whatsoever arising out of or based upon an untrue statement or
alleged untrue statement of a material fact contained in any
registration statement (or any amendment or supplement thereto),
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading, or arising out of an untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus or
prospectus (or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense reasonably incurred by them
in connection with investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency
or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information published to the Company by or on
behalf of any such seller or underwriter expressly for use in the preparation of
any registration statement (or any amendment thereto) or any preliminary
prospectus or prospectus (or any amendment or supplement thereto); and provided,
further, that the Company will not be liable to any Person who participates as
an
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underwriter in the offering or sale of Registrable Securities or any other
Person, if any, who controls such underwriter within the meaning of the
Securities Act, under the indemnity agreement in this Section 6.04(a) with
respect to any preliminary prospectus or final prospectus or final prospectus as
amended or supplemented, as the case may be, to the extent that any such loss,
claim, damage or liability of such underwriter or controlling Person results
from the fact that such underwriter sold Registrable Securities to a Person to
whom there was not sent or given, at or prior to the written confirmation of
such sale, a copy of the final prospectus or of the final prospectus as then
amended or supplemented, whichever is most recent, if the Company has previously
furnished copies thereof to such underwriter. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of
such seller or any such director, officer, general or limited partner,
investment advisor or agent, underwriter or controlling Person and shall survive
the transfer of such securities by such seller.
(b) The Company may require, as a condition to including any
Registrable Securities in any registration statement filed in accordance with
Section 6.01 or Section 6.02, that the Company shall have received an
undertaking reasonably satisfactory to it from the prospective seller of such
Registrable Securities or any underwriter, to indemnify and hold harmless (in
the same manner and to the same extent as set forth in Section 6.04(a)) the
Company with respect to any statement or alleged statement in or omission or
alleged omission from such registration statement, any preliminary, final or
summary prospectus contained therein, or any amendment or supplement, if such
statement or alleged statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of such seller or underwriter specifically stating that
it is for use in the preparation of such registration statement, preliminary,
final or summary prospectus or amendment or supplement. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such director, officer or controlling Person and
shall survive the transfer of such securities by such seller. In that event, the
obligations of the Company and such sellers pursuant to this Section 6.04 are to
be several and not joint; provided, however, that with respect to each claim
pursuant to this Section, the Company shall be liable for the full amount of
such claim, and each such seller's liability under this Section 6.04 shall be
limited to an amount equal to the net proceeds (after deducting the underwriting
discount and expenses) received by such seller from the sale of Registrable
Securities held by such seller pursuant to this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of written
notice of the commencement of any action or proceeding involving a claim
referred to in this Section 6.04, such indemnified party will, if a claim in
respect
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thereof is to be made against an indemnifying party, give written notice to such
indemnifying party of the commencement of such action; provided, however, that
the failure of any indemnified party to give notice as provided herein shall not
relieve the indemnifying party of its obligations under this Section 6.04,
except to the extent (not including any such notice of an underwriter) that the
indemnifying party is actually prejudiced any such failure to give notice. In
case any such action is brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist in respect of such claim (in
which case the indemnifying party shall not be liable for the fees and expenses
of more than one firm of counsel for a majority of the sellers of Registrable
Securities, one firm of counsel selected by the DLJ Investors and one firm of
counsel selected by the Jordan Investors, or more than one firm of counsel for
the underwriters in connection with any one action or separate but similar or
related actions), the indemnifying party will be entitled to participate in and
to assume the defense thereof, jointly with any other indemnifying party similar
notified, to the extent that it may wish with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party for any legal or
other expenses subsequently incurred by such indemnifying party in connection
with the defense thereof.
(d) The Company and each seller of Registrable Securities shall provide
for the foregoing indemnity (with appropriate modifications) in any underwriting
agreement with respect to any required registration or other qualification of
securities under any federal or state law or regulation of any governmental
authority.
SECTION 6.05. Contribution. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by Section
6.04 is for any reason not available, the parties required to indemnify by the
terms thereof shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by such indemnity agreement
incurred by the Company, any seller of Registrable Securities and one or more of
the underwriters, except to the extent that contribution is not permitted under
Section 11(f) of the Securities Act. In determining the amounts which the
respective parties shall contribute, there shall be considered the relative
benefits received by each party from the offering of the Registrable Securities
(taking into account the portion of the proceeds of the offering realized by
each), the parties' relative knowledge and access to information concerning the
matter with respect to which the claim was asserted, the opportunity to correct
and prevent any statement or omission and any other equitable considerations
appropriate under the circumstances. The Company and each Person selling
securities agree with each other that no seller of Registrable Securities shall
be required to contribute any
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amount in excess of the amount such seller would have been required to pay to
an indemnified party if the indemnity under Section 6.04(b) were available. The
Company and each such seller agree with each other and the underwriters of the
Registrable Securities, if requested by such underwriters, that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the underwriters were treated as one entity for such
purpose) or for the underwriters' portion of such contribution to exceed the
percentage that the underwriting discount bears to the initial public offering
price of the Registrable Securities. For purposes of this Section 6.05, each
Person, if any, who controls an underwriter within the meaning of Section 15 of
the Securities Act shall have the same rights to contribution as such
underwriter, and each director and each officer of the Company who signed the
registration statement, and each Person, if any, who controls the Company or a
seller of Registrable Securities within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as the Company or a
seller of Registrable Securities, as the case may be.
SECTION 6.06. Rule 144. If the Company shall have filed a registration
statement pursuant to the requirements of Section 12 of the Exchange Act or a
registration statement pursuant to the requirements of the Securities Act, the
Company covenants that it will file the reports required to be filed by it under
the Securities Act and the Exchange Act and the rules and regulations adopted by
the Commission thereunder (or, if the Company is not required to file such
reports, it will, upon the request of any holder of Registrable Securities, make
publicly available other information), and it will take such further action as
any holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell shares of Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by (i) Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or (ii) any similar rule or regulation
hereafter adopted by the Commission. Upon the request of any holder of
Registrable Securities, the Company will deliver to such holder a written
statement as to whether it has complied with such requirements.
SECTION 6.07. Other Provisions Regarding Registration Rights.
Notwithstanding anything to the contrary in any previous agreement or security,
the Company shall have no obligations to any Stockholder with respect to the
registration of any Stock, except as provided in this Agreement.
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ARTICLE 7
TERMINATION
SECTION 7.01. Certain Terminations.
(a) The provisions of Articles 3, 4 and 5 shall terminate on the date
on which any of the following events first occurs: (i) a Public Distribution,
(ii) a merger or consolidation of the Company with or into another Person that
is not an Affiliate of the Company, as a result of which the Stockholders own
less than 51% of the outstanding shares of Voting Stock of the surviving or
resulting corporation, or (iii) the sale or other disposition of all or
substantially all the assets of the Company to a Person that is not an Affiliate
of the Company.
(b) Notwithstanding the foregoing, this Agreement shall in any event
terminate with respect to any Stockholder when such Stockholder no longer owns
any Stock.
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Successors and Assigns. Except as otherwise provided
herein, all of the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. No Stockholder may assign any of
its rights hereunder to any Person other than a transferee that has complied
with the requirements of Sections 4.02 and 5.03 (if applicable) as provided
therein in all respects. The Company may not assign any of its rights hereunder
to any Person other than an Affiliate of the Company. Except as provided in this
Agreement, if any transferee of any Stockholder shall acquire any Stock, in any
manner, whether by operation of law or otherwise, such shares shall be held
subject to all of the terms of this Agreement, and by taking and holding such
shares such Person shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement.
SECTION 8.02. Amendment and Modification; Waiver of Compliance;
Conflicts. (a) This Agreement may be amended only by a written instrument duly
executed by (i) holders of a majority of the shares of Common Stock and Jordan
Warrants held by the Jordan Investors, (ii) holders of a majority of the DLJ
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35
Warrants (or the underlying shares of Common Stock) and (iii) the holders of a
majority of the shares of Voting Stock owned by the Existing Stockholders. In
the event of the amendment or modification of this Agreement in accordance with
its terms, the Stockholders shall cause the Board of Directors of the Company to
meet within 30 calendar days following such amendment or modification or as soon
thereafter as is practicable for the purpose of adopting any amendment to the
Articles of Incorporation and By-Laws of the Company that may be required as a
result of such amendment of modification to this Agreement, and, if required,
proposing such amendments to the Stockholders entitled to vote thereon, and the
Stockholders agree to vote in favor of such amendments.
(b) Except as otherwise provided in this Agreement, any failure of any
of the parties to comply with any obligation, covenant, agreement or condition
herein may be waived by the party entitled to the benefits thereof only by a
written instrument signed by the party granting such waiver, but such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall not operate as a waiver of, or estoppel with
respect to, any subsequent or other failure.
(c) In the event of any conflict between the provisions of this
Agreement and the provisions of any other agreement, the provisions of this
Agreement shall govern and prevail.
SECTION 8.03. Notices. Any notice, request, claim, demand, document and
other communication hereunder to any party shall be effective upon receipt (or
refusal of receipt) and shall be in writing and delivered personally or sent by
telex or telecopy (with such telex or telecopy confirmed promptly in writing
sent By first class mail), or first class mail, or other similar means of
communication, as follows:
(i) If to the Company or any Jordan Investor (other than
MCIT), addressed to the Company or to such Jordan Investor c/o The
Jordan Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇;
(ii) If to MCIT, addressed to MCIT, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇;
(iii) If to any DLJ investor, addressed to such DLJ Investor
c/o DLJ Merchant Banking Partners II, L.P., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇;
(iv) If to any other Stockholder, to the address of such
Stockholder set forth in the stock records of the Company.
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or, in each case, to such other address or telex or telecopy number as such
party may designate in writing to each Stockholder and the Company by written
notice given in the manner specified herein.
All such communications shall be deemed to have been given, delivered
or made when so delivered by hand or sent by telex (answer back received) or
telecopy, or five business days after being so mailed.
SECTION 8.04. Entire Agreement. (a) Effective on the date hereof, this
Agreement shall amend and restate the 1997 Stockholders Agreement.
(b) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire agreement
among the parties hereto with respect to the subject transactions contemplated
hereby and supersede all prior oral and written agreements and memoranda and
undertakings among the parties hereto with regard to this subject matter. The
Company represents to the Stockholders that the rights granted to the holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted or obligations accepted under any other agreement (including the
Certificate of Incorporation) to which the Company is a party. Neither the
Company nor any Subsidiary of the Company will hereafter enter into any
agreement with respect to its equity or debt securities which is inconsistent
with the rights granted to the holders of Registrable Securities or any
Stockholder under this Agreement without obtaining the prior written consent of
the Stockholder or holder of Registrable Securities whose rights would be
thereby affected.
SECTION 8.05. Injunctive Relief. The Stockholders acknowledge and agree
that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to an injunction, restraining order or other equitable relief from any
court of competent jurisdiction, restraining any Stockholder from committing any
violations of the provisions of this Agreement.
SECTION 8.06. Inspection. For so long as this Agreement shall be in
effect, this Agreement shall be made available for inspection by any Stockholder
at the principal executive offices of the Company.
SECTION 8.07. Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
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SECTION 8.08. Recapitalizations, Exchanges, Etc., Affecting the Common
Stock; New Issuances. The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Common Stock, to any and all equity
securities of the Company (or securities of any successor or assign of the
Company (whether by merger, consolidation, sale of assets, or otherwise) which
may be issued in respect of, in exchange for, or in substitution of, such equity
securities) and shall be appropriately adjusted for any stock dividends, splits.
reverse splits, combinations, reclassifications, recapitalizations,
reorganizations and the like occurring after the date hereof.
SECTION 8.09. Right to Negotiate. Subject to the terms of this
Agreement and approval of the Board of Directors, nothing in this Agreement
(apart from Article 5 hereof) shall be deemed to restrict or prohibit the
Company from purchasing Stock from any Stockholder at any time upon such terms
and conditions and at such price as may be mutually agreed upon between the
Company and such Stockholder, whether or not at the time of such purchase,
circumstances exist which specifically grant the Company the right to purchase,
or such Stockholder the right to sell, Stock pursuant to the terms of this
Agreement.
SECTION 8.10. CHOICE OF LAW. THIS AGREEMENT SHALL BE GOVERNED BY,
CONSTRUED, APPLIED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK. EACH OF THE PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IN THE EVENT OF
ANY BREACH OF THIS AGREEMENT, THE NONBREACHING PARTY WOULD BE IRREPARABLY HARMED
AND COULD NOT BE MADE WHOLE BY MONETARY DAMAGES, AND THAT, IN ADDITION TO ANY
OTHER REMEDY TO WHICH THEY MAY BE ENTITLED AT LAW OR IN EQUITY, THE PARTIES
SHALL BE ENTITLED TO SUCH EQUITABLE OR INJUNCTIVE RELIEF AS MAY BE APPROPRIATE.
SECTION 8.11. ARBITRATION. THE STOCKHOLDERS WAIVE THEIR RIGHTS, IF ANY,
TO JURY TRIAL IN RESPECT TO ANY DISPUTE OR CLAIMS BETWEEN OR AMONG THE PARTIES
TO THIS AGREEMENT RELATING TO OR IN RESPECT OF THIS AGREEMENT, ITS NEGOTIATION,
EXECUTION, PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF CONDUCT OR DEALING OR
ACTIONS UNDER OR IN RESPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION ANY
CLAIM UNDER THE SECURITIES ACT, THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED,
ANY OTHER STATE OR FEDERAL LAW RELATING TO SECURITIES OR FRAUD OR BOTH, THE
RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS ACT, AS AMENDED, OR FEDERAL OR
STATE COMMON LAW, AND ANY SUCH DISPUTE OR CLAIMS SHALL BE SUBMITTED TO, AND
RESOLVED
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EXCLUSIVELY PURSUANT TO, ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. SUCH ARBITRATION
SHALL TAKE PLACE IN NEW YORK, NEW YORK, AND SHALL BE SUBJECT TO THE SUBSTANTIVE
LAW OF THE STATE OF NEW YORK. DECISIONS AS TO FINDINGS OF FACT AND CONCLUSIONS
OF LAW PURSUANT TO SUCH ARBITRATION SHALL BE FINAL, CONCLUSIVE AND BINDING ON
THE PARTIES, SUBJECT TO CONFIRMATION, MODIFICATION OR CHALLENGE PURSUANT TO 9
U.S.C. SECTIONS 1 ET SEQ. ANY FINAL AWARD SHALL BE ENFORCEABLE AS A JUDGMENT OF
A COURT OF RECORD.
SECTION 8.12. No Strict Construction. The language used in this
Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any person.
SECTION 8.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed as of the date first above written
W-H ENERGY SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
W-H INVESTMENT, L.P.
By: W-H INVESTMENT GP, L.L.C.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
W-H INVESTMENT II, L.P.
By: W-H INVESTMENT GP, L.L.C.
By: /s/
-----------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
40
DLJ MERCHANT BANKING PARTNERS
II-A, L.P.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
41
DLJMB FUNDING II, INC.
By: DLJMB Funding, Inc.
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Principal
DLJ EAB PARTNERS, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
42
UK INVESTMENT PLAN 1997 PARTNERS
By: UK INVESTMENT PLAN 1997
PARTNERS, INC., General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ ESC II L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ FIRST ESC L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
43
EXISTING STOCKHOLDERS:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇ MANAGEMENT CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
BANK OF SCOTLAND NOMINEES LTD.
For The Account of NASCIT
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title:
