EXECUTION COPY
INVESTORS AGREEMENT
dated as of
December 18, 1997
among
IPC INFORMATION SYSTEMS, INC.
CABLE SYSTEMS HOLDING, LLC
[CABLE SYSTEMS INTERNATIONAL INC.]*
AND
CERTAIN OTHER PERSONS NAMED HEREIN
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* To be added as a signatory hereto pursuant to Section 7.14 hereof.
TABLE OF CONTENTS
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PAGE
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ARTICLE 1 DEFINITIONS
Section 1.01. Definitions..................................1
ARTICLE 2 CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.01. Composition of the Board.....................6
Section 2.02. Removal......................................7
Section 2.03. Vacancies....................................7
Section 2.04. Action by the Board..........................7
Section 2.05. Conflicting Charter or Bylaw Provision.......8
Section 2.06. IXNET Board..................................8
ARTICLE 3 RESTRICTIONS ON TRANSFER
Section 3.01. General......................................8
Section 3.02. Legends......................................8
Section 3.03. Permitted Transferees........................9
Section 3.04. Restrictions on Transfers by Xxxxxxxxxxx
Shareholders.................................9
Section 3.05. Restrictions on Transfers by Xxxxx
Shareholders and Xxxxxxxx Shareholders.......9
ARTICLE 4 TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
Section 4.01. Rights to Participate in Transfer...........10
Section 4.02. Right to Compel Participation in
Certain Transfers...........................12
ARTICLE 5 REGISTRATION RIGHTS
Section 5.01. Demand Registration.........................13
Section 5.02. Piggyback Registration......................16
Section 5.03. Holdback Agreements.........................17
Section 5.04. Registration Procedures.....................17
Section 5.05. Indemnification by the Company..............20
Section 5.06. Indemnification by Participating
Shareholders................................21
Section 5.07. Conduct of Indemnification Proceedings......21
Section 5.08. Contribution................................22
Section 5.09. Participation in Public Offering............23
Section 5.10. Rule 144....................................24
Section 5.11. No Transfer of Registration Rights..........24
ARTICLE 6 CERTAIN COVENANTS AND AGREEMENTS
Section 6.01. Limitations on Subsequent Registration......24
Section 6.02. Limitation on Purchase of Common Stock......24
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ARTICLE 7 MISCELLANEOUS
Section 7.01. Entire Agreement............................25
Section 7.02. Binding Effect; Benefit.....................25
Section 7.03. Assignability...............................25
Section 7.04. Amendment; Waiver; Termination..............25
Section 7.05. Notices.....................................26
Section 7.06. Headings....................................28
Section 7.07. Counterparts................................28
Section 7.08. Governing Law...............................28
Section 7.09. Specific Enforcement........................29
Section 7.10. Certain Actions.............................29
Section 7.11. Consent to Jurisdiction; Expenses...........29
Section 7.12. Severability................................30
Section 7.13. Additional Stockholder......................30
Section 7.14. Schedule I..................................30
Section 7.15 Effectiveness...............................30
Schedule I Securities Ownership
Exhibit A Form of Joinder Agreement
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INVESTORS AGREEMENT
INVESTORS AGREEMENT, dated as of December 18, 1997, among (i)
IPC Information Systems, Inc. (the "Company"), (ii) Cable Systems Holding, LLC,
a Delaware limited liability company ("CSH"), and (iii) Xxxxxxx Xxxxxxxxxxx,
(iv) Xxxxx Xxxxx and (v) Xxxxxxx Xxxxxxxx.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Merger Agreement (as
defined below), Arizona Acquisition Corp. will be merged with and into the
Company, with the Company as the surviving corporation (the "Merger");
WHEREAS, at the Effective Time (as defined in the Merger
Agreement) the parties hereto will hold securities of the Company as set forth
on Schedule I to be attached hereto at the Effective Time;
WHEREAS, the parties hereto desire to enter into this
Agreement to govern certain of their rights, duties and obligations after
consummation of the transactions contemplated by the Merger Agreement;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. DEFINITIONS. (a) The following terms, as used
herein, have the following meanings:
"Adverse Person" means any Person whom the Board of Directors
of the Company may reasonably determine to be a competitor or a potential
competitor of the Company or its Subsidiaries.
"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 Company shall
be deemed an Affiliate of any other securityholder solely by reason of any
investment in the Company. 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.
"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.
"Change of Control" means such time as (a) the CSH
Shareholders shall own less than 20% of the outstanding shares of Common Stock,
(b) the transfer of all or substantially all of the assets of the Company to any
Person or group shall have been consummated, or (c) the Company shall have been
liquidated.
"Closing Date" shall have the meaning ascribed thereto in the
Merger Agreement.
"Common Stock" shall mean the common stock, par value $.01 per
share, of the Company and any stock into which such Common Stock may thereafter
be converted or changed; PROVIDED, HOWEVER, that in the event of a stock
dividend, split-up, recapitalization, combination, exchange of stock or the like
in respect of such Common Stock, the term "Common Stock" shall be deemed to
refer to and include the stock as well as all stock dividends and distributions
and any stock into which or for which any or all of such stock may be changed or
exchanged.
"CSH Entities" means (a) CSH and (b) Cable Systems
International Inc., a Delaware Corporation, if it becomes a party hereto
pursuant to Section 7.13.
"CSH Shareholders" means the CSH Entities and their direct and
indirect Permitted Transferees so long as any such Person shall beneficially own
any Common Stock.
"Drag-Along Portion" means, with respect to any Xxxxxxxxxxx
Shareholder, any Xxxxx Shareholder or any Xxxxxxxx Shareholder, the number of
Shares beneficially owned by such Xxxxxxxxxxx Shareholder, Xxxxx Shareholder or
Xxxxxxxx Shareholder multiplied by a fraction, the numerator of which is the
number of Shares to be sold by the CSH Shareholders on behalf of the CSH
Shareholders and the Xxxxxxxxxxx Shareholders, the Xxxxx Shareholders and the
Xxxxxxxx Shareholders and the denominator of which is the total number of Shares
then beneficially owned by all of the Shareholders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fully Diluted" means all outstanding shares of Common Stock
and all shares issuable in respect of securities convertible into or
exchangeable or exercisable for such
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Common Stock, stock appreciation rights or options, warrants and other
irrevocable rights to purchase or subscribe for such Common Stock or securities
convertible into or exchangeable or exercisable for such Common Stock; provided
that no Person shall be deemed to own such number of Fully Diluted shares of any
Common Stock as such Person has the right to acquire from any Person other than
the Company.
"Initial Ownership" means, with respect to any Shareholder,
the number of shares of Common Stock beneficially owned (and (without
duplication) which such Persons have the right to acquire from any Person) as of
the Effective Time, or in the case of any Person that shall become a party to
this Agreement on a later date, as of such date, taking into account any stock
split, stock dividend, reverse stock split or similar event.
"Xxxxxxxxxxx Shareholders" means the Xxxxxxx Xxxxxxxxxxx and
his direct and indirect Permitted Transferees so long as any such Person shall
beneficially own any Common Stock.
"Merger Agreement" means the Agreement and Plan of Merger
dated as of the date hereof, as subsequently amended, between the Company and
Arizona Acquisition Corp.
"Permitted Transferee" means (i) in the case of any
Shareholder who is a natural person, (a) a spouse or lineal descendent
(including by adoption and stepchildren), heir, executor, testamentary trustee
or legatee of such Shareholder or (b) any trust or estate the beneficiaries of
which, or any corporation, limited liability company or partnership, the
stockholders, members or partners of which include only the Persons described in
clause (a) above, and (ii) in the case of any CSH Shareholder, (a) Citicorp
Venture Capital, Ltd., any stockholder, member, partner or Affiliate of any such
CSH Shareholder or of Citicorp Venture Capital, Ltd. and any officer, director,
or employee of any such CSH Shareholder, Citicorp Venture Capital, Ltd. or of
any such stockholder, member, partner or Affiliate, (b) a spouse or lineal
descendant (including by adoption and stepchildren), heir, executor,
testamentary trustee or legatee of the officers, directors and employees
referred to in clause (ii)(a) above, and any trust or estate (where a majority
in interest of the beneficiaries thereof are any of the Persons described in
this clause (b) and in clause (ii)(a) above), corporation, limited liability
company or partnership (where a majority in interest of the stockholders,
members or limited partners, or where the managing general partner, is one of
more of the Persons described in this clause (b) or in clause (ii)(a) above.
"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.
"Pro Rata Portion" means the number of Shares a Shareholder
holds multiplied by a fraction, the numerator of which is the number of Shares
to be sold by the CSH Shareholders, the Xxxxxxxxxxx Shareholders, the Xxxxx
Shareholders and the Xxxxxxxx Shareholders in a Public
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Offering and the denominator of which is the total number of Shares, on a Fully
Diluted basis, held in the aggregate by the CSH Shareholders, the Xxxxxxxxxxx
Shareholders, the Xxxxx Shareholders and the Xxxxxxxx Shareholders immediately
prior to such Public Offering.
"Public Offering" means any primary or secondary public
offering of shares of Common Stock 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, any shares of Common Stock then owned by such Shareholder until
(i) a registration statement covering such securities 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 to the public
pursuant to Rule 144 (or any similar provisions then in force) under the
Securities Act or (iii) such securities are otherwise transferred, the Company
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 are freely tradeable without restriction by the holder thereof 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 Company (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 Company and
customary fees and expenses for independent certified public accountants
retained by the Company (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 5.04(g)
hereof), (vi) the reasonable fees and expenses of any special experts retained
by the Company in connection with such registration, (vii) reasonable fees and
expenses of up to one counsel for the Shareholders participating in the
offering, (viii) fees and expenses in connection with any review of underwriting
arrangements by the National Association of Securities 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.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
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"Xxxxxxxx Shareholders" means Xxxxxxx Xxxxxxxx and his direct
and indirect Permitted Transferees so long as any such Person shall beneficially
own any Common Stock.
"Shareholder" means each Person (other than the Company) 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 7.03 or otherwise, so
long as such Person shall beneficially own any Common Stock.
"Shares" means shares of Common Stock held by the
Shareholders.
"Subject Securities" means the Common Stock beneficially owned
by the Xxxxxxxxxxx Shareholders, the Xxxxx Shareholders and the Xxxxxxxx
Shareholders to be transferred in a Section 4.02 Sale.
"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.
"Tag-Along Portion" means the number of Shares held by the
Tagging Person or the Selling Person, as the case may be, multiplied by a
fraction, the numerator of which is the number of Shares proposed to be sold by
the Selling Person pursuant to Section 4.01, and the denominator of which is the
aggregate number of Shares, on a Fully Diluted basis, then owned by the Selling
Person.
"Third Party" means a prospective purchaser of Common Stock
from a Shareholder where such purchaser is not a Permitted Transferee of such
Shareholder or an entity in which such Shareholder or any of its Permitted
Transferees directly or indirectly owns any outstanding securities or other
ownership interests having ordinary voting power.
"Underwritten Public Offering" means a firmly underwritten
public offering of Registrable Securities of the Company pursuant to an
effective registration statement under the Securities Act.
"Xxxxx Shareholders" means Xxxxx and his direct and indirect
Permitted Transferees so long as any such Person shall beneficially own any
Common Stock.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
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Term Section
Cause 2.02
Demand Registration 5.01(a)
Drag-Along Rights 4.02(a)
Free Percentage 4.01(a)
Holders 5.01(a)(ii)
Indemnified Party 5.07
Indemnifying Party 5.07
Inspectors 5.04(g)
Joinder Agreement 3.03
Maximum Offering Size 5.01(e)
Nominee 2.03(a)
Piggyback Registration 5.02(a)
Records 5.04(g)
Section 4.01 Response Notice 4.01(a)
Section 4.02 Sale 4.02(a)
Section 4.02 Notice 4.02(a)
Section 4.02 Sale Price 4.02(a)
Section 4.02 Notice Period 4.02(a)
Selling Person 4.01(a)
Selling Shareholder 5.01(a)
Tag-Along Notice 4.01(a)
Tag-Along Notice Period 4.01(a)
Tag-Along Offer 4.01(a)
Tag-Along Right 4.01(a)
Tag-Along Sale 4.01(a)
Tagging Person 4.01(a)
Transfer 3.01(a)
Xxxxx Preamble
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.01. COMPOSITION OF THE BOARD. The Board shall
consist of nine members, of whom (i) three shall be nominated by the CSH
Shareholders, (ii) two shall be nominated by the CSH Shareholders and shall be
individuals which are not "Affiliates" or "Associates" (as those terms are used
within the meaning of Rule 12b-2 of the General Rules and Regulations under the
Exchange Act) of any Shareholder or its Affiliates, (iii) two shall be nominated
by the CSH Shareholders and shall be individuals who are executive officers of
the Company or its Subsidiaries and (iv) two shall be nominated by the
Xxxxxxxxxxx Shareholders.
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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 2.01; provided that, no
Shareholder shall be required to vote for the CSH Shareholders' or the
Xxxxxxxxxxx Shareholders' nominee(s) , as applicable, if the number of Shares
held by the group of Shareholders, as applicable, making the nomination is, at
the close of business on the day preceding such vote or execution of consents,
less than (x) 5% of the outstanding number of Shares of Common Stock, in the
case of the CSH Shareholders or (y) less than 50% of its Initial Ownership of
Common Stock, in the case of the Xxxxxxxxxxx Shareholders.
Section 2.02. REMOVAL. Subject to applicable law, 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 in favor
of the removal of any director who shall have been designated or nominated
pursuant to Section 2.01 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 2.01 shall request the removal, with
or without Cause, of such director in writing, each 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 its
Subsidiaries, monetarily or otherwise, (c) conviction for, or guilty plea to, a
felony or a crime involving moral turpitude, or (d) abuse of illegal drugs or
other controlled substances or habitual intoxication.
Section 2.03. 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 Shareholder(s) entitled under Section 2.01 to nominate
such director whose death, disability, retirement, resignation or removal
resulted in such vacancy, may, subject to the provisions of Section 2.01,
nominate 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, or
execute a written consent, as the case may be, in order to ensure that the
Nominee be elected to the Board; provided that, no Shareholder shall be required
to vote for another party's Nominee(s) if the aggregate number of Shares held by
the Shareholder or group of Shareholders, as applicable, making the nomination
is, at the close of business of the day preceding such vote or execution of
consents, less than (x) 5% of the outstanding number of Shares of Common Stock,
in the case of the CSH Shareholders or (y) less than 50% of the Initial
Ownership of Common Stock, in the case of the Xxxxxxxxxxx Shareholders.
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Section 2.04. ACTION BY THE BOARD. (a) A quorum at any meeting
of the Board shall consist of five directors.
(b) All actions of the Board shall require the affirmative
vote of at least a majority of the directors present 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.
Section 2.05. CONFLICTING CHARTER OR BYLAW PROVISION. Each
Shareholder shall vote its Shares, and shall take all other actions reasonably
necessary, to ensure that the Company's certificate of incorporation and bylaws
are consistent with, facilitate and do not at any time conflict with any
provision of this Agreement.
Section 2.06. IXNET BOARD. For so long as (a) International
Exchange Network Ltd, a Delaware corporation ("IXNET") is a wholly-owned
Subsidiary of the Company and (b) Xxxxx Xxxxx is an employee of IXNET, the
Company shall cause Xxxxx Xxxxx to be a member of the board of directors of
IXNET.
ARTICLE 3
RESTRICTIONS ON TRANSFER
Section 3.01. GENERAL. (a) Each Shareholder agrees that it
will not, directly or indirectly, sell, assign, transfer, grant a participation
in, pledge or otherwise dispose of ("transfer") any Common Stock (or solicit any
offers to buy or otherwise acquire, or take a pledge of any Common Stock) except
in compliance with the Securities Act and the terms and conditions of this
Agreement.
(b) Any attempt to transfer any Common Stock not in compliance
with this Agreement shall be null and void and the Company shall not, and shall
cause any transfer agent not to, give any effect in the Company's stock records
to such attempted transfer.
Section 3.02. LEGENDS. (a) In addition to any other legend
that may be required, each certificate for shares of Common Stock that is issued
to any Shareholder shall bear a legend in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR IN
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ACCORDANCE WITH AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OF 1933, AS AMENDED. SHARES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
INVESTORS AGREEMENT DATED AS OF DECEMBER 18, 1997, COPIES OF WHICH MAY
BE OBTAINED UPON REQUEST FROM IPC INFORMATION SYSTEMS, INC. OR ANY
SUCCESSOR THERETO."
(b) If any Common Stock shall cease to be subject to any and
all restrictions on transfer set forth in this Agreement, the Company shall,
upon the written request of the holder thereof, issue to such holder a new
certificate evidencing such Common Stock without the legend required by Section
3.02(a) endorsed thereon.
Section 3.03. PERMITTED TRANSFEREES. Any Shareholder may at
any time transfer any or all of its Shares to one or more of its Permitted
Transferees without the consent of the Company or any Shareholder or group of
Shareholders and without compliance with Sections 3.04 and 4.01 so long as (a)
such Permitted Transferee shall have executed a Joinder Agreement substantially
in the form of Exhibit A hereto ("Joinder Agreement") and thereby agreed to be
bound by the terms of this Agreement and (b) the transfer to such Permitted
Transferee is not in violation of applicable federal or state securities laws.
Section 3.04. RESTRICTIONS ON TRANSFERS BY XXXXXXXXXXX
SHAREHOLDERS. (a) Except as provided in Section 3.03, the Xxxxxxxxxxx
Shareholders may transfer their Common Stock only as follows:
(i) in a transfer made in compliance with
Section 4.01 or Section 4.02;
(ii) in a Public Offering in connection with the
exercise of their rights under Article 5 hereof; or
(iii) following the earlier to occur of (i) the date
on which the number of Shares held by the Xxxxxxxxxxx
Shareholders is less than 5% of the outstanding number of
Shares of Common Stock and (ii) the fifth anniversary of the
Closing Date, to any Person other than any Adverse Person.
(b) The restrictions set forth in Section 3.04 shall terminate
at such time as the aggregate number of Shares of Common stock held by the CSH
Shareholders is less than 50% of the CSH Shareholders' aggregate Initial
Ownership of Common Stock.
Section 3.05. RESTRICTIONS ON TRANSFERS BY XXXXX SHAREHOLDERS
AND XXXXXXXX SHAREHOLDERS. Except as provided in Section 3.03, the Xxxxx
Shareholders and the Xxxxxxxx Shareholders may transfer their Common Stock only
as follows:
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(i) in a transfer made in compliance with Section
4.01 of Section 4.02; or
(ii) in any Public Offering; or
(iii) following the 30th month anniversary of the
Closing Date, to any Person other than any Adverse Person; or
(iv) to any Person, in a transfer through a broker or
dealer in compliance with Rule 144 (or any successor rule).
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
Section 4.01. RIGHTS TO PARTICIPATE IN TRANSFER. (a) If CSH
Shareholders (the "Selling Person") propose to, directly or indirectly, transfer
(other than transfers of Shares (i) in a Public Offering, (ii) to any Permitted
Transferee of any of the CSH Shareholders or (iii) up to 3% in the aggregate of
the securities of such class outstanding on the date of the first transfer of
any Shares by any of the CSH Shareholders (such percentage, the "Free
Percentage")) shares of Common Stock (a "Tag-Along Sale"), the Xxxxxxxxxxx
Shareholders and/or the Xxxxx Shareholders and/or the Xxxxxxxx Shareholders may,
at their option, elect to exercise their rights under this Section 4.01 (each
such Shareholder, a "Tagging Person"). In the event of such a proposed transfer,
the Selling Person shall provide each Xxxxxxxxxxx Shareholder, each Xxxxx
Shareholder and each Xxxxxxxx Shareholder written notice of the material terms
and conditions of such proposed transfer ("Tag-Along Notice") and offer each
Tagging Person the opportunity to participate in such sale. The Tag-Along Notice
shall identify the number of shares of Common Stock subject to the offer
("Tag-Along Offer"), the consideration for 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
irrevocable written notice (a "Section 4.01 Response Notice") given within 10
Business Days from receipt of the Tag-Along Notice (the "Tag-Along Notice
Period") to participate in such Tag-Along Sale on the same terms and conditions
as set forth in the Tag-Along Notice and to sell all or any portion of its
Tag-Along Portion. If the Tagging Persons exercise their Tag-Along Rights
hereunder, each Tagging Person shall deliver at least two business days prior to
the date scheduled for the closing of the Tag-Along Sale to the Selling Person
for delivery to the prospective transferee one or more certificates, in a proper
form for transfer, representing the Shares of such Tagging Person to be included
in the Tag-Along Sale. Such certificate or certificates that a Tagging Person
delivers to the Selling Person shall be delivered on the date scheduled for the
closing of the Tag-Along Sale to such transferee in consummation of the
Tag-Along Sale. Notwithstanding anything to the contrary contained in this
Section 4.01, except for the Selling Person's obligation to return to each
Tagging Person any certificates representing the Tagging Person's Shares there
shall be no
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liability on the part of the Selling Person to any Shareholder in the event that
the proposed Tag-Along Sale is not consummated for whatever reason. Whether a
Tag-Along Sale is effected pursuant to this Section 4.01 by the Selling Person
is in the sole and absolute discretion of the Selling Person.
(b) 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
Shares 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.
(c) 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 4.01(a)
with respect to the transfer of its securities pursuant to such Tag-Along Sale.
(d) If any Tagging Person declines to exercise its Tag-Along
Rights or elects to exercise its Tag-Along Rights with respect to less than such
Tagging Person's Tag-Along Portion, the CSH Shareholders shall be entitled to
transfer, pursuant to the Tag-Along Offer, a number of Shares held by the CSH
Shareholders equal to the number of Shares constituting the portion of such
Tagging Person's Tag-Along Portion with respect to which Tag-Along Rights were
not exercised.
(e) The CSH Shareholders and any Tagging Person who exercises
the Tag-Along Rights pursuant to this Section 4.01 may consummate the Tag-Along
Sale on substantially the same terms and conditions set forth in the Tag-Along
Notice (provided, however, that the price payable in any such sale may exceed
the price specified in the Tag-Along Notice by up to 5%) within 120 days of the
date on which Tag-Along Rights shall have been waived, exercised or expire.
(f) The exercise or the non-exercise of the rights of the
Tagging Persons to participate in one or more Tag-Along Sales shall not
adversely affect their rights to participate in subsequent Tag-Along Sales
subject to this Section 4.01.
(g) The sale of the Selling Person's Shares in any Tag-Along
Sale shall be effected on the same terms and conditions as the sale of any
Tagging Person's Shares and no Selling Person shall receive any form of special
consideration or control premium in addition to the price payable for the sold
Shares.
(h) The right of the Xxxxxxxxxxx Shareholders, the Xxxxx
Shareholders and the Xxxxxxxx Shareholders to participate in a Tag-Along Sale
shall terminate at such time as the aggregate number of Shares held by the
Xxxxxxxxxxx Shareholders, the Xxxxx Shareholders or the
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Xxxxxxxx Shareholders, as the case may be, is less than 50% of their aggregate
Initial Ownership of Common Stock.
Section 4.02. RIGHT TO COMPEL PARTICIPATION IN CERTAIN
TRANSFERS. (a) If (i) the CSH Shareholders propose to transfer Shares
representing not less than 50% of their aggregate Initial Ownership of Common
Stock to a Third Party in a bona fide sale for cash negotiated on an arms-length
basis, and (ii) the CSH Shareholders propose a transfer in which the Shares to
be transferred by the CSH Shareholders, the Xxxxxxxxxxx Shareholders, the Xxxxx
Shareholders and the Xxxxxxxx Shareholders would constitute more than 50% of the
outstanding shares of Common Stock determined on a fully diluted basis (a
"Section 4.02 Sale"), the CSH Shareholders may at their option require all
Xxxxxxxxxxx Shareholders, Xxxxx Shareholders and Xxxxxxxx Shareholders to sell
the Subject Securities ("Drag-Along Rights") then held by every Xxxxxxxxxxx
Shareholder, Xxxxx Shareholder, and Xxxxxxxx Shareholders to such Third Party,
for the same consideration per share of Common Stock and otherwise on the same
terms and conditions as the CSH Shareholders. CSH shall provide written notice
of such Section 4.02 Sale to the Xxxxxxxxxxx Shareholders, the Xxxxx
Shareholders and the Xxxxxxxx Shareholders (a "Section 4.02 Notice") not later
than the 30th day prior to the proposed Section 4.02 Sale. The Section 4.02
Notice shall identify the transferee, the number of Subject Securities, the
consideration for which a transfer is proposed to be made (the "Section 4.02
Sale Price") and all other material terms and conditions of the Section 4.02
Sale. The number of shares of Common Stock to be sold by each Xxxxxxxxxxx
Shareholder, Xxxxx Shareholder and Xxxxxxxx Shareholders shall not exceed the
Drag-Along Portion of the shares of Common Stock that such Xxxxxxxxxxx
Shareholder, Xxxxx Shareholder and Xxxxxxxx Shareholders owns. Each Xxxxxxxxxxx
Shareholder, Xxxxx Shareholder or Xxxxxxxx Shareholder shall be required to
participate in the Section 4.02 Sale on the terms and conditions set forth in
the Section 4.02 Notice and to tender all its Subject Securities as set forth
below. The price payable in such transfer shall be the Section 4.02 Sale Price.
Each of the Xxxxxxxxxxx Shareholders, Xxxxx Shareholders or Xxxxxxxx
Shareholders shall deliver not later than 2 Business Days prior to the date
scheduled for the Section 4.02 Sale to a representative of CSH designated in the
Section 4.02 Notice certificates representing all Subject Securities held by
such Xxxxxxxxxxx Shareholder, Xxxxx Shareholder and Xxxxxxxx Shareholders duly
endorsed, together with all other documents required to be executed in
connection with such Section 4.02 Sale or, if such delivery is not permitted by
applicable law, an unconditional agreement to deliver such Subject Securities
pursuant to this Section 4.02 at the closing for such Section 4.02 Sale against
delivery to such Xxxxxxxxxxx Shareholder, Xxxxx Shareholder and Xxxxxxxx
Shareholders of the consideration therefor. If a Xxxxxxxxxxx Shareholder, Xxxxx
Shareholder or Xxxxxxxx Shareholder should fail to deliver such certificates to
CSH, the Company shall cause the books and records of the Company to show that
such Subject Securities are bound by the provisions of this Section 4.02 and
that such Subject Securities shall be transferred to the purchaser of the
Subject Securities immediately upon surrender for transfer by the holder
thereof.
(b) The CSH Shareholders shall have a period of 120 days from
the date of receipt of the Section 4.02 Notice to consummate the Section 4.02
Sale on the terms and conditions set forth in such Section 4.02 Sale Notice. If
the Section 4.02 Sale shall not have been
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consummated during such period, CSH shall return to each of the Xxxxxxxxxxx
Shareholders, each of the Xxxxx Shareholders and each of the Xxxxxxxx
Shareholders all certificates representing Shares that such Xxxxxxxxxxx
Shareholder, Xxxxx Shareholder or Xxxxxxxx Shareholder, as the case may be, may
have delivered for transfer pursuant hereto, together with any documents in the
possession of CSH executed by the Xxxxxxxxxxx Shareholder, the Xxxxx Shareholder
or the Xxxxxxxx Shareholder, as the case may be, in connection with such
proposed transfer, and all the restrictions on transfer contained in this
Agreement or otherwise applicable at such time with respect to Common Stock
owned by the Xxxxxxxxxxx Shareholders, the Xxxxx Shareholders and the Xxxxxxxx
Shareholders shall again be in effect.
(c) Concurrently with the consummation of the transfer of
Shares pursuant to this Section 4.02, CSH or the Company, as applicable, shall
remit to each of the Shareholders who have surrendered their certificates the
total consideration (by bank or certified check) for the Shares transferred
pursuant hereto and shall furnish such other evidence of the completion and time
of completion of such transfer and the terms thereof as may be reasonably
requested by such Shareholders.
(d) In furtherance of, and not in limitation of the foregoing
provisions of this Section 4.02, in connection with a Section 4.02 Sale (which
Section 4.02 Sale may be structured as a merger, recapitalization,
reorganization, sale of assets or otherwise) each Xxxxxxxxxxx Shareholder, Xxxxx
Shareholder or Xxxxxxxx Shareholder will (i) consent to and raise no objection
against the Section 4.02 Sale or the process pursuant to which it was arranged,
(ii) waive any appraisal rights and other similar rights and (iii) execute all
documents containing such terms and conditions as those executed by other
Shareholders as directed by the CSH Shareholders.
(e) The sale of the CSH Shareholders' Shares in any Section
4.02 Sale shall be effected on the same terms and conditions as the sale of any
Shares owned by the Xxxxxxxxxxx Shareholders, the Xxxxx Shareholders and the
Xxxxxxxx Shareholders and no CSH Shareholder shall receive any form of special
consideration or control premium in addition to the price payable for the sold
Shares.
ARTICLE 5
REGISTRATION RIGHTS
Section 5.01. DEMAND REGISTRATION. (a) If the Company shall
receive a written request by the CSH Shareholders (any such requesting Person, a
"Selling Shareholder") that the Company effect the registration under the
Securities Act of all or a portion of such Selling Shareholder's Registrable
Securities, and specifying the intended method of disposition thereof, then the
Company shall promptly give written notice of such requested registration (a
"Demand Registration") to the Xxxxxxxxxxx Shareholders, the Xxxxx Shareholders
and the Xxxxxxxx
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Shareholders, and thereupon will use its best efforts to effect, as
expeditiously as possible, the registration under the Securities Act of:
(i) the Registrable Securities which the Company has
been so requested to register by the Selling Shareholders,
then held by the Selling Shareholders; and
(ii) all other Registrable Securities of the same
type as that to which the request by the Selling Shareholders
relates which any Xxxxxxxxxxx Shareholder, any Xxxxx
Shareholder or any Servidio Shareholder (all such
Shareholders, together with the Selling Shareholders, the
"Holders") has requested the Company to register by written
request received by the Company within 10 days (one of which
shall be a Business Day) after the receipt by such Holders of
such written notice given by the Company, 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 5.01(d) hereof, the Company shall not be obligated to
effect more than five Demand Registrations for the CSH
Shareholders; and provided further that the Company shall not
be obligated to effect a Demand Registration unless the
aggregate proceeds expected to be received from the sale of
the Common Stock requested to be included in such Demand
Registration, in the reasonable opinion of CSH exercised in
good faith, equals or exceeds $7,500,000. In no event will the
Company be required to effect more than one Demand
Registration within any four-month period.
(b) Promptly after the expiration of the 10-day period
referred to in Section 5.01(a)(ii) hereof, the Company will notify all the
Holders to be included in the Demand Registration of the other Holders and the
number of Registrable Securities requested to be included therein. The Selling
Shareholders requesting a registration under Section 5.01(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 Company 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 Company or unless the
participating Shareholders reimburse the Company for all costs incurred by the
Company in connection with such registration, in which case such request shall
not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in
connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01
shall not be deemed to have been effected unless the registration statement
relating thereto (i) has become effective under the Securities Act and (ii) all
of the Registrable Securities registered thereunder have been
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sold; provided that if, within 180 days after it has become effective, the
offering of Registrable Securities pursuant to such registration is interfered
with by any stop order, injunction or other order or requirement of the SEC or
other governmental agency or court such registration will be deemed not to have
been effected.
(e) If a Demand Registration involves an Underwritten Public
Offering and the managing underwriter shall advise the Company and the Selling
Shareholders that, in its view, (i) the number of shares of Registrable
Securities requested to be included in such registration (including any
securities which the Company proposes to be included which are not Registrable
Securities) or (ii) the inclusion of some or all of the shares of Registrable
Securities 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 Company 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 the parties requesting such Demand Registration
and 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 Holders on the basis of the relative number of
Registrable Securities so requested to be included in such
registration); and
(B) second, any securities proposed to be registered
by the Company.
(f) Upon written notice to each Selling Shareholder, the
Company may postpone effecting a registration pursuant to this Section 5.01 on
one occasion during any period of six consecutive months for a reasonable time
specified in the notice but not exceeding 90 days (which period may not be
extended or renewed), if (1) an investment banking firm of recognized national
standing shall advise the Company and the Selling Shareholders in writing that
effecting the registration would materially and adversely affect an offering of
securities of such Company the preparation of which had then been commenced or
(2) the Company is in possession of material non-public information the
disclosure of which during the period specified in such notice the Company
believes, in its reasonable judgment, would not be in the best interests of the
Company.
(g) After the Company has effected one Demand Registration by
the CSH Shareholders pursuant to this Section 5.01 of Common Stock, the
Xxxxxxxxxxx Shareholders, upon request of the Xxxxxxxxxxx Shareholders owning a
majority of the Shares acquired by the Xxxxxxxxxxx Shareholders on the Closing
Date may request that the Company register Common Stock which are Registrable
Securities then owned by such Xxxxxxxxxxx Shareholders. In no event will the
Company be required to effect more than two such Demand Registrations by the
Xxxxxxxxxxx Shareholders. The other provisions of this Article 5 applicable to
Demand
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Registrations requested by the CSH Shareholders shall apply, mutatis mutandis,
to any such Demand Registration by the Xxxxxxxxxxx Shareholders.
(h) If any registration requested pursuant to this Section
5.01 which is proposed by the Company to be effected by the filing of a
registration statement on form S-3 (or any successor or similar short-form
registration statement) shall be in connection with an Underwritten Public
Offering, and if the managing underwriter shall advise the Company in writing
that, in its opinion, the use of another form of registration statement is of
material importance to the success of such proposed offering, then such
registration shall be effected on such other form.
Section 5.02. PIGGYBACK REGISTRATION. (a) If the Company
proposes to register any of its Common Stock under the Securities Act (other
than pursuant to a Demand Registration), it will each such time, subject to the
provisions of Section 5.02(b) hereof, give prompt written notice at least 15
days prior to the anticipated filing date of the registration statement relating
to such registration to all Shareholders which notice shall set forth such
Shareholders' rights under this Section 5.02 and shall offer all Shareholders
the opportunity to include in such registration statement such number of shares
of Common Stock as each such Shareholder may request (a "Piggyback
Registration"). Upon the written request of any such Shareholder made within 10
days after the receipt of notice from the Company (which request shall specify
the number of shares of Common Stock intended to be disposed of by such
Shareholder), the Company will use its reasonable best efforts to effect the
registration under the Securities Act of all shares of Common Stock which the
Company has been so requested to register by such Shareholders, to the extent
requisite to permit the disposition of the shares of Common Stock so to be
registered; provided that (i) if such registration involves an Underwritten
Public Offering, all such Shareholders requesting to be included in the
Company's registration must sell their Registrable Securities to the
underwriters selected as provided in Section 5.04(f) on the same terms and
conditions as apply to the Company 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 5.02(a) and prior to the effective
date of the registration statement filed in connection with such registration,
the Company shall determine for any reason not to register such stock, the
Company 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
5.02 shall relieve the Company of its obligations to effect a Demand
Registration to the extent required by Section 5.01 hereof. The Company will pay
all Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 5.02.
(b) If a registration pursuant to this Section 5.02 involves
an Underwritten Public Offering and the managing underwriter advises the Company
that, in its view, the number of shares of Common Stock which the Company and
the selling Shareholders intend to include in such registration exceeds the
Maximum Offering Size, the Company will include in such registration, in the
following priority, up to the Maximum Offering Size:
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(i) first, so much of the Common Stock proposed to be
registered for the account of the Company as would not cause
the offering to exceed the Maximum Offering Size; and
(ii) second, all Registrable Securities requested to
be included in such registration by any Shareholder pursuant
to Section 5.02 (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).
Section 5.03. HOLDBACK AGREEMENTS. With respect to each and
every firmly underwritten Public Offering, each Shareholder agrees not to offer
or sell any shares of Common Stock (except for shares of Common Stock, if any,
sold in that Public Offering) during the 14 days prior to the effective date of
the applicable registration statement for a public offering of shares of Common
Stock (except as part of such registration) and during the period after such
effective date equal to the lesser of: (i) 180 days or (ii) any such shorter
period as the Company and the lead managing underwriter of an Underwritten
Public Offering agree.
Section 5.04. REGISTRATION PROCEDURES. Whenever Shareholders
request that any Registrable Securities be registered pursuant to Section 5.01
or 5.02 hereof, the Company will, subject to the provisions of such Sections,
use its reasonable best 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 Company will as expeditiously as possible prepare and
file with the SEC a registration statement on any form selected by counsel for
the Company 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 its reasonable best efforts to cause such filed
registration statement to become and remain effective for a period of not less
than 180 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 Company 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 Company 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 Company modify any information contained in such
registration statement, amendment and
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supplement thereto pertaining to such Shareholder and the Company shall use its
reasonable best efforts to comply with such request, provided, however, that the
Company 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
Company will (i) cause the related prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, (ii) comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or supplement to such prospectus and (iii) 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.
(d) The Company will use its reasonable best 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 and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company and do any and all other
acts and things that may be reasonably necessary or advisable to enable such
Shareholder to consummate the disposition of the Registrable Securities owned by
such Shareholder; provided that the Company 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 Company 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 any Demand Registration requested by
the CSH Shareholders, the Company shall appoint the underwriter or underwriters
chosen by CSH. The Company 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
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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 Company, the Company will make
available for inspection by any Shareholder and any underwriter participating in
any disposition pursuant to a registration statement being filed by the Company
pursuant to this Section 5.04 and any attorney, accountant or other professional
retained by any such Shareholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably requested by any such Person, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement.
(h) The Company will furnish to each such Shareholder (if
requested by 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 Company and (ii) a comfort
letter or comfort letters from the Company'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 Company will otherwise use its reasonable best efforts
to comply with all applicable rules and regulations of the SEC and the relevant
state blue sky commissions, and make available to its securityholders, as soon
as reasonably practicable, an earnings statement covering a period of 12 months,
beginning within three months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(j) The Company may require each such Shareholder to promptly
furnish in writing to the Company information regarding the distribution of the
Registrable Securities as the Company 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 Company of the happening of any event of the kind described in
Section 5.04(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 5.04(e) hereof, and,
if so directed by the Company, such Shareholder will deliver to the Company 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 Company shall give
such notice, the Company shall extend the period during which such
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registration statement shall be maintained effective (including the period
referred to in Section 5.04(a) hereof) by the number of days during the period
from and including the date of the giving of notice pursuant to Section 5.04(e)
hereof to the date when the Company shall make available to such Shareholder a
prospectus supplemented or amended to conform with the requirements of Section
5.04(e) hereof.
(l) The Company will use its reasonable best efforts to list
such Registrable Securities on any securities exchange on which the Common Stock
is then listed or on NASDAQ if the Common Stock is then quoted on NASDAQ not
later than the effective date of such registration statement.
Section 5.05. INDEMNIFICATION BY THE COMPANY. The Company
agrees to indemnify and hold harmless each Shareholder holding Registrable
Securities covered by a registration statement, its officers, directors,
employees, members, partners and agents, any affiliate of such Shareholder and
each Person, if any, who controls such Shareholder within the meaning of the
Securities Act or Section 20 of the Exchange Act (and officers, directors,
employees, members, partners and agents of any such affiliate or controlling
Persons) from and against any and all losses, claims, damages and liabilities,
joint or several, and expenses (including reasonable attorneys fees and costs
and expenses of investigation) 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 Company 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 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 Company 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, in the case of a prospectus, the
prospectus as amended or supplemented) 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 Company has provided such current copy of
such prospectus (or such amended or supplemented prospectus, as the case may be)
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
Company also agrees to indemnify any underwriters of the Registrable Securities,
their officers and
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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 5.05.
Section 5.06. 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
Company, its officers, directors and agents and each Person (other than such
Shareholder) if any, who controls the Company 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 Company 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 5.05 results from
the fact that a current copy of the prospectus (or, in the case of a prospectus,
the prospectus as amended or supplemented) 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 Company provided in this Section 5.06. As a condition to
including Registrable Securities in any registration statement filed in
accordance with Article 5 hereof, the Company may require that it shall have
received an undertaking reasonably satisfactory to it from any underwriter to
indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities.
No Shareholder shall be liable under Section 5.06 for any
damage thereunder in excess of the net proceeds realized by such Shareholder in
the sale of the Registrable Securities of such Shareholder.
Section 5.07. 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 Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is materially and actually prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the right to
retain its
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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.
Section 5.08. 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, liabilities or expenses referred to herein, then each such Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such losses,
claims, damages or liabilities (i) as between the Company and the 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, in such proportion as is appropriate
to reflect the relative benefits received by the Company and such Shareholders
on the one hand and the underwriters on the other, 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 Company and such
Shareholders on the one hand and of such underwriters on the other 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 Company and their related Indemnified Parties on the one hand and
each such Shareholder and their related Indemnified Parties on the other, in
such proportion as is appropriate to reflect the relative fault of the Company
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 Company and such Shareholders on the one hand and such
underwriters on the other shall be deemed to be in the same proportion as the
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and such Shareholders
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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 Company 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 Company and such Shareholders or by such
underwriters. The relative fault of the Company on the one hand and of each such
Shareholder 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 such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not be
just and equitable if contribution pursuant to this Section 5.08 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, liabilities or expenses 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 5.08 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 net proceeds realized on the sale of
the Registrable Securities of such Shareholder 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 5.08 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.
Section 5.09. 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 to be entered into in connection with such
Underwritten Public Offering 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.
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Section 5.10. RULE 144. The Company covenants that it will
file the reports required to be filed by it under the Securities Act and the
Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if
the Company is not required to file such reports, it will, upon the request of
any holder of Registrable Securities, make publicly available such information),
and it will take such further action as any holder of Registrable Securities may
reasonably request, all to the extent required from time to time to enable such
holder to sell shares of Registrable Securities without registration under the
Securities Act within the limitation of the exemptions provided by (i) Rule 144
under the Securities Act, as such Rule may be amended from time to time, or (ii)
any similar rule or regulation hereafter adopted by the SEC. Upon the request of
any holder of Registrable Securities, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements.
Notwithstanding anything contained in this Section 5.10, the Company may
de-register under Section 12 of the Exchange Act if it then is permitted to do
so pursuant to the Exchange Act and the rules and regulations thereunder and, in
such circumstances, shall not be required hereby to file any reports which may
be necessary in order for Rule 144 or any similar rule or regulation to be
available.
Section 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 of such Shareholder in any Public
Offering or pursuant to a distribution to the public under Rule 144 under the
Securities Act.
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.01. LIMITATIONS ON SUBSEQUENT REGISTRATION. Without
the prior written consent of Shareholders holding at least 51% of the Shares
held by all Shareholders, the Company shall not enter into any agreement with
any holder or prospective holder of any securities of the Company (a) that would
allow such holder or prospective holder to include such securities in any
registration filed pursuant to Section 5.01 or 5.02 hereof, unless under the
terms of such agreement, such holder or prospective holder may include such
securities in any such registration only to the extent that the inclusion of
such securities would not reduce the amount of the Registrable Securities of the
Shareholders included therein or (b) on terms otherwise more favorable than this
Agreement.
Section 6.02. LIMITATION ON PURCHASE OF COMMON STOCK. Until
the earlier to occur of (i) the fifth anniversary of the Closing Date or (ii)
the occurrence of a Change in Control no Xxxxxxxxxxx Shareholder shall acquire
any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock except (x) as a Permitted Transferee in a transfer
from any other Xxxxxxxxxxx Shareholder which is otherwise permitted under the
terms of Article 3 hereof or (y) pursuant to stock options granted by the
Company.
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ARTICLE 7
MISCELLANEOUS
Section 7.01. ENTIRE AGREEMENT. This Agreement, including all
exhibits hereto, constitutes the entire agreement and supersedes all prior
agreements and undertakings, both written and oral, among the parties, or any of
them, with respect to the subject matter hereof and except as otherwise
expressly provided herein.
Section 7.02. 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.
Except as expressly provided in Sections 5.05 and 5.06, 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.
Section 7.03. ASSIGNABILITY. (a) Neither this Agreement nor
any right, remedy, obligation or liability arising hereunder or by reason hereof
shall be assignable by the Company or any Shareholder; provided that (i) any
Permitted Transferee acquiring shares of Common Stock in a transfer permitted
under this Agreement shall execute and deliver to the Company a Joinder
Agreement, and (ii) with the prior written consent of Shareholders holding at
least 50% of the Shares held by all Shareholders, the rights and obligations of
the Shareholders under Article 5 shall be assignable by the Shareholders to any
Third Party acquiring Registrable Securities in a transfer permitted under this
Agreement.
Section 7.04. 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 and holders of at least 50% of the Shares held
by the Shareholders at the time of such proposed amendment or modification.
(b) In addition, any amendment or modification of any
provision of this Agreement that would adversely affect any (i) CSH Shareholder
may be effected only with the consent of CSH Shareholders holding at least 50%
of the Shares held by the CSH Shareholders, (ii) Xxxxxxxxxxx Shareholder may be
effected only with the consent of Xxxxxxxxxxx Shareholders holding at least 50%
of the Shares held by the Xxxxxxxxxxx Shareholders, (iii) Xxxxx Shareholder may
be effected only with the consent of Xxxxx Shareholders holding at least 50% of
the Shares held by the Xxxxx Shareholders or (iv) Xxxxxxxx Shareholder may be
effected only with the consent of Xxxxxxxx Shareholders holding at least 50% of
the Shares held by the Xxxxxxxx Shareholders.
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(c) This Agreement shall terminate on the tenth anniversary of
the date hereof unless earlier terminated.
Section 7.05. NOTICES. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly received if so given) by hand delivery,
telegram, telex or telecopy, or by mail (registered or certified mail, postage
prepaid, return receipt requested) or by any courier service providing proof of
delivery. All communications hereunder shall be delivered to the respective
parties at the following addresses:
(i) if to the Company to:
IPC Information Systems, Inc.
Wall Street Plaza
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
with copies to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
and
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
and
Thacher, Xxxxxxxx & Xxxx
Xxx Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
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(ii) if to any CSH Shareholder, to:
Cable Systems Holding, LLC
000 Xxxxx 00xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx Xxxx
Fax: (000) 000-0000
with copies to:
Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Xx.
Fax: (000) 000-0000
and
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(iii) If to any Xxxxxxxxxxx Shareholder, to:
Xxxxxxx X. Xxxxxxxxxxx
00 Xxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
with a copy to:
White & Case
1155 Avenue of the Americas
New York, New York
Attention: Xxxxxx X. Rover, Esq.
Fax: (000) 000-0000
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(iv) If to any Xxxxx Shareholder, to:
IPC Information Systems, Inc.
Wall Street Plaza
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Fax: (000) 000-0000
(v) If to any Servidio Shareholder, to:
IPC Information Systems, Inc.
Wall Street Plaza
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxx & Xxxxxxx
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
Section 7.06. HEADINGS. The headings contained in this
Agreement are for the convenience of reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement.
Section 7.07. COUNTERPARTS. This Agreement may be executed in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
Section 7.08. GOVERNING LAW. This Agreement shall be governed
and construed in accordance with the laws of the State of New York, without
giving effect to any choice of law or conflict of law provision or rule that
would cause the application of the laws of any jurisdiction other than the State
of New York, except to the extent that the General Corporation
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Law of the State of Delaware applies as a result of the Company being
incorporated in the State of Delaware, in which case such General Corporation
Law shall apply.
Section 7.09. SPECIFIC ENFORCEMENT. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms. It is
accordingly agreed that the parties hereto shall be entitled to specific
performance of the terms hereof, this being in addition to any other remedy to
which they are entitled at law or in equity.
Section 7.10. CERTAIN ACTIONS. Unless otherwise expressly
provided herein, whenever any action is required under this Agreement by:
(a) the CSH Stockholders (as a group, as opposed to the
exercise by a CSH Shareholder of its individual rights hereunder), it shall be
by the affirmative vote of the holders of at least 51% of the Shares then held
by the CSH Shareholders as a group; or
(b) the Xxxxxxxxxxx Shareholders (as a group, as opposed to
the exercise by a Xxxxxxxxxxx Shareholder of its individual rights hereunder),
it shall be by the affirmative vote of the holders of at least 51% of the Shares
then held by the Xxxxxxxxxxx Shareholders as a group.
(c) the Xxxxx Shareholders (as a group, as opposed to the
exercise by a Xxxxx Shareholder of its individual rights hereunder), it shall be
by the affirmative vote of the holders of at least 51% of the Shares then held
by the Xxxxx Shareholders as a group.
(d) the Servidio Shareholders (as a group, as opposed to the
exercise of a Xxxxxxxx Shareholder of its individual rights hereunder), it shall
be by the affirmative vote of the holders of at least 51% of the Shares then
held by the Xxxxxxxx Shareholders as a group.
Section 7.11. 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 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 by any method provided in Section 7.05 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.
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(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.
Section 7.12. SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule of
law or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of the transactions contemplated by the Merger Agreement is not
affected in any manner adverse to any party. Upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner.
Section 7.13. ADDITIONAL STOCKHOLDER. In the event that CSI
shall acquire Common Stock, CSH agrees to cover CSI to become a party to this
Agreement by executing the signature page hereof.
Section 7.14. SCHEDULE I. The parties hereto shall cooperate
in causing Schedule I hereto to set forth the securities of the Company held by
them.
Section 7.15. EFFECTIVENESS. It is a condition precedent to
the effectiveness of this Agreement that the "Merger" under and as defined in
the Merger Agreement shall have been consummated.
[Signature Page to Follow]
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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.
IPC INFORMATION SYSTEMS, INC.
By: /S/ S.T. XXXXXX
-------------------------------
Name: S.T. Xxxxxx
Title: President and C.E.O.
CABLE SYSTEMS HOLDING, LLC
By: /S/ XXXXX X. XXXX
-------------------------------
Name: Xxxxx X. Xxxx
Title: President
/S/ XXXXXXX XXXXXXXXXXX
-------------------------------
Xxxxxxx Xxxxxxxxxxx
/S/ XXXXX XXXXX
-------------------------------
Xxxxx Xxxxx
/S/ XXXXXXX XXXXXXXX
-------------------------------
Xxxxxxx Xxxxxxxx
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SCHEDULE I
SECURITIES OWNERSHIP
EXHIBIT A
FORM OF JOINDER AGREEMENT
-------------------------
IPC Information Systems, Inc.
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Gentlemen:
In consideration of the transfer to the undersigned of _____
Shares of Common Stock, par value $.01 per share, [Describe any other security
being transferred] of IPC Information Systems, Inc., a Delaware corporation (the
"Company"), the undersigned represents that it is a Permitted Transferee of
[Insert name of transferor] and agrees that, as of the date written below, [he]
[she] [it] shall become a party to, and a Permitted Transferee as defined in,
that certain Investors Agreement dated as of December 18, 1998, as such
agreement may have been or may be amended from time to time (the "Agreement"),
among the Company and the persons named therein, and as a Permitted transferee
shall be fully bound by, and subject to, all of the covenants, terms and
conditions of the Agreement that were applicable to the undersigned's transferor
as though an original party thereto and shall be deemed a [Xxxxxxxxxxx
Shareholder] [CSH Shareholder] for purposes thereof.
Executed as of the day of ,
TRANSFEREE:__________________
Address: ___________________
___________________
