Exhibit 2
CONFORMED COPY
SUBSCRIPTION AGREEMENT
dated as of
August 7, 1997
among
QUAKER HOLDING CO.
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock
of
QUAKER HOLDING CO.
TABLE OF CONTENTS
_________________
Page
ARTICLE 1 Definitions
Section 1.01. Definitions................................ 1
ARTICLE 2 Purchase and Sale
Section 2.01. Purchase and Sale.......................... 3
Section 2.02. Closing.................................... 3
ARTICLE 3 Representations and Warranties of Seller
Section 3.01. Corporate Existence and Power.............. 4
Section 3.02. Corporate Authorization.................... 4
Section 3.03. Governmental Authorization................. 5
Section 3.04. Noncontravention........................... 5
Section 3.05. Capitalization and Voting Rights........... 5
Section 3.06. Valid Issuance of Common Stock............. 6
Section 3.07. Litigation................................. 6
Section 3.08. Brokers or Finders' Fees................... 6
Section 3.09. Newly Formed Corporation................... 6
Section 3.10. Meaning of Seller.......................... 6
ARTICLE 4 Representations and Warranties of Buyers
Section 4.01. Existence and Power........................ 7
Section 4.02. Authorization.............................. 7
Section 4.03. Governmental Authorization................. 7
Section 4.04. Purchase for Investment.................... 7
Section 4.05. Private Placement.......................... 7
Section 4.06. Litigation................................. 9
Section 4.07. Brokers or Finders' Fees................... 9
ARTICLE 5 Conditions to Closing
Section 5.01. Conditions to Obligations of Each Buyer
and Seller................................. 9
Section 5.02. Conditions to Obligation of Each Buyer..... 9
Section 5.03. Conditions to Obligation of Seller......... 10
ARTICLE 6 Survival; Indemnification
Section 6.01. Survival................................... 10
Section 6.02. Indemnification............................ 11
Section 6.03. Procedures and Third Party Claims.......... 11
Section 6.04. Calculation of Damages..................... 12
Section 6.05. Exclusivity................................ 13
ARTICLE 7 Termination
Section 7.01. Grounds for Termination.................... 13
Section 7.02. Effect of Termination...................... 13
ARTICLE 8 Miscellaneous
Section 8.01. Notices.................................... 14
Section 8.02. Amendments and Waivers..................... 15
Section 8.03. Expenses................................... 15
Section 8.04. Successors and Assigns..................... 15
Section 8.05. Governing Law.............................. 15
Section 8.06. Jurisdiction............................... 15
Section 8.07. Waiver Of Jury Trial....................... 16
Section 8.08. Counterparts; Third Party Beneficiaries.... 16
Section 8.09. Entire Agreement........................... 16
Section 8.10. Captions................................... 16
Section 8.11. Severability............................... 16
Section 8.12. Interpretation............................. 16
Schedule A Schedule of Investors
Exhibit A Certificate of Incorporation
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 7, 1997 between Quaker
Holding Co., a Delaware corporation ("SELLER"), and the Persons
named on Schedule A hereto (each a "BUYER" and collectively,
the "BUYERS").
W I T N E S S E T H :
WHEREAS, the Seller has agreed to merge with and into
DecisionOne Holdings Corp. (the "COMPANY") on the terms and
conditions set forth in the Agreement and Plan of Merger dated
as of May 4, 1997 (the "MERGER") between Seller and the Company
(as subsequently amended, the "MERGER AGREEMENT");
WHEREAS, to finance, in part, the payment of the con-
sideration payable in the Merger, Seller intends to issue
shares of common stock, par value $0.01 per share (the "COMMON
STOCK" or the "SECURITIES");
WHEREAS, all of the outstanding capital stock of the
Seller is currently owned by DLJ Merchant Banking Partners II,
L.P. ("DLJMB") and affiliated funds and entities (collectively,
the "DLJMB FUNDS");
WHEREAS, certain institutional investors wish to in-
vest in the Seller incident to the Merger;
WHEREAS, Seller desires to issue and sell the Common
Stock to each of the Buyers, and each of the Buyers desires to
purchase the Common Stock from Seller, upon the terms and sub-
ject to the conditions hereinafter set forth;
The parties hereto agree as follows:
ARTICLE 1
Definitions
Section 1.1. 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.
"CLOSING DATE" means the date of the Closing.
"COMMON SHARE" means one share of Common Stock.
"INVESTORS' AGREEMENT" means the Investors' Agreement
dated as of the date hereof among Quaker Holding Co., DLJ Mer-
chant Banking Partners II, L.P., DLJ Merchant Banking Partners
XX-X, X.X., XXX Xxxxxxxx Xxxxxxxx XX, X.X., XXX Diversified
Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millenium
Partners, L.P., DLJ Funding II, Inc., DLJ EAB Partners, L.P.,
UK Investment Plan 1997 Partners, DLJ First ESC, LLC, and cer-
tain other shareholders listed on the signature pages thereto.
"LIEN" means, with respect to any property or asset,
any mortgage, lien, pledge, charge, security interest or encum-
brance in respect of such property or asset.
"1934 ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereun-
der.
"1933 ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"PERSON" means an individual, corporation, partner-
ship, limited liability company, association, trust or other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"TAX" means, with respect to any Person, any net in-
come tax, or franchise tax based on net income including any
alternative or add-on minimum tax, together with any interest,
penalty, addition to tax or additional amount due from such
Person imposed by any governmental authority (domestic or for-
eign) responsible for the imposition of any such tax.
"TAX BENEFIT" means any deduction, amortization, ex-
clusion from income or other allowance.
"TRANSACTION DOCUMENTS" means this Agreement, the
Merger Agreement and the Investors' Agreement.
(b) Each of the following terms is defined in the
Section set forth opposite such term:
2
TERM SECTION
Accredited Investor 4.06(h)
Certificate of Incorporation 3.08
Claim 6.03
Closing 2.02
Common Stock Recitals
Company Recitals
Damages 6.02
DLJMB Recitals
DLJMB Funds Recitals
Indemnified Party 6.03
Indemnifying Party 6.03
Purchase Price 2.01
Securities Recitals
Third Party Claim 6.03
ARTICLE 2
Purchase and Sale
Section 2.1. Purchase and Sale. Upon the terms and
subject to the conditions of this Agreement, Seller agrees to
issue and sell to each Buyer, and each Buyer agrees, severally
and not jointly, to purchase from Seller the Common Stock set
forth opposite such Buyer's name on Schedule A hereto at the
Closing. The purchase price for the Common Stock (the "PUR-
CHASE PRICE") is the amount in cash specified on Schedule A
hereto. The Purchase Price shall be paid as provided in Section
2.02.
Section 2.2 Closing. The closing (the "CLOSING") of
the purchase and sale of the Common Stock hereunder shall take
place at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, as soon as possible, but in no
event later than five business days, after satisfaction of the
conditions set forth in Article 5, or at such other time or
place as Buyers and Seller may agree. At the Closing:
(a) Each Buyer shall deliver to Seller, in im-
mediately available funds, the Aggregate Purchase Price set
forth opposite such Buyer's name on Schedule A
3
hereto, by wire transfer (or other means acceptable to Seller)
to an account of Seller with a bank in New York City designated
by Seller, by notice to such Buyer, not later than two business
days prior to the Closing Date.
(b) Seller shall deliver to each Buyer certificates
for the Common Shares duly registered in the name of such
Buyer.
(c) If the Closing has occurred but the Merger is
not consummated prior to the close of business on Friday, Au-
gust 8, 1997, then Seller shall immediately deliver to each
Buyer, against delivery by such Buyer of the stock certificates
representing the shares of Common Stock purchased by such
Buyer, the Aggregate Purchase Price paid to Seller by such
Buyer (as set forth opposite such Buyer's name on Schedule A
hereto), and this Agreement shall thereupon be terminated.
ARTICLE 3
Representations and Warranties of Seller
Seller represents and warrants to each Buyer as of
the date hereof and as of the Closing Date that:
Section 3.1. Corporate Existence and Power. Seller
is a corporation duly incorporated, validly existing and in
good standing under the laws of its jurisdiction of incorpora-
tion and has all corporate powers and all governmental li-
censes, authorizations, permits, consents and approvals re-
quired to carry on its business as now conducted and as pro-
posed to be conducted.
Section 3.2. Corporate Authorization. The execu-
tion, delivery and performance by Seller of each of the Trans-
action Documents and the consummation of the transactions con-
templated hereby and thereby (including the issuance and sale
of the Common Stock) are within Seller's corporate powers and
have been duly authorized by all necessary corporate action on
the part of Seller. Each of the Transaction Documents consti-
tutes a valid and binding agreement of Seller, enforceable
against Seller in accordance with its respective terms, except
(i) as limited by the applicable bankruptcy, insolvency, reor-
ganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii)
as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
Section 3.3. Governmental Authorization. The execu-
tion, delivery and performance by Seller of each of the Trans-
action Documents and the
4
consummation of the transactions contemplated hereby and
thereby require no order, license, consent, authorization or
approval of, or exemption by, or action by or in respect of, or
notice to, or filing or registration with, any governmental
body, agency or official except such as have been obtained.
Section 3.4. Noncontravention. The execution, de-
livery and performance by Seller of each of the Transaction
Documents and the consummation of the transactions contemplated
hereby and thereby do not and will not (i) violate the certifi-
cate of incorporation or bylaws of Seller, (ii) violate any
applicable law, rule, regulation, judgment, injunction, order
or decree, (iii) require any consent or other action by any
Person under, constitute a default under (with due notice or
lapse of time or both), or give rise to any right of termina-
tion, cancellation or acceleration of any right or obligation
of Seller or to a loss of any benefit to which Seller is en-
titled under any provision of any agreement or other instrument
binding upon Seller or any of Seller's assets or properties or
(iv) result in the creation or imposition of any material Lien
on any property or asset of Seller.
Section 3.5 Capitalization and Voting Rights. (a)
The authorized capital stock of the Seller consists of
30,000,000 shares of Common Stock and 15,000,000 shares of pre-
ferred stock, and the outstanding capital stock of the Seller
immediately prior to the Closing is 101 shares of Common Stock
and no shares of preferred stock. The rights, privileges and
preferences of the Common Stock are set forth in the Certifi-
cate of Incorporation attached hereto as Exhibit A (the "CER-
TIFICATE OF INCORPORATION").
(b) Immediately following the Closing the outstand-
ing capital stock of the Seller will be 10,918,979 shares of
Common Stock. 148,400 warrants to purchase 281,960 shares of
Common Stock will be issued shortly after Closing to purchasers
of Seller's 11-1/2% Senior Discount Debentures due 2008.
(c) Except as set forth in this Section 3.05 there
are, and immediately after the Closing there will be, no out-
standing (i) shares of capital stock or voting securities of
the Seller, (ii) securities of the Seller convertible into or
exchangeable for shares of capital stock or voting securities
of the Seller, (iii) options or other rights to acquire from
the Seller, or other obligation of the Seller to issue, any
capital stock, voting securities or securities convertible into
or exchangeable for capital stock or voting securities of the
Seller or (iv) other than as expressly permitted in the
Transaction Documents or employment plans, no obligation of the
Seller to repurchase or otherwise acquire or retire any shares
of capital stock or any convertible securities, rights or
options of the type described in (i), (ii), or (iii).
5
Section 3.6. Valid Issuance of Common Stock. The
shares of Common Stock which are being issued to the Buyers
hereunder, have been duly and validly authorized and when is-
sued, sold and delivered in accordance with the terms hereof
for the consideration expressed herein, will be fully paid and
nonassessable, and based in part on the representations of the
Buyers herein, will be validly issued in compliance with all
applicable federal and state securities laws.
Section 3.7. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowl-
edge of Seller, threatened against or affecting Seller or any
of its respective properties before any court or arbitrator or
any governmental body, agency or official which in any manner
challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Agreement or which
could reasonably be expected to have a material adverse effect
on the business, financial condition, properties or operations
of Seller, nor is Seller aware that there is any basis for the
foregoing.
Section 3.8. Brokers or Finders' Fees. Other than
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation there is no
investment banker, broker, finder or other intermediary which
has been retained by, will be retained by, or is authorized to
act on behalf of Seller who might be entitled to any fee or
commission from the Seller in connection with the transactions
contemplated by this Agreement.
Section 3.9. Newly Formed Corporation. Seller was
incorporated on April 30, 1997 in the State of Delaware solely
for the purpose of effectuating the transactions contemplated
in this Agreement and the Merger Agreement and has not con-
ducted any business or entered into any agreements or commit-
ments except with respect to the foregoing.
Section 3.10 Meaning of Seller. Except as otherwise
specifically provided herein, references to the Seller con-
tained in this Article 3 shall be construed to refer to the
Seller immediately prior to the consummation of the transac-
tions contemplated by the Merger Agreement.
ARTICLE 4
Representations and Warranties of Buyers
Each Buyer represents and warrants to Seller, sever-
ally as to itself only
6
and not jointly or as to any other Buyer, as of the date hereof
and as of the Closing Date that:
Section 4.1. Existence and Power. Such Buyer, if
not an individual, is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organiza-
tion and has all powers (corporate, partnership or otherwise)
and all material governmental licenses, authorizations, per-
mits, consents and approvals required to carry on its business
as now conducted. Such Buyer, if an individual, has the legal
capacity to enter into this Agreement and the Investors' Agree-
ment.
Section 4.2. Authorization. The execution, delivery
and performance by such Buyer of each of this Agreement and the
Investors' Agreement and the consummation of the transactions
contemplated hereby and thereby are within the powers (corpo-
rate, partnership or otherwise) of such Buyer and have been
duly authorized by all necessary action on the part of such
Buyer. Each of this Agreement and the Investors' Agreement con-
stitutes a valid and binding agreement of such Buyer, enforce-
able in accordance with their respective terms, except (i) as
limited by the applicable bankruptcy, insolvency, reorganiza-
tion, moratorium, and other laws of general application affect-
ing enforcement or creditors' rights generally, or (ii) as lim-
ited by laws relating to the availability of specific perfor-
xxxxx, injunctive relief, or other equitable remedies.
Section 4.3. Governmental Authorization. The execu-
tion, delivery and performance by such Buyer of this Agreement
and the Investors' Agreement and the consummation of the trans-
actions contemplated hereby and thereby require no order, li-
cense, consent, authorization or approval of, or exemption by,
or action by or in respect of, or notice to, or filing or reg-
istration with, any governmental body, agency or official.
Section 4.4. Purchase for Investment. Such Buyer is
purchasing the Common Stock for investment for its own account
and not with a view to, or for sale in connection with, any
distribution thereof.
Section 4.5. Private Placement. (a) Such Buyer
understands that (i) the offering and sale of the Securities
hereby is intended to be exempt from registration under the
1933 Act and (ii) there is only a limited market for the Common
Stock, and there can be no assurance that any Buyer will be
able to sell or dispose of the Common Stock to be purchased by
such Buyer.
(b) Such Buyer's financial situation is such that
such Buyer can afford to bear the economic risk of holding the
Common Stock acquired
7
hereunder for an indefinite period of time, and such Buyer can
afford to suffer the complete loss of the investment in the
Common Stock.
(c) Such Buyer's knowledge and experience in xxxxx-
cial and business matters are such that it is capable of evalu-
ating the merits and risks of the investment in the Common
Stock, or such Buyer has been advised by a representative pos-
sessing such knowledge and experience.
(d) Such Buyer understands that the Common Stock
acquired hereunder are a speculative investment which involves
a high degree of risk of loss of the entire investment therein,
that there are substantial restrictions on the transferability
of the Common Stock as set forth in the Investors' Agreement,
and that for an indefinite period following the date hereof
there will be no (or only a limited) public market for the Com-
mon Stock and that, accordingly, it may not be possible for
such Buyer to sell the Common Stock in case of emergency or
otherwise.
(e) Such Buyer and its representatives, including,
to the extent it deems appropriate, its professional, xxxxx-
cial, tax and other advisors, have reviewed all documents pro-
vided to them in connection with the investment in the Common
Stock, and such Buyer understands and is aware of the risks
related to such investment.
(f) Such Buyer and its representatives have been
given the opportunity to examine all documents and to ask ques-
tions of, and to receive answers from, Seller and its represen-
tatives concerning the terms and conditions of the acquisition
of the Common Stock and related matters and to obtain all ad-
ditional information which such Buyer or its representatives
deem necessary.
(g) All information which such Buyer has provided to
Seller and its representatives concerning such Buyer and such
Buyer's financial position is true, complete and correct, and
such Buyer agrees to promptly notify Seller if at any time this
ceases to be the case prior to the Closing.
(h) Such Buyer is an "ACCREDITED INVESTOR" as such
term is defined in Regulation D under the 1933 Act.
Section 4.6. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowl-
edge of such Buyer threatened against or affecting, such Buyer
before any court or arbitrator or any governmental body, agency
or official which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated
by this Agreement or the Investors' Agreement.
8
Section 4.7. Brokers or Finders' Fees. There is no
investment banker, broker, finder or other intermediary which
has been retained by, will be retained by or is authorized to
act on behalf of such Buyer who might be entitled to any fee or
commission from the Company, Seller or the DLJ entities upon
consummation of the transactions contemplated by this Agreement
(as defined in the Investors' Agreement of even date herewith).
ARTICLE 5
Conditions to Closing
Section 5.1. Conditions to Obligations of Each Buyer
and Seller. The obligations of Buyer and Seller to consummate
the Closing are subject to the satisfaction of the following
conditions:
(a) No provision of any applicable law, rule or
regulation and no judgment, injunction, order or decree by
any governmental entity of competent jurisdiction shall
prohibit the consummation of the Closing or the Merger.
(b) All material actions by or in respect of, or
filings with, any governmental body, agency, official or
authority required to permit the consummation of the Clos-
ing shall have been taken, made or obtained.
(c) The conditions to the consummation of the Merger
Agreement (other than the condition set forth in Section
8.01(e) thereof, which shall be reasonably certain to oc-
cur immediately after the Closing) shall have been satis-
fied or waived.
Section 5.2. Conditions to Obligation of Each Buyer.
The obligation of each Buyer to consummate the Closing is sub-
ject to the satisfaction of the following further conditions:
(a)(i) Seller shall have performed in all material
respects all of its obligations hereunder required to be
performed by it on or prior to the Closing Date and (ii)
the representations and warranties of Seller contained in
this Agreement and in any certificate or other writing
delivered by Seller pursuant hereto shall be true in all
material respects when made and at and as of the Closing
Date, as if made at and as of such date.
9
(b) Such Buyer shall have received all documents it
may reasonably request relating to the existence of Seller
and the authority of Seller for this Agreement, all in
form and substance reasonably satisfactory to such Buyer.
Section 5.3. Conditions to Obligation of Seller.
The obligation of Seller to consummate the Closing with respect
to any Buyer is subject to the satisfaction of the following
further conditions:
(a)(i) Such Buyer shall have performed in all mate-
rial respects all of its obligations hereunder required to
be performed by it at or prior to the Closing Date and
(ii) the representations and warranties of such Buyer
contained in this Agreement and in any certificate or
other writing delivered by such Buyer pursuant hereto
shall be true in all material respects when made and at
and as of the Closing Date, as if made at and as of such
date.
(b) Seller shall have received all documents it may
reasonably request relating to the existence of such Buyer
and the authority of such Buyer for this Agreement, all in
form and substance reasonably satisfactory to Seller.
ARTICLE 6
Survival; Indemnification
Section 6.1. Survival. The representations and war-
ranties of the parties hereto contained in this Agreement or in
any certificate delivered pursuant hereto or in connection
herewith shall survive the Closing until twelve months after
the Closing Date, provided that the representations and warran-
ties contained in Sections 3.01, 3.02, 3.04, 3.05, 3.06 and
4.01 shall survive indefinitely for the maximum period permit-
xxx by applicable law, if longer. Notwithstanding the preceding
sentence, any representation or warranty in respect of which
indemnity may be sought under this Agreement shall survive the
time at which it would otherwise terminate pursuant to the pre-
ceding sentence, if notice of the inaccuracy or breach thereof
giving rise to such right of indemnity shall have been given to
the party against whom such indemnity may be sought prior to
such time, but only as to such inaccuracy or breach. A breach
of any representation or warranty made in this Agreement shall
not affect in any manner whatsoever the relative rights
10
and obligations of the parties to and under the Investors'
Agreement.
Section 6.2. Indemnification. (a) Seller hereby
indemnifies each Buyer and its Affiliates, limited partners,
general partners, directors, officers and employees against
and agrees to hold each of them harmless from any and all dam-
age, loss, liability and expense (including, without limita-
tion, reasonable expenses of investigation and reasonable at-
torneys' fees and expenses in connection with any action, suit
or proceeding) ("DAMAGES") incurred or suffered by any such
party arising out of any misrepresentation or breach of war-
ranty, covenant or agreement made or to be performed by Seller
pursuant to this Agreement; provided that with respect to any
Buyer, (i) Seller shall not be liable under this Section
6.02(a) unless the aggregate amount of Damages with respect to
all matters referred to in this Section 6.02(a) for which such
Buyer has sought indemnification exceeds $100,000 and then only
to the extent of such excess and (ii) Seller's maximum li-
ability under this Section 6.02(a) shall not exceed the amount
of the Purchase Price paid by such Buyer.
(b) Each Buyer hereby indemnifies, severally and not
jointly, Seller and its Affiliates, limited partners, general
partners, directors, officers and employees against and agrees
to hold each of them harmless from any and all Damages incurred
or suffered by any such party arising out of any misrepresenta-
tion or breach of warranty, covenant or agreement made or to be
performed by such Buyer pursuant to this Agreement; provided
that (i) such Buyer shall not be liable under this Section
6.02(b) unless the aggregate amount of Damages with respect to
all matters referred to in this Section 6.02(b) exceeds
$100,000 and then only to the extent of such excess and (ii)
such Buyer's maximum liability under this Section 6.02(b) shall
not exceed the amount of Purchase Price paid by such Buyer.
Section 6.3. Procedures and Third Party Claims. (a)
The party seeking indemnification under Section 6.02 (the "IN-
DEMNIFIED PARTY") agrees to give prompt notice to the party
against whom indemnity is sought (the "INDEMNIFYING PARTY") of
the assertion of any claim, or the commencement of any suit,
action or proceeding ("CLAIM") in respect of which indemnity
may be sought under such Section and will provide the Indemni-
fying Party such information with respect thereto that the In-
demnifying Party may reasonably request. The failure to so no-
tify the Indemnifying Party shall not relieve the Indemnifying
Party of its obligations hereunder, except to the extent such
failure shall have adversely prejudiced the Indemnifying Party
(except that the Indemnifying Party shall not be liable for any
expenses incurred during the period in which the Indemnified
Party failed to give such notice).
11
(b) The Indemnifying Party shall be entitled to par-
ticipate in the defense of any Claim asserted by any third
party ("THIRD PARTY CLAIM") and, subject to the limitations set
forth in this Section, shall be entitled to control and appoint
lead counsel for such defense, in each case at its expense.
(c) If the Indemnifying Party shall assume the con-
trol of the defense of any Third Party Claim in accordance with
the provisions of this Section, (i) the Indemnifying Party
shall obtain the prior written consent of the Indemnified Party
(which shall not be unreasonably withheld) before entering into
any settlement of such Third Party Claim, if the settlement
does not release the Indemnified Party from all liabilities and
obligations with respect to such Third Party Claim or the
settlement imposes injunctive or other equitable relief against
the Indemnified Party and (ii) the Indemnified Party shall be
entitled to participate in the defense of such Third Party
Claim and to employ separate counsel of its choice for such
purpose. The fees and expenses of such separate counsel shall
be borne by the Indemnified Party.
(d) Each party shall cooperate, and cause its re-
spective Affiliates to cooperate, in the defense or prosecution
of any Third Party Claim and shall furnish or cause to be fur-
nished such records, information and testimony, and attend such
conferences, discovery proceedings, hearings, trials or ap-
peals, as may be reasonably requested in connection therewith.
Section 6.4. Calculation of Damages. (a) The
amount of any Damages payable under Section 6.02 by the Indem-
nifying Party shall be net of any (i) amounts recovered or re-
coverable by the Indemnified Party under applicable insurance
policies, (ii) Tax cost incurred by the Indemnified Party aris-
ing from the receipt of indemnity payments and (iii) Tax Ben-
efit realized by the Indemnified Party arising from the incur-
rence or payment of any such Damages. In computing the amount
of any such Tax cost or Tax Benefit, the Indemnified Party
shall be deemed to fully utilize, at the highest marginal tax
rate then in effect, all Tax items arising from the receipt of
any indemnity payment hereunder or the incurrence or payment of
any indemnified Damages.
(b) The Indemnifying Party shall not be liable under
Section 6.02 for any (i) incidental Damages, (ii) consequential
or punitive Damages or (iii) Damages for lost profits.
Section 6.5. Exclusivity. After the Closing, Sec-
tion 6.02 will provide the exclusive remedy for any misrepresenta-
tion, breach of warranty, covenant or other agreement or other
claim arising out of this Agreement or the transactions contem-
plated hereby.
12
ARTICLE 7
Termination
Section 7.1. Grounds for Termination. This Agree-
ment may be terminated at any time prior to the Closing:
(a) by mutual written agreement of Seller and Buy-
ers;
(b) by either Seller or any Buyer as to such Buyer
if the Closing shall not have been consummated as of the
close of business on Friday, August 8, 1997; or
(c) by either Seller or any Buyer if consummation of
the transactions contemplated hereby would violate any
non-appealable final order, decree or judgment of any
court or governmental body having competent jurisdiction.
The party desiring to terminate this Agreement pursu-
ant to clauses 7.01(b) or (c) shall give notice of such termi-
nation to the other party.
Section 7.2. Effect of Termination. If this Agree-
ment is terminated as permitted by Section 7.01, such termina-
tion shall be without liability of either party (or any stock-
holder, general partner, limited partner, director, officer,
employee, agent, consultant or representative of such party) to
the other party to this Agreement; provided that if such termi-
nation shall result from the willful (i) failure of either
party to fulfill a condition to the performance of the obliga-
tions of the other party, (ii) failure to perform a covenant of
this Agreement or (iii) breach by either party hereto of any
representation or warranty or agreement contained herein, such
party shall be fully liable for any and all Damages incurred or
suffered by the other party as a result of such failure or
breach. The provisions of Sections 8.03, 8.05 and 8.06 shall
survive any termination hereof pursuant to Section 7.01.
ARTICLE 8
Miscellaneous
13
Section 8.1. Notices. All notices, requests and
other communications to any party hereunder shall be in writing
(including facsimile transmission) and shall be given,
if to any Buyer, to such Buyer at the address speci-
fied by such Buyer on the signature pages of this Agreement or
in a notice given by such Buyer to Seller for such purpose;
if to Seller, to:
Quaker Holding Co.
c/o DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
or to such other address or telecopy number and with such other
copies as such party may hereafter specify for the purpose of
notice.
All such notices, requests and other communications
shall be deemed received on the date of receipt by the recipi-
ent thereof if received prior to 5 p.m. in the place of receipt
and such day is a business day in the place of receipt. Other-
wise, any such notice, request or communication shall be deemed
not to have been received until the next succeeding business
day in the place of receipt.
Section 8.2. Amendments and Waivers. (a) Any pro-
vision of this Agreement may be amended or waived if, but only
if, such amendment or waiver is in writing and is signed, in
the case of an amendment, by each party to this Agreement, or
in the case of a waiver, by the party against whom the waiver
is to be effective.
(b) No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial
14
exercise thereof preclude any other or further exercise thereof
or the exercise of any other right, power or privilege. The
rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 8.3. Expenses. All costs and expenses in-
curred in connection with this Agreement shall be paid by the
party incurring such cost or expense, except that if the Clos-
ing shall occur, the Company shall reimburse (i) the Buyers
other than the DLJ Entities (as that term is defined in the
Investors' Agreement) for up to $20,000 in respect of fees and
expenses of one counsel retained to represent such Buyers and
(ii) the DLJ Entities for all costs and expenses incurred by
the DLJ Entities.
Section 8.4 Successors and Assigns. The provisions
of this Agreement shall be binding upon and inure to the ben-
efit of the parties hereto and their respective successors and
assigns; provided that no party may assign, delegate or other-
wise transfer any of its rights or obligations under this
Agreement without the consent of each other party hereto.
Section 8.5. Governing Law. This Agreement shall be
governed by and construed in accordance with the law of the
State of New York.
Section 8.6. Jurisdiction. The parties hereto agree
that any suit, action or proceeding seeking to enforce any pro-
vision of, or based on any matter arising out of or in connec-
tion with, this Agreement or the transactions contemplated
hereby may only be brought in the United States District Court
for the Southern District of New York or any New York State
court sitting in New York City, and each of the parties hereby
consents to the jurisdiction of such courts (and of the ap-
propriate appellate courts therefrom) in any such suit, action
or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter
have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought
in an inconvenient forum. Process in any such suit, action or
proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court.
Without limiting the foregoing, each party agrees that service
of process on such party as provided in Section 8.01 shall be
deemed effective service of process on such party.
Section 8.7. Waiver Of Jury Trial. EACH OF THE PAR-
TIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
15
HEREBY.
Section 8.8. Counterparts; Third Party Beneficia-
xxxx. This Agreement may be signed in any number of counter-
parts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same in-
strument. This Agreement shall become effective when each party
hereto shall have received a counterpart hereof signed by the
other party hereto. No provision of this Agreement is intended
to confer upon any Person other than the parties hereto any
rights or remedies hereunder.
Section 8.9. Entire Agreement. This Agreement along
with the Investors' Agreement (including the documents, sched-
ules and exhibits referred to herein and therein) constitute
the entire agreement between the parties with respect to the
subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between
the parties with respect to the subject matter of this Agree-
ment.
Section 8.10. Captions. The captions herein are
included for convenience of reference only and shall be ignored
in the construction or interpretation hereof.
Section 8.11. Severability. If one or more provi-
sions of this Agreement are held to be unenforceable under ap-
plicable law, such provision shall be executed from this Agree-
ment and the balance of the Agreement shall be interpreted as
if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by
law.
Section 8.12. Interpretation. The headings con-
tained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of
this Agreement.
16
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed by their respective autho-
rized officers as of the day and year first above written.
QUAKER HOLDING CO.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice-President
DLJ MERCHANT BANKING PARTNERS II,
L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
17
DLJ MERCHANT BANKING PARTNERS II-A,
L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
18
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant Banking
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
19
DLJ MILLENIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MILLENIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
20
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ FIRST ESC, L.L.C.,
By: DLJ LBO Plans Management
Corporation, as manager
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
UK INVESTMENT PLAN 1997
PARTNERS
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx,
Inc., as general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
21
DLJ EAB PARTNERS, L.P.
By: DLJ Merchant Banking Funding II,
Inc., its general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II,
Inc., its general partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
22
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II,
Inc., its general partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
APOLLO U.K. PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II,
Inc., its general partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
XXXX CAPITAL FUND V, L.P.
By: Xxxx Capital Partners V, L.P.,
its general partner
23
By: Xxxx Capital Investors V, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
XXXX CAPITAL FUND, V-B, L.P.
By: Xxxx Capital Partners V, L.P.,
its general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
24
BCIP ASSOCIATES
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
BCIP TRUST ASSOCIATES, L.P.
By: Xxxx Capital Partners V, L.P.,
its general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
25
XXXXXX X. XXX EQUITY FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
XXXXXX X. XXX FOREIGN FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THL CO-INVESTORS III-A LLC
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Manager
Address: 00 Xxxxx Xxxxxx
00
Xxxxxx, XX 00000
THL CO-INVESTORS III-B LLC
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Manager
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
DLJ CAPITAL CORP.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
27
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ONTARIO TEACHERS' PENSION PLAN BOARD
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Portfolio Manager,
Merchant Banking
Address: 0000 Xxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx
Xxxxxx, X0X 0X0
28
SCHEDULE A
________ _______________ _____________
INVESTOR NO. OF COMMON AGGREGATE
SHARES PURCHASE
PRICE
DLJ Merchant Banking Partners II, L.P. 4,703,762 96,932,137.08
DLJ Merchant Banking Partners II-A, L.P. 187,326 3,860,284.87
DLJ Offshore Partners, L.P. 231,307 4,766,622.62
DLJ Diversified Partners, L.P. 275,003 5,667,095.07
DLJ Diversified Partners-A, L.P. 102,127 2,104,560.24
DLJ Millennium Partners, L.P. 76,055 1,567,276.12
DLJ Millennium Partners - A, L.P. 14,834 305,685.43
DLJMB Funding II, Inc. 946,201 19,498,728.27
DLJ First ESC, L.L.C. 874,223 18,015,434.00
DLJ EAB Partners, L.P. 21,119 435,204.97
UK Investment Plan 1997 Partners 88,052 1,814,515.60
Apollo Investment Fund III, L.P. 738,693 15,222,519.19
Apollo Overseas Partners III, L.P. 44,117 909,143.31
Apollo (U.K.) Partners III, L.P. 27,307 562,718.22
Xxxx Capital Fund V L.P. 158,619 3,268,702.22
Xxxx Capital Fund V-B, L.P. 413,039 8,511,678.44
BCIP Associates 124,016 2,555,635.04
BCIP Trust Associates 114,443 2,358,365.01
Xxxxxx X. Xxx Equity Fund III, L.P. 695,016 14,322,454.99
Xxxxxx X. Xxx Foreign Fund III, 886,234.74
29
________ _______________ _____________
INVESTOR NO. OF COMMON AGGREGATE
SHARES PURCHASE
PRICE
L.P. 43,006
THL Co. - Investors III - A LLC 43,910 $904,865.69
THL Co. - Investors III - B LLC 28,185 580,825.30
DLJ Capital Corp. 10,568 217,752.91
Sprout Growth II, L.P. 457,319 9,424,167.36
The Sprout CEO Fund, L.P. 7,617 156,960.76
Ontario Teachers' Pension Plan Fund 493,115 10,161,797.96
30
EXHIBIT A
Certificate of Incorporation
31
