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Exhibit 4.2
SECURITIES PURCHASE AGREEMENT
dated as of
October 6, 1995
between
FIBERITE HOLDINGS, INC.
and
THE PURCHASERS LISTED ON THE
SIGNATURE PAGES HERETO
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions................................................. 1
SECTION 1.2. Accounting Terms and Determinations......................... 7
ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.1. Commitments to Purchase..................................... 8
SECTION 2.2. The Closing................................................. 8
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. Corporate Existence and Power............................... 9
SECTION 3.2. Authorization and Execution................................. 9
SECTION 3.3. Capitalization.............................................. 9
SECTION 3.4. Governmental Authorization..................................10
SECTION 3.5. Non-Contravention...........................................10
SECTION 3.6. Litigation..................................................10
SECTION 3.7. Not an Investment Company; Not a
Real Property Holding Company.............................10
SECTION 3.8. Solicitation; Access to Information.........................11
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
SECTION 4.1. Purchase for Investment; Authority;
Binding Agreement.........................................11
SECTION 4.2. Private Placement...........................................12
SECTION 4.3. Solicitation by Purchaser...................................13
ARTICLE V
COVENANTS
SECTION 5.1. Information.................................................13
SECTION 5.2. Payment of Obligations......................................15
SECTION 5.3. Conduct of Business and Maintenance
of Existence..............................................15
SECTION 5.4. Compliance with Laws........................................15
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SECTION 5.5. Inspection of Property, Books and
Records..................................................15
SECTION 5.6. Investment Company Act.....................................16
ARTICLE VI
SUBORDINATION
SECTION 6.1. Notes Subordinated to Senior Debt..........................16
SECTION 6.2. No Payment on Notes in Certain
Circumstances............................................16
SECTION 6.3. Payment Over of Proceeds Upon
Dissolution, Etc.........................................16
SECTION 6.4. Limitation on Exercise of Remedies.........................18
SECTION 6.5. Renewals, Extensions, etc. of
Senior Debt..............................................19
SECTION 6.6. Obligation of Holdings
Unconditional............................................19
SECTION 6.7. This Article Not to Prevent Events
of Default...............................................19
SECTION 6.8. General....................................................19
ARTICLE VII
LIMITATION ON TRANSFERS
SECTION 7.1. Restrictions on Transfer...................................20
SECTION 7.2. Restrictive Legends........................................20
SECTION 7.3. Notice of Proposed Transfers...............................21
ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Notices....................................................22
SECTION 8.2. No Waivers; Amendments.....................................22
SECTION 8.3. Expenses; Documentary Taxes................................23
SECTION 8.4. Successors and Assigns.....................................23
SECTION 8.5. Brokers....................................................23
SECTION 8.6. New York Law; Submission to
Jurisdiction; Waiver of Jury
Trial....................................................24
SECTION 8.7. Severability...............................................24
SECTION 8.8. Counterparts...............................................24
Exhibit A Form of Note
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT, dated as of October 6, 1995, is
entered into between Fiberite Holdings, Inc., a Delaware corporation
("Holdings"), and the Purchasers listed on the signature pages hereto.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms, as used herein, have
the following meanings:
"Accreted Amount" with respect to any Note shall be determined in
the manner set forth on Annex I to such Note.
"Acquisition Co." means Fiberite, Inc., a wholly-owned subsidiary of
Holdings to be merged with and into Composites at Closing (and upon consummation
of such merger, means Composites, as the survivor of such merger) and to acquire
and hold all the outstanding capital stock of GmbH at Closing.
"Acquisition Documents" means this Agreement, the Composites
Purchase Agreement, the GmbH Purchase Agreement and the Finance Documents.
"Acquisition GmbH" means Xxxxx Verwaltungsgesellschaft MbH (to be
renamed Fiberite Europe GmbH), a wholly-owned subsidiary of Acquisition Co.
which is to acquire all of the business currently conducted by GmbH.
"Affiliate" means, with respect to any Person, any other Person
that, directly or indirectly, controls, is controlled by or is under common
control with such Person. For purposes of this definition, "control" (including,
with correlative meanings, the terms "controlling", "controlled by" and "under
common control with"), as used with respect to any Person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of that Person, whether through the ownership of voting
securities, by contract or otherwise.
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"Agent" means the agent under the Credit Agreement.
"Agreement" means this agreement, as amended, supplemented or
otherwise modified from time to time in accordance with its terms.
"Business Day" means any day except a Saturday, Sunday or other day
on which commercial banks in the City of New York are authorized or required by
law to close.
"Change of Control" means that (i) DLJ Merchant Banking and its
Affiliates and Carlisle-Fiberite Investors, L.P. collectively cease to own,
beneficially and of record, at least 51% of each class of capital stock of
Holdings; (ii) any Person, or two or more Persons acting in concert, acquires
the beneficial ownership of 15% or more of any class of capital stock of
Acquisition Co.; or (iii) Holdings ceases to own, beneficially and of record,
100% of each class of capital stock of Acquisition Co.
"Closing" has the meaning set forth in Section 2.2(a).
"Co-Investor Purchasers" means Carlisle-Fiberite Investors, L.P.
and Steeple International, Inc.
"Commission" means the Securities and Exchange Commission.
"Composites" means ICI Composites Inc., a Delaware corporation .
"Composites Purchase Agreement" means the Purchase Agreement dated
as of October , 1995, among Fiberite, Inc. and ICI American Holdings Inc. and
shall include the exhibits and schedules thereto.
"Credit Agreement" means the Credit Agreement of even date herewith,
among Holdings, Acquisition Co., the lenders listed therein and Bank of America
National Trust and Savings Association, as Agent (in such capacity, the
"Agent"), as amended, supplemented or otherwise modified from time to time.
References to the Credit Agreement shall also include any credit agreement or
agreements entered into by Holdings and/or Acquisition Co. to replace, extend,
increase, renew, refund or refinance all or a portion of the Debt under the
Credit Agreement.
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"Debt" of any Person means at any date, (a) all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or
services (other than trade payables incurred in the ordinary course of business
on ordinary terms), or which is evidenced by a note, bond, debenture or similar
instrument, (b) all obligations of such Person under Financing Leases, (c) all
Debt of the types described in the foregoing clauses (a) and (b) of any other
Person secured by any Lien on any property owned by such Person, whether or not
such Person has assumed or otherwise become liable for the payment thereof, and
(d) to the extent not otherwise included, any Guaranty by such Person of any
Debt of any other Person.
"Default" means any Event of Default or any event or condition
which, with the giving of notice or lapse of time or both, would, unless cured
or waived, become an Event of Default.
"DLJ Affiliate" means DLJSC and/or any of their respective
Subsidiaries and Affiliates, excluding, however, Holdings, its other
shareholders and its Subsidiaries.
"DLJMB" or "DLJMB Purchaser" means, collectively, or individually in
the case of DLJMB Purchaser, DLJ Merchant Banking Partners, L.P., DLJ
International Partners, C.V., DLJ Offshore Partners, C.V. and DLJ Merchant
Banking Funding, Inc. and their respective successors.
"DLJSC" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, a
Delaware corporation, and its successors.
"Event of Default" means any event or condition specified as such in
the Notes which shall have continued for the period of time, if any, therein
designated after the giving of notice, if any, therein designated.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Finance Documents" means the Credit Agreement together with all
notes, collateral and security documents, guaranties (including the Guaranty of
Holdings thereunder) and other documents delivered at any time in connection
therewith, all as amended, supplemented or otherwise modified from time to time
in accordance with their respective terms.
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"Financing Lease" means any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
generally accepted accounting principles to be capitalized on a balance sheet of
the lessee.
"GmbH" means Fiberite Europe GmbH, a German GmbH and which is to
transfer its entire business as currently conducted by means of the transfer of
substantially all its assets and liabilities to Acquisition GmbH, a wholly-owned
subsidiary of Acquisition Co.
"GmbH Purchase Agreement" means the Business Purchase Agreement
dated as of October 6, 1995 between Acquisition GmbH and GmbH and shall
include the exhibits and schedules thereto.
"Guaranty" of a person means any agreement by which such Person
assumes, guarantees, endorses, contingently agrees to purchase or provide funds
for the payment of, or otherwise becomes liable upon, the obligation of any
other Person, or agrees to maintain the net worth or working capital or other
financial condition of any other Person or otherwise assures any creditor of
such other Person against loss, including, without limitation, any comfort
letter, operating agreement or take-or-pay contract and shall include, without
limitation, the contingent liability of such Person in connection with any
application for a letter of credit or letter of guaranty.
"Holder" means any holder from time to time of any Securities.
"Holdings" means Fiberite Holdings, Inc., a Delaware corporation
which owns 100% of the issued and outstanding capital stock of Acquisition Co.
"Holdings Corporate Documents" means the certificate of
incorporation and by-laws of Holdings.
"Lenders" means the banks and other financial institutions from time
to time parties to the Credit Agreement.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement
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and any Financing Lease having substantially the same economic effect as any of
the foregoing).
"Majority Holders" means the holders of voting rights with respect
to waivers, amendments and other actions permitted or required to be taken by
holders of the Notes under the terms thereof constituting a majority of such
voting rights attributable to the aggregate outstanding Accreted Amount of the
Notes at such time.
"Material Adverse Effect" means a material adverse effect on (a) the
business, operations or financial condition of Holdings and its Subsidiaries
taken as a whole or (b) the enforceability of any of the Securities Documents.
"Note Documents" means this Agreement and the Notes.
"Notes" means Holdings' 11.30% Subordinated Notes due 2002
substantially in the form set forth as Exhibit A hereto.
"Permits" means all licenses, permits and approvals required for the
full operation of Composites and GmbH and city and county permits and approvals.
"Permitted Transferee" means:
(i) in the case of any DLJMB Purchaser, (A) any other DLJMB
Purchaser, (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 DLJMB
Purchaser 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"),
(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 DLJMB Purchaser, DLJ
Affiliates, DLJ Associates, their spouses or their lineal descendants and
(E) a voting trustee for one or more DLJMB Purchasers, DLJ Affiliates or
DLJ Associates under the terms of a voting trust designed to conform with
the requirements of the insurance law of the State of New York;
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(ii) in the case of any Co-Investor Purchaser, any Affiliate,
general partner or limited partner of such Co-Investor Purchaser; and
(iii) in the case of any other Purchaser, (A) Holdings, and, if such
other Purchaser is an individual, (B) (x) such Purchaser's spouse or (y)
such Purchaser's siblings or lineal descendants, so long as such Purchaser
retains the right to vote such Securities, (C) a Person who acquires
Securities from any such Purchaser pursuant to a will or the laws of
descent and distribution, and (D) any trust the beneficiaries of which
consist only of such Purchaser and/or such Purchaser's spouse, siblings
and lineal descendants.
"Person" means an individual or a corporation, limited liability
company, partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, government (or any agency or political subdivision
thereof) or other entity of any kind.
"Securities" means the Notes and the Shares.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Documents" means this Agreement, the Shareholders
Agreement, the Notes and the Shares.
"Senior Debt" means all obligations of Holdings with respect to (i)
all principal of, premium and interest payable under the Finance Documents
including under the Guaranty of Holdings under the Credit Agreement, (ii) any
replacements, renewals, refinancings or extensions of any of the foregoing (or
any portion thereof), and (iii) all fees, expenses, indemnities and all other
amounts payable by Holdings or Acquisition Co. under any of the foregoing or
with respect thereto; provided that the term Senior Debt shall not include (a)
any Debt of Holdings which when incurred was without recourse to Holdings, (b)
any Debt to any employee of Holdings and (c) Trade Payables.
"Shareholders Agreement" means the Shareholders Agreement of even
date herewith, among Holdings and the shareholders listed therein.
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"Shares" means shares of common stock of Holdings, par value $0.01
per share.
"Subsidiary" means, with respect to any Person, any corporation or
other entity of which a majority of the capital stock 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.
"Time of Purchase" has the meaning set forth in Section 2.2(a).
"Trade Payables" means accounts payable or any other indebtedness or
monetary obligations to trade creditors created or assumed by Holdings in the
ordinary course of business in connection with the obtaining of materials or
services.
"Transaction" means the acquisition of Composites and the Included
ICI Assets (as defined in the Composites Purchase Agreement) and the acquisition
of GmbH, pursuant to the Composites Purchase Agreement and the GmbH Purchase
Agreement, respectively.
"Transfer" means any disposition of Securities that would constitute
a sale thereof under the Securities Act.
SECTION 1.2. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a consistent basis (except for changes concurred in by Holdings' independent
public accountants). For purposes of this Agreement, references to assets,
liabilities, revenues, costs or other similar items relating to Holdings,
Acquisition Co. or any of their Subsidiaries shall be deemed to include, with
respect to any joint operating agreement or partnership agreement to which
Holdings, Acquisition Co. or such Subsidiary is a party, such portion, but only
such portion, of the assets, liabilities, revenues, costs or other similar items
covered by such joint operating agreement or partnership agreement as shall
equal the then proportional interest of Holdings, Acquisition Corp. or such
Subsidiary under such joint operating agreement or partnership agreement,
determined, where applicable, in accordance with the rules for proportionate
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consolidation in accordance with generally accepted accounting principles.
ARTICLE II
PURCHASE AND SALE OF SECURITIES
SECTION 2.1. Commitments to Purchase. Holdings agrees to issue and
sell and, subject to the terms and conditions set forth herein and in reliance
on the representations and warranties of Holdings contained herein, each
Purchaser agrees to purchase the aggregate principal amount of Notes and number
of Shares set forth opposite the name of such Purchaser on the signature pages
hereto. The purchase price for the Notes shall be $47.2644 per $100 principal
amount thereof and the purchase price for the Shares shall be $0.50 per Share.
The Shares purchased hereunder are subject to the rights, obligations,
restrictions and other terms and provisions of the Shareholders Agreement.
SECTION 2.2. The Closing. (a) The purchase and sale of the
Securities will take place at a closing (the "Closing") at the offices of Xxxxxx
Xxxxxx & Xxxxxxx in New York City at such date as the Purchasers and Holdings
may agree. The date and time of Closing is referred to herein as the "Time of
Purchase".
(b) Not later than the Time of Purchase, each Purchaser shall
deliver by wire transfer to the account number of Holdings specified by Holdings
immediately available funds in an amount equal to the aggregate purchase price
of the Securities to be purchased by such Purchaser hereunder.
(c) At the Closing, against payment as set forth in subsection (b)
above, Holdings shall deliver to each Purchaser (i) a single Note representing
the aggregate principal amount of Notes to be purchased by such Purchaser at the
Closing registered in the name of such Purchaser, or, if requested by such
Purchaser, separate Notes in such other denominations and registered in such
name or names as shall be designated by such Purchaser and (ii) a certificate
representing the number of Shares to be purchased by such Purchaser.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
Holdings represents and warrants to each Purchaser, as of the Time
of Purchase, as set forth below:
SECTION 3.1. Corporate Existence and Power. Holdings is a
corporation, duly incorporated, validly existing and in good standing under the
laws of the state of Delaware and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its businesses as now conducted and as proposed to be conducted and is fully
qualified and in good standing as a foreign corporation registered to do
business in each jurisdiction in which the nature of its business or its
ownership or leasing of property requires such qualification except where the
failure to be so qualified or to be in good standing would not reasonably be
expected to have a Material Adverse Effect.
SECTION 3.2. Authorization and Execution. The execution, delivery
and performance by each of Holdings and Acquisition Co. of each of the
Securities Documents and Acquisition Documents to which it is a party and the
issuance by Holdings of the Securities have been duly and validly authorized and
are within the corporate powers of Holdings or Acquisition Co., as the case may
be. Each of the Securities Documents and Acquisition Documents to which Holdings
or Acquisition Co. is a party has been duly executed and delivered by it and
constitutes its valid and binding agreement. When executed and delivered by
Holdings against payment therefor in accordance with the terms hereof, the Notes
will constitute valid and binding obligations of Holdings.
SECTION 3.3. Capitalization. The authorized capital stock of
Holdings consists of 15,000,000 shares of common stock, par value $0.01 per
share (of which 10,000,000 shares are issued and outstanding). All of the
issued and outstanding capital stock of Holdings has been duly authorized and
validly issued, is fully paid and nonassessable, and free of pre-emptive rights.
The authorized capital stock of Acquisition Co. consists of 1,000 shares of
common stock, par value $0.01 per share (of which 1,000 shares are issued and
outstanding). All of the issued and outstanding capital stock of Acquisition
Co. is owned by Holdings free and clear of any Lien other than the Lien of the
lenders pursuant to the Credit Agreement.
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SECTION 3.4. Governmental Authorization. The execution and delivery
by each of Holdings and Acquisition Co. of each of the Securities Documents and
the Acquisition Documents to which it is a party did not and will not, the
issuance and sale by Holdings of the Securities will not, and the consummation
of the transactions contemplated hereby and thereby will not, require any action
by or in respect of, or filing with, any governmental body, agency or
governmental official except (a) such actions or filings as have been undertaken
or made prior to the Time of Purchase and that will be in full force and effect
on and as of the Time of Purchase or which are not required to be filed on or
prior to the Time of Purchase (but will be filed within the applicable time
periods therefor) and (b) such actions or filings that, if not taken or made,
would not in the aggregate impose materially adverse conditions upon the
Transaction or the Securities Documents.
SECTION 3.5. Non-Contravention. The execution and delivery by
Holdings of the Securities Documents or any of the Acquisition Documents to
which it is a party did not and will not, the issuance and sale by Holdings of
the Securities will not, and the consummation of the transactions contemplated
hereby and thereby will not, contravene or constitute a default under or
violation of (i) assuming the filings referred to in Section 3.4 have been
undertaken or made, any provision of applicable law or regulation the violation
of which would have a Material Adverse Effect, (ii) its certificate of
incorporation or by-laws, or (iii) any agreement, judgment, injunction, order,
decree or other instrument binding upon it or any of its assets, the violation
of which would have a Material Adverse Effect or result in the creation or
imposition of any Lien on any asset of Holdings or any of its Subsidiaries,
except pursuant to or as permitted or contemplated by the terms hereof or of the
Finance Documents.
SECTION 3.6. Litigation. There is no action, suit or proceeding
pending to which Holdings, Acquisition Co., Composites or GmbH is a party, or to
the knowledge of Holdings, which is threatened against Holdings, Acquisition
Co., Composites or GmbH, before any court or arbitrator or any governmental
body, agency or official that would reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.7. Not an Investment Company; Not a Real Property Holding
Company. Holdings is not an "investment company" within the meaning of the
Investment Company Act of 1940,
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as amended. Holdings is not a United States real property holding company (as
that term is defined in Section 897(c)(2) of the United States Internal Revenue
Code of 1986, as amended).
SECTION 3.8. Solicitation; Access to Information. No form of general
solicitation or general advertising was used by Holdings or, to the best of its
knowledge, any other Person acting on behalf of Holdings, in respect of the
Securities or in connection with the offer and sale of the Securities. Neither
Holdings nor any Person acting on behalf of Holdings has, either directly or
indirectly, sold or offered for sale to any Person any of the Securities or any
other similar securities of Holdings except as contemplated by this Agreement,
and Holdings represents that neither Holdings nor any Person acting on its
behalf will sell or offer for sale to any Person any such security to, or
solicit any offers to buy any such security from, or otherwise approach or
negotiate in respect thereof with, any Person or Persons so as thereby to bring
the issuance or sale of any of the Securities within the provisions of Section 5
of the Securities Act.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
SECTION 4.1. Purchase for Investment; Authority; Binding Agreement.
Each Purchaser represents and warrants to Holdings that:
(a) Except as previously disclosed in writing to Holdings, such
Purchaser is an "accredited investor" within the meaning of Rule 501(a)
under the Securities Act and the Securities to be acquired by such
Purchaser pursuant to this Agreement are being acquired for its own
account and such Purchaser will not offer, sell, transfer, pledge,
hypothecate or otherwise dispose of the Securities unless pursuant to a
transaction either registered under, or exempt from registration under,
the Securities Act;
(b) the execution, delivery and performance of this Agreement and
the purchase of the Securities pursuant hereto are within its or his or
her power and have been duly and validly authorized by all requisite
action;
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(c) this Agreement has been duly executed and delivered by such
Purchaser;
(d) this Agreement constitutes a valid and binding agreement of
such Purchaser; and
(e) such Purchaser has such knowledge and experience in financial
and business matters so as to be capable of evaluating the merits and
risks of its investment in the Securities and is capable of bearing the
economic risks of such investment or such Purchaser has been advised by a
representative possessing such knowledge and experience.
SECTION 4.2. Private Placement. Each Purchaser (other than a DLJMB
Purchaser) represents and warrants to Holdings that:
(a) such Purchaser understands that (i) the offering and sale of the
Securities hereby is intended to be exempt from registration under the
Securities Act and (ii) there is no existing public or other market for
any of the Securities and there can be no assurance that any Purchaser
will be able to sell or dispose of the Securities to be purchased by such
Purchaser;
(b) such Purchaser's financial situation is such that such Purchaser
can afford to bear the economic risk of holding the Securities acquired
hereunder for an indefinite period of time, such Purchaser has adequate
means for providing for such Purchaser's needs and contingencies and can
afford to suffer the complete loss of the investment in the Securities;
(c) such Purchaser understands that the Securities acquired
hereunder are a speculative investment which involves a high degree of
risk of loss of the entire investment therein, that there are substantial
restrictions on the transferability of the Securities as set forth herein,
and that for an indefinite period following the date hereof there will be
no public market for any of the Securities and that, accordingly, it may
not be possible for such Purchaser to sell the Securities in case of
emergency or otherwise;
(d) such Purchaser and his or her representatives, including his or
her professional, financial, tax and other advisors, have carefully
reviewed all documents
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available to them in connection with the investment in the Securities, and
such Purchaser understands and has taken cognizance of all the risks
related to such investment;
(e) such Purchaser and his or her representatives have been given
the opportunity to examine all documents and to ask questions of, and to
receive answers from, Holdings and its representatives concerning the
terms and conditions of the acquisition of the Securities, the
Transaction, the financing thereof and related matters and to obtain all
additional information which such Purchaser or his or her representatives
deem necessary; and
(f) all information which such Purchaser has provided to Holdings
and its representatives concerning such Purchaser and such Purchaser's
financial position is true, complete and correct.
SECTION 4.3. Solicitation by Purchaser. Each Purchaser represents
and warrants to Holdings that no form of general solicitation or general
advertising was used by Purchaser or, to the best of its knowledge, any other
Person acting on behalf of Purchaser, in respect of the Securities or in
connection with the purchase of the Securities. Neither such Purchaser nor any
Person acting on its behalf has, either directly or indirectly, sold or offered
for sale to any Person any of the Securities or any other similar security of
Holdings except as contemplated by this Agreement.
ARTICLE V
COVENANTS
Holdings hereby agrees that, from and after the Time of Purchase and
so long as (i) any Notes remain outstanding and unpaid or any other amount is
owing to the Holders from time to time of the Notes or (ii) with respect to
Section 5.1, any Shares are owned by the Purchasers or their Permitted
Transferees, and for the benefit of such Holders:
SECTION 5.1. Information.1 Holdings shall deliver to each Holder:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of Holdings, a
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consolidated balance sheet of Holdings and its Subsidiaries as of the end
of such fiscal year and the related consolidated and consolidating
statements of income or operations, cash flows and stockholders' equity
(deficit) for such year, setting forth in each case in comparative form
the figures for the previous fiscal year and accompanied by the opinion of
Xxxxxx Xxxxxxxx LLP or another nationally recognized independent public
accounting firm ("Independent Auditor") which report (x) shall state that
such consolidated financial statements present fairly the consolidated
financial position of Holdings and its Subsidiaries for the persons
indicated in conformity with GAAP applied on a basis consistent with prior
years and (y) shall not be qualified or limited because of a restricted or
limited explanation by the Independent Auditor of any material portion of
Holdings' or any Subsidiary's Records;
(b) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each fiscal year of Holdings, a
consolidated balance sheet of Holdings and its Subsidiaries as of the end
of such quarter and the related consolidated and consolidating statements
of income and consolidated statements of cash flows and stockholders'
equity (deficit) for such quarter and for the portion of Holdings' fiscal
year ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the
corresponding portion of Holdings' previous fiscal year, all certified
(subject to footnote presentation and normal year-end adjustments) as to
fairness of presentation, generally accepted accounting principles and
consistency by the chief financial officer or the chief accounting officer
of Holdings;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
chief financial officer or the chief accounting officer of Holdings
stating whether any Default exists on the date of such certificate and, if
any Default then exists, setting forth other details thereof and the
action which Holdings is taking or proposes to take with respect thereto;
(d) within 5 days after any officer of Holdings obtains knowledge of
any Default, if such Default is then continuing, a certificate of the
chief financial officer or the chief accounting officer of Holdings
setting forth
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the details thereof and the action which Holdings is taking or proposes to
take with respect thereto;
(e) promptly upon the mailing thereof to the stockholders of
Holdings in their capacity as such, copies of all financial statements,
reports, proxy statements and other information so mailed; and
(f) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q
and 8-K that Holdings or its Subsidiaries shall have filed with the
Commission.
SECTION 5.2. Payment of Obligations. Holdings shall pay and
discharge at or before maturity of the Notes all its material obligations and
liabilities, including, without limitation, tax liabilities, except where the
same may be contested in good faith by appropriate proceedings, and shall
maintain, in accordance with generally accepted accounting principles,
appropriate reserves for the accrual of any of the same.
SECTION 5.3. Conduct of Business and Maintenance of Existence.
Holdings and its Subsidiaries shall continue to engage in business of the same
general type as now conducted by them, and Holdings shall and shall cause its
Subsidiaries to, preserve, renew and keep in full force and effect its
respective corporate existence and all material rights, privileges and
franchises necessary or desirable in the normal conduct of business, except
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.4. Compliance with Laws. Holdings and its Subsidiaries
shall comply in all material respects with all applicable laws, ordinances,
rules, regulations, and requirements of governmental authorities, except where
compliance therewith is contested in good faith by appropriate proceedings or
where the failure to do so would not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.5. Inspection of Property, Books and Records. Each of
Holdings and its Subsidiaries shall keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities, and shall permit
representatives of DLJMB at the expense of Holdings to visit and
19
-16-
inspect any of its properties, to examine and make abstracts from any of its
books and records and to discuss its affairs, finances and accounts with its
executive officers and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
SECTION 5.6. Investment Company Act. Neither Holdings nor any of its
Subsidiaries will be or become an investment company, open-end investment trust,
unit investment trust or face-amount certificate company that is or is required
to be registered under Section 8 of the Investment Company Act of 1940, as
amended.
ARTICLE VI
SUBORDINATION
SECTION 6.1. Notes Subordinated to Senior Debt. Holdings covenants
and agrees and each Holder (whether upon original issue or upon transfer,
assignment or exchange of any Note) accepts and agrees, that the payment of
amounts owing under any Note by Holdings shall, to the extent and in the manner
herein set forth, be subordinated in right of payment to the prior payment and
satisfaction in full of all Senior Debt.
SECTION 6.2. No Payment on Notes in Certain Circumstances. (a) If
any event of default shall have occurred and be continuing (or if such an event
of default would occur upon any payment in respect of the Note) with respect to
any Senior Debt (as such event of default is defined in such Senior Debt), no
payment (other than the accrual of original issue discount) shall be made by
Holdings with respect to amounts owing under the Notes.
(b) If, notwithstanding the foregoing, any payment shall be received
by any Holder when such payment is prohibited by Section 6.2, such payment shall
be held in trust for the benefit of the holders of Senior Debt, and shall be
paid over or delivered to the Agent on behalf of the holders of Senior Debt (pro
rata to such holders on the basis of the respective amounts of Senior Debt then
held by such holders).
SECTION 6.3. Payment Over of Proceeds Upon Dissolution, Etc. (a)
Upon any distribution of assets of, or payments by, Holdings of any kind or
character (whether in cash,
20
-17-
property or securities) to creditors upon any dissolution or winding-up or total
or partial liquidation or reorganization of Holdings (whether voluntary or
involuntary or in bankruptcy,insolvency, receivership or other proceedings), all
amounts due or to become due upon all Senior Debt (including, without
limitation, interest accruing after the filing of a petition under any
bankruptcy law at the rate provided for in the documents governing such Senior
Debt, whether or not allowable as a claim under such bankruptcy law) shall first
be paid in full in cash, or duly provided for, before any payment or
distribution is made on account of any amount owing under the Notes and before
Holdings shall, directly or indirectly, prepay, repay, redeem, purchase,
exchange or acquire any Notes. Upon any such dissolution, winding-up,
liquidation or reorganization, any payment or distribution of assets of, or
payments by, Holdings of any kind or character (whether in cash, property or
securities) to which the Holder would be entitled except for the provisions
hereof, shall be paid by Holdings or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other person making such payment or distribution,
or by the Holders if received by them, directly to the Agent on behalf of the
holders of Senior Debt (pro rata to such holders on the basis of the respective
amounts of Senior Debt then held by such holders) for application to the payment
of Senior Debt remaining unpaid until all such Senior Debt has been paid in full
in cash after giving effect to any concurrent payment, distribution or provision
therefor to or for the holders of such Senior Debt.
(b) If, notwithstanding the foregoing, any distribution of assets
of, or payments by, Holdings of any kind or character (whether in cash, property
or securities) shall be received by the Holders when such payment or
distribution is prohibited by Section 6.3(a), such payment or distribution shall
be held in trust for the benefit of the holders of Senior Debt, and shall be
paid over or delivered to Agent on behalf of the holders of Senior Debt (pro
rata to such holders on the basis of the respective amounts of Senior Debt then
held by such holders), for application to the payment of Senior Debt remaining
unpaid until all such Senior Debt has been paid in full in cash, after giving
effect to any concurrent payment, distribution or provision therefor to or for
the holders of Senior Debt.
(c) Upon the payment in full in cash of all Senior Debt, the Holders
shall be subrogated to the rights of the holders of Senior Debt to receive
payments or distributions of cash, property or securities of Holdings applicable
to the
21
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Senior Debt until all amounts owing under the Notes shall be paid in full; and,
for the purposes of such subrogation, (i) no payments or distributions to the
holders of the Senior Debt of any cash, property or securities to which the
Holders would be entitled except for the provisions of this Article VI, and no
payment over pursuant to the provisions of this Article VI to the holders of
Senior Debt by the Holders shall, as between Holdings, its creditors other than
holders of Senior Debt, and the Holders, be deemed to be a payment by Holdings
to or on account of the Senior Debt, and (ii) no payment or distributions of
cash, property or securities to or for the benefit of the Holders pursuant to
the subrogation provision of this paragraph (c) which would otherwise have been
paid to the holders of Senior Debt shall be deemed to be a payment by Holdings
to or for the account of the Notes.
(d) If any payment or distribution of assets of Holdings of any kind
or character (whether in cash, property or securities) to which the Holders
would otherwise be entitled but for the provisions of this Article VI shall be
received by the holders of Senior Debt, any portion of such payment or
distribution that is in excess of the amount which results in the payment and
satisfaction in full in cash of all Senior Debt shall be held in trust for the
benefit of, and shall be paid over or delivered to, in accordance with and to
the extent permitted by applicable law, the Holders (pro rata to such Holders on
the basis of the respective amounts of Notes then held by such Holders), for
application to the payment of all amounts remaining unpaid under the Notes.
SECTION 6.4. Limitation on Exercise of Remedies. Each Purchaser (and
each subsequent Holder) by its acceptance of delivery of any Note hereby agrees
that it will not at any time (i) attempt to enforce or collect on any Note or
enforce any other rights in respect of such Note (provided, however, that each
Purchaser (and each subsequent Holder) shall be entitled to declare the
indebtedness represented by the Notes to be due and payable if any indebtedness
under the Senior Debt shall have been declared to be due and payable) or (ii)
commence, or join with any other creditor in commencing, any bankruptcy,
reorganization or insolvency proceedings with respect to Holdings (provided,
however, that each Purchaser (and each subsequent Holder) shall be entitled to
file a proof of claim in respect of the Notes in any such proceeding so long as
such proof of claim shall state that the Notes are subordinated to the extent
and in the manner set forth in this Article VI; provided, further, that if any
such Purchaser or subsequent Holder
22
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has not filed such proof of claim prior to five Business Days before the last
date that such proofs of claim are permitted to be filed, the Agent may file
such proofs of claim on behalf of such Purchaser or subsequent Holder).
SECTION 6.5. Renewals, Extensions, etc. of Senior Debt. Each
Purchaser (and each subsequent Holder) by its acceptance of delivery of any Note
hereby agrees and consents that the obligations and liabilities of Holdings or
any other party or parties for or upon the Senior Debt (or any promissory note,
security document or guaranty evidencing or securing the same) may, from time to
time, in whole or in part, be renewed, extended, increased, modified, amended,
accelerated, compromised, supplemented, terminated, sold, exchanged, waived or
released as holders of the Senior Debt (or any representative or agent acting on
their behalf) may deem advisable without impairing, abridging, diminishing,
releasing or affecting the subordination of the Notes to the Senior Debt
provided for herein.
SECTION 6.6. Obligation of Holdings Unconditional. Nothing contained
in this Article VI (other than as set forth in Section 6.4) or any Note is
intended to or shall impair, as between Holdings and the Holders, the obligation
of Holdings, which is absolute and unconditional, to pay to the Holders amounts
owing under the Notes as and when the same shall become due and payable in
accordance herewith, or is intended to or shall affect the relative rights of
the Holders and creditors of Holdings other than the holders of Senior Debt, nor
shall anything herein or therein prevent the Holders from exercising all
remedies otherwise permitted by applicable law upon default under the Notes,
subject to the rights, if any, under this Article VI of the holders of the
Senior Debt in respect of cash, property or securities of Holdings received upon
the exercise of any such remedy.
SECTION 6.7. This Article Not to Prevent Events of Default. The
failure to make a payment on account of principal of or interest on the Notes by
reason of any provision of this Article VI will not be construed as preventing
the occurrence of an Event of Default.
SECTION 6.8. General. (a) Each Purchaser (and each subsequent
Holder) by its acceptance of delivery of any Note hereby acknowledges and agrees
that the holders of the Senior Debt have relied upon and will continue to rely
upon the
23
-20-
provisions of this Article VI in entering into the agreements relating to Senior
Debt and in extending credit to Holdings pursuant thereto.
(b) No right of any current or future holder of any Senior Debt to
enforce the provisions of this Article VI shall at any time in any way be
prejudiced or impaired by any act or failure to act by any such holder, or by
any noncompliance by Holdings with the terms and provisions and covenants
herein, regardless of any knowledge thereof any such holder may have or
otherwise be charged with or by any action or failure to act on the part of
Holdings.
(c) The provisions of this Article VI are intended to be for the
benefit of, and shall be enforceable directly by, the holders of the Senior
Debt, without any act or notice of acceptance hereof by such holders.
ARTICLE VII
LIMITATION ON TRANSFERS
SECTION 7.1. Restrictions on Transfer. (a) From and after the Time
of Purchase, none of the Notes shall be transferable except to Permitted
Transferees or upon the conditions specified in this Article VII which
conditions are intended to ensure compliance with the provisions of the
Securities Act in respect of the Transfer of any of such Securities or any
interest therein. Each Purchaser agrees to cause any proposed transferee of any
Notes (or any interest therein) held by it to agree to take and hold such Notes
(or any interest therein) subject to the provisions and upon the conditions
specified in this Article VII.
(b) From and after the Time of Purchase, none of the Shares shall be
transferable except as contemplated by the Shareholders Agreement.
SECTION 7.2. Restrictive Legends. (a) Each certificate for the Notes
issued to any Purchaser or to any Permitted Transferee shall include a legend in
substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE
24
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SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN
REGISTERED UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS
AN EXEMPTION FROM REGISTRATION IS AVAILABLE AND THEN ONLY IN COMPLIANCE
WITH THE RESTRICTIONS ON TRANSFER SET FORTH IN THE SECURITIES PURCHASE
AGREEMENT DATED AS OF OCTOBER 6, 1995 RELATING TO THIS SECURITY, A COPY OF
WHICH MAY BE OBTAINED FROM FIBERITE HOLDINGS, INC. AT ITS PRINCIPAL
EXECUTIVE OFFICE.
(b) Any Holders of Notes registered pursuant to the Securities Act
and qualified under applicable state securities laws may exchange such Notes on
transfer for new securities that shall not bear the legend set forth in
paragraph (a) of this Section 7.2.
SECTION 7.3. Notice of Proposed Transfers. Five Business Days prior
to any proposed Transfer of any Notes (other than Transfers of Notes (i)
registered under the Securities Act of (ii) to a Permitted Transferee), the
Holder thereof shall give written notice to Holdings of such Holder's intention
to effect such Transfer, setting forth the manner and circumstances of the
proposed Transfer, and shall be accompanied by (A) an opinion of counsel
reasonably satisfactory to Holdings addressed to Holdings to the effect that the
proposed Transfer of such Notes may be effected without registration under the
Securities Act, (B) such representation letters in form and substance reasonably
satisfactory to Holdings to ensure compliance with the provisions of the
Securities Act, and (C) such letters in form and substance reasonably
satisfactory to Holdings from each such transferee stating such transferee's
agreement to be bound by the terms of this Agreement. Such proposed Transfer may
be effected only if Holdings shall have received such notice of transfer,
opinion of counsel, representation letters and other letters referred to in the
immediately preceding sentence, whereupon the holder of such Notes shall be
entitled to Transfer such Notes in accordance with the terms of the notice
delivered by the holder to Holdings. Each certificate evidencing the Notes
transferred as above provided shall bear the legend set forth in Section 7.2(a)
except that such certificate shall not bear such legend if the opinion of
counsel referred to above is to the further effect that neither such legend nor
the restrictions on Transfer in this Article VII are required in order to ensure
compliance with the provisions of the Securities Act.
25
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.1. Notices. All notices, demands and other communications
to any party hereunder shall be in writing (including telecopier or similar
writing) and shall be given to such party at its address set forth on the
signature pages hereof, or such other address as such party may hereinafter
specify for the purpose. Each such notice, demand or other communication shall
be effective (i) if given by telecopy, when such telecopy is transmitted to the
telecopy number specified on the signature page hereof, (ii) if given by mail,
four days after such communication is deposited in the mail with first class
postage prepaid, addressed as aforesaid or (iii) if given by any other means,
when delivered at the address specified in this Section 8.1.
SECTION 8.2. No Waivers; Amendments. (a) No failure or delay on the
part of any party in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right, power or remedy. The remedies provided for herein and in the other
Note Documents are cumulative and are not exclusive of any remedies that may be
available to any party at law or in equity or otherwise.
(b) Any provision of this Agreement may be amended, supplemented or
waived if, but only if, such amendment, supplement or waiver is in writing and
is signed by Holdings and the Majority Holders; provided that without the
consent of each Holder of any Notes affected thereby, an amendment, supplement
or waiver may not (a) reduce the aggregate Accreted Amount of Notes whose
holders must consent to an amendment, supplement or waiver, (b) reduce the rate
or extend the time for payment of interest on any Notes, (c) reduce the Accreted
Amount of or extend the stated maturity of any Notes or permit any amount
payable in respect of the Notes to be paid in money or property other than as
stated in the Notes. In determining whether the holders of the requisite
principal amount of Notes have concurred in any direction, consent, or waiver as
provided in this Agreement or in the Notes, Notes which are owned by Holdings or
any other obligor on the Notes, or by any Person (other than a DLJ Affiliate)
controlling, controlled by, or under common control with any of the foregoing,
shall be disregarded and deemed not to be outstanding for the purpose of any
such
26
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determination; and provided further that no such amendment, supplement or waiver
which affects the rights of DLJMB, otherwise than solely in its capacity as a
holder of the Notes, shall be effective with respect to it without its prior
written consent. For so long as the Guaranty of Holdings under the Credit
Agreement is outstanding, no amendment to this Agreement which modifies the
provisions of Article VI hereof, this sentence or the definitions of defined
terms used therein (to the extent used therein) shall be effective without the
prior written consent of the Agent.
SECTION 8.3. Expenses; Documentary Taxes. Holdings agrees to pay all
reasonable out-of-pocket costs, expenses and other payments in connection with
the purchase and sale of the Securities as contemplated by this Agreement
including without limitation (i) fees and disbursements of special counsel for
DLJMB incurred in connection with the preparation of this Agreement, (ii) all
out-of-pocket expenses of DLJMB, including fees and disbursements of counsel, in
connection with any waiver or consent hereunder or any amendment hereof or any
Default or alleged Default hereunder and (iii) if an Event of Default occurs,
all out-of-pocket expenses incurred by DLJMB and each Holder of Notes, including
fees and disbursements of counsel, in connection with such Event of Default and
collection, bankruptcy, insolvency and other enforcement proceedings resulting
therefrom. In addition, Holdings agrees to pay any and all stamp, transfer and
other similar taxes, assessments or charges payable in connection with the
execution and delivery of this Agreement or the issuance of the Securities.
SECTION 8.4. Successors and Assigns. This Agreement shall be binding
upon Holdings and each Purchaser and its successors and assigns. Holdings may
not assign or otherwise transfer its rights or obligations under this Agreement
to any other Person without the prior written consent of all of the Holders. All
provisions hereunder purporting to give rights to DLJ and its Affiliates or to
holders of Notes or Shares are for the express benefit of such Persons.
SECTION 8.5. Brokers. Holdings represents and warrants that, except
for DLJSC and, solely in connection with the Transaction, Valufinder Group,
Inc., it has not employed any broker, finder, financial advisor or investment
banker who might be entitled to any brokerage, finder's or other fee or
commission in connection with the Transaction or the sale of Notes or the
Shares.
27
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SECTION 8.6. New York Law; Submission to Jurisdiction; Waiver of
Jury Trial. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF. EACH PARTY HERETO HEREBY SUBMITS TO THE NONEXCLUSIVE
JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR PURPOSES
OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE
NOTES, THE SHARES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY. EACH PARTY
HERETO 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
PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING
BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH PARTY
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 8.7. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
SECTION 8.8. Counterparts. This Agreement may be executed in any
number of counterparts each of which shall be an original with the same effect
as if the signatures thereto and hereto were upon the same instrument.
28
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers or representatives, as
of the date first above written.
FIBERITE HOLDINGS, INC.
By: /s/ Xxxxxxxx Xxxx
-----------------------------------------------
Name:
Title:
Fiberite Holdings, Inc.
x/x XXX Merchant Banking, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
with a copy to:
DLJ Merchant Banking, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
$26,922,900 DLJ MERCHANT BANKING PARTNERS, L.P.
4,226,157 shares BY: DLJ MERCHANT BANKING, INC.
Managing General Partner
DLJ Merchant Banking, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
By: /s/ Xxxxxxxx Xxxx
-----------------------------------------------
29
$12,038,400 DLJ INTERNATIONAL PARTNERS, C.V.
1,889,701 shares BY: DLJ MERCHANT BANKING, INC.
Advisory General Partner
DLJ Merchant Banking, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
By: /s/ Xxxxxxxx Xxxx
-----------------------------------------------
$698,000 DLJ OFFSHORE PARTNERS, C.V.
109,566 shares BY: DLJ MERCHANT BANKING, INC.
Advisory General Partner
DLJ Merchant Banking, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
By: /s/ Xxxxxxxx Xxxx
-----------------------------------------------
$635,100 STEEPLE INTERNATIONAL, INC.
99,648 shares BY: /s/ Xxx Xxxxxxxx
----------------------------------------------
Name: Xxx X. Xxxxxxxx
Title: President
Address: C/O Valufinder Group, Inc.
Leveraged Finance Group
00 Xxxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxx X. Xxxxxxxx
Fax: (000) 000-0000
30
$17,496,000 DLJ MERCHANT BANKING FUNDING, INC.
2,746,398 shares
DLJ Merchant Banking, Inc.
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Telecopy: (000) 000-0000
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Xxxx X. Xxxxxx
Attorney in Fact
$5,915,100 CARLISLE-FIBERITE INVESTORS, L.P.
928,530 shares A Delaware Limited Partnership
By: CARLISLE GROUP, L.P.
its General Partner
By: CARLISLE ENTERPRISES, L.P.
its General Partner
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxx
Title:General Partner
Address: Carlisle Enterprises, L.P.
0000 Xxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Fax: (000) 000-0000
