Exhibit (c)(4)
CONFORMED COPY
INVESTORS' AGREEMENT
dated as of
August 7, 1997
among
DECISIONONE HOLDINGS CORP.,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS II - A, L.P.,
DLJ OFFSHORE PARTNERS II, X.X.,
XXX XXXXXXXXXXX XXXXXXXX, X.X.,
XXX DIVERSIFIED PARTNERS - A, L.P.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS - A, L.P.,
DLJMB FUNDING II, INC.,
UK INVESTMENT PLAN 1997 PARTNERS,
DLJ EAB PARTNERS, L.P.,
DLJ FIRST ESC, LLC,
AND
CERTAIN OTHER PERSONS NAMED HEREIN
TABLE OF CONTENTS
Page
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ARTICLE 1
Definitions
Section 1.1. Definitions.................................2
ARTICLE 2
Corporate Governance and Management
Section 2.1. Composition of the Board...................10
Section 2.2. Removal....................................10
Section 2.3. Vacancies..................................10
Section 2.4. Action by the Board........................11
Section 2.5. Conflicting Charter or Bylaw Provision.....11
ARTICLE 3
Restrictions on Transfer
Section 3.1. General....................................12
Section 3.2. Legends....................................12
Section 3.3. Permitted Transferees......................13
Section 3.4. Restrictions on Transfers by Institutional
Shareholders ..............................13
Section 3.5. Restrictions on Transfers by Management
Shareholders ..............................13
ARTICLE 4
Tag-Along Rights; Drag-Along Rights; Preemptive Rights
Section 4.1. Rights to Participate in Transfer..........15
Section 4.2. Right to Compel Participation in Certain
Transfers..................................17
Section 4.3. Preemptive Rights..........................19
Section 4.4. Certain Other Purchases of Common Stock....20
ARTICLE 5
Registration Rights
Section 5.1. Demand Registration........................21
Section 5.2. Piggyback Registration.....................23
Section 5.3 Holdback Agreements........................25
Section 5.4. Registration Procedures....................25
Section 5.5. Indemnification by the Company.............29
Section 5.6. Indemnification by Participating
Shareholders...............................29
Section 5.8. Contribution...............................31
Section 5.9. Participation in Public Offering...........33
Section 5.10. Cooperation by the Company.................33
Section 5.11. No Transfer of Registration Rights.........33
ARTICLE 6
Certain Covenants and Agreements
Section 6.1. Confidentiality............................33
Section 6.2. Reports....................................34
Section 6.3. Limitations on Subsequent Registration.....35
Section 6.4. Exclusive Financial Advisor and
Investment Banking Advisor.................35
Section 6.5. Limitation on Purchase of Common Stock.....35
ARTICLE 7
Miscellaneous
Section 7.1. Entire Agreement...........................35
Section 7.2. Binding Effect; Benefit....................36
Section 7.3. Assignability..............................36
Section 7.4. Amendment; Waiver; Termination.............36
Section 7.5. Notices....................................37
Section 7.6. Headings...................................38
Section 7.7. Counterparts...............................38
Section 7.8. Applicable Law.............................38
Section 7.9. Specific Enforcement.......................38
Section 7.10. Consent to Jurisdiction; Expenses..........39
Section 7.11. Severability...............................39
INVESTORS' AGREEMENT
AGREEMENT dated as of August 7, 1997 among (i) DecisionOne
Holdings Corp. (the "Company"), (ii) DLJ Merchant Banking Partners II, L.P.
("DLJMB"), DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P.,
DLJMB Funding II, Inc., DLJ Merchant Banking Partners II - A, L.P., DLJ
Diversified Partners - A., L.P., DLJ Millennium Partners, L.P., DLJ Millennium
Partners - A, L.P., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P.,
and DLJ First ESC, LLC (each a "DLJ Entity" and a "Shareholder" and
collectively the "DLJ Entities"), (iii) Apollo Investment Fund III L.P.
("Apollo Investment"), Apollo Overseas Partners III L.P. ("Apollo Overseas"),
Apollo (U.K.) Partners III, L.P. ("Apollo U.K."), Xxxx Capital Fund V L.P.
("Xxxx Capital V"), Xxxx Capital Fund, V-B, L.P. ("Xxxx Capital V-B"), BCIP
Associates ("BCIP"), BCIP Trust Associates L.P. ("BCIP Trust"), Xxxxxx X. Xxx
Equity Fund III, L.P. ("THL"), Xxxxxx X. Xxx Foreign Fund III, L.P. ("THL
Foreign Fund"), THL Co-Investors III-A, LLC ("THL Co-Investors A"), THL
Co-Investors III-B, LLC ("THL Co-Investors B"), DLJ Capital Corp. ("DLJ
Capital"), Sprout Growth II, L.P. ("Sprout"), The Sprout CEO Fund, L.P.
("Sprout CEO Fund"), and Ontario Teachers' Pension Plan Board (each a
"Shareholder" and collectively, the Shareholders listed in this clause (iii)
are referred to as the "Institutional Shareholders") and (iv) certain other
Persons listed on the signature pages hereof (each a "Shareholder" and
collectively, the "Management Shareholders").
W I T N E S S E T H :
WHEREAS, pursuant to the Subscription Agreement and the
DecisionOne Direct Investment Program (as defined below) certain parties
hereto are or will be acquiring securities of Quaker Holding Co. and the
Company, respectively; and
WHEREAS, pursuant to the terms of the Merger Agreement (as
defined below), Quaker Holding Co. will be merged with and into the Company,
with the Company as the surviving corporation (the "Merger");
WHEREAS, the parties hereto desire to enter into this Agreement
to govern certain of their rights, duties and obligations after consummation
of the transactions contemplated by the Merger Agreement, the Subscription
Agreement and the DecisionOne Direct Investment Program;
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Adjusted Initial Ownership" means, with respect to any
Management Shareholder, the number of shares of Common Stock and Common Stock
Equivalents owned as of the date hereof, or in the case of any Person that
shall become a party to this Agreement on a later date, as of such date,
taking into account any stock split, stock dividend, reverse stock-split or
similar event.
"Adverse Person" means any Person whom the Board of Directors of
the Company determines is a competitor or a potential competitor of the
Company or its Subsidiaries.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person, provided that no securityholder of the Company shall be deemed
an Affiliate of any other securityholder solely by reason of any investment in
the Company. For the purpose of this definition, the term "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any Person, shall
mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities or by contract or otherwise.
"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 ERISA or any other trust established directly or indirectly
under such plan or any other such plan having the same sponsor.
"Apollo Entities" means Apollo Investment, Apollo Overseas,
Apollo U.K. and their Permitted Transferees.
"Bain Entities" means Xxxx Capital V, Xxxx Capital V-B, BCIP,
BCIP Trust and their Permitted Transferees.
"beneficially own" shall have the meaning set forth in Rule
13d-3 of the Exchange Act.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Change of Control" means such time as (a) the DLJ Entities
shall own less than 20% of the outstanding shares of Common Stock, (b) the
transfer of all or substantially all of the assets of the Company to any Person
or group shall have been consummated, or (c) the Company shall have been
liquidated.
"Closing Date" means August 7, 1997.
"Common Stock" shall mean the common stock, par value $.01 per
share, of the Company and any stock into which such Common Stock may
thereafter be converted or changed.
"Common Stock Equivalent" means
(20.61 - P) x N
---------------
20.61
where "N" equals the number of Roll-Over Options, and "P" equals the exercise
price of such Roll-Over Option.
"DecisionOne Direct Investment Program" means the investment
program of the Company pursuant to which certain members of the Company's
management will acquire shares of Common Stock.
"Drag-Along Portion" means, with respect to any Other
Shareholder and any class of Common Stock, the number of such class of Common
Stock beneficially owned by such Other Shareholder multiplied by a fraction,
the numerator of which is the number of such class of Common Stock proposed to
be sold by the DLJ Entities on behalf of the DLJ Entities and the Other
Shareholders and the denominator of which is the total number of such class of
Common Stock on a Fully Diluted basis beneficially owned by the Shareholders.
"Equity Securities" means the Common Stock, securities
convertible into or exchangeable for Common Stock and options, warrants or
other rights to acquire Common Stock, preferred stock or any other equity
security issued by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"First Public Offering" means the first sale after the date
hereof of Common Stock pursuant to an effective registration statement under
the Securities Act (other than a registration statement on Form S-8 or any
successor form).
"Fully Diluted" means all outstanding shares of Common Stock
and all shares issuable in respect of securities convertible into or
exchangeable for such Common Stock, stock appreciation rights or options,
warrants and other irrevocable rights to purchase or subscribe for such Common
Stock or securities convertible into or exchangeable for such Common Stock;
provided that no Person shall be deemed to own such number of Fully Diluted
shares of any Common Stock as such Person has the right to acquire from any
Person other than the Company.
"Initial Ownership" means, with respect to any Shareholder, the
number of shares of Common Stock beneficially owned (and (without duplication)
which such Persons have the right to acquire from any Person) as of the date
hereof, or in the case of any Person that shall become a party to this
Agreement on a later date, as of such date, taking into account any stock
split, stock dividend, reverse stock split or similar event.
"Merger Agreement" means the Agreement and Plan of Merger dated
as of May 4, 1997, as subsequently amended, between the Company and Quaker
Holding Co.
"Other Shareholders" means all Shareholders other than the DLJ
Entities.
"Percentage Ownership" means, with respect to any Shareholder at
any time, (i) the number of shares of Fully Diluted Common Stock that such
Shareholder beneficially owns (and (without duplication) has the right to
acquire from any Person) at such time, divided by (ii) the total number of
shares of Fully Diluted Common Stock at such time.
"Permitted Transferee" means (i) in the case of an Institutional
Shareholder (a) any general or limited partner or shareholder of such
Shareholder, and any corporation, partnership or other entity that is an
Affiliate of such Shareholder (collectively, "Shareholder Affiliates"), (b) any
general partner, limited partner, employee, officer or director of such
Shareholder or a Shareholder Affiliate, or any spouse, lineal descendant,
sibling, parent, heir, executor, administrator, testamentary trustee, legatee
or beneficiary of any of the foregoing persons described in this clause (b)
(collectively, "Shareholder Associates"), and (c) any trust, the beneficiaries
of which, or any corporation, limited liability company or partnership,
stockholders, members or general or limited partners of which include only
such Shareholder, such Shareholder Affiliates or Shareholder Associates;
(ii) in the case of a Management Shareholder (a) any other
Shareholder, (b) a spouse or lineal descendant (whether natural or adopted),
sibling, parent, heir, executor, administrator, testamentary trustee, legatee
or beneficiary of any of such Management Shareholder, (c) any trust, the
beneficiaries of which, or any corporation, limited liability company or
partnership, stockholders, members or general or limited partners of which
include only the Persons named in clauses (a) or (b) or (d) any charitable
remainder trust; or
(iii) in the case of any DLJ Entity (A) any other DLJ Entity,
(B) any general or limited partner of any such entity (a "DLJ Partner"), and
any corporation, partnership, Affiliated Employee Benefit Trust or other entity
which is an Affiliate of any DLJ Partner (collectively, the "DLJ Affiliates"),
(C) any managing director, general partner, director, limited partner, officer
or employee of such DLJ Entity or a DLJ Affiliate, or the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any of the
foregoing Persons referred to in this clause (C) (collectively, "DLJ
Associates"), and (D) any trust, the beneficiaries of which, or any
corporation, limited liability company or partnership, the stockholders,
members or general or limited partners of which, include only such XXX Xxxxxx,
XXX Xxxxxxxxxx, XXX Associates, their spouses or their lineal descendants.
The term "DLJ Entities", to the extent such entities shall have transferred
any of their Shares to "Permitted Transferees", shall mean the DLJ Entities
and the Permitted Transferees of the DLJ Entities, taken together, and any
right or action that may be exercised or taken at the election of the DLJ
Entities may be exercised or taken at the election of the DLJ Entities and
such Permitted Transferees.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Pro Rata Portion" means the number of Shares a Shareholder
holds (either Purchased Shares or non-Purchased Shares, as the case may be)
multiplied by a fraction, the numerator of which is the number of Shares to be
sold by the DLJ Entities and the Institutional Shareholders and their Permitted
Transferees in a Public Offering and the denominator of which is the total
number of Shares, on a Fully Diluted basis, held in the aggregate by the DLJ
Entities and the Institutional Shareholders and their Permitted Transferees
prior to such Public Offering.
"Public Offering" means any primary or secondary public
offering of Common Stock pursuant to an effective registration statement under
the Securities Act other than pursuant to a registration statement filed in
connection with a transaction of the type described in Rule 145 of the
Securities Act or for the purpose of issuing securities pursuant to an employee
benefit plan.
"Purchased Shares" means those Shares purchased by a Management
Shareholder on the Closing Date for cash and/or with the proceeds of a
promissory note of the type contemplated by the DecisionOne Direct Investment
Plan.
"Registrable Securities" means at any time, with respect to any
Shareholder or its Permitted Transferees, any shares of Common Stock then
owned by such Shareholder or its Permitted Transferees until (i) a registration
statement covering such securities has been declared effective by the SEC and
such securities have been disposed of pursuant to such effective registration
statement, (ii) such securities are sold under circumstances in which all of
the applicable conditions of Rule 144 (or any similar provisions then in force)
under the Securities Act are met or such securities may be sold pursuant to
Rule 144(k) or (iii) such securities are otherwise transferred, the Company has
delivered a new certificate or other evidence of ownership for such securities
not bearing the legend required pursuant to this Agreement and such securities
may be resold without subsequent registration under the Securities Act.
"Registration Expenses" means (i) all registration and filing
fees, (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the securities registered), (iii) printing
expenses, (iv) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) reasonable fees and disbursements of counsel
for the Company and customary fees and expenses for independent certified
public accountants retained by the Company (including expenses relating to any
comfort letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letters requested pursuant
to Section 5.4(g) hereof), (vi) the reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
(vii) reasonable fees and expenses of up to one counsel for the Shareholders
participating in the offering, (viii) fees and expenses in connection with any
review of underwriting arrangements by the National Association of Securities
Dealers, Inc. (the "NASD") including fees and expenses of any "qualified
independent underwriter" and (ix) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but shall not include
any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or any out-of-pocket expenses (except as set forth in
clause (vii) above) of the Shareholders or any fees and expenses of
underwriter's counsel.
"Restriction Termination Date" means the fourth anniversary of
the Closing Date.
"Roll-Over Option" means an option granted by the Company to a
Management Shareholder prior to the Merger which option, at the effective time
of the Merger, was converted into an option to purchase shares of Common Stock
of the surviving corporation.
"Section 4.03 Portion" means the pro rata portion of any Equity
Securities proposed to be issued by the Company with respect to which
Shareholders shall be entitled to exercise their rights under Section 4.03,
(a) in the case of any Institutional Shareholder, based upon
such Institutional Shareholder's Initial Ownership of shares of Common Stock
as a percentage of the sum of (i) the Initial Ownership of Common Stock of the
DLJ Entities and all Institutional Stockholders and (ii) the Adjusted Initial
Ownership of all Management Stockholders, or
(b) in the case of any Management Shareholder, based upon such
Management Shareholder's Adjusted Initial Ownership of shares of Common Stock
as a percentage of the sum of (i) the Initial Ownership of the DLJ Entities
and the Institutional Shareholders and (ii) the Adjusted Initial Ownership of
all Management Shareholders.
"Section 4.04 Portion" means, with respect to any Shareholder
at any time, the number of shares of common stock purchased by DLJ Entities in
a transaction subject to Section 4.04, multiplied by a fraction, the numerator
of which is (i) the number of shares of Common Stock on a Fully Diluted basis
that such Shareholder beneficially owns at such time, and the denominator of
which is (ii) the total number of shares of Common Stock on a Fully Diluted
basis beneficially owned at such time by all Other Shareholders and the DLJ
Entities.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder" means each Person (other than the Company) who
shall be a party to this Agreement, whether in connection with the execution
and delivery hereof as of the date hereof, pursuant to Section 7.3 or
otherwise, so long as such Person shall beneficially own any Common Stock.
"Shares" means shares of Common Stock held by the Shareholders.
"Sprout Entities" means DLJ Capital, Sprout, Sprout CEO Fund,
and their Permitted Transferees.
"Subject Securities" means the Common Stock beneficially owned
by the Management Shareholders and Institutional Shareholders to be transferred
in a Section 4.2 Sale.
"Subscription Agreement" means the Subscription Agreement of
even date herewith among Quaker Holding Co., the DLJ Entities and the
Institutional Investors.
"Subsidiary" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"THL Entities" means THL, THL Foreign Fund, THL Co-Investors
A, THL Co-Investors B, and their Permitted Transferees.
"Tag-Along Portion" means the number of shares of Common Stock
held (or, without duplication, that such Shareholder has the right to acquire
from any Person) by the Tagging Person or the Selling Person, as the case may
be, multiplied by a fraction, the numerator of which is the number of shares
of Common Stock proposed to be sold by the Selling Person pursuant to Section
4.1, and the denominator of which is the aggregate number of shares of Common
Stock on a Fully Diluted basis owned by all Shareholders.
"Third Party" means a prospective purchaser of Common Stock in
an arm's-length transaction from a Shareholder where such purchaser is not a
Permitted Transferee of such Shareholder.
"Underwritten Public Offering" means a firmly underwritten
public offering of Registrable Securities of the Company pursuant to an
effective registration statement under the Securities Act.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
Cause 2.2
Confidential Information 6.1(b)
Demand Registration 5.1(a)
Drag-Along Rights 4.2(a)
Holders 5.1(a)(ii)
Incidental Registration 5.2(a)
Indemnified Party 5.7
Indemnifying Party 5.7
Inspectors 5.4(g)
Maximum Offering Size 5.1(e)
Nominee 2.3(a)
Piggyback Registration 5.2(a)
Public Offering Limitations 3.5(a)
Records 5.4(g)
Representatives 6.1(b)
Section 4.1 Response Notice 4.1(a)
Section 4.2 Sale 4.2(a)
Section 4.2 Notice 4.2(a)
Section 4.2 Sale Price 4.2(a)
Section 4.2 Notice Period 4.2(a)
Section 4.3 Notice 4.3
Section 4.3 Portion 4.3
Section 4.4 Notice 4.4
Selling Person 4.1(a)
Selling Shareholder 5.1(a)
Shareholder 7.3
Tag-Along Notice 4.1(a)
Tag-Along Notice Period 4.1(a)
Tag-Along Offer 4.1(a)
Tag-Along Right 4.1(a)
Tag-Along Sale 4.1(a)
Tagging Person 4.1(a)
Transfer 3.1(a)
Trigger Date 6.5
ARTICLE 2
Corporate Governance and Management
Section 2.1. Composition of the Board. The Board shall
consist of seven members, of whom four shall be nominated by DLJMB, two
shall be nominated by DLJMB and shall be individuals which are not
"Affiliates" or "Associates" (as those terms are used within the meaning of
Rule 12b-2 of the General Rules and Regulations under the Exchange Act) of
any Shareholder or its Affiliates, and one shall be nominated by the
Management Shareholders. Each Shareholder entitled to vote for the
election of directors to the Board agrees that it will vote its shares of
Common Stock or execute consents, as the case may be, and take all other
necessary action (including causing the Company to call a special meeting
of shareholders) in order to ensure that the composition of the Board is as
set forth in this Section 2.1; provided that, no Shareholder shall be
required to vote for another Shareholder's nominee(s) if the number of
shares of Common Stock held by the Shareholder or group of Shareholders, as
applicable, making the nomination (or, in the case of a nomination by
DLJMB, of the DLJ Entities) is, at the close of business on the day
preceding such vote or execution of consents, less than 10% of such
Shareholder's or group of Shareholders' (or the DLJ Entities'), as
applicable, Initial Ownership of Common Stock on a Fully Diluted basis.
Section 2.2. Removal. Each Shareholder agrees that if, at any
time, it is then entitled to vote for the removal of directors of the Company,
it will not vote any of its shares of Common Stock in favor of the removal of
any director who shall have been designated or nominated pursuant to Section
2.1 unless such removal shall be for Cause or the Person(s) entitled to
designate or nominate such director shall have consented to such removal in
writing, provided that if the Persons entitled to designate or nominate any
director pursuant to Section 2.1 shall request the removal, with or without
Cause, of such director in writing, such Shareholder shall vote its shares of
Common Stock in favor of such removal. Removal for "Cause" shall mean removal
of a director because of such director's (a) willful and continued failure
substantially to perform his duties with the Company in his established
position, (b) willful conduct which is injurious to the Company or any of its
Subsidiaries, monetarily or otherwise, (c) conviction for, or guilty plea to, a
felony or a crime involving moral turpitude, or (d) abuse of illegal drugs or
other controlled substances or habitual intoxication.
Section 2.3. Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without Cause) or otherwise, there
shall exist or occur any vacancy on the Board:
(a) The Shareholder(s) entitled under Section 2.1 to nominate such
director whose death, disability, retirement, resignation or removal resulted
in such vacancy, may, subject to the provisions of Section 2.1, nominate
another individual (the "Nominee") to fill such vacancy and serve as a director
of the Company; and
(b) each Shareholder then entitled to vote for the election of the
Nominee as a director of the Company agrees that it will vote its shares of
Common Stock, or execute a written consent, as the case may be, in order to
ensure that the Nominee be elected to the Board; provided that, no Shareholder
shall be required to vote for another party's Nominee(s) if the Percentage
Ownership of the Shareholder or group of Shareholders, as applicable, making
the nomination (or, in the case of a nomination by DLJMB, of the DLJ
Entities), at the close of business of the day preceding such vote or execution
of consents, is less than 10% on a Fully Diluted basis of such Shareholder's or
group of Shareholders' (or the DLJ Entities'), as applicable, Initial Ownership
of Common Stock.
Section 2.4. Action by the Board. (a) A quorum of the Board
shall consist initially of four directors; provided that DLJMB shall have the
right, in its sole discretion, until such time as the Percentage Ownership of
the DLJ Entities is less than 10% on a Fully Diluted basis of the DLJ
Entities' Initial Ownership of Common Stock, to increase or decrease the
number of directors necessary to constitute a quorum.
(b) All actions of the Board shall require the affirmative vote
of at least a majority of the directors at a duly convened meeting of the
Board at which a quorum is present or the unanimous written consent of the
Board; provided that, in the event there is a vacancy on the Board and an
individual has been nominated to fill such vacancy, the first order of
business shall be to fill such vacancy.
Section 2.5. Conflicting Charter or Bylaw Provision. Each
Shareholder shall vote its shares of Common Stock, and shall take all other
actions reasonably necessary, to ensure that the Company's certificate of
incorporation and bylaws (copies of which are attached hereto as Exhibits A
and B) facilitate and do not at any time conflict with any provision of this
Agreement.
ARTICLE 3
Restrictions on Transfer
Section 3.1. General. (a) Each Shareholder understands and
agrees that the Common Stock purchased pursuant to the Subscription Agreement
or the DecisionOne Direct Investment Program have not been registered under the
Securities Act and are restricted securities. Each Shareholder agrees that it
will not, directly or indirectly, sell, assign, transfer, grant a
participation in, pledge or otherwise dispose of ("transfer") any Common Stock
(or solicit any offers to buy or otherwise acquire, or take a pledge of any
Common Stock) except in compliance with the Securities Act and the terms and
conditions of this Agreement.
(b) Any attempt to transfer any Common Stock not in compliance
with this Agreement shall be null and void and the Company shall not, and
shall cause any transfer agent not to, give any effect in the Company's stock
records to such attempted transfer.
Section 3.2. Legends. (a) In addition to any other legend
that may be required, each certificate for shares of Common Stock that is
issued to any Shareholder shall bear a legend in substantially the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT
DATED AS OF AUGUST 7, 1997, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
DECISIONONE HOLDINGS CORP. OR ANY SUCCESSOR THERETO."
(b) If any Common Stock shall cease to be Registrable Securities
under clause (i) or clause (ii) of the definition thereof, the Company shall,
upon the written request of the holder thereof, issue to such holder a new
certificate evidencing such shares without the first sentence of the legend
required by Section 3.2(a) endorsed thereon. If any Common Stock cease to be
subject to any and all restrictions on transfer set forth in this Agreement,
the Company shall, upon the written request of the holder thereof, issue to
such holder a new certificate evidencing such Common Stock without the second
sentence of the legend required by Section 3.2(a) endorsed thereon.
Section 3.3. Permitted Transferees. Notwithstanding anything
in this Agreement to the contrary, any Shareholder may at any time transfer
any or all of its Common Stock to one or more of its Permitted Transferees
without the consent of the Board or any other Shareholder or group of
Shareholders and without compliance with Sections 3.4, 3.5 and 4.1 so long as
(a) such Permitted Transferee shall have agreed in writing to be bound by the
terms of this Agreement and (b) the transfer to such Permitted Transferee is
not in violation of applicable federal or state securities laws.
Section 3.4. Restrictions on Transfers by Institutional
Shareholders. (a) Except as provided in Section 3.3, each Institutional
Shareholder and each Permitted Transferee of such Institutional Shareholder
may transfer its Common Stock only as follows:
(i) in a transfer made in compliance with Section
4.1 or 4.2;
(ii) in a Public Offering in connection with the
exercise of its rights under Article 5 hereof; or
(iii) following the earlier to occur of (i) the
date on which the Percentage Ownership of such Institutional
Shareholder is less than 25% of its Initial Ownership of
Common Stock and (ii) the seventh anniversary of the Closing
Date, to any Person other than any Adverse Person.
(b) The restrictions set forth in Section 3.4(a)(i) and (a)(ii)
shall terminate at such time as aggregate Percentage Ownership of the DLJ
Entities and their Permitted Transferees is equal to or less than 50% of the
aggregate Initial Ownership of Common Stock of DLJ Entities.
Section 3.5. Restrictions on Transfers by Management
Shareholders. (a) Except as provided in Section 3.03, each Management
Shareholder and each Permitted Transferee of such Management Shareholder may
transfer its Common Stock only as follows:
(i) in a transfer made in compliance with Section
4.1 or 4.2;
(ii) subject to the Public Offering Limitations
(as defined below), in a Public Offering in connection with
the exercise of its rights under Article 5 hereof;
(iii) 180 days following a Public Offering, to any
Third Party, in a transfer made in compliance with Rule 144
promulgated under the Securities Act; provided, however,
that until the Restriction Termination Date, the Percentage
Ownership of such Management Shareholder as a result of
such transfer shall be equal to or exceed the greater of
(x) 50% of such Management Shareholder's Initial Ownership
of Common Stock and (y) a percentage of such Management
Shareholder's Initial Ownership equal to the Remaining
Percentage. For purposes of this Section 3.5(a)(iii),
"Remaining Percentage" means the Percentage Ownership of
the DLJ Entities and the Institutional Investors
immediately prior to such proposed transfer pursuant to
this Section 3.5(a)(iii) calculated by subtracting from the
Initial Ownership of the DLJ Entities and the Institutional
Investors the number of shares of Common Stock theretofore
transferred by the DLJ Entities and the Institutional
Investors; or
(iv) following the Restriction Termination Date,
to any Third Party other than an Adverse Person for
consideration consisting solely of cash, provided, however,
that the number of Shares transferred by such Management
Shareholder pursuant to this Section 3.5(a)(iv) in any
twelve-month period shall not exceed 20% of such Management
Shareholder's Percentage Ownership at the beginning of such
twelve month period.
For purposes of this Agreement, "Public Offering Limitations"
means (A) except as set forth in the proviso at the end of this paragraph, no
Management Shareholder shall be permitted to exercise its rights under Section
5.02 hereof (x) with respect to the First Public Offering and (y) until such
time as the Percentage Ownership of the DLJ Entities and the Institutional
Shareholders and their Permitted Transferees shall be less than 50% of their
aggregate Initial Ownership of Common Stock and (B) in each Public Offering
following the First Public Offering, such Management Shareholder shall be
entitled to transfer a number of Shares not exceeding such Management
Shareholder's Pro Rata Portion of non-Purchased Shares; provided, however,
that notwithstanding the restrictions set forth in clauses (A) and (B), each
Management Shareholder shall be permitted to exercise its rights pursuant to
Section 5.2 hereof in respect of such Management Shareholder's Pro Rata
Portion of its Purchased Shares in any Public Offering and transfer such
Purchased Shares pursuant to Section 3.05(a)(ii).
(b) The provisions of Section 3.05(a) shall terminate upon the
earliest to occur of (i) one or more Public Offerings of Shares yielding
aggregate gross proceeds of at least $100,000,000, (ii) the fourth anniversary
of the Closing Date and (iii) a Change of Control. Notwithstanding the
foregoing sentence, the provisions of Section 3.05(a) shall not terminate with
respect to any Management Shareholder's Shares which shall have been pledged
to the Company as security in connection with any indebtedness for borrowed
money owed by such Management Shareholder to the Company unless the proceeds
from the sale of such Shares, net of any taxes due on such proceeds, are
applied to repay the such indebtedness in full.
ARTICLE 4
Tag-Along Rights; Drag-Along Rights; Preemptive Rights
Section 4.1. Rights to Participate in Transfer. (a) If DLJ
Entities (the "Selling Person") propose to transfer (other than transfers of
shares of Common Stock (i) in a Public Offering, (ii) to any Permitted
Transferee of any of the DLJ Entities or (iii) up to 2.5% in the aggregate of
the securities of such class outstanding on the date of the first transfer of
any shares of Common Stock by any of the DLJ Entities (such percentage, the
"Free Percentage")), in a transaction otherwise permitted by Article 3
hereof, (a "Tag-Along Sale"), the Other Shareholders may, at their option,
elect to exercise their rights under this Section 4.1 (each such Shareholder, a
"Tagging Person"). In the event of such a proposed transfer, the Selling
Person shall provide each Other Shareholder written notice of the terms and
conditions of such proposed transfer ("Tag-Along Notice") and offer each
Tagging Person the opportunity to participate in such sale. The Tag-Along
Notice shall identify the number of shares of Common Stock subject to the
offer ("Tag-Along Offer"), the cash price at which the transfer is proposed to
be made, and all other material terms and conditions of the Tag-Along Offer,
including the form of the proposed agreement, if any. From the date of the
Tag-Along Notice, each Tagging Person shall have the right (a "Tag-Along
Right"), exercisable by written notice ("Section 4.1 Response Notice") given
to the Selling Person within 5 Business Days (the "Tag-Along Notice Period"),
to request that the Selling Person include in the proposed transfer the number
of Shares held by such Tagging Person as is specified in such notice; provided
that if the aggregate number of Shares proposed to be sold by the Selling
Person and all Tagging Persons in such transaction exceeds the number of
Shares which can be sold on the terms and conditions set forth in the
Tag-Along Notice, then only the Tag-Along Portion of Shares of the Selling
Person and each Tagging Person shall be sold pursuant to the Tag-Along Offer.
In the event the DLJ Entities shall propose to transfer a number of Shares in
excess of the Free Percentage, the Tag-Along Portion shall be calculated with
respect to all of the Shares proposed to be transferred by the DLJ Entities.
If the Tagging Persons exercise their Tag-Along Rights hereunder, each Tagging
Person shall deliver, together with its Section 4.01 Response Notice, to the
Selling Person the certificate or certificates representing the Shares of such
Tagging Person to be included in the transfer, together with a limited
power-of-attorney authorizing the Selling Person to transfer such Shares on
the terms set forth in the Tag-Along Notice. It is understood that to the
extent the DLJ Entities can do so without affecting the other terms on which
the Tag-Along Sale is proposed to be made, the DLJ Entities will seek to
exclude from the terms of such Tag-Along Sale any material restrictions on the
ability, following such Tag-Along Sale, of any Tagging Person to conduct its
business in a manner consistent with past practice. Delivery of such
certificate or certificates representing the Shares to be transferred and the
limited power-of-attorney authorizing the Selling Person to transfer such
Shares shall constitute an irrevocable acceptance of the Tag-Along Offer by
such Tagging Persons. If, at the end of a 120 day period after such delivery,
the Selling Person has not completed the transfer of all such Shares on
substantially the same terms and conditions set forth in the Tag-Along Notice,
the Selling Person shall return to each Tagging Person the limited
power-of-attorney (and all copies thereof) together with all certificates
representing the Shares which such Tagging Person delivered for transfer
pursuant to this Section 4.1.
(b) Concurrently with the consummation of the Tag-Along Sale, the
Selling Person shall notify the Tagging Persons thereof, shall remit to the
Tagging Persons the total consideration (by bank or certified check) for the
Shares of the Tagging Persons transferred pursuant thereto, and shall,
promptly after the consummation of such Tag-Along Sale furnish such other
evidence of the completion and time of completion of such transfer and the
terms thereof as may be reasonably requested by the Tagging Persons.
(c) If at the termination of the Tag-Along Notice Period any
Tagging Person shall not have elected to participate in the Tag-Along Sale,
such Tagging Person will be deemed to have waived its rights under Section
4.1(a) with respect to the transfer of its securities pursuant to such
Tag-Along Sale.
(d) If any Tagging Person declines to exercise its Tag-Along Rights
or elects to exercise its Tag-Along Rights with respect to less than such
Tagging Person's Tag-Along Portion, the DLJ Entities shall be entitled to
transfer, pursuant to the Tag-Along Offer, a number of Shares held by the DLJ
Entities equal to the number of Shares constituting the portion of such
Tagging Person's Tag-Along Portion with respect to which Tag-Along Rights were
not exercised.
(e) The DLJ Entities and any Tagging Person who exercises the
Tag-Along Rights pursuant to this Section 4.1 may sell the Shares subject to
the Tag-Along Offer on the terms and conditions set forth in the Tag-Along
Notice (provided, however, that the cash price payable in any such sale may
exceed the cash price specified in the Tag-Along Notice by up to 10%) within
120 days of the date on which Tag-Along Rights shall have been waived,
exercised or expire.
Section 4.2. Right to Compel Participation in Certain
Transfers. (a) If (i) the DLJ Entities propose to transfer not less than 50%
of their Initial Ownership of Common Stock to a Third Party in a bona fide
sale, (ii) the DLJ Entities propose a transfer in which the Shares to be
transferred by the DLJ Entities, the Institutional Shareholders and their
Permitted Transferees constitute more than 50% of the outstanding shares of
Common Stock (a "Section 4.2 Sale"), the DLJ Entities may at their option
require all Other Shareholders to sell the Subject Securities ("Drag-Along
Rights") then held by every Other Shareholder, and (subject to and at the
closing of the Section 4.2 Sale) to exercise all, but not less than all, of
the options held by every Other Shareholder and to sell all of the shares of
Common Stock received upon such exercise to such Third Party, for the same
consideration per share of Common Stock and otherwise on the same terms and
conditions as the DLJ Entities; provided that any Other Shareholder who holds
options the exercise price per share of which is greater than the per share
price at which the Shares are to be sold to the Third Party may, if required
by the DLJ Entities to exercise such options, in place of such exercise,
submit to irrevocable cancellation thereof without any liability for payment
of any exercise price with respect thereto. In the event the Section 4.2 Sale
is not consummated with respect to any shares acquired upon exercise of such
options, or the Section 4.2 Sale is not consummated, such options shall be
deemed not to have been exercised or cancelled, as applicable. DLJMB shall
provide written notice of such Section 4.2 Sale to the Other Shareholders (a
"Section 4.2 Notice") not later than the 15th day prior to the proposed
Section 4.2 Sale. The Section 4.2 Notice shall identify the transferee, the
number of Subject Securities, the consideration for which a transfer is
proposed to be made (the "Section 4.2 Sale Price") and all other material
terms and conditions of the Section 4.2 Sale. The number of shares of Common
Stock to be sold by each Other Shareholder will be the Drag-Along Portion of
the shares of Common Stock that such Other Shareholder owns. Subject to
Section 4.2(d), each Other Shareholder shall be required to participate in the
Section 4.2 Sale on the terms and conditions set forth in the Section 4.2
Notice and to tender all its Subject Securities as set forth below. It is
understood that to the extent the DLJ Entities can do so without affecting the
other terms on which the Section 4.2 Sale is proposed to be made, the DLJ
Entities will seek to exclude from the terms of such Section 4.2 Sale any
material restrictions on the ability, following such Section 4.2 Sale, of any
Other Shareholder to conduct its business in a manner consistent with past
practice. The price payable in such transfer shall be the Section 4.2 Sale
Price. Not later than the 10th day following the date of the Section 4.2
Notice (the "Section 4.2 Notice Period"), each of the Other Shareholders shall
deliver to a representative of DLJMB designated in the Section 4.2 Notice
certificates representing all Subject Securities held by such Other
Shareholder, duly endorsed, together with all other documents required to be
executed in connection with such Section 4.2 Sale or, if such delivery is not
permitted by applicable law, an unconditional agreement to deliver such
Subject Securities pursuant to this Section 4.2 at the closing for such
Section 4.2 Sale against delivery to such Other Shareholder of the
consideration therefor. If an Other Shareholder should fail to deliver such
certificates to DLJMB, the Company shall cause the books and records of the
Company to show that such Subject Securities are bound by the provisions of
this Section 4.2 and that such Subject Securities shall be transferred to the
purchaser of the Subject Securities immediately upon surrender for transfer by
the holder thereof.
(b) The DLJ Entities shall have a period of 90 days from the date
of receipt of the Section 4.02 Notice to consummate the Section 4.02 Sale on
the terms and conditions set forth in such Section 4.02 Sale Notice. If the
Section 4.02 Sale shall not have been consummated during such period, DLJMB
shall return to each of the Other Shareholders all certificates representing
Shares that such Other Shareholder delivered for transfer pursuant hereto,
together with any documents in the possession of DLJMB executed by the Other
Shareholder in connection with such proposed transfer, and all the restrictions
on transfer contained in this Agreement or otherwise applicable at such time
with respect to Common Stock owned by the Other Shareholders shall again be
in effect.
(c) Concurrently with the consummation of the transfer of Shares
pursuant to this Section 4.2, DLJMB shall give notice thereof to all
Shareholders, shall remit to each of the Shareholders who have surrendered
their certificates the total consideration (by bank or certified check) for the
Shares transferred pursuant hereto and shall furnish such other evidence of the
completion and time of completion of such transfer and the terms thereof as
may be reasonably requested by such Shareholders.
(d) Notwithstanding any provision of this Agreement to the
contrary, in the event the terms on which a Section 4.2 Sale is proposed to be
made shall include a provision which materially and adversely affects the
ability of any Other Shareholder to compete in any line of business or
geographic area, such Other Shareholder shall not be required to participate
in the Section 4.2 Sale on the terms and conditions set forth in the Section
4.2 Notice. In the event any Shareholder shall elect, pursuant to the
preceding sentence, not to participate in the Section 4.2 Sale, the DLJ
Entities shall have the right to purchase, and such Shareholder shall be
obligated to sell to the DLJ Entities, such Shareholder's Subject Securities,
at the Section 4.2 Sale Price and on substantially the same terms (other than
any such non-compete provision), not later than immediately prior to the
consummation of the Section 4.2 Sale.
Section 4.3. Preemptive Rights. (a) The Company shall provide
each Shareholder with a written notice (a "Section 4.3 Notice") of any
proposed issuance by the Company of Equity Securities at least 10 days prior
to the proposed issuance date. Such notice shall specify the price at which
the Equity Securities are to be issued and the other material terms of the
issuance. In the event the DLJ Entities propose to purchase any such Equity
Securities from the Company, each Other Shareholder shall be entitled to
purchase, at the price and on the terms at which the DLJ Entities propose to
purchase such Equity Securities and specified in such Section 4.3 Notice, such
Shareholder's Section 4.3 Portion of the Equity Securities proposed to be
issued. A Shareholder may exercise its rights under this Section 4.3 by
delivering written notice of its election to purchase Equity Securities to the
Company, DLJMB and each Other Shareholder within 5 days of receipt of the
Section 4.3 Notice. A delivery of such a written notice (which notice shall
specify the number of shares (or amount) of Equity Securities to be purchased
by the Shareholder submitting such notice) by such Shareholder shall
constitute a binding agreement of such Shareholder to purchase, subject to the
purchase by the DLJ Entities of their portion of such Equity Securities, at
the price and on the terms specified in the Section 4.3 Notice, the number of
shares (or amount) of Equity Securities specified in such Shareholder's
written notice. In the event the Equity Securities proposed to be issued by
the Company are not shares of Common Stock, it shall be a condition to the
consummation of the purchase of such Equity Securities pursuant to this
Section 4.3 by any Shareholder that such Shareholder shall execute an
amendment of this Agreement on the terms consistent with this Agreement
reasonably satisfactory to the Company and the DLJ Entities.
(b) In the event any Other Shareholder declines to exercise its
preemptive rights under this Section 4.3 or elects to exercise such rights with
respect to less than such Shareholder's Section 4.3 Portion, the DLJ Entities
shall be entitled to purchase from the Company the number of Equity Securities
constituting the Section 4.3 Portion with respect to which such Other
Shareholder shall not have exercised its preemptive rights.
(c) In the case of any issuance of Equity Securities, the Company
shall have 90 days from the date of the Section 4.3 Notice to consummate the
proposed issuance of any or all of such Equity Securities which the
Shareholders have not elected to purchase at the price and upon terms that are
not materially less favorable to the Company than those specified in the
Section 4.3 Notice. At the consummation of such issuance, the Company shall
issue certificates representing the Equity Securities to be purchased by each
Shareholder exercising preemptive rights pursuant to this Section 4.3
registered in the name of such Shareholder, against payment by such
Shareholder of the purchase price for such Equity Securities. If the Company
proposes to issue Equity Securities after such 90-day period, it shall again
comply with the procedures set forth in this Section.
(d) Notwithstanding the foregoing, no Shareholder shall be
entitled to purchase Equity Securities as contemplated by this Section 4.3
in connection with issuances of Equity Securities (i) to employees of the
Company or any Subsidiary pursuant to employee benefit plans or
arrangements approved by the Board (including upon the exercise of employee
stock options), (ii) in connection with any bona fide, arm's-length
restructuring of outstanding debt of the Company or any Subsidiary, or
(iii) in connection with any bona fide, arm's-length direct or indirect
merger, acquisition or similar transaction. The Company shall not be under
any obligation to consummate any proposed issuance of Equity Securities,
regardless of whether it shall have delivered a Section 4.3 Notice in
respect of such proposed issuance.
(e) The Company will use its reasonable best efforts to provide the
Section 4.3 Notice at least 15 Business Days prior to any proposed issuance
of Equity Securities. In the event it is impracticable to provide the Section
4.3 Notice at least 15 Business Days prior to such issuance, any Shareholder
may offer to finance or arrange to finance the purchase by any other
Shareholder of such other Shareholder's Section 4.3 Portion and such financing
or arranging Shareholder shall be entitled to receive as compensation for such
services reasonable and customary fees and expenses. No Shareholder shall be
under any obligation to provide or arrange such financing for any other
Shareholder.
Section 4.4. Certain Other Purchases of Common Stock. In the
event, at any time prior to the Trigger Date, the DLJ Entities shall acquire
any shares of Common Stock from any Person other than the Shareholders, the
DLJ Entities shall deliver, within five Business Days of the date of such
acquisition, a notice to each Other Shareholder (a "Section 4.04 Notice")
specifying the number of shares of Common Stock acquired and the weighted
average of price per share paid by the DLJ Entities. Such Section 4.04 Notice
shall constitute an offer to each such Other Shareholder to purchase such
Shareholder's Section 4.04 Portion of the number of shares of Common Stock
acquired by the DLJ Entities. A Shareholder may exercise its rights under this
Section 4.4 by delivering written notice of its election to purchase its
Section 4.4 Portion within 10 days of receipt of the Section 4.04 Notice. A
delivery of such written notice (which shall specify the number of shares of
Common Stock to be purchased by the Shareholder submitting such notice) by such
Shareholder shall constitute a binding agreement of such Shareholder to
purchase, at the price and on the terms specified in the Section 4.04 Notice,
the number of shares of Common Stock specified in such notice. At the
consummation of the transfer of the shares of Common Stock purchased by the
DLJ Entities to any Shareholder that shall have exercised its rights hereunder,
the DLJ Entities shall deliver to such Shareholder certificates representing
the shares of Common Stock to be purchased against payment by such Shareholder
of the purchase price for such shares of Common Stock.
ARTICLE 5
Registration Rights
Section 5.1. Demand Registration. (a) If the Company shall
receive a written request by the DLJ Entities or their Permitted Transferees
(any such requesting Person, a "Selling Shareholder") that the Company effect
the registration under the Securities Act of all or a portion of such Selling
Shareholder'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 Registration to the Other Shareholders 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
Shareholders, then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth
in Section 5.2, all other Registrable Securities of the
same type as that to which the request by the Selling
Shareholders relates which any Other Shareholder entitled
to request the Company to effect a Piggyback Registration
(as such term is defined in Section 5.2) pursuant to
Section 5.2 (all such Shareholders, together with the
Selling Shareholders, the "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 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 5.1(d) hereof, the
Company shall not be obligated to effect more than six Demand Registrations
for the DLJ Entities; and provided further that the Company shall not be
obligated to effect a Demand Registration unless the aggregate proceeds
expected to be received from the sale of the Common Stock requested to be
included in such Demand Registration, in the reasonable opinion of DLJMB
exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand
Registration would constitute the First Public Offering, or (y) $10,000,000
in all other cases. In no event will the Company be required to effect
more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 2-day period referred to
in Section 5.1(a)(ii) hereof, the Company will notify all the Holders to be
included in the Demand Registration of the other Holders and the number of
Registrable Securities requested to be included therein. The Selling
Shareholders requesting a registration under Section 5.1(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
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
unless the participating Shareholders reimburse the Company for all costs
incurred by the Company in connection with such registration, in which case
such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection
with any Demand Registration.
(d) A registration requested pursuant to this Section 5.1 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 Holders included in such
registration have actually been sold thereunder); provided that if after any
registration statement requested pursuant to this Section 5.1 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 5.1(e) such that less than 66 2/3% of the Registrable Securities
of the Selling Shareholders sought to be included in such registration are
included.
(e) If a Demand Registration involves an Underwritten Public
Offering and the managing underwriter shall advise the Company and the Selling
Shareholders 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 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:
(A) first, all Registrable Securities
requested to be registered by the parties requesting such Demand
Registration and all Registrable Securities requested to be
included in such registration by any other Holder (allocated, if
necessary for the offering not to exceed the Maximum Offering
Size, pro rata among such Holders on the basis of the relative
number of Registrable Securities so requested to be included in
such registration); and
(B) second, any securities proposed to be
registered by the Company.
(f) Upon written notice to each Selling Shareholder, the Company
may postpone effecting a registration pursuant to this Section 5.1 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 (1) an investment banking firm of recognized national
standing shall advise the Company and the Selling Shareholders 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
(2) 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) After the Company has effected two Demand Registrations
pursuant to this Section 5.1 of Common Stock, the Other Shareholders, upon
request of the Other Shareholders owning a majority of the Shares acquired by
the Other Shareholders on Closing Date, may request that the Company register
Common Stock which are Registrable Securities then owned by such Other
Shareholders. In no event will the Company be required to effect more than
one such Demand Registration. The provisions of this Article 5 shall apply,
mutatis mutandis, to any such Demand Registration.
Section 5.2. Piggyback Registration. (a) If the Company
proposes to register any of its Common Stock under the Securities Act
(including pursuant to a Demand Registration), whether or not for sale for its
own account, it will each such time, subject to the provisions of Section
5.2(b) hereof, give prompt written notice at least 5 days prior to the
anticipated filing date of the registration statement relating to such
registration to all Shareholders and their respective Permitted Transferees
(or, in the case of a Demand Registration requested by the DLJ Entities, to
all Other Shareholders), which notice shall set forth such Shareholders'
rights under this Section 5.2 and shall offer all Shareholders the opportunity
to include in such registration statement such number of shares of Common
Stock as each such Shareholder may request (a "Piggyback Registration"). Upon
the written request of any such Shareholder made within 2 days (one of which
shall be a Business Day) after the receipt of notice from the Company (which
request shall specify the number of shares of Common Stock intended to be
disposed of by such Shareholder), the Company will use its reasonable best
efforts to effect the registration under the Securities Act of all shares of
Common Stock which the Company has been so requested to register by such
Shareholders, to the extent requisite to permit the disposition of the shares
of Common Stock so to be registered; provided that (i) if such registration
involves an Underwritten Public Offering, all such Shareholders requesting to
be included in the Company's registration must sell their Registrable
Securities to the underwriters selected as provided in Section 5.4(f) on the
same terms and conditions as apply to the Company or the Selling Shareholder,
as applicable, and (ii) if, at any time after giving written notice of its
intention to register any stock pursuant to this Section 5.2(a) 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
stock, the Company shall give written notice to all such Shareholders and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration; and provided further that the
right of the Management Shareholders and their Permitted Transferees to
request a Piggyback Registration will be subject to the Public Offering
Limitations. No registration effected under this Section 5.2 shall relieve
the Company of its obligations to effect a Demand Registration to the extent
required by Section 5.1 hereof. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 5.2.
(b) If a registration pursuant to this Section 5.2 involves an
Underwritten Public Offering (other than in the case of an Underwritten Public
Offering requested by the DLJ Entities in a Demand Registration, in which case
the provisions with respect to priority of inclusion in such offering set
forth in Section 5.1(e) shall apply) and the managing underwriter advises the
Company that, in its view, the number of shares of Common Stock which the
Company and the selling Shareholders intend to include in such registration
exceeds the Maximum Offering Size, the Company will include in such
registration, in the following priority, up to the Maximum Offering Size:
(i) first, so much of the Common Stock proposed
to be registered for the account of the Company as would not
cause the offering to exceed the Maximum Offering Size; and
(ii) second, all Registrable Securities
requested to be included in such registration by any Shareholder
pursuant to Section 5.2 (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata among
such Shareholders on the basis of the relative number of shares
of Registrable Securities so requested to be included in such
registration).
Section 5.3. Holdback Agreements. With respect to each and
every firmly underwritten Public Offering, each Shareholder agrees and their
Permitted Transferees will agree not to offer or sell any shares of Common
Stock (except for shares of Common Stock, if any, sold in that Public
Offering) during the 14 days prior to the effective date of the applicable
registration statement for a public offering of shares of Common Stock (except
as part of such registration) and during the period after such effective date
equal to the lesser of: (i) 180 days or (ii) any such shorter period as the
Company and the lead managing underwriter of an Underwritten Public Offering
agree.
Section 5.4. Registration Procedures. Whenever Shareholders
request that any Registrable Securities be registered pursuant to Section 5.1
or 5.2 hereof, the Company will, subject to the provisions of such Sections,
use its reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof as quickly as practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file
with the SEC a registration statement on any form selected by counsel for the
Company and which form shall be available for the sale of the Registrable
Securities to be registered thereunder in accordance with the intended method
of distribution thereof, and use its reasonable best efforts to cause such
filed registration statement to become and remain effective for a period of
not less than 180 days (or such shorter period in which all of the Registrable
Securities of the Holders included in such registration statement shall have
actually been sold thereunder).
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
each Shareholder and each underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration statement as
proposed to be filed, and thereafter the Company will furnish to such
Shareholder and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Shareholder or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Shareholder. Each Shareholder shall
have the right to request that the Company modify any information contained
in such registration statement, amendment and supplement thereto pertaining to
such Shareholder and the Company shall use its reasonable best efforts to
comply with such request, provided, however, that the Company shall not have
any obligation to so modify any information if so doing would cause the
prospectus to contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) After the filing of the registration statement, the Company
will (i) cause the related prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, (ii) comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities covered by
such registration statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or supplement to such prospectus and (iii) promptly
notify each Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC or any
state securities commission under state blue sky laws and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
(d) The Company will use its reasonable best efforts to (i)
register or qualify the Registrable Securities covered by such registration
statement under such other securities or blue sky laws of such jurisdictions
in the United States as any Shareholder holding such Registrable Securities
reasonably (in light of such Shareholder's intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company and do any
and all other acts and things that may be reasonably necessary or advisable to
enable such Shareholder to consummate the disposition of the Registrable
Securities owned by such Shareholder; provided that the Company will not be
required to (A) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this paragraph (d), (B)
subject itself to taxation in any such jurisdiction or (C) consent to general
service of process in any such jurisdiction.
(e) The Company will immediately notify each Shareholder holding
such Registrable Securities covered by such registration statement, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and promptly prepare and make available to each such Shareholder
and file with the SEC any such supplement or amendment.
(f) In connection with (i) any Demand Registration requested by the
DLJ Entities or their Permitted Transferees or (ii) any registration of
Registrable Securities pursuant to this Article 5 the Company shall appoint the
underwriter or underwriters chosen by DLJMB. The Company will enter into
customary agreements (including an underwriting agreement in customary form)
and take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities, including the
engagement of a "qualified independent underwriter" in connection with the
qualification of the underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form and
substance reasonably satisfactory to the Company, the Company will make
available for inspection by any Shareholder and any underwriter participating
in any disposition pursuant to a registration statement being filed by the
Company pursuant to this Section 5.4 and any attorney, accountant or other
professional retained by any such Shareholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably requested by any such Person, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement.
(h) The Company will furnish to each such Shareholder and to each
such underwriter, if any, a signed counterpart, addressed to such underwriter
and the participating Shareholders, of (i) an opinion or opinions of counsel to
the Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as a majority of such Shareholders or the managing underwriter
therefor reasonably requests.
(i) The Company will otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC and the relevant
state blue sky commissions, and make available to its securityholders, as soon
as reasonably practicable, an earnings statement covering a period of 12
months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act.
(j) The Company may require each such Shareholder to promptly
furnish in writing to the Company information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required in connection with such
registration.
(k) Each such Shareholder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
Section 5.4(e) hereof, such Shareholder will forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Shareholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5.4(e) hereof, and,
if so directed by the Company, such Shareholder will deliver to the Company
all copies, other than any permanent file copies then in such Shareholder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event that the Company shall
give such notice, the Company shall extend the period during which such
registration statement shall be maintained effective (including the period
referred to in Section 5.4(a) hereof) by the number of days during the period
from and including the date of the giving of notice pursuant to Section 5.4(e)
hereof to the date when the Company shall make available to such Shareholder a
prospectus supplemented or amended to conform with the requirements of Section
5.4(e) hereof.
(l) The Company will use its reasonable best efforts to list such
Registrable Securities on any securities exchange on which the Common Stock
is then listed or on NASDAQ if the Common Stock is then quoted on NASDAQ not
later than the effective date of such registration statement.
Section 5.5. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Shareholder holding Registrable
Securities covered by a registration statement, its officers, directors,
employees, partners and agents, and each Person, if any, who controls such
Shareholder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (and officers, directors, employees, partners and
agents of such controlling Persons) from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission so made in strict conformity
with information furnished in writing to the Company by such Shareholder or
on such Shareholder's behalf expressly for use therein; provided that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, or in any prospectus, as the case
may be, the indemnity agreement contained in this paragraph shall not apply to
the extent that any such loss, claim, damage, liability or expense results from
the fact that a current copy of the prospectus (or, in the case of a
prospectus, the prospectus as amended or supplemented) was not sent or given
to the Person asserting any such loss, claim, damage, liability or expense at
or prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that the Company has provided
such current copy of such prospectus (or such amended or supplemented
prospectus, as the case may be) to such Shareholder in a timely manner prior
to such sale and it was the responsibility of such Shareholder under the
Securities Act to provide such Person with a current copy of the prospectus
(or such amended or supplemented prospectus, as the case may be) and such
current copy of the prospectus (or such amended or supplemented prospectus, as
the case may be) would have cured the defect giving rise to such loss, claim,
damage, liability or expense. The Company also agrees to indemnify any
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of the Shareholders provided in this Section 5.5.
Section 5.6. Indemnification by Participating Shareholders.
Each Shareholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless the
Company, its officers, directors and agents and each Person (other than such
Shareholder) if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Shareholder, but
only (i) with respect to information furnished in writing by such Shareholder
or on such Shareholder's behalf expressly for use in any registration statement
or prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus or (ii) to the extent that
any loss, claim, damage, liability or expense described in Section 5.5 results
from the fact that a current copy of the prospectus (or, in the case of a
prospectus, the prospectus as amended or supplemented) was not sent or given
to the Person asserting any such loss, claim, damage, liability or expense at
or prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that it was the responsibility of
such Shareholder to provide such Person with a current copy of the prospectus
(or such amended or supplemented prospectus, as the case may be) and such
current copy of the prospectus (or such amended or supplemented prospectus,
as the case may be) would have cured the defect giving rise to such loss,
claim, damage, liability or expense. Each such Shareholder shall be prepared,
if required by the underwriting agreement, to indemnify and hold harmless
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of the Company provided in this Section 5.6. As a
condition to including Registrable Securities in any registration statement
filed in accordance with Article 5 hereof, the Company may require that it
shall have received an undertaking reasonably satisfactory to it from any
underwriter to indemnify and hold it harmless to the extent customarily
provided by underwriters with respect to similar securities.
No Shareholder shall be liable under Section 5.06 for any damage
thereunder in excess of the net proceeds realized by such Shareholder in the
sale of the Registrable Securities of such Shareholder.
Section 5.7. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 5, such Person (an "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party,
and shall assume the payment of all fees and expenses; provided that the
failure of any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder except to the
extent that the Indemnifying Party is materially prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and
the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) in the reasonable judgment of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood
that the Indemnifying Party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Indemnified Parties, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Indemnified Parties, such firm shall be
designated in writing by the Indemnified Parties. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any and all losses, claims,
damages, liabilities and expenses or liability (to the extent stated above) by
reason of such settlement or judgment. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Party
is or could have been a party and indemnity could have been sought hereunder
by such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such
proceeding.
Section 5.8. Contribution. If the indemnification provided
for in this Article 5 is held by a court of competent jurisdiction to be
unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein, then each such Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) as between the Company and the Shareholders holding
Registrable Securities covered by a registration statement and their related
Indemnified Parties on the one hand and the underwriters and their related
Indemnified Parties on the other, in such proportion as is appropriate to
reflect the relative benefits received by the Company and such Shareholders on
the one hand and the underwriters on the other, from the offering of the
Shareholders' Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits but also the relative fault of the Company and such
Shareholders on the one hand and of such underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company and their related Indemnified
Parties on the one hand and each such Shareholder and their related
Indemnified Parties on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each such Shareholder in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
such Shareholders on the one hand and such underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and such Shareholders bear to the total underwriting
discounts and commissions received by such underwriters, in each case as set
forth in the table on the cover page of the prospectus. The relative fault of
the Company and such Shareholders on the one hand and of such underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and such Shareholders or by such underwriters. The relative fault
of the Company on the one hand and of each such Shareholder on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not be
just and equitable if contribution pursuant to this Section 5.8 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such Indemnified Party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 5.8 no
underwriter shall be required to contribute any amount in excess of the
underwriting discount applicable to securities purchased by such underwriter in
such offering, less the aggregate amount of any damages which such underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission, and no Shareholder shall be
required to contribute any amount in excess of the amount by which the net
proceeds realized on the sale of the Registrable Securities of such
Shareholder exceeds the amount of any damages which such Shareholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Shareholder's obligation to contribute
pursuant to this Section 5.8 is several in the proportion that the proceeds of
the offering received by such Shareholder bears to the total proceeds of the
offering received by all such Shareholders and not joint.
Section 5.9. Participation in Public Offering. No Person may
participate in any Underwritten Public Offering hereunder unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and the
provisions of this Agreement in respect of registration rights.
Section 5.10. Cooperation by the Company. In the event any
Shareholder shall transfer any Registrable Securities pursuant to Rule 144A
under the Securities Act, the Company shall cooperate, to the extent
commercially reasonable, with such Shareholder and shall provide to such
Shareholder such information as such Shareholder shall reasonably request.
Section 5.11. No Transfer of Registration Rights. None of the
rights of Shareholders under this Article 5 shall be assignable by any
Shareholder to any Person acquiring securities of such Shareholder in any
Public Offering or pursuant to Rule 144A of the Securities Act.
ARTICLE 6
Certain Covenants and Agreements
Section 6.1. Confidentiality. (a) Each Shareholder hereby
agrees that Confidential Information (as defined below) furnished and to be
furnished to it was and will be made available in connection with such
Shareholder's investment in the Company. Each Shareholder agrees that it will
use the Confidential Information only in connection with its investment in the
Company and not for any other purpose. Each Shareholder further acknowledges
and agrees that it will not disclose any Confidential Information to any
Person; provided that Confidential Information may be disclosed (i) to such
Shareholder's Representatives (as defined below) in the normal course of the
performance of their duties or to any financial institution providing credit
to such Shareholder, (ii) to the extent required by applicable law, rule or
regulation (including complying with any oral or written questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process to which a Shareholder is subject;
provided that such Shareholder gives the Company prompt notice of such
request(s), to the extent practicable, so that the Company may seek an
appropriate protective order or similar relief (and the Shareholder shall
cooperate with such efforts by the Company, and shall in any event make only
the minimum disclosure required by such law, rule or regulation)), (iii) to any
Person to whom such Shareholder is contemplating a transfer of its Shares
(provided that such transfer would not be in violation of the provisions of
this Agreement and as long as such potential transferee is advised of the
confidential nature of such information and agrees to be bound by a
confidentiality agreement in form and substance satisfactory to the Company (it
being understood that a confidentiality agreement consistent with the
provisions hereof shall be satisfactory to the Company)) or (iv) if the prior
written consent of the Board shall have been obtained. Nothing contained
herein shall prevent the use (subject, to the extent possible, to a protective
order) of Confidential Information in connection with the assertion or defense
of any claim by or against the Company or any Shareholder.
(b) "Confidential Information" means any information concerning
the Company and Persons which are or become its subsidiaries or the financial
condition, business, operations or prospects of the Company and Persons which
are or become its subsidiaries in the possession of or furnished to any
Shareholder (including, without limitation by virtue of its present or former
right to designate a director of the Company); provided that the term
"Confidential Information" does not include information which (i) is or
becomes generally available to the public other than as a result of a
disclosure by a Shareholder or its partners, directors, officers, employees,
agents, counsel, investment advisers or representatives (all such persons being
collectively referred to as "Representatives") in violation of the Merger
Agreement or this Agreement, (ii) is or was available to such Shareholder on a
nonconfidential basis prior to its disclosure to such Shareholder or its
Representatives by the Company or (iii) was or becomes available to such
Shareholder on a non-confidential basis from a source other than the Company,
provided that such source is or was (at the time of receipt of the relevant
information) not, to the best of such Shareholder's knowledge, bound by a
confidentiality agreement with (or other confidentiality obligation to) the
Company or another Person.
Section 6.2. Reports. The Company will furnish the
Institutional Shareholders with the quarterly and annual financial reports
that the Company is required to file with the Securities and Exchange
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act
promptly after the filing thereof or, in the event the Company is not required
to file such reports, quarterly and annual reports containing the same
information as would be required in such reports on the date that such reports
would otherwise be filed.
Section 6.3. Limitations on Subsequent Registration. The
Company shall not enter into any agreement with any holder or prospective
holder of any securities of the Company (a) that would allow such holder or
prospective holder to include such securities in any registration filed
pursuant to Section 5.1 or 5.2 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in
any such registration only to the extent that the inclusion of such securities
would not reduce the amount of the Registrable Securities of the Shareholders
included therein or (b) on terms otherwise more favorable than this Agreement.
Section 6.4. Exclusive Financial Advisor and Investment Banking
Advisor. During the period from and including the date hereof through and
including the fifth anniversary of the date hereof, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation ("DLJSC"), or any Affiliate that DLJMB may
choose in its sole discretion, shall be engaged as the exclusive financial
advisor and investment banker for the Company on financial and other terms
customary in the industry to be agreed between the Company and DLJSC.
Section 6.5. Limitation on Purchase of Common Stock. Until the
earlier to occur of (i) the seventh anniversary of the Closing Date or (ii) the
date on which at least 40% of the outstanding Common Stock on a Fully Diluted
basis of the Company is held by Persons other than the Shareholders (the
"Trigger Date"), no Institutional Shareholder shall acquire any shares of
Common Stock except (i) in a purchase of Equity Securities pursuant to Section
4.3 or Section 4.4 hereof or (ii) in a transfer from any other Shareholder
which is otherwise permitted under the terms of Article 3 hereof.
ARTICLE 7
Miscellaneous
Section 7.1. Entire Agreement. This Agreement, the Merger
Agreement and the Subscription Agreement constitute the entire agreement among
the parties with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements and understandings, both
oral and written, between the parties with respect to the subject matter hereof
and thereof.
Section 7.2. Binding Effect; Benefit. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, legal representatives and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
Person other than the parties hereto, and their respective heirs, successors,
legal representatives and permitted assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
Section 7.3. Assignability. (a) Neither this Agreement nor
any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by the Company or any Shareholder; provided that
any Person acquiring shares of Common Stock who is required by the terms of
this Agreement to become a party hereto shall execute and deliver to the
Company an agreement to be bound by this Agreement and shall thenceforth be a
"Shareholder".
(b) Any Permitted Transferee of a Management Shareholder who shall
become a party hereto shall be deemed a "Management Shareholder".
(c) Any Permitted Transferee of an Institutional Shareholder who
shall become a party to this Agreement shall be deemed an "Institutional
Shareholder".
Section 7.4. Amendment; Waiver; Termination. (a) No provision
of this Agreement may be waived except by an instrument in writing executed by
the party against whom the waiver is to be effective. No provision of this
Agreement may be amended or otherwise modified except by an instrument in
writing executed by the Company with approval of the Board of Directors and
holders of at least 50% of the Shares held by the parties to this Agreement at
the time of such proposed amendment or modification.
(b) In addition, any amendment or modification of any provision of
this Agreement that would adversely affect any DLJ Entity may be effected only
with the consent of such DLJ Entity.
(c) In addition, any amendment or modification of any provision of
this Agreement that would adversely affect any (i) Institutional Shareholder
may be effected only with the consent of Institutional Shareholders holding at
least 50% of the shares held by the Institutional Shareholders or (ii)
Management Shareholder may be effected only with the consent of Management
Shareholders holding at least 50% of the shares held by the Management
Shareholders.
(d) This Agreement shall terminate on the tenth anniversary of the
date hereof unless earlier terminated.
Section 7.5. Notices. (a) All notices and other
communications given or made pursuant hereto or pursuant to any other
agreement among the parties, unless otherwise specified, shall be in writing
and shall be deemed to have been duly given and received when sent by fax
(with confirmation in writing via first class U.S. mail) or delivered
personally or on the third Business Day after being sent by registered or
certified U.S. mail (postage prepaid, return receipt requested) to the parties
at the fax number or address set forth below or at such other addresses as
shall be furnished by the parties by like notice:
if to the Company to:
DecisionOne Holdings Corp.
00 Xxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
if to any Shareholder, to such Shareholder at the address
specified by such Shareholder on the signature pages of this
Agreement or in a notice given by such Shareholder to the
Company for such purpose with a copy, in the case of the
Institutional Shareholders (other than the Sprout Entities),
to
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: 000-000-0000
Any Person who becomes a Shareholder shall provide its address
and fax number to the Company, which shall promptly provide such information to
each other Shareholder.
(b) Notices required to be given pursuant to Sections 5.01(a) and
5.01(b) and Section 5.02 by the Company shall be deemed given only if such
notices are also be given telephonically and by fax to the following persons
(or any other individual the respective entities may designate in writing to
the Company to replace such person):
(i) for the benefit of the Management
Shareholders, to Xxxxxx X. Xxxxxxx at 000-000-0000 and fax:
000-000-0000;
(ii) for the benefit of the Apollo Entities, to
any of Xxxxxxx Xxxxx at 000-000-0000, fax: 212-___-____, Xxxxxx
Xxxxxx at 000-000-0000, fax: 212-___-____, or Xxxx Xxxxxx at
000-000-0000, fax: 212-___-____;
(iii) for the benefit of the Bain Entities, to
Xxxxxxx Xxxxxxxx at 000-000-0000, fax: 617-___-____ or Xxxxxxx
Xxxxxxxx at 000-000-0000, fax: 617-___-____;
(iv) for the benefit of the THL Entities, to any
of Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxx or Xxxx X. Xxxxxx at
000-000-0000, fax: 617-___-____;
(v) for the benefit of the Sprout Entities, to
__________;
(vi) for the benefit of the Ontario Teachers'
Pension Plan Board, to Xxxx Xxxxxxx at 000-000-0000, fax: 416-
___-____;
(vii) in the case of any registration not
requested by the DLJ Entities, for the benefit of the DLJ
Entities, to Xxxxx Xxxxxx, at 000-000-0000, fax: 000-000-0000;
and
(viii) to Xxxxx Xxxx at 000-000-0000, fax: 212-
403-2000.
Section 7.6. Headings. The headings contained in this
Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
Section 7.7. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument.
Section 7.8. Applicable Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York,
without regard to the conflicts of laws rules of such state.
Section 7.9. Specific Enforcement. Each party hereto
acknowledges that the remedies at law of the other parties for a breach or
threatened breach of this Agreement would be inadequate and, in recognition of
this fact, any party to this Agreement, without posting any bond, and in
addition to all other remedies which may be available, shall be entitled to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
Section 7.10. Consent to Jurisdiction; Expenses. (a) Any
suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any Federal Court sitting
in New York, New York, or any New York State court sitting in New York, New
York, and each of the parties hereby consents to the exclusive jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court or
that any such suit, action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world, whether within
or without the jurisdiction of any such court. Without limiting the foregoing,
each party agrees that service of process on such party by any method provided
in Section 7.5 shall be deemed effective service of process on such party and
consents to the personal jurisdiction of any Federal Court sitting in New
York, New York, or any New York State court sitting in New York, New York.
(b) In any dispute arising under this Agreement among any of the
parties hereto, the costs and expenses (including, without limitation, the
reasonable fees and expenses of counsel) incurred by the prevailing party shall
be paid by the party that does not prevail.
Section 7.11. Severability. If one or more provisions of this
Agreement are held to be unenforceable to any extent under applicable law,
such provision shall be interpreted as if it were written so as to be
enforceable to the maximum possible extent so as to effectuate the parties'
intent to the maximum possible extent, and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
DECISIONONE HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President and Chief
Financial Officer
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MILLENNIUM PARTNERS-A, L.P.,
a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ FIRST ESC, L.L.C.,
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
UK INVESTMENT PLAN 1997
PARTNERS
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc.,
as general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ EAB PARTNERS, L.P.
By: DLJ Merchant Banking Funding II, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
APOLLO INVESTMENT FUND III, L.P.
By Apollo Advisors II, L.P., its
general partner
By Apollo Capital Management II, Inc.,
its general partner
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
APOLLO OVERSEAS PARTNERS III L.P.
By Apollo Advisors II, L.P., its
general partner
By Apollo Capital Management II, Inc.,
its general partner
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
APOLLO U.K. PARTNERS III, L.P.
By Apollo Advisors II, L.P., its
general partner
By Apollo Capital Management II, Inc.,
its general partner
By: /s/ Xxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
Address:
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
XXXX CAPITAL FUND V L.P.
By: Xxxx Capital Partners V, L.P.,
its general partner
By: Xxxx Capital Investors V, Inc., its
general partner
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
XXXX CAPITAL FUND, V-B, L.P.
By: Xxxx Capital Investors V, L.P., its
general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
BCIP ASSOCIATES
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
BCIP TRUST ASSOCIATES, L.P.
By: Xxxx Capital Investors V, L.P., its
general partner
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
XXXXXX X. XXX EQUITY FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Address:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
XXXXXX X. XXX FOREIGN
FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Director
Address:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
THL CO-INVESTORS III-A LLC
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Name: Xxxxxx X. Xxx
Title: Manager
Address:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
THL CO-INVESTORS III-B LLC
By: /s/ Xxxxxx X. Xxx
---------------------------------------
Name: Xxxxxx X. Xxx
Title: Manager
Address:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
DLJ CAPITAL CORP.
By: /s/ Art Xxxxxxxxx
---------------------------------------
Name: Art Xxxxxxxxx
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art Xxxxxxxxx
---------------------------------------
Name: Art Xxxxxxxxx
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art Xxxxxxxxx
---------------------------------------
Name: Art Xxxxxxxxx
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
ONTARIO TEACHERS' PENSION
PLAN BOARD
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Portfolio Manager, Merchant
Banking
Address:
0000 Xxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx
Xxxxxx X0X 0X0
Fax: 000-000-0000
By: /s/ Xxxxxxx Xxxxxx
---------------------------------------
Xxxxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
By: /s/ Xxx Xxxxxxxxxxx
---------------------------------------
Xxx Xxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxx
---------------------------------------
Xxxxx Xxxxxxxx
By: /s/ Xxx Xxxxxxxx
---------------------------------------
Xxx Xxxxxxxx
By: /s/ Xxx Xxxxxxxxx
---------------------------------------
Xxx Xxxxxxxxx
By: /s/ Xxx Xxxxxxx
---------------------------------------
Xxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx
By: /s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx
By: /s/ Xxxx Xxxxxxxx
---------------------------------------
Xxxx Xxxxxxxx
By: /s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx
By: /s/ Xxx Xxxxxxx
---------------------------------------
Xxx Xxxxxxx
By: /s/ Xxx Xxxxxxx
---------------------------------------
Xxx Xxxxxxx
By: /s/ Xxx Xxxxxxxxx
---------------------------------------
Xxx Xxxxxxxxx
By: /s/ Xxx Xxxxxxx
---------------------------------------
Xxx Xxxxxxx
By: /s/ Xxxx Xxxxxxx
---------------------------------------
Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx
By: /s/ Xxxx Xxxxxx
---------------------------------------
Xxxx Xxxxxx
By: /s/ Xxxx Xxxxx
---------------------------------------
Xxxx Xxxxx
By: /s/ Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx
