Exhibit 3
CONFORMED COPY
INVESTORS' AGREEMENT
dated as of
August 7, 1997
among
DECISIONONE HOLDINGS CORP.,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS II - A, L.P.,
DLJ OFFSHORE PARTNERS II, X.X.,
XXX XXXXXXXXXXX XXXXXXXX, X.X.,
XXX DIVERSIFIED PARTNERS - A, L.P.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS - A, L.P.,
DLJMB FUNDING II, INC.,
UK INVESTMENT PLAN 1997 PARTNERS,
DLJ EAB PARTNERS, L.P.,
DLJ FIRST ESC, LLC,
AND
CERTAIN OTHER PERSONS NAMED HEREIN
TABLE OF CONTENTS
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Page
ARTICLE 1 DEFINITIONS
Section 1.01. Definitions................................ 2
ARTICLE 2 CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.01. Composition of the Board................... 10
Section 2.02. Removal.................................... 10
Section 2.03. Vacancies.................................. 10
Section 2.04. Action by the Board........................ 11
Section 2.05. Conflicting Charter or Bylaw Provision..... 11
ARTICLE 3 RESTRICTIONS ON TRANSFER
Section 3.01. General.................................... 12
Section 3.02. Legends.................................... 12
Section 3.03. Permitted Transferees...................... 13
Section 3.04. Restrictions on Transfers by Institutional
Shareholders............................. 13
Section 3.05. Restrictions on Transfers by Management
Shareholders............................. 13
ARTICLE 4 TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE
RIGHTS
Section 4.01. Rights to Participate in Transfer.......... 15
Section 4.02. Right to Compel Participation in Certain
Transfers................................ 17
Section 4.03. Preemptive Rights.......................... 19
Section 4.04. Certain Other Purchases of Common Stock.... 20
ARTICLE 5 REGISTRATION RIGHTS
Section 5.01. Demand Registration........................ 21
Section 5.02. Piggyback Registration..................... 23
Section 5.04. Registration Procedures.................... 25
Section 5.05. Indemnification by the Company............. 29
Section 5.06. Indemnification by Participating
Shareholders............................. 29
Section 5.08. Contribution............................... 31
Section 5.09. Participation in Public Offering........... 33
Section 5.10. Cooperation by the Company................. 33
Section 5.11. No Transfer of Registration Rights......... 33
ARTICLE 6 CERTAIN COVENANTS AND AGREEMENTS
Section 6.01. Confidentiality............................ 33
Section 6.02. Reports.................................... 34
Section 6.03. Limitations on Subsequent Registration..... 35
Section 6.04. Exclusive Financial Advisor and
Investment Banking Advisor............... 35
Section 6.05. Limitation on Purchase of Common Stock..... 35
ARTICLE 7 MISCELLANEOUS
Section 7.01. Entire Agreement........................... 35
Section 7.02. Binding Effect; Benefit.................... 36
Section 7.03. Assignability.............................. 36
Section 7.04. Amendment; Waiver; Termination............. 36
Section 7.05. Notices.................................... 37
Section 7.06. Headings................................... 38
Section 7.07. Counterparts............................... 38
Section 7.08. Applicable Law............................. 38
Section 7.09. Specific Enforcement....................... 38
Section 7.10. Consent to Jurisdiction; Expenses.......... 39
Section 7.11. Severability............................... 39
INVESTORS' AGREEMENT
AGREEMENT dated as of August 7, 1997 among (i) DecisionOne
Holdings Corp. (the "COMPANY"), (ii) DLJ Merchant Banking
Partners II, L.P. ("DLJMB"), DLJ Offshore Partners II, C.V.,
DLJ Diversified Partners, L.P., DLJMB Funding II, Inc., DLJ
Merchant Banking Partners II - A, L.P., DLJ Diversified
Partners - A., L.P., DLJ Millennium Partners, L.P., DLJ
Millennium Partners - A, L.P., UK Investment Plan 1997
Partners, DLJ EAB Partners, L.P., and DLJ First ESC, LLC (each
a "DLJ ENTITY" and a "SHAREHOLDER" and collectively the "DLJ
ENTITIES"), (iii) Apollo Investment Fund III L.P. ("APOLLO
INVESTMENT"), Apollo Overseas Partners III L.P. ("APOLLO
OVERSEAS"), Apollo (U.K.) Partners III, L.P. ("APOLLO U.K."),
Xxxx Capital Fund V L.P. ("XXXX CAPITAL V"), Xxxx Capital Fund,
V-B, L.P. ("XXXX CAPITAL V-B"), BCIP Associates ("BCIP"), BCIP
Trust Associates L.P. ("BCIP TRUST"), Xxxxxx X. Xxx Equity Fund
III, L.P. ("THL"), Xxxxxx X. Xxx Foreign Fund III, L.P. ("THL
FOREIGN FUND"), THL Co-Investors III-A, LLC ("THL CO-INVESTORS
A"), THL Co-Investors III-B, LLC ("THL CO-INVESTORS B"), DLJ
Capital Corp. ("DLJ CAPITAL"), Sprout Growth II, L.P.
("SPROUT"), The Sprout CEO Fund, L.P. ("SPROUT CEO FUND"), and
Ontario Teachers' Pension Plan Board (each a "SHAREHOLDER" and
collectively, the Shareholders listed in this clause (iii) are
referred to as the "INSTITUTIONAL SHAREHOLDERS") and (iv)
certain other Persons listed on the signature pages hereof
(each a "SHAREHOLDER" and collectively, the "MANAGEMENT
SHAREHOLDERS").
W I T N E S S E T H :
WHEREAS, pursuant to the Subscription Agreement and the
DecisionOne Direct Investment Program (as defined below)
certain parties hereto are or will be acquiring securities of
Quaker Holding Co. and the Company, respectively; and
WHEREAS, pursuant to the terms of the Merger Agreement (as
defined below), Quaker Holding Co. will be merged with and into
the Company, with the Company as the surviving corporation (the
"MERGER");
WHEREAS, the parties hereto desire to enter into this
Agreement to govern certain of their rights, duties and
obligations after consummation of the transactions contemplated
by the Merger Agreement, the Subscription Agreement and the
DecisionOne Direct Investment Program;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.1. Definitions. (a) The following terms, as
used herein, have the following meanings:
"ADJUSTED INITIAL OWNERSHIP" means, with respect to any
Management Shareholder, the number of shares of Common Stock
and Common Stock Equivalents owned 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, taking into account
any stock split, stock dividend, reverse stock-split or similar
event.
"ADVERSE PERSON" means any Person whom the Board of
Directors of the Company determines is a competitor or a
potential competitor of the Company or its Subsidiaries.
"AFFILIATE" means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by, or
under common control with such Person, provided that no
securityholder of the Company shall be deemed an Affiliate of
any other securityholder solely by reason of any investment in
the Company. For the purpose of this definition, the term
"CONTROL" (including with correlative meanings, the terms
"CONTROLLING", "CONTROLLED BY" and "UNDER COMMON CONTROL
WITH"), as used with respect to any Person, shall mean the
possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such
Person, whether through the ownership of voting securities or
by contract or otherwise.
"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.
"APOLLO ENTITIES" means Apollo Investment, Apollo
Overseas, Apollo U.K. and their Permitted Transferees.
"BAIN ENTITIES" means Xxxx Capital V, Xxxx Capital V-B,
BCIP, BCIP Trust and their Permitted Transferees.
"BENEFICIALLY OWN" shall have the meaning set forth in
Rule 13d-3 of the Exchange Act.
"BOARD" means the board of directors of the Company.
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"BUSINESS DAY" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are
authorized by law to close.
"CHANGE OF CONTROL" means such time as (a) the DLJ
Entities shall own less than 20% of the outstanding shares of
Common Stock, (b) the transfer of all or substantially all of
the assets of the Company to any Person or group shall have
been consummated, or (c) the Company shall have been
liquidated.
"CLOSING DATE" means August 7, 1997.
"COMMON STOCK" shall mean the common stock, par value $.01
per share, of the Company and any stock into which such Common
Stock may thereafter be converted or changed.
"COMMON STOCK EQUIVALENT" means
(20.61 - P) x N
20.61
where "N" equals the number of Roll-Over Options, and "P"
equals the exercise price of such Roll-Over Option.
"DECISIONONE DIRECT INVESTMENT PROGRAM" means the
investment program of the Company pursuant to which certain
members of the Company's management will acquire shares of
Common Stock.
"DRAG-ALONG PORTION" means, with respect to any Other
Shareholder and any class of Common Stock, the number of such
class of Common Stock beneficially owned by such Other
Shareholder multiplied by a fraction, the numerator of which is
the number of such class of Common Stock proposed to be sold by
the DLJ Entities on behalf of the DLJ Entities and the Other
Shareholders and the denominator of which is the total number
of such class of Common Stock on a Fully Diluted basis
beneficially owned by the Shareholders.
"EQUITY SECURITIES" means the Common Stock, securities
convertible into or exchangeable for Common Stock and options,
warrants or other rights to acquire Common Stock, preferred
stock or any other equity security issued by the Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended.
"FIRST PUBLIC OFFERING" means the first sale after the
date hereof of
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Common Stock pursuant to an effective registration statement
under the Securities Act (other than a registration statement
on Form S-8 or any successor form).
"FULLY DILUTED" means all outstanding shares of Common
Stock and all shares issuable in respect of securities
convertible into or exchangeable for such Common Stock, stock
appreciation rights or options, warrants and other irrevocable
rights to purchase or subscribe for such Common Stock or
securities convertible into or exchangeable for such Common
Stock; provided that no Person shall be deemed to own such
number of Fully Diluted shares of any Common Stock as such
Person has the right to acquire from any Person other than the
Company.
"INITIAL OWNERSHIP" means, with respect to any
Shareholder, the number of shares of Common Stock beneficially
owned (and (without duplication) which such Persons have the
right to acquire from any Person) as of the 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, taking into account
any stock split, stock dividend, reverse stock split or similar
event.
"MERGER AGREEMENT" means the Agreement and Plan of Merger
dated as of May 4, 1997, as subsequently amended, between the
Company and Quaker Holding Co.
"OTHER SHAREHOLDERS" means all Shareholders other than the
DLJ Entities.
"PERCENTAGE OWNERSHIP" means, with respect to any
Shareholder at any time, (i) the number of shares of Fully
Diluted Common Stock that such Shareholder beneficially owns
(and (without duplication) has the right to acquire from any
Person) at such time, divided by (ii) the total number of
shares of Fully Diluted Common Stock at such time.
"PERMITTED TRANSFEREE" means (i) in the case of an
Institutional Shareholder (a) any general or limited partner or
shareholder of such Shareholder, and any corporation,
partnership or other entity that is an Affiliate of such
Shareholder (collectively, "SHAREHOLDER AFFILIATES"), (b) any
general partner, limited partner, employee, officer or director
of such Shareholder or a Shareholder 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, "SHAREHOLDER ASSOCIATES"), and (c) any trust,
the beneficiaries of which, or any corporation, limited
liability company or partnership, stockholders, members or
general or limited partners of
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which include only such Shareholder, such Shareholder
Affiliates or Shareholder Associates;
(ii) in the case of a Management Shareholder (a) any
other Shareholder, (b) a spouse or lineal descendant (whether
natural or adopted), sibling, parent, heir, executor,
administrator, testamentary trustee, legatee or beneficiary of
any of such Management Shareholder, (c) 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 the Persons named in
clauses (a) or (b) or (d) any charitable remainder trust; or
(iii) in the case of any DLJ Entity (A) any other DLJ
Entity, (B) any general or limited partner of any such entity
(a "DLJ PARTNER"), and any corporation, partnership, Affiliated
Employee Benefit Trust or other entity which is an Affiliate of
any DLJ Partner (collectively, the "DLJ AFFILIATES"), (C) any
managing director, general partner, director, limited partner,
officer or employee of such DLJ Entity or a 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"), and (D) any trust, the beneficiaries of which, or
any corporation, limited liability company or partnership, the
stockholders, members or general or limited partners of which,
include only such XXX Xxxxxx, XXX Xxxxxxxxxx, XXX Associates,
their spouses or their lineal descendants. The term "DLJ
ENTITIES", to the extent such entities shall have transferred
any of their Shares to "PERMITTED TRANSFEREES", shall mean the
DLJ Entities and the Permitted Transferees of the DLJ Entities,
taken together, and any right or action that may be exercised
or taken at the election of the DLJ Entities may be exercised
or taken at the election of the DLJ Entities and such Permitted
Transferees.
"PERSON" means an individual, corporation, limited
liability company, partnership, association, trust or other
entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"PRO RATA PORTION" means the number of Shares a
Shareholder holds (either Purchased Shares or non-Purchased
Shares, as the case may be) multiplied by a fraction, the
numerator of which is the number of Shares to be sold by the
DLJ Entities and the Institutional Shareholders and their
Permitted Transferees in a Public Offering and the denominator
of which is the total number of Shares, on a Fully Diluted
basis, held in the aggregate by the DLJ Entities and the
Institutional Shareholders and their Permitted Transferees
prior to such Public Offering.
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"PUBLIC OFFERING" means any primary or secondary public
offering of Common Stock pursuant to an effective registration
statement under the Securities Act other than pursuant to a
registration statement filed in connection with a transaction
of the type described in Rule 145 of the Securities Act or for
the purpose of issuing securities pursuant to an employee
benefit plan.
"PURCHASED SHARES" means those Shares purchased by a
Management Shareholder on the Closing Date for cash and/or with
the proceeds of a promissory note of the type contemplated by
the DecisionOne Direct Investment Plan.
"REGISTRABLE SECURITIES" means at any time, with respect
to any Shareholder or its Permitted Transferees, any shares of
Common Stock then owned by such Shareholder or its Permitted
Transferees until (i) a registration statement covering such
securities has been declared effective by the SEC and such
securities have been disposed of pursuant to such effective
registration statement, (ii) such securities are sold 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 such securities may be sold pursuant
to Rule 144(k) or (iii) such securities are otherwise
transferred, the Company has delivered a new certificate or
other evidence of ownership for such securities not bearing the
legend required pursuant to this Agreement and such securities
may be resold without subsequent registration under the
Securities Act.
"REGISTRATION EXPENSES" means (i) all registration and
filing fees, (ii) fees and expenses of compliance with
securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky
qualifications of the securities registered), (iii) printing
expenses, (iv) internal expenses of the Company (including,
without limitation, all salaries and expenses of its officers
and employees performing legal or accounting duties), (v)
reasonable fees and disbursements of counsel for the Company
and customary fees and expenses for independent certified
public accountants retained by the Company (including expenses
relating to any comfort letters or costs associated with the
delivery by independent certified public accountants of a
comfort letter or comfort letters requested pursuant to Section
5.04(g) hereof), (vi) the reasonable fees and expenses of any
special experts retained by the Company in connection with such
registration, (vii) reasonable fees and expenses of up to one
counsel for the Shareholders participating in the offering,
(viii) fees and expenses in connection with any review of
underwriting arrangements by the National Association of
Securities Dealers, Inc. (the "NASD") including fees and
expenses of any "qualified independent underwriter" and (ix)
fees and disbursements of
6
underwriters customarily paid by issuers or sellers of
securities, but shall not include any underwriting fees,
discounts or commissions attributable to the sale of
Registrable Securities, or any out-of-pocket expenses (except
as set forth in clause (vii) above) of the Shareholders or any
fees and expenses of underwriter's counsel.
"RESTRICTION TERMINATION DATE" means the fourth
anniversary of the Closing Date.
"ROLL-OVER OPTION" means an option granted by the Company
to a Management Shareholder prior to the Merger which option,
at the effective time of the Merger, was converted into an
option to purchase shares of Common Stock of the surviving
corporation.
"SECTION 4.03 PORTION" means the pro rata portion of any
Equity Securities proposed to be issued by the Company with
respect to which Shareholders shall be entitled to exercise
their rights under Section 4.03,
(a) in the case of any Institutional Shareholder, based
upon such Institutional Shareholder's Initial Ownership of
shares of Common Stock as a percentage of the sum of (i) the
Initial Ownership of Common Stock of the DLJ Entities and all
Institutional Stockholders and (ii) the Adjusted Initial
Ownership of all Management Stockholders, or
(b) in the case of any Management Shareholder, based upon
such Management Shareholder's Adjusted Initial Ownership of
shares of Common Stock as a percentage of the sum of (i) the
Initial Ownership of the DLJ Entities and the Institutional
Shareholders and (ii) the Adjusted Initial Ownership of all
Management Shareholders.
"SECTION 4.04 PORTION" means, with respect to any
Shareholder at any time, the number of shares of common stock
purchased by DLJ Entities in a transaction subject to Section
4.04, multiplied by a fraction, the numerator of which is (i)
the number of shares of Common Stock on a Fully Diluted basis
that such Shareholder beneficially owns at such time, and the
denominator of which is (ii) the total number of shares of
Common Stock on a Fully Diluted basis beneficially owned at
such time by all Other Shareholders and the DLJ Entities.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
7
"SHAREHOLDER" means each Person (other than the Company)
who shall be a party to this Agreement, whether in connection
with the execution and delivery hereof as of the date hereof,
pursuant to Section 7.03 or otherwise, so long as such Person
shall beneficially own any Common Stock.
"SHARES" means shares of Common Stock held by the
Shareholders.
"SPROUT ENTITIES" means DLJ Capital, Sprout, Sprout CEO
Fund, and their Permitted Transferees.
"SUBJECT SECURITIES" means the Common Stock beneficially
owned by the Management Shareholders and Institutional
Shareholders to be transferred in a Section 4.02 Sale.
"SUBSCRIPTION AGREEMENT" means the Subscription Agreement
of even date herewith among Quaker Holding Co., the DLJ
Entities and the Institutional Investors.
"SUBSIDIARY" means, with respect to any Person, any entity
of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at
the time directly or indirectly owned by such Person.
"THL ENTITIES" means THL, THL Foreign Fund, THL Co-
Investors A, THL Co-Investors B, and their Permitted
Transferees.
"TAG-ALONG PORTION" means the number of shares of Common
Stock held (or, without duplication, that such Shareholder has
the right to acquire from any Person) by the Tagging Person or
the Selling Person, as the case may be, multiplied by a
fraction, the numerator of which is the number of shares of
Common Stock proposed to be sold by the Selling Person pursuant
to Section 4.01, and the denominator of which is the aggregate
number of shares of Common Stock on a Fully Diluted basis owned
by all Shareholders.
"THIRD PARTY" means a prospective purchaser of Common
Stock in an arm's-length transaction from a Shareholder where
such purchaser is not a Permitted Transferee of such
Shareholder.
"UNDERWRITTEN PUBLIC OFFERING" means a firmly underwritten
public offering of Registrable Securities of the Company
pursuant to an effective registration statement under the
Securities Act.
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(b) Each of the following terms is defined in the Section
set forth opposite such term:
TERM SECTION
Cause 2.02
Confidential Information 6.01(b)
Demand Registration 5.01(a)
Drag-Along Rights 4.02(a)
Holders 5.01(a)(ii)
Incidental Registration 5.02(a)
Indemnified Party 5.07
Indemnifying Party 5.07
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Nominee 2.03(a)
Piggyback Registration 5.02(a)
Public Offering Limitations 3.05(a)
Records 5.04(g)
Representatives 6.01(b)
Section 4.01 Response Notice 4.01(a)
Section 4.02 Sale 4.02(a)
Section 4.02 Notice 4.02(a)
Section 4.02 Sale Price 4.02(a)
Section 4.02 Notice Period 4.02(a)
Section 4.03 Notice 4.03
Section 4.03 Portion 4.03
Section 4.04 Notice 4.04
Selling Person 4.01(a)
Selling Shareholder 5.01(a)
Shareholder 7.03
Tag-Along Notice 4.01(a)
Tag-Along Notice Period 4.01(a)
Tag-Along Offer 4.01(a)
Tag-Along Right 4.01(a)
Tag-Along Sale 4.01(a)
Tagging Person 4.01(a)
Transfer 3.01(a)
Trigger Date 6.05
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ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.1. Composition of the Board. The Board shall
consist of seven members, of whom four shall be nominated by
DLJMB, two shall be nominated by DLJMB and shall be individuals
which are not "Affiliates" or "Associates" (as those terms are
used within the meaning of Rule 12b-2 of the General Rules
and Regulations under the Exchange Act) of any Shareholder or
its Affiliates, and one shall be nominated by the Management
Shareholders. Each Shareholder entitled to vote for the
election of directors to the Board agrees that it will vote its
shares of Common Stock or execute consents, as the case may be,
and take all other necessary action (including causing the
Company to call a special meeting of shareholders) in order to
ensure that the composition of the Board is as set forth in
this Section 2.01; provided that, no Shareholder shall be required
to vote for another Shareholder's nominee(s) if the number of
shares of Common Stock held by the Shareholder or group of
Shareholders, as applicable, making the nomination (or, in the
case of a nomination by DLJMB, of the DLJ Entities) is, at the
close of business on the day preceding such vote or execution
of consents, less than 10% of such Shareholder's or group of
Shareholders' (or the DLJ Entities'), as applicable, Initial
Ownership of Common Stock on a Fully Diluted basis.
Section 2.2. Removal. Each Shareholder agrees that if,
at any time, it is then entitled to vote for the removal of
directors of the Company, it will not vote any of its shares of
Common Stock in favor of the removal of any director who shall
have been designated or nominated pursuant to Section 2.01 unless
such removal shall be for Cause or the Person(s) entitled to
designate or nominate such director shall have consented to
such removal in writing, provided that if the Persons entitled
to designate or nominate any director pursuant to Section 2.01
shall request the removal, with or without Cause, of such
director in writing, such Shareholder shall vote its shares of
Common Stock in favor of such removal. Removal for "CAUSE"
shall mean removal of a director because of such director's (a)
willful and continued failure substantially to perform his
duties with the Company in his established position, (b)
willful conduct which is injurious to the Company or any of its
Subsidiaries, monetarily or otherwise, (c) conviction for, or
guilty plea to, a felony or a crime involving moral turpitude,
or (d) abuse of illegal drugs or other controlled substances or
habitual intoxication.
Section 2.3. Vacancies. If, as a result of death,
disability, retirement, resignation, removal (with or without
Cause) or otherwise, there shall exist or
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occur any vacancy on the Board:
(a) The Shareholder(s) entitled under Section 2.01 to
nominate such director whose death, disability, retirement,
resignation or removal resulted in such vacancy, may, subject
to the provisions of Section 2.01, nominate another individual (the
"NOMINEE") to fill such vacancy and serve as a director of the
Company; and
(b) each Shareholder then entitled to vote for the
election of the Nominee as a director of the Company agrees
that it will vote its shares of Common Stock, or execute a
written consent, as the case may be, in order to ensure that
the Nominee be elected to the Board; provided that, no
Shareholder shall be required to vote for another party's
Nominee(s) if the Percentage Ownership of the Shareholder or
group of Shareholders, as applicable, making the nomination
(or, in the case of a nomination by DLJMB, of the DLJ
Entities), at the close of business of the day preceding such
vote or execution of consents, is less than 10% on a Fully
Diluted basis of such Shareholder's or group of Shareholders'
(or the DLJ Entities'), as applicable, Initial Ownership of
Common Stock.
Section 2.4. Action by the Board. (a) A quorum of the
Board shall consist initially of four directors; provided that
DLJMB shall have the right, in its sole discretion, until such
time as the Percentage Ownership of the DLJ Entities is less
than 10% on a Fully Diluted basis of the DLJ Entities' Initial
Ownership of Common Stock, to increase or decrease the number
of directors necessary to constitute a quorum.
(b) All actions of the Board shall require the
affirmative vote of at least a majority of the directors at a
duly convened meeting of the Board at which a quorum is present
or the unanimous written consent of the Board; provided that,
in the event there is a vacancy on the Board and an individual
has been nominated to fill such vacancy, the first order of
business shall be to fill such vacancy.
Section 2.5. Conflicting Charter or Bylaw Provision.
Each Shareholder shall vote its shares of Common Stock, and
shall take all other actions reasonably necessary, to ensure
that the Company's certificate of incorporation and bylaws
(copies of which are attached hereto as Exhibits A and B)
facilitate and do not at any time conflict with any provision
of this Agreement.
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ARTICLE 3
RESTRICTIONS ON TRANSFER
Section 3.1. General. (a) Each Shareholder understands
and agrees that the Common Stock purchased pursuant to the
Subscription Agreement or the DecisionOne Direct Investment
Program have not been registered under the Securities Act and
are restricted securities. Each Shareholder agrees that it
will not, directly or indirectly, sell, assign, transfer, grant
a participation in, pledge or otherwise dispose of ("TRANSFER")
any Common Stock (or solicit any offers to buy or otherwise
acquire, or take a pledge of any Common Stock) except in
compliance with the Securities Act and the terms and conditions
of this Agreement.
(b) Any attempt to transfer any Common Stock not in
compliance with this Agreement shall be null and void and the
Company shall not, and shall cause any transfer agent not to,
give any effect in the Company's stock records to such
attempted transfer.
Section 3.2. Legends. (a) In addition to any other
legend that may be required, each certificate for shares of
Common Stock that is issued to any Shareholder shall bear a
legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY 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 7, 1997, COPIES OF WHICH MAY BE
OBTAINED UPON REQUEST FROM DECISIONONE HOLDINGS CORP. OR ANY
SUCCESSOR THERETO."
(b) If any Common Stock 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 shares without the first sentence of the legend
required by Section 3.02(a) endorsed thereon. If any Common Stock
cease to be subject to any and all restrictions on transfer set
forth in this Agreement, the Company shall, upon the written
request of the holder thereof, issue to such holder a new
certificate evidencing such Common Stock without the second
sentence of the legend required by Section 3.02(a) endorsed thereon.
12
Section 3.3. Permitted Transferees. Notwithstanding
anything in this Agreement to the contrary, any Shareholder may
at any time transfer any or all of its Common Stock to one or
more of its Permitted Transferees without the consent of the
Board or any other Shareholder or group of Shareholders and
without compliance with Sections 3.04, 3.05 and 4.01 so long as (a)
such Permitted Transferee shall have agreed in writing to be bound
by the terms of this Agreement and (b) the transfer to such
Permitted Transferee is not in violation of applicable federal
or state securities laws.
Section 3.4. Restrictions on Transfers by Institutional
Shareholders. (a) Except as provided in Section 3.03,
each Institutional Shareholder and each Permitted Transferee of
such Institutional Shareholder may transfer its Common Stock
only as follows:
(i) in a transfer made in compliance with Section 4.01
or 4.02;
(ii) in a Public Offering in connection with the
exercise of its rights under Article 5 hereof; or
(iii) following the earlier to occur of (i) the date
on which the Percentage Ownership of such Institutional
Shareholder is less than 25% of its Initial Ownership of
Common Stock and (ii) the seventh anniversary of the
Closing Date, to any Person other than any Adverse Person.
(b) The restrictions set forth in Section 3.04(a)(i) and (a)(ii)
shall terminate at such time as aggregate Percentage Ownership
of the DLJ Entities and their Permitted Transferees is equal to
or less than 50% of the aggregate Initial Ownership of Common
Stock of DLJ Entities.
Section 3.5. Restrictions on Transfers by Management
Shareholders. (a) Except as provided in Section 3.03, each
Management Shareholder and each Permitted Transferee of such
Management Shareholder may transfer its Common Stock only as
follows:
(i) in a transfer made in compliance with Section
4.01 or 4.02;
(ii) subject to the Public Offering Limitations (as
defined below), in a Public Offering in connection with
the exercise of its rights under Article 5 hereof;
13
(iii) 180 days following a Public Offering, to any
Third Party, in a transfer made in compliance with Rule
144 promulgated under the Securities Act; provided,
however, that until the Restriction Termination Date, the
Percentage Ownership of such Management Shareholder as a
result of such transfer shall be equal to or exceed the
greater of (x) 50% of such Management Shareholder's
Initial Ownership of Common Stock and (y) a percentage of
such Management Shareholder's Initial Ownership equal to
the Remaining Percentage. For purposes of this Section
3.05(a)(iii), "REMAINING PERCENTAGE" means the Percentage
Ownership of the DLJ Entities and the Institutional Investors
immediately prior to such proposed transfer pursuant to
this Section 3.05(a)(iii) calculated by subtracting from the
Initial Ownership of the DLJ Entities and the Institutional
Investors the number of shares of Common Stock theretofore
transferred by the DLJ Entities and the Institutional
Investors; or
(iv) following the Restriction Termination Date, to
any Third Party other than an Adverse Person for
consideration consisting solely of cash, provided,
however, that the number of Shares transferred by such
Management Shareholder pursuant to this Section 3.05(a)(iv)
in any twelve-month period shall not exceed 20% of such
Management Shareholder's Percentage Ownership at the
beginning of such twelve month period.
For purposes of this Agreement, "PUBLIC OFFERING
LIMITATIONS" means (A) except as set forth in the proviso at
the end of this paragraph, no Management Shareholder shall be
permitted to exercise its rights under Section 5.02 hereof (x)
with respect to the First Public Offering and (y) until such
time as the Percentage Ownership of the DLJ Entities and the
Institutional Shareholders and their Permitted Transferees
shall be less than 50% of their aggregate Initial Ownership of
Common Stock and (B) in each Public Offering following the
First Public Offering, such Management Shareholder shall be
entitled to transfer a number of Shares not exceeding such
Management Shareholder's Pro Rata Portion of non-Purchased
Shares; provided, however, that notwithstanding the
restrictions set forth in clauses (A) and (B), each Management
Shareholder shall be permitted to exercise its rights pursuant
to Section 5.02 hereof in respect of such Management Shareholder's
Pro Rata Portion of its Purchased Shares in any Public Offering
and transfer such Purchased Shares pursuant to Section
3.05(a)(ii).
(b) The provisions of Section 3.05(a) shall terminate
upon the earliest to occur of (i) one or more Public Offerings
of Shares yielding aggregate gross proceeds of at least
$100,000,000, (ii) the fourth anniversary of the Closing Date
and (iii) a Change of Control. Notwithstanding the foregoing
sentence, the
14
provisions of Section 3.05(a) shall not terminate with respect
to any Management Shareholder's Shares which shall have been
pledged to the Company as security in connection with any
indebtedness for borrowed money owed by such Management
Shareholder to the Company unless the proceeds from the sale of
such Shares, net of any taxes due on such proceeds, are applied
to repay the such indebtedness in full.
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
Section 4.1. Rights to Participate in Transfer. (a) If
DLJ Entities (the "SELLING PERSON") propose to transfer (other
than transfers of shares of Common Stock (i) in a Public
Offering, (ii) to any Permitted Transferee of any of the DLJ
Entities or (iii) up to 2.5% in the aggregate of the securities
of such class outstanding on the date of the first transfer of
any shares of Common Stock by any of the DLJ Entities (such
percentage, the "FREE PERCENTAGE")), in a transaction otherwise
permitted by Article 3 hereof, (a "TAG-ALONG SALE"), the Other
Shareholders may, at their option, elect to exercise their
rights under this Section 4.01 (each such Shareholder, a
"TAGGING PERSON"). In the event of such a proposed transfer,
the Selling Person shall provide each Other Shareholder 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 of shares of Common Stock subject to
the offer ("TAG-ALONG OFFER"), the cash 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 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 Selling Person within 5 Business Days
(the "TAG-ALONG NOTICE PERIOD"), to request that the Selling
Person include in the proposed transfer the number of Shares
held by such Tagging Person as is specified in such notice;
provided that if the aggregate number of Shares proposed to be
sold by the Selling Person and all Tagging Persons in such
transaction exceeds the number of Shares which can be sold on
the terms and conditions set forth in the Tag-Along Notice,
then only the Tag-Along Portion of Shares of the Selling Person
and each Tagging Person shall be sold pursuant to the Tag-Along
Offer. In the event the DLJ Entities shall propose to transfer
a number of Shares in excess of the Free Percentage, the Tag-
Along Portion shall be calculated with respect to all of the
15
Shares proposed to be transferred by the DLJ Entities. If the
Tagging Persons exercise their Tag-Along Rights hereunder, each
Tagging Person shall deliver, together with its Section 4.01
Response Notice, to the Selling Person the certificate or
certificates representing the Shares of such Tagging Person to
be included in the transfer, together with a limited
power-of-attorney authorizing the Selling Person to transfer
such Shares on the terms set forth in the Tag-Along Notice. It
is understood that to the extent the DLJ Entities can do so
without affecting the other terms on which the Tag-Along Sale
is proposed to be made, the DLJ Entities will seek to exclude
from the terms of such Tag-Along Sale any material restrictions
on the ability, following such Tag-Along Sale, of any Tagging
Person to conduct its business in a manner consistent with past
practice. Delivery of such certificate or certificates
representing the Shares to be transferred and the limited
power-of-attorney authorizing the Selling Person to transfer
such Shares shall constitute an irrevocable acceptance of the
Tag-Along Offer by such Tagging Persons. If, at the end of a
120 day period after such delivery, the Selling Person has not
completed the transfer of all such Shares on substantially the
same terms and conditions set forth in the Tag-Along Notice,
the Selling Person shall return to each Tagging Person the
limited power-of-attorney (and all copies thereof) together
with all certificates representing the Shares which such
Tagging Person delivered for transfer pursuant to this Section
4.01.
(b) Concurrently with the consummation of the Tag-Along
Sale, the Selling Person shall notify the Tagging Persons
thereof, shall remit to the Tagging Persons the total
consideration (by bank or certified check) for the Shares of
the Tagging Persons transferred pursuant thereto, and shall,
promptly after the consummation of such Tag-Along Sale furnish
such other evidence of the completion and time of completion of
such transfer and the terms thereof as may be reasonably
requested by the Tagging Persons.
(c) If at the termination of the Tag-Along Notice Period
any Tagging Person shall not have elected to participate in the
Tag-Along Sale, such Tagging Person will be deemed to have
waived its rights under Section 4.01(a) with respect to the transfer
of its securities pursuant to such Tag-Along Sale.
(d) If any Tagging Person declines to exercise its Tag-
Along Rights or elects to exercise its Tag-Along Rights with
respect to less than such Tagging Person's Tag-Along Portion,
the DLJ Entities shall be entitled to transfer, pursuant to the
Tag-Along Offer, a number of Shares held by the DLJ Entities
equal to the number of Shares constituting the portion of such
Tagging Person's Tag-Along Portion with respect to which Tag-
Along Rights were not exercised.
16
(e) The DLJ Entities and any Tagging Person who
exercises the Tag-Along Rights pursuant to this Section 4.01 may
sell the Shares subject to the Tag-Along Offer on the terms and
conditions set forth in the Tag-Along Notice (provided,
however, that the cash price payable in any such sale may
exceed the cash price specified in the Tag-Along Notice by up
to 10%) within 120 days of the date on which Tag-Along Rights
shall have been waived, exercised or expire.
Section 4.2. 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 Common Stock to
a Third Party in a bona fide sale, (ii) the DLJ Entities
propose a transfer in which the Shares to be transferred by the
DLJ Entities, the Institutional Shareholders and their
Permitted Transferees constitute more than 50% of the
outstanding shares of Common Stock (a "SECTION 4.02 SALE"), the
DLJ Entities may at their option require all Other Shareholders
to sell the Subject Securities ("DRAG-ALONG RIGHTS") then held
by every Other Shareholder, and (subject to and at the closing
of the Section 4.02 Sale) to exercise all, but not less than all,
of the options held by every Other Shareholder and to sell all
of the shares of Common Stock received upon such exercise to
such Third Party, for the same consideration per share of
Common Stock and otherwise on the same terms and conditions as
the DLJ Entities; provided that any Other Shareholder who holds
options the exercise price per share of which is greater than
the per share price at which the 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. In the event the Section 4.02
Sale is not consummated with respect to any shares acquired
upon exercise of such options, or the Section 4.02 Sale is not
consummated, such options shall be deemed not to have been
exercised or cancelled, as applicable. DLJMB shall provide
written notice of such Section 4.02 Sale to the Other Shareholders
(a "SECTION 4.02 NOTICE") not later than the 15th day prior to
the proposed Section 4.02 Sale. The Section 4.02 Notice shall identify
the transferee, the number of Subject Securities, the
consideration for which a transfer is proposed to be made (the
"SECTION 4.02 SALE PRICE") and all other material terms and
conditions of the Section 4.02 Sale. The number of shares of
Common Stock to be sold by each Other Shareholder will be the
Drag-Along Portion of the shares of Common Stock that such
Other Shareholder owns. Subject to Section 4.02(d), each Other
Shareholder shall be required to participate in the Section
4.02 Sale on the terms and conditions set forth in the Section
4.02 Notice and to tender all its Subject Securities as set
forth below. It is understood that to the extent the DLJ
Entities can do so without affecting the other terms on which
the Section 4.02 Sale is proposed to be made, the DLJ Entities
will seek to exclude from the terms of such
17
Section 4.02 Sale any material restrictions on the ability,
following such Section 4.02 Sale, of any Other Shareholder to
conduct its business in a manner consistent with past practice.
The price payable in such transfer shall be the Section 4.02
Sale Price. Not later than the 10th day following the date of
the Section 4.02 Notice (the "SECTION 4.02 NOTICE PERIOD"), each
of the Other Shareholders shall deliver to a representative of
DLJMB designated in the Section 4.02 Notice certificates
representing all Subject Securities held by such Other
Shareholder, duly endorsed, together with all other documents
required to be executed in connection with such Section 4.02 Sale
or, if such delivery is not permitted by applicable law, an
unconditional agreement to deliver such Subject Securities
pursuant to this Section 4.02 at the closing for such Section 4.02 Sale
against delivery to such Other Shareholder of the consideration
therefor. If an Other Shareholder should fail to deliver such
certificates to DLJMB, the Company shall cause the books and
records of the Company to show that such Subject Securities are
bound by the provisions of this Section 4.02 and that such Subject
Securities shall be transferred to the purchaser of the Subject
Securities immediately upon surrender for transfer by the
holder thereof.
(b) The DLJ Entities shall have a period of 90 days from
the date of receipt of the Section 4.02 Notice to consummate
the Section 4.02 Sale on the terms and conditions set forth in
such Section 4.02 Sale Notice. If the Section 4.02 Sale shall
not have been consummated during such period, DLJMB shall
return to each of the Other Shareholders all certificates
representing Shares that such Other Shareholder delivered for
transfer pursuant hereto, together with any documents in the
possession of DLJMB executed by the Other Shareholder in
connection with such proposed transfer, and all the
restrictions on transfer contained in this Agreement or
otherwise applicable at such time with respect to Common Stock
owned by the Other Shareholders shall again be in effect.
(c) Concurrently with the consummation of the transfer of
Shares pursuant to this Section 4.02, DLJMB shall give notice
thereof to all Shareholders, shall remit to each of the
Shareholders who have surrendered their certificates the total
consideration (by bank or certified check) for the Shares
transferred pursuant hereto and shall furnish such other
evidence of the completion and time of completion of such
transfer and the terms thereof as may be reasonably requested
by such Shareholders.
(d) Notwithstanding any provision of this Agreement to
the contrary, in the event the terms on which a Section 4.02
Sale is proposed to be made shall include a provision which
materially and adversely affects the ability of any Other
Shareholder to compete in any line of business or geographic
area, such Other
18
Shareholder shall not be required to participate in the Section
4.02 Sale on the terms and conditions set forth in the Section
4.02 Notice. In the event any Shareholder shall elect,
pursuant to the preceding sentence, not to participate in the
Section 4.02 Sale, the DLJ Entities shall have the right to
purchase, and such Shareholder shall be obligated to sell to
the DLJ Entities, such Shareholder's Subject Securities, at the
Section 4.02 Sale Price and on substantially the same terms
(other than any such non-compete provision), not later than
immediately prior to the consummation of the Section 4.02 Sale.
Section 4.3. Preemptive Rights. (a) The Company shall
provide each Shareholder with a written notice (a "SECTION 4.03
NOTICE") of any proposed issuance by the Company of Equity
Securities at least 10 days prior to the proposed issuance
date. Such notice shall specify the price at which the Equity
Securities are to be issued and the other material terms of the
issuance. In the event the DLJ Entities propose to purchase
any such Equity Securities from the Company, each Other
Shareholder shall be entitled to purchase, at the price and on
the terms at which the DLJ Entities propose to purchase such
Equity Securities and specified in such Section 4.03 Notice, such
Shareholder's Section 4.03 Portion of the Equity Securities
proposed to be issued. A Shareholder may exercise its rights
under this Section 4.03 by delivering written notice of its
election to purchase Equity Securities to the Company, DLJMB
and each Other Shareholder within 5 days of receipt of the
Section 4.03 Notice. A delivery of such a written notice (which
notice shall specify the number of shares (or amount) of Equity
Securities to be purchased by the Shareholder submitting such
notice) by such Shareholder shall constitute a binding
agreement of such Shareholder to purchase, subject to the
purchase by the DLJ Entities of their portion of such Equity
Securities, at the price and on the terms specified in the
Section 4.03 Notice, the number of shares (or amount) of Equity
Securities specified in such Shareholder's written notice. In
the event the Equity Securities proposed to be issued by the
Company are not shares of Common Stock, it shall be a condition
to the consummation of the purchase of such Equity Securities
pursuant to this Section 4.03 by any Shareholder that such
Shareholder shall execute an amendment of this Agreement on the
terms consistent with this Agreement reasonably satisfactory to
the Company and the DLJ Entities.
(b) In the event any Other Shareholder declines to
exercise its preemptive rights under this Section 4.03 or
elects to exercise such rights with respect to less than such
Shareholder's Section 4.03 Portion, the DLJ Entities shall be
entitled to purchase from the Company the number of Equity
Securities constituting the Section 4.03 Portion with respect to
which such Other Shareholder shall not have exercised its
preemptive rights.
19
(c) In the case of any issuance of Equity Securities, the
Company shall have 90 days from the date of the Section 4.03
Notice to consummate the proposed issuance of any or all of
such Equity Securities which the Shareholders have not elected
to purchase at the price and upon terms that are not materially
less favorable to the Company than those specified in the
Section 4.03 Notice. At the consummation of such issuance, the
Company shall issue certificates representing the Equity
Securities to be purchased by each Shareholder exercising
preemptive rights pursuant to this Section 4.03 registered in
the name of such Shareholder, against payment by such
Shareholder of the purchase price for such Equity Securities.
If the Company proposes to issue Equity Securities after such
90-day period, it shall again comply with the procedures set
forth in this Section.
(d) Notwithstanding the foregoing, no Shareholder shall
be entitled to purchase Equity Securities as contemplated by
this Section 4.03 in connection with issuances of Equity Securities
(i) to employees of the Company or any Subsidiary pursuant to
employee benefit plans or arrangements approved by the Board
(including upon the exercise of employee stock options), (ii)
in connection with any bona fide, arm's-length restructuring of
outstanding debt of the Company or any Subsidiary, or (iii) in
connection with any bona fide, arm's-length direct or indirect
merger, acquisition or similar transaction. The Company shall
not be under any obligation to consummate any proposed issuance
of Equity Securities, regardless of whether it shall have
delivered a Section 4.03 Notice in respect of such proposed
issuance.
(e) The Company will use its reasonable best efforts to
provide the Section 4.03 Notice at least 15 Business Days prior to
any proposed issuance of Equity Securities. In the event it is
impracticable to provide the Section 4.03 Notice at least 15
Business Days prior to such issuance, any Shareholder may offer
to finance or arrange to finance the purchase by any other
Shareholder of such other Shareholder's Section 4.03 Portion and
such financing or arranging Shareholder shall be entitled to
receive as compensation for such services reasonable and
customary fees and expenses. No Shareholder shall be under any
obligation to provide or arrange such financing for any other
Shareholder.
Section 4.4. Certain Other Purchases of Common Stock. In
the event, at any time prior to the Trigger Date, the DLJ
Entities shall acquire any shares of Common Stock from any
Person other than the Shareholders, the DLJ Entities shall
deliver, within five Business Days of the date of such
acquisition, a notice to each Other Shareholder (a "SECTION
4.04 NOTICE") specifying the number of shares of Common Stock
acquired and the weighted average of price per share paid by
20
the DLJ Entities. Such Section 4.04 Notice shall constitute an
offer to each such Other Shareholder to purchase such
Shareholder's Section 4.04 Portion of the number of shares of
Common Stock acquired by the DLJ Entities. A Shareholder may
exercise its rights under this Section 4.04 by delivering written
notice of its election to purchase its Section 4.04 Portion
within 10 days of receipt of the Section 4.04 Notice. A
delivery of such written notice (which shall specify the number
of shares of Common Stock to be purchased by the Shareholder
submitting such notice) by such Shareholder shall constitute a
binding agreement of such Shareholder to purchase, at the price
and on the terms specified in the Section 4.04 Notice, the
number of shares of Common Stock specified in such notice. At
the consummation of the transfer of the shares of Common Stock
purchased by the DLJ Entities to any Shareholder that shall
have exercised its rights hereunder, the DLJ Entities shall
deliver to such Shareholder certificates representing the
shares of Common Stock to be purchased against payment by such
Shareholder of the purchase price for such shares of Common
Stock.
ARTICLE 5
REGISTRATION RIGHTS
Section 5.1. Demand Registration. (a) If the Company shall
receive a written request by the DLJ Entities or their Permitted
Transferees (any such requesting Person, a "SELLING SHAREHOLDER")
that the Company effect the registration under the Securities Act
of all or a portion of such Selling Shareholder's Registrable
Securities, and specifying the intended method of disposition
thereof, then the Company shall promptly give written notice of
such requested registration (a "DEMAND REGISTRATION") at least 5
days prior to the anticipated filing date of the registration
statement relating to such Demand Registration to the Other
Shareholders and thereupon will use its best efforts to effect, as
expeditiously as possible, the registration under the Securities
Act of:
(i) the Registrable Securities which the Company has
been so requested to register by the Selling Shareholders,
then held by the Selling Shareholders; and
(ii) subject to the restrictions set forth in Section
5.02, all other Registrable Securities of the same type as
that to which the request by the Selling Shareholders
relates which any Other Shareholder entitled to request
the Company to effect a Piggyback Registration (as such
term is
21
defined in Section 5.02) pursuant to Section 5.02 (all
such Shareholders, together with the Selling Shareholders,
the "HOLDERS") has requested the Company to register by
written request received by the Company within 2 days (one
of which shall be a Business Day) after the receipt by
such Holders of such written notice given by the Company,
all to the extent necessary to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of
the Registrable Securities so to be registered; provided that,
subject to Section 5.01(d) hereof, the Company shall not be obligated
to effect more than six Demand Registrations for the DLJ
Entities; and provided further that the Company shall not be
obligated to effect a Demand Registration unless the aggregate
proceeds expected to be received from the sale of the Common
Stock requested to be included in such Demand Registration, in
the reasonable opinion of DLJMB exercised in good faith, equals
or exceeds (x) $50,000,000 if such Demand Registration would
constitute the First Public Offering, or (y) $10,000,000 in all
other cases. In no event will the Company be required to
effect more than one Demand Registration within any four-month
period.
(b) Promptly after the expiration of the 2-day period
referred to in Section 5.01(a)(ii) hereof, the Company will notify all
the Holders to be included in the Demand Registration of the other
Holders and the number of Registrable Securities requested to
be included therein. The Selling Shareholders requesting a
registration under Section 5.01(a) may, at any time prior to the
effective date of the registration statement relating to such
registration, revoke such request, without liability to any of
the other Holders, by providing a written notice to the Company
revoking such request, in which case such request, so revoked,
shall be considered a Demand Registration unless such
revocation arose out of the fault of the Company or unless the
participating Shareholders reimburse the Company for all costs
incurred by the Company in connection with such registration,
in which case such request shall not be considered a Demand
Registration.
(c) The Company will pay all Registration Expenses in
connection with any Demand Registration.
(d) A registration requested pursuant to this Section 5.01
shall not be deemed to have been effected (i) 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 (or such shorter
period in which all Registrable Securities of the Holders
included in such registration have actually been sold
thereunder); provided that if after any registration statement
requested pursuant to
22
this Section 5.01 becomes effective (x) such registration
statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental
agency or court and (y) less than 75% of the Registrable
Securities included in such registration statement has been
sold thereunder, such registration statement shall not be
considered a Demand Registration, or (ii) if the Maximum
Offering Size (as defined below) is reduced in accordance with
Section 5.01(e) such that less than 66 2/3% of the Registrable
Securities of the Selling Shareholders sought to be included in
such registration are included.
(e) If a Demand Registration involves an Underwritten
Public Offering and the managing underwriter shall advise the
Company and the Selling Shareholders that, in its view, (i) the
number of shares of Registrable Securities requested to be
included in such registration (including any securities which
the Company proposes to be included which are not Registrable
Securities) or (ii) the inclusion of some or all of the shares
of Registrable Securities owned by the Holders, in any such
case, exceeds the largest number of shares which can be sold
without having an adverse effect on such offering, including
the price at which such shares can be sold (the "MAXIMUM
OFFERING SIZE"), the Company will include in such registration,
in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested
to be registered by the parties requesting such
Demand Registration and all Registrable Securities
requested to be included in such registration by any
other Holder (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro
rata among such Holders on the basis of the relative
number of Registrable Securities so requested to be
included in such registration); and
(B) second, any securities proposed to be
registered by the Company.
(f) Upon written notice to each Selling Shareholder, the
Company may postpone effecting a registration pursuant to this
Section 5.01 on one occasion during any period of six consecutive
months for a reasonable time specified in the notice but not
exceeding 90 days (which period may not be extended or
renewed), if (1) an investment banking firm of recognized
national standing shall advise the Company and the Selling
Shareholders in writing that effecting the registration would
materially and adversely affect an offering of securities of
such Company the preparation of which had then been commenced
or (2) the Company is in possession of material non-public
information the disclosure of which during the
23
period specified in such notice the Company believes, in its
reasonable judgment, would not be in the best interests of the
Company.
(g) After the Company has effected two Demand
Registrations pursuant to this Section 5.01 of Common Stock,
the Other Shareholders, upon request of the Other Shareholders
owning a majority of the Shares acquired by the Other
Shareholders on Closing Date, may request that the Company
register Common Stock which are Registrable Securities then
owned by such Other Shareholders. In no event will the Company
be required to effect more than one such Demand Registration.
The provisions of this Article 5 shall apply, mutatis mutandis,
to any such Demand Registration.
Section 5.2. Piggyback Registration. (a) If the Company
proposes to register any of its Common Stock under the
Securities Act (including pursuant to a Demand Registration),
whether or not for sale for its own account, it will each such
time, subject to the provisions of Section 5.02(b) hereof, give
prompt written notice at least 5 days prior to the anticipated
filing date of the registration statement relating to such
registration to all Shareholders and their respective Permitted
Transferees (or, in the case of a Demand Registration requested
by the DLJ Entities, to all Other Shareholders), which notice
shall set forth such Shareholders' rights under this Section 5.02
and shall offer all Shareholders the opportunity to include in
such registration statement such number of shares of Common
Stock as each such Shareholder may request (a "PIGGYBACK
REGISTRATION"). Upon the written request of any such
Shareholder made within 2 days (one of which shall be a
Business Day) after the receipt of notice from the Company
(which request shall specify the number of shares of Common
Stock intended to be disposed of by such Shareholder), the
Company will use its reasonable best efforts to effect the
registration under the Securities Act of all shares of Common
Stock which the Company has been so requested to register by
such Shareholders, to the extent requisite to permit the
disposition of the shares of Common Stock so to be registered;
provided that (i) if such registration involves an Underwritten
Public Offering, all such Shareholders requesting to be
included in the Company's registration must sell their
Registrable Securities to the underwriters selected as provided
in Section 5.04(f) on the same terms and conditions as apply to the
Company or the Selling Shareholder, as applicable, and (ii) if,
at any time after giving written notice of its intention to
register any stock pursuant to this Section 5.02(a) and prior to the
effective date of the registration statement filed in
connection with such registration, the Company shall determine
for any reason not to register such stock, the Company shall
give written notice to all such Shareholders and, thereupon,
shall be relieved of its obligation to register any Registrable
Securities in connection with such registration; and provided
24
further that the right of the Management Shareholders and their
Permitted Transferees to request a Piggyback Registration will
be subject to the Public Offering Limitations. No registration
effected under this Section 5.02 shall relieve the Company of its
obligations to effect a Demand Registration to the extent
required by Section 5.01 hereof. The Company will pay all
Registration Expenses in connection with each registration of
Registrable Securities requested pursuant to this Section 5.02.
(b) If a registration pursuant to this Section 5.02
involves an Underwritten Public Offering (other than in the
case of an Underwritten Public Offering requested by the DLJ
Entities in a Demand Registration, in which case the provisions
with respect to priority of inclusion in such offering set
forth in Section 5.01(e) shall apply) and the managing
underwriter advises the Company that, in its view, the number
of shares of Common Stock which the Company and the selling
Shareholders intend to include in such registration exceeds the
Maximum Offering Size, the Company will include in such
registration, in the following priority, up to the Maximum
Offering Size:
(i) first, so much of the Common Stock proposed to
be registered for the account of the Company as would not
cause the offering to exceed the Maximum Offering Size;
and
(ii) second, all Registrable Securities requested to
be included in such registration by any Shareholder
pursuant to Section 5.02 (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata
among such Shareholders on the basis of the relative
number of shares of Registrable Securities so requested to
be included in such registration).
Section 5.3. Holdback Agreements. With respect to each
and every firmly underwritten Public Offering, each Shareholder
agrees and their Permitted Transferees will agree not to offer
or sell any shares of Common Stock (except for shares of Common
Stock, if any, sold in that Public Offering) during the 14 days
prior to the effective date of the applicable registration
statement for a public offering of shares of Common Stock
(except as part of such registration) and during the period
after such effective date equal to the lesser of: (i) 180 days
or (ii) any such shorter period as the Company and the lead
managing underwriter of an Underwritten Public Offering agree.
Section 5.4. Registration Procedures. Whenever
Shareholders request that any Registrable Securities be
registered pursuant to Section 5.01 or 5.02 hereof, the Company will,
subject to the provisions of such Sections, use its
25
reasonable best efforts to effect the registration and the sale
of such Registrable Securities in accordance with the intended
method of disposition thereof as quickly as practicable, and in
connection with any such request:
(a) The Company will as expeditiously as possible prepare
and file with the SEC a registration statement on any form
selected by counsel for the Company and which form shall be
available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of
distribution thereof, and use its reasonable best efforts to
cause such filed registration statement to become and remain
effective for a period of not less than 180 days (or such
shorter period in which all of the Registrable Securities of
the Holders included in such registration statement shall have
actually been sold thereunder).
(b) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or
supplement thereto, furnish to each Shareholder and each
underwriter, if any, of the Registrable Securities covered by
such registration statement copies of such registration
statement as proposed to be filed, and thereafter the Company
will furnish to such Shareholder and underwriter, if any, such
number of copies of such registration statement, each amendment
and supplement thereto (in each case including all exhibits
thereto and documents incorporated by reference therein), the
prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such
Shareholder or underwriter may reasonably request in order to
facilitate the disposition of the Registrable Securities owned
by such Shareholder. Each Shareholder shall have the right to
request that the Company modify any information contained in
such registration statement, amendment and supplement thereto
pertaining to such Shareholder and the Company shall use its
reasonable best efforts to comply with such request, provided,
however, that the Company shall not have any obligation to so
modify any information if so doing would cause the prospectus
to contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) After the filing of the registration statement, the
Company will (i) cause the related prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the
Securities Act, (ii) comply with the provisions of the
Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement
during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
registration statement or
26
supplement to such prospectus and (iii) promptly notify each
Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened
by the SEC or any state securities commission under state blue
sky laws and take all reasonable actions required to prevent
the entry of such stop order or to remove it if entered.
(d) The Company will use its reasonable best efforts to
(i) register or qualify the Registrable Securities covered by
such registration statement under such other securities or blue
sky laws of such jurisdictions in the United States as any
Shareholder holding such Registrable Securities reasonably (in
light of such Shareholder's intended plan of distribution)
requests and (ii) cause such Registrable Securities to be
registered with or approved by such other governmental agencies
or authorities as may be necessary by virtue of the business
and operations of the Company and do any and all other acts and
things that may be reasonably necessary or advisable to enable
such Shareholder to consummate the disposition of the
Registrable Securities owned by such Shareholder; provided that
the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (B) subject
itself to taxation in any such jurisdiction or (C) consent to
general service of process in any such jurisdiction.
(e) The Company will immediately notify each Shareholder
holding such Registrable Securities covered by such
registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act,
of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable
Securities, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the
statements therein not misleading and promptly prepare and make
available to each such Shareholder and file with the SEC any
such supplement or amendment.
(f) In connection with (i) any Demand Registration
requested by the DLJ Entities or their Permitted Transferees or
(ii) any registration of Registrable Securities pursuant to
this Article 5 the Company shall appoint the underwriter or
underwriters chosen by DLJMB. 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
such Registrable Securities, including the engagement of a
"qualified independent underwriter" in connection with the
qualification of the
27
underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form
and substance reasonably satisfactory to the Company, the
Company will make available for inspection by any Shareholder
and any underwriter participating in any disposition pursuant
to a registration statement being filed by the Company pursuant
to this Section 5.04 and any attorney, accountant or other
professional retained by any such Shareholder or underwriter
(collectively, the "INSPECTORS"), all financial and other
records, pertinent corporate documents and properties of the
Company (collectively, the "RECORDS") as shall be reasonably
requested by any such Person, and cause the Company's officers,
directors and employees to supply all information reasonably
requested by any Inspectors in connection with such
registration statement.
(h) The Company will furnish to each such Shareholder and
to each such underwriter, if any, a signed counterpart,
addressed to such underwriter and the participating
Shareholders, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the
Company's independent public accountants, each in customary
form and covering such matters of the type customarily covered
by opinions or comfort letters, as the case may be, as a
majority of such Shareholders or the managing underwriter
therefor reasonably requests.
(i) The Company will otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of
the SEC and the relevant state blue sky commissions, and make
available to its securityholders, as soon as reasonably
practicable, an earnings statement covering a period of 12
months, beginning within three months after the effective date
of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act.
(j) The Company may require each such Shareholder to
promptly furnish in writing to the Company information
regarding the distribution of the Registrable Securities as the
Company may from time to time reasonably request and such other
information as may be legally required in connection with such
registration.
(k) Each such Shareholder agrees that, upon receipt of
any notice from the Company of the happening of any event of
the kind described in Section 5.04(e) hereof, such Shareholder will
forthwith discontinue disposition of Registrable Securities
pursuant to the registration statement covering such
28
Registrable Securities until such Shareholder's receipt of the
copies of the supplemented or amended prospectus contemplated
by Section 5.04(e) hereof, and, if so directed by the Company,
such Shareholder will deliver to the Company all copies, other
than any permanent file copies then in such Shareholder's
possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice.
In the event that the Company shall give such notice, the
Company shall extend the period during which such registration
statement shall be maintained effective (including the period
referred to in Section 5.04(a) hereof) by the number of days
during the period from and including the date of the giving of
notice pursuant to Section 5.04(e) hereof to the date when the
Company shall make available to such Shareholder a prospectus
supplemented or amended to conform with the requirements of
Section 5.04(e) hereof.
(l) The Company will use its reasonable best efforts to
list such Registrable Securities on any securities exchange on
which the Common Stock is then listed or on NASDAQ if the
Common Stock is then quoted on NASDAQ not later than the
effective date of such registration statement.
Section 5.5. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Shareholder holding
Registrable Securities covered by a registration statement, its
officers, directors, employees, partners and agents, and each
Person, if any, who controls such Shareholder within the
meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act (and officers, directors, employees, partners
and agents of such controlling Persons) 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 so made in strict conformity with information
furnished in writing to the Company by such Shareholder or on
such Shareholder's behalf expressly for use therein; provided
that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary
prospectus, or in any prospectus, as the case may be, the
indemnity agreement contained in this paragraph shall not apply
to the extent that any such loss, claim, damage, liability or
expense results from the fact that a current copy of the
prospectus (or, in the case of a prospectus, the
29
prospectus as amended or supplemented) was not sent or given to
the Person asserting any such loss, claim, damage, liability or
expense at or prior to the written confirmation of the sale of
the Registrable Securities concerned to such Person if it is
determined that the Company has provided such current copy of
such prospectus (or such amended or supplemented prospectus, as
the case may be) to such Shareholder in a timely manner prior
to such sale and it was the responsibility of such Shareholder
under the Securities Act to provide such Person with a current
copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) and such current copy of the
prospectus (or such amended or supplemented prospectus, as the
case may be) would have cured the defect giving rise to such
loss, claim, damage, liability or expense. The Company also
agrees to indemnify any underwriters of the Registrable
Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as
that of the indemnification of the Shareholders provided in
this Section 5.05.
Section 5.6. Indemnification by Participating
Shareholders. Each Shareholder holding Registrable Securities
included in any registration statement agrees, severally but
not jointly, to indemnify and hold harmless the Company, its
officers, directors and agents and each Person (other than such
Shareholder) if any, who controls the Company within the
meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act to the same extent as the foregoing
indemnity from the Company to such Shareholder, but only (i)
with respect to information furnished in writing by such
Shareholder or on such Shareholder's behalf expressly for use
in any registration statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto,
or any preliminary prospectus or (ii) to the extent that any
loss, claim, damage, liability or expense described in Section
5.05 results from the fact that a current copy of the
prospectus (or, in the case of a prospectus, the prospectus as
amended or supplemented) was not sent or given to the Person
asserting any such loss, claim, damage, liability or expense at
or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is
determined that it was the responsibility of such Shareholder
to provide such Person with a current copy of the prospectus
(or such amended or supplemented prospectus, as the case may
be) and such current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) would have cured
the defect giving rise to such loss, claim, damage, liability
or expense. Each such Shareholder shall be prepared, if
required by the underwriting agreement, to indemnify and hold
harmless underwriters of the Registrable Securities,
their officers and directors and each person who controls such
underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 5.06. As a
30
condition to including Registrable Securities in any
registration statement filed in accordance with Article 5
hereof, the Company may require that it shall have received an
undertaking reasonably satisfactory to it from any underwriter
to indemnify and hold it harmless to the extent customarily
provided by underwriters with respect to similar securities.
No Shareholder shall be liable under Section 5.06 for any
damage thereunder in excess of the net proceeds realized by
such Shareholder in the sale of the Registrable Securities of
such Shareholder.
Section 5.7. 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 and all losses, claims, damages,
liabilities and expenses or liability (to the extent stated
above) by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of
the Indemnified Party, effect any settlement of any pending or
31
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 5.8. Contribution. If the indemnification
provided for in this Article 5 is held by a court of competent
jurisdiction to be unavailable to the Indemnified Parties in
respect of any losses, claims, damages or liabilities referred
to herein, then each such Indemnifying Party, in lieu of
indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of
such losses, claims, damages or liabilities (i) as between the
Company and the Shareholders holding Registrable Securities
covered by a registration statement and their related
Indemnified Parties on the one hand and the underwriters and
their related Indemnified Parties on the other, in such
proportion as is appropriate to reflect the relative benefits
received by the Company and such Shareholders on the one hand
and the underwriters on the other, from the offering of the
Shareholders' Registrable Securities, or if such allocation is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also
the relative fault of the Company and such Shareholders on the
one hand and of such underwriters on the other in connection
with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations and (ii) as between the Company and
their related Indemnified Parties on the one hand and each such
Shareholder and their related Indemnified Parties on the other,
in such proportion as is appropriate to reflect the relative
fault of the Company and of each such Shareholder in connection
with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits
received by the Company and such Shareholders on the one hand
and such underwriters on the other shall be deemed to be in the
same proportion as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting
expenses) received by the Company and such Shareholders bear to
the total underwriting discounts and commissions received by
such underwriters, in each case as set forth in the table on
the cover page of the prospectus. The relative fault of the
Company and such Shareholders on the one hand and of such
underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged
omission to state a material fact relates to information
supplied by the Company and such Shareholders or by such
underwriters. The relative fault of the Company on the one
hand and of each such Shareholder on the other shall be
determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a
32
material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such
statement or omission.
The Company and the Shareholders agree that it would not
be just and equitable if contribution pursuant to this Section 5.08
were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party
as a result of the losses, claims, damages 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 underwriting discount applicable to
securities purchased by such underwriter in such offering, less
the aggregate amount of any damages which such underwriter has
otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and
no Shareholder shall be required to contribute any amount in
excess of the amount by which the net proceeds realized on the
sale of the Registrable Securities of such Shareholder exceeds
the amount of any damages which such Shareholder has otherwise
been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. Each Shareholder's obligation to contribute
pursuant to this Section 5.08 is several in the proportion that the
proceeds of the offering received by such Shareholder bears to
the total proceeds of the offering received by all such
Shareholders and not joint.
Section 5.9. Participation in Public Offering. No Person
may participate in any Underwritten Public Offering hereunder
unless such Person (a) agrees to sell such Person's securities
on the basis provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangements
and (b) completes and executes all questionnaires, powers
of attorney, indemnities, underwriting agreements and other
documents reasonably required under the terms of such
underwriting arrangements and the provisions of this Agreement
in respect of registration rights.
Section 5.10. Cooperation by the Company. In the event
any Shareholder shall transfer any Registrable Securities
pursuant to Rule 144A under
33
the Securities Act, the Company shall cooperate, to the extent
commercially reasonable, with such Shareholder and shall
provide to such Shareholder such information as such
Shareholder shall reasonably request.
Section 5.11. No Transfer of Registration Rights. None
of the rights of Shareholders under this Article 5 shall be
assignable by any Shareholder to any Person acquiring
securities of such Shareholder in any Public Offering or
pursuant to Rule 144A of the Securities Act.
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.1. Confidentiality. (a) Each Shareholder
hereby agrees that Confidential Information (as defined below)
furnished and to be furnished to it was and will be made
available in connection with such Shareholder's investment in
the Company. Each Shareholder agrees that it will use the
Confidential Information only in connection with its investment
in the Company and not for any other purpose. Each Shareholder
further acknowledges and agrees that it will not disclose any
Confidential Information to any Person; provided that
Confidential Information may be disclosed (i) to such
Shareholder's Representatives (as defined below) in the normal
course of the performance of their duties or to any financial
institution providing credit to such Shareholder, (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 Shareholder is subject; provided that such Shareholder
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 (and the Shareholder shall
cooperate with such efforts by the Company, and shall in any
event make only the minimum disclosure required by such law,
rule or regulation)), (iii) to any Person to whom such
Shareholder is contemplating a transfer of its Shares (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) if the
prior written consent of the Board shall have been obtained.
Nothing contained herein shall prevent the use (subject, to the
extent
34
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 Shareholder.
(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
Shareholder (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 Shareholder or its partners, directors, officers,
employees, agents, counsel, investment advisers or
representatives (all such persons being collectively referred
to as "REPRESENTATIVES") in violation of the Merger Agreement
or this Agreement, (ii) is or was available to such Shareholder
on a nonconfidential basis prior to its disclosure to such
Shareholder or its Representatives by the Company or (iii) was
or becomes available to such Shareholder 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 Shareholder's knowledge,
bound by a confidentiality agreement with (or other
confidentiality obligation to) the Company or another Person.
Section 6.2. Reports. The Company will furnish the
Institutional Shareholders with the quarterly and annual
financial reports that the Company is required to file with the
Securities and Exchange Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act promptly after the filing
thereof or, in the event the Company is not required to file
such reports, quarterly and annual reports containing the same
information as would be required in such reports on the date
that such reports would otherwise be filed.
Section 6.3.. Limitations on Subsequent Registration.
The Company shall not enter into any agreement with any holder
or prospective holder of any securities of the Company (a) that
would allow such holder or prospective holder to include such
securities in any registration filed pursuant to Section 5.01
or 5.02 hereof, unless under the terms of such agreement, such
holder or prospective holder may include such securities in any
such registration only to the extent that the inclusion of such
securities would not reduce the amount of the Registrable
Securities of the Shareholders included therein or (b) on terms
otherwise more favorable than this Agreement.
Section 6.4. Exclusive Financial Advisor and Investment
Banking
35
Advisor. During the period from and including the date hereof
through and including the fifth anniversary of the date hereof,
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJSC"),
or any Affiliate that DLJMB may choose in its sole discretion,
shall be engaged as the exclusive financial advisor and
investment banker for the Company on financial and other terms
customary in the industry to be agreed between the Company and
DLJSC.
Section 6.5. Limitation on Purchase of Common Stock.
Until the earlier to occur of (i) the seventh anniversary of
the Closing Date or (i) the date on which at least 40% of the
outstanding Common Stock on a Fully Diluted basis of the
Company is held by Persons other than the Shareholders (the
"TRIGGER DATE"), no Institutional Shareholder shall acquire any
shares of Common Stock except 4.03 (i) in a purchase of Equity
Securities pursuant to Section 4.04 or Section hereof or (ii) in a
transfer from any other Shareholder which is otherwise
permitted under the terms of Article 3 hereof.
ARTICLE 7
MISCELLANEOUS
Section 7.1. Entire Agreement. This Agreement, the
Merger Agreement and the Subscription Agreement constitute the
entire agreement among the parties with respect to the subject
matter hereof and thereof and supersede all prior and
contemporaneous agreements and understandings, both oral and
written, between the parties with respect to the subject matter
hereof and thereof.
Section 7.2. 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, is intended to confer on any
Person other than the parties hereto, and their respective
heirs, successors, legal representatives and permitted assigns,
any rights, remedies, obligations or liabilities under or by
reason of this Agreement.
Section 7.3. Assignability. (a) Neither this Agreement
nor any right, remedy, obligation or liability arising
hereunder or by reason hereof shall be assignable by the
Company or any Shareholder; provided that any Person acquiring
shares of Common Stock who is required by the terms of this
36
Agreement to become a party hereto shall execute and deliver to
the Company an agreement to be bound by this Agreement and
shall thenceforth be a "Shareholder".
(b) Any Permitted Transferee of a Management Shareholder
who shall become a party hereto shall be deemed a "MANAGEMENT
SHAREHOLDER".
(c) Any Permitted Transferee of an Institutional
Shareholder who shall become a party to this Agreement shall be
deemed an "INSTITUTIONAL SHAREHOLDER".
Section 7.4. Amendment; Waiver; Termination. (a) No
provision of this Agreement may be waived except by an
instrument in writing executed by the party against whom the
waiver is to be effective. No provision of this Agreement may
be amended or otherwise modified except by an instrument in
writing executed by the Company with approval of the Board of
Directors and holders of at least 50% of the Shares held by the
parties to this Agreement at the time of such proposed
amendment or modification.
(b) In addition, any amendment or modification of any
provision of this Agreement that would adversely affect any DLJ
Entity may be effected only with the consent of such DLJ
Entity.
(c) In addition, any amendment or modification of any
provision of this Agreement that would adversely affect any (i)
Institutional Shareholder may be effected only with the consent
of Institutional Shareholders holding at least 50% of the
shares held by the Institutional Shareholders or (ii) Management
Shareholder may be effected only with the consent of Management
Shareholders holding at least 50% of the shares held by the
Management Shareholders.
(d) This Agreement shall terminate on the tenth
anniversary of the date hereof unless earlier terminated.
Section 7.5. Notices. (a) All notices and other
communications given or made pursuant hereto or pursuant to any
other agreement among the parties, unless otherwise specified,
shall be in writing and shall be deemed to have been duly
given and received when sent by fax (with confirmation in
writing via first class U.S. mail) or delivered personally or
on the third Business Day after being sent by registered or
certified U.S. mail (postage prepaid, return receipt requested)
to the parties at the fax number or address set forth below or
at such other addresses as shall be furnished by the parties by
like notice:
37
if to the Company to:
DecisionOne Holdings Corp.
00 Xxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
if to any Shareholder, to such
Shareholder at the address specified by
such Shareholder on the signature pages
of this Agreement or in a notice given by
such Shareholder to the Company for such
purpose with a copy, in the case of the
Institutional Shareholders (other than
the Sprout Entities), to
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxx, Esq.
Fax: 000-000-0000
Any Person who becomes a Shareholder shall provide its
address and fax number to the Company, which shall promptly
provide such information to each other Shareholder.
(b) Notices required to be given pursuant to Sections
5.01(a) and 5.01(b) and Section 5.02 by the Company shall be
deemed given only if such notices are also be given
telephonically and by fax to the following persons (or any
other individual the respective entities may designate in
writing to the Company to replace such person):
(i) for the benefit of the Management
Shareholders, to Xxxxxx X. Xxxxxxx at 000-000-0000 and
fax: 000-000-0000;
(ii) for the benefit of the Apollo Entities, to
any of Xxxxxxx Xxxxx at 000-000-0000, fax: 212-___-____,
Xxxxxx Xxxxxx at 000-000-0000, fax: 212-___-____, or Xxxx
Xxxxxx at 000-000-0000, fax: 212-___-____;
(iii) for the benefit of the Xxxx Entities, to
Xxxxxxx Xxxxxxxx at 000-000-0000, fax: 617-___-____ or
Xxxxxxx Xxxxxxxx at 000-000-0000, fax: 617-___-____;
38
(iv) for the benefit of the THL Entities, to any
of Xxxxx X. Xxxxxx, Xxxxx X. Xxxxxxxx or Xxxx X. Xxxxxx at
000-000-0000, fax: 617-___-____;
(v) for the benefit of the Sprout Entities, to
__________;
(vi) for the benefit of the Ontario Teachers'
Pension Plan Board, to Xxxx Xxxxxxx at 000-000-0000, fax:
416-___-____;
(vii) in the case of any registration not
requested by the DLJ Entities, for the benefit of the DLJ
Entities, to Xxxxx Xxxxxx, at 000-000-0000, fax: 212-892-
7272; and
(viii) to Xxxxx Xxxx at 000-000-0000, fax: 212-403-
2000.
Section 7.6. Headings. The headings contained in this
Agreement are for convenience only and shall not affect the
meaning or interpretation of this Agreement.
Section 7.7. 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 7.8. Applicable Law. This Agreement shall be
governed by, and construed in accordance with, the laws of the
State of New York, without regard to the conflicts of laws
rules of such state.
Section 7.9. 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 7.10. Consent to Jurisdiction; Expenses. (a) Any
suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby shall
be brought in any Federal Court sitting in New York, New York,
or any New York State court sitting in New York, New York, and
each of the parties hereby
39
consents to the exclusive jurisdiction of such courts (and of
the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has
been brought in an inconvenient forum. Process in any such
suit, action or proceeding may be served on any party anywhere
in the world, whether within or without the jurisdiction of any
such court. Without limiting the foregoing, each party agrees
that service of process on such party by any method provided in
Section 7.05 shall be deemed effective service of process on such
party and consents to the personal jurisdiction of any Federal
Court sitting in New York, New York, or any New York State
court sitting in New York, New York.
(b) In any dispute arising under this Agreement among any
of the parties hereto, the costs and expenses (including,
without limitation, the reasonable fees and expenses of
counsel) incurred by the prevailing party shall be paid by the
party that does not prevail.
Section 7.11. Severability. If one or more provisions of
this Agreement are held to be unenforceable to any extent under
applicable law, such provision shall be interpreted as if it
were written so as to be enforceable to the maximum possible
extent so as to effectuate the parties' intent to the maximum
possible extent, and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be
enforceable in accordance with its terms to the maximum extent
permitted by law.
40
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.
DECISIONONE HOLDINGS CORP.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President and Chief
Financial Officer
DLJ MERCHANT BANKING PARTNERS
II, 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 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
41
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
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 II, Inc.
000 Xxxx Xxxxxx
00
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
DLJ MILLENNIUM 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
43
DLJ MILLENNIUM PARTNERS-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
DLJMB FUNDING II, INC., a Delaware
corporation
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 FIRST ESC, L.L.C.,
By: DLJ LBO Plans Management
Corporation, as manager
44
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
45
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
Fax: 000-000-0000
46
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
Fax: 000-000-0000
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
Fax: 000-000-0000
47
XXXX CAPITAL FUND V 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 Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
XXXX CAPITAL FUND, V-B, L.P.
By: Xxxx Capital Investors 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 Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
48
BCIP ASSOCIATES
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
BCIP TRUST ASSOCIATES, L.P.
By: Xxxx Capital Investors V, L.P., its
general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
Fax: 000-000-0000
49
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:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
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:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
50
THL CO-INVESTORS III-A LLC
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Manager
Address:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
THL CO-INVESTORS III-B LLC
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Manager
Address:
c/o Xxxxxx X. Xxx Company
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
DLJ CAPITAL CORP.
By: /s/ Art Xxxxxxxxx
Name: Art Xxxxxxxxx
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
00
XXXXXX XXXXXX XX, X.X.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art Xxxxxxxxx
Name: Art Xxxxxxxxx
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art Xxxxxxxxx
Name: Art Xxxxxxxxx
Title:
Address:
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
52
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
Fax: 000-000-0000
53
By: /s/ Xxxxxxx Xxxxxx
Xxxxxxx Xxxxxxx
By: /s/ Xxxxx Xxxxxx
Xxxxx Xxxxxx
By: /s/ Xxx Xxxxxxxxxxx
Xxx Xxxxxxxxxxx
By: /s/ Xxxxx Xxxxxxxx
Xxxxx Xxxxxxxx
By: /s/ Xxx Xxxxxxxx
Xxx Xxxxxxxx
By: /s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx
By: /s/ Xxx Xxxxxxx
Xxx Xxxxxxx
By: /s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
By: /s/ Xxxx Xxxxxxxx
Xxxx Xxxxxxxx
54
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
By: /s/ Xxx Xxxxxxx
Xxx Xxxxxxx
By: /s/ Xxx Xxxxxxx
Xxx Xxxxxxx
By: /s/ Xxx Xxxxxxxxx
Xxx Xxxxxxxxx
By: /s/ Xxx Xxxxxxx
Xxx Xxxxxxx
By: /s/ Xxxx Xxxxxxx
Xxxx Xxxxxxx
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx
By: /s/ Xxx Xxxxxx
55
Xxx Xxxxxx
56
