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EXHIBIT 10.4
EXECUTION COPY
AMENDED AND RESTATED AGREEMENT
among
CERTAIN STOCKHOLDERS
of
WEBLINK WIRELESS, INC.
dated as of
June 8, 2000
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TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions......................................................................1
ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.01. Request for Registration.........................................................6
SECTION 2.02. Company Registration.............................................................7
SECTION 2.03. Obligations of the Company.......................................................8
SECTION 2.04. Furnish Information.............................................................11
SECTION 2.05. Expenses of Demand Registration.................................................11
SECTION 2.06. Expenses of Company Registration................................................11
SECTION 2.07. Indemnification.................................................................12
SECTION 2.08. Contribution....................................................................14
SECTION 2.09. Reports under the Exchange Act..................................................15
SECTION 2.10. Limitations on Subsequent Registration Rights...................................16
SECTION 2.11. Lock-Up.........................................................................16
SECTION 2.12. Termination of Registration Rights..............................................17
ARTICLE 3
VOTING AGREEMENT
SECTION 3.01. Agreement to Vote for Directors.................................................17
SECTION 3.02. Agreement of Voting Parties to Vote.............................................19
SECTION 3.03. Specification of Designees......................................................20
SECTION 3.04. Covenant of Company.............................................................20
SECTION 3.05. Stock Splits, Stock Dividends, Etc..............................................20
SECTION 3.06. Committees......................................................................20
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ARTICLE 4
RIGHTS AND OBLIGATIONS WITH RESPECT TO TRANSFERS
SECTION 4.01. Tag-Along Rights................................................................20
SECTION 4.02. Certain Other Transfers.........................................................23
SECTION 4.03. Further Assurances..............................................................23
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Information.....................................................................23
SECTION 5.02. Successors and Assigns..........................................................24
SECTION 5.03. Withdrawal and Termination......................................................25
SECTION 5.04. Amendments......................................................................25
SECTION 5.05. References to Shares of Common Stock............................................26
SECTION 5.06. Governing Law...................................................................26
SECTION 5.07. Counterparts....................................................................26
SECTION 5.08. Titles and Subtitles............................................................26
SECTION 5.09. Notices.........................................................................26
SECTION 5.10. Severability....................................................................26
SECTION 5.11. Aggregation of Stock............................................................27
SECTION 5.12. Plan Assets.....................................................................27
SECTION 5.13. Other Agreements; Transactions with Affiliates..................................27
SECTION 5.14. Entire Agreement................................................................28
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AMENDED AND RESTATED AGREEMENT
AMONG CERTAIN STOCKHOLDERS
AGREEMENT dated as of June 8, 2000, among Weblink Wireless, Inc. (f/k/a
PageMart Wireless, Inc.) (the "COMPANY") and certain of the holders of common
stock of the Company listed on the signature pages hereof.
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"AFFILIATE" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person, whether through the ownership of voting securities, by contract or
otherwise and includes, in the case of any Person that is a trust or is acting
through a nominee, any successor trustee or nominee.
"CLASS A COMMON STOCK" means Class A Convertible Common Stock, par
value $.0001 per share, of the Company, having the terms set forth in the
Amended and Restated Certificate of Incorporation of the Company.
"CLASS B COMMON STOCK" means Class B Convertible Non-Voting Common
Stock, par value $.0001 per share, of the Company having the terms set forth in
the Amended and Restated Certificate of Incorporation of the Company.
"CLASS C COMMON STOCK" means Class C Convertible Non-Voting Common
Stock, par value $.0001 per share, of the Company having the terms set forth in
the Amended and Restated Certificate of Incorporation of the Company.
"CLASS D COMMON STOCK" means Class D Convertible Non-Voting Common
Stock, par value $.0001 per share, of the Company, having the terms set forth in
the Amended and Restated Certificate of Incorporation.
"COMMON STOCK" means the Voting Capital Stock and the Non-Voting
Capital Stock.
"COMMUNICATIONS ACT" means the Communications Act of 1934, as amended.
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"DULY ENDORSED" means, with respect to any stock certificate, duly
endorsed in blank by the Person or Persons in whose name a stock certificate is
registered or accompanied by duly executed stock powers.
"EMPLOYEE BENEFIT PLAN" means any employee benefit plan within the
meaning of Section 2510.3(3) of ERISA subject to part 4 of Subtitle B of Title I
of ERISA or to section 4975 of the Code.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FERSA" means Fomento Empresarial Regiomontano, S.A. de C.V. and its
transferees Leadership Investments Ltd., Empresas La Moderna, S.A. de C.V. and
Seguros Comercial America, S.A. de C.V. and each of their respective permitted
transferees .
"FERSA SHARES" means the shares of Common Stock of the Company sold to
FERSA pursuant to the terms of the FERSA Subscription Agreement.
"FERSA SUBSCRIPTION AGREEMENT" means the FERSA Subscription Agreement
dated as of June 9, 1994 between the Company and FERSA.
"FIRST PLAZA GROUP" means First Plaza Group Trust.
"HOLDER" means each holder of Common Stock which is a party to this
Agreement and any transferee or assignee thereof that shall become a party to
this Agreement in accordance with Section 5.02(a) and giving effect to the
provisions of Section 5.11.
"IMMEDIATE FAMILY" means any child, stepchild, grandchild, parent,
stepparent, grandparent, spouse, sibling, mother-in-law, father-in-law,
son-in-law, daughter-in-law, brother-in-law, or sister-in-law, and includes
adoptive relationships.
"MANAGEMENT HOLDERS" means Xxxxxxxxx X. Xxxxxxxx, Xxxx X. Xxxxxxx, X.
Xxxx Buckenham and Xxxx X. Xxxxx, and such other members of management of the
Company as may become parties hereto from time to time.
"MATERIAL ADVERSE CHANGE" means a material adverse change in the
condition (financial or otherwise), business, assets, or results or operations
of the Company.
"MSDW MERCHANT BANKING FUNDS" means MSLEF, MSCI, XXXX 000 and MSCP,
collectively.
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"MSDW SHAREHOLDERS" means the MSDW Merchant Banking Funds and the MSDW
Venture Capital Funds.
"MSDW VENTURE CAPITAL FUNDS" means MSVCF, MSVCF II, MSVCF CV and MSVI,
collectively.
"MSCI" means Xxxxxx Xxxxxxx Capital Investors, L.P., a Delaware limited
partnership.
"MSCP" means Xxxxxx Xxxxxxx Capital Partners III, L.P., a Delaware
limited partnership.
"MSCP 892" means XXXX 000 Investors, L.P.
"MSLEF" means The Xxxxxx Xxxxxxx Leveraged Equity Fund II, L.P., a
Delaware limited partnership.
"MSVCF" means Xxxxxx Xxxxxxx Venture Capital Fund, L.P., a Delaware
limited partnership.
"MSVCF CV" means Xxxxxx Xxxxxxx Venture Capital Fund II, C.V., a
Netherlands Antilles limited liability partnership.
"MSVCF II" means Xxxxxx Xxxxxxx Venture Capital Fund II, L.P., a
Delaware limited partnership.
"MSVI" means Xxxxxx Xxxxxxx Venture Investors, L.P., a Delaware limited
partnership.
"NON-VOTING CAPITAL STOCK" means the Class B Common Stock, Class C
Common Stock and Class D Common Stock.
"OPERATING COMPANY" means an "OPERATING COMPANY" within the meaning of
Department of Labor Regulation Section 2510.3-101(c) or successor rule or
regulation, as from time to time amended and in effect.
"PERSON" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or any agency or instrumentality thereof.
"PLAN ASSETS" means "PLAN ASSETS" within the meaning of Department of
Labor Regulation Section 2510.3-101(c) or successor rule or regulation, as from
time to time amended and in effect.
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"PUBLIC OFFERING" means any primary or secondary public offering of
equity securities of the Company pursuant to an effective registration statement
under the Securities Act other than pursuant to a registration statement filed
in connection with a transaction described in Rule 145 of the Securities Act or
for the purpose of issuing securities pursuant to an employee benefit plan.
"PULSAR CONTROL SHAREHOLDERS" means the controlling shareholder of
Xxxxxxxxx, X.X. de C.V., as set forth in its registry of shareholders on June 9,
1994, and his spouse, and their respective ancestors, siblings and lineal
descendants, and any trust created for the benefit of any such persons or any of
their respective Affiliates.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the Securities Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"REGISTRABLE SECURITIES" means any shares of Common Stock now or
hereafter owned by any Holder and any shares of Common Stock Transferred in a
transaction in which the rights of the transferor under Article 2 of this
Agreement with respect to such shares are assigned in accordance with Section
5.02(a) or 5.02(b); provided that "REGISTRABLE SECURITIES" shall not include any
shares of Common Stock that may be sold without restriction pursuant to Rule
144(k) (or any successor rule) under the Securities Act or are otherwise freely
transferable in the United States or to a United States person without
registration and without restriction under the Securities Act (as supported, if
requested by any Holder, by an opinion of counsel to the Company in form and
substance reasonably satisfactory to the Holder).
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"TDCGL" means Toronto Dominion Capital Group Ltd.
"THIRD PARTY" means any Person (other than an Affiliate of the MSDW
Merchant Banking Funds) that proposes to purchase shares of Common Stock from
the MSDW Merchant Banking Funds in an arm's-length transaction.
"TRANSFER" means transfer, sell, assign, pledge or otherwise dispose
of.
"VOTING CAPITAL STOCK" means the Class A Common Stock.
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(b) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
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Designating Party.......................................... Section 3.01(b)
Family Transferee.......................................... Section 4.02
Initiating Holders......................................... Section 2.01(b)
Inspectors................................................. Section 2.03(i)
MSDW Designees............................................. Section 3.01(a)
MSCP Designee.............................................. Section 3.01(a)
MSLEF Designee............................................. Section 3.01(a)
MSVCF Designee............................................. Section 3.01(a)
MSVCF II Designee.......................................... Section 3.01(a)
Nomination Date............................................ Section 3.03
Participating Holder....................................... Section 4.01(a)(ii)
Records.................................................... Section 2.03(i)
Tag-Along Notice........................................... Section 4.01(a)(ii)
Tag-Along Notice Date...................................... Section 4.01(a)(i)
Tag-Along Notice Period.................................... Section 4.01(a)(ii)
Tag-Along Offer............................................ Section 4.01(a)(i)
Tag-Along Offer Price...................................... Section 4.01(a)(i)
Tag-Along Offer Notice..................................... Section 4.01(a)(i)
Tag-Along Purchaser........................................ Section 4.01(a)(i)
Tag-Along Ratio............................................ Section 4.01(b)(i)
Tag-Along Shares........................................... Section 4.01(a)(i)
Transfer Date.............................................. Section 4.01(a)(iii)
Underwriter's Lock-Up Period............................... Section 2.11
Violation.................................................. Section 2.07
Voting Parties............................................. Section 3.01(a)
Voting Shares.............................................. Section 3.01(a)
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ARTICLE 2
REGISTRATION RIGHTS
SECTION 2.01. Request for Registration. (a) If the Company shall
receive a written request from Holders of Registrable Securities that the
Company file a registration statement under the Securities Act covering the
registration of a number of shares equal to at least 3 million shares of Common
Stock (or a lesser number if such number represents a majority of the
Registrable Securities then outstanding), then the Company shall, within ten
(10) days of the receipt thereof, give written notice of such request to all
Holders of Registrable Securities. Each such Holder shall have twenty (20) days
to notify the Company in accordance with the provisions of Section 5.09 of the
number of Registrable Securities such Holder proposes to sell. The Company
shall, subject to the limitations of subsections 2.01(b), 2.01(c) and 2.01(d),
use its best efforts to effect as soon as practicable the registration under the
Securities Act of all Registrable Securities that the Holders request to be
registered. Unless the Holders of a majority of the Registrable Securities to be
registered shall consent in writing, no other party (including the Company)
shall be permitted to offer securities under such demand registration.
(b) If the Holders initiating the registration request hereunder
("INITIATING HOLDERS") intend to distribute the Registrable Securities covered
by their request by means of an underwriting, they shall so advise the Company
as part of their request made pursuant to this Section 2.01 and the Company
shall include such information in the written notice referred to in subsection
2.01(a). The book-running managing underwriter and any additional investment
bankers and managers to be used in connection with the offering will be selected
by the Company; provided, that such managing underwriter and additional
investment bankers and managers shall be reasonably acceptable to a majority in
interest of the Initiating Holders. In such event, the right of any Holder to
include Registrable Securities in such registration shall be conditioned upon
such Holder's participation in such underwriting and the inclusion of such
Holder's Registrable Securities in the underwriting (unless otherwise mutually
agreed by a majority in interest of the Initiating Holders and such Holder) to
the extent provided herein. Notwithstanding any other provision of this Section
2.01, if the managing underwriter or underwriters advise the Initiating Holders
in writing that the size of the offering that the Holders, the Company and such
other persons (if any) intend to make is such that the success of the offering
would be materially and adversely affected by inclusion of all of the
Registrable Securities requested to be included, then the number of shares of
Registrable Securities to be included
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in the underwriting shall be reduced pro rata (according to the Registrable
Securities proposed for the registration) to the extent necessary; provided,
however, that the Company shall first reduce entirely all securities other than
Registrable Securities prior to reducing the number of shares of Registrable
Securities to be included in such underwriting.
(c) The Company shall not be obligated to effect more than one demand
registration pursuant to this Section 2.01 in any six-month period. Except as
set forth in Section 2.05, a registration will not be counted as a registration
pursuant to Section 2.01 until it has become effective.
(d) Notwithstanding the foregoing,
(i) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.01, a certificate signed by
the Chief Executive Officer of the Company stating that (A) in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration statement
to be filed and it is therefore essential to defer the filing of such
registration statement, or (B) the Company is in possession of material
non-public information, the Company shall have the right to defer taking action
with respect to such filing for a period of not more than 90 days after receipt
of the request of the Initiating Holders; provided, however, that the Company
may not utilize this right more than once in any twelve-month period; and
(ii) if the Company informs the Initiating Holders that the
Company has filed, or is in the process of preparing to file, a Registration
Statement for an underwritten offering that includes shares to be sold for the
benefit of the Company, the filing requested by the Initiating Holders shall be
delayed until a date no sooner that 120 days after consummation of such
underwritten offering provided that the Company diligently pursues such
registration at all times.
SECTION 2.02. Company Registration. (a If (but without any obligation
to do so) the Company proposes to register any of its equity securities under
the Securities Act, in connection with the Public Offering by the Company of
such securities solely for cash the Company shall, at such time, promptly (but
in no event less than 30 days before the filing date) give each Holder of
Registrable Securities written notice of such registration and such notice shall
offer such Holders the opportunity to register such number of shares of
Registrable Securities as such Holder may request. Upon the written request of
each Holder given within twenty (20) days after delivery of such notice by the
Company in
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accordance with Section 5.09, the Company shall, subject to the provisions of
Section 2.02(b), cause to be registered under the Securities Act all of the
Registrable Securities that each such Holder has requested to be registered.
(b) If the underwriters determine in their sole discretion that the
total amount of securities, including Registrable Securities, requested by
Holders to be included in any Public Offering pursuant to Section 2.02 would
materially and adversely affect the success of such offering, then the Company
shall be required to include in the offering, in addition to any shares to be
registered by the Company, only that number of such Registrable Securities that
the underwriters determine in their sole discretion would not materially and
adversely affect the success of such offering (the Registrable Securities so
included to be apportioned pro rata among the selling Holders according to the
total amount of securities proposed to be included therein owned by each selling
Holder or in such other proportions as shall mutually be agreed to by such
selling Holders).
SECTION 2.03. Obligations of the Company. Whenever required under this
Article 2 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with respect
to such securities and use its best efforts to cause such registration statement
to become effective, and, upon the request of the Holders of a majority of the
Registrable Securities registered thereunder, keep such registration statement
effective for not less than one hundred twenty (120) days (or such shorter
period as may be necessary to complete the distribution of such Registrable
Securities).
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Make available to the Holders prior to filing a registration
statement or prospectus or any amendment or supplement thereto, copies of such
registration statement, prospectus or any amendment or supplement thereto as
proposed to be filed, and thereafter, furnish to such Holders such number of
copies of such registration statement (in each case including all exhibits
thereto and documents incorporated by reference therein), the prospectus,
(including a preliminary prospectus, in conformity with the requirements of the
Securities Act), and such other documents as they may reasonably request in
order to facilitate the disposition of Registrable Securities owned by them.
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(d) Use its best efforts to (i) register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions in the United States as shall be reasonably requested
by the Holders 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 Holders to consummate the disposition of the Registrable Securities
owned by them; provided that the Company shall not be required in connection
therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
(e) In the event of any underwritten Public Offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering. Each Holder participating
in such underwriting shall also enter into and perform its obligations under
such an agreement.
(f) Notify each Holder participating in such registration at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of an event requiring the preparation of a
supplement or amendment to such prospectus, so that as thereafter delivered to
the purchasers of Registrable Securities the prospectus included in such
registration statement will not include an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they are made, not misleading, and promptly make available to each such
Holder any such supplement or amendment.
(g) Use its best efforts to furnish, at the request of any Holder
participating in a registration pursuant to this Article 2, on the date that the
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant to this Article 2, if such securities are being
sold through underwriters, or, if such securities are not being sold through
underwriters, on the date that the registration statement with respect to such
securities becomes effective, (iii) an opinion, dated such date, of the counsel
representing the Company for the purposes of such registration, in form and
substance as is customarily given to underwriters in an underwritten public
offering, addressed to the underwriters, if any, and to the Holders
participating in such registration and (iv) a letter dated such date, from the
independent certified public accountants of the Company, in form and substance
as is customarily given by independent
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certified public accountants to underwriters in an underwritten public offering,
addressed to the underwriters, if any.
(h) After the filing of the registration statement, notify each selling
Holder of Registrable Securities covered by such registration statement of any
stop order issued or threatened by the SEC and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
(i) Make available at reasonable times for inspection by any selling
Holder of such Registrable Securities, any underwriter participating in any
disposition pursuant to such registration statement, and any attorney,
accountant or other professional retained by any such Holder or underwriter in
connection with such registration (collectively, the "INSPECTORS"), (provided,
that any Inspector shall first have executed a confidentiality agreement in form
and substance reasonably satisfactory to the Company,) all financial and other
records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement.
(j) Use its best efforts to comply with all applicable rules and
regulations of the SEC, 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.
(k) Use its best efforts to cause all such Registrable Securities to be
listed on each securities exchange on which similar securities issued by the
Company are then listed and, if not so listed, to be listed on the NASD
automated quotation system and, if listed on the NASD automated quotation
system, use its best efforts to secure designation of all such Registrable
Securities covered by such registration statement as a NASDAQ "national market
system security" within the meaning of Rule 11Aa2-1 of the Securities Act or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD. In the event the Company lists Registrable Securities
pursuant to the foregoing sentence, the Company shall also, if so requested by
any Holder, list, in the same manner, any shares of Common Stock then owned by
the Holders which, at the
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time of such listing, are able to be sold without restriction pursuant to Rule
144(k) (or any successor rule) of the Securities Act or are otherwise freely
transferable.
SECTION 2.04. Furnish Information It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Article 2
with respect to the Registrable Securities of any selling Holder that such
Holder shall furnish to the Company such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such
securities.
SECTION 2.05. Expenses of Demand Registration. All expenses other than
underwriting discounts and commissions incurred in connection with
registrations, filings or qualifications for the first three registrations
pursuant to Section 2.01, including (without limitation) all registration,
filing and qualification fees, printers' and accounting fees, fees and
disbursements of counsel for the Company, and the reasonable fees and
disbursements of one counsel for the selling Holders, shall be borne by the
Company; provided, however, that the Company shall not be required to pay for
any expenses of any registration begun pursuant to Section 2.01 if the
registration request is subsequently withdrawn at the request, in the case of a
registration pursuant to Section 2.01, of the Holders of a majority of the
Registrable Securities to be registered (in which case all participating Holders
shall bear such expenses), unless such Holders, agree to forfeit their right to
one demand registration pursuant to Section 2.01, (for which the Holders'
expenses otherwise would have been borne by the Company pursuant to this Section
2.05); provided, further, however, that if a Material Adverse Change has
occurred since the date of the request by the Initiating Holders and the
Initiating Holders have withdrawn their request with reasonable promptness
following disclosure by the Company of such Material Adverse Change, then the
Holders shall not be required to pay any of such expenses but the Company shall
pay all such expenses and such payment shall not reduce the number of
registrations pursuant to Section 2.01 for which the Company is obligated to pay
registration expenses hereunder. All such expenses in respect of each other
registration pursuant to Section 2.01 shall be borne by the Holders, and, if
other Persons participate, such other Persons pro rata in proportion to the
number of shares being sold by each Holder and other Persons in such
registration.
SECTION 2.06. Expenses of Company Registration. The Company shall bear
and pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 2.02 for each Holder (which right may be assigned as
provided in Section 5.02), including (without limitation) all registration,
filing and qualification fees,
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printer's and accounting fees relating or apportionable thereto and the
reasonable fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to such Registrable Securities.
SECTION 2.07. Indemnification. In the event any Registrable Securities
are included in a registration statement under this Article 2:
(a) To the extent permitted by law, the Company will indemnify and hold
harmless each Holder, any underwriter (as defined in the Securities Act) of
Registrable Securities for such Holder and each person, if any, who controls
such Holder or underwriter within the meaning of the Securities Act or the
Exchange Act, against any losses, claims, damages, or liabilities (joint or
several) to which they may become subject under the Securities Act, or the
Exchange Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "VIOLATION"): (v) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus (unless cured in the final prospectus) or final
prospectus contained therein or any amendments or supplements thereto, (vi) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(vii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law; and the
Company will pay to each such Holder, underwriter or controlling person, as
incurred, any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 2.07(a) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability, or action if such settlement is effected without
the consent of the Company (which consent shall not be unreasonably withheld),
nor shall the Company be liable in any such case for any such loss, claim,
damage, liability, or action to the extent that such untrue statement or
omission or alleged untrue statement or omission is based upon written
information furnished to the Company expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will severally
but not jointly indemnify and hold harmless the Company, each of its directors,
each of its officers who has signed the registration statement, each person, if
any, who controls the Company within the meaning of the Securities Act, any
underwriter,
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any other Holder selling securities in such registration statement and any
controlling person of any such underwriter or other Holder against any losses,
claims, damages, or liabilities to which any of the foregoing persons may become
subject, under the Securities Act, or the Exchange Act or other federal or state
law, but only with reference to losses, claims, damages, or liabilities (or
actions in respect thereto) caused by written information furnished by such
Holder expressly for use in any registration statement or prospectus relating to
the Registrable Securities; and each such Holder will severally but not jointly
pay, as incurred, any legal or other expenses reasonably incurred by any person
intended to be indemnified pursuant to this subsection 2.07(b), in connection
with investigating or defending any such loss, claim, damage, liability, or
action; provided, however, that the indemnity agreement contained in this
subsection 2.07(b) shall not apply to amounts paid in settlement of any such
loss, claim, damage, liability or action if such settlement is effected without
the consent of the Holder, which consent shall not be unreasonably withheld;
provided that, in no event shall any indemnity under this subsection 2.07(b)
exceed the net proceeds from the offering received, or which would have been
received, by such Holder.
(c) Promptly after receipt by an indemnified party under this Section
2.07 of notice of the commencement of any action (including any governmental
action), such indemnified party will, if a claim in respect thereof is to be
made against any indemnifying party under this Section 2.07, deliver to the
indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties that may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the
indemnifying party would be inappropriate due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding.
(d) Each indemnified party and its officers, employees and agents shall
cooperate with each indemnifying party in the defense of any claims, losses,
damages or liabilities or actions in respect thereof. No indemnifying party
shall, without the prior written consent of the indemnified party, which shall
not be unreasonably withheld, 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,
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unless such settlement includes an unconditional release of such indemnified
party from all liability arising out of such proceeding.
(e) The obligations of the Company and the Holders under this Section
2.07 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Article 2, and otherwise.
SECTION 2.08. Contribution. (a) If the indemnification provided for in
this Article 2 is 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 selling Holders on the one hand and the underwriters on the other, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the selling Holders on the one hand and the underwriters on the
other from the offering of the 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 the
selling Holders on the one hand and of the underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company on the one hand and each selling
Holder on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each selling Holder in connection with such
statements or omissions, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the selling Holders on the one
hand and the 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 the selling Holders bear to the total underwriting discounts and commissions
received by the underwriters, in each case as set forth in the table on the
cover page of the prospectus. The relative fault of the Company and the selling
Holders on the one hand and of the 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 the selling
Holders or by the underwriters. The relative fault of the Company on the one
hand and of each selling Holder on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of 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.
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The Company and the selling Holders agree that it would not be just and
equitable if contribution pursuant to this Section 2.08 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation that 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 2.08, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no selling Holder
shall be required to contribute any amount in excess of the amount by which the
net proceeds received by such selling Holder exceeds the amount of any damages
that such selling Holder 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. The selling Holders'
obligations to contribute pursuant to this Section 2.08 are several not joint,
and each selling Holder's obligation shall be pro rated based on the portion of
the total proceeds of the offering received by all the selling Holders received
by such selling Holder.
(b) The obligations of the Company and the Holders under this Section
2.08 shall survive the completion of any offering of Registrable Securities in a
registration statement under this Article 2, and otherwise.
SECTION 2.09. Reports under the Exchange Act. With a view to making
available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other successor or similar rule or regulation of the SEC,
the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times more
than ninety (90) days after the effective date of the first registration
statement filed by the Company for the offering of its securities to the general
public;
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(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange Act;
and
(c) furnish to any Holder so long as such Holder owns any Registrable
Securities forthwith upon request (i) a written statement by the Company that it
has complied with the reporting requirements of SEC Rule 144 (at any time after
ninety (90) days after the effective date of the first registration statement
filed by the Company), the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements), (ii) a copy of the
most recent annual or quarterly report of the Company and such other reports and
documents so filed by the Company, and (iii) such other information as may be
reasonably requested in availing any Holder of any rule or regulation of the SEC
that permits the selling of any such securities without registration.
SECTION 2.10. Limitations on Subsequent Registration Rights. The
Company shall not, without the prior written consent of the Holders of a
majority of the Registrable Securities, enter into any agreement with any holder
or prospective holder of any securities of the Company that would allow such
holder or prospective holder (a) to include such securities in any registration
filed under Section 2.01 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 his securities will not
reduce the amount of the Registrable Securities of the Holders that is included
or (b) to make a demand registration that could result in such registration
statement being declared effective prior to the date set forth in subsection
2.01(a) or within one hundred twenty (120) days of the effective date of any
registration effected pursuant to Section 2.01 and for which a demand was made
on the Company prior to the demand of such other securityholder.
SECTION 2.11. Lock-Up. During the period (the "UNDERWRITER'S LOCK-UP
PERIOD") specified by the Company and an underwriter of Common Stock or other
equity securities of the Company, which period shall not exceed 180 days,
following the effective date of a registration statement of the Company with
respect to such securities filed under the Securities Act, each Holder shall
not, to the extent requested by the Company and such underwriter, directly or
indirectly sell, offer to sell, contract to sell (including, without limitation,
any short sale), grant any option to purchase or otherwise transfer or dispose
of (other than to donees who agree to be similarly bound) any equity securities
of the Company at any time during such period except the securities included in
such registration. The Company agrees, to the extent requested by an underwriter
of Registrable Securities being registered pursuant to Section 2.01, (i) not to
effect any public sale or public distribution of any equity securities similar
to such
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Registrable Securities, or any securities convertible into or exchangeable or
exercisable for such Registrable Securities, during the 14 days prior to, and
during the 90-day period beginning on, the effective date of any registration
statement (except to the extent permitted in accordance with the terms hereof)
or the commencement of a public distribution of Registrable Securities; and (ii)
that any agreement entered into after the date thereof pursuant to which the
Company issues or agrees to issue any privately placed equity securities shall
contain a provision under which holders of such securities agree not to effect
any public sale or distribution of any such securities during the periods
described in (i) above, in each case including a sale pursuant to Rule 144 under
the Securities Act (except as part of any such registration, if permitted);
provided, however, that the provisions of this Section 2.11 shall not prevent
the conversion or exchange of any securities pursuant to their terms into or for
other securities.
SECTION 2.12. Termination of Registration Rights. The provisions of
this Article 2 (except for the provisions of Sections 2.07 and 2.08) shall
terminate and be of no further effect on June 8, 2005.
ARTICLE 3
VOTING AGREEMENT
SECTION 3.01. Agreement to Vote for Directors. (a) Each of the MSDW
Shareholders, FERSA, TDCGL and Xxxx X. Xxxxxxx (collectively referred to herein
as the "VOTING PARTIES") agree to vote all of their shares of the Company's
Voting Capital Stock now or hereafter owned by them, or that they have the right
to vote (the "VOTING SHARES"), at any regular or special meeting of stockholders
of the Company, or in lieu of any such meeting, to give their written consent,
in the election or removal of directors of the Company so as to elect, one
person designated by MSLEF (the "MSLEF DESIGNEE"), one person designated by MSCP
(the "MSCP DESIGNEE"), one person designated by MSVCF II (the "MSVCF II
DESIGNEE"), one person designated by MSVCF (the "MSVCF DESIGNEE"), and at the
direction of the MSDW Shareholders, up to that number of designees of the MSDW
Shareholders ("MSDW DESIGNEES") that will result in the MSDW Designees
constituting such percentage of the members of the Board of Directors of the
Company as the MSDW Shareholders shall be entitled to designate in accordance
with subsection 3.01(c) hereof. The Voting Parties agree to vote their Voting
Shares for the removal (including removal for no cause) of any director upon
instructions to that effect from the party who designated such director,
provided a replacement is concurrently designated by such party and elected.
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(b) (i) If requested by any of the Holders entitled to designate a
director pursuant to Section 3.01(a) (each, a "DESIGNATING PARTY") the Voting
Parties hereby agree to call, or cause the appropriate officers and directors of
the Company to call, a special meeting of stockholders of the Company and to
vote all of the Voting Shares owned or held of record by such Voting Parties
for, or to take all actions by written consent in lieu of any such meeting
necessary, to increase the number of directors of the Board of Directors to
enable the Voting Parties to elect the designee of such Designating Party or to
cause the removal (with or without cause) of any such designee if (but only if)
such Designating Party requests such director's removal for any reason. Any
Designating Party shall have the right to designate a new nominee in the event
any designee of such Designating Party shall be so removed or shall vacate his
directorship for any reason.
(ii) In the event of the resignation or removal of any
director elected to the Board of Directors who is not a designee of any
Designating Party, the vacancy created by such removal or resignation
shall be filled by action of the remaining members of the Board of
Directors, provided that only such number of MSDW Designees as shall
not constitute a majority of such remaining members of the Board of
Directors shall be permitted to participate in any such action.
(c) (i) The MSDW Shareholders shall have the right to designate and
have elected pursuant hereto, subject to the provisions of Section 3.01(c)(ii),
the number of directors which constitutes a percentage representation on the
Board of Directors equal to the MSDW Shareholders' aggregate percentage
ownership of the outstanding Common Stock of the Company, rounded down to the
next lowest whole number. If necessary in order to give effect to the
requirements of the preceding sentence in a manner consistent with the
requirements of Section 3.01(c)(ii), the parties agree to take all action
necessary to cause the number of members of the Board of Directors to be
increased, and the vacancies created thereby shall be filled by action of the
remaining members of the Board of Directors; provided, that only such number of
MSDW Designees as shall represent the MSDW Shareholders' aggregate percentage
ownership of the outstanding Common Stock of the Company shall be permitted to
participate in such action.
The parties agree to take all necessary action so that, notwithstanding
any other provision of this Agreement, at no time shall Persons who are
officers, directors, Affiliates or employees of any MSDW Shareholder or of any
Affiliate of any MSDW Shareholder constitute more than one-half of the members
of the Board of Directors of the Company.
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(ii) MSLEF, MSCP, MSVCF, and MSVCF II shall each maintain its
right to designate and have elected pursuant hereto one member of the
Board of Directors as set forth in paragraph (a) above for so long as
the total number of shares of Common Stock of the Company held by each
of them constitutes at least 7.5% of the outstanding Common Stock of
the Company provided that any of such Persons shall continue to have
such right so long as its ownership exceeds 2% of the Company's
outstanding Common Stock if such Person shall reasonably determine that
the continued possession of such right is necessary or desirable in
order for such Person to qualify as a "venture capital operating
company" within the meaning of Department of Labor Regulation Section
2510.3-101, as amended.
(d) For so long as the MSDW Merchant Banking Funds hold at least 7.5%
of the Company's Common Stock, the Company will not amend the Restated
Certificate or the Company's Bylaws to eliminate the right of stockholders of
the Company to take action upon written consent without a meeting, without prior
notice and without a vote as provided in Section 11 of the Company's Bylaws, and
each of the Voting Parties agrees to take all action necessary to prevent any
such amendment.
(e) The Holders, if so requested by the MSDW Shareholders, shall take
all actions necessary to ensure that the Board of Directors of the Company shall
consist of at least eight members, and, in the event the number of members of
the Board of Directors is increased, the total number of members of the Board of
Directors shall, if requested by the MSDW Shareholders, be an even number.
SECTION 3.02. Agreement of Voting Parties to Vote. The Voting Parties
agree to vote their Voting Shares for the election of directors in accordance
with Section 3.01 and as directed by the Secretary of the Company, in the manner
set forth below at any regular or special meeting of stockholders of the
Company, or in lieu of any such meeting, to give their written consent. The
Secretary of the Company shall notify the Voting Parties as to any such meeting
or written consent. The Secretary shall then give uniform instructions to each
Voting Party to vote its Voting Shares so as to accomplish the purposes of
Section 3.01 and copies of all such instructions shall be sent to each Voting
Party. To the extent any Voting Party fails to cast a vote with respect to any
of its Voting Shares, such Voting Party hereby irrevocably appoints the
Secretary of the Company the proxy of such Voting Party, with full power of
substitution, to vote in accordance with this Agreement all of the Voting Shares
that the undersigned is entitled to vote. Each such proxy shall be considered
coupled with an interest and is given by each
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Voting Party in consideration of the proxy of the other Voting Parties hereto
and of the other covenants set forth herein.
SECTION 3.03. Specification of Designees. In the event of an action for
the purpose of electing directors, the Company shall provide written notice
thereof to be delivered to the Voting Parties not later than thirty (30) days
before the date on which the Board's nominations are to be made (the "NOMINATION
DATE"). Within twenty-five (25) days of receipt of such notice from the Company,
the Voting Parties shall notify the Company of the identity of their respective
Designees. Such time periods may be shortened upon receipt of a written waiver
from all Voting Parties, provided the Company has been notified of the identity
of their respective Designees. Promptly upon receipt of notification of the
Designees, the Company shall deliver written notice of such designees to each of
the Voting Parties (whether by means of notice of meeting or otherwise).
SECTION 3.04. Covenant of Company. Other than as required by law, the
Company hereby agrees and covenants to each party hereto that it will not give
effect to any votes cast for the purpose of electing directors in contravention
of this Agreement.
SECTION 3.05. Stock Splits, Stock Dividends, Etc. In the event of any
stock split, stock dividend, recapitalization, reorganization, or the like, any
securities issued with respect to the Voting Shares shall become subject to this
Agreement.
SECTION 3.06. Committees. So long as the MSDW Shareholders hold
securities representing at least 10% of the outstanding Common Stock of the
Company, the Company shall establish and maintain compensation and audit
committees of its Board of Directors, each consisting of up to four directors.
Those members of the Board of Directors who are not MSDW Designees shall each be
entitled to designate one director on each such committee and the MSDW
Shareholders shall be entitled to designate up to two directors on each such
committee. All action taken by such committees shall require the affirmative
vote of a majority of the directors of such committee. The Company hereby
covenants and agrees that all compensation matters shall be presented to and
approved by such compensation committee.
ARTICLE 4
RIGHTS AND OBLIGATIONS WITH RESPECT TO TRANSFERS
SECTION 4.01. Tag-Along Rights. (a) (i) If the MSDW Merchant Banking
Funds propose to transfer in a transaction or series of related transactions
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(other than pursuant to Rule 144 under the Securities Act) a number of shares of
Common Stock which, together with all other Common Stock previously transferred
by the MSDW Merchant Banking Funds, is greater than 10% of the number of shares
of Common Stock owned by the MSDW Merchant Banking Funds as of the date hereof
(collectively, the "TAG-ALONG SHARES") to one or more Third Parties (a
"TAG-ALONG PURCHASER") pursuant to a bona fide offer to purchase (a "TAG-ALONG
OFFER"), the MSDW Merchant Banking Funds shall provide written notice (the
"TAG-ALONG OFFER NOTICE") of such Tag-Along Offer to the Company and each
Holder, in the manner set forth in this Section 4.01 (the date of receipt of
such notice by each such party being the "TAG-ALONG NOTICE DATE"). The Tag-Along
Offer Notice shall identify the Tag-Along Purchaser, the number of shares of
Common Stock proposed to be purchased by the Tag-Along Purchaser, the Tag-Along
Ratio (as defined in Section 4.01(b)(i)), the consideration offered per share of
Common Stock (the "TAG-ALONG OFFER Price") and any other material terms and
conditions of the Tag-Along Offer and, in the case of a Tag-Along Offer in which
the Tag-Along Offer Price consists in part or in whole of consideration other
than cash, such information relating to such consideration as the Company may
reasonably request in order to evaluate such non-cash consideration.
(ii) The Tag-Along Offer Price paid to any Holder shall be not
less than the highest price paid per share of Common Stock to the MSDW
Merchant Banking Funds pursuant to the Tag-Along Offer and the
remaining terms shall be no less favorable than those granted to the
MSDW Merchant Banking Funds. Each of the Holders that wishes to accept
the Tag-Along Offer ("PARTICIPATING HOLDER"), shall, within 15 Business
Days after the Tag-Along Notice Date (the "TAG-ALONG NOTICE PERIOD"),
provide the MSDW Merchant Banking Funds with an irrevocable written
notice (a "TAG-ALONG NOTICE") specifying the number of shares of Common
Stock that such Holder wishes to transfer, and shall simultaneously
provide a copy of such Tag-Along Notice to the Company.
(iii) Not less than five Business Days prior to the proposed
date of any sale pursuant to a Tag-Along Offer (the "TRANSFER DATE"),
which date may not be earlier than 10 Business Days after the
termination of the Tag-Along Notice Period, the MSDW Merchant Banking
Funds shall notify the Company and each Participating Holder of the
Transfer Date. Not less than two Business Days prior to the Transfer
Date, each Participating Holder shall deliver to the MSDW Merchant
Banking Funds the Duly Endorsed certificate or certificates
representing the shares of Common Stock to be transferred pursuant to
such offer by the Holders, together with a limited power-of-attorney
authorizing the MSDW
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Merchant Banking Funds to transfer such shares of Common Stock pursuant
to the terms of the Tag-Along Offer and the provisions hereof and all
other documents required to be executed in connection with such
Tag-Along Offer.
(b) (i) Each Participating Holder shall have the right to transfer (and
the MSDW Merchant Banking Funds shall reduce the number of their shares of
Common Stock to be sold by a corresponding amount), pursuant to the Tag-Along
Offer, a number of shares of Common Stock equal to the product of the total
number of shares of Common Stock offered to be purchased by the Tag-Along
Purchaser as set forth in such Tag-Along Offer multiplied by a fraction (the
"TAG-ALONG RATIO"), the numerator of which shall be the aggregate number of
shares of Common Stock owned by such Holder and the denominator of which shall
be the number of shares of Common Stock owned by the Participating Holders and
the MSDW Merchant Banking Funds.
(ii) If at the termination of the Tag-Along Notice Period any
Holder shall not have accepted the Tag-Along Offer, such Holder will be
deemed to have waived any and all of its rights under this Section 4.01
with respect to the transfer of any of its shares of Common Stock
pursuant to such Tag-Along Offer (as set forth in the relevant
Tag-Along Offer Notice).
(c) The MSDW Merchant Banking Funds shall have 90 days from the
conclusion of the Tag-Along Notice Period in which to consummate the transfer
contemplated by the Tag-Along Offer to the Tag-Along Purchaser at the price and
on the terms contained in the Tag-Along Offer Notice. Any material change in the
terms of the Tag-Along Offer (it being understood that any reduction in price is
material) will require the submission of a new Tag-Along Offer Notice and the
recommencement of compliance with all of the other applicable provisions of this
Section 4.01. If, at the end of such 90-day period, the MSDW Merchant Banking
Funds have not completed the transfer contemplated by the Tag-Along Offer
Notice, the right of the MSDW Merchant Banking Funds to effect such transfer
shall terminate, and the Tag-Along Shares subject to such proposed transfer
shall again be subject to all the restrictions on sale or other disposition and
other provisions contained in this Agreement.
(d) Substantially concurrently with the consummation of the transfer of
shares of Common Stock pursuant to the Tag-Along Offer, the MSDW Merchant
Banking Funds shall notify the Holders, shall remit to each of the Holders the
total sales price specified in the Tag-Along Offer Notice of the shares of
Common Stock of such Holder transferred pursuant thereto, and shall furnish such
other
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evidence of such transfer (including the time of completion) and the terms
thereof as may be reasonably requested by such Holders.
(e) No Holder shall be required to make any representation or warranty
in connection with the Tag-Along Offer other than as to such Holder's ownership
and authority to transfer, free of liens, claims and encumbrances, the shares of
Common Stock proposed to be transferred by it.
SECTION 4.02. Certain Other Transfers. Notwithstanding any other
provision of this Agreement, each Management Holder shall be permitted to
Transfer by means of gift or bequest shares of Common Stock to members of the
Immediate Family of such Management Holder ("FAMILY TRANSFEREE"), provided that
(i) any such Family Transferee shall agree to be bound by the terms of this
Agreement applicable to the shares of Common Stock so transferred and (ii) the
terms of any such transfer shall provide that any actions required or permitted
to be taken hereunder (including the delivery of notices) with respect to the
shares so transferred shall be permitted to be taken only by the transferor, as
agent for the transferee, and (iii) no such Transfer shall relieve any such
Management Holder of any obligations under this Agreement with respect to any
shares so transferred.
SECTION 4.03. Further Assurances. To the extent that the exercise of
any right or the performance of any obligation by any Holder under Section 4.01
shall be prohibited by law, such Holder and the other parties hereto agree to
cooperate in good faith in any reasonable and lawful alternative arrangements
designed to provide such Holder or such other parties, as the case may be, the
economic benefit from the exercise of such right or the performance of such
obligation, provided that no party shall enter into any such arrangement that
would, in the reasonable judgment of the Company, be materially adverse to the
business of the Company.
ARTICLE 5
MISCELLANEOUS
SECTION 5.01. Information. The Company hereby agrees to provide each
Holder, at such times as the Company is not subject to Sections 13 or 15 of the
Exchange Act, such quarterly or annual financial information as it would have
been required to file with the SEC if it had been subject to such provisions.
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SECTION 5.02. Successors and Assigns. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement. The terms and conditions of this Agreement
shall inure to the benefit of and be binding upon the respective successors and
assigns of the parties, except as otherwise provided below or elsewhere in this
Agreement:
(a) Rights of Holders of Registrable Securities under Article 2 may be
assigned or transferred by a Holder (with all related obligations) to a
transferee or assignee of such securities, provided, however, that after giving
effect to such assignment or transfer, such transferee (if not already a Holder
prior to such transfer or assignment) holds at least 1,000,000 shares of
Registrable Securities, provided, further, any Management Holder may assign or
transfer his or her respective rights under Article 2 to any assignee or
transferee of Registrable Securities owned by such Management Holder if such
assignee or transferee is a member of the Immediate Family of such Management
Holder or a trust for the benefit of any such person.
(b) The rights and obligations of FERSA under this Agreement shall,
upon a transfer of FERSA Shares by FERSA to an Affiliate of the Pulsar Control
Shareholders, become the rights and obligations of such transferee (without
regard to Sections 5.02(d) and 5.02(e) hereof).
(c) The right to designate directors to the Board of Directors of the
Company granted under Article 3 shall not be transferable.
(d) Any transferee or assignee (including any transferees or assignees
of the MSDW Merchant Banking Funds and FERSA) (other than in any transfer or
sale in a Public Offering, pursuant to Rule 144 under the Securities Act, or on
a national securities exchange or automated quotation system) that, after giving
effect to such transfer or assignment, shall own at least 1,000,000 shares of
Common Stock, shall be subject to the provisions of Sections 2.11, 5.01 and 5.04
hereof.
(e) Any assignee or transferee of any Holder (other than in any
transfer or sale in a Public Offering, pursuant to Rule 144 under the Securities
Act, or on a national securities exchange or automated quotation system) shall
be required, prior to the effective date of such transfer, to execute an
agreement in form and substance satisfactory to the Company by which such
transferee shall agree to assume the obligations under this Agreement of the
transferor to the extent applicable and specifying the rights under this
Agreement to which such
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transferee shall be entitled, and thereupon such transferee shall be deemed to
be a "HOLDER" for purposes of this Agreement, except that, a transferee or
assignee that, after giving effect to such transfer, shall subject to Section
5.11, own less than 1,000,000 shares of Common Stock shall not be deemed a
"HOLDER" for purposes of this Agreement.
(f) The Company shall not permit the transfer of any shares of voting
capital stock on its books or issue a new certificate representing any such
shares, otherwise than in compliance with the terms of this Agreement.
SECTION 5.03. Withdrawal and Termination. (a) Any Holder that (i) shall
own less than 3% of the shares of Common Stock then outstanding, and (ii) is not
a Management Holder, may elect to cease to be a Holder for any and all purposes
of this Agreement by giving notice to the Company of such Holder's intention to
withdraw in accordance with the provision of Section 5.09 hereof.
(b) This Agreement shall terminate automatically as to any Management
Holder upon the termination of the employment with the Company of such
Management Holder.
(c) This Agreement shall terminate automatically as to any other Holder
at such time as such Holder shall cease to own any shares of Common Stock.
SECTION 5.04. Amendments. Any provision of this Agreement may be
amended and the observance thereof may be waived (either generally or in a
particular instance and either retroactively or prospectively), with the written
consent of the Company and the Holders of a majority of the shares of Voting
Common Stock then owned by the Holders; provided, however, that (i) any
amendment or waiver of Article 2 hereof (including definitions incorporated
therein) that treats any Holder in a manner less favorable than other Holders
shall only be effective as to the Holder so treated with its or their prior
written consent; (ii) any amendment pursuant to clause (i) above that treats any
Holder in a manner less favorable than other Holders shall only be effective as
to the Holder so treated with its or their prior written consent; (iii) Section
3.01 (including definitions incorporated therein) may only be amended to reduce
or eliminate a Person's representation on the Company's Board of Directors with
the consent of the Person adversely affected; (iv) any amendment to Sections
5.11(a), 5.11(b) and 5.11(c) shall require the consent of FERSA, the MSDW
Shareholders and First Plaza Group, respectively; and (v) if under any
provisions of this Section 5.04 the amendment or waiver of any provision of this
Agreement requires the consent of a Holder or of the Holders of a specified
number of shares of Voting Common Stock, such provision may only be amended or
waived with the consent
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of such Holder or Holders, as the case may be. Notwithstanding the foregoing, no
amendment or waiver of any provision of this Agreement shall require the consent
of a Holder whose rights under such provision have expired by their terms.
SECTION 5.05. References to Shares of Common Stock. Each reference to a
number of shares of Common Stock (or a percentage) of the Company owned by a
Holder made for the purpose of determining the rights and obligations of such
Holder with respect to such shares shall be adjusted to reflect stock splits,
stock dividends, recapitalizations and similar events.
SECTION 5.06. Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York without reference to the
principles of conflicts of law thereunder.
SECTION 5.7. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
SECTION 5.08. Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
SECTION 5.09. Notices. Unless otherwise provided, any notice required
or permitted under this Agreement shall be given in writing and shall be deemed
effectively given upon personal delivery to the party to be notified or 5 days
after deposit with the United States Post Office, by registered or certified
mail, postage prepaid and addressed to the party to be notified at the address
indicated for such party on the signature page hereof, or at such other address
as such party may designate by ten (10) days' advance written notice to the
other parties; provided, however, that notice to parties residing outside the
United States shall be deemed given only upon personal delivery via telex,
telegram or telefax and after confirmation of receipt thereof.
SECTION 5.10. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
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SECTION 5.11. Aggregation of Stock.
(a) All shares of Common Stock held or acquired by FERSA and any
Affiliate of the Pulsar Control Shareholders to which FERSA transfers any FERSA
Shares shall be aggregated together for the purpose of determining the
availability of any rights of FERSA under this Agreement.
(b) For purposes of determining whether such Person is a "Holder" under
this Agreement, all the shares of Common Stock held or acquired by the MSDW
Merchant Banking Funds shall be aggregated and the shares held or acquired by
the MSDW Venture Capital Funds shall be aggregated.
(c) For purposes of determining whether such Person is a "HOLDER" under
this Agreement, all shares of Common Stock held by First Plaza Group and a
transferee or assignee of First Plaza Group that is an Affiliate of the First
Plaza Group shall be aggregated.
SECTION 5.12. Plan Assets. The Company is and will be an Operating
Company and none of the underlying assets of any of the Company or its
subsidiaries are or will be deemed to be Plan Assets with respect to First Plaza
Group or any Employee Benefit Plan which owns stock of the Company or which is
affiliated with First Plaza Group and/or any other owner of the stock of the
Company.
SECTION 5.13. Other Agreements; Transactions with Affiliates. (a) There
are no agreements relating to the Company or to the investment of any Holder
that beneficially owns an aggregate of at least 1,000,000 shares of Common Stock
in the Company (a "MAJOR HOLDER") between the Company or any of the MSDW
Shareholders, on the one hand, and the Company or any other Major Holder, on the
other hand, other than this Agreement, the FERSA Subscription Agreement and the
letter agreement dated August 4, 1994 between MSLEF and FERSA.
(b) The Company will not enter into any transaction with any Major
Holder or with any Affiliate of any Major Holder, except upon fair and
reasonable terms no less favorable to the Company than could be obtained at the
time of such transaction in a comparable arm's-length transaction with a Person
that is not such a holder or an Affiliate. The foregoing shall not apply to
transactions (i) approved by a majority of the disinterested members of the
Board of Directors or for which the Company has obtained a fairness opinion of a
nationally recognized investment banking firm, (ii) the payment of amounts to
Xxxxxx Xxxxxxx & Co. Incorporated or its Affiliates pursuant to underwriting,
advisory or placement agreements or (iii) loans and advances to officers or
employees made in the ordinary course of business.
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SECTION 5.14. Entire Agreement. This Agreement constitutes the entire
agreement among the parties pertaining to the subject matter contained herein
and therein and supersedes and terminates all prior and contemporaneous
agreements and understandings of the parties or among certain of the parties.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first written above.
WEBLINK WIRELESS, INC.
By:
----------------------------------------------------
Xxxx X. Xxxxxxx
Chairman and Chief Executive Officer
Address: 0000 Xxx Xxxxxxx
Xxxxxx, Xxxxx 00000
THE XXXXXX XXXXXXX LEVERAGED EQUITY FUND II, L.P.
By: XXXXXX XXXXXXX LEVERAGED EQUITY FUND II, INC., its
General Partner
By:
----------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Principal
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX CAPITAL PARTNERS III, L.P.
By: MSCP III, L.P., its General Partner
By: Xxxxxx Xxxxxxx Capital Partners III, Inc., its
General Partner
By:
----------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Principal
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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XXXXXX XXXXXXX CAPITAL INVESTORS, L.P.
By: MSCP III, L.P., its General Partner
By: Xxxxxx Xxxxxxx Capital Partners III, Inc., its
General Partner
By:
----------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Principal
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MSCP III 892 INVESTORS, L.P.
By: MSCP III, L.P., its general partner
By: Xxxxxx Xxxxxxx Capital Partners III, Inc., its
general partner
By:
----------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Principal
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX VENTURE CAPITAL FUND II, L.P.
By: Xxxxxx Xxxxxxx Venture Partners II, L.P., its General
Partner
By: Xxxxxx Xxxxxxx Venture Capital II, Inc., its Managing
General Partner
By:
----------------------------------------------------
Name: Xxx xx Xxxxxx
Title: President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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XXXXXX XXXXXXX VENTURE CAPITAL FUND, L.P.
By: Xxxxxx Xxxxxxx Venture Partners L.P., its General
Partner
By: Xxxxxx Xxxxxxx Venture Capital Inc., its Managing
General Partner
By:
----------------------------------------------------
Name: Xxx xx Xxxxxx
Title: President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX VENTURE CAPITAL FUND II, C.V.
By: Xxxxxx Xxxxxxx Venture Partners II, L.P., its General
Partner
By: Xxxxxx Xxxxxxx Venture Capital II, Inc., its Managing
General Partner
By:
----------------------------------------------------
Name: Xxx xx Xxxxxx
Title: President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX VENTURE INVESTORS, L.P.
By: Xxxxxx Xxxxxxx Venture Partners II, L.P., its General
Partner
By: Xxxxxx Xxxxxxx Venture Capital II, Inc., its Managing
General Partner
By:
----------------------------------------------------
Name: Xxx xx Xxxxxx
Title: President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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FIRST PLAZA GROUP TRUST
By: The Chase Manhattan Bank, as trustee (as directed by
General Motors Investment Management Corporation)
By:
----------------------------------------------------
Name:
Title:
Address:
General Motors Investment Management Corporation
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxx
CONJUNTO ADMINISTRATIVO INTEGRAL, S.A. DE C.V.
By:
----------------------------------------------------
Name:
Title:
Address: Xxxxxxx Xxxxx 000
Xxxxxxxx 000
Xxxxxxx Xxxx del Campestre
San Xxxxx Xxxxx Xxxxxx, X.X. 00000
Xxxxxx
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XXXXX, X.X. DE C.V.
By:
----------------------------------------------------
Name:
Title:
Address: REGIOMONTANO, S.A.
Batallon de San Xxxxxxxx Xx. 000
0 Xxxx
Xxxxxxx Xxxxx Xxxxxxx
Xxx Xxxxx Xxxxx Xxxxxx, X.X. 00000
Xxxxxx
TD CAPITAL GROUP, LTD.
By:
----------------------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President and Director
Address: Ernst & Young Tower, 20th Floor
P.O. Box 1, Toronto Dominion Centre
Toronto, Xxxxxxx
X0X 0X0
Xxxxxx
By:
----------------------------------------------------
Xxxx X. Xxxxxxx
Address: 0000 Xxx Xxxxxxx
Xxxxxx, Xxxxx 00000
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By:
----------------------------------------------------
X. Xxxx Buckenham
Address: 0000 Xxx Xxxxxxx
Xxxxxx, Xxxxx 00000
By:
----------------------------------------------------
Xxxxxxxxx X. Xxxxxxxx
Address: 0000 Xxx Xxxxxxx
Xxxxxx, Xxxxx 00000
By:
----------------------------------------------------
Xxxx X. Xxxxx
Address: 0000 Xxx Xxxxxxx
Xxxxxx, Xxxxx 00000
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