EXHIBIT 4.5
INVESTORS' AGREEMENT
dated as of
August 17, 1998
among
INSILCO HOLDING CO.
and
THE INVESTORS NAMED HEREIN
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions...................................................2
ARTICLE 2
CORPORATE GOVERNANCE
SECTION 2.01. Composition of the Board......................................9
SECTION 2.02. Removal......................................................10
SECTION 2.03. Vacancies....................................................10
SECTION 2.04. Meetings.....................................................11
SECTION 2.05. Action by the Board..........................................11
SECTION 2.06. Conflicting Charter or Bylaw Provisions......................11
SECTION 2.07. Notice of Meeting; Participation.............................11
SECTION 2.08. Subsidiary Governance........................................11
SECTION 2.09. Affiliate Transactions.......................................11
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General......................................................12
SECTION 3.02. Legends......................................................13
SECTION 3.03. Permitted Transferees........................................13
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01. Rights to Participate in Transfer............................13
SECTION 4.02. Right to Compel Participation in Certain Transfers...........16
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. Demand Registration..........................................18
SECTION 5.02. Incidental Registration......................................20
SECTION 5.03. Holdback Agreements..........................................22
SECTION 5.04. Registration Procedures......................................22
SECTION 5.05. Indemnification by the Company...............................25
SECTION 5.06. Indemnification by Participating Stockholders................26
SECTION 5.07. Conduct of Indemnification Proceedings.......................27
SECTION 5.08. Contribution.................................................28
SECTION 5.09. Participation in Public Offering.............................29
SECTION 5.10. Other Indemnification........................................29
SECTION 5.11. Cooperation by the Company...................................29
SECTION 5.12. No Transfer of Registration Rights...........................30
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Entire Agreement.............................................30
SECTION 6.02. Binding Effect; Benefit......................................30
SECTION 6.03. Confidentiality..............................................30
SECTION 6.04. Exclusive Financial and Investment Banking Advisor...........31
SECTION 6.05. Assignability................................................31
SECTION 6.06. Amendment; Waiver; Termination...............................32
SECTION 6.07. Notices......................................................32
SECTION 6.08. Counterparts.................................................33
SECTION 6.09. Applicable Law...............................................34
SECTION 6.10. Specific Enforcement.........................................34
SECTION 6.11. Consent to Jurisdiction......................................34
INVESTORS' AGREEMENT
AGREEMENT dated as of August 17, 1998 among (i) Insilco Holding Co., a
Delaware corporation (the "Company") and (ii) DLJ Merchant Banking Partners II,
L.P., a Delaware limited partnership ("DLJMB"), DLJ Offshore Partners II, C.V.,
a Netherlands Antilles limited partnership, DLJ Merchant Banking Partners II-A,
L.P., a Delaware limited partnership, DLJ Diversified Partners, L.P., a
Delaware limited partnership, DLJ Diversified Partners-A, L.P., a Delaware
limited partnership, DLJ EAB Partners, L.P., a Delaware limited partnership,
DLJ Millennium Partners, L.P., a Delaware limited partnership, DLJ Millennium
Partners-A, L.P., a Delaware limited partnership, DLJMB Funding II, Inc., a
Delaware corporation, UK Investment Plan 1997 Partners, a Delaware partnership,
DLJ First ESC, L.P., a Delaware limited partnership and DLJ ESC II, L.P., a
Delaware limited partnership, (each of the foregoing, a "DLJ Entity", and
collectively, the "DLJ Entities"), and 399 Venture Partners, Inc., a wholly
owned subsidiary of CitiBank, N.A. ("CVC").
W I T N E S S E T H:
WHEREAS, certain parties hereto (i) have acquired securities of
Silkworm Acquisition Corporation ("MergerSub"), the predecessor by merger to
the Company, and/or (ii) will be acquiring securities of the Company;
WHEREAS, pursuant to the terms of the Merger Agreement and Plan of
Merger dated as of March 24, 1998 (as the same may be or may have been amended
from time to time, the "Merger Agreement"), MergerSub has been merged with and
into the Company with the Company as the surviving corporation;
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;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and in 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:
"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 stockholder of the Company shall be deemed
an Affiliate of any other stockholder of the Company 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"), when used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Affiliated Employee Benefit Trust" means any trust that is a
successor to the assets held by a trust established under an employee benefit
plan subject to ERISA or any other trust established directly or indirectly
under such plan or any other such plan having the same sponsor.
"Aggregate Ownership" means, with respect to any Stockholder or group
of Stockholders, and with respect to any class of Company Securities, the total
amount of such class of Company Securities "beneficially owned" (as such term
is defined in Rule 13d-3 under the Exchange Act) (without duplication) by such
Stockholder or group of Stockholders as of the date of such calculation,
calculated on a Fully Diluted basis.
"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 or required by law to
close.
"Bylaws" means the Amended and Restated Bylaws of the Company, as the
same may be amended from time to time.
"Charter" means the Amended and Restated Certificate of Incorporation
of the Company, as the same may be amended from time to time.
"Closing Date" means August 17, 1998.
"Common Stock" means the common stock, par value $0.001 per share, of
the Company and any stock into which such Common Stock may thereafter be
converted or changed, and "Common Shares" means shares of Common Stock.
"Company Securities" means the Common Stock and securities convertible
into or exchangeable for Common Stock and options, Preferred Stock, warrants
(including the Warrants) or other rights to acquire Common Stock, Preferred
Stock or any other equity security or equity-linked security issued by the
Company.
"Drag-Along Portion" means, with respect to any Other Stockholder and
any class of Company Securities, (i) the number of such class of Company
Securities beneficially owned by such Other Stockholder on a Fully Diluted
basis multiplied by (ii) a fraction, the numerator of which is the number of
such class of Company Securities proposed to be sold by the DLJ Entities in any
sale to which Section 4.02 applies and the denominator of which is the total
number of such class of Company Securities on a Fully Diluted basis
beneficially owned by the DLJ Securities immediately prior to such sale.
"Exchange Act" means the Securities Exchange Act of 1934, as the same
may be amended, and the rules and regulations promulgated thereunder.
"Fully Diluted" means, with respect to the Common Stock, all
outstanding Common Shares and all Common Shares issuable in respect of
securities convertible into or exchangeable for Common Shares, all stock
appreciation rights, options, warrants (including the Warrants) and other
rights to purchase or subscribe for Common Shares or securities convertible
into or exchangeable for Common Shares; provided that, to the extent any of the
foregoing stock appreciation rights, options, warrants or other rights to
purchase or subscribe for Common Shares are subject to vesting, the Common
Shares subject to vesting shall be included in the definition of "Fully
Diluted" only upon and to the extent of such vesting.
"Initial Ownership" means, with respect to any Stockholder and any
class of Company Securities, the number of shares or units of such class of
Company Securities beneficially owned (and (without duplication) which such
Persons have the right to acquire) as of the date hereof, or in the case of any
Person that shall become a party to this Agreement on a later date, as of such
date, in each case taking into account any stock split, stock dividend, reverse
stock split or similar event.
"First Public Offering" means the first Public Offering after the date
hereof.
"Other Stockholders" means all Stockholders other than the DLJ
Entities.
"Permitted Transferee" means:
(i) in the case of any DLJ Entity, (A) any other DLJ
Entity, (B) any general or limited partner of any DLJ Entity
(a "DLJ Partner"), and any Affiliated Employee Benefit Trust
or Person that is an Affiliate of any DLJ Partner
(collectively, the "DLJ Affiliates"), (C) any managing
director, general partner, director, limited partner, officer
or employee of any DLJ Entity or of any DLJ Affiliate, or the
heirs, executors, administrators, testamentary trustees,
legatees or beneficiaries of any of the foregoing persons
referred to in this clause (C) (collectively, "DLJ
Associates"), (D) a trust, the beneficiaries of which, or a
corporation, limited liability company or partnership, all of
the stockholders, members or general or limited partners of
which, include only XXX Xxxxxxxx, XXX Xxxxxxxxxx, XXX
Associates, their spouses or their lineal descendants, (E) a
voting trustee for one or more DLJ Entities, DLJ Affiliates
or DLJ Associates under the terms of a voting trust designed
to conform with the requirements of the Insurance Law of the
State of New York or (F) any Other Stockholder;
(ii) in the case of CVC, (A) any nominee or trustee
for or any general or limited partner or shareholder of CVC,
and any Person that is an Affiliate of CVC (collectively, the
"CVC Affiliates"), (B) any managing director, general
partner, limited partner, employee, officer or director of
CVC or a CVC Affiliate, or any spouse, lineal descendant,
sibling, parent, heir, executor, administrator, testamentary
trustee, legatee or beneficiary of any of the foregoing
persons described in this clause (B) (collectively, "CVC
Associates"), (C) a "Co-Investment Scheme" being a scheme
under which certain officers, employees or partners of CVC or
of its adviser or manager are entitled (as individuals or
through a body corporate or any other vehicle) to acquire
shares which CVC would otherwise acquire and a Co-Investment
Scheme which holds shares for a body corporate or other
vehicle may Transfer their shares to another body corporate
or another vehicle which holds or is to hold shares for the
Co-Investment Scheme or the officers, employees or partners
entitled to the shares under the Co-Investment Scheme, (D)
any trust, the beneficiaries of which, or any corporation,
limited liability company or partnership, stockholders,
members or general or limited partners of which include only
CVC, CVC Affiliates, CVC Associates, their spouses or their
lineal descendants or (E) any other Stockholder; and
(iii) in the case of any Other Stockholder (other
than CVC), (A) any Other Stockholder, (B) a Person to whom
Common Shares are transferred from such Other Stockholder (1)
by will or the laws of descent and distribution or (2) by
gift without consideration of any kind; provided that, in the
case of clause (2), such transferee is the issue or spouse of
such Other Stockholder or (C) a trust that is for the
exclusive benefit of such Other Stockholder or its Permitted
Transferees under (B) above.
"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.
"Preferred Stock" means the 15% senior exchangeable preferred stock,
par value $0.001 per share and due 2010 of the Company, and "Preferred Shares"
means shares of Preferred Stock.
"Pro Rata Portion" means, with respect to any Stockholder at any time,
(i) the number of Common Shares that a Stockholder owns at such time multiplied
by (ii) a fraction, the numerator of which is the number of Common Shares to be
sold by the DLJ Entities in any sale to which Section 4.01 applies and the
denominator of which is the total number of Common Shares, on a Fully Diluted
basis, held in the aggregate by the DLJ Entities immediately prior to any such
sale.
"Public Offering" means an underwritten public offering of Registrable
Securities of the Company pursuant to an effective registration statement under
the Securities Act (other than pursuant to a registration statement on Form S-4
or Form S-8 or any similar or successor form).
"Registration Expenses" means all (i) 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 Registrable Securities), (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 the expenses of 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(h)), (vi) reasonable fees and expenses of any special experts
retained by the Company in connection with such registration, (vii) reasonable
fees and expenses of one counsel for all of the Stockholders participating in
the offering selected (A) by the DLJ Entities, in the case of any offering in
which such entities participate (other than one pursuant to a CVC Demand), (B)
in the case of a CVC Demand, by the CVC Entities, or (C) in any other case, by
the Stockholders holding the majority of Shares or Warrants to be sold for the
account of all Stockholders 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, other than 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 Stockholders (or
the agents who manage their accounts) or any fees and expenses of underwriter's
counsel.
"Registrable Securities" means at any time any Shares or Warrants and
any securities issued or issuable in respect of such Shares or Warrants by way
of conversion, exchange, stock dividend, split or combination,
recapitalization, merger, consolidation, other reorganization or otherwise
until (i) a registration statement covering such Shares or Warrants has been
declared effective by the SEC and such Shares or Warrants have been disposed of
pursuant to such effective registration statement, (ii) such Shares or Warrants
are sold under circumstances in which all of the applicable conditions of Rule
144 (or any similar provisions then in force) under the Securities Act are met
or (iii) such Shares or Warrants are otherwise transferred, the Company has
delivered a new certificate or other evidence of ownership for such Shares or
Warrants not bearing the legend required pursuant to this Agreement and such
Shares or Warrants may be resold without subsequent registration under the
Securities Act.
"Rule 144" means Rule 144, Rule 144A and Rule 145 (or any successor
provisions) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as the same may be
amended, and the rules and regulations promulgated thereunder.
"Shares" means Common Shares and Preferred Shares.
"Stockholder" means each Person (other than the Company) who shall be
a party to or bound by this Agreement, whether in connection with the execution
and delivery hereof as of the date hereof, pursuant to Section 3.03, Section
6.05, or otherwise, so long as such Person shall beneficially own any Company
Securities.
"Subscription Agreements" means (i) the Subscription Agreement dated
as of August 17, 1998 among MergerSub, the DLJ Entities and CVC relating to the
issue of Common Shares and (ii) the Subscription Agreement dated as of August
17, 1998 among the Company and the DLJ Entities relating to the issue of
Preferred Shares and Warrants.
"Tag-Along Portion" means
(i) where the DLJ Entities are selling Common Stock, the number of
Common Shares held (or, without duplication, that such shareholder has the
right to acquire from any Person) by the Tagging Person multiplied by a
fraction, the numerator of which is the maximum number of Common Shares
proposed to be sold by the DLJ Entities in the Tag-Along Sale pursuant to
Section 4.01, and the denominator of which is the aggregate number of Common
Shares on a Fully Diluted basis owned by the DLJ Entities, and
(ii) where the DLJ Entities are selling Warrants, the number of Common
Shares held (or, without duplication, acquirable under the Warrants) by the
Tagging Person, multiplied by a fraction the numerator of which is the number
of Common Shares for which the Warrants proposed to be sold by the DLJ Entities
in the Tag-Along Sale pursuant to Section 4.01 are exercisable, and the
denominator of which is the aggregate number of Common Shares on a Fully
Diluted basis owned by the DLJ Entities,
provided that where a Tag-Along Right includes the right to sell Common Stock,
any holder of Warrants may, in lieu of exercising Warrants, Transfer Warrants
for some or all of that number of Common Shares as would otherwise have
constituted its Tag-Along Portion, in which event the price to be received with
respect to each such Warrant shall be the price per Common Share applicable to
the Tag-Along Offer, less the then applicable exercise price of the Warrants
owned by such holder.
"Third Party" means a prospective purchaser(s) of Shares in an
arm's-length transaction from a Stockholder where such purchaser(s) is not a
Permitted Transferee or other Affiliate of such Stockholder.
"Transfer" means, with respect to any Company Security, (i) when used
as a verb, to sell, assign, dispose of, exchange, pledge, encumber,
hypothecate, or otherwise transfer such security or any participation or
interest therein, whether directly or indirectly, or agree or commit to do any
of the foregoing and (ii) when used as a noun, a direct or indirect sale,
assignment, disposition, exchange pledge, encumbrance, hypothecation, or other
transfer of such security or any participation or interest therein or any
agreement or commitment to do any of the foregoing.
"Transfer Percentage" means, as of any date, with respect to any
Person, (x) the aggregate number of Common Shares transferred prior to such
date by such Person, other than any Common Shares transferred to Permitted
Transferees of such Person, divided by (y) the Initial Ownership of Common
Shares of such Person.
"Warrants" means the warrants issued by the Company to Stockholders
for the purchase of an aggregate of 65,603 Common Shares (subject to adjustment
as provided for herein).
"Warrant Shares" means Common Shares issuable by the Company upon
exercise of the Warrants.
(b) The term "CVC Entities", to the extent that CVC shall have
transferred any of its Company Securities to any of its Permitted Transferees,
shall mean CVC and the Permitted Transferees thereof, taken together, and any
right, obligation or action that may be taken at the election of CVC may be
taken at the election of the CVC Entities and such Permitted Transferees.
(c) The term "DLJ Entities", to the extent such entities shall have
transferred any of their Company Securities to any of their Permitted
Transferees, shall mean the DLJ Entities and such Permitted Transferees, taken
together, and any right, obligation or action that may be taken at the election
of the DLJ Entities may be taken at the election of the DLJ Entities and such
Permitted Transferees.
(d) The term "Other Stockholders", to the extent such stockholders
shall have transferred any of their Company Securities to any Permitted
Transferees thereof, shall mean the Other Stockholders and such Permitted
Transferees, taken together, and any right, obligation or action that may be
taken at the election of the Other Stockholders may be taken at the election of
the Other Stockholders and such Permitted Transferees.
(e) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
CVC Demand 5.01(a)
Applicable Holdback Period 5.03
Cause 2.02
Company Preamble
Compelled Sale 4.02(a)
Compelled Sale Notice 4.02(a)
Compelled Sale Notice Period 4.02(a)
Compelled Sale Price 4.02(a)
Confidential Information 6.03(b)
CVC Preamble
Demand Registration 5.01(a)
DLJ Entity Preamble
DLJMB Preamble
DLJSC 6.04
Drag-Along Rights 4.02(a)
Holders 5.01(a)
Incidental Registration 5.02(a)
Indemnified Party 5.07
Indemnifying Party 5.07
Independent Director 2.01(a)
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Merger Agreement Recitals
MergerSub Recitals
Records 5.04(g)
Replacement Nominee 2.03(a)
Representatives 6.03(b)
Requesting Stockholder 5.01(e)
Section 4.01 Response Notice 4.01(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)
ARTICLE 2
CORPORATE GOVERNANCE
SECTION 2.01. Composition of the Board. (a) The Board shall consist
of seven directors of whom (i) four will be designated by DLJMB in its sole
discretion, (ii) one will be Xxxxxx X. Xxxxxxx for so long as he is employed by
the Company, (iii) one will be designated by CVC as long as at the close of
business on the Business Day immediately preceding such designation, the number
of Common Shares held by CVC is more than 10% of the outstanding Common Shares
on a Fully Diluted basis and (iv) one will be designated by DLJMB but shall not
be either an "Affiliate" or an "Associate" (as such terms are used within the
meaning of Rule 12b-2 under the Exchange Act) of the DLJ Entities or the Other
Stockholders (the "Independent Director") and shall be designated by DLJMB
after consultation with the Other Stockholders. On the Closing Date, the
initial Board shall be Xxxxxxxx Xxxx, Xxxxxxx X. Xxxxxx, Xx., Xxxxxx X. Xxxxxxx
and, shortly after the Closing Date, Xxxxx Xxxx. DLJMB shall be permitted to
increase the number of directors who serve on the Board from seven to eight and
DLJMB shall be permitted to designate the eighth director.
(b) Each Stockholder entitled to vote for the election of directors
to the Board agrees that it will vote its Shares or execute written consents,
as the case may be, and take all other necessary action (including action by
written consent or causing the Company to call a special meeting of
stockholders) in order to ensure that the composition of the Board is as set
forth in this Section 2.01; provided that the Other Stockholders shall not be
required to vote for the board-designees of DLJMB if the aggregate number of
Common Shares held by the DLJ Entities is, at the close of business on the day
preceding such vote or execution of proxies or consents, less than 10% of the
DLJ Entities' Initial Ownership of Common Shares on a Fully Diluted Basis.
SECTION 2.02. Removal. Each Stockholder 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 either
such removal shall be for Cause or the Person or Persons 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, such Stockholder shall vote its Shares 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 of the Board:
(a) the Person or Persons entitled under Section 2.01 to designate or
nominate such director whose death, disability, retirement, resignation or
removal resulted in such vacancy may, subject to the provisions of Section
2.01, designate another individual (the "Replacement Nominee") to fill such
capacity and serve as a director of the Company; and
(b) subject to Section 2.01, each Stockholder then entitled to vote
for the election of the Replacement Nominee as a director of the Company agrees
that it will vote its Shares, or execute a proxy or written consent, as the
case may be, in order to ensure that the Replacement Nominee is elected to the
Board.
SECTION 2.04. Meetings. The Board shall hold a regularly scheduled
meeting at least once every calendar quarter.
SECTION 2.05. Action by the Board. (a) A quorum of the Board shall
consist of three directors, of whom at least two must be designees of DLJMB;
provided that DLJMB shall have the right at any time to increase the number of
directors necessary to constitute a quorum of the Board.
(b) All actions of the Board shall require (i) 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 (ii) 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.
(c) The Board may create executive, compensation, audit and such
other committees as it may determine. The DLJ Entities shall be entitled to
majority representation on any committee created by the Board.
SECTION 2.06. Conflicting Charter or Bylaw Provisions. Each
Stockholder shall vote its Shares or execute proxies or written consents, as
the case may be, and take all other actions necessary, to ensure that the
Company's Charter and Bylaws (i) facilitate, and do not at any time conflict
with, any provision of this Agreement and (ii) permit each Stockholder to
receive the benefits to which each such Stockholder is entitled under this
Agreement.
SECTION 2.07. Notice of Meeting; Participation. (a) Each director will
receive notice and the agenda of each meeting of the Board or any committee
thereof (even if such director is not a member of such committee) at least 5
days prior to such meeting.
(b) Each DLJMB and CVC representative will be permitted to invite
alternates to participate in the meetings, provided such alternates will not be
permitted to vote at such meeting.
SECTION 2.08. Subsidiary Governance. Each of the Company and each
Stockholder agrees that, if and to the extent that two or more of the directors
of any subsidiary of the Company are designees of DLJMB, CVC shall have the
right to designate one director of the board of such subsidiary.
SECTION 2.09. Affiliate Transactions. The Company will not, and will
not permit any of its subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or
purchase any property or assets from, or enter into or make or amend any
transaction, contract, agreement, understanding, loan, advance or guarantee
with, or for the benefit of, any Affiliate of the Company, unless such
transaction is on terms that are no less favorable to the Company or such
subsidiary than those that would have been obtained in a comparable transaction
by the Company or such subsidiary with an unrelated Person.
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General. (a) Each Stockholder understands and agrees
that the Company Securities purchased pursuant to the Subscription Agreements
have not been registered under the Securities Act and are restricted
securities. Each of the parties hereto agrees that it will not Transfer any
Company Securities (or solicit any offers in respect of any Transfer of any
Company Securities), except in compliance with the Securities Act and any
applicable foreign or state securities or "blue sky" laws.
(b) Until such time as CVC owns 10% or less of its Initial Ownership
of Common Shares, none of the CVC Entities shall Transfer any Company
Securities (or solicit any offers in respect of any Transfer of any Company
Securities), except (i) in a Public Offering, (ii) pursuant to a Transfer to
which Section 4.01 or Section 4.02 applies, or (iii) subject to Section 3.03,
to any Permitted Transferee thereof.
(c) Any attempt to Transfer any Company Securities not in compliance
herewith 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.
(d) No Holder shall (i) grant any proxy or enter into or agree to be
bound by any voting trust or agreement with respect to the Company Securities,
except as expressly contemplated by this Agreement, (ii) enter into any
agreement or arrangement of any kind with any Person with respect to its
Company Securities inconsistent with the provisions of this Agreement or for
the purpose or with the effect of denying or reducing the rights of any other
Stockholder under this Agreement including, but not limited to, agreements or
arrangements with respect to the Transfer or voting of its Company Securities
or (iii) act, for any reason, as a member of a group or in concert with any
other Person in connection with the Transfer or voting of its Company
Securities in any manner which is inconsistent with the provisions of this
Agreement.
SECTION 3.02. Legends. (a) In addition to any other legend that may
be required, each certificate for Shares and each Warrant that is issued to any
Stockholder shall bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR ANY FOREIGN OR STATE SECURITIES LAWS AND MAY NOT BE
OFFERED OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT
TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT
DATED AS OF AUGUST 14, 1998, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
INSILCO HOLDING CO. OR ANY SUCCESSOR THERETO."
(b) If any Company Securities shall cease to be Registrable
Securities under clause (i) or clause (ii) of the definition thereof, the
Company shall, upon the written request of the holder thereof, issue to such
holder a new certificate evidencing such securities without the first sentence
of the legend required by Section 3.02(a) endorsed thereon. If any Company
Securities 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 Company
Securities without the second sentence of the legend required by Section
3.02(a) endorsed thereon.
SECTION 3.03. Permitted Transferees. Notwithstanding anything in this
Agreement to the contrary, any Stockholder may at any time Transfer any or all
of its Company Securities to one or more of its Permitted Transferees without
the consent of the Board or any other Stockholder or group of Stockholders so
long as (a) such Permitted Transferee shall have executed and delivered to the
Company an agreement to be bound by the terms of this Agreement in the form of
Exhibit A attached hereto and (b) the Transfer to such Permitted Transferee is
not in violation of applicable federal or state securities laws.
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01. Rights to Participate in Transfer. (a) If the DLJ
Entities propose to Transfer Company Securities in a transaction otherwise
permitted by Article 3 hereof (a "Tag-Along Sale"), and if any Other
Stockholders own the type of Company Securities proposed to be sold by the DLJ
Entities, such Other Stockholders may, at their option, elect to exercise their
rights under this Section 4.01 (each such Other Stockholder, a "Tagging
Person"). In the event of such a proposed Transfer, the DLJ Entities shall
provide each Other Stockholder written notice of the 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 and type of Company Securities subject to the offer ("Tag-Along
Offer"), the price at which the Transfer is proposed to be made, and all other
material terms and conditions of the Tag-Along Offer, including the form of the
proposed agreement, if any. From the date of the receipt of the Tag-Along
Notice, each Tagging Person shall have the right (a "Tag- Along Right"),
exercisable by written notice ("Section 4.01 Response Notice") given to the DLJ
Entities within 15 Business Days (the "Tag-Along Notice Period"), to request
that the DLJ Entities include in the proposed Transfer the number of Company
Securities held by such Tagging Person as is specified in such notice; provided
that if the aggregate number of Company Securities proposed to be sold by the
DLJ Entities and all Tagging Persons in such transaction exceeds the number of
Company Securities which can be sold on the terms and conditions set forth in
the Tag-Along Notice, then only the Tag-Along Portion of Company Securities of
each Tagging Person shall be sold pursuant to the Tag-Along Offer and the DLJ
Entities shall sell its Tag-Along Portion of Company Securities and such
additional Company Securities as permitted by Section 4.01(d). If the Tagging
Persons exercise their Tag-Along Rights hereunder, each Tagging Person shall
deliver to the DLJ Entities, together with its Section 4.01 Response Notice,
the certificate or certificates representing the Company Securities of such
Tagging Person to be included in the Transfer, together with a limited
power-of-attorney authorizing the DLJ Entities to Transfer such Company
Securities on the terms set forth in the Tag-Along Notice. Delivery of such
certificate or certificates representing the Company Securities to be
transferred and the limited power-of-attorney authorizing the DLJ Entities to
Transfer such Company Securities shall constitute an irrevocable acceptance of
the Tag-Along Offer by such Tagging Persons. The Tagging Persons shall (a) be
required (i) to bear their proportionate share of any escrows, holdbacks or
adjustments in purchase price and (ii) to make such representations, warranties
and covenants and enter into such agreements as are customary for transactions
of the nature of the Tag-along Offer, in each case under the terms of any
definitive agreement(s) relating to such Tag- along Offer and (b) benefit from
all of the same provisions of the definitive agreements as the Selling Person.
If, at the end of a 90-day period after such delivery of the Section 4.01
Response Notice (which 90-day period shall be extended if any of the
transactions contemplated by the Tag-Along Offer are subject to regulatory
approval until the expiration of five Business Days after all such approvals
have been received, but in no event later than 180 days following the receipt
of the Section 4.01 Notice), the DLJ Entities have not completed the transfer
of all such Company Securities for at least 95% of the price set forth in the
Tag-Along Offer and otherwise on substantially the same terms and conditions
set forth in the Tag-Along Notice, the DLJ Entities shall (i) return to each
Tagging Person the limited power-of-attorney (and all copies thereof) together
with all certificates representing the Company Securities which such Tagging
Person delivered for Transfer pursuant to this Section 4.01and (ii) not conduct
any Transfer of Company Securities without again complying with this Section.
(b) Concurrently with the consummation of the Tag-Along Sale, the DLJ
Entities shall notify the Tagging Persons thereof, shall remit to the Tagging
Persons the total consideration (by bank or certified check) for the Company
Securities of the Tagging Persons transferred pursuant thereto, and shall,
promptly after the consummation of such Tag-Along Sale, furnish such other
evidence of the completion and time of completion of such Transfer and the
terms thereof as may be reasonably requested by the Tagging Persons.
(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 Company 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 DLJ Entities shall be entitled to
Transfer, pursuant to the Tag-Along Offer, a number of Company Securities held
by the DLJ Entities equal to the number of Company Securities constituting the
portion of such Tagging Person's Tag-Along Portion with respect to which
Tag-Along Rights were not exercised.
(e) The DLJ Entities may sell, on behalf of themselves and any
Tagging Person who exercises the Tag-Along Rights pursuant to this Section
4.01, the Company Securities subject to the Tag-Along Offer and elected to be
sold on the 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 10%) within 120 days of the date on which all
Tag-Along Rights shall have been waived, exercised or expire.
(f) Notwithstanding anything contained in this Section 4.01, there
shall be no liability on the part of the DLJ Entities to the Tagging Persons
(other than the obligation to return any certificates evidencing Company
Securities received by any DLJ Entity) if the Transfer of Company Securities
pursuant to Section 4.01 is not consummated for whatever reason. Whether to
effect a Transfer of Company Securities pursuant to this Section 4.01 by the
DLJ Entities is in the sole and absolute discretion of the DLJ Entities.
(g) The provisions of this Section 4.01 shall not apply to any
Transfer or proposed Transfer of Company Securities by the DLJ Entities (i)
pursuant to Rule 144, (ii) to a Permitted Transferee of the DLJ Entities, or
(iii) pursuant to which Section 4.02 applies.
SECTION 4.02. Right to Compel Participation in Certain Transfers. (a)
If (i) the DLJ Entities propose to Transfer not less than 50% of their Initial
Ownership of any class of Company Securities to a Third Party in a bona fide
sale or (ii) the DLJ Entities propose a Transfer in which the Company
Securities to be transferred by the DLJ Entities constitute more than 50% of
the outstanding Company Securities in a particular class (a "Compelled Sale"),
the DLJ Entities may at their option require all Other Stockholders to sell the
Drag-Along Portion of such class of Company Securities ("Drag-Along Rights")
then held by every Other Stockholder, and in the case of a Compelled Sale
involving Common Shares (but subject to and at the closing of the Compelled
Sale) to exercise such number of options or Warrants for Common Shares held by
every Other Stockholder as is required in order that a sufficient number of
Common Shares are available to sell the relevant Drag-Along Portion of each
such Other Stockholder, for the same consideration per unit of the relevant
class of Company Security and otherwise on the same terms and conditions as the
DLJ Entities; provided that any Other Stockholder who holds options or Warrants
the exercise price per share of which is greater than the per share price at
which the Common Shares are to be sold to the Third Party may, if required by
the DLJ Entities to exercise such options, in place of such exercise, submit to
irrevocable cancellation thereof without any liability for payment of any
exercise price with respect thereto. If the Compelled Sale is not consummated
with respect to any Common Shares acquired upon exercise of such options or
Warrants, or the Compelled Sale is not consummated, such options or Warrants
shall be deemed not to have been exercised or canceled, as applicable. DLJ
Entities shall provide written notice of such Compelled Sale to the Other
Stockholders (a "Compelled Sale Notice") not later than the 15th day prior to
the proposed Compelled Sale. The Compelled Sale Notice shall identify the
transferee, the number of Company Securities, the consideration for which a
Transfer is proposed to be made (the "Compelled Sale Price") and all other
material terms and conditions of the Compelled Sale. The number of Company
Securities to be sold by each Other Stockholder will be the Drag-Along Portion
of the Common Shares and/or Warrants that such Other Stockholder owns. Each
Other Stockholder shall be required to participate in the Compelled Sale on the
terms and conditions set forth in the Compelled Sale Notice and to tender all
its Company Securities as set forth below. The price payable in such Transfer
shall be the Compelled Sale Price. Not later than the 10th day following the
date of the Compelled Sale Notice (the "Compelled Sale Notice Period"), each of
the Other Stockholders shall deliver to a representative of the DLJ Entities
designated in the Section 4.02 Notice certificates, and in the case of the
Warrants, the applicable instrument, representing all Company Securities
comprising the Drag-Along Portion held by such Other Stockholder, duly
endorsed, together with all other documents required to be executed in
connection with such Compelled Sale or, if such delivery is not permitted by
applicable law, an unconditional agreement to deliver such Company Securities
pursuant to this Section 4.02 at the closing for such Compelled Sale against
delivery to such Other Stockholder of the consideration therefor. If an Other
Stockholder should fail to deliver such certificates to the DLJ Entities, the
Company shall cause the books and records of the Company to show that such
Company Securities are bound by the provisions of this Section 4.02 and that
such Company Securities shall be transferred to the purchaser of such Company
Securities immediately upon surrender for Transfer by the holder thereof. The
Other Stockholders shall (a) be required (i) to bear their proportionate share
of any escrows, holdbacks or adjustments in purchase price and (ii) to make
such representations, warranties and covenants and enter into such agreements
as are customary for transactions of the nature of the Compelled Sale, in each
case under the terms of the definitive agreement(s) relating to such Compelled
Sale and (b) benefit from all of the same provisions of the definitive
agreements as the DLJ Entities.
(b) The DLJ Entities shall have a period of 90 days from the date of
receipt of the Compelled Sale Notice to consummate the Compelled Sale on the
terms and conditions set forth in such Compelled Sale Notice; provided that if
such Compelled Sale is subject to regulatory approval, such 90-day period shall
be extended until the expiration of 5 Business Days after all such approvals
have been received, but in no event later than 270 days following the effective
date of the Compelled Sale Notice. If the Compelled Sale shall not have been
consummated during such period, the DLJ Entities shall return to each of the
Other Stockholders all certificates representing Company Securities that such
Other Stockholder delivered for Transfer pursuant hereto, together with any
documents in the possession of the DLJ Entities executed by the Other
Stockholder 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 such Company Securities owned by the Other Stockholders shall
again be in effect.
(c) Concurrently with the consummation of the Transfer of Company
Securities pursuant to this Section 4.02, the DLJ Entities shall give notice
thereof to all Stockholders, shall remit to each of the Stockholders who have
surrendered their certificates the total consideration (the cash portion of
which is to be paid by bank or certified check) for the Company Securities
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 Stockholders
(d) Notwithstanding anything contained in this Section 4.02, there
shall be no liability on the part of the DLJ Entities to the Other Stockholders
(other than the obligation to return any certificates representing Company
Securities received by any DLJ Entity) if the Transfer of Company Securities
pursuant to this Section 4.02 is not consummated for whatever reason,
regardless of whether the DLJ Entities have delivered a Compelled Sale Notice.
Whether to effect a Transfer of Company Securities pursuant to this Section
4.02 by the DLJ Entities is in the sole and absolute discretion of the DLJ
Entities.
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. Demand Registration. (a) If the Company shall receive a
written request from either DLJMB on behalf of the DLJ Entities or, in the case
of a CVC Demand, CVC on behalf of the CVC Entities (the DLJ Entities or, in
respect of a CVC Demand, the CVC Entities, shall be referred to herein as a
"Requesting Stockholder") that the Company effect the registration under the
Securities Act of all or a portion of such Requesting Stockholder's Registrable
Securities, and specifying the intended method of disposition thereof, then the
Company shall promptly give written notice of such requested registration (each
such request, including the CVC Demand, shall be referred to herein as a
"Demand Registration") at least 15 days prior to the anticipated filing date of
the registration statement relating to such Demand Registration to the Other
Stockholders 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 Requesting Stockholder; and
(ii) subject to the restrictions set forth in Section 5.02, all
other Registrable Securities of the same class as that requested to be
registered by the Requesting Stockholder which any Other Stockholder
entitled to request the Company to effect an Incidental Registration
pursuant to Section 5.02 (all such Stockholders, together with the
Requesting Stockholder, the "Holders") has requested that the Company
register by written request received by the Company within 15 days
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
(i) not be obligated to effect more than five Demand Registrations for the DLJ
Entities, (ii) be obligated to effect one Demand Registration for the CVC
Entities (the "CVC Demand") which shall be exercisable by CVC on behalf of any
CVC Entities only if immediately prior thereto (A) the Transfer Percentage of
the CVC Entities is less than the Transfer Percentage of the DLJ Entities and
(B) the DLJ Entities have transferred (other than to any of their Permitted
Transferees) 70% or more of the sum of (x) their collective Initial Ownership
of Common Stock and (y) any additional shares of Common Stock issued by the
Company to the DLJ Entities after the date hereof in an issuance of Common
Stock that was offered to the DLJ Entities and the CVC Entities on a pro rata
basis and (iii) not be obligated to effect any Demand Registration unless the
aggregate proceeds expected to be received from the sale of the Common Stock to
be included in such Demand Registration, in the reasonable opinion of DLJSC
exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand
Registration would constitute the First Public Offering, or (y) $25,000,000 in
all other cases. In no event will the Company be required to effect more than
one Demand Registration hereunder within any four-month period.
(b) Promptly after the expiration of the 15-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 Requesting
Stockholder 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 Stockholders, 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 the participating Stockholders
reimburse the Company for all costs incurred by the Company in connection with
such registration, or unless such revocation arose out of the fault of the
Company, in which case such request shall not be considered a Demand
Registration and the Company shall be obligated to pay all Registration
Expenses in connection with such revoked request.
(c) The Company will be liable for and pay all Registration Expenses
in connection with any Demand Registration pursuant to this Section 5.01,
regardless of whether it is effected.
(d) A Demand Registration shall not be deemed to have occurred unless
the registration statement relating thereto (A) has become effective under the
Securities Act and (B) has remained effective for a period of at least 180 days
without being subject to any stop order, injunction, or other order or
requirement of the Commission or any other governmental authority for any
reason (or such shorter period in which all Registrable Securities of the
Holders requested to be included in such registration have actually been sold
thereunder).
(e) If a Demand Registration involves an underwritten Public Offering
and the managing underwriter shall advise the Company and the Requesting
Stockholder that, in its view, (i) the number 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 Registrable Securities owned by the
Holders, in any such case, exceeds the largest number of securities which can
be sold without having an adverse effect on such offering, including the price
at which such securities 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:
(i) first, all Registrable Securities requested to be registered
by the Requesting Stockholder 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); provided that if the Transfer Percentage of CVC is less
than the Transfer Percentage of the DLJ Entities collectively at such
time, the amount of Registrable Securities which will be allocable to
CVC pursuant to this subsection shall be increased by an amount such
that, after giving effect to the sale of all Registrable Securities in
such offering, the Transfer Percentage of CVC would equal the Transfer
Percentage of the DLJ Entities collectively;
(ii) second, any securities proposed to be registered by the
Company; and
(iii) third, any securities proposed to be registered for the
account of any other Persons with such priorities among them as the
Company shall determine.
(f) If, in connection with any Demand Registration pursuant to this
Section with respect to the Common Shares or Preferred Shares, any Requesting
Stockholder shall seek to Transfer any Warrants together with Common Shares or
Preferred Shares, the Company shall at the request of any such Stockholder
effect a registration of such Warrants to which the provisions of this Article
5 shall apply mutatis mutandis and a registration, pursuant to a shelf
registration statement, so as to permit the resale of the Common Shares for
which any Warrants so transferred may be exercisable. The Company shall
maintain the effectiveness of any such shelf registration statement, and take
all actions necessary to permit resale of such Common Shares as may be required
by applicable state securities laws.
SECTION 5.02. Incidental Registration. (a) If the Company proposes to
register any Company Securities under the Securities Act (other than a
registration on Forms S-8 or S-4 or any successor or similar forms), whether or
not for sale for its own account, it will each such time, subject to the
provisions of Section 5.02(b), give prompt written notice at least 30 days
prior to the anticipated filing date of the registration statement relating to
such registration to all Stockholders, which notice shall set forth such
Stockholder's rights under this Section 5.02 and shall offer such Stockholders
the opportunity to include in such registration statement such number of
Registrable Securities of the same type as are proposed to be registered as
each such Stockholder may request (an "Incidental Registration"). Upon the
written request of any such Stockholder made within 15 days after the receipt
of notice from the Company (which request shall specify the number of
Registrable Securities intended to be disposed of by such Stockholder), the
Company will use its best efforts to effect the registration under the
Securities Act of all Registrable Securities which the Company has been so
requested to register by such Stockholders, to the extent requisite to permit
the disposition of the Registrable Securities so to be registered; provided
that (i) if such registration involves an underwritten Public Offering, all
such Stockholders 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 and
(ii) if, at any time after giving written notice of its intention to register
any Company Securities 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
securities, the Company shall give written notice to all such Stockholders 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. 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 (other than any Demand Registration in which case
the provisions with respect to priority of inclusion in such offering set forth
in Section 5.01 shall apply) and the managing underwriter advises the Company
that, in its view, the number of Shares that the Company and such Stockholders
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:
(i) first, so much of the securities proposed to be registered by
the Company as would not cause the offering to exceed the Maximum
Offering Size;
(ii) second, all Registrable Securities requested to be included
in such registration statement by the Holders (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro rata
among such entities on the basis of the relative number of shares of
Registrable Securities requested to be so included in such
registration); provided that if the Transfer Percentage of CVC is less
than the Transfer Percentage of the DLJ Entities collectively at such
time, the amount of Registrable Securities which will be allocable to
CVC pursuant to this subsection shall be increased by an amount such
that, after giving effect to the sale of all Registrable Securities in
such offering, the Transfer Percentage of CVC would equal the Transfer
Percentage of the DLJ Entities collectively; and
(iii) third, any securities proposed to be registered for the
account of any other Persons with such priorities among them as the
Company shall determine.
SECTION 5.03. Holdback Agreements. If any registration of Registrable
Securities shall be in connection with a Public Offering, each DLJ Entity, each
Other Stockholder and the Company agree not to effect any public sale or
distribution, including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable Securities, and not to
effect any such public sale or distribution of any other Common Stock of the
Company or of any stock convertible into or exchangeable or exercisable for any
Common Stock of the Company (in each case, other than as part of such Public
Offering) during the 14 days prior to the effective date of such registration
statement (except as part of such registration) or during the period after such
effective date equal to the lesser of (i) such period of time as the Company
and the lead managing underwriter of an underwritten Public Offering agree and
(ii) 180 days (such lesser period, the "Applicable Holdback Period").
SECTION 5.04. Registration Procedures. Whenever Stockholders request
that any Registrable Securities be registered pursuant to Section 5.01 or 5.02,
the Company will, subject to the provisions of such Sections, use its 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 for which the Company then
qualifies or which counsel for the Company shall deem appropriate 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 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 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
participating Stockholder 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 Stockholder 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 Stockholder or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Stockholder.
(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 Stockholder 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 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 Stockholder holding such Registrable Securities reasonably (in light of
such Stockholder'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 Stockholder to
consummate the disposition of the Registrable Securities owned by such
Stockholder; 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 Stockholder holding such
Registrable Securities, 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 Stockholder any such supplement or amendment.
(f) (i) DLJMB will have the right to select an underwriter or
underwriters in connection with any Public Offering resulting from the exercise
by DLJMB on behalf of any DLJ Entity of a Demand Registration, which
underwriter or underwriters may include any Affiliate of any DLJ Entity, (ii)
CVC will have the right to select an underwriter or underwriters in connection
with the CVC Demand, which selection shall be subject to the approval of the
Company, which approval shall not be unreasonably withheld, and (iii) the
Company will select an underwriter or underwriters in connection with any other
Public Offering. In connection with any Public Offering, 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 facilitate the disposition of Registrable Securities in any such
Public Offering, including the engagement of a "qualified independent
underwriter" in connection with the qualification of the underwriting
arrangements with the NASD.
(g) Upon the execution of confidentiality agreements in form and
substance reasonably satisfactory to the Company, the Company will make
available for inspection by any Stockholder 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 Stockholder 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 necessary or desirable to enable them to exercise their due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any Inspectors in
connection with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Stockholder agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used
by it as the basis for any market transactions in the Company Securities or its
Affiliates unless and until such is made generally available to the public.
Each Stockholder further agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company, at its expense, to undertake appropriate action
to prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each such Stockholder and to each
such underwriter, if any, a signed counterpart, addressed to each such
Stockholder or underwriter, 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 Stockholders or the managing underwriter
therefor reasonably requests.
(i) The Company will otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
stockholders, as soon as reasonably practicable, consolidated statements
covering a period of 12 months, beginning within three months after the
effective date of the registration statement, which consolidated statements
shall satisfy the provisions of Section 11(a) of the Securities Act.
(j) The Company may require each such Stockholder to promptly furnish
in writing to the Company such 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 Stockholder 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), such Stockholder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Stockholder's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5.04(e), and, if so directed by
the Company, such Stockholder will deliver to the Company all copies, other
than any permanent file copies then in such Stockholder'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 registration statement
shall be maintained effective (including the period referred to in Section
5.04(a)) by the number of days during the period from and including the date of
the giving of notice pursuant to Section 5.04(e) to the date when the Company
shall make available to such Stockholder a prospectus supplemented or amended
to conform with the requirements of Section 5.04(e).
SECTION 5.05. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Stockholder holding Registrable Securities
covered by a registration statement, its officers, directors and agents, and
each Person, if any, who controls such Stockholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus relating to the Registrable Securities
(as amended or supplemented if the 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 based
upon information furnished in writing to the Company by such Stockholder or any
other Stockholder or on such Stockholder's behalf or on behalf of any other
Stockholder expressly for use therein; provided that with respect to any untrue
statement or omission or alleged untrue statement or omission made in any
preliminary prospectus, or in any prospectus, as the case may be, the indemnity
agreement contained in this paragraph shall not apply to the extent that any
such loss, claim, damage, liability or expense results from the fact that a
current copy of the prospectus (or such amended or supplemented prospectus as
the case may be) was not sent or given to the person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation of
the sale of the Registrable Securities concerned to such person if it is
determined that the Company has provided such prospectus and it was the
responsibility of such Stockholder 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 directors
and each person who controls such underwriters on substantially the same basis
as that of the indemnification of the Stockholders provided in this Section
5.05.
SECTION 5.06. Indemnification by Participating Stockholders. Each
Stockholder 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, 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 Stockholder, but only (i) with respect to
information furnished in writing by such Stockholder or on such Stockholder'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 such amended or supplemented prospectus, as
the case may be) was not sent or given to the Person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation of
the sale of the Registrable Securities concerned to such person if it is
determined that it was the responsibility of such Stockholder 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 Stockholder also agrees 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 Stockholder shall be liable
under this Section 5.06 for any loss, claim, damage, liability or expense in
excess of the net proceeds realized by such Stockholder in the sale of the
Registrable Securities of such Stockholder to which such loss, claim, damage,
liability or expense relates.
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 prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or (ii) in the reasonable judgment of such Indemnified Party representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Parties. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, or if there be a final judgment for the
plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss 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 unavailable to the Indemnified Parties in respect of any
losses, claims, damages or liabilities referred to herein, then each
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 Stockholders holding Registrable Securities covered by a registration
statement on the one hand and the underwriters on the other, in such proportion
as is appropriate to reflect the relative benefits received by the Company and
such Stockholders on the one hand and the underwriters on the other, from the
offering of the 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
Stockholders 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 on the one hand and each such
Stockholder on the other, in such proportion as is appropriate to reflect the
relative fault of the Company and of each such Stockholder in connection with
such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company and such
Stockholders 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 Stockholders 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 Stockholders 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 Stockholders or by such underwriters. The relative fault of the Company on
the one hand and of each such Stockholder 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 Stockholders agree that it would not be just and
equitable if contribution pursuant to this Section 5.08 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as a result of
the losses, claims, damages or liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 5.08, no underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities underwritten by it and
distributed to the public were offered to the public exceeds the 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
Stockholder shall be required to contribute any amount in excess of the amount
by which the total price at which the Registrable Securities of such
Stockholder were offered to the public exceeds the amount of any damages which
such Stockholder 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 such Stockholder's obligation
to contribute pursuant to this Section 5.08 is several in the proportion that
the proceeds of the offering received by such Stockholder bears to the total
proceeds of the offering received by all such Stockholders and not joint.
SECTION 5.09. Participation in Public Offering. No Person may
participate in any Public Offering hereunder unless such Person (i) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (ii) 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.
SECTION 5.10. Other Indemnification. Indemnification similar to that
specified herein (with appropriate modifications) shall be given by the Company
and each Stockholder participating therein with respect to any required
registration or other qualification of securities under any federal or state
law or regulation or governmental authority other than the Securities Act.
SECTION 5.11. Cooperation by the Company. In the event any
Stockholder shall Transfer any Registrable Securities pursuant to Rule 144
under the Securities Act, the Company shall cooperate, to the extent
commercially reasonable, with such Stockholder and shall provide to such
Stockholder such information as such Stockholder shall reasonably request.
SECTION 5.12. No Transfer of Registration Rights. None of the rights
of Stockholders under this Article 5 shall be assignable by any Stockholder to
any Person to which such Stockholder transferred Registrable Securities in any
Public Offering or pursuant to Rule 144 of the Securities Act.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Entire Agreement. This Agreement and the Subscription
Agreements, together with any schedules, exhibits, annexes or appendices hereto
or thereto, constitute the entire agreement among the parties hereto and
supersede all prior agreements and understandings, oral and written, among the
parties hereto with respect to the subject matter hereof.
SECTION 6.02. 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. Nothing in this
Agreement, expressed or implied, shall 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 6.03. Confidentiality. (a) Each Stockholder agrees that
Confidential Information (as defined below) furnished and to be furnished to it
was and will be made available in connection with such Stockholder's investment
in the Company. Each Stockholder acknowledges and agrees that it will not
disclose any Confidential Information to any Person; provided that Confidential
Information may be disclosed (i) to such Stockholder's Representatives (as
defined below) in the normal course of the performance of their duties or to
any financial institution providing credit to such Stockholder, (ii) to the
extent required by applicable law, rule or regulation (including complying with
any oral or written questions, interrogatories, requests for information or
documents, subpoena, civil investigative demand or similar process to which a
Stockholder is subject; provided that such Stockholder gives the Company prompt
notice of such request(s), to the extent practicable, so that the Company may
seek an appropriate protective order or similar relief), (iii) to any Person to
whom such Stockholder is contemplating a Transfer of its Company Securities
(provided that such Transfer would not be in violation of the provisions of
this Agreement and as long as such potential transferee is advised of the
confidential nature of such information and agrees to be bound by a
confidentiality agreement in form and substance satisfactory to the Company (it
being understood that a confidentiality agreement consistent with the
provisions hereof shall be satisfactory to the Company)) or (iv) to any
regulatory authority to which the Stockholder or any of its affiliates is
subject of with which it has regular dealings if the prior written consent of
the Board shall have been obtained. Nothing contained herein shall prevent the
use (subject, to the extent possible, to a protective order) of Confidential
Information in connection with the assertion or defense of any claim by or
against the Company or any Stockholder. The Company will furnish to directors
of the Company, as soon as they become prepared on a regular basis, monthly
management accounts in such form and containing such information as the Board
shall specify.
(b) "Confidential Information" means any information concerning the
Company and Persons which are or become its subsidiaries or the financial
condition, business, operations or prospects of the Company and Persons which
are or become its subsidiaries in the possession of or furnished to any
Stockholder (including, without limitation by virtue of its present or former
right to designate a director of the Company); provided that the term
"Confidential Information" does not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by a
Stockholder or its partners, directors, officers, employees, agents, counsel,
investment advisors or representatives (all such persons being collectively
referred to as "Representatives") in violation of this Agreement, (ii) is or
was available to such Stockholder on a nonconfidential basis prior to its
disclosure to such Stockholder or its Representatives by the Company or (iii)
was or becomes available to such Stockholder on a non-confidential basis from a
source other than the Company, provided that such source is or was at the time
of receipt of the relevant information not, to the best of such Stockholder's
knowledge, bound by a confidentiality agreement with the Company or another
Person.
SECTION 6.04. Exclusive Financial and Investment Banking Advisor.
During the period from and including the date hereof until the earlier of (i)
the fifth anniversary of the date hereof and (ii) the date that the DLJ
Entities own less than 5% of their Initial Ownership of Common Shares,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJSC"), or any Affiliate
of DLJSC that the DLJ Entities may choose in their sole discretion, shall be
engaged as the exclusive financial and investment banking advisor of the
Company. DLJSC or such Affiliate shall be entitled to reimbursement from the
Company for all expenses incurred by DLJSC or such Affiliate (including,
without limitation, fees and expenses of counsel) as financial and investment
banking advisor of the Company.
SECTION 6.05. Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by any party hereto pursuant to any Transfer of Company Securities
or otherwise, except that any Permitted Transferee acquiring Company Securities
shall (unless already bound hereby) execute and deliver to the Company an
agreement to be bound by this Agreement in the Form of Exhibit A hereto and
shall thenceforth be a "Stockholder". Any Stockholder who ceases to own
beneficially any Shares shall cease to be bound by the terms hereof (other than
(i) the provisions of Sections 5.05, 5.06, 5.07, 5.08, and 5.10 applicable to
such Stockholder with respect to any offering of Registrable Securities
completed before the date such Stockholder ceased to own any Company Securities
and (ii) Sections 6.03, 6.11 and 6.12).
SECTION 6.06. Amendment; Waiver; Termination. No provision of this
Agreement may be waived except by an instrument in writing executed by the
party against whom the waiver is to be effective. No provision of this
Agreement may be amended or otherwise modified except by an instrument in
writing executed by the Company with the approval of the Board and Stockholders
holding at least 75% of the outstanding Common Shares held by the parties
hereto at the time of such proposed amendment or modification; provided that
any amendment or modification which adversely and disproportionately affects
the rights of any party hereto must be approved by such party.
SECTION 6.07. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmissions and shall be given,
if to the Company, to:
Insilco Holding Co.
000 Xxxxx Xxxxx Xxxxx
0xx Xxxxx
Xxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxx
Telecopy: (000) 000-0000
with a copy to the DLJ Entities at the address listed below.
if to the DLJ Entities, to:
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
if to CVC, to:
399 Venture Partners, Inc.
c/o Citicorp Venture Capital, Ltd.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx
Fax: 000-000-0000
with a copy to:
Dechert Price & Xxxxxx
4000 Xxxx Atlantic Tower
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
Fax: 000-000-0000
All notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to
5:00 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. Any notice, request or other written communication sent by
facsimile transmission shall be confirmed by certified mail, return receipt
requested, posted within one Business Day, or by personal delivery, whether
courier or otherwise, made within two Business Days after the date of such
facsimile transmission.
Any Person who becomes a Stockholder shall provide its address and fax
number to the Company, which shall promptly provide such information to each
other Stockholder.
SECTION 6.08. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
SECTION 6.09. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF DELAWARE.
SECTION 6.10. Specific Enforcement. Each party hereto acknowledges
that the remedies at law of the other parties for a breach or threatened breach
of this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement, without posting any bond, and in addition to all other
remedies which may be available, shall be entitled to obtain equitable relief
in the form of specific performance, a temporary restraining order, a temporary
or permanent injunction or any other equitable remedy which may then be
available.
SECTION 6.11. Consent to Jurisdiction. 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
be brought in the United States District Court for the District of Delaware or
any other Delaware State court sitting in Wilmington, and each of the parties
hereby consents to the non-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 as provided in Section 6.07 shall
be deemed effective service of process on such party.
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.
INSILCO HOLDING CO.
By:
-------------------------------
Name:
Title:
DLJ MERCHANT BANKING
PARTNERS II, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By:
-------------------------------
Name:
Title:
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
BY DLJ MERCHANT BANKING II,
INC., Managing General Partner
By:
-------------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
BY DLJ MERCHANT BANKING II, INC.,
Advisory General Partner
By:
-------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By:
-------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By:
-------------------------------
Name:
Title:
DLJMB FUNDING II, INC.
By:
-------------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By:
-------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By:
-------------------------------
Name:
Title:
UK INVESTMENT PLAN 1997
PARTNERS
XXXXXXXXX, LUFKIN & XXXXXXXX,
INC., General Partner
By:
-------------------------------
Name:
Title:
DLJ FIRST ESC, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By:
-------------------------------
Name:
Title:
DLJ ESC II, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By:
-------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By:
-------------------------------
Name:
Title:
399 VENTURE PARTNERS, INC.
By:
-------------------------------
Name:
Title:
EXHIBIT A
[FORM OF AGREEMENT TO BE BOUND]
[Date]
To the Parties to the Investors'
Agreement dated as of August __, 1998
Ladies and Gentlemen:
Reference is made to the Investors' Agreement dated as of August __,
1998 (the "Investors' Agreement") among Insilco Holding Co. and the other
Persons listed on the signature pages thereof and each other Person who has or
shall become a party to the Investors' Agreement as provided therein.
Capitalized terms used herein and not defined have the meanings ascribed to
them in the Investors' Agreement.
In consideration of the covenants and agreements contained in the
Investors' Agreement, the undersigned hereby confirms and agrees that it shall
be bound as a "Stockholder" by all of the provisions thereof.
This letter shall be construed and enforced in accordance with the
internal laws of the State of Delaware.
Very truly yours,
