1
EXHIBIT 9.1
FIRST AMENDED AND RESTATED
INVESTORS' AGREEMENT
dated as of
August 3, 1998
among
DPC ACQUISITION CORP.,
XXXXX PRODUCTS COMPANY,
SUMMIT CAPITAL INC.,
SUMMIT/DPC PARTNERS, X.X.
XXXXX MANHATTAN INVESTMENT HOLDINGS, INC.,
BASEBALL PARTNERS
DLJ MERCHANT BANKING PARTNERS, L.P.,
DLJ INTERNATIONAL PARTNERS, C.V.,
DLJ OFFSHORE PARTNERS, C.V.,
DLJ MERCHANT BANKING FUNDING, INC.,
DLJ FIRST ESC, L.L.C.
DARTFORD PARTNERSHIP, L.L.C.
BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
PNC CAPITAL CORP
XXXXX XXXX PET FOOD COMPANY, L.L.C.
AND
CERTAIN OTHER PERSONS SIGNATORIES HERETO
2
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
2.1 Composition of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2.2 Removal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.3 Vacancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2.4 Action by the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.5 Conflicting Charter or Bylaw Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2.6 Subsidiary Governance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
3.2 Legends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.3 Permitted and Required Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.4 Restrictions on Transfers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3.5 Regulation Y Restrictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3.6 Regulated Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 4
RIGHTS OF FIRST OFFER; TAG ALONG RIGHTS; DRAG ALONG OBLIGATIONS
AND CERTAIN REPURCHASES
4.1 Rights of First Offer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.2 Right To Participate In Transfer (Tag-Along Rights) . . . . . . . . . . . . . . . . . . . . . . . . 18
4.3 Repurchases of Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.4 Obligations to Participate in Certain Transfers (Drag Along Obligations) . . . . . . . . . . . . . . 20
4.5 Contractual Preemptive Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4.6 Termination Upon Initial Public Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE 5
REGISTRATION RIGHTS
5.1 Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.2 Incidental Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
5.3 Holdback Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
-i-
3
5.4 Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
5.5 Indemnification by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
5.6 Indemnification by Participating Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.7 Conduct of Indemnification Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
5.8 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5.9 Participation in Public Offering . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.10 Cooperation by the Issuer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.11 No Transfer of Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.12 Rule 144 Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5.13 Xxxxx Xxxx Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
6.1 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.2 Cooperation in Refinancings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6.3 Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.4 Limitations on Senior Registration Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.5 Certain Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.6 Reservation of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
6.7 Meetings of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 7
MISCELLANEOUS
7.1 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.2 Binding Effect: Benefit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.3 Assignability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.4 Amendment; Waiver; Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
7.5 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7.6 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.7 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.8 Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.9 Specific Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
7.10 Consent to Jurisdiction; Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
7.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
-ii-
4
FIRST AMENDED AND RESTATED
INVESTORS' AGREEMENT
This FIRST AMENDED AND RESTATED INVESTORS' AGREEMENT (this
"AGREEMENT") dated as of August 3, 1998 is entered into by and among (i) DPC
Acquisition Corp. (the "COMPANY"), (ii) Xxxxx Products Company (formerly known
as DPC Transition Corp.) ("XXXXX"), (iii) Summit Capital Inc. ("SUMMIT"), (iv)
Summit/DPC Partners, L.P. ("SUMMIT/DPC"), (v) Chase Manhattan Investment
Holdings, Inc., a wholly owned subsidiary of The Chase Manhattan Corporation
("CHASE"), (vi) DLJ Merchant Banking Partners, L.P., DLJ International
Partners, C.V., DLJ Offshore Partners, C.V., DLJ Merchant Banking Funding,
Inc., DLJ First ESC, L.L.C., (each of the foregoing in this clause (vi), a "DLJ
ENTITY", and collectively, the "DLJ ENTITIES") (vii) Dartford Partnership,
L.L.C. ("DARTFORD", (viii) Bruckmann, Xxxxxx, Xxxxxxxx & Co., L.P. ("BRS"),
(ix) PNC Capital Corp ("PNC"), (x) Xxxxx Xxxx Pet Food Company, L.L.C. ("XXXXX
XXXX L.L.C."), (xi) Baseball Partners, and (xii) the other Persons listed on
the signature pages hereto.
W I T N E S S E T H :
WHEREAS, certain shareholders entered into that certain
Investors' Agreement, dated as of October 5, 1995, by and among the Company,
Xxxxx, Summit/DPC, Chase, the DLJ Entities and certain other shareholders (the
"ORIGINAL AGREEMENT"); and
WHEREAS, in connection with the merger of DPC/WH MergeCo, Inc.
with and into Xxxxx Xxxx Pet Food Holdings, Inc. ("WH HOLDINGS") pursuant to
which WH Holdings will become a wholly-owned subsidiary of the Company, certain
parties to the Original Agreement, being more than the minimum number required
to amend same now desire to amend and restate the Original Agreement in
accordance with the terms of this Agreement;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Definitions. (a) The following terms, as used herein, have
the following meanings:
"ADVERSE PERSON" means any Person whom the Board of Directors
of the Issuer determines is a competitor or a potential competitor of the
Issuer.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with such Person, provided that no securityholder of the Issuer shall
be deemed an Affiliate of any other security holder solely by reason of any
investment in the Issuer. For the purpose of this definition, the term
"CONTROL" (including with correlative meanings, the terms "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"AFFILIATED EMPLOYEE BENEFIT TRUST" means any trust that is a
successor to the assets held by a trust established under an employee benefit
plan subject to ERISA or any other
5
trust established directly or indirectly under such plan or any other such plan
having the same sponsor.
"BANK HOLDING COMPANY AFFILIATE" means with respect to any
Shareholder subject to the provisions of Regulation Y, (i) if such Shareholder
is a bank holding company, any company controlled by such bank holding company,
and (ii) otherwise, the bank holding company that controls such Shareholder and
any Person (other than such Shareholder) controlled by such bank holding
company.
"BENEFICIALLY OWN" shall have the meaning set forth in Rule
13d-3 of the Exchange Act.
"BOARD" means the board of directors of the Company.
"BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized by law to
close.
"CHASE INVESTORS" means Chase and its Permitted Transferees.
"COMMON STOCK" means authorized Class A Common Stock, par
value $.0001 per share, of the Company and authorized Class B Common Stock, par
value $.0001 per share, of the Company, and any stock into which such Class A
Common Stock or Class B Common Stock may hereafter be converted or changed.
"COMPANY SECURITIES" means any securities issued by the
Company including, but not limited to, the Common Stock and the Warrants.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXERCISE PRICE" shall have the meaning assigned to such term
in the Warrants.
"FULLY DILUTED" means, with respect to Common Stock or
Preferred Stock and without duplication, all outstanding shares of, and all
shares issuable in respect of securities convertible into or exchangeable for,
Common Stock or Preferred Stock, as the case may be, stock appreciation rights
or options, warrants and other irrevocable rights to purchase or subscribe for
Common Stock or Preferred Stock, as the case may be, including the Warrants, or
securities convertible into or exchangeable for Common Stock or Preferred
Stock, as the case may be; provided that no Person shall be deemed to own such
number of Fully Diluted shares of Common Stock or Preferred Stock, as the case
may be, as such Person has the right to acquire from any Person other than the
Company or Xxxxx.
"INDEPENDENT FINANCIAL EXPERT" means a nationally recognized
investment banking firm that specializes in providing valuation and valuation
related services selected by the Issuer which the Issuer has determined after
due inquiry (i) does not (and whose directors, officers, employees and
Affiliates do not), have a direct or indirect material financial interest in or
other material relationship with the Issuer, the DLJ Entities, Chase, Baseball
Partners, the Summit-Investors, the Xxxxx Xxxx Investors or any of their
respective Affiliates (so long as the DLJ Entities, the Chase Investors, the
Summit-Investors, the Xxxxx Xxxx Investors or their Permitted Transferees, as
the case may be, beneficially own more than 5% of the number of shares of any
class of equity securities of the Issuer), and (ii) has not been and, at the
time it is called upon hereunder is not (and none of whose directors, officers,
employees or Affiliates is), a director or officer of the Issuer, the DLJ
Entities, Baseball Partners, the Chase Investors, the Summit-Investors,
-2-
6
the Xxxxx Xxxx Investors (so long as the DLJ Entities, the Summit-Investors,
the Xxxxx Xxxx Investors or their Permitted Transferees, as the case may be,
beneficially own more than 5% of the number of shares of any class of equity
securities of the Issuer); provided that an Independent Financial Expert may be
compensated for opinions or services it provides as an Independent Financial
Expert.
"INITIAL PUBLIC OFFERING" means the initial sale after the
date hereof of any class of Common Stock pursuant to an effective registration
statement under the Securities Act (other than a registration statement on Form
X-0, Xxxx X-0 or any successor forms) pursuant to which the Company receives
aggregate net proceeds of at least $50 million.
"ISSUER" means the Company as the issuer of the Company
Securities and/or Xxxxx as the issuer of the Preferred Stock, as the context
requires.
"LIQUIDATION VALUE" shall have the meaning assigned to such
term in the Certificate of Incorporation of Xxxxx.
"MANAGEMENT INVESTORS" means Xxxxx X. Xxxxxxx, Xxxx X.
Xxxxxxxx, Xxx X. Xxxx, Xxx X. Xxxxxxxx and Xxxx Xxxxx.
"PERCENTAGE OWNERSHIP" means, with respect to any Shareholder
or any group of Shareholders at any time, (i) the number of shares of Fully
Diluted Common Stock that such Shareholder or group of Shareholders
beneficially owns (and (without duplication) has the right to acquire) at such
time, divided by (ii) the total number of shares of Fully Diluted Common Stock
at such time.
"PERMITTED TRANSFEREE" means:
(i) in the case of any DLJ Entity or any Person described
in the following clauses (A) through (E), (A) any other DLJ Entity,
(B) any general or limited partner of any such entity (a "DLJ
PARTNER"), and any corporation, partnership, Affiliated Employee
Benefit Trust or other entity which is an Affiliate of any DLJ Partner
(collectively, the "DLJ AFFILIATES"), (C) any managing director,
general partner, director, limited partner, officer or employee of
such DLJ Entity or a DLJ Affiliate, or the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of
any of the foregoing Persons referred to in this clause (C)
(collectively, the "DLJ ASSOCIATES"), (D) any trust, the beneficiaries
of which, or any corporation, limited liability company or
partnership, the stockholders, members or general or limited partners
of which, include only such XXX Xxxxxx, XXX Xxxxxxxxxx, XXX
Associates, their spouses or their lineal descendants and (E) a voting
trustee for one or more DLJ Entities, DLJ Affiliates or DLJ Associates
under the terms of a voting trust designed to conform with the
requirements of the insurance laws of the State of New York;
(ii) in the case of Summit/DPC or any Person described in
the following clauses (A) through (E), (A) any other Summit-Investor,
(B) any general or limited partner or shareholder of Summit/DPC, and
any corporation, partnership or other entity that is an Affiliate of a
Summit-Investor (collectively, the "SUMMIT AFFILIATES"), (C) any
general partner, limited partner, shareholder, officer or director of
Summit/DPC or a Summit Affiliate, or any spouse, lineal descendant,
sibling, parent, heir, executor, administrator, testamentary trustee,
legatee or beneficiary of any of the foregoing persons described in
this clause (C) (collectively, the "SUMMIT ASSOCIATES"), and (D) any
trust, the beneficiaries of which, or any corporation, limited
liability company or partnership, stockholders, members or general or
limited partners of which include only Summit/DPC, such Summit
Affiliates, Summit Associates or any institution described in clause
(E) following, or (E) any institution
-3-
7
qualified as tax-exempt under Section 501(c)(3) of the Internal
Revenue Code of 1986, as amended;
(iii) in the case of any Chase Investor or any Person
described in the following clauses (A) through (E), (A) any
corporation, partnership or other entity that is an Affiliate of any
Chase Investor or any entity described in clause (C) or (D) hereof;
(B) any other Chase Investor; (C) any Person who at the time owns
(directly or indirectly) at least a majority of the shares of any
Chase Investor; (D) any Person at least a majority of whose shares
shall at the time be owned (directly or indirectly) by any Chase
Investor or by any Person who owns (directly or indirectly) at least a
majority of the shares of any Chase Investor; (E) any corporation,
partnership, business association or other entity substantially all of
whose equity holders are Affiliates or employees of any Chase Investor
or any entity described in clause (C) or (D) hereof; and (F) a third
party, if, in the good faith reasonable judgment of Chase, such
transfer is required to be effected by Chase because of a Regulatory
Problem, it being understood that transfers pursuant to this
subsection shall only be for that quantity of Common Stock as is
deemed necessary by Chase to remedy such Regulatory Problem; and
provided, that (with respect to clause (F) only) no such transfer
shall be made to a third party that is an Adverse Person and that any
such transfer of Common Stock and/or Warrants representing an amount
in excess of 5% of the Common Stock on a Fully Diluted basis shall be
subject to the provisions of Section 4.1 hereof unless (I) otherwise
directed by a governmental authority having jurisdiction over bank
holding companies or (II) a violation of Regulation Y would occur as a
result thereof;
(iv) in the case of Dartford or any Person described in
the following clauses (A) through (E), (A) any other Xxxxx Xxxx
Investor, (B) any corporation, partnership or other entity which is an
Affiliate of a Xxxxx Xxxx Investor (collectively, the "XXXXX XXXX
AFFILIATES"), (C) any member, shareholder, director, general partner,
limited partner or officer of Dartford or a Xxxxx Xxxx Affiliate, or
any spouse, lineal descendant, sibling, parent, heir, executor,
administrator, testamentary trustee, legatee or beneficiary of any of
the foregoing persons described in this clause (C) (collectively, the
"DARTFORD ASSOCIATES"); (D) any trust, the beneficiaries of which, or
any corporation, limited liability company or partnership,
stockholders, members or general or limited partners of which include
only Dartford, Xxxxx Xxxx Affiliates, Dartford Associates or any
institution described in clause (E) following, or (E) any institution
qualified as tax-exempt under Section 501(c)(3) of the internal
Revenue Code of 1986, as amended;
(v) in the case of BRS or any Person described in the
following clauses (A) through (E), (A) any other Xxxxx Xxxx Investor,
(B) any Xxxxx Xxxx Affiliate, (C) any member, shareholder, director,
general partner, limited partner or officer of BRS or a Xxxxx Xxxx
Affiliate, or any spouse, lineal descendant, sibling, parent, heir,
executor, administrator, testamentary trustee, legatee or beneficiary
of any of the foregoing persons described in clause (C) (collectively,
the "BRS ASSOCIATES"); (D) any trust, the beneficiaries of which, or
any corporation, limited liability company or partnership,
stockholders, members or general or limited partners of which include
only BRS, Xxxxx Xxxx Affiliates, BRS Associates or any institution
described in clause (E) following or (E) any institution qualified as
tax-exempt under Section 501(c)(3) of the internal Revenue Code of
1986, as amended;
(vi) in the case of PNC or any Person described in the
following clauses (A) through (E), (A) any other Xxxxx Xxxx Investor,
(B) any Xxxxx Xxxx Affiliate, (C) any member, shareholder, general
partner, limited partner, officer or director of PNC or a Xxxxx Xxxx
Affiliate, or any spouse, lineal descendant, sibling, parent, heir,
executor, administrator, testamentary trustee, legatee or beneficiary
of any of the foregoing persons described in
-4-
8
clause (C) (collectively, the "PNC ASSOCIATES"); (D) any trust, the
beneficiaries of which, or any corporation, limited liability company
or partnership, stockholders, members or general or limited partners
of which included only PNC, Xxxxx Xxxx Affiliates, PNC Associates or
any institution described in clause (E) following, (E) any institution
qualified as tax-exempt under Section 501(c)(3) of the internal
Revenue Code of 1986, as amended, or (F) a third party, if, in the
good faith reasonable judgment of PNC, such transfer is required to be
effected by PNC because of a Regulatory Problem, it being understood
that transfers pursuant to this subsection shall only be for that
quantity of Common Stock as is deemed necessary by PNC to remedy such
Regulatory Problem; and provided, that (with respect to clause (F)
only) no such transfer shall be made to a third party that is an
Adverse Person and that any such transfer of Common Stock representing
an amount in excess of 5% of the Common Stock on a Fully Diluted basis
shall be subject to the provisions of Section 4.1 hereof unless (I)
otherwise directed by a governmental authority having jurisdiction
over bank holding companies or (II) a violation of Regulation Y would
occur as a result thereof;
(vii) in the case of Xxxxx Xxxx LLC or any Person described
in the following clauses (A) through (E), (A) any other Xxxxx Xxxx
Investor, (B) any Xxxxx Xxxx Affiliate, (C) any member, shareholder,
general partner, limited partner, officer or director of Xxxxx Xxxx
LLC or a Xxxxx Xxxx Affiliate, or any spouse, lineal descendant,
sibling, parent, heir, executor, administrator, testamentary trustee,
legatee or beneficiary of any of the foregoing persons described in
clause (C) (collectively, the "XXXXX XXXX LLC ASSOCIATES"); and (D)
any trust, the beneficiaries of which, or any corporation, limited
liability company or partnership, stockholders, members or general or
limited partners of which include only Xxxxx Xxxx LLC, Xxxxx Xxxx
Affiliates, Xxxxx Xxxx LLC Associates or any institution described in
clause (E) following or (E) any institution qualified as tax-exempt
under Section 501(c)(3) of the internal Revenue Code of 1986, as
amended;
(viii) in the case of Baseball Partners or any Person
described in the following clauses (A) through (D), (A) any general or
limited partner or shareholder of Baseball Partners, and any
corporation, partnership or other entity that is an Affiliate of
Baseball Partners (collectively, the "BASEBALL PARTNERS AFFILIATES"),
(B) any general partner, limited partner, shareholder, officer or
director of a Baseball Partners Affiliate, or any spouse, lineal
descendant, sibling, parent, heir, executor, administrator,
testamentary trustee, legatee or beneficiary of any of the foregoing
persons described in this clause (B) (collectively, the "BASEBALL
PARTNERS ASSOCIATES"), and (C) any trust, the beneficiaries of which,
or any corporation, limited liability company or partnership,
stockholders, members or general or limited partners of which include
only Baseball Partners, Baseball Partners Affiliates, Baseball
Partners Associates or any institution described in clause (D)
following, or (D) any institution qualified as tax-exempt under
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended;
(ix) in the case of any other Shareholder, (A) the Issuer,
(B) a Person to whom Shares are transferred from such other
Shareholder (1) by will or the laws of descent and distribution or (2)
by gift without consideration of any kind; provided that in the case
of clause (2) preceding such transferee is the spouse or the lineal
descendant, sibling or parent of such Shareholder, (C) a trust that is
for the exclusive benefit of such other Shareholder, its Permitted
Transferees under (B) above or any institution described in clause (D)
following or (D) any institution qualified as tax-exempt under Section
501(c)(3) of the Internal Revenue Code of 1986, as amended; and
(x) any other Person approved of by the Board in
accordance with Section 2.4 hereof with respect to a particular
transfer.
-5-
9
"PERSON" means an individual, corporation, limited liability
company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"PREFERRED STOCK" means the 14.25% Senior Exchangeable
Preferred Stock of Xxxxx.
"PUBLIC OFFERING" means any primary or secondary public
offering of equity securities of the Issuer pursuant to an effective
registration statement under the Securities Act other than pursuant to a
registration statement filed in connection with a transaction of the type
described in Rule 145 of the Securities Act or for the purpose of issuing
securities pursuant to an employee benefit plan.
"REGISTRABLE SECURITIES" means, at any time, with respect to
any Shareholder or its Permitted Transferees, any shares of Common Stock, or
Warrants or Warrant Shares then owned by such Shareholder or its Permitted
Transferees until (i) a registration statement covering such Common Stock,
Warrants or Warrant Shares has been declared effective by the SEC and such
securities have been disposed of pursuant to such effective registration
statement, (ii) such securities are sold under circumstances in which all of
the applicable conditions of Rule 144 (or any similar provisions then in force)
under the Securities Act are met or such securities may be sold pursuant to
Rule 144(k) or (iii) such securities are otherwise transferred and in
connection therewith the Issuer has delivered a new certificate or other
evidence of ownership for such securities not bearing the legend required
pursuant to this Agreement and such securities may be resold without subsequent
registration under the Securities Act.
"REGISTRATION EXPENSES" means (i) all registration and filing
fees, (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with blue
sky qualifications of the securities registered), (iii) printing expenses, (iv)
internal expenses of the Issuer (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), (v) reasonable fees and disbursements of counsel for the Issuer and
customary fees and expenses for independent certified public accountants
retained by the Issuer (including expenses relating to any comfort letters or
costs associated with the delivery by independent certified public accountants
of a comfort letter or comfort letters requested pursuant to Section 5.4(h)
hereof), (vi) the reasonable fees and expenses of any special experts retained
by the Issuer in connection with such registration, (vii) reasonable fees and
expenses of up to one counsel for the Shareholders participating in the
offering (A) selected by the DLJ Entities or their Permitted Transferees in any
offering where at least 50% of the number of securities proposed to be sold are
beneficially owned by the DLJ Entities or their Permitted Transferees, (B)
selected by the Summit-Investors or their Permitted Transferees in any offering
where at least 50% of the number of securities proposed to be sold are
beneficially owned by the Summit-Investors or their Permitted Transferees, (C)
selected by the Xxxxx Xxxx Investors or their Permitted Transferees in any
offering where at least 50% of the number of securities proposed to be sold are
beneficially owned by the Xxxxx Xxxx Investors or their Permitted Transferees,
or (D) selected by Chase or its Permitted Transferees and any Offering where at
least 50% of the number of securities proposed to be sold are beneficially
owned by Chase or its Permitted Transferees, (viii) fees and expenses in
connection with any review of underwriting arrangements by the National
Association of Shares Dealers, Inc. (the "NASD") including fees and expenses of
any '"qualified independent underwriter" and (ix) fees and disbursements of
underwriters customarily paid by issuers or sellers of securities, but shall
not include any underwriting fees, discounts or commissions attributable to the
sale of Registrable Securities, or any out-of-pocket expenses (except as set
forth in clause (vii) above) of the Shareholders or any fees and expenses of
underwriter's counsel.
-6-
10
"REGULATED HOLDER" means a Shareholder which is a bank, a bank
holding company or an Affiliate of any of the foregoing.
A Regulated Holder shall be deemed to have a "REGULATORY
PROBLEM" when (i) such Regulated Holder's investment in the Securities exceeds
any limitation to which it is subject, or is otherwise not permitted, under any
law, rule or regulation of any governmental authority (including any position
to that effect taken by such governmental authority) or (ii) restrictions are
imposed on such Regulated Holder which, in its reasonable judgment, make it
illegal or unduly burdensome for such Regulated Holder to continue to hold such
Securities.
"REGULATION Y" shall mean Regulation Y promulgated by the
Board of Governors of the Federal Reserve System (12 C.F.R. Section 225) or
any successor regulation.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means shares of Common Stock, the Warrants and
the Preferred Stock held by the Shareholders.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHAREHOLDER" means each Person (other than the Company or
Xxxxx) who shall be a party to this Agreement, whether in connection with the
execution and delivery hereof as of the date hereof, pursuant to Section 7.3 or
otherwise, or bound by this Agreement by reason of being a party to the
Original Agreement, in each case, so long as such Person shall beneficially own
any Securities.
"SHARES" means shares of Common Stock and shares of Preferred
Stock of the Issuer held by the Shareholders.
"SHORT-FORM DEMAND REGISTRATION" means a Demand Registration
on Form S-2 or S-3 (or any successor forms).
"SHORT-FORM DATE" means the date on which the Issuer in
question becomes eligible to use Forms S-2 or S-3 (or any successor forms) for
registration of its securities.
"SUBSIDIARY" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"SUMMIT INVESTORS" means Summit/DPC, Xxxxx Xxxxxxx Xxxxxx, J.
Xxxxx Xxxxxx, Xxxx X. Xxxxxxxxx, Xxx X. Xxxxxxxxx, The 1989 Xxxxxxxxx Trust,
and Xxxx X Xxxxxxxxx but not including the Management Investors.
"SUMMIT-INVESTOR SHARES" means all Shares held by the
Summit-Investors.
"TAG-ALONG PORTION" means:
(i) where the Selling Person is selling Preferred Stock,
the number of shares of Preferred Stock held by the Tagging Person
multiplied by a fraction, the numerator of which is the number of
shares of Preferred Stock proposed to be sold by the Selling Person
and
-7-
11
its Permitted Transferees pursuant to Section 4.2, and the denominator
of which is the aggregate number of shares of Preferred Stock on a
Fully Diluted basis;
(ii) where the Selling Person is selling Common Stock, the
number of shares of Common Stock held (or, without duplication,
acquirable under the Warrants) by the Tagging Person multiplied by a
fraction, the numerator of which is the number of shares of Common
Stock proposed to be sold by the Selling Person and its Permitted
Transferees pursuant to Section 4.2, and the denominator of which is
the aggregate number of shares of Common Stock on a Fully Diluted
basis; and
(iii) where the Selling Person is selling Warrants, the
number of shares of Common Stock held (or, without duplication,
acquirable under the Warrants) by the Tagging Person multiplied by a
fraction the numerator of which is the number of shares of Common
Stock for which the Warrants proposed to be sold by a Selling Person
and its Permitted Transferees pursuant to Section 4.2 are exercisable,
and the denominator of which is the aggregate number of shares of
Common Stock on a Fully Diluted basis; provided that where a Tag Along
Right incudes the right to sell Common Stock, any Tagging Person that
is a holder of Warrants may, in lieu of exercising Warrants, transfer
Warrants for some or all of that number of shares of Common Stock as
would otherwise have constituted its Tag Along Portion, in which event
the price to be received with respect to each such Warrant shall be
the price per share of Common Stock applicable to the Tag Along Offer,
less the then applicable exercise price of the Warrants in question.
"THIRD PARTY" means a prospective purchaser of Securities in
an arm's-length transaction from a Shareholder where such purchaser is neither
a Shareholder nor Permitted Transferee of a Shareholder.
"UNDERWRITTEN PUBLIC OFFERING" means a firmly underwritten
public offering of Registrable Securities of the Issuer pursuant to an
effective registration statement under the Securities Act.
"WARRANTS" means the warrants issued to the Shareholders by
the Company for the purchase of an aggregate of 1,354,478 shares of Common
Stock (subject to adjustment as provided therein).
"WARRANT SHARES" means the shares of Common Stock issuable by
the Company upon exercise of the Warrants.
"XXXXX XXXX" means Xxxxx Xxxx Pet Food Company, Inc.
"XXXXX XXXX INVESTORS" means the Persons listed on the
signature pages hereto as the "Xxxxx Xxxx Investors."
"XXXXX XXXX INVESTORS SHARES" means all Shares held by the
Xxxxx Xxxx Investors.
"XXXXX XXXX MERGER" means the merger of DPC/WH MergeCo, Inc.
with and into WH Holdings pursuant to the Xxxxx Xxxx Merger Agreement.
"XXXXX XXXX MERGER AGREEMENT" means that certain Agreement and
Plan of Merger dated of June 10, 1998 among WH Holdings, Xxxxx Xxxx, the
Company, DPC/WH Merge Co., Inc., Xxxxx, Dartford, Xxxxx Xxxx L.L.C., BRS and
PNC, as the same may be amended or restated from time to time.
-8-
12
"XXXXX XXXX REPRESENTATIVE" means any individual designated
from time to time in an instrument delivered to the Company and signed by the
record holders of at least 60% of the Common Stock then held of record by all
of the Xxxxx Xxxx Investors.
(b) The term "DLJ ENTITIES", to the extent such entities
shall have transferred any of their Securities to "Permitted Transferees",
shall mean the DLJ Entities and the Permitted Transferees of the DLJ Entities,
taken together, and any right or action that may be exercised or taken at the
election of the DLJ Entities may be exercised or taken at the election of the
DLJ Entities, and such Permitted Transferees.
(c) The term "SUMMIT INVESTORS", to the extent such
Shareholders shall have transferred any of their Securities to "PERMITTED
TRANSFEREES", shall mean the Summit-Investors and their respective Permitted
Transferees, and any right or action that may be exercised or taken at the
election of such Shareholders may be exercised or taken at the election of such
Shareholders and their respective Permitted Transferees.
(d) The term "XXXXX XXXX INVESTORS", to the extent such
Shareholders shall have transferred any of their Securities to "PERMITTED
TRANSFEREES", shall mean the Xxxxx Xxxx Investors and their respective
Permitted Transferees, and any right or action that may be exercised or taken
at the election of such Shareholders may be exercised or taken at the election
of such Shareholders and their respective Permitted Transferees.
(e) The term "CHASE INVESTORS", to the extent such
Shareholders shall have transferred any of their Securities to "PERMITTED
TRANSFEREES", shall mean Chase and its Permitted Transferees and any right or
action that may be exercised or taken at the election of such Shareholders may
be exercised or taken at the election of such Shareholders and their respective
Permitted Transferees.
(f) Each of the following terms is defined in the Section
set forth opposite such term:
Term Section
---- -------
Approving Shareholders 4.4
Associate 2.1
Cause 2.2
Chase Designee 2.1
Confidential Information 6.1(b)
Demand Registration 5.1(a)
DLJMB 2.1(a)
DLJMB Designee 2.1(a)
Dragalong Notice 4.4
Final Order Period 4.1(a)
Final Section 4.1 Offer 4.1(a)
Following Shareholder 5.2(b)
Group 3.5
Holders 5.1(a)(
Incidental Registration 5.2(a)
Indemnified Party 5.7
Indemnifying Party 5.7
Initial Order Period 4.1(b)
Initial Section 4.1 Offer 4.1(b)
-9-
13
Initial Section 4.1 Offer Notice 4.1(a)
Inspectors 5.4(g)
Maximum Offering Size 5.1(d)
New Securities 6.4
Nominee 2.3(a)
Offered Securities 4.5
Original Agreement Recitals
Pro-Rata Portion 4.1(b)
Records 5.4(g)
Regulation D 4.4
Representatives 6.1(b)
Requesting Shareholder 4.5
Sale of the Company Proposal 4.4
Second Order Period 4.1(b)
Second Section 4.1 Offer 4.1(b)
Section 4.1 Sale 4.1(a)
Section 4.1 Sale Price 4.1(a)
Section 4.1 Seller 4.1(a)
Section 4.2 Response Notice 4.2(a)
Section 4.4 Seller 4.4
Seller 4.3(c)
Selling Person 4.2(a)
Selling Shareholder 5.1(a)
Shareholder 7.3
Subsequent Section 4.1 Offer 4.1(b)
Subsequent Order Period 4.1(b) 4.1(b)
Summit Investor Designee 2.1
Surrendered Shares 4.3(c)
Tag-Along Notice 4.2(a)
Tag-Along Notice Period 4.2(a)
Tag-Along Offer 4.2(a)
Tag-Along Right 4.2(a)
Tag-Along Sale 4.2(a)
Tag-Along Seller 4.2(a)
Tagging Person 4.2(a)
Termination Date 4.3(c)
transfer 3.1(a)
Underlying Shares 4.2(c)
WH Holdings Recitals
Xxxxx Xxxx Designee 2.1
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
2.1 Composition of the Board.
(a)The Board shall consist of eight members (subject to changes in size
as provided below in this Section 2.1(a)), of whom one shall be designated by
DLJ Merchant Banking Partners, L.P.("DLJMB") (the "DLJMB DESIGNEE"), two shall
be designated by Summit on behalf of the Summit-Investors (each such designee, a
"SUMMIT-INVESTOR DESIGNEE"), one shall be designated by BRS on behalf of the
Xxxxx Xxxx Investors and one shall be designated by Xxxxx Xxxx L.L.C. on
-10-
14
behalf of the Xxxxx Xxxx Investors (each of the two foregoing designees, a
"XXXXX XXXX DESIGNEE"), one shall be designated by Chase (the "CHASE
DESIGNEE"), one shall be the chief executive officer of the Company and one
shall be designated by the mutual agreement of all of the following (or such
subset of the following that is then entitled to be designated to the Board in
accordance with this Section 2.1(a)): DLJ Designee, the Chase Designee and
Xxxxxx X. Xxxxx (so long as Xx. Xxxxx is one of the two Summit Designees) or,
if Xxxxxx X. Xxxxx is not then one of the two Summit Designees, by any of the
Summit Designees. At any time the number of shares of Common Stock owned of
record by the Summit-Investors is less than 50% of the number of shares of
Common Stock owned as of the date of this Agreement (in each case, disregarding
stock splits, recapitalizations and similar adjustments in number of shares and
stock dividends), the Summit-Investors shall only have the right to designate
one individual. At any time the number of shares of Common Stock owned of
record by the Xxxxx Xxxx Investors is less than 50% of the number of shares of
Common Stock owned as of the date of this Agreement (in each case, disregarding
stock splits, recapitalizations and similar adjustments in number of shares and
stock dividends), the Xxxxx Xxxx Investors shall only have the right to
designate one individual, and such director shall be the Xxxxx Xxxx
Representative at such time. Notwithstanding the foregoing, at any time any of
DLJMB's, Chase's, the Summit-Investors' or the Xxxxx Xxxx Investors' respective
Percentage Ownership is less than 5%, such person or group shall not have the
further right to designate any individual under this Section 2.1(a). Each
Shareholder entitled to vote for the election of directors to the Board shall
vote its Securities and execute written consents to increase the Board size and
to elect independent directors to accommodate the requirements for listing the
Securities on any national securities exchange or market system on which the
Board determines that the Securities shall be listed or included. Each
Shareholder entitled to vote for the election of directors to the Board agrees
that it will vote its shares of Common Stock or execute consents, as the case
may be, and take all other necessary action (including causing the Company to
call a special meeting of shareholders) in order to ensure that the composition
of the Board is as set forth in this Section 2.1(a). The parties to this
Agreement acknowledge and agree that the right to designate an individual
pursuant to this Section 2.1(a) and the obligations of the Shareholders to vote
for or consent to any individual designated in accordance with this Section
2.1(a) shall not ensure that such individual shall be elected to the Board.
(b) In addition to the rights granted in Section 2.1(a), until the
earlier of (i) one year after the date of this Agreement and (ii) the date the
Xxxxx Xxxx Investors no longer have the right to designate any individual to the
Board under Section 2.1(a), Xxxxx Xxxx LLC on behalf of the Xxxxx Xxxx Investors
shall have the right to designate one individual who shall be entitled to be a
Board observer and receive notices of, shall be permitted to attend, and shall
be permitted to receive information with respect to, all meetings of the Board;
provided, such Board observer shall not have the right to vote as a director of
the Board, such Board observer shall not be included for purposes of determining
whether a quorum is present and such Board observer shall excuse himself or
herself from those portions of such meetings during which the relationship
between the Company and such individual is discussed.
2.2 Removal. Each Shareholder agrees that if, at any time, it is then
entitled to vote for the removal of directors of the Company, it will not vote
any of its shares of Common Stock in favor of the removal of any director who
shall have been designated or nominated pursuant to Section 2.1(a) unless such
removal shall be for Cause or the Person(s) entitled to designate or nominate
such director shall have consented to such removal in writing, provided that if
the Persons entitled to designate or nominate any director pursuant to Section
2.1(a) shall request the removal, with or without Cause, of such director in
writing, such Shareholder shall vote its shares of Common Stock in favor of such
removal. Removal for "CAUSE" shall mean removal of a director because of such
director's (a) willful and continued failure substantially to perform his duties
with the Company in his established position, (b) willful conduct which is
injurious to the Company or any of
-11-
15
its Subsidiaries, monetarily or otherwise, (c) conviction for, or guilty plea
to, a felony or a crime involving moral turpitude, (d) abuse of illegal drugs
or other controlled substances or habitual intoxication or (e) willful breach
of this Agreement.
2.3 Vacancies. If, as a result of death, disability, retirement,
resignation, removal (with or without Cause) or otherwise, there shall exist or
occur any vacancy on the Board:
(a) the Person(s) entitled under Section 2.1(a) to designate or
nominate such director whose death, disability, retirement, resignation or
removal resulted in such vacancy, may, subject to the provisions of Section
2.1(a), designate another individual (the "NOMINEE") to fill such vacancy and
serve as a director of the Company; and
(b) each Shareholder then entitled to vote for the election of the
Nominee as a director of the Company agrees that it will vote its shares of
Common Stock, or execute a written consent, as the case may be, in order to
ensure that the Nominee be elected to the Board.
2.4 Action by the Board. (a) A quorum of the Board shall consist
initially of five directors; provided, whenever more or less than eight
directors are serving on the Board, a quorum shall consist of a majority of the
number of directors then serving. All actions of the Board shall require the
affirmative vote of at least a majority of the directors at a duly convened
meeting of the Board at which a quorum is present or the unanimous written
consent of the Board; provided that, in the event there is a vacancy on the
Board and an individual has been nominated to fill such vacancy, the first order
of business shall be to fill such vacancy.
(b) Until consummation of an Initial Public Offering, no action by the
Company (including but not limited to any action by the Board or any committee
thereof) shall be taken after the date hereof with respect to any of the
following matters without the affirmative approval of the Board, including, for
so long as the DLJ Entities own at least 50% of the number of shares of Common
Stock owned thereby as of the date of this Agreement (treating, for these
purposes, the Warrants on an as if exercised basis and, in each case,
disregarding stock splits, recapitalizations and similar adjustments in number
of shares and stock dividends), by the DLJMB Designee, for so long as the
Summit-Investors own at least 33 1/3% of the number of shares of Common Stock
owned thereby as of the date of this Agreement (in each case, disregarding stock
splits, recapitalizations and similar adjustments in number of shares and stock
dividends), by at least one Summit-Investor Designee, for so long as Chase owns
at least 50% of the number of shares of Common Stock owned thereby as of the
date of this Agreement (treating, for these purposes, the Warrants on an as if
exercised basis and, in each case, disregarding stock splits, recapitalizations
and similar adjustments in number of shares and stock dividends), by the Chase
Designee, and for so long as the Xxxxx Xxxx Investors own at least 50% of the
number of shares of Common Stock owned thereby as of the date of this Agreement
(in each case, disregarding stock splits, recapitalizations and similar
adjustments in number of shares and stock dividends), by at least one Xxxxx Xxxx
Designee:
(i)(x) any merger or consolidation of the Company with or into
any Person, other than a wholly owned Subsidiary, or of any Subsidiary with
or into any Person other than the Company or any other wholly-owned
Subsidiary; or (y) any sale of any Subsidiary or any significant operations
of the Company or any Subsidiary or any acquisition or disposition of
assets, business, operations or securities by the Company or any Subsidiary
(in a single transaction or a series of related transactions) having a value
in each case in this clause (y) in excess of $25,000,000;
-12-
16
(ii) the declaration of any dividend on or the making of any
distribution with respect to, or the redemption, repurchase or other
acquisition of, any securities of the Company or any Subsidiary, except as
expressly permitted by this Agreement or the Certificate of Designations of
the Preferred Stock and except for repurchases of securities from
individuals in connection with the termination of their employment;
(iii) any liquidation, dissolution, commencement of bankruptcy,
liquidation or similar proceedings with respect to the Company or any
Subsidiary;
(iv) (A) any incurrence by the Company or any Subsidiary of
indebtedness for borrowed money in excess of $25,000,000 in the aggregate
(or the guaranty by the Company or any Subsidiary of any such indebtedness)
other than an incurrence or guaranty permitted by the existing terms of the
credit facilities of the Company or any Subsidiary thereof or (B) any
issuance of any security by the Company or any Subsidiary other than
issuances of securities in connection with any employee stock offering or
any stock option plan approved by the Board or as consideration in any
acquisition (whether stock purchase, asset purchase or merger), which
acquisition has been approved in accordance with this Agreement including
Section 2.4(b)(i) if applicable to such acquisition;
(v) any transaction or series of related transactions (not
otherwise expressly permitted by this Agreement) between the Company or any
Subsidiary, on the one hand, and any stockholder or Affiliate of the Company
or any Subsidiary, on the other hand, other than transactions involving an
amount less than $500,000;
(vi) the appointment of the Chief Executive Officer;
(vii) any amendment to the certificate of incorporation or
bylaws of the Company or any adoption of or amendment to the certificate of
incorporation or bylaws of any Subsidiary;
(viii) the approval of any Person as a Permitted Transferee
under clause (ix) of the definition of "Permitted Transferee"; or
(ix) any amendment of the definition of the term "Permitted
Transferee", which amendment shall be consistent with the intention of the
parties hereunder.
2.5 Conflicting Charter or Bylaw Provisions. Each Shareholder shall
vote its shares of Common Stock, and shall take all other actions necessary, to
ensure that the Company's certificate of incorporation and bylaws facilitate and
do not at any time conflict with any provision of this Agreement.
2.6 Subsidiary Governance. Subject to paragraph 8(b) of the
Certificate of Designations of the Preferred Stock, each of the Company and each
Shareholder agrees that the board of directors of Xxxxx and Xxxxx Xxxx shall be
comprised of the individuals who are serving as directors on the Board in
accordance with Section 2.1(a). Each Shareholder agrees to vote its shares of
Common Stock and to cause its representatives on the Board, subject to their
fiduciary duties, to vote and take other appropriate action to effectuate the
agreements in this Section 2.6 in respect of Xxxxx and Xxxxx Xxxx .
-13-
17
ARTICLE 3
RESTRICTIONS ON TRANSFER
3.1 General. (a) Each Shareholder understands and agrees that the
Securities purchased on or prior to the date hereof (including Securities issued
in connection with the Xxxxx Xxxx Merger) have not been registered under the
Securities Act and are restricted securities. Each Shareholder agrees that it
will not, directly or indirectly, sell, assign, transfer, grant a participation
in, pledge or otherwise dispose of ("TRANSFER") any Securities (or solicit any
offers to buy or otherwise acquire, or take a pledge of any Securities) except
in compliance with the Securities Act and the terms and conditions of this
Agreement.
(b) Any attempt to transfer any Securities not in compliance with this
Agreement shall be null and void and neither the Issuer thereof nor any transfer
agent shall give any effect in the Issuer's stock records to such attempted
transfer.
3.2 Legends. (a) In addition to any other legend that may be required,
each certificate for Securities that is issued to any Shareholder shall bear a
legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE FIRST AMENDED AND
RESTATED INVESTORS' AGREEMENT DATED AS OF JULY __, 1998, COPIES OF WHICH MAY
BE OBTAINED UPON REQUEST FROM DPC ACQUISITION CORP., XXXXX PRODUCTS COMPANY
OR ANY SUCCESSOR THERETO."
(b) If any Securities shall cease to be Registrable Securities under
clause (i) or clause (ii) of the definition thereof, the Issuer thereof shall,
upon the written request of the holder thereof, issue to such holder a new
certificate evidencing such shares without the first sentence of the legend
required by Section 3.2(a) endorsed thereon. If any Securities cease to be
subject to any and all restrictions on transfer set forth in this Agreement, the
Issuer thereof shall, upon the written request of the holder thereof, issue to
such holder a new certificate evidencing such Securities without the second
sentence of the legend required by Section 3.2(a) endorsed thereon.
3.3 Permitted and Required Transfers.
(a) Notwithstanding anything in this Agreement to the contrary, any
Shareholder may at any time transfer any or all of its Securities to one or more
of its Permitted Transferees without the consent of the Board or any other
Shareholder or group of Shareholders and without compliance with Sections 3.4,
4.1 and 4.2 so long as (i) such Permitted Transferee shall have agreed in
writing to be bound by the terms of this Agreement and (ii) the transfer to such
Permitted Transferee is not in violation of applicable federal or state
securities laws.
(b) Notwithstanding anything in this Agreement to the contrary, without
the consent of the Board or any other Shareholder or group of Shareholders and
without compliance with Sections 3.4, 4.1 and 4.2, (i) the recipients of the
Merger Consideration (as defined in the Xxxxx Xxxx Merger Agreement) may deposit
into escrow and pledge the shares of Common Stock
-14-
18
issued thereto in the Xxxxx Xxxx Merger in the manner contemplated by Section
2.4 of the Xxxxx Xxxx Merger Agreement and (ii) the Company shall be permitted
to purchase, and each Shareholder shall be permitted to sell, Securities if and
to the extent required by Section 2.4(e)(ii) of the Xxxxx Xxxx Merger
Agreement.
3.4 Restrictions on Transfers. (a) Except as provided in Section 3.3,
each Shareholder and the Permitted Transferees of such Shareholder may transfer
their shares of Common Stock and Warrants only :
(i) in a Public Offering in connection with the exercise of
its rights under Article 5 hereof;
(ii) in a sale pursuant to Rule 144 (or any successor
provision) under the Securities Act;
(iii) prior to October 5, 2000, subject to Sections 3.4(c),
4.1 and 4.2;
(iv) subject to Section 3.4(c), on or after October 5, 2000,
to any Third Party; or
(v) subject to Section 3.4(c), in connection with any transfer
of shares of Preferred Stock in a transaction in which shares of Preferred
Stock and such Company Securities shall be transferred to the same
transferee.
(b) Subject to Section 3.4(c) and Section 4.2, transfers of shares of
Preferred Stock shall be permitted provided any such transfer is not in
violation of applicable federal or state securities laws and such transfer does
not occur prior to an Initial Public Offering.
(c) In no event shall any transfers pursuant to Section 3.4(a)(iii),
(a)(iv) or (a)(v), or any transfers of shares of Preferred Stock hereof be made
to an Adverse Person.
(d) The restrictions on transfer set forth in this Section 3.4 shall
terminate upon the consummation of an Initial Public Offering.
(e) In the event any transfer pursuant to Section 3.4(a)(iii) hereof
shall be made for consideration other than cash, then the selling Shareholder
shall obtain and deliver to the Issuer, within ten days of the consummation of
such transfer, an opinion of an Independent Financial Expert with respect to the
fair market value of the non-cash consideration received by such selling
Shareholder.
3.5 Regulation Y Restrictions. Notwithstanding anything in this
Agreement or the Warrants to the contrary, no Shareholder subject to the
provisions of Regulation Y shall, and no such Shareholder shall permit any of
its Bank Holding Company Affiliates to, transfer any Securities held by it, to
any Person other than (a) any Permitted Transferee of such Shareholder in
accordance with Section 3.3 hereof, (b) in connection with any Public Offering
or public sale of securities of the Issuer (including a public sale pursuant to
Rule 144 or 144A under the Securities Act or any similar rules then in force),
(c) to a Person or "group" of Persons (within the meaning of the Exchange Act, a
"GROUP") if, after such sale, such Person or Group in the aggregate would own or
control securities which possess in the aggregate the ordinary voting power to
elect a majority of the Issuer's directors, provided that such sale has been
approved by the Issuer's board or a committee thereof, (d) to a Person or Group
if, after such sale, such Person or Group in the aggregate would own or control
securities of the Issuer (excluding the portion of the Securities being disposed
of by
-15-
19
such Shareholder (or such Bank Holding Company Affiliate, as the case may be)
in connection with such sale) which possess in the aggregate the ordinary
voting power to elect a majority of the Issuer's directors, (e) to a Person or
Group if, after such sale, such Person or Group would not, in the aggregate,
own, control or have the right to acquire more than 2% of the outstanding
securities of any class of voting securities of the Issuer, (f) to a Person or
Group if, prior to such sale, such Person or Group in the aggregate already
owns or controls securities of the Issuer which possess in the aggregate the
ordinary voting power to elect a majority of the Issuer's directors, or (g) in
connection with a merger, consolidation or similar transaction involving the
Issuer if, after such transaction, a Person or Group would own or control
securities which possess in the aggregate the ordinary voting power to elect a
majority of the surviving corporation's directors, provided that such
transaction has been approved by the Issuer's board or a committee thereof.
Notwithstanding the foregoing, nothing in this Section 3.5 shall restrict or be
deemed to restrict transfers to other parties to this Agreement pursuant to any
provision hereof, including, without limitation, Sections 3.3, 3.4, 4.1, 4.2
and 4.3 hereof.
3.6 Regulated Holders. Notwithstanding anything to the contrary
herein, if any Regulated Holder is required to effect a transfer of any of its
Securities because it has a Regulatory Problem, then the Issuer shall provide
reasonable assistance to such Regulated Holder in connection with efforts by
such Regulated Holder to dispose of any such Securities in a prompt and orderly
manner.
ARTICLE 4
RIGHTS OF FIRST OFFER; TAG ALONG RIGHTS; DRAG ALONG OBLIGATIONS
AND CERTAIN REPURCHASES
4.1 Rights of First Offer. (a) If prior to October 5, 2000, any
Shareholder desires to transfer any shares of Common Stock or Warrants to any
Third Party other than a transfer permitted under Sections 3.3, 3.4(a)(i),
3.4(a)(ii) or 3.4(a)(v) or pursuant to a Sale of the Company Proposal, such
Shareholder (the "SECTION 4.1 SELLER") shall give written notice (an "INITIAL
SECTION 4.1 OFFER NOTICE") to the Company and the non-transferring Shareholders
that such Section 4.1 Seller desires to effect such a transfer (a "SECTION 4.1
SALE") and setting forth the number of shares of Common Stock or Warrants
proposed to be transferred by the Section 4.1 Seller, the consideration per
share that such Section 4.1 Seller proposes to be paid for such shares (the
"SECTION 4.1 SALE PRICE") and any other material terms sought by the Section 4.1
Seller.
(b) The giving (pursuant to Section 7.5) of an Initial Section 4.1
Offer Notice to the Company and each non-transferring Shareholder shall
constitute an offer (the "INITIAL SECTION 4.1 OFFER") by such Section 4.1 Seller
to sell to such Shareholder for cash on the terms set forth in the Initial
Section 4.1 Offer Notice and this Section 4.1 the Shares subject to the Section
4.1 Sale at the Section 4.1 Sale Price. Each Shareholder receiving an Initial
Section 4.1 Offer shall have a 30-day period after receipt of such offer (the
"INITIAL ORDER PERIOD") in which to accept such offer as to all of such
Shareholder's Pro Rata Portion by giving a written notice of acceptance to such
Section 4.1 Seller (together with a copy thereof to the Company) prior to the
expiration of such 30-day period.
If every Shareholder receiving an Initial Section 4.1 Offer Notice does
not elect to purchase Shares in such Initial Section 4.1 Offer, the Section 4.1
Seller shall not be required to sell any Shares accepted pursuant to the Initial
Section 4.1 Offer, but shall, within 5 days of the expiration of the Initial
Order Period, provide written notice to all Shareholders that did accept the
Initial Section 4.1 Offer, informing them that they have the right to increase
the number of Shares that they accepted pursuant to the Initial Section 4.1
Offer (the "SECOND SECTION 4.1 OFFER"). Each
-16-
20
such Shareholder will then have a 5-day period after receipt of the Second
Section 4.1 Offer (the "SECOND ORDER PERIOD") in which to accept such offer as
to all of such Shareholder's portion of the Shares not accepted pursuant to the
Initial Section 4.1 Offer (on the basis of such Shareholder's Pro Rata Portion
compared to the Pro Rata Portion of all other Shareholders receiving the Second
Section 4.1 Offer). So long as the Shareholders have not elected to purchase
all of the Shares subject to any offer made pursuant to the preceding
provisions of this Section 4.1, the Section 4.1 Seller shall not be required to
sell any Shares pursuant to any prior offer made pursuant to the preceding
provisions of this Section 4.1, but shall, within five days of the expiration
of the order period for the immediately preceding offer made pursuant to this
Section 4.1, provide written notice to all Shareholders that did accept their
full Pro Rata Portion of the immediately preceding offer, giving them final
notice that they have the right to increase the number of Shares that they
accepted pursuant to the Initial Section 4.1 Offer (the "FINAL SECTION 4.1
OFFER"). Each such Shareholder will then have a 5-day period after receipt of
a Final Section 4.1 Offer (the "FINAL ORDER PERIOD") in which to accept such
offer as to all of such Shareholder's portion of the Shares not accepted
pursuant to preceding offers made to this Section 4.1 (on the basis of such
Shareholder's Pro Rata Portion compared to the Pro Rata Portion of all other
Shareholders entitled to receive the Section 4.1 Offer).
If any Shareholder fails to notify the Section 4.1 Seller or the Company
prior to the expiration of the Initial Order Period, the Second Order Period, or
the Final Order Period, as applicable, referred to above, it will be deemed to
have declined the Section 4.1 Offer, Second Section 4.1 Offer, or the Final
Section 4.1 Offer as applicable.
For purposes of this Section 4.1 only, "PRO RATA PORTION" means that
fraction that results from dividing (i) the number of shares of Common Stock, on
a Fully Diluted basis, that each Shareholder (other than the Section 4.1 Seller)
beneficially owns (or, without duplication, has the right to acquire) by (ii)
that number of shares of Common Stock, on a Fully Diluted basis, owned by all
Shareholders (other than the Section 4.1 Seller) (or which, without duplication,
they have the right to acquire).
In the event any Shareholder declines (or is deemed to decline) to
exercise its right of first offer with respect to the Company Securities it is
entitled to purchase under this Section 4.1 pursuant to the Final Section 4.1
Offer, the Section 4.1 Seller shall immediately notify the Company thereof and
the Company may, upon receipt of such notice, following the expiration of the
Final Order Period, by giving notice of acceptance to such Section 4.1 Seller
within five days of the expiration of the Final Order Period, exercise the right
of first offer with respect to the number of shares of Common Stock or Warrants,
as the case may be, which such Shareholder has not elected to purchase pursuant
to the Final Section 4.1 Offer.
(c) The Shareholders or the Company exercising their rights of first
offer as to shares of Common Stock or Warrants subject to the Section 4.1 Sale
shall purchase and pay, by bank or certified check, for all shares of Common
Stock or Warrants accepted within a 10-day period of the date on which all
shares of Common Stock or Warrants subject to the right of first offer have been
accepted; provided that if the purchase and sale of such shares of Common Stock
or Warrants is subject to any prior regulatory approval, subject to Section
4.1(d)(iii), the time period during which such purchase and sale may be
consummated shall be extended until the expiration of five Business Days after
all such approvals shall have been received.
(d) Upon the earlier to occur of (i) full rejection of any Section 4.1
Offer by all recipients thereof, (ii) the failure of the Shareholders and/or the
Company to elect to purchase all the shares of Common Stock or Warrants subject
to the Section 4.1 Offer pursuant to the procedures in Section 4.1(b) or (iii)
the failure to obtain any required consent or regulatory approval
-17-
21
for the purchase of the Company Securities subject thereto within 45 days of
full acceptance of any Section 4.1 Offer, then, subject to Section 4.2, the
Section 4.1 Seller shall have a 90-day period during which to effect a transfer
of any or all of the shares of Common Stock or Warrants subject to the Section
4.1 Sale on substantially the same or more favorable (as to the Section 4.1
Seller) terms and conditions as were set forth in the Section 4.1 Offer Notice
at a price in cash (or marketable securities or other property (or any
combination thereof) having a fair market value not less than 100% of the
Section 4.1 Sale Price; provided that if the transfer is subject to regulatory
approval, the 90-day period in which it may be consummated shall be extended
until the expiration of five Business Days after all such approvals shall have
been received. If the Section 4.1 Seller does not consummate the sale of the
shares of Common Stock or Warrants subject to the Section 4.1 Offer in
accordance with the foregoing time limitations, such Shareholder may not prior
to October 5, 2000 sell any shares of Common Stock or Warrants in accordance
with Section 3.4(a)(iii) without repeating the foregoing procedures.
(e) A Section 4.1 Seller may transfer securities in accordance with
Section 4.1(d) for consideration other than cash only if such Shareholder has
first obtained and delivered to each of the Shareholders a representation in
writing that the fair market value of the non-cash consideration that such
Shareholder proposes to accept as consideration for such Shares, together with
any cash consideration, is at least equal to 100% of the Section 4.1 Sale Price.
4.2 Right To Participate In Transfer (Tag-Along Rights). (a) If any
Shareholder (the "SELLING PERSON") proposes to transfer (other than transfers
(i) of shares of Common Stock or Warrants in a Public Offering, or pursuant to
Rule 144 under the Securities Act, (ii) to Permitted Transferees of the Selling
Person or (iii) where prior to or after giving effect to such transfer or
transfers, the Selling Person and its Permitted Transferees do not own less than
75% of the number of the securities of the type proposed to be transferred that
were beneficially owned by such Selling Person on October 5, 1995 with respect
to all Shareholders other than the Xxxxx Xxxx Investors or on the date hereof
with respect to the Xxxxx Xxxx Investors), in a transaction otherwise permitted
by Section 3.4 hereof, a number of shares of Common Stock or Preferred Stock
equal to or exceeding 10% of the number of such securities on a Fully Diluted
basis, or Warrants exercisable for 10% of the Common Stock on a fully Diluted
basis, in a single transaction or in a series of related transactions (a
"TAG-ALONG SALE"), the other Shareholders may, at their option, elect to
exercise their rights under this Section 4.2 (each such Shareholder, a "TAGGING
PERSON"); provided, however, with respect to any such transfer also governed by
Section 4.1 hereof, the Shareholders holding Common Stock and Warrants (and the
Company) shall have first been afforded the opportunity to acquire any Common
Stock or Warrants sold in a Tag-Along Sale in accordance with the provisions of
Section 4.1. Any sale by a Shareholder of Common Stock, Warrants or Preferred
Stock, as the case may be, that occurs within six months of any other sale by
such Shareholder of the same securities shall be conclusively deemed to be
related to such previous transaction. In the event of such a proposed transfer,
the Selling Person shall (after the conclusion of the relevant periods referred
to in Section 4.1(d), if applicable) provide each other Shareholder written
notice of the terms and conditions of such proposed transfer ("TAG-ALONG
NOTICE"). The Tag-Along Notice shall identify the number and type of securities
subject to the offer ("TAG-ALONG OFFER"), the cash price at which the transfer
is proposed to be made, and all other material terms and conditions of the
Tag-Along Offer. Each Tagging Person shall have the right (a "TAG-ALONG
RIGHT"), exercisable by written notice ("SECTION 4.2 RESPONSE NOTICE") given to
the Selling Person within 25 days (or, in the case of a transfer of shares of
Preferred Stock, 14 days) after receipt of the Tag-Along Notice (the "TAG-ALONG
NOTICE PERIOD"), to require the Selling Person to include in the proposed
transfer the number of securities held by such Tagging Person as is specified in
such notice; provided that if the aggregate number and kind of securities
proposed to be sold by all Tagging Persons in such transaction exceeds the
number and kind of securities which can be sold on the terms and conditions set
forth in the Tag-Along Notice, then only the Tag-Along Portion of each Tagging
-18-
22
Person shall be sold pursuant to the Tag-Along Offer. If the Tagging Persons
exercise their Tag-Along Rights hereunder, each Tagging Person shall deliver to
the Selling Person the certificate or certificates representing the securities
of such Tagging Person to be included in the transfer, together with a limited
power-of-attorney authorizing the Selling Person to transfer such securities on
the terms set forth in the Tag-Along Notice. Delivery of such certificate or
certificates representing the securities to be transferred and the limited
power-of-attorney authorizing the Selling Person to transfer such securities
shall constitute an irrevocable acceptance of the Tag-Along Offer by such
Tagging Persons. If, at the end of a 120-day period after such delivery, the
Selling Person has not completed the transfer of all such securities on
substantially the same terms and conditions set forth in the Tag-Along Notice,
(A) the Selling Person shall return to each Tagging Person the limited
power-of-attorney (and all copies thereof) together with all certificates
representing the Shares which such Tagging Person delivered for transfer
pursuant to this Section 4.2 and such Tagging Person shall not thereafter have
the right to require the Selling Person to include any Securities in such
proposed transfer, and (B) any transfer to be completed after the end of such
120-day period shall be subject to the rights of the Shareholders under this
Section 4.2.
(b) In the event of a transfer of shares of Preferred Stock in a Public
Offering or pursuant to Rule 144A of the Securities Act to which Section 4.2(a)
is applicable, (i) the Tag-Along Notice need not specify the terms and
conditions of the Tag-Along Offer, (ii) the Tag-Along Notice Period shall be 5
days and (iii) the Section 4.2 Response Notice shall constitute an irrevocable
agreement of the Tagging Person providing such Section 4.2 Response Notice to
sell the Tag Along Portion of Preferred Stock at the price and on the terms and
conditions pursuant to which the Selling Person shall consummate the Tag-Along
Sale.
(c) In the event of a transfer subject to Section 4.2(a) of Warrants,
such transfer shall be deemed a transfer of the shares of Common Stock for which
the number of Warrants proposed to be transferred would be exercisable
("UNDERLYING SHARES"). The price per share of Common Stock shall be deemed to
equal the price per Warrant divided by the number of Underlying Shares minus the
applicable Exercise Price.
(d) Concurrently with the consummation of the Tag-Along Sale, the
Selling Person shall notify the Tagging Persons thereof, shall remit to the
Tagging Persons the total consideration (by bank or certified check) for the
securities of the Tagging Persons transferred pursuant thereto, and shall,
promptly after the consummation of such Tag-Along Sale, furnish such other
evidence of the completion and time of completion of such transfer and the terms
thereof as may be reasonably requested by the Tagging Persons.
(e) If at the termination of the Tag-Along Notice Period any Tagging
Person shall not have elected to participate in the Tag-Along Sale, such Tagging
Person will be deemed to have waived its rights under Section 4.2(a) with
respect to the transfer of its securities pursuant to such Tag-Along Sale.
4.3 Repurchases of Preferred Stock. (a) Notwithstanding anything to
the contrary in Section 5(b) of the Certificate of Designations of the Preferred
Stock, as consideration for the agreement of the Shareholders and their
Permitted Transferees not to transfer any shares of Preferred Stock prior to an
Initial Public Offering, Xxxxx shall have the right, at any time and from time
to time, to repurchase, in whole or in part, on a pro rata basis, from the
Shareholders and their Permitted Transferees any shares of Preferred Stock owned
by such Shareholders, at a purchase price in cash equal to 112% of the
Liquidation Value of such Preferred Stock on the date of such repurchase, plus
any accrued and unpaid cash dividends.
-19-
23
(b) If Xxxxx elects to exercise its right to require any Shareholder to
sell shares of Preferred Stock pursuant to Section 4.3(a), Xxxxx shall deliver a
written notice to each Shareholder whose shares it wishes to repurchase, which
notice shall state the price per share and the terms and conditions of such
repurchase.
(c) Upon the receipt of any notice pursuant to Section 4.3(b), the
shares subject to repurchase pursuant to Section 4.3(a) (collectively,
"SURRENDERED SHARES") shall be repurchased within 30 Business Days of the date
(the "TERMINATION DATE") of receipt of such notice. On the repurchase date, the
Shareholder selling such Surrendered Shares (the "SELLER") shall deliver to
Xxxxx the certificate or certificates representing the Surrendered Shares owned
by such Seller on such date against delivery by Xxxxx to such Seller of the
repurchase price. All certificates for Surrendered Shares shall be duly
endorsed in favor of Xxxxx by the Seller. If any Seller shall fail to deliver
such duly endorsed certificate or certificates to Xxxxx within the time
required, Xxxxx shall cause its books and records to show that the Surrendered
Shares are bound by the provisions of this Section 4.3 and that the Surrendered
Shares, until transferred to Xxxxx, shall not be entitled to any proxy, dividend
or other rights from the date by which such certificate or certificates should
have been delivered to Xxxxx.
4.4 Obligations to Participate in Certain Transfers (Drag Along
Obligations). If (a) any Shareholder (a "SECTION 4.4 SELLER") receives a
proposal from a Third Party offering to purchase from any one or more of the
shareholders of the Company in a single transaction or series of related
transactions (whether by merger, consolidation, sale, transfer or exchange of
the Company's capital stock) (i) Securities representing 80% or more of the
outstanding shares of Common Stock (determined on a Fully Diluted basis) or (ii)
all or substantially all of the assets of the Company, (b) such proposal is
acceptable to the Section 4.4 Seller and other record holders who in the
aggregate hold of at least two-thirds (the "APPROVING SHAREHOLDERS") of all of
the outstanding shares of Common Stock (determined on a Fully Diluted Basis) (a
"SALE OF THE COMPANY PROPOSAL"), (c) in the case of a stock sale, the Approving
Shareholders own less than the number of shares and Warrants offered for
purchase in such transaction and (d) in the case of a stock sale, the
Shareholders have not exercised their tag along rights pursuant to Section 4.2
to the extent necessary to cover the full number of Securities subject to the
Sale of the Company Proposal, then the Section 4.4 Seller shall promptly notify
the Company of such fact, and the Company shall send a copy of such notice
together with a copy of the Sale of the Company Proposal (the "DRAGALONG
NOTICE") to all of the other Shareholders. Each of the Shareholders will
consent to and raise no objections to the Sale of the Company Proposal or the
process thereof. If the Sale of the Company Proposal is structured as the sale
of stock, each of the other Shareholders will sell all (or such portion as is
required by the remaining portions of this Section 4.4) of its Securities
offered for purchase by, and pursuant to the terms and conditions of, the Sale
of the Company Proposal. If the Sale of the Company Proposal is structured as a
merger or consolidation, each of the Shareholders will waive all dissenter's
rights, appraisal rights or similar rights in connection with such merger or
consolidation. If the Sale of the Company Proposal is structured as a sale of
all or substantially all of the assets of the Company or Xxxxx, at the request
of the Board, each of the Shareholders shall take such actions as may be
necessary to approve the sale and to cause a liquidation of the Company or its
subsidiaries, as applicable, following the consummation of such transaction.
Upon receipt of the Dragalong Notice, each of the Shareholders shall be
obligated to sell a percentage of its Securities on the terms set forth in the
Sale of the Company Proposal. The percentage of Securities referred to in the
preceding sentence shall equal (a) a percentage mutually agreed upon by all
Shareholders participating or required to participate in such transaction (so
long as the aggregate number of Securities equals the number of shares of Common
Stock (determined as if the Warrants had been fully exercised) offered in the
Sale of the Company Proposal) or (b) in
-20-
24
the absence of any such agreement, the percentage of the outstanding shares of
Common Stock (determined as if the Warrants had been fully exercised) offered
to be purchased pursuant to the Sale of the Company Proposal.
The obligations of the Shareholders to participate in a Sale of the
Company Proposal are also subject to the satisfaction of the following
condition: the consideration to be received in the Sale of the Company
Transaction shall be distributed pro rata among the holders of the shares of
Common Stock; provided that, notwithstanding the foregoing, the holders of the
Warrants, to extent they have not exercised the Warrants prior to or in
connection with the Sale of the Company Transaction, shall be entitled to
receive with respect to each Warrant Share the consideration payable with
respect to a share of Common Stock less the exercise price payable to acquire
such Warrant Share.
If the Company enters into any negotiation or transaction for which Rule
506 of Regulation D ("REGULATION D") promulgated under the Securities Act (or
any similar rule then in effect) may be available with respect to such
negotiation or transaction (including a merger, consolidation or other
reorganization), the holders of Common Stock will, at the request of the Board,
appoint a purchaser representative (as such term is defined in Rule 501 of
Regulation D) reasonably acceptable to the Board. If any holder of any shares
of Common Stock, which is not an "accredited investor" under Rule 501 of
Regulation D, appoints the purchaser representative designated by the Board, the
Company will pay the fees of such purchaser representative, but if any such
holder of Common Stock declines to appoint the purchaser representative
designated by the Board, such holder will appoint another purchaser
representative (reasonably acceptable to the Board), and such holder will be
responsible for the fees of the purchaser representative so appointed.
4.5 Contractual Preemptive Rights. If the Company proposes to issue,
sell or otherwise transfer any shares of Common Stock (or any security
convertible or exchangeable into Common Stock) of the Company (the "OFFERED
SECURITIES"), each Shareholder who is an accredited investor (as defined under
Rule 501 of Regulation D) shall have the right to purchase the number of Offered
Securities provided below in this Section 4.5; provided, that the provisions of
this Section 4.5 shall not apply to any issuances (a) to any employee of the
Company or any of its Subsidiaries pursuant to any stock option or similar
benefit plan or any employee stock offering, (b) in connection with a Public
Offering, (c) of any Common Stock in payment of any dividend on the Common Stock
pursuant to the terms of the Certificate of Incorporation, (d) of any Common
Stock in a merger, stock exchange, purchase of assets or similar transaction,
(e) of any Common Stock upon exercise of the Warrants or (f) of any Common
Stock to any Person that is not a Shareholder or an Affiliate of a Shareholder
at the time of issuance. The Company shall give each Shareholder at least 20
days' prior written notice of any such proposed issuance setting forth in
reasonable detail the proposed terms and conditions thereof and shall offer to
each Shareholder the opportunity to purchase such securities at the same price,
on the same terms (including, if more than one type of security is issued, each
type of security in the same proportion offered), and at the same time as the
securities are proposed to be issued by the Company. A Shareholder may exercise
its preemptive rights by delivery of an irrevocable written notice to the
Company not more than 10 days after delivery of the Company's notice, which
notice shall state the number of Offered Securities such Shareholder (each a
"REQUESTING SHAREHOLDER" and collectively, the "REQUESTING SHAREHOLDERS") would
like to purchase. If the total number of Offered Securities requested to be
purchased exceeds the total number of Offered Securities proposed to be issued
and sold by the Company, then the Company will issue and sell the Offered
Securities to the Requesting Shareholders pro rata based on the number of Shares
(determined on a Fully-Diluted basis) owned by each such Shareholder prior to
the issuance at hand. If the total number of Offered Securities requested to be
purchased does not equal the total number of Offered Securities proposed to be
issued and sold by the Company, the Company shall give notice to each Requesting
Shareholder
-21-
25
and the Requesting Shareholders shall have three (3) days to elect to purchase
the remaining Offered Securities; provided, that any over subscription shall be
subject to the pro rata cut-back provision described in the preceding sentence.
4.6 Termination Upon Initial Public Offering. The provisions of this
Article 4 (other than Section 4.3) shall terminate upon consummation of an
Initial Public Offering.
ARTICLE 5
REGISTRATION RIGHTS
5.1 Demand Registration. (a) If the Issuer shall receive a written
request by the DLJ Entities, Chase, Summit on behalf of the Summit-Investors or
the Xxxxx Xxxx Investors (as provided in Section 5.13) (any such requesting
Person, a "SELLING SHAREHOLDER") that the Issuer effect the registration under
the Securities Act of all or a portion of such Selling Shareholder's shares of
Common Stock, and specifying the intended method of disposition thereof,
following the earlier to occur of (i) October 5, 1999 or (ii) an Initial Public
Offering, then the Issuer shall promptly give written notice of such requested
registration (a "DEMAND REGISTRATION") at least 30 days prior to the anticipated
filing date of the registration statement relating to such Demand Registration
to the other Shareholders and thereupon will use its best efforts to effect, as
expeditiously as possible, the registration under the Securities Act of:
(A) the Registrable Securities which the Issuer has been so
requested to register by the Selling Shareholders, then held by the Selling
Shareholders; and
(B) subject to the cut back provisions set forth in
Section 5.2, all other Registrable Securities of the same type (it being
understood that voting and non-voting common stock will be considered the
same type) as that to which the request by the Selling Shareholders relates
which any other Shareholder entitled to request the Issuer to effect an
Incidental Registration (as such term is defined in Section 5.2) pursuant to
Section 5.2 (all such Shareholders, together with the Selling Shareholders,
the "HOLDERS") has requested the Issuer to register by written request
received by the Issuer within 15 days after the receipt by such Holders of
such written notice given by the Issuer,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered;
provided that, subject to Section 5.1(c) hereof, (I) the Company shall not be
obligated to effect more than three Demand Registrations for the
Summit-Investors collectively, three Demand Registrations for the DLJ Entities
collectively, three Demand Registrations for the Xxxxx Xxxx Investors
collectively, or three Demand Registrations for Chase pursuant to this Section
5.1, and (II) in addition to the foregoing rights, following the Short-Form
Date, the number of Short-Form Demand Registrations for the DLJ Entities,
Chase, the Summit-Investors and the Xxxxx Xxxx Investors pursuant to this
Section 5.1 shall be unlimited;
and provided further that the Issuer shall not be obligated to effect a Demand
Registration with respect to Common Stock unless the aggregate proceeds
expected to be received from the sale of the Common Stock requested to be
included in such Demand Registration equal at least (x) if such Demand
Registration would constitute an Initial Public Offering, $50,000,000, or (y)
in any other Public Offering, $20,000,000. In no event will the Issuer be
required to effect more than one Demand Registration within any 6 month period.
-22-
26
Promptly after the expiration of the 15-day period referred to in
Section 5.1(a)(B) hereof, the Issuer will notify all the Holders to be included
in the Demand Registration of the other Holders and the number of shares of
Registrable Securities requested to be included therein. The Selling
Shareholders requesting a registration under this Section 5.1(a) may, at any
time prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other
Holders, by providing a written notice to the Issuer revoking such request, in
which case such request, so revoked, shall be considered a Demand Registration
unless such revocation arose out of the fault of the Issuer, in which case such
request shall not be considered a Demand Registration, or unless the
participating Shareholders reimburse the Issuer for all costs incurred by the
Issuer in connection with such registration.
(b) The Issuer will pay all Registration Expenses in connection with
any Demand Registration.
(c) A registration requested pursuant to this Section 5.1 shall not be
deemed to have been effected (i) unless the registration statement relating
thereto (A) has become effective under the Securities Act and (B) has remained
effective for a period of at least 180 days (or such shorter period in which all
Registrable Securities of the Holders included in such registration have
actually been sold thereunder); provided that if after any registration
statement requested pursuant to this Section 5.1 becomes effective (x) such
registration statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court and (y)
less than 75% of the Registrable Securities included in such registration
statement has been sold thereunder, such registration statement shall not be
considered a Demand Registration or (ii) if the Maximum Offering Size (as
defined below) is reduced in accordance with Section 5.1(d) such that less than
66 2/3% of the Registrable Securities of the Selling Shareholders sought to be
included in such registration are included.
(d) If a Demand Registration involves an Underwritten Public Offering
and the managing underwriter shall advise the Issuer and the Selling
Shareholders that, in its view, (i) the number of shares of Common Stock or
Warrants requested to be included in such registration (including Common Stock
or Warrants which the Issuer proposes to be included which are not Registrable
Securities) or (ii) the inclusion of some or all of the shares of Common Stock
or Warrants owned by the Holders, in any such case, exceeds the largest number
of shares which can be sold without having an adverse effect on such offering,
including the price at which such Shares can be sold (the "MAXIMUM OFFERING
SIZE"), the Issuer will include in such registration, in the priority listed
below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be
registered by any Selling Shareholders (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata among such
Selling Shareholders on the basis of the relative number of Registrable
Securities so requested to be included in such registration);
(B) second, all Registrable Securities requested to be
included in such registration by any other Holder (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro rata among
such other Holders on the basis of the relative number of Registrable
Securities so requested to be included in such registration); and
(C) third, any Common Stock proposed to be registered by the
Issuer.
(e) Upon written notice to each Selling Shareholder, the Issuer may
postpone effecting a registration pursuant to this Section 5.1 on one occasion
during any period of six consecutive months for a reasonable time specified in
the notice but not exceeding 90 days (which
-23-
27
period may not be extended or renewed), if (i) an investment banking firm of
recognized national standing shall advise the Issuer and the Selling
Shareholders in writing that effecting the registration would materially and
adversely affect an offering of securities of such Issuer the preparation of
which had then been commenced or (ii) such Issuer is in possession of material
non-public information the disclosure of which during the period specified in
such notice such Issuer believes would not be in the best interests of such
Issuer.
5.2 Incidental Registration. (a) If the Company proposes to register
any of its Common Stock or Warrants, or if Xxxxx proposes to register any of its
Preferred Stock, under the Securities Act (other than a registration (x) on Form
S-8 or S-4 or any successor or similar forms, (y) relating to securities
issuable upon exercise of employee stock options or in connection with any
employee benefit or similar plan of the Issuer or (z) in connection with a
direct or indirect merger, acquisition or other similar transaction), whether or
not for sale for its own account, it will at such time, subject to the
provisions of Section 5.2(b) hereof, give prompt written notice at least 20 days
prior to the anticipated filing date of the registration statement relating to
such registration to each Shareholder, which notice shall set forth such
Shareholders' rights under this Section 5.2 and shall offer all Shareholders the
opportunity to include in such registration statement such number of Registrable
Securities of the same type as those proposed to be registered by the Issuer as
each such Shareholder may request (an "INCIDENTAL REGISTRATION"). Upon the
written request of any such Shareholder made within 10 days after the receipt of
notice from the Issuer (which request shall specify the number of Registrable
Securities intended to be disposed of by such Shareholder), the Issuer will use
all reasonable efforts to effect the registration under the Securities Act of
all Registrable Securities of the same type as those proposed to be registered
by the Issuer which the Issuer has been so requested to register by such
Shareholders, to the extent requisite to permit the disposition of the
Registrable Securities so to be registered; provided that (i) if such
registration involves an Underwritten Public Offering, all such Shareholders
requesting to be included in the Issuer's registration must sell their
Registrable Securities to the underwriters selected as provided in Section
5.4(f) on the same terms and conditions as apply to the Issuer or the Selling
Shareholder, as applicable, and (ii) if, at any time after giving written notice
of its intention to register any stock pursuant to this Section 5.2(a) and prior
to the effective date of the registration statement filed in connection with
such registration, the Issuer shall determine for any reason not to register
such stock, the Issuer shall give written notice to all such Shareholders and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration. No registration effected under
this Section 5.2 shall relieve the Issuer of its obligations to effect a Demand
Registration to the extent required by Section 5.1 hereof. The Issuer will pay
all Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 5.2.
(b) If a registration pursuant to this Section 5.2 involves an
Underwritten Public Offering (other than in the case of an Underwritten Public
Offering requested by any Shareholder in a Demand Registration, in which case
the provisions with respect to priority of inclusion in such offering set forth
in Section 5.1(d) shall apply) and the managing underwriter advises the Issuer
that, in its view, the number of shares of Preferred Stock or Common Stock or
Warrants which the Issuer and the Selling Shareholders intend to include in such
registration exceeds the Maximum Offering Size, the Issuer will include in such
registration, in the following priority, up to the Maximum Offering Size:
(i) first, so much of the Common Stock proposed to be
registered for the account of the Issuer as would not cause the offering to
exceed the Maximum Offering Size; and
-24-
28
(ii) second, all Registrable Securities requested to be
included in such registration by any Shareholder pursuant to Section 5.2
(allocated, if necessary for the offering not to exceed the Maximum Offering
Size, pro rata among such Shareholders on the basis of the relative number
of shares of Registrable Securities so requested to be included in such
registration).
5.3 Holdback Agreements. With respect to each and every Underwritten
Public Offering, each Shareholder agrees not to effect any public sale or
distribution, including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable Securities, and not to
effect any such public sale or distribution of any other security of the Issuer
that is convertible into or exchangeable or exercisable for any Common Stock and
that would be a Registrable Security (in each case, other than as part of such
Underwritten Public Offering) during the 14 days prior to the effective date of
the applicable registration statement (except as part of such registration) or
during the period after such effective date that such managing underwriter and
the Issuer shall agree (but not to exceed 180 days or any such shorter period
(but not less than 90 days) as the managing underwriter may suggest).
5.4 Registration Procedures. Whenever Shareholders request that any
Registrable Securities be registered pursuant to Section 5.1 or 5.2 hereof, the
Issuer will, subject to the provisions of such Sections, use all reasonable
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) The Issuer will as expeditiously as possible prepare and file with
the SEC a registration statement on any form selected by counsel for the Issuer
and which form shall be available for the sale of the Registrable Securities to
be registered thereunder in accordance with the intended method of distribution
thereof, and use all reasonable efforts to cause such filed registration
statement to become and remain effective for a period of not less than 10 days
(or such shorter period in which all of the Registrable Securities of the
Holders included in such registration statement shall have actually been sold
thereunder).
(b) The Issuer will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to each
Shareholder and each underwriter, if any, of the Registrable Securities covered
by such registration statement copies of such registration statement as proposed
to be filed, and thereafter the Issuer will furnish to such Shareholder and
underwriter, if any, such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein), the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such Shareholder or underwriter may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
Shareholder. Each Shareholder shall have the right to request that the Issuer
modify any information contained in such registration statement, amendment and
supplement thereto pertaining to such Shareholder and the Issuer shall use all
reasonable efforts to comply with such request, provided, however, that the
Issuer shall not have any obligation to so modify any information if so doing
would cause the prospectus to contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) After the filing of the registration statement, the Issuer will
promptly notify each Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC or any
state securities commission under state blue sky laws and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
-25-
29
(d) The Issuer will use all reasonable efforts to (i) register or
qualify the Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such jurisdictions in the United
States as any Shareholder holding such Registrable Securities reasonably (in
light of such Shareholder's intended plan of distribution) requests, (ii) cause
such Registrable Securities to be listed on any national securities exchange or
included for trading on any automated quotation system on which its Common Stock
is then listed or included for trading and (iii) 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 Issuer and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Shareholder to consummate the disposition
of the Registrable Securities owned by such Shareholder; provided that the
Issuer will not be required to (A) qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this
paragraph (d), (B) subject itself to taxation in any such jurisdiction or (C)
consent to general service of process in any such jurisdiction.
(e) The Issuer will immediately notify each Shareholder holding such
Registrable Securities covered by such registration statement at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the occurrence of an event requiring the preparation of a supplement or
amendment to such prospectus so that, as thereafter delivered to the purchasers
of such Registrable Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading and
promptly prepare and make available to each such Shareholder and file with the
SEC any such supplement or amendment.
(f) In connection with (i) (A) any Demand Registration requested by the
DLJ Entities or their Permitted Transferees or (B) any registration of
Registrable Securities pursuant to this Article 5 in which 50% or more of the
securities proposed to be registered are securities beneficially owned by the
DLJ Entities or their Permitted Transferees, (ii) (A) any Demand Registration
requested by the Summit-Investors or their Permitted Transferees or (B) any
registration of Registrable Securities pursuant to this Article 5 in which 50%
or more of the securities proposed to be registered are securities beneficially
owned by the Summit-Investors or their Permitted Transferees, (iii)(A) any
Demand Registration requested by Chase or its Permitted Transferees or (B) any
registration of Registrable Securities pursuant to this Article 5 in which 50%
or more of the securities proposed to be registered are securities beneficially
owned by Chase or its Permitted Transferees, (iv)(A) any Demand Registration
requested by the Xxxxx Xxxx Investors or their Permitted Transferees or (B) any
registration of Registrable Securities pursuant to this Article 5 in which 50%
or more of the securities proposed to be registered are securities beneficially
owned by the Xxxxx Xxxx Investors or their Permitted Transferees, the Issuer
shall not appoint any underwriters unless the DLJ Entities, Chase, the
Summit-Investors, or the Xxxxx Xxxx Investors, as applicable, shall have
approved such appointment. Any Affiliate of any of the DLJ Entities may be
selected as underwriter for an Underwritten Public Offering. The Issuer will
enter into customary agreements (including an underwriting agreement in
customary form) and take such other actions as are reasonably required in order
to expedite or facilitate the disposition of such Registrable Securities,
including the engagement of a "qualified independent underwriter" in connection
with the qualification of the underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form and substance
reasonably satisfactory to the Issuer, the Issuer will make available for
inspection by any Shareholder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Issuer
pursuant to this Section 5.4 and any attorney, accountant or other professional
retained by any such Shareholder or underwriter (collectively, the
"INSPECTORS"), financial and other records, pertinent corporate documents and
properties of the Issuer (collectively,
-26-
30
the "RECORDS") as shall be reasonably requested by any such Person, and cause
the Issuer's officers, directors and employees to supply all information
reasonably requested by any Inspectors in connection with such registration
statement.
(h) The Issuer will furnish to each such Shareholder and to each such
underwriter, if any, a signed counterpart, addressed to such underwriter and the
participating Shareholders, of (i) an opinion or opinions of counsel to the
Issuer and (ii) a comfort letter or comfort letters from the Issuer's
independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may
be, as a majority of such Shareholders or the managing underwriter therefor
reasonably requests.
(i) The Issuer will otherwise use all reasonable efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable, an earnings statement
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(j) The Issuer may require each such Shareholder to promptly furnish in
writing to the Issuer information regarding the distribution of the Registrable
Securities as the Issuer may from time to time reasonably request and such other
information as may be legally required in connection with such registration.
(k) Each such Shareholder agrees that, upon receipt of any notice from
the Issuer of the happening of any event of the kind described in Section 5.4(e)
hereof, such Shareholder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Shareholder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 5.4(e) hereof, and, if so directed by
the Issuer, such Shareholder will deliver to the Issuer all copies, other than
any permanent file copies then in such Shareholder's possession, of the most
recent prospectus covering such Registrable Securities at the time of receipt of
such notice. In the event that the Issuer shall give such notice, the Issuer
shall extend the period during which such registration statement shall be
maintained effective (including the period referred to in Section 5.4(a) hereof)
by the number of days during the period from and including the date of the
giving of notice pursuant to Section 5.4(e) hereof to the date when the Issuer
shall make available to such Shareholder a prospectus supplemented or amended to
conform with the requirements of Section 5.4(e) hereof.
(l) In any firm underwritten offering of Common Stock, the Issuer shall
require the managing underwriter to agree to purchase Warrants for shares of
Common Stock otherwise includable in such offering pursuant to this Article 5,
at a price per share of Common Stock equal to the price per share at which such
shares of Common Stock are offered to the public, less (i) underwriting
discounts or commissions attributable to each such share and (ii) the Exercise
Price per share.
(5.5) Indemnification by the Issuer. The Issuer agrees to indemnify and
hold harmless each Shareholder holding Registrable Securities covered by a
registration statement, its officers, directors, employees, partners and agents,
and each Person, if any, who controls such Shareholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any untrue
statement or alleged untrue statement of a material fact contained in any
registration statement or prospectus relating to the Registrable Securities (as
amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or
-27-
31
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission so made in strict
conformity with information furnished in writing to the Issuer by such
Shareholder or on such Shareholder's behalf expressly for use therein; provided
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, or in any prospectus,
as the case may be, the indemnity agreement contained in this paragraph shall
not apply to the extent that any such loss, claim, damage, liability or expense
results from the fact that a current copy of the prospectus (or such amended or
supplemental prospectus, as the case may be) was not sent or given to the
Person asserting any such loss, claim, damage, liability or expense at or prior
to the written confirmation of the sale of the Registrable Securities concerned
to such Person if it is determined that the Issuer has provided such prospectus
to such Shareholder in a timely manner prior to such sale and it was the
responsibility of such Shareholder under the Securities Act to provide such
Person with a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) and such current copy of the prospectus (or
such amended or supplemented prospectus, as the case may be) would have cured
the defect giving rise to such loss, claim, damage, liability or expense. The
Issuer also agrees to indemnify any underwriters of the Registrable Securities,
their officers and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the Shareholders
provided in this Section 5.5.
5.6 Indemnification by Participating Shareholders. Each Shareholder
holding Registrable Securities included in any registration statement agrees,
severally but not jointly, to indemnify and hold harmless the Issuer, its
officers, directors and agents and each Person, if any, who controls the Issuer
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act to the same extent as the foregoing indemnity from the Issuer
to such Shareholder, but only (i) with respect to information furnished in
writing by such Shareholder or on such Shareholder's behalf expressly for use in
any registration statement or prospectus relating to the Registrable Securities,
or any amendment or supplement thereto, or any preliminary prospectus or (ii) to
the extent that any loss, claim, damage, liability or expense described in
Section 5.5 results from the fact that a current copy of the prospectus (or such
amended or supplemented prospectus, as the case may be) was not sent or given to
the Person asserting any such loss, claim, damage, liability or expense at or
prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that it was the responsibility of
such Shareholder to provide such Person with a current copy of the prospectus
(or such amended or supplemented prospectus, as the case may be) and such
current copy of the prospectus (or such amended or supplemented prospectus, as
the case may be) would have cured the defect giving rise to such loss, claim,
damage, liability or expense. Each such Shareholder shall be prepared, if
required by the underwriting agreement, to indemnify and hold harmless
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of the Issuer provided in this Section 5.6. As a
condition to including Registrable Securities in any registration statement
filed in accordance with Article 5 hereof, the Issuer may require that it shall
have received an undertaking reasonably satisfactory to it from any underwriter
to indemnify and hold lt harmless to the extent customarily provided by
underwriters with respect to similar securities.
5.7 Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
Person in respect of which indemnity may be sought pursuant to this Article 5,
such Person (an "INDEMNIFIED PARTY") shall promptly notify the Person against
whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to such Indemnified Party, and shall assume the
payment of all fees and expenses; provided that the failure of any Indemnified
Party so to notify the Indemnifying
-28-
32
Party shall not relieve the Indemnifying Party of its obligations hereunder
except to the extent that the Indemnifying Party is materially prejudiced by
such failure to notify. In any such proceeding, any Indemnified Party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually agreed to the
retention of such counsel or (ii) in the reasonable judgment of such
Indemnified Party representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the Indemnifying Party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties,
and that all such fees and expenses shall be reimbursed as they are incurred.
In the case of any such separate firm for the Indemnified Parties, such firm
shall be designated in writing by the Indemnified Parties. The Indemnifying
Party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any and all losses, claims,
damages, liabilities and expenses or liability (to the extent stated above) by
reason of such settlement or judgment. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Party
is or could have been a party and indemnity could have been sought hereunder by
such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such
proceeding.
5.8 Contribution. If the indemnification provided for in this Article
5 is held by a court of competent jurisdiction to be unavailable to the
Indemnified Parties in respect of any losses, claims, damages or liabilities
referred to herein, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (i)
as between the Issuer and the Shareholders holding Registrable Securities
covered by a registration statement and their related Indemnified Parties on the
one hand and the underwriters and their related Indemnified Parties on the other
hand, in such proportion as is appropriate to reflect the relative benefits
received by the Issuer and such Shareholders on the one hand and the
underwriters on the other hand, from the offering of the Shareholders'
Registrable Securities, or if such allocation is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits but also the relative fault of the Issuer and such Shareholders on the
one hand and of such underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations and (ii) as
between the Issuer and their related Indemnified Parties on the one hand and
each such Shareholder and their related Indemnified Parties on the other hand,
in such proportion as is appropriate to reflect the relative fault of the Issuer
and of each such Shareholder in connection with such statements or omissions, as
well as any other relevant equitable considerations. The relative benefits
received by the Issuer and such Shareholders on the one hand and such
underwriters on the other hand 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 Issuer and such
Shareholders bear to the total underwriting discounts and commissions received
by such underwriters, in each case as set forth in the table on the cover page
of the prospectus. The relative fault of the Issuer and such Shareholders on
the one hand and of such underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Issuer and such Shareholders or by such
underwriters. The relative fault of the Issuer on the one hand and of each such
Shareholder on the other hand 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
-29-
33
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Issuer and the Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 5.8 were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such Indemnified
Party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5.8, no underwriter shall be
required to contribute any amount in excess of the underwriting discount
applicable to Securities purchased by such underwriter in such offering, less
the aggregate amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no Shareholder shall be required to contribute any
amount in excess of the amount by which the total price at which the Registrable
Securities of such Shareholder were offered to the public exceeds the amount of
any damages which such Shareholder has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Each Shareholder's
obligation to contribute pursuant to this Section 5.8 is several in the
proportion that the proceeds of the offering received by such Shareholder bears
to the total proceeds of the offering received by all such Shareholders and not
joint.
5.9 Participation in Public Offering. No Person may participate in any
Underwritten Public Offering hereunder unless such Person (a) agrees to sell
such Person's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and the provisions of this Agreement in
respect of registration rights.
5.10 Cooperation by the Issuer. In the event any Shareholder shall
transfer any Registrable Securities pursuant to Rule 144A under the Securities
Act, the Issuer shall cooperate, to the extent commercially reasonable, with
such Shareholder and shall provide to such Shareholder such information as such
Shareholder shall reasonably request.
5.11 No Transfer of Registration Rights. None of the rights of
Shareholders under this Article 5 shall be assignable by any Shareholder to any
Person acquiring Securities in any Public Offering or pursuant to Rule 144A of
the Securities Act.
5.12 Rule 144 Information. So long as the Company is subject to
Section 13 or Section 15(d) of the Exchange Act, the Company will make all
filings thereunder in a timely manner in order to permit the resale of
securities pursuant to Rule 144 within the limitation of the exemptions provided
in Rule 144.
5.13 Xxxxx Xxxx Rights. The rights of the Xxxxx Xxxx Investors under
this Article 5 may only be exercised by (a) either BRS or Xxxxx Xxxx L.L.C. at
any time the Xxxxx Xxxx Investors are entitled to designate two individuals
under Section 2.1(a) or (b) at all other times, by the Xxxxx Xxxx
Representative; provided, the exercise of rights by BRS or Xxxxx Xxxx L.L.C.
shall not duplicate
-30-
34
or otherwise increase the aggregate rights granted to the Xxxxx Xxxx Investors
under the other provisions of this Article 5.
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
6.1 Confidentiality. (a) Each Shareholder hereby agrees that
Confidential Information (as defined below) furnished and to be furnished to it
was and will be made available in connection with such Shareholder's investment
in the Issuer. Each Shareholder agrees that it will use the Confidential
Information only in connection with its investment in the Issuer and not for any
other purpose. Each Shareholder further acknowledges and agrees that it will
not disclose any Confidential Information to any Person; provided that
Confidential Information may be disclosed (i) to such Shareholder's
Representatives (as defined below) in the normal course of the performance of
their duties or to any financial institution providing credit to such
Shareholder, (ii) to the extent required by applicable law, rule or regulation
(including complying with any oral or written questions, interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar process to which a Shareholder is subject; provided that such
Shareholder gives the Issuer prompt notice of such request(s), to the extent
practicable, so that the Issuer may seek an appropriate protective order or
similar relief (and the Shareholder shall cooperate with such efforts by the
Issuer, and shall in any event make only the minimum disclosure required by such
law, rule or regulation)), (iii) to any Person to whom such Shareholder is
contemplating a transfer of its Shares (provided that such transfer would not be
in violation of the provisions of this Agreement and as long as such potential
transferee is advised of the confidential nature of such information and agrees
to be bound by a confidentiality agreement in form and substance satisfactory to
the Issuer and consistent with the provisions hereof) or (iv) if the prior
written consent of the Board (or board of directors of Xxxxx, as applicable)
shall have been obtained. Nothing contained herein shall prevent the use
(subject, to the extent possible, to a protective order) of Confidential
Information in connection with the assertion or defense of any claim by or
against the Issuer or any Shareholder.
(b) "CONFIDENTIAL INFORMATION" means any information concerning the
Issuer and Persons which are or become its subsidiaries or the financial
condition, business, operations or prospects of the Issuer and Persons which are
or become its subsidiaries in the possession of or furnished to any Shareholder
(including, without limitation by virtue of its present or former right to
designate a director of the Issuer); provided that the term "Confidential
Information" does not include information which (i) is or becomes generally
available to the public other than as a result of a disclosure by a Shareholder
or its partners, directors, officers, employees, agents, counsel, investment
advisers or representatives (all such persons being collectively referred to as
"REPRESENTATIVES") in violation of this Agreement, (ii) is or was available to
such Shareholder on a nonconfidential basis prior to its disclosure to such
Shareholder or its Representatives by the Issuer or (iii) was or becomes
available to such Shareholder on a non-confidential basis from a source other
than the Issuer, provided that such source is or was (at the time of receipt of
the relevant information) not, to the best of such Shareholder's knowledge,
bound by a confidentiality agreement with (or other confidentiality obligation
to) the Issuer or another Person.
6.2 Cooperation in Refinancings. Each Shareholder agrees to cooperate
to the extent commercially reasonable with the Company and Xxxxx and take such
steps as the Board reasonably deems appropriate in any refinancing of debt of
Xxxxx and any of its Subsidiaries in connection with the financing of
transactions contemplated in the Xxxxx Xxxx Merger Agreement including executing
such documents as the Board reasonably determined should be filed with any
governmental agency and conducting presentations to potential investors and
rating agencies. This
-31-
35
Section 6.2 shall not be construed to require any Shareholder to contribute any
additional capital to the Company or Xxxxx.
6.3 Reports. The Company will furnish the Shareholders with the
quarterly and annual financial reports that the Company is required to file with
the Securities and Exchange Commission pursuant to Section 13 or Section 15(d)
of the Exchange Act or, in the event the Company is not required to file such
reports, quarterly and annual reports containing the same information as would
be required in such reports.
6.4 Limitations on Senior Registration Rights The Issuer shall not
enter into any agreement with any holder or prospective holder of any securities
of the Issuer that would allow such holder or prospective holder to include such
securities ("NEW SECURITIES") in any registration filed pursuant to Section 5.1
or 5.2 hereof, unless under the terms of such agreement, such holder's or
prospective holder's registration rights are pari passu or junior to the
registration rights granted under this Agreement.
6.5 Certain Notices. Issuer shall use all reasonable efforts to give
Chase not less than 30 days' notice of any repurchases, redemptions or similar
events.
6.6 Reservation of Shares. The Company hereby agrees that at all times
there shall be reserved for issuance and delivery upon exercise of the Warrants
such number of its authorized but unissued shares of Class A Common Stock or
Class B Common Stock or other securities of the Company from time to time
issuable upon exercise of the Warrants as will be sufficient to permit the
exercise in full of the Warrants.
6.7 Meetings of Stockholders. Holders of Warrants, for so long as they
are Shareholders, shall have the right to attend annual and special meetings of
the holders of Common Stock.
ARTICLE 7
MISCELLANEOUS
7.1 Entire Agreement. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements and understandings, both oral
and written, between the parties with respect to the subject matter hereof and
thereof.
7.2 Binding Effect: Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, legal representatives and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than
the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
7.3 Assignability. Except as provided herein, neither this Agreement
nor any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by the Company, Xxxxx or any Shareholder, provided
that any Person acquiring Securities who is required by the terms of this
Agreement to become a party hereto shall execute and deliver to the Company and
Xxxxx an agreement to be bound by this Agreement and shall thenceforth be a
"SHAREHOLDER".
-32-
36
7.4 Amendment; Waiver; Termination. (a) No provision of this Agreement
may be waived except by an instrument in writing executed by the party against
whom the waiver is to be effective. No provision of this Agreement may be
amended or otherwise modified except by an instrument in writing executed by the
Company with approval of the Board and (i) holders of at least 75% of the shares
of Common Stock (including those acquirable upon exercise of the Warrants) held
by the parties to this Agreement at the time of such proposed amendment or
modification and, if such amendment or modification affects the duties or rights
under this Agreement of the holders of Preferred Stock, holders of at least 75%
of the Preferred Stock held by the parties to this Agreement at the time of such
proposed amendment or modification or (ii) in the case of any amendment of this
Section 7.4, the holders of all shares of Common Stock and all shares of
Preferred Stock, in each case, held or acquirable (pursuant to the Warrants) by
the parties to this Agreement at the time of such proposed amendment or
modification. Notwithstanding the foregoing, the provisions of Section 2.1 may
be amended with the approval of the Board, the DLJ Entities, Summit/DPC, or in
the event Summit/DPC shall have ceased to exist, Summit, Chase, and one of the
Xxxxx Xxxx Representatives.
(b) In addition, any amendment or modification of any provision of this
Agreement that would adversely affect any DLJ Entity in a manner that would not
also adversely affect a similarly situated Shareholder may be effected only with
the consent of such DLJ Entity.
(c) In addition, any amendment or modification of any provision of this
Agreement that would adversely affect Summit/DPC in a manner that would not also
adversely affect a similarly situated Shareholder may be effected only with the
consent of Summit/DPC, or in the event Summit/DPC shall have ceased to exist,
Summit.
(d) In addition, any amendment or modification of any provision of this
Agreement that would adversely affect Chase in a manner that would not also
adversely affect a similarly situated Shareholder may be effected only with the
consent of Chase.
(e) In addition, any amendment or modification of any provision of this
Agreement that would adversely affect any Xxxxx Xxxx Investor in a manner that
would not also adversely affect a similarly situated Shareholder may be effected
only with the consent of one of the Xxxxx Xxxx Representatives.
(f) This Agreement shall terminate on the fifth anniversary of the date
hereof unless earlier terminated.
7.5 Notices. All notices and other communications given or made
pursuant hereto or pursuant to any other agreement among the parties, unless
otherwise specified, shall be in writing and shall be deemed to have been duly
given and received when sent by fax (with confirmation in writing via first
class U.S. mail) or delivered personally or on the third Business Day after
being sent by registered or certified U.S. mail (postage prepaid, return receipt
requested) to the parties at the fax number or address set forth below or at
such other addresses as shall be furnished by the parties by like notice:
-33-
37
if to the Company or Xxxxx, to:
DPC Acquisition Corp.
Xxxxx Products Company
X.X. Xxx 000
West 20th and Xxxxx Xxxx Xxxx
Xxxxxx, XX 00000-0000
Attention: President
Fax: (000) 000-0000
if to the DLJ Entities, to:
DLJ Merchant Banking Funding, Inc.
DLJ Merchant Banking Partners, L.P.
DLJ First ESC, L.L.C.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
and to:
DLJ International Partners, X.X.
XXX Xxxxxxxx Xxxxxxxx, X.X.
x/x XXX Offshore Management N.V.
Xxxx X. Xxxxxxxxxx 0
Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx Antilles
Attention: Xxxxxxxx Xxxxxx
MeesPierson Trust (Curacao) N.V.
Fax:000-000-000-0000
with copies to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
and
DLJ Merchant Banking, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Fax: (000) 000-0000
if to any Summit-Investor or Xxxxx Xxxx Investor, to such Summit-Investor or
Xxxxx Xxxx Investor at the address specified by such Summit-Investor or Xxxxx
Xxxx Investor on the signature pages of this Agreement or in a notice given by
such Summit-Investor or Xxxxx Xxxx Investor;
-34-
38
with copies of any notice given to any Summit-Investor to:
Summit Capital Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Fax: (000) 000-0000
and
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
if to Chase, to:
Chase Manhattan Investment Holdings, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
if to Baseball Partners, to:
Baseball Partners
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Fax: (212)_____________
Any Person who becomes a Shareholder shall provide its address and fax number
to the Company, which shall promptly provide such information to each other
Shareholder.
7.6 Headings. The headings contained in this Agreement are for
convenience only and shall not affect the meaning or interpretation of this
Agreement.
7.7 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall be deemed to be one and the same instrument.
7.8 Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to the
conflicts of laws rules of such state.
7.9 Specific Enforcement. Each party hereto acknowledges that the
remedies at law of the other parties for a breach or threatened breach of this
Agreement would be inadequate and, in recognition of this fact, any party to
this Agreement, without posting any bond, and in addition to all other remedies
which may be available, shall be entitled to obtain equitable relief in the form
-35-
39
of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
7.10 Consent to Jurisdiction; Expenses. (a) Any suit, action or
proceeding seeking to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement or the transactions contemplated
hereby shall be brought in any Federal Court sitting in New York, New York, or
any New York State court sitting in New York, New York, and each of the parties
hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient form. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party by any method provided in Section 7.5 shall be
deemed effective service of process on such party and consents to the personal
jurisdiction of any Federal Court sitting in New York, New York, or any New York
State court sitting in New York, New York.
(b) In any dispute arising under this Agreement among any of the
parties hereto, the costs and expenses (including, without limitation, the
reasonable fees and expenses of counsel) incurred by the prevailing party shall
be paid by the party that does not prevail.
7.10 Severability. If one or more provisions of this Agreement are
held to be unenforceable to any extent under applicable law, such provision
shall be interpreted as if it were written so as to be enforceable to the
maximum possible extent so as to effectuate the parties' intent to the maximum
possible extent, and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
DPC ACQUISITION CORP.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title:
---------------------------------
XXXXX PRODUCTS COMPANY
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title:
---------------------------------
-36-
40
SUMMIT CAPITAL INC.
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
----------------------------------
Title: Chairman
---------------------------------
CHASE MANHATTAN
INVESTMENT HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title:
---------------------------------
BASEBALL PARTNERS
By: /s/ XXXXX XXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------------
Title:
---------------------------------
SUMMIT/DPC PARTNERS, L.P.
BY: SUMMIT CAPITAL, INC.,
its General Partner
By: /s/ XXXXXX X. XXXXX
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman
DLJ MERCHANT BANKING
PARTNERS, L.P.,
a Delaware Limited Partnership
BY DLJ MERCHANT BANKING, INC.
Managing General Partner
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title:
----------------------------------
-37-
41
DLJ INTERNATIONAL PARTNERS, C.V.
BY DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title:
---------------------------------
DLJ OFFSHORE PARTNERS, C.V.
BY DLJ MERCHANT BANKING, INC.
Advisory General Partner
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title:
---------------------------------
DLJ FIRST ESC, L.L.C.
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title:
---------------------------------
DLJ MERCHANT BANKING
FUNDING, INC.
By: /s/ XXXXX XXXXXX
------------------------------------
Name: Xxxxx Xxxxxx
----------------------------------
Title:
---------------------------------
Address: THE XXXXXXXXX 1989 TRUST
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Fax: (000) 000-0000
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Address:
000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000 By:
------------------------------------
Xxxx X. Xxxxx
-38-
42
Address:
0000 Xxxxx Xxx
Xxxxxx, XX 00000 By:
------------------------------------
Xxxxx X. Xxxxxxx
Address:
0000 Xxxxxxxxx Xxxxxxx 00
Xxxxxx Xxxxxxx, XX 00000 By: /s/ XXX X. XXXXXXXX
------------------------------------
Xxx X. Xxxxxxxx
Address:
0000 Xxxx 00xx Xxxxxx
Xxxxxx, XX 00000 By:
------------------------------------
Xxx X. Xxxx
Address:
0000 Xxxx 00xx Xxxxx
Xxxxxx, XX 00000 By:
------------------------------------
Xxxx X. Xxxxxxxx
Address:
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000 By:
------------------------------------
J. Xxxxx Xxxxxx
Address:
0000 Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000 By: /s/ XXXXX XXXXXXX XXXXXX
------------------------------------
Xxxxx Xxxxxxx Xxxxxx
Address:
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000 By:
------------------------------------
Xxxx X. Xxxxxxxxx
Address:
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000 By:
------------------------------------
Xxx X. Xxxxxxxxx
-39-
43
Address:
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000 By:
------------------------------------
Xxxx X. Xxxxxxxxx
-40-
44
The following signatories are the "Xxxxx Xxxx Investors":
Address: DARTFORD PARTNERSHIP, L.L.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 By: /s/ XXX XXXXX
------------------------------------
Name: Xxx Xxxxx
----------------------------------
Title:
---------------------------------
Address: BRUCKMANN, XXXXXX, XXXXXXXX & CO., L.P.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx By: /s/ XXXXXXX X. XXXXXXXX
------------------------------------
By: BRS Partners, Limited Partnership Name: Xxxxxxx X. Xxxxxxxx
its general partner ----------------------------------
By: BRSE Associates, Inc., Title:
its general partner ---------------------------------
Address: PNC CAPITAL CORP
CNG Tower
000 Xxxxxxx Xxxxxx, Xxxxx 0000 By: /s/ XXXXXXX XXXXX
Xxxxxxxxxx, Xx. 00000 ------------------------------------
Attention: Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx
----------------------------------
Title: Vice President
---------------------------------
Address: XXXXX XXXX PET FOOD COMPANY L.L.C.
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000 By: /s/ XXX XXXXX
------------------------------------
Name: Xxx Xxxxx
----------------------------------
Title:
---------------------------------
Address:
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000 /s/ XXXXXX X. XXXX
---------------------------------------
Xxxxxx X. Xxxx
Address:
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ F. XXXXXX XXXXX, XX.
---------------------------------------
F. Xxxxxx Xxxxx, Xx.
-41-
45
Address:
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ XXXXXX X. XXXX
---------------------------------------
Xxxxxx X. Xxxx
Address:
000 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
/s/ XXXXX X. XXXX, XX.
---------------------------------------
Xxxxx X. Xxxx, Xx.
Address:
0000 Xxxxx Xxxxx Xxxxx
Xxxxxxxx, XX 00000
/s/ XXX X. XxXxxxx
---------------------------------------
Xxx X. XxXxxxx
Address:
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxxxxx, XX 00000
/s/ XXXXXX X. XXXXXX
---------------------------------------
Xxxxxx X. Xxxxxx
Address:
0000 Xxxxx Xxxxxx Xxxx
Xxxxxxxx, XX 00000
/s/ XXXXXXX XXXXXXXX
---------------------------------------
Xxxxxxx Xxxxxxxx
-42-
46
BCB PARTNERSHIP, XXXXX X. XXXXXXXXX,
XXXXXX X. XXXXXXXXX, XXXX X. XXXXXXXX,
NAZ PARTNERSHIP, XXXXXX X. XXXXXX,
H. XXXXXX XXXXXXXX, XXXXXXX X. XXXXXXXX,
XXXXX X. XXXXX, XXXXXXXXX XXXXXXX,
XXXXXXX PLACE, BY THE FOLLOWING PERSONS:
By: /s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx, Attorney-in-Fact
/s/ XXXXXXX X. XXXXXXXX
----------------------------------------
Xxxxxxx X. Xxxxxxxx, Individually
Addresses for notices for the following shareholders are as follows:
BCB Family Partners, LP
000 Xxxx 00xx Xxxxxx, #0X
Xxx Xxxx, XX 00000
Xxxxx Xxxxxxxxx
000 Xxxx 00xx Xxxxxx, #0X
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
NAZ Family Partners, LP
000 Xxxx 00xx Xxxxxx, #0X
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxx
Xxx Xxxxxx, XX 00000
H. Xxxxxx Xxxxxxxx
c/o Prudential Securities
0 Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxxx X. Xxxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
-43-
47
Xxxxx X. Xxxxx
000 Xxxx 00xx Xxxxxx, #0X
Xxx Xxxx, XX 00000
Xxxx X. Xxxxxxxx
00 Xxxxxx Xxxxxx, #0X
Xxx Xxxx, XX 00000
Xxxxxxxxx XxXxxxx
00000 Xxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxxx Place
000 Xxxx Xxxxxxxxxx
Xxxxxxxxx, XX 00000
-44-
