Exhibit 4.2
AMENDED AND RESTATED REGISTRATION AGREEMENT
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THIS AGREEMENT dated as of October 1, 1997, is made by and among Dade
Behring Holdings, Inc., a Delaware corporation ("Holdings"), Hoechst AG, a
German corporation ("Hoechst"), the Persons listed on Schedule A attached hereto
(the "Xxxx Stockholders"), and the Persons listed on Schedule B attached hereto
(the "GS Stockholders"). Hoechst, the Xxxx Stockholders and the GS Stockholders
are collectively referred to herein as the "Stockholders," and individually as a
"Stockholder."
The Xxxx Stockholders, the GS Stockholders and Holdings are parties to
a Stock Purchase Agreement dated December 20, 1994 (the "Purchase Agreement")
and a Registration Agreement, dated December 20, 1994 (the "Old Registration
Agreement"). Hoechst and Holdings are parties to an Agreement and Plan of
Combination, dated as of June 24, 1997 (the "Combination Agreement"). The Xxxx
Stockholders, the GS Stockholders, Hoechst and Holdings are parties to an
Amended and Restated Stockholders Agreement, dated as of the date hereof (the
"Stockholders Agreement"). The Xxxx Stockholders, the GS Stockholders and
Holdings desire to amend and restate the Old Registration Agreement to provide
the registration rights set forth in this Agreement. Unless otherwise provided
in this Agreement, capitalized terms used herein shall have the meanings set
forth in paragraph 9 hereof.
The parties hereto agree as follows:
1. Demand Registrations.
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(a) Requests for Registration. Subject to the covenants set forth in
the following subparagraphs of this paragraph 1 and, if required by paragraph
10(a) of the Stockholders Agreement, subject, in the case of an Initial Public
Offering, to the GS Stockholders' prior written consent to such offering, the
holders of a majority of (i) the Xxxx Registrable Securities (ii) the GS
Registrable Securities or (iii) the Hoechst Registrable Securities may each
request registration under the Securities Act of all or part of their
Registrable Securities on Form S-1 or any similar long-form registration ("Long-
Form Registrations") or, if available, on Form S-2 or S-3 or any similar short-
form registration ("Short-Form Registrations"). Each request for such
registration (a "Demand Registration") shall specify the approximate number of
Registrable Securities requested to be registered and the anticipated per share
price range for such offering. Within ten days after receipt of any such
request, Holdings will give written notice of such requested registration to all
other holders of Registrable Securities and, subject to paragraph l(f) below,
will include in such registration all Registrable Securities with respect to
which Holdings has received written requests for inclusion therein within 15
days after the receipt of Holdings's notice.
(b) Xxxx Registrations. The holders of a majority of the Xxxx
Registrable Securities will be entitled to request three Long-Form Registrations
in which Holdings will pay
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all Registration Expenses (a "Xxxx Demand"). A registration will not count as a
Xxxx Demand until it has become effective, and the last Xxxx Demand will not
count as a Xxxx Demand unless the holders of Xxxx Registrable Securities
requesting such registration have been able to register and sell at least 90% of
the Xxxx Registrable Securities initially requested to be registered by such
holders; provided that in any event Holdings will pay all Registration Expenses
in connection with any registration initiated as a Xxxx Demand whether or not it
has become effective.
(c) Short-Form Registrations. In addition to the Xxxx Demands
provided pursuant to paragraph 1(b), the holders of a majority of the Xxxx
Registrable Securities will be entitled to request unlimited Short-Form
Registrations in which Holdings will pay all Registration Expenses. Demand
Registrations will be Short-Form Registrations whenever Holdings is permitted to
use any applicable short form (unless the underwriter of such offering requests
Holdings to use a Long-Form Registration in order to sell all of the Registrable
Securities requested to be sold). After Holdings has become subject to the
reporting requirements of the Securities Exchange Act, Holdings will use its
best efforts to make Short-Form Registrations available for the sale of
Registrable Securities provided that Holdings will not be obligated to effect
such a Short-Form Registration unless holders of Xxxx Registrable Securities
request to include at least the lesser of 1,500,000 Xxxx Registrable Securities
(such number to be adjusted for equity securities (other than Non-Participating
Securities) issued by way of stock dividend, stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization) or such number of Xxxx Registrable Securities then owned by the
holders of the Xxxx Registrable Securities.
(d) GS Demand Registrations. After the earlier of (i) Holdings's
Initial Public Offering (as defined in Paragraph 9 below) and (ii) December 20,
2002, the holders of a majority of the GS Registrable Securities will be
entitled to request two Demand Registrations (a "GS Demand"); provided that
there will be no GS Demand prior to Holdings's Initial Public Offering if the GS
Stockholders and their Affiliates (other than Holdings or its Subsidiaries) have
received from Holdings, its Subsidiaries or the Persons who were not Affiliates
of the GS Stockholders aggregate proceeds of at least $14.9 million with respect
to the GS Registrable Securities initially purchased by the GS Stockholders
pursuant to the Purchase Agreement (whether by dividend, distribution,
redemption, repurchase, sale or otherwise). A registration will not count as one
of the GS Demands until it has become effective, and the last GS Demand will not
count as one of the GS Demands unless the holders of GS Registrable Securities
requesting such registration have been able to register and sell at least 90% of
the Registrable Securities initially requested to be registered by such holders;
provided that in any event Holdings will pay all Registration Expenses in
connection with any registration initiated as a GS Demand whether or not it has
become effective.
(e) Hoechst Demand Registrations. After Holdings's Initial Public
Offering, the holders of a majority of the Hoechst Registrable Securities will
be entitled to request unlimited Demand Registrations (an "Hoechst Demand");
provided that Holdings will not be obligated to effect an Hoechst Demand (i)
unless the holders of Hoechst Registrable Securities
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request to include at least the lesser of 1,500,000 Hoechst Registrable
Securities or such number of Hoechst Registrable Securities then owned by
Hoechst and its Affiliates (such number to be adjusted for equity securities
(other than Non-Participating Securities) issued by way of stock dividend, stock
split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization) and (ii) if within the twelve month
period preceding such Hoechst Demand, Holdings has effected an Hoechst Demand. A
registration will not count as one of the Hoechst Demands until it has become
effective and unless the holders of Hoechst Registrable Securities requesting
such registration have been able to register and sell at least 90% of the
Hoechst Registrable Securities initially requested to be registered by such
holders. Holdings will pay all Registration Expenses in connection with any
registration initiated as an Hoechst Demand whether or not it has become
effective.
(f) Priority on Demand Registrations. Holdings will not include in
any Demand Registration any securities which are not Registrable Securities
without the prior written consent of the holders of a majority of the
Registrable Securities included in such registration. If a Demand Registration
is an underwritten offering and the managing underwriters advise Holdings in
writing that in their opinion the number of Registrable Securities and, if
permitted hereunder, other securities requested to be included in such offering
exceeds the number of Registrable Securities and other securities, if any, which
can be sold therein without adversely affecting the marketability of the
offering, Holdings will include in such registration prior to the inclusion of
any securities which are not Registrable Securities the number of Registrable
Securities requested to be included which in the opinion of such underwriters
can be sold without adversely affecting the marketability of the offering, pro
rata among the respective holders thereof on the basis of the number of shares
of Registrable Securities owned by each such holder.
(g) Restrictions on Demand Registrations. Holdings will not be
obligated to effect any Demand Registration within six months after the
effective date of a previous Demand Registration. Holdings may postpone for up
to six months (from the date of the request) the filing or the effectiveness of
a registration statement for a Demand Registration if and so long as Holdings
determines that such Demand Registration would reasonably be expected to have an
adverse effect on any proposal or plan by Holdings or any of its Subsidiaries to
engage in any acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer or similar transaction;
provided, however, that in such event, the holders of a majority of the
Registrable Securities requesting such Demand Registration will be entitled to
withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as one of the permitted Demand Registrations
hereunder and Holdings will pay all Registration Expenses in connection with
such registration.
(h) Selection of Underwriters. Subject to the following provisions of
this subparagraph (h), the holders of a majority of the Xxxx Registrable
Securities included in any Demand Registration (or if none, Holdings) will have
the right to select the investment banker(s) and manager(s) to administer the
offering, subject to Holdings's approval which will not be unreasonably
withheld. The lead investment bank and manager shall be a nationally-recognized,
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New York-based investment banking firm with substantial expertise in offerings
of the kind contemplated in connection with the Demand Registration (such kind
of investment banking firm being referred to herein as a "Qualified Investment
Bank"). Notwithstanding the foregoing, and subject to the terms of the
Stockholders Agreement: (i) in the case of the first GS Demand Registration if
the GS Registrable Securities included in such demand constitute at least a
majority of the Registrable Securities being registered and in the case of the
second GS Demand Registration without regard to the amount of GS Registrable
Securities included in the demand, the holders of a majority of the GS
Registrable Securities included in the demand will have the right to select one
or more Qualified Investment Banks to serve as the investment banker(s) and
manager(s) to administer the offering, subject to Holdings's approval which will
not be unreasonably withheld; (ii) in the case of a Demand Registration where
the Hoechst Registrable Securities included in such demand constitute at least a
majority of the Registrable Securities being registered, Hoechst will have the
right to approve the Qualified Investment Bank(s) selected to administer the
offering which approval shall not be unreasonably withheld; and (iii) in the
case of a Demand Registration where the Hoechst Registrable Securities included
in such demand constitute at least 25% of the Registrable Securities being
registered, Hoechst will have the right to select a Qualified Investment Bank to
serve as a co-investment bank and co-manager to co-administer the offering,
subject to Holdings's approval which will not be unreasonably withheld.
In any registration in which GS Registrable Securities are included in
such registration, subject to the Stockholders Agreement, Xxxxxxx, Xxxxx & Co.
("Goldman") will be appointed a manager in administering such offering.
(i) Other Registration Rights. Except as provided in this Agreement,
Holdings will not grant to any Persons the right to request Holdings to register
any equity securities of Holdings, or any securities convertible or exchangeable
into or exercisable for such securities; provided that Holdings may grant rights
to other Persons to (i) participate in the Piggyback Registrations so long as
such rights are subordinate to the rights of the holders of Registrable
Securities with respect to such Piggyback Registrations, (ii) request
registrations so long as the holders of Registrable Securities are entitled to
participate in any such registrations with such Persons pro rata on the basis of
the number of shares owned by each such holder and (iii) to otherwise request
Holdings to register any such securities if the grant of such right affects
equally and in the same manner the respective rights of holders of Registrable
Securities hereunder.
2. Piggyback Registrations.
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(a) Right to Piggyback. Whenever Holdings proposes to register any of
its securities under the Securities Act (other than in an Initial Public
Offering or pursuant to a Demand Registration or a registration on Form S-4 or
S-8 or any successor or similar forms) and the registration form to be used
may be used for the registration of Registrable Securities (a "Piggyback
Registration"), whether or not for sale for its own account, Holdings will give
prompt written notice to all holders of Registrable Securities of its intention
to effect such a
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registration and, subject to paragraph 2(d) below, will include in such
registration all Registrable Securities with respect to which Holdings has
received written requests for inclusion therein within 30 days after the receipt
of Holdings's notice.
(b) Piggyback Expenses. The Registration Expenses of the holders of
Registrable Securities will be paid by Holdings in all Piggyback Registrations.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of Holdings, and the managing
underwriters advise Holdings in writing (with a copy to each party hereto
requesting registration of Registrable Securities) that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without adversely affecting the
marketability of such offering, Holdings will include in such registration (i)
first, the securities Holdings proposes to sell, (ii) second, the Registrable
Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
owned by each such holder, and (iii) third, other securities requested to be
included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of Holdings's
securities and the managing underwriters advise Holdings in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
adversely affecting the marketability of the offering, Holdings will include in
such registration (i) first, the securities requested to be included therein by
the holders requesting such registration and the Registrable Securities
requested to be included in such registration, pro rata among such holders and
the holders of such Registrable Securities on the basis of the number of shares
owned by each such holder, and (ii) second, other securities requested to be
included in such registration.
(e) Other Registrations. If Holdings has previously filed a
registration statement with respect to Registrable Securities pursuant to
paragraph 1 or pursuant to this paragraph 2, and if such previous registration
has not been withdrawn or abandoned, Holdings will not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except on Form S-4 or S-8 or any successor form), whether on
its own behalf or at the request of any holder or holders of such securities,
until a period of at least six months has elapsed from the effective date of
such previous registration.
3. Holdback Agreements.
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(a) To the extent not inconsistent with applicable law, each holder
of Registrable Securities agrees not to effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities of Holdings, or any
securities, options or rights convertible into or exchangeable or exercisable
for such securities, during the seven days prior to
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and during the 180-day period beginning on the effective date of any
underwritten Demand Registration or any underwritten Piggyback Registration
(except as part of such underwritten registration), unless the underwriters
managing the registered public offering otherwise agree.
(b) Holdings agrees (i) not to effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such securities, during the seven days prior to and during the
180-day period beginning on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration (except as part of such
underwritten registration or pursuant to registrations on Form S-4 or S-8 or any
successor form), unless the underwriters managing the registered public offering
otherwise agree, and (ii) to cause each holder of its Common Stock, or any
securities convertible into or exchangeable or exercisable for Common Stock,
purchased from Holdings at any time after the date of this Agreement (other than
in a registered public offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any such securities
during such period (except as part of such underwritten registration, if
otherwise permitted), unless the underwriters managing the registered public
offering otherwise agree.
4. Registration Procedures. Whenever the holders of Registrable
Securities have requested that any Registrable Securities be registered pursuant
to this Agreement, Holdings will use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof and pursuant thereto Holdings will as
expeditiously as possible:
(a) prepare and (within 60 days after the end of the period within
which requests for inclusion in such registration may be given to Holdings) file
with the Securities and Exchange Commission a registration statement with
respect to such Registrable Securities and thereafter use its best efforts to
cause such registration statement to become effective (provided that before
filing a registration statement or prospectus or any amendments or supplements
thereto, Holdings will furnish to the counsel(s) selected by the holders of the
Registrable Securities covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to review of
such counsel);
(b) prepare and file with the Securities and Exchange Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for a period of either (i) not less than six months (subject
to extension pursuant to paragraph 7(b)) or, if such registration statement
relates to an underwritten offering, such longer period as in the opinion of
counsel for the underwriters a prospectus is required by law to be delivered in
connection with sales of Registrable Securities by an underwriter or dealer or
(ii) such shorter period as will terminate when all of the securities covered by
such registration statement have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such registration statement (but in any event not before the expiration of any
longer period required under the Securities Act), and to comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by such registration
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statement until such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Securities such number of
copies of such registration statement, each amendment and supplement thereto,
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such seller may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such seller;
(d) use its best efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such jurisdictions as
any seller reasonably requests and do any and all other acts and things which
may be reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller (provided that Holdings will not be required to (i) qualify generally to
do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in respect of
doing business in any such jurisdiction or (iii) consent to general service of
process in any such jurisdiction);
(e) promptly notify each seller of such Registrable Securities, at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the discovery of the happening
of any event as a result of which, the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made, and, at the request of any such
seller, Holdings will prepare and furnish to such seller a reasonable number of
copies 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 fact
necessary to make the statements therein not misleading in the light of the
circumstances under which they were made;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by Holdings are then
listed and, if not so listed, to be listed on the NASD automated quotation
system;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities included in the registration (and in
the case of a GS Demand, the holders of a majority of the GS Registrable
Securities included in the registration; in the case of a Xxxx Demand, the
holders of a majority of the Xxxx Registrable Securities included in the
registration; and in the case of a Demand Registration in which Hoechst
Registrable Securities constitute at least a
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majority of the Registrable Securities being registered, the holders of a
majority of the Hoechst Registrable Securities included in the registration) or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including, without limitation,
effecting a stock split or a combination of shares);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or underwriter, all financial and other records, pertinent
corporate documents and properties of Holdings, and cause Holdings's officers,
directors, employees and independent accountants to supply all information
reasonably requested by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(j) otherwise use its best efforts to comply with all applicable
rules and regulations of the Securities and Exchange Commission, and make
available to its security holders, as soon as reasonably practicable, but not
later than 18 months after the effective date of the registration statement, an
earnings statement covering the period of at least twelve months beginning with
the first day of Holdings's first full calendar quarter after the effective date
of the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Securities included in such registration statement for sale in any
jurisdiction, Holdings will use its reasonable best efforts promptly to obtain
the withdrawal of such order;
(1) obtain one or more comfort letters, dated the effective date of
such registration statement (and, if such registration includes an underwritten
public offering, dated the date of the closing under the underwriting
agreement), signed by Holdings's independent public accountants in customary
form and covering such matters of the type customarily covered by comfort
letters as the holders of a majority of the Registrable Securities being sold
reasonably request (and in the case of (i) a GS Demand, as the holders of a
majority of the GS Registrable Securities included in the registration
reasonably request, (ii) a Xxxx Demand, as the holders of a majority of the Xxxx
Registrable Securities included in the registration reasonably request and (iii)
a Demand Registration in which Hoechst Registrable Securities constitute at
least a majority of the Registrable Securities being registered, as the holders
of a majority of the Hoechst Registrable Securities included in the registration
reasonably request);
(m) provide a legal opinion of Holdings's outside counsel, dated the
effective date of such registration statement (and, if such registration
includes an underwritten public offering, dated the date of the closing under
the underwvriting agreement), with respect to the registration statement, each
amendment and supplement thereto, the prospectus included therein (including the
preliminary prospectus) and such other documents relating thereto in customary
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form and covering such matters of the type customarily covered by legal opinions
of such nature (in a form reasonably acceptable to the holders of a majority of
the Registrable Securities included in the registration); provided that in any
registration made pursuant to (i) a GS Demand, such legal opinion shall be in a
form reasonably acceptable to the holders of a majority of the GS Registrable
Securities included in such registration, (ii) a Xxxx Demand, such legal opinion
shall be in a form reasonably acceptable to the holders of a majority of the
Xxxx Registrable Securities included in such registration and (iii) a Demand
Registration in which Hoechst Registrable Securities constitute at least a
majority of the Registrable Securities being registered, such legal opinion
shall be in a form reasonably acceptable to the holders of a majority of the
Hoechst Registrable Securities included in such registration;
(n) cooperate with the sellers of Registrable Securities covered by the
registration statement and the managing underwriter or agent, if any, to
facilitate the timely preparation and delivery of certificates (not bearing any
restrictive legends) representing securities to be sold under the registration
statement, and enable such securities to be in such denominations and registered
in such names as the managing underwriter or agent, if any, or such holders may
request;
(o) notify counsel for the sellers of Registrable Securities included
in such registration statement and the managing underwriter or agent,
immediately, and confirm the notice in writing (i) when the registration
statement, or any post-effective amendment to the registration statement, shall
have become effective, or any supplement to the prospectus or any amendment
prospectus shall have been filed, (ii) of the receipt of any comments from the
Securities and Exchange Commission, (iii) of any request of the Securities and
Exchange Commission to amend the registration statement or amend or supplement
the prospectus or for additional information, and (iv) of the issuance by the
Securities and Exchange Commission of any stop order suspending the
effectiveness of the registration statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the registration statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any of
such purposes;
(p) make every reasonable effort to prevent the issuance of any stop
order suspending the effectiveness of the registration statement or of any order
preventing or suspending the use of any preliminary prospectus and, if any such
order is issued, to obtain the withdrawal of any such order at the earliest
possible moment;
(q) if requested by the managing underwriter or agent or any holder of
Registrable Securities covered by the registration statement, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriter or agent or such holder reasonably
requests to be included therein, including, without limitation, with respect to
the number of Registrable Securities being sold by such holder to such
underwriter or agent, the purchase price being paid therefor by such underwriter
or agent and with respect to any other terms of the underwritten offering of the
Registrable Securities to be sold in such offering; and make all required
filings of such prospectus
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supplement or post-effective amendment as soon as practicable after being
notified of the matters incorporated in such prospectus supplement or post-
effective amendment; and
(r) cooperate with each seller of Registrable Securities and each
underwriter or agent participating in the disposition of such Registrable
Securities and their respective counsel in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.
Holdings may require each seller of Registrable Securities as to which any
registration is being effected to furnish Holdings such information relating to
the sale or registration of such Securities regarding such seller and the
distribution of such securities as Holdings may from time to time reasonably
request in writing.
5. Registration Expenses.
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(a) All expenses incident to Holdings's performance of or compliance
with this Agreement, including, without limitation, all registration and filing
fees, fees and expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, and fees and disbursements of counsel
for Holdings and all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained by Holdings
(all such expenses being herein called "Registration Expenses"), will be borne
as provided in this Agreement, except that Holdings will, in any event, pay its
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expense
of any annual audit or quarterly review, the expense of any liability insurance
and the expenses and fees for listing the securities to be registered on each
securities exchange on which similar securities issued by Holdings are then
listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, Holdings will reimburse the holders of Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration. In addition, in any registration made pursuant
to (i) a GS Demand, Holdings will reimburse the holders of GS Registrable
Securities covered by such registration for the reasonable fees and
disbursements of one counsel chosen by the holders of a majority of the GS
Registrable Securities included in such registration, (ii) a Demand Registration
in which Hoechst Registrable Securities constitute at least a majority of the
Registrable Securities being registered, Holdings shall reimburse the holders of
Hoechst Registrable Securities covered by such registration for the reasonable
fees and disbursements of one counsel chosen by the holders of a majority of the
Hoechst Registrable Securities included in such registration and (iii) a Xxxx
Demand, Holdings shall reimburse the holders of Xxxx Registrable Securities
covered by such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Xxxx Registrable Securities
included in such registration.
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(c) To the extent Registration Expenses are not required to be paid by
Holdings, each holder of securities included in any registration hereunder will
pay those Registration Expenses allocable to the registration of such holder's
securities so included, and any Registration Expenses not so allocable will be
borne by all sellers of securities included in such registration in proportion
to the aggregate selling price of the securities to be so registered.
6. Indemnification.
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(a) Holdings agrees to indemnify and hold harmless, to the fullest
extent permitted by law, each holder of Registrable Securities, its officers,
directors, employees, stockholders and general and limited partners and each
Person who controls such holder (within the meaning of the Securities Act)
against any and all losses, claims, damages, liabilities, joint or several, to
which such holder or any such director or officer or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings, whether commenced or
threatened, in respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained (A) in any registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto, together with any documents incorporated therein by
reference or, (ii) any omission or alleged omission of a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and Holdings will reimburse such holder and each such director, officers,
employees, stockholders and general and limited partners and controlling person
for any legal or any other expenses, including any amounts paid in any
settlement effected with the consent of Holdings, which consent will not be
unreasonably withheld or delayed, incurred by them in connection with
investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that Holdings shall not be liable in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement, or omission or alleged omission,
made in such registration statement, any such prospectus or preliminary
prospectus or any amendment or supplement thereto, or in any application, in
reliance upon, and in conformity with, written information prepared and
furnished to Holdings by such holder expressly for use therein. In connection
with an underwritten offering, Holdings will indemnify such underwriters, their
officers and directors and each Person who controls such underwriters (within
the meaning of the Securities Act) to the same extent as provided above with
respect to the indemnification of the holders of Registrable Securities.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder will furnish to
Holdings in writing such information and affidavits as Holdings reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify and hold harmless
Holdings, its directors, officers, employees, stockholders and general and
limited partners and each other Person who controls Holdings (within the meaning
of the Securities Act) against any losses, claims, damages, liabilities, joint
or several, to which such holder or any such director or officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions or proceedings,
-11-
whether commenced or threatened, in respect thereof) arise out of or are based
upon (i) any untrue or alleged untrue statement of material fact contained in
the registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or in any application, together with any
documents incorporated therein by reference or (ii) any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only to the extent that such untrue
statement or omission is made in such registration statement, any such
prospectus or preliminary prospectus or any amendment or supplement thereto, or
in any application, in reliance upon and in conformity with written information
prepared and furnished to Holdings by such holder expressly for use therein, and
such holder will reimburse Holdings and each such director, officer and
controlling Person for any legal or any other expenses including any amounts
paid in any settlement effected with the consent of such holder, which consent
will not be unreasonably withheld or delayed, incurred by them in connection
with investigating or defending any such loss, claim, liability, action or
proceeding; provided, however, that the obligation to indemnify will be
individual (and not joint and several) to each holder and will be limited to the
net amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder will (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided, however, that the failure of any
indemnified party to give such notice shall not relieve the indemnifying party
of its obligations hereunder, except to the extent that the indemnifying party
is actually prejudiced by such failure to give such notice), and (ii) unless in
such indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim.
(d) The indemnifying party shall not, except with the approval of each
indemnified party, consent to entry of any judgment or enter into any settlement
which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to each indemnified party of a release from all liability
in respect to such claim or litigation without any payment or consideration
provided by such indemnified party.
(e) If the indemnification provided for in this Paragraph 6 is
unavailable to or is insufficient to hold harmless an indemnified party under
the provisions above in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
-12-
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect not only the relative benefits received by Holdings on the one hand and
the sellers of Registrable Securities and any other sellers participating in the
registration statement on the other from the sale of Registrable Securities
pursuant to the registered offering of securities as to which indemnity is
sought but also the relative fault of the indemnified party and the indemnifying
party as well as any other relevant equitable considerations or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of Holdings on the
one hand and of the sellers of Registrable Securities and any other sellers
participating in the registration statement on the other in connection with the
statement or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by Holdings on the one hand and the sellers of
Registrable Securities and any other sellers participating in the registration
statement on the other shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) to Holdings bear to
the total net proceeds from the offering (before deducting expenses) to the
sellers of Registrable Securities and any other sellers participating in the
registration statement. The relative fault of Holdings on the one hand and of
the sellers of Registrable Securities and any other sellers participating in the
registration statement on the other shall be determined by reference to, among
other things, whether the untrue or alleged omission to state a material fact
relates to information supplied by Holdings or by the sellers of Registrable
Securities or other sellers participating in the registration statement and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Holdings and the sellers of Registrable Securities agree that it would
not be just and equitable if contribution pursuant to this Paragraph 6 were
determined by pro rata allocation (even if the sellers of Registrable Securities
were treated as one entity for such purpose) 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 and 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
Paragraph 6, no seller of Registrable Securities shall be required to contribute
any amount in excess of the net proceeds received by such Seller from the sale
of Registrable Securities covered by the registration statement filed pursuant
hereto. 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.
(f) The indemnification and contribution by any such party provided
for under this Agreement shall be in addition to any other rights to
indemnification or contribution which any indemnified party may have pursuant to
law or contract and will remain in full force and effect regardless of any
investigation made or omitted by or on behalf of the indemnified party or
-13-
any officer, director or controlling Person of such indemnified party and will
survive the transfer of securities.
7. Participation in Underwritten Registrations.
--------------------------------------------
(a) No Person may participate in any registration hereunder which is
underwritten unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements (including, without
limitation, pursuant to the terms of any over-allotment or "green shoe" option
requested by the managing underwriter(s), provided that no holder of Registrable
Securities will be required to sell more than the number of Registrable
Securities that such holder has requested Holdings to include in any
registration) and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
(b) Each Person that is participating in any registration hereunder
agrees that, upon receipt of any notice from Holdings of the happening of any
event of the kind described in paragraph 4(e) above, such Person will forthwith
discontinue the disposition of its Registrable Securities pursuant to the
registration statement until such Person's receipt of the copies of a
supplemented or amended prospectus as contemplated by such paragraph 4(e). In
the event Holdings shall give any such notice, the applicable time period
mentioned in paragraph 4(b) during which a Registration Statement is to remain
effective shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to this paragraph to
and including the date when each seller of a Registrable Security covered by
such registration statement shall have received the copies of the supplemented
or amended prospectus contemplated by paragraph 4(e).
8. Current Public Information.
---------------------------
At all times after Holdings has filed a registration statement with
the Securities and Exchange Commission pursuant to the requirements of either
the Securities Act or the Securities Exchange Act, Holdings will timely file all
reports required to be filed by it under the Securities Act and the Securities
Exchange Act and the rules and regulations adopted by the Securities and
Exchange Commission thereunder, and will take such further action as any holder
or holders of Registrable Securities may reasonably request, all to the extent
required to enable such holders to sell Registrable Securities pursuant to Rule
144 adopted by the Securities and Exchange Commission under the Securities Act
(as such rule may be amended from time to time) or any similar rule or
regulation hereafter adopted by the Securities and Exchange Commission.
9. Definitions.
------------
"Xxxx Registrable Securities" means (i) any share of Common or Class L
Common issued to the Xxxx Stockholders (or their Affiliates) pursuant to the
Purchase Agreement or otherwise acquired, (ii) any equity securities issued or
issuable directly or indirectly with respect to the securities referred to in
clause (i) by way of stock dividend or stock split or in connection
-14-
with a combination of shares, recapitalization, merger, consolidation or other
reorganization and (iii) any other shares of Common or Class L Common held by
Persons holding securities described in clause (i) or (ii) above; provided,
however, that in the event that pursuant to such recapitalization or exchange
Non-Participating Securities are issued, such Non-Participating Securities will
not be Registrable Securities. As to any particular shares constituting Xxxx
Registrable Securities, such shares will cease to be Xxxx Registrable Securities
when they have been (x) effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them, or (y)
sold to the public pursuant to Rule 144 under the Securities Act. For purposes
of this Agreement, a Person will be deemed to be a holder of Xxxx Registrable
Securities whenever such Person has the right to acquire directly or indirectly
such Xxxx Registrable Securities (upon conversion or exercise in connection with
a transfer of securities or otherwise, but disregarding any restrictions or
limitations upon the exercise of such right), whether or not such acquisition
has actually been effected.
"Class L Common" means the Class L Common Stock, par value $.01 per
share, of Holdings.
"Class L Common, Series B," means the Class L Common Stock, Series B,
par value $.01 per share, of Holdings.
"Common" means the Common Stock, par value $.01 per share, of Holdings.
"Common Stock" means both Class L Common, Class L Common, Series B, and
Common.
"GS Registrable Securities" means (i) any shares of Common or Class L
Common issued to the GS Stockholders (or their Affiliates) pursuant to the
Purchase Agreement or otherwise acquired, (ii) any equity securities issued or
issuable directly or indirectly with respect to the securities referred to in
clause (i) by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization and (iii) any other shares of Common or Class L Common held by
Persons holding securities described in clauses (i) or (ii) above; provided,
however, that in the event that pursuant to such recapitalization or exchange
Non-Participating Securities are issued, such Non-Participating Securities will
not be Registrable Securities. As to any particular shares constituting GS
Registrable Securities, such shares will cease to be GS Registrable Securities
when they have been (x) effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them, or (y)
sold to the public pursuant to Rule 144 under the Securities Act.
"Hoechst Registrable Securities" means (i) any shares of Common or
Class L Common, Series B, issued to Hoechst (or its Affiliate) pursuant to the
Combination Agreement, issued upon exercise of the Warrant (as defined in the
Combination Agreement) or otherwise acquired, (ii) any equity securities issued
or issuable directly or indirectly with respect to the securities referred to in
clause (i) by way of stock dividend or stock split or in connection with a
-15-
combination of shares, recapitalization, merger, consolidation or other
reorganization and (iii) any other shares of Common or Class L Common held by
Persons holding securities described in clauses (i) or (ii) above; provided,
however, that in the event that pursuant to such recapitalization or exchange
Non-Participating Securities are issued, such Non-Participating Securities will
not be Registrable Securities. As to any particular shares constituting Hoechst
Registrable Securities, such shares will cease to be Hoechst Registrable
Securities when they have been (x) effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
or (y) sold to the public pursuant to Rule 144 under the Securities Act.
"Initial Public Offering" means a public offering and sale of
Holdings's common stock pursuant to an effective registration statement under
the Securities Act of 1933, as amended, if immediately thereafter Holdings has
publicly held common stock listed on a national securities exchange or the NASD
automated quotation system with a market value of at least $15 million.
"Management Registrable Securities" means, so long as such holder has
agreed to become bound by the terms and provisions of this Agreement, (i) any
shares of Common Stock or securities convertible or exchangeable into Common
Stock issued to the employees of Holdings or its Subsidiaries, (ii) any equity
securities issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization and (iii) any other shares of Common Stock
held by Persons holding securities described in clauses (i) or (ii) above;
provided, however, that in the event that pursuant to such recapitalization or
exchange Non-Participating Securities are issued, such Non-Participating
Securities will not be Registrable Securities. As to any particular shares
constituting Management Registrable Securities, such shares will cease to be
Management Registrable Securities when they have been (x) effectively registered
under the Securities Act and disposed of in accordance with the registration
statement covering them, or (y) sold to the public pursuant to Rule 144 under
the Securities Act.
"Non-Participating Securities" means equity securities which do not
participate in the residual equity of Holdings.
"Person" means an individual, a partnership, a joint venture, a
corporation, a limited liability company, a trust, an unincorporated
organization and a government or any department or agency thereof.
"Registrable Securities" means collectively Xxxx Registrable
Securities, GS Registrable Securities, Hoechst Registrable Securities and
Management Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal law then in force.
-16-
"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal law then in force.
10. Miscellaneous
-------------
(a) No Inconsistent Agreements. Holdings will not hereafter enter into
any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(b) Adjustments Affecting Registrable Securities. Holdings will not
take any action, or permit any change to occur, with respect to its securities
which would materially and adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(c) Remedies. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that any party hereto shall have the right to injunctive relief,
in addition to all of its other rights and remedies at law or in equity, to
enforce the provisions of this Agreement.
(d) Amendment and Waiver. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of Holdings and the holders of a majority of the Xxxx
Registrable Securities (provided such securities constitute at least 3% of the
outstanding Common Stock on a fully diluted basis), the holders of a majority of
the GS Registrable Securities (provided such securities constitute at least 3%
of the outstanding Common Stock on a fully diluted basis) and the holders of a
majority of the Hoechst Registrable Securities (provided such securities
constitute at least 3% of the outstanding Common Stock on a fully diluted
basis); provided, however, that in the event that such amendment or waiver would
treat a holder or group of holders of Registrable Securities in a manner
different from any other holders of Registrable Securities, then such amendment
or waiver will require the consent of such holder or the holders of a majority
of the Registrable Securities of such group adversely treated. The failure of
any party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of such
party thereafter to enforce each and every provision of this Agreement in
accordance with its terms.
(e) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns. In addition, and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the holders of Registrable Securities (or
-17-
any portion thereof) as such shall be for the benefit of and enforceable by any
subsequent holder of any Registrable Securities (or of such portion thereof),
subject to the provisions respecting the minimum numbers or percentages of
shares of Registrable Securities (or of such portion thereof) required in order
to be entitled to certain rights, or take certain actions, contained herein.
(f) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or the effectiveness or validity of any provision in any
other jurisdiction, and this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision had
never been contained herein.
(g) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same Agreement.
(h) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(i) Notices. All notices, demands and other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when personally delivered,
sent by telecopy (with receipt confirmed) on a Business Day during regular
business hours of the recipient (or, if not, on the next succeeding Business
Day) or two Business Days after sent by reputable overnight express courier
(charges prepaid); provided that notice to the holders of the GS Registrable
Securities shall be effective only if notice has been given to the GS Designee
(as defined in the Stockholders Agreement) and notice to the GS Designee will
not be deemed to have been given unless actually delivered in person or by
telecopy, courier or mail.
If to Holdings:
Dade Behring Holdings, Inc
0000 Xxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxx, Xxxxxxxx 00000-0000
X.X.X.
Attention: Chief Executive Officer
General Counsel
If to the Xxxx Stockholders:
Xxxx Capital, Inc.
Two Xxxxxx Place
-18-
Boston, Massachusetts 02116
U.S.A.
Attention: Xxxx Xxxxxxxxxxx
With a copy to (which shall not constitute notice hereunder):
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
U.S.A.
Attention: Xxxxxxx X. Xxxxxx
If to the GS Stockholders:
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxxxxx X. Xxxxxxxxx
Xxxx Xxxxxxxxxx
With a copy to (which shall not constitute notice hereunder):
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
Attention: Xxx Xxxxx
If to Hoechst:
Xxxxxxx XX
Xxxxxxxxxxxxxx 00
X-00000
Xxxxxxx
Attention: Chairman of the Management Board
With a copy to (which shall not constitute notice hereunder):
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X.X.
-19-
Attention: Xxxxxxxxx O'X. Xxxxxx
11. Delivery by Facsimile. This Agreement and any signed agreement or
instrument entered into in connection thereto or contemplated thereby, and any
amendments hereto or thereto, to the extent signed and delivered by means of a
facsimile machine, shall be treated in all manner and respects as an original
agreement or instrument and shall be considered to have the same binding legal
effect as if it were the original signed version thereof delivered in person.
At the request of any party hereto or to any such agreement or instrument, each
other party hereto or thereto shall re-execute original forms thereof and
deliver them to all other parties. No party hereto or to any such agreement or
instrument shall raise the use of a facsimile machine to deliver a signature or
the fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine as a defense to the
formation of a contract and each such party forever waives any such defense.
12. GOVERNING LAW. THE CORPORATE LAW OF DELAWARE WILL GOVERN ALL
ISSUES CONCERNING THE RELATIVE RIGHTS OF HOLDINGS AND ITS STOCKHOLDERS. ALL
OTHER ISSUES CONCERNING THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY
CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE COUNTY OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAW OF
ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK. EACH PARTY HERETO HEREBY
SUBMITS TO THE CO-EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK, AND OF ANY NEW YORK STATE COURT SITTING IN
NEW YORK CITY, OVER ANY LAWSUIT UNDER THIS AGREEMENT AND WAIVES ANY OBJECTION
BASED ON VENUE OR FORUM NON CONVENIENS WITH RESPECT TO ANY ACTION INSTITUTED
THEREIN. EACH PARTY HERETO HEREBY WAIVES THE NECESSITY FOR PERSONAL SERVICE OF
ANY AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT REQUESTED), WITH A COPY
ALSO BEING SENT BY FACSIMILE (WITH RECEIPT CONFIRMED), IN EACH CASE DIRECTED TO
SUCH PARTY AT ITS ADDRESS SET FORTH IN, AND WITH COPIES SENT AS REQUIRED BY,
PARAGRAPH 10(i) ABOVE, AND SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED ON
THE DATE OF ACTUAL RECEIPT. EACH PARTY HERETO HEREBY CONSENTS TO SERVICE OF
PROCESS AS AFORESAID. NOTHING IN THIS PARAGRAPH 11 WILL PROHIBIT PERSONAL
SERVICE IN LIEU OF THE SERVICE BY MAIL CONTEMPLATED HEREIN.
IN WITNESS WHEREOF, the parties have executed this Agreement on the day
and year first above written.
DADE BEHRING HOLDINGS, INC.
-20-
By: /s/
----------------------------------------------
Its: Vice President
----------------------------------------------
HOECHST AG
By: /s/
----------------------------------------------
Its:
----------------------------------------------
XXXX CAPITAL FUND IV, L.P.
By: Xxxx Capital Partners IV, L.P.
Its: General Partner
By: Xxxx Capital Investors, Inc.
Its: General Partner
By: /s/
----------------------------------------------
A Managing Director
XXXX CAPITAL FUND IV-B, L.P.
By: Xxxx Capital Partners IV, L.P.
Its: General Partner
By: Xxxx Capital Investors, Inc.
Its: General Partner
By: /s/
----------------------------------------------
A Managing Director
BCIP ASSOCIATES
By: /s/
----------------------------------------------
A General Partner
-21-
BCIP TRUST ASSOCIATES, L.P.
By: /s/
----------------------------------------------
A General Partner
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.P.
Its: General Partner
By: GS Advisors, Inc.
Its: General Partner
By: /s/
----------------------------------------------
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Funding Corp. Its: Managing
General Partner
By: /s/
----------------------------------------------
STONE STREET FUND 1994, L.P.
By: Stone Street Funding Corp.
Its: General Partner
By: /s/
----------------------------------------------
XXXXXXXX STREET PARTNERS
By: /s/
----------------------------------------------
A General Partner
-22-
SCHEDULE A
----------
Bain CapitaI Fund IV, X.X.
Xxxx Capital Fund IV-B, L.P.
BCIP Associates
BCIP Trust Associates, X.X.
Xxxxxxxx Street Partners
-23-
SCHEDULE B
----------
GS Capital Partners, L.P.
Bridge Street Fund 0000, X.X.
Xxxxx Xxxxxx Fund 1994, L.P.
-24-
