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EXHIBIT 4.3
AMENDED AND RESTATED
RESTRICTED STOCK PURCHASE AGREEMENT
dated as of
December 31, 1996
between
FIBERITE HOLDINGS, INC.
and
CARLISLE GROUP, L.P.
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This Amended and Restated Restricted Stock Purchase Agreement is made as
of the 31st day of December, 1996 between Fiberite Holdings, Inc., a Delaware
corporation (the "Company"), and Carlisle Group, L.P., a Delaware limited
partnership ("Purchaser"), and supersedes, in its entirety, that certain
Restricted Stock Purchase Agreement dated as of July 17, 1996 by and between the
Company and the Purchaser.
In consideration of the agreements set forth below, the Company and
Purchaser agree as follows:
SECTION 1. (a) Definitions. The following terms have the meanings set
forth below:
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" means this agreement, as amended, supplemented or otherwise
modified from time to time in accordance with its terms.
"As Adjusted" means (i) if the Company at any time subdivides (by any
stock split, stock dividend, recapitalization or otherwise) the Common Stock
into a greater number of shares or pays a dividend or makes a distribution to
holders of the Common Stock in the form of shares of Common Stock, the number of
Shares referred to shall be proportionately increased; and (ii) if the Company
at any time combines (by reverse stock split or otherwise) the Common Stock into
a smaller number of shares, the number of Shares referred to shall be
proportionately decreased.
"Board of Directors" 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 the City of New York are authorized or required by law
to close.
"Change of Control" means (i) a Change of Control as such term is
defined in the Credit Agreement, (ii) the sale of all or substantially all of
the assets of the Company or (iii) an Initial Public Offering in which the
Institutional
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Shareholders, after such offering, own in the aggregate less than 50% of the
outstanding Common Stock.
"Closing" has the meaning set forth in Section 2(a).
"Commission" means the Securities and Exchange Commission.
"Credit Agreement" means the Credit Agreement dated October 6, 1995,
among the Company, Fiberite, the lenders listed therein and Bank of America
National Trust and Savings Association, as Agent (in such capacity, the
"Agent"), as amended, supplemented or otherwise modified from time to time.
References to the Credit Agreement shall also include any credit agreement or
agreements entered into by the Company and/or Fiberite to replace, extend,
increase, renew, refund or refinance all or a portion of the debt or other
obligations under the Finance Documents.
"EBITDA" means, for any computation period, the sum of
(a) Consolidated Net Income (as defined in the Credit Agreement) of the
Company for such period excluding, to the extent reflected in determining
such Consolidated Net Income, extraordinary gains and losses for such
period and non-cash or non-recurring charges related to plant
consolidations or restructurings, and
(b) to the extent deducted in determining Consolidated Net Income,
Interest Expense (as defined in the Credit Agreement), income tax expense,
depreciation, depletion and amortization for such period.
"Equity Proceeds" means the aggregate cash proceeds (net of the direct
costs of any such sale or other disposition (including, without limitation,
sales and underwriters' commissions and legal, accounting and investment banking
fees)) received by all Institutional Shareholders in exchange for or in a
distribution or dividend based upon Holdings Shares (As Adjusted) and Notes
that, in each case, were issued and outstanding on October 6, 1995 from the
sale, exchange, conversion or other disposition of Holdings Shares and Notes
(including upon repayment of such Notes) or from a dividend or other
distribution to the holders of such Shares and Notes from October 6, 1995 to the
date of determination; provided that upon the occurrence of a Change of Control,
for purposes of
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this Agreement, the term Equity Proceeds shall be deemed to include, in addition
to the cash proceeds described above, the aggregate non-cash proceeds (net of
the costs outlined above) received by all Institutional Shareholders in exchange
for, or from a dividend or other distribution based upon, Holdings Shares (As
Adjusted) and Notes that, in each case, were issued and outstanding on October
6, 1995 from the sale or other disposition of Holdings Shares (As Adjusted) and
Notes (including upon repayment of such Notes) from October 6, 1995 to and
including the date of such Change of Control, less any fees and expenses
incurred by such parties in connection with such sales or other dispositions. In
the case of any non-cash proceeds, such non-cash proceeds shall be valued at the
fair value thereof as reasonably determined by the Board of Directors as of the
consummation of such sale or disposition, irrespective of any accounting
treatment. In no event shall any proceeds received in a sale, exchange,
conversion or other disposition with or to a Permitted Transferee of an
Institutional Shareholder or, to the extent such proceeds are other than cash,
with or to the Company or Fiberite, be included in any calculation of Equity
Proceeds hereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Fiberite" means Fiberite, Inc., a Delaware corporation.
"Finance Documents" means the Credit Agreement together with all notes,
collateral and security documents, guaranties (including the guaranty of the
Company thereunder) and other documents delivered at any time in connection
therewith, all as amended, supplemented or otherwise modified from time to time
in accordance with their respective terms.
"Financing Lease" means any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
generally accepted accounting principles to be capitalized on a balance sheet of
the lessee.
"Fiscal Year" means a fiscal year of the Company.
"GmbH" means Fiberite Europe GmbH, a German GmbH.
"Holder" means any holder from time to time of any Shares.
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"Holdings Corporate Documents" means the certificate of incorporation
and by-laws of the Company.
"Holdings Shares" means shares of common stock of the Company, par
value $0.01 per share.
"Initial Public Offering" has the meaning ascribed to such term in the
Shareholders Agreement.
"Institutional Shareholder" has the meaning ascribed to such term in
the Shareholders Agreement.
"Institutional Shareholder Valuation" means, for any date of
calculation, the sum of
(a) the Equity Proceeds on such date plus, without duplication, the
value of all non-cash Equity Proceeds determined in accordance with the
second sentence or the proviso of the first sentence of the definition of
Equity Proceeds, without regard to whether a Change of Control has
occurred; and
(b) the product of
(A) the per share cash proceeds (net of the direct costs of
the applicable Public Offering (including, without limitation,
sales and underwriters' commissions and legal, accounting and
investment banking fees)) received by all Institutional
Shareholders in the Public Offering with respect to which this
calculation is made, multiplied by
(B) the number of Holdings Shares that were issued,
outstanding and held by Institutional Shareholders on October 6,
1995 (As Adjusted) less the number of any such Holdings Shares for
which Equity Proceeds are included in (a) above; and
(c) the amount of principal and accrued interest on all Notes
outstanding as of the date this calculation was made.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without
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limitation, any conditional sale or other title retention agreement and any
Financing Lease having substantially the same economic effect as any of the
foregoing).
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations or financial condition of the Company and its subsidiaries
taken as a whole or (b) the enforceability of any of the Securities Documents.
"Notes" means the Company's 11.30% Subordinated Notes due 2002.
"Permitted Transferee" has the meaning ascribed to such term in the
Shareholders Agreement.
"Person" means an individual or a corporation, limited liability
company, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or any agency or political subdivision
thereof) or other entity of any kind.
"Pledge Agreement" has the meaning set forth in Section 2(b).
"Promissory Note" has the meaning set forth in Section 2(a).
"Public Offering" has the meaning ascribed to such term in the
Shareholders Agreement.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Documents" means this Agreement, the Shareholders
Agreement, the Shares, the Promissory Note and the Pledge Agreement.
"Shareholders Agreement" means the Shareholders Agreement dated as of
October 6, 1995 among the Company and the other shareholders signatory thereto,
as amended or modified pursuant to the terms thereof.
"Shares" has the meaning set forth in Section 2(a).
"subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock or other ownership
interests having ordinary voting power
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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.
"Time of Purchase" has the meaning set forth in Section 2(a).
"Transfer" means any disposition of Shares that would constitute a sale
thereof under the Securities Act.
"Vesting Percentage" means, for any date of calculation, the ratio of:
(a) the number of Holdings Shares which were issued, outstanding and
held by the DLJ Entities on October 6, 1995 (As Adjusted) which were sold
in the Public Offering with respect to which this calculation is made,
divided by
(b) the number of Holdings Shares that were issued, outstanding and
held by the DLJ Entities on October 6, 1995 (As Adjusted).
(b) Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required to
be delivered hereunder shall be prepared in accordance with generally accepted
accounting principles as in effect from time to time, applied on a consistent
basis (except for changes concurred in by the Company's independent public
accountants). For purposes of this Agreement, references to assets, liabilities,
revenues, costs or other similar items relating to the Company, Fiberite or any
of their subsidiaries shall be deemed to include, with respect to any joint
operating agreement or partnership agreement to which the Company, Fiberite or
such subsidiary is a party, such portion, but only such portion, of the assets,
liabilities, revenues, costs or other similar items covered by such joint
operating agreement or partnership agreement as shall equal the then
proportional interest of the Company, Fiberite or such subsidiary under such
joint operating agreement or partnership agreement, determined, where
applicable, in accordance with the rules for proportionate consolidation in
accordance with generally accepted accounting principles.
SECTION 2. Sale to Purchaser. (a) Purchase and Sale of Stock. Subject
to the terms and upon the conditions hereof and
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the Shareholders Agreement, the Company agrees to sell to Purchaser, and
Purchaser agrees to purchase from the Company, 741,957 shares (the "Shares") of
Common Stock of the Company, par value $0.01 per share ("Common Stock"), at the
aggregate price of $370,978.50 ($0.50 per share). Such purchase and sale shall
be consummated (such consummation, the "Closing") at a place and time agreed
upon by the Company and Purchaser, provided that if no place and time are agreed
upon, such purchase and sale shall take place at the principal office of the
Company, at 12:00 noon, on the date fifteen Business Days after the date hereof
(such time of purchase and sale, the "Time of Purchase"). At the Closing, the
Company shall deliver the Shares, registered in the name of Purchaser, and
Purchaser shall concurrently therewith (i) deliver and execute a promissory note
having an aggregate principal amount of $363,558.93 (the "Promissory Note") in
the form of Exhibit A hereto and (ii) deliver a certified check payable to the
order of the Company in the amount of $7,419.57. Each of Purchaser and the
Company acknowledges that the Shares are subject to the terms and conditions
contained herein, the Shares and in the Shareholders Agreement and that each
Holder of a Share is bound by such terms and conditions.
(b) Financing. To secure the obligations of Purchaser under the
Promissory Note, Purchaser will enter into a pledge agreement (the "Pledge
Agreement") in the form of Exhibit B hereto.
SECTION 3. Vesting. No Share shall vest until the vesting criteria set
forth in this Section 3 with respect to such Share shall have occurred.
Purchaser may not sell, transfer, pledge, hypothecate or otherwise encumber
(except pursuant to the Pledge Agreement) any Shares prior to October 6,2005,
unless such Shares have vested pursuant to this Section. In addition to the
vesting criteria set forth below, no Share shall vest until (i) all interest
then due and payable under the Promissory Note has been paid; (ii) the aggregate
of all principal amounts of the Promissory Note paid from the date of such
Promissory Note through the date of satisfaction of the other vesting criteria
established hereunder with respect to such Share equals or exceeds the product
of (A) the total number of Shares which have (or, but for the application of
this sentence, would have) vested hereunder and (B) $.49; (iii) the portion of
any accrued and unpaid interest attributable to the principal amounts referred
to in the preceding clause (ii) have been paid; and (iv) each other obligation
of Purchaser under the Promissory Note (which obligation is required to be
satisfied at or prior to the time of any such vesting) is satisfied.
(a) Time Based Vesting. (i) The number of Shares listed on Schedule A
as Time Based Shares ("Time Based Shares")
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shall vest only in accordance with Section 3(a)(ii) and with the following
schedule:
Vesting Amount (percentage
of Time Based Shares
Vesting Date Vesting on such date)
------------ --------------------------
December 31, 1996 25%
December 31, 1997 25%
December 31, 1998 25%
December 31, 1999 25%
(ii) If a Change of Control shall occur, then any Time Based Shares
that have not vested as of such date shall be deemed to vest immediately prior
to such Change of Control.
(b) Performance Based Vesting. (i) The number of Shares listed on
Schedule A as Performance Based Shares ("Performance Based Shares") shall vest
on October 6, 2005. Provided, however, for each period listed below, if EBITDA
is equal to or above the amount listed beside such period on the chart below
(each such amount, a "Target EBITDA") then 25% of the Performance Based Shares
(for each such period, "Target Shares") shall vest earlier as follows:
Fiscal Year ending Target EBITDA
------------------ -------------
December 31, 1996 $25,900,000
December 31, 1997 $29,700,000
December 31, 1998 $34,000,000
December 31, 1999 $37,000,000
provided further, that if EBITDA for a period is less than the Target EBITDA for
such period, but is greater than 85% of the Target EBITDA for such period, then
the number of Performance Based Shares that shall vest for such period shall be
calculated as follows:
Target Shares x EBITDA - (.85) (Target EBITDA)
-------------------------------------,
Target EBITDA - (.85) (Target EBITDA)
provided, further, that the amount of EBITDA for a Fiscal Year in excess of the
Target EBITDA for such Fiscal Year may be carried back to EBITDA for the two
immediately preceding Fiscal Years, and additional Performance Based Shares
based thereon may vest in accordance with this Section 3(b).
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(ii) If the number of Exit Shares (as defined below) that vest pursuant
to Section 3(c)(i) is greater than the number of Performance Based Shares that
have vested prior to any such vesting of Exit Shares, then simultaneously with
the vesting of the Exit Shares hereunder additional Performance Based Shares
shall vest in a number sufficient to make the number of vested Performance Based
Shares equal to the number of such Exit Shares.
(iii) Immediately prior to the transfer to Third Parties of all or
substantially all of (A) the Holdings Shares owned by the Institutional
Shareholders on the date hereof or (B) the assets of the Company and its
subsidiaries, the Performance Based Shares that have not vested as of such date
shall automatically vest.
(c) Exit Shares. (i) The number of Shares listed on Schedule A as Exit
Shares ("Exit Shares") shall vest on October 6, 2005. Provided, however, if the
amount of Equity Proceeds hereunder equals,during the 12-month period beginning
on the dates indicated below, an amount equal to or greater than the
corresponding amount listed below (each such amount, the "Target Equity
Proceeds") then all of the Exit Shares shall vest immediately prior to the
consummation of the sale or disposition whereby Equity Proceeds will exceed such
amount:
Period ending
on October 6, Target Equity Proceeds
------------- ----------------------
1996 $ 70,000,000
1997 $ 87,500,000
1998 $105,000,000
1999 $140,000,000
2000 $150,000,000
2001 $180,000,000
2002 $216,000,000
2003 $259,200,000
provided, for each day of a period, the Target Equity Proceeds shall be
increased by an amount equal to a fraction, the numerator of which is the Target
Equity Proceeds for the last day of such period minus the Target Equity Proceeds
for the last day of the preceding period and the denominator of which is the
number of days in the current period.
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After October 6, 1996, if on any day of a period, the Equity Proceeds
are equal to or greater than the Target Equity Proceeds for the last day of the
preceding period, but less than the Target Equity Proceeds for such date, then
the amount of Exit Shares that vest shall be equal to (i) the total number of
Exit Shares as of such date multiplied by a fraction, the numerator of which is
the Equity Proceeds minus the Target Equity Proceeds for the last day of the
preceding period and the denominator of which is the Target Equity Proceeds
minus the Target Equity Proceeds for the last day of the preceding period less
(ii) the total number of Exit Shares which have previously vested (or would have
vested but for the third sentence of this Section 3) pursuant to this paragraph.
(ii) In the event of any Public Offering (other than a registration or
offering (A) on Form S-8 or S-4 or any successor or similar forms, (B) relating
to Common Stock issuable upon exercise of employee stock options or in
connection with any employee benefit or similar plan of the Company, (C) in
connection with a direct or indirect acquisition by the Company of another
company or business, (D) in connection with sales of Common Stock or options to
employees of the Company or any direct or indirect subsidiary of the Company or
(E) where the primary purpose of such registration relates to a debt financing
by the Company or any direct or indirect subsidiary of the Company), if the
Institutional Shareholder Valuation on the date of such Public Offering equals
or exceeds the Target Equity Proceeds in effect on the date of such Public
Offering, the number of Exit Shares equal to the product of the Vesting
Percentage for such Public Offering multiplied by the number of Exit Shares
listed on Schedule A shall vest.
(iii) Immediately prior to the transfer to Third Parties of all or
substantially all of (A) the Holdings Shares owned by the Institutional
Shareholders on the date hereof or (B) the assets of the Company and its
subsidiaries, any Exit Shares that have not vested as of such date shall
automatically vest.
(d) Bonus Shares. (i) The number of Shares listed on Schedule A as
Bonus Shares ("Bonus Shares") shall vest
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on October 6, 2005. Provided, however, the Bonus Shares shall vest earlier if
during either of the periods listed below, the Equity Proceeds equal or exceed
the amount that corresponds to such period on the chart below (each such amount,
the "Target II Equity Proceeds"):
Target II
Period Equity Proceeds
------ ---------------
On or before October 6, 1997 $122,500,000
After October 6, 1997 but on
or before October 6, 2000 $165,000,000
(ii) In the event of any Public Offering (other than a registration or
offering (A) on Form S-8 or S-4 or any successor or similar forms, (B) relating
to Common Stock issuable upon exercise of employee stock options or in
connection with any employee benefit or similar plan of the Company, (C) in
connection with a direct or indirect acquisition by the Company of another
company or business, (D) in connection with sales of Common Stock or options to
employees of the Company or any direct or indirect subsidiary of the Company or
(E) where the primary purpose of such registration relates to a debt financing
by the Company or any direct or indirect subsidiary of the Company), if the
Institutional Shareholder Valuation on the date of such Public Offering equals
or exceeds the Target II Equity Proceeds in effect on the date of such Public
Offering, the number of Bonus Shares equal to the product of the Vesting
Percentage for such Public Offering multiplied by the number of Bonus Shares
listed on Schedule A shall vest.
(iii) Immediately prior to the transfer to Third Parties of all or
substantially all of (A) the Holdings Shares owned by the Institutional
Shareholders on the date hereof or (B) the assets of the Company and its
subsidiaries, any Bonus Shares that
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(e) Certificates. Each certificate issued in respect of Shares sold to
Purchaser hereunder shall be deposited with the Company, or its designee,
together with a stock power executed in blank by Purchaser, and shall bear a
legend disclosing the restrictions on transferability imposed on such Shares by
the Securities Documents. Upon the vesting of any Shares pursuant to this
Section 3, and the satisfaction of any withholding tax liability pursuant to
Section 3(g) hereof, the certificates evidencing any such vested Shares shall be
delivered to Purchaser.
(f) Rights of a Shareholder. Prior to the time a Share is fully vested
hereunder, Purchaser shall have no right to transfer, pledge, hypothecate or
otherwise encumber such Share. During such period, Purchaser shall have all
other rights of a stockholder, including, but not limited to, the right to vote
and to receive dividends (which shall be held in escrow by the Company until the
Shares to which such dividends relate have vested. Purchaser agrees (for the
benefit of the Company and of each party to the Shareholders Agreement) that
with respect to Shares which have not vested, Purchaser will vote such unvested
shares in all matters in proportion to the votes cast by all other holders of
Holdings Shares entitled to vote on such matters.
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(g) Withholding. Purchaser agrees to make appropriate arrangements with
the Company for satisfaction of any applicable tax withholding requirements, or
similar requirements, arising out of this Agreement.
(h) Adjustment of Targets. Each party to this Agreement and Holder of a
Share that has not vested pursuant to the terms of this Agreement, by acceptance
of such Share, agree and acknowledge that each of the Target EBITDA, Target
Equity Proceeds and Target II Equity Proceeds set forth herein shall be adjusted
by the Company after negotiations between Carlisle Group, L.P. and the Company
made in good faith to reflect any acquisitions, mergers, consolidations or other
significant corporate transactions affecting the Company.
SECTION 4. Representations and Warranties of the Company.
The Company represents and warrants to Purchaser, as of the Time of
Purchase, as set forth below:
(a) Corporate Existence and Power. The Company is a corporation, duly
incorporated, validly existing and in good standing under the laws of the state
of Delaware and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its businesses as
now conducted and as proposed to be conducted and is fully qualified and in good
standing as a foreign corporation registered to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of property
requires such qualification except where the failure to be so qualified or to be
in good standing would not reasonably be expected to have a Material Adverse
Effect.
(b) Authorization and Execution. The execution, delivery and
performance by each of the Company and Fiberite of each of the Securities
Documents to which it is a party and the issuance by the Company of the Shares
have been duly and validly authorized and are within the corporate powers of the
Company or Fiberite, as the case may be. Each of the Securities Documents to
which the Company or Fiberite is a party has been duly executed and delivered by
it and constitutes its valid and binding agreement.
(c) Capitalization. The authorized capital stock of the Company
consists of 15,000,000 shares of common stock, par value $0.01 per share
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All of the issued and outstanding capital stock of the Company has been duly
authorized and validly issued, is fully paid and nonassessable, and free of
pre-emptive rights. The authorized capital stock of Fiberite consists of 1,000
shares of common stock, par value $0.01 per share (of which 1,000 shares are
issued and outstanding).
(d) Governmental Authorization. The execution and delivery by each of
the Company and Fiberite of each of the Securities Documents to which it is a
party did not and will not, the issuance and sale by the Company of the Shares
will not, and the consummation of the transactions contemplated hereby and
thereby will not, require any action by or in respect of, or filing with, any
governmental body, agency or governmental official except (a) such actions or
filings as have been undertaken or made prior to the Time of Purchase and that
will be in full force and effect on and as of the Time of Purchase or which are
not required to be filed on or prior to the Time of Purchase (but will be filed
within the applicable time periods therefor) and (b) such actions or filings
that, if not taken or made, would not in the aggregate impose materially adverse
conditions upon the Securities Documents.
(e) Non-Contravention. The execution and delivery by the Company of the
Securities Documents to which it is a party did not and will not, the issuance
and sale by the Company of the Shares will not, and the consummation of the
transactions contemplated hereby and thereby will not, contravene or constitute
a default under or violation of (i) assuming the filings referred to in Section
4(d) have been undertaken or made, any provision of applicable law or regulation
the violation of which would have a Material Adverse Effect, (ii) its
certificate of incorporation or by-laws, or (iii) any agreement, judgment,
injunction, order, decree or other instrument binding upon it or any of its
assets, the violation of which would have a Material Adverse Effect or result in
the creation or imposition of any Lien on any asset of the Company or any of its
subsidiaries, except pursuant to or as permitted or contemplated by the terms
hereof or of the Finance Documents.
(f) Litigation. There is no action, suit or proceeding pending to which
the Company, Fiberite or GmbH is a party, or to the knowledge of the Company,
which is threatened against the Company, Fiberite or GmbH, before any court or
arbitrator or any governmental body, agency or official that would reasonably be
expected to result in a Material Adverse Effect.
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(g) Not an Investment Company; Not a Real Property Holding Company.
The Company is not an "investment company" within the meaning of the Investment
Company Act of 1940, as amended. The Company is not a United States real
property holding company (as that term is defined in Section 897(c)(2) of the
United States Internal Revenue Code of 1986, as amended).
(h) Solicitation; Access to Information. No form of general
solicitation or general advertising was used by the Company or, to the best of
its knowledge, any other Person acting on behalf of the Company, in connection
with the offer and sale of the Shares. Neither the Company nor any Person acting
on behalf of the Company has, either directly or indirectly, sold or offered for
sale to any Person any of the Shares or any other similar securities of the
Company except as contemplated by this Agreement (other than those sold to Xxxxx
Xxxxxx or other employees of the Company as approved by the Board of Directors),
and the Company represents that neither the Company nor any Person acting on its
behalf will sell or offer for sale to any Person any such security to, or
solicit any offers to buy any such security from, or otherwise approach or
negotiate in respect thereof with, any Person or Persons, in each case so as
thereby to bring the issuance or sale of any of the Shares within the provisions
of Section 5 of the Securities Act.
SECTION 5. Representations And Warranties Of Purchaser.
(a) Purchase for Investment; Authority; Binding Agreement. Purchaser
represents and warrants to the Company that:
(i) Purchaser is an "accredited investor" within the meaning of Rule
501(a) under the Securities Act and the Securities to be acquired by
Purchaser pursuant to this Agreement are being acquired for its own
account and Purchaser will not offer, sell, transfer, pledge, hypothecate
or otherwise dispose of the Shares unless pursuant to a transaction either
registered under, or exempt from registration under, the Securities Act;
and
(ii) Purchaser has such knowledge and experience in financial and
business matters so as to be capable of evaluating the merits and risks of
its investment in the Securities and is capable of bearing the economic
risks of
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such investment or Purchaser has been advised by a representative
possessing such knowledge and experience.
(b) Private Placement. Purchaser represents and warrants to the
Company that:
(i) Purchaser understands that (i) the offering and sale of the
Shares is intended to be exempt from registration under the Securities Act
and (ii) there is no existing public or other market for any of the Shares
and there can be no assurance that Purchaser will be able to sell or
dispose of the Shares to be purchased by Purchaser;
(ii) Purchaser's financial situation is such that Purchaser can afford
to bear the economic risk of holding the Shares acquired hereunder for an
indefinite period of time, Purchaser has adequate means for providing for
Purchaser's needs and contingencies and can afford to suffer the complete
loss of the investment in the Shares;
(iii) Purchaser understands that the Shares acquired hereunder are a
speculative investment which involves a high degree of risk of loss of the
entire investment therein, that there are substantial restrictions on the
transferability of the Shares as set forth herein, in the Shares and in
the Shareholders Agreement, and that for an indefinite period following
the date hereof there will be no public market for any of the Shares and
that, accordingly, it may not be possible for Purchaser to sell the Shares
in case of emergency or otherwise;
(iv) Purchaser and his, her or its representatives, including his, her
or its professional, financial, tax and other advisors, have carefully
reviewed all documents available to them in connection with the investment
in the Shares, and Purchaser understands and has taken cognizance of all
the risks related to such investment;
(v) Purchaser and his, her or its representatives have been given the
opportunity to examine all documents and to ask questions of, and to
receive answers from, the Company and its representatives concerning the
Company and each of its subsidiaries and concerning the terms and
conditions of the acquisition of the Shares, and related matters and to
obtain all additional information which Purchaser or his, her or its
representatives deem necessary; and
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(vi) all information which Purchaser has provided to the Company and
its representatives concerning Purchaser and Purchaser's financial
position is true, complete and correct.
(c) Solicitation by Purchaser. Purchaser represents and warrants to
the Company that no form of general solicitation or general advertising was used
by Purchaser or, to the best of its knowledge, any other Person acting on behalf
of Purchaser, in respect of the Shares or in connection with the purchase of the
Shares. Neither Purchaser nor any Person acting on its behalf has, either
directly or indirectly, sold or offered for sale to any Person any of the Shares
or any other similar security of the Company except as contemplated by this
Agreement.
(d) Corporate Existence and Power. Purchaser is a limited partnership,
duly registered, validly existing and in good standing under the laws of the
state of Delaware.
(e) Authorization and Execution. The execution, delivery and
performance by Purchaser of each of the Securities Documents to which it is a
party and issuance by Purchaser of the Promissory Note have been duly and
validly authorized and are within the corporate powers of Purchaser. Each of the
Securities Documents to which Purchaser is a party has been duly executed and
delivered by it and constitutes its valid and binding agreement.
(f) Governmental Authorization. The execution and delivery by
Purchaser of each of the Securities Documents to which it is a party did not and
will not, the issuance and sale by the Company of the Promissory Note will not,
and the consummation of the transactions contemplated hereby and thereby will
not, require any action by or in respect of, or filing with, any governmental
body, agency or governmental official except (a) such actions or filings as have
been undertaken or made prior to the Time of Purchase and that will be in full
force and effect on and as of the Time of Purchase or which are not required to
be filed on or prior to the Time of Purchase (but will be filed within the
applicable time periods therefor) and (b) such actions or filings that, if not
taken or made, would not in the aggregate impose materially adverse conditions
upon the Securities Documents.
(g) Non-Contravention. The execution and delivery by Purchaser of the
Securities Documents to which it is a party
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did not and will not, the issuance and sale by Purchaser of the Promissory Note
will not, and the consummation of the transactions contemplated hereby and
thereby will not, contravene or constitute a default under or violation of its
organizational documents.
SECTION 6. General.
(a) Legends. The certificates representing all of the Shares shall have
endorsed across the face or back thereof the following legends:
(i) "The shares of stock represented by this certificate are subject to the
terms and conditions of a certain Restricted Stock Purchase Agreement
(the "Purchase Agreement") dated July 17, 1996, entered into between
Fiberite Holdings, Inc. (the "Company") and the holder of this
certificate, which Purchase Agreement is on file with the Secretary of
the Company."
(ii) The shares of stock represented by this certificate were originally
issued on ____________, 1996 and have not been registered under the
Securities Act of 1933, as amended, or under the securities laws of any
State or other jurisdiction and may not be sold, offered for sale or
otherwise transferred unless registered or qualified under said act and
applicable state or other securities laws or unless the Company
receives an opinion of counsel reasonably satisfactory to the Company
that registration, qualification or other such actions are not required
under any such laws. The shares of stock represented by this
certificate may not be transferred in violation of such Act, the rules
and regulations thereunder or the provisions of the Purchase Agreement.
The shares of stock represented by this certificate are also subject to
a Shareholders Agreement dated October 6, 1995 among Fiberite Holdings,
Inc. (the "Company") and the various shareholders signatory thereto,
and each holder of shares represented by this certificate agrees to be
bound by the terms and conditions of such
20
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Shareholders Agreement. A copy of the Shareholders Agreement will be
furnished without charge by the Company to the holder hereof upon
request.
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legend or such other legend deemed appropriate by the
Company shall also bear such legend unless, in a written opinion of counsel
(which counsel shall be reasonably acceptable to the Company) addressed to the
Company provided by counsel to Purchaser, the securities represented thereby
need no longer be subject to the restriction contained herein. The provisions of
this Section 6(a) shall be binding upon all subsequent holders of certificates
bearing the above legend.
(b) Notices. All notices, demands and other communications to any party
hereunder shall be in writing (including telecopier or similar writing) and
shall be given to such party at its address set forth on the signature pages
hereof, or such other address as such party may hereinafter specify for the
purpose. Each such notice, demand or other communication shall be effective (i)
if given by telecopy, when such telecopy is transmitted to the telecopy number
specified on the signature page hereof, (ii) if given by mail, four days after
such communication is deposited in the mail with first class postage prepaid,
addressed as aforesaid or (iii) if given by any other means, when delivered at
the address specified in this Section 6(b).
(c) No Waivers; Amendments. (i) No failure or delay on the part of any
party in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy. The remedies provided for herein are cumulative and are not
exclusive of any remedies that may be available to any party at law or in equity
or otherwise.
(ii) Any provision of this Agreement may be amended, supplemented or
waived if, but only if, such amendment, supplement or waiver is in writing and
is signed by the Company and, other than with respect to amendments pursuant to
Section 3(i), Purchaser.
(d) Expenses; Documentary Taxes. The Company and Purchaser each agree
to bear its own costs, expenses and other payments in connection with the
purchase and sale of the Shares
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as contemplated by this Agreement including without limitation (i) fees and
disbursements of special counsel for the Company incurred in connection with the
preparation of this Agreement and (ii) all out-of-pocket expenses of the
Company, including fees and disbursements of counsel, in connection with any
waiver or consent hereunder or any amendment hereof. The Company and Purchaser
each agree to share equally any and all stamp, transfer and other similar taxes,
assessments or charges payable in connection with the execution and delivery of
this Agreement or the issuance of the Shares.
(e) Successors and Assigns; Transferability. This Agreement shall be
binding upon the Company and Purchaser and its successors and assigns. Purchaser
may not assign or otherwise transfer its rights or obligations under this
Agreement to any other Person without the prior written consent of the Company.
All provisions hereunder purporting to give rights to Holders of Shares are for
the express benefit of such Persons. The Shares are subject to the transfer
restrictions set forth herein in the Shares and in the Shareholders Agreement.
(f) Brokers. Each of the Company and Purchaser represents and warrants
that it has not employed any broker, finder, financial advisor or investment
banker who might be entitled to any brokerage, finder's or other fee or
commission in connection with the sale of Shares.
(g) New York Law; Submission to Jurisdiction; Waiver of Jury Trial.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES
THEREOF. EACH PARTY HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF
ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES OF ALL LEGAL
PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SHARES OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY HERETO 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 PROCEEDING BROUGHT IN
SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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(h) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
(i) Counterparts. This Agreement may be executed in any number of
counterparts each of which shall be an original with the same effect as if the
signatures thereto and hereto were upon the same instrument.
(j) Elimination of Fractional Shares. If under any provision of the
Agreement which requires a computation of the number of Shares, the number so
computed is not a whole number, such number shall be rounded down to the next
whole number.
(k) Entire Agreement. The Agreement sets forth the entire understanding
of the parties and supersedes all prior agreements, arrangements and
communications, whether oral or written, pertaining to the Shares.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers or representatives, as of
the date first above written.
CARLISLE GROUP, L.P.
A Delaware Limited Partnership
By: CARLISLE ENTERPRISES, L.P.,
its General Partner
By:
-----------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Partner & Chief Executive
Address: 0000 Xxx Xxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Fax: (000) 000-0000
FIBERITE HOLDINGS, INC.
By:
-----------------------------------------------
Name:
Title:
Address: x/x XXX Merchant Banking, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxx
Fax: (000) 000-0000
24
SCHEDULE A
SHARES
Type Amount of Shares
---- ----------------
Time Based Shares 219,839
Performance Based Shares 219,839
Exit Shares 219,839
Bonus Shares 82,440
