EXHIBIT 99.4
SUBSCRIPTION AGREEMENT
dated as of
August 17, 1998
among
SILKWORM ACQUISITION CORPORATION
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock
of
Silkworm Acquisition Corporation
TABLE OF CONTENTS
----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale...............................................3
SECTION 2.02. Closing.........................................................3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF MERGERSUB
SECTION 3.01. Corporate Existence and Power...................................4
SECTION 3.02. Corporate Authorization.........................................4
SECTION 3.03. Governmental Authorization......................................4
SECTION 3.04. Noncontravention................................................5
SECTION 3.05. Capitalization and Voting Rights................................5
SECTION 3.06. Valid Issuance of Securities....................................5
SECTION 3.07. Litigation......................................................6
SECTION 3.08. Newly Formed Corporation........................................6
SECTION 3.09. Meaning of MergerSub............................................6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
SECTION 4.01. Existence and Power.............................................7
SECTION 4.02. Authorization...................................................7
SECTION 4.03. Governmental Authorization......................................7
SECTION 4.04. Purchase for Investment.........................................7
SECTION 4.05. Private Placement...............................................7
SECTION 4.06. Litigation......................................................8
SECTION 4.07. Brokers or Finders' Fees........................................9
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and MergerSub...........9
SECTION 5.02. Additional Conditions to Obligation of Each Buyer...............9
SECTION 5.03. Additional Conditions to Obligation of MergerSub...............10
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival.......................................................10
SECTION 6.02. Indemnification................................................10
SECTION 6.03. Exclusivity....................................................11
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination........................................11
SECTION 7.02. Effect of Termination..........................................11
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices........................................................12
SECTION 8.02. Amendments and Waivers.........................................13
SECTION 8.03. Successors and Assigns.........................................13
SECTION 8.04. Governing Law..................................................13
SECTION 8.05. Jurisdiction...................................................13
SECTION 8.06. Waiver Of Jury Trial...........................................13
SECTION 8.07. Counterparts; Third Party Beneficiaries........................14
SECTION 8.08. Unwind.........................................................14
SECTION 8.09. Entire Agreement...............................................14
SECTION 8.10. Severability...................................................14
Schedule A Schedule of Buyers, Purchase Price and Company Securities
Exhibit A Certificate of Incorporation of Silkworm Acquisition
Corporation
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 17, 1998 between Silkworm Acquisition
Corporation, a Delaware corporation ("MergerSub") and the Persons named on
Schedule A hereto (each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, MergerSub has agreed to merge (the "Merger") with and into
Insilco Holding Co. (the "Company") on the terms and conditions set forth in the
Agreement and Plan of Merger dated as of March 24, 1998 between MergerSub and
the Company (as the same may be or have been amended from time to time, the
"Merger Agreement");
WHEREAS, to finance, in part, the payment of the consideration payable
in the Merger, MergerSub intends to issue shares of common stock, par value
$0.001 per share (the "Common Stock" or "Securities");
WHEREAS, all of the outstanding capital stock of MergerSub is currently
owned by DLJ Merchant Banking Partners II, L.P. ("DLJMB"); and
WHEREAS, MergerSub desires to issue and sell the relevant Securities to
the Buyers, and each of the Buyers desires to purchase the relevant Securities
from MergerSub, upon the terms and subject to the conditions hereinafter set
forth.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person. For the purposes of this definition, the term "control" (including
its 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, by contract or otherwise.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banking institutions in New York, New York are authorized or required
by law to close.
"Closing Date" means the date of the Closing.
"Common Shares" means shares of Common Stock.
"CVC" means 399 Venture Partners, Inc., a wholly owned indirect
subsidiary of Citibank, N.A.
"DLJMB Entities" means DLJMB and the affiliated funds and entities
listed on the signature pages hereof.
"Investors' Agreement" means the Investors' Agreement to be entered
into on the Closing Date among the Company, the DLJMB Entities and CVC.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest, encumbrance or adverse claim of any
kind in respect of such property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Transaction Documents" means this Agreement, the Merger Agreement, the
Voting Agreement and the Investors' Agreement.
"Voting Agreement" means the Voting Agreement dated as of March 24,
1998 among MergerSub, Insilco Corporation and Water Street Corporate Recovery
Fund I, L.P., as the same may be, and may have been, amended from time to time.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Certificate of Incorporation 3.08
Closing 2.02
Common Stock Recitals
Company Recitals
Damages 6.02
DLJMB Recitals
Merger Recitals
MergerSub Recitals
Merger Agreement Recitals
Purchase Price 2.01
Securities Recitals
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, MergerSub agrees to issue and sell to each Buyer
and each Buyer agrees, severally and not jointly, to purchase from MergerSub the
Securities set forth opposite such Buyer's name on Schedule A hereto at the
Closing. The purchase price for the Securities (the "Purchase Price") is the
amount in cash specified on Schedule A hereto. The sale of the Securities and
the payment of the Purchase Price shall be effected as provided in Section 2.02.
SECTION 2.02. Closing. The closing (the "Closing") of the purchase and
sale of the Securities hereunder shall take place at the offices of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as soon as possible after
satisfaction of the conditions set forth in Article 5 or at such other time or
place as the Buyers and MergerSub may agree. At the Closing:
(a) Each Buyer shall deliver to MergerSub, in immediately available
funds, the amount of the aggregate Purchase Price set forth opposite such
Buyer's name on Schedule A hereto, by wire transfer (or other means acceptable
to MergerSub) to an account of MergerSub with a bank in New York City designated
by MergerSub, by notice to such Buyer, not later than two Business Days prior to
the Closing Date.
(b) MergerSub shall deliver to each Buyer certificates, or other
appropriate documentation, for the relevant Securities free and clear of any
Liens and preemptive rights and duly registered in the name of such Buyer.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF MERGERSUB
MergerSub represents and warrants to each Buyer as of the date hereof
and as of the Closing Date that:
SECTION 3.01. Corporate Existence and Power. MergerSub 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 governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted and as proposed to be conducted following the Merger.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by MergerSub of each of the relevant Transaction Documents and the
consummation of the transactions contemplated hereby and thereby (including the
issuance and sale of the Securities) are within MergerSub's corporate powers and
have been duly authorized by all necessary corporate action on the part of
MergerSub. Each of the relevant Transaction Documents constitutes or, when
executed, will constitute, a valid and binding agreement of MergerSub,
enforceable against MergerSub in accordance with its terms, except as limited by
(i) applicable bankruptcy, insolvency, reorganization, moratorium, and other
laws of general application affecting enforcement or creditors' rights
generally, or (ii) laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
SECTION 3.03. Governmental Authorization. Except for compliance with
the matters referred to in Sections 3.03 and 4.03 of the Merger Agreement, the
execution, delivery and performance by MergerSub of each of the relevant
Transaction Documents and the consummation of the transactions contemplated
hereby and thereby require no order, license, consent, authorization or approval
of, or exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official.
SECTION 3.04. Noncontravention. The execution, delivery and performance
by MergerSub of each of the relevant Transaction Documents and the consummation
of the transactions contemplated hereby and thereby do not and will not (i)
violate the certificate of incorporation or bylaws of MergerSub, (ii) violate
any applicable law, rule, regulation, judgment, injunction, order or decree,
(iii) require any consent or other action by any Person under, constitute a
default under (with due notice or lapse of time or both), or give rise to any
right of termination, cancellation or acceleration of any right or obligation of
MergerSub or to a loss of any benefit to which MergerSub is entitled under any
provision of any agreement or other instrument binding upon MergerSub or any of
MergerSub's assets or properties or (iv) result in the creation or imposition of
any material Lien on any property or asset of MergerSub.
SECTION 3.05. Capitalization and Voting Rights. (a) The authorized
capital stock of MergerSub consists of 50,000,000 Common Shares and the
outstanding capital stock of MergerSub as of the date hereof and immediately
prior to the Closing is one Common Share. The rights, privileges and preferences
of the Common Stock are set forth in the certificate of incorporation attached
hereto as Exhibit A.
(b) Immediately following the Closing, the outstanding capital stock
of MergerSub will be 1,222,222 Common Shares and warrants to purchase 44,850
Common Shares.
(c) Except as set forth in this Section 3.05, there are, and
immediately after the Closing there will be, no outstanding (i) shares of
capital stock or voting securities of MergerSub, (ii) securities of MergerSub
convertible into or exchangeable for shares of capital stock or voting
securities of MergerSub, (iii) options, warrants or other rights (including,
without limitation, preemptive rights) to acquire from MergerSub, or other
obligation of MergerSub to issue, any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of MergerSub or (iv) no obligation of MergerSub to repurchase or
otherwise acquire or retire any shares of capital stock or any convertible
securities, rights or options of the type described in (i), (ii), or (iii).
SECTION 3.06. Valid Issuance of Securities. Each of the Common Shares
which are being issued to the Buyers hereunder, have been duly and validly
authorized and when issued, sold and delivered in accordance with the terms
hereof for the consideration set forth herein, will be duly and validly issued,
fully paid and nonassessable and free of preemptive rights.
SECTION 3.07. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of MergerSub, threatened against
or affecting MergerSub or any of its respective properties before any court or
arbitrator or any governmental body, agency or official which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by the Transaction Documents.
SECTION 3.08. Newly Formed Corporation. MergerSub was incorporated on
March 18, 1998 in the State of Delaware solely for the purpose of effectuating
the transactions contemplated by the Transaction Documents and has not conducted
any business or entered into any agreements or commitments except in furtherance
of the foregoing.
SECTION 3.09. Meaning of MergerSub. Except as otherwise specifically
provided herein, references to MergerSub contained in this Article 3 shall be
construed to refer to MergerSub on the date hereof and for purposes of
determining the satisfaction of Section 5.02(a) immediately prior to the
consummation of the transactions contemplated by the Merger Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer represents and warrants to MergerSub, severally as to itself
only and not jointly or as to any other Buyer, as of the date hereof and as of
the Closing Date that:
SECTION 4.01. Existence and Power. Such Buyer is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all powers (corporate, partnership or otherwise) and all
material governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Authorization. The execution, delivery and performance by
such Buyer of each of this Agreement, and when executed, the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby are or, when executed, will be, within the powers (corporate,
partnership or otherwise) of such Buyer and have been or will have been duly
authorized by all necessary action on the part of such Buyer. This Agreement
constitutes and the Investors' Agreement, when executed, will constitute, a
valid and binding agreement of such Buyer, each enforceable in accordance with
their respective terms, except as limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of this Agreement and the Investors' Agreement and the
consummation of the transactions contemplated hereby and thereby require no
order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official.
SECTION 4.04. Purchase for Investment. Such Buyer is purchasing the
relevant Securities for investment for its own account and not with a view to,
or for sale in connection with, any distribution thereof.
SECTION 4.05. Private Placement. (a) Such Buyer understands that (i)
the offering and sale of the Securities hereby is intended to be exempt from
registration pursuant to Section 4(2) of the 1933 Act and (ii) there is no
existing public market for the relevant Securities, and there can be no
assurance that any Buyer will be able to sell or dispose of the relevant
Securities to be purchased by such Buyer.
(b) Such Buyer's financial situation is such that such Buyer
can afford to bear the economic risk of holding the relevant Securities acquired
hereunder for an indefinite period of time, and such Buyer can afford to suffer
the complete loss of the investment in the relevant Securities.
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and risks
of the investment in the relevant Securities, or such Buyer has been advised by
a representative possessing such knowledge and experience.
(d) Such Buyer understands that the Securities 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 Securities as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no public market for the Securities and that, accordingly, it may not be
possible for such Buyer to sell the Securities in case of emergency or
otherwise.
(e) Such Buyer and its representatives, including, to the
extent it deems appropriate, its professional, financial, tax and other
advisors, have had the opportunity to review all documents provided to them in
connection with the investment in the Securities, and such Buyer understands and
is aware of the risks related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, MergerSub and its representatives concerning the terms and
conditions of the acquisition of the Securities and the transactions
contemplated by the Transaction Documents and to obtain all additional
information which such Buyer or its representatives deem necessary.
(g) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
SECTION 4.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer, threatened
against or affecting, such Buyer before any court or arbitrator or any
governmental body, agency or official which in any manner challenges or seeks to
prevent, enjoin, alter or materially delay the transactions contemplated by this
Agreement or the Investors' Agreement.
SECTION 4.07. Brokers or Finders' Fees. Except as contemplated by the
Merger Agreement, there is no investment banker, broker, finder or other
intermediary which has been retained by, will be retained by or is authorized to
act on behalf of, such Buyer who might be entitled to any fee or commission from
the Company, MergerSub, CVC or the DLJMB Entities upon consummation of the
transactions contemplated by this Agreement.
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and MergerSub.
The obligations of each Buyer and MergerSub to consummate the Closing are
subject to the satisfaction of the following conditions:
(a) (i) The conditions to the consummation of the Merger Agreement
shall have been satisfied or waived with any waiver of conditions and
any other amendments or changes having been consented to by each Buyer,
(ii) no party to the Merger Agreement shall be in default of its
obligations thereunder, and (iii) the closing of the Merger (as
contemplated by the Merger Agreement) shall be about to be consummated.
(b) Each other Buyer shall purchase or have purchased the Securities
to be purchased by it hereunder by paying the Purchase Price applicable
thereto in accordance with Section 2.02.
(c) Each other Buyer and the Company shall have entered into the
Investors' Agreement.
(d) There shall not be in effect any judgment, injunction, order or
decree of any governmental body, entity or authority prohibiting or
restraining the transactions contemplated hereby.
SECTION 5.02. Additional Conditions to Obligation of Each Buyer. The
obligation of each Buyer to consummate the Closing is subject to the
satisfaction of the following further condition:
(a) The representations and warranties of MergerSub contained in this
Agreement and in any certificate or other writing delivered by
MergerSub pursuant hereto shall be true, complete and correct in all
material respects when made and at and as of the Closing Date, as if
made at and as of such date.
SECTION 5.03. Additional Conditions to Obligation of MergerSub. The
obligation of MergerSub to consummate the Closing with respect to any Buyer is
subject to the satisfaction of the following further condition:
(a) The representations and warranties of such Buyer contained in this
Agreement and in any certificate or other writing delivered by such
Buyer pursuant hereto shall be true, complete and correct in all
material respects when made and at and as of the Closing Date, as if
made at and as of such date.
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival. The representations and warranties of the
parties hereto contained in this Agreement or in any certificate delivered
pursuant hereto or in connection herewith shall survive the Closing until twelve
months after the Closing Date. Notwithstanding the preceding sentence, any
representation or warranty in respect of which indemnity may be sought under
this Agreement shall survive the time at which it would otherwise terminate
pursuant to the preceding sentence, if notice of the inaccuracy or breach
thereof giving rise to such right of indemnity shall have been given to the
party against whom such indemnity may be sought prior to such time, but only as
to such inaccuracy or breach. A breach of any representation or warranty made in
this Agreement shall not affect in any manner whatsoever the relative rights and
obligations of the parties to and under the Investors' Agreement.
SECTION 6.02. Indemnification. (a) MergerSub hereby agrees to
indemnify, severally and not jointly, each Buyer and its Affiliates, limited
partners, general partners, stockholders, directors, officers and employees
against and agrees to hold each of them harmless from and against any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses)
("Damages") incurred or suffered by any such party arising out of any
misrepresentation or any breach of a warranty, covenant or agreement made or to
be performed by MergerSub pursuant to this Agreement.
(b) Each Buyer hereby agrees to indemnify, severally and not jointly,
MergerSub and its Affiliates, limited partners, general partners, directors,
officers and employees against and agrees to hold each of them harmless from any
and all Damages incurred or suffered by any such party arising out of any
misrepresentation or any breach of a warranty, covenant or agreement made or to
be performed by such Buyer pursuant to this Agreement.
SECTION 6.03. Exclusivity. After the Closing, Section 6.02 will provide
the exclusive remedy for any misrepresentation or breach of warranty, covenant
or other agreement.
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual written agreement of MergerSub and all Buyers;
(b) by MergerSub or any Buyer if the Merger Agreement has been
terminated; or
(c) by MergerSub or any Buyer if consummation of the transactions
contemplated hereby would violate any non-appealable final injunction,
order, decree or judgment of any court or governmental body having
competent jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses 7.01(b) or
(c) shall give notice of such termination to the other parties.
SECTION 7.02. Effect of Termination. If this Agreement is terminated as
permitted by Section 7.01, such termination shall be without liability of any
party (or any stockholder, general partner, limited partner, director, officer,
employee, agent, consultant, representative or Affiliate of such party) to the
other parties to this Agreement; provided that if such termination shall result
from the willful (i) failure of any party to fulfill a condition to the
performance of the obligations of the other parties, (ii) failure to perform a
covenant of this Agreement or (iii) breach by any party hereto of any
representation or warranty or agreement contained herein, such party shall be
fully liable for any and all Damages incurred or suffered by the other parties
as a result of such failure or breach. The provisions of Sections 8.04, 8.05 and
8.06 shall survive any termination hereof pursuant to Section 7.01.
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission)
and shall be given as follows:
if to any Buyer, to such Buyer at the address specified by such Buyer
on the signature pages of this Agreement or in a notice given by such Buyer to
MergerSub for such purpose;
if to MergerSub, to:
Silkworm Acquisition Corporation
c/o DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx
Fax: (000) 000-0000
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a Business Day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding Business Day in the place of receipt.
SECTION 8.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 8.03. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 8.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware.
SECTION 8.05. Jurisdiction. The parties hereto agree that 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 may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 8.01 shall be deemed
effective service of process on such party.
SECTION 8.06. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 8.07. Counterparts; Third Party Beneficiaries. This Agreement
may be signed 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. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement shall confer upon any Person other than the parties
hereto any rights or remedies hereunder.
SECTION 8.08. Unwind. In the event that the Effective Time (as defined
in the Merger Agreement) has not occurred within 30 days after the Closing Date,
then the parties hereto agree that they shall rescind any transactions
consummated at the Closing; provided that such recission shall not relieve any
party of any obligation arising out of a breach of this Agreement.
SECTION 8.09. Entire Agreement. The Transaction Documents (including
the documents, schedules, annexes, appendices and exhibits attached hereto and
thereto and referred to herein and therein) constitute the entire agreement
between agreements and understandings, both oral and written, between the
parties with respect to the subject matter thereof.
SECTION 8.10. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision were so excluded and shall be enforced 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.
SILKWORM ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President and Secretary
DLJ MERCHANT BANKING PARTNERS II,
L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,as
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,as
advisory general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc.,
as managing general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners, Inc., as
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ FIRST ESC, L.P.
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
UK INVESTMENT PLAN 1997 PARTNERS
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc.,
as general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation,
as managing general partner
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ ESC II, L.P.
By: DLJ LBO Plans Management
Corporation, as manager
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
399 VENTURE PARTNERS, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
Address: c/o Citicorp Venture Capital Ltd.
000 Xxxx Xxxxxx- 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
SCHEDULE A
No. of Aggregate
Common Purchase
Investor Shares Price
----------- ---------- --------------
DLJ Merchant Banking Partners II, L.P. 601,929 27,086,805
DLJ Merchant Banking Partners II-A, L.P. 23,972 1,078,740
DLJ Offshore Partners II, C.V. L.P. 29,600 1,332,000
DLJ Diversified Partners, L.P. 35,191 1,583,595
DLJ Diversified Partners-A, L.P. 13,069 588,105
DLJMB Funding II, Inc. 106,869 4,809,105
DLJ Millennium Partners, L.P. 9,733 437,985
DLJ Millennium Partners-A, L.P. 1,898 85,410
DLJ EAB Partners, L.P. 2,703 121,635
UK Investment Plan 1997 Partners 15,926 716,670
DLJ ESC II, L.P. 113,508 5,107,860
DLJ First ESC, L.P. 1,158 52,110
399 Venture Partners, Inc. 266,666 11,999,970
Total 1,222,222 $54,999,990
EXHIBIT A
CERTIFICATE OF INCORPORATION
OF
SILKWORM ACQUISITION CORPORATION
* * * * *
FIRST: The name of the Corporation is Silkworm Acquisition
Corporation.
SECOND: The address of its registered office in the State of Delaware
is 0000 Xxxxxx Xxxx, Xxxx xx Xxxxxxxxxx, Xxxxxx of Xxx Xxxxxx, Xxxxxxxx 00000.
The name of its registered agent at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
("Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 100, and the par value of each such share is $1.00,
amounting in the aggregate to $100.
FIFTH: The name and mailing address of the incorporator are:
Name Mailing Address
-------------------------------------------- -----------------------------
Xxxxxxxx Xxxx 000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
SIXTH: The Board of Directors shall have the power to adopt, amend or
repeal the bylaws of the Corporation.
SEVENTH: Election of directors need not be by written ballot unless the
bylaws of the Corporation so provide.
EIGHTH: (1) A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the fact
that such person is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director or officer of another
corporation, partnership, joint venture, trust or other enterprise, shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by Delaware Law. The right to indemnification conferred in this ARTICLE EIGHTH
shall also include the right to be paid by the Corporation the expenses incurred
in connection with any such proceeding in advance of its final disposition to
the fullest extent authorized by Delaware Law. The right to indemnification
conferred in this ARTICLE EIGHTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the Corporation
to such extent and to such effect as the Board of Directors shall determine to
be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability or loss
incurred by such person in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE EIGHTH shall not
be exclusive of any other right which any person may otherwise have or hereafter
acquire.
(5) Neither the amendment nor repeal of this ARTICLE EIGHTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws of
the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE EIGHTH
in respect of any acts or omissions occurring prior to such amendment, repeal,
adoption or modification.
NINTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE EIGHTH,
all rights and powers conferred herein on stockholders, directors and officers,
if any, are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto signed my name this 18th day of
March 1998.
/s/ Xxxxxxxxx Xxxx
------------------
Xxxxxxxx Xxxx
AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OF
SILKWORM ACQUISITION CORPORATION
* * * * *
Silkworm Acquisition Corporation (the "Corporation"), a corporation
organized and existing under and by virtue of the General Corporation Law of the
State of Delaware (the "GCL"), does hereby amend the Certificate of
Incorporation of the Corporation, which was originally filed on March 18, 1998.
The undersigned hereby certifies that the Corporation has not received
any payment for any of its stock and that this Amendment to the Certificate of
Incorporation has been duly adopted in accordance with Section 241 of the GCL.
Article Fourth is hereby deleted in its entirety and replaced with:
"FOURTH: The total number of shares of stock which the
Corporation shall have authority to issue is 1,500,000 consisting of
1,500,000 shares of Common Stock, par value $0.001 per share."
THE UNDERSIGNED, being the Vice President and Secretary of Silkworm
Acquisition Corporation for the purpose of amending the Certificate of
Incorporation of the Corporation pursuant to the General Corporation Law of the
State of Delaware, does make this Amended Certificate of Incorporation, hereby
declaring and certifying that this is my act and deed and the facts herein
stated are true, and accordingly have hereunto set my hand this 2nd day of April
1998 .
SILKWORM ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President and Secretary
CERTIFICATE OF AMENDMENT TO
CERTIFICATE OF INCORPORATION
OF
SILKWORM ACQUISITION CORPORATION
Silkworm Acquisition Corporation, a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), hereby certifies as
follows:
1. The Certificate of Incorporation of the Corporation is hereby
amended by deleting the FOURTH section in its entirety and replacing it with the
following:
"FOURTH: The total number of shares of stock which the Corporation
shall have authority to issue is 50,000,000 consisting of 50,000,000 shares
of Common Stock, par value $0.001 per share."
2. The aforesaid amendment to the Certificate of Incorporation of the
Corporation has been duly adopted by the Board of Directors and stockholders of
the Corporation in accordance with the applicable provisions of Section 242 of
the General Corporation Law of the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
signed and acknowledged by its Vice President and Secretary this 5th day of
August, 1998.
SILKWORM ACQUISITION CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
--------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President and Secretary
