CONFORMED COPY
Exhibit 3
SUBSCRIPTION AGREEMENT
dated as of
August 7, 1997
among
QUAKER HOLDING CO.
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock
of
Quaker Holding Co.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions......................................................................1
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale................................................................3
SECTION 2.02. Closing..........................................................................3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
SECTION 3.01. Corporate Existence and Power....................................................4
SECTION 3.02. Corporate Authorization..........................................................4
SECTION 3.03. Governmental Authorization.......................................................5
SECTION 3.04. Noncontravention.................................................................5
SECTION 3.05. Capitalization and Voting Rights.................................................5
SECTION 3.06. Valid Issuance of Common Stock...................................................6
SECTION 3.07. Litigation.......................................................................6
SECTION 3.08. Brokers or Finders' Fees.........................................................6
SECTION 3.09. Newly Formed Corporation.........................................................6
SECTION 3.10. Meaning of Seller................................................................6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
SECTION 4.01. Existence and Power..............................................................7
SECTION 4.02. Authorization....................................................................7
SECTION 4.03. Governmental Authorization.......................................................7
SECTION 4.04. Purchase for Investment..........................................................7
SECTION 4.05. Private Placement................................................................7
SECTION 4.06. Litigation.......................................................................9
SECTION 4.07. Brokers or Finders' Fees.........................................................9
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and Seller...............................9
SECTION 5.02. Conditions to Obligation of Each Buyer...........................................9
SECTION 5.03. Conditions to Obligation of Seller..............................................10
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival........................................................................10
SECTION 6.02. Indemnification.................................................................11
SECTION 6.03. Procedures and Third Party Claims...............................................11
SECTION 6.04. Calculation of Damages..........................................................12
SECTION 6.05. Exclusivity.....................................................................13
--
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination.........................................................13
SECTION 7.02. Effect of Termination...........................................................13
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices.........................................................................14
SECTION 8.02. Amendments and Waivers..........................................................15
SECTION 8.03. Expenses........................................................................15
SECTION 8.04. Successors and Assigns..........................................................15
SECTION 8.05. Governing Law...................................................................15
SECTION 8.06. Jurisdiction....................................................................15
SECTION 8.07. Waiver Of Jury Trial............................................................16
SECTION 8.08. Counterparts; Third Party Beneficiaries.........................................16
SECTION 8.09. Entire Agreement................................................................16
SECTION 8.10. Captions........................................................................16
SECTION 8.11. Severability....................................................................16
SECTION 8.12. Interpretation..................................................................16
Schedule A Schedule of Investors
Exhibit A Certificate of Incorporation
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 7, 1997 between Quaker Holding Co., a
Delaware corporation ("Seller"), and the Persons named on Schedule A hereto
(each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, the Seller has agreed to merge with and into DecisionOne
Holdings Corp. (the "Company") on the terms and conditions set forth in the
Agreement and Plan of Merger dated as of May 4, 1997 (the "Merger") between
Seller and the Company (as subsequently amended, the "Merger Agreement");
WHEREAS, to finance, in part, the payment of the consideration payable
in the Merger, Seller intends to issue shares of common stock, par value $0.01
per share (the "Common Stock" or the "Securities");
WHEREAS, all of the outstanding capital stock of the Seller is
currently owned by DLJ Merchant Banking Partners II, L.P. ("DLJMB") and
affiliated funds and entities (collectively, the "DLJMB Funds");
WHEREAS, certain institutional investors wish to invest in the Seller
incident to the Merger;
WHEREAS, Seller desires to issue and sell the Common Stock to each of
the Buyers, and each of the Buyers desires to purchase the Common Stock from
Seller, upon the terms and subject to the conditions hereinafter set forth;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person.
"Closing Date" means the date of the Closing.
"Common Share" means one share of Common Stock.
"Investors' Agreement" means the Investors' Agreement dated as of the
date hereof among Quaker Holding Co., DLJ Merchant Banking Partners II, L.P.,
DLJ Merchant Banking Partners XX-X, X.X., XXX Xxxxxxxx Xxxxxxxx XX, X.X., XXX
Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ Millenium
Partners, L.P., DLJ Funding II, Inc., DLJ EAB Partners, L.P., UK Investment Plan
1997 Partners, DLJ First ESC, LLC, and certain other shareholders listed on the
signature pages thereto.
"Lien" means, with respect to any property or asset, any mortgage,
lien, pledge, charge, security interest or encumbrance in respect of such
property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Tax" means, with respect to any Person, any net income tax, or
franchise tax based on net income including any alternative or add-on minimum
tax, together with any interest, penalty, addition to tax or additional amount
due from such Person imposed by any governmental authority (domestic or foreign)
responsible for the imposition of any such tax.
"Tax Benefit" means any deduction, amortization, exclusion from income
or other allowance.
"Transaction Documents" means this Agreement, the Merger Agreement
and the Investors' Agreement.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Accredited Investor 4.06(h)
Certificate of Incorporation 3.08
Claim 6.03
Closing 2.02
Common Stock Recitals
Company Recitals
Damages 6.02
DLJMB Recitals
DLJMB Funds Recitals
Indemnified Party 6.03
Indemnifying Party 6.03
Purchase Price 2.01
Securities Recitals
Third Party Claim 6.03
ARTICLE 2
PURCHASE AND SALE
SECTION 2.01. Purchase and Sale. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to issue and sell to each Buyer, and
each Buyer agrees, severally and not jointly, to purchase from Seller the Common
Stock set forth opposite such Buyer's name on Schedule A hereto at the Closing.
The purchase price for the Common Stock (the "Purchase Price") is the amount in
cash specified on Schedule A hereto. The Purchase Price shall be paid as
provided in Section 2.02.
SECTION 2.02. Closing. The closing (the "Closing") of the purchase and
sale of the Common Stock hereunder shall take place at the offices of Xxxxx Xxxx
& Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as soon as possible, but
in no event later than five business days, after satisfaction of the conditions
set forth in Article 5, or at such other time or place as Buyers and Seller may
agree. At the Closing:
(a) Each Buyer shall deliver to Seller, in immediately available
funds, the Aggregate Purchase Price set forth opposite such Buyer's name on
Schedule A hereto, by wire transfer (or other means acceptable to Seller) to an
account of Seller with a bank in New York City designated by Seller, by notice
to such Buyer, not later than two business days prior to the Closing Date.
(b) Seller shall deliver to each Buyer certificates for the Common
Shares duly registered in the name of such Buyer.
(c) If the Closing has occurred but the Merger is not consummated
prior to the close of business on Friday, August 8, 1997, then Seller shall
immediately
deliver to each Buyer, against delivery by such Buyer of the stock certificates
representing the shares of Common Stock purchased by such Buyer, the Aggregate
Purchase Price paid to Seller by such Buyer (as set forth opposite such Buyer's
name on Schedule A hereto), and this Agreement shall thereupon be terminated.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to each Buyer as of the date hereof and
as of the Closing Date that:
SECTION 3.01. Corporate Existence and Power. Seller is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate powers and all governmental
licenses, authorizations, permits, consents and approvals required to carry on
its business as now conducted and as proposed to be conducted.
SECTION 3.02. Corporate Authorization. The execution, delivery and
performance by Seller of each of the Transaction Documents and the consummation
of the transactions contemplated hereby and thereby (including the issuance and
sale of the Common Stock) are within Seller's corporate powers and have been
duly authorized by all necessary corporate action on the part of Seller. Each of
the Transaction Documents constitutes a valid and binding agreement of Seller,
enforceable against Seller in accordance with its respective terms, except (i)
as limited by the applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement or creditors' rights
generally, or (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
SECTION 3.03. Governmental Authorization. The execution, delivery and
performance by Seller of each of the Transaction Documents and the consummation
of the transactions contemplated hereby and thereby require no order, license,
consent, authorization or approval of, or exemption by, or action by or in
respect of, or notice to, or filing or registration with, any governmental body,
agency or official except such as have been obtained.
SECTION 3.04. Noncontravention. The execution, delivery and performance
by Seller of each of the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby do not and will not (i) violate the
certificate of incorporation or bylaws of Seller, (ii) violate any applicable
law, rule, regulation, judgment, injunction, order or decree, (iii) require any
consent or other action by any Person under, constitute a default under (with
due notice or lapse of time or both), or give rise to any right of termination,
cancellation or acceleration of any right or obligation of Seller or to a loss
of any benefit to which Seller is entitled under any provision of any agreement
or other
instrument binding upon Seller or any of Seller's assets or properties or (iv)
result in the creation or imposition of any material Lien on any property or
asset of Seller.
SECTION 3.05. Capitalization and Voting Rights. (a) The authorized
capital stock of the Seller consists of 30,000,000 shares of Common Stock and
15,000,000 shares of preferred stock, and the outstanding capital stock of the
Seller immediately prior to the Closing is 101 shares of Common Stock and no
shares of preferred stock. The rights, privileges and preferences of the Common
Stock are set forth in the Certificate of Incorporation attached hereto as
Exhibit A (the "Certificate of Incorporation").
(b) Immediately following the Closing the outstanding capital stock of
the Seller will be 10,918,979 shares of Common Stock. 148,400 warrants to
purchase 281,960 shares of Common Stock will be issued shortly after Closing to
purchasers of Seller's 11 1/2% Senior Discount Debentures due 2008.
(c) Except as set forth in this Section 3.05 there are, and immediately
after the Closing there will be, no outstanding (i) shares of capital stock or
voting securities of the Seller, (ii) securities of the Seller convertible into
or exchangeable for shares of capital stock or voting securities of the Seller,
(iii) options or other rights to acquire from the Seller, or other obligation of
the Seller to issue, any capital stock, voting securities or securities
convertible into or exchangeable for capital stock or voting securities of the
Seller or (iv) other than as expressly permitted in the Transaction Documents or
employment plans, no obligation of the Seller to repurchase or otherwise acquire
or retire any shares of capital stock or any convertible securities, rights or
options of the type described in (i), (ii), or (iii).
SECTION 3.06. Valid Issuance of Common Stock. The shares of Common
Stock which are being issued to the Buyers hereunder, have been duly and validly
authorized and when issued, sold and delivered in accordance with the terms
hereof for the consideration expressed herein, will be fully paid and
nonassessable, and based in part on the representations of the Buyers herein,
will be validly issued in compliance with all applicable federal and state
securities laws.
SECTION 3.07. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of Seller, threatened against or
affecting Seller or any of its respective properties before any court or
arbitrator or any governmental body, agency or official which in any manner
challenges or seeks to prevent, enjoin, alter or materially delay the
transactions contemplated by this Agreement or which could reasonably be
expected to have a material adverse effect on the business, financial condition,
properties or operations of Seller, nor is Seller aware that there is any basis
for the foregoing.
SECTION 3.08. Brokers or Finders' Fees. Other than Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation there is no investment banker, broker, finder or
other intermediary which has been retained by, will be retained by, or is
authorized to act on behalf of Seller who might be entitled to any fee or
commission from the Seller in connection with the transactions contemplated by
this Agreement.
SECTION 3.09. Newly Formed Corporation. Seller was incorporated on
April 30, 1997 in the State of Delaware solely for the purpose of effectuating
the transactions contemplated in this Agreement and the Merger Agreement and has
not conducted any business or entered into any agreements or commitments except
with respect to the foregoing.
SECTION 3.10. Meaning of Seller. Except as otherwise specifically
provided herein, references to the Seller contained in this Article 3 shall be
construed to refer to the Seller immediately prior to the consummation of the
transactions contemplated by the Merger Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer represents and warrants to Seller, severally as to itself
only and not jointly or as to any other Buyer, as of the date hereof and as of
the Closing Date that:
SECTION 4.01. Existence and Power. Such Buyer, if not an individual, is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of organization and has all powers (corporate, partnership or
otherwise) and all material governmental licenses, authorizations, permits,
consents and approvals required to carry on its business as now conducted. Such
Buyer, if an individual, has the legal capacity to enter into this Agreement and
the Investors' Agreement.
SECTION 4.02. Authorization. The execution, delivery and performance by
such Buyer of each of this Agreement and the Investors' Agreement and the
consummation of the transactions contemplated hereby and thereby are within the
powers (corporate, partnership or otherwise) of such Buyer and have been duly
authorized by all necessary action on the part of such Buyer. Each of this
Agreement and the Investors' Agreement constitutes a valid and binding agreement
of such Buyer, enforceable in accordance with their respective terms, except (i)
as limited by the applicable bankruptcy, insolvency, reorganization, moratorium,
and other laws of general application affecting enforcement or creditors' rights
generally, or (ii) as limited by laws relating to the availability of specific
performance, injunctive relief, or other equitable remedies.
SECTION 4.03. Governmental Authorization. The execution, delivery and
performance by such Buyer of this Agreement and the Investors' Agreement and the
consummation of the transactions contemplated hereby and thereby require no
order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official.
SECTION 4.04. Purchase for Investment. Such Buyer is purchasing the
Common Stock for investment for its own account and not with a view to, or for
sale in connection with, any distribution thereof.
SECTION 4.05. Private Placement. (a) Such Buyer understands that (i)
the offering and sale of the Securities hereby is intended to be exempt from
registration under the 1933 Act and (ii) there is only a limited market for the
Common Stock, and there can be no assurance that any Buyer will be able to sell
or dispose of the Common Stock to be purchased by such Buyer.
(b) Such Buyer's financial situation is such that such Buyer
can afford to bear the economic risk of holding the Common Stock acquired
hereunder for an indefinite period of time, and such Buyer can afford to suffer
the complete loss of the investment in the Common Stock .
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and risks
of the investment in the Common Stock, or such Buyer has been advised by a
representative possessing such knowledge and experience.
(d) Such Buyer understands that the Common Stock acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Common Stock as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no (or only a limited) public market for the Common Stock and that,
accordingly, it may not be possible for such Buyer to sell the Common Stock in
case of emergency or otherwise.
(e) Such Buyer and its representatives, including, to the
extent it deems appropriate, its professional, financial, tax and other
advisors, have reviewed all documents provided to them in connection with the
investment in the Common Stock, and such Buyer understands and is aware of the
risks related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, Seller and its representatives concerning the terms and conditions
of the acquisition of the Common Stock and related matters and to obtain all
additional information which such Buyer or its representatives deem necessary.
(g) All information which such Buyer has provided to Seller
and its representatives concerning such Buyer and such Buyer's financial
position is true, complete and correct, and such Buyer agrees to promptly notify
Seller if at any time this ceases to be the case prior to the Closing.
(h) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
SECTION 4.06. Litigation. There is no action, suit, investigation or
proceeding pending against, or to the knowledge of such Buyer threatened against
or affecting, such Buyer before any court or arbitrator or any governmental
body, agency or official which in any manner challenges or seeks to prevent,
enjoin, alter or materially delay the transactions contemplated by this
Agreement or the Investors' Agreement.
SECTION 4.07. Brokers or Finders' Fees. There is no investment banker,
broker, finder or other intermediary which has been retained by, will be
retained by or is authorized to act on behalf of such Buyer who might be
entitled to any fee or commission from the Company, Seller or the DLJ entities
upon consummation of the transactions contemplated by this Agreement (as defined
in the Investors' Agreement of even date herewith).
ARTICLE 5
CONDITIONS TO CLOSING
SECTION 5.01. Conditions to Obligations of Each Buyer and Seller. The
obligations of Buyer and Seller to consummate the Closing are subject to the
satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation and no
judgment, injunction, order or decree by any governmental entity of
competent jurisdiction shall prohibit the consummation of the Closing
or the Merger.
(b) All material actions by or in respect of, or filings with, any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or obtained.
(c) The conditions to the consummation of the Merger
Agreement (other than the condition set forth in Section 8.01(e)
thereof, which shall be reasonably certain to occur immediately after
the Closing) shall have been satisfied or waived.
SECTION 5.02. Conditions to Obligation of Each Buyer. The obligation of
each Buyer to consummate the Closing is subject to the satisfaction of the
following further conditions:
(a) (i) Seller shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to
the Closing Date and (ii) the representations and warranties of Seller
contained in this Agreement and in any certificate or other writing
delivered by Seller pursuant hereto shall be true in all material
respects when made and at and as of the Closing Date, as if made at and
as of such date.
(b) Such Buyer shall have received all documents it may reasonably
request relating to the existence of Seller and the authority of Seller
for this Agreement, all in form and substance reasonably satisfactory
to such Buyer.
SECTION 5.03. Conditions to Obligation of Seller. The obligation of
Seller to consummate the Closing with respect to any Buyer is subject to the
satisfaction of the following further conditions:
(a) (i) Such Buyer shall have performed in all material
respects all of its obligations hereunder required to be performed by
it at or prior to the Closing Date and (ii) the representations and
warranties of such Buyer contained in this Agreement and in any
certificate or other writing delivered by such Buyer pursuant hereto
shall be true in all material respects when made and at and as of the
Closing Date, as if made at and as of such date.
(b) Seller shall have received all documents it may reasonably
request relating to the existence of such Buyer and the authority of
such Buyer for this Agreement, all in form and substance reasonably
satisfactory to Seller.
ARTICLE 6
SURVIVAL; INDEMNIFICATION
SECTION 6.01. Survival. The representations and warranties of the
parties hereto contained in this Agreement or in any certificate delivered
pursuant hereto or in connection herewith shall survive the Closing until twelve
months after the Closing Date, provided that the representations and warranties
contained in
Sections 3.01, 3.02, 3.04, 3.05, 3.06 and 4.01 shall survive indefinitely for
the maximum period permitted by applicable law, if longer. Notwithstanding the
preceding sentence, any representation or warranty in respect of which indemnity
may be sought under this Agreement shall survive the time at which it would
otherwise terminate pursuant to the preceding sentence, if notice of the
inaccuracy or breach thereof giving rise to such right of indemnity shall have
been given to the party against whom such indemnity may be sought prior to such
time, but only as to such inaccuracy or breach. A breach of any representation
or warranty made in this Agreement shall not affect in any manner whatsoever the
relative rights and obligations of the parties to and under the Investors'
Agreement.
SECTION 6.02. Indemnification. (a) Seller hereby indemnifies each Buyer
and its Affiliates, limited partners, general partners, directors, officers and
employees against and agrees to hold each of them harmless from any and all
damage, loss, liability and expense (including, without limitation, reasonable
expenses of investigation and reasonable attorneys' fees and expenses in
connection with any action, suit or proceeding) ("Damages") incurred or suffered
by any such party arising out of any misrepresentation or breach of warranty,
covenant or agreement made or to be performed by Seller pursuant to this
Agreement; provided that with respect to any Buyer, (i) Seller shall not be
liable under this Section 6.02(a) unless the aggregate amount of Damages with
respect to all matters referred to in this Section 6.02(a) for which such Buyer
has sought indemnification exceeds $100,000 and then only to the extent of such
excess and (ii) Seller's maximum liability under this Section 6.02(a) shall not
exceed the amount of the Purchase Price paid by such Buyer.
(b) Each Buyer hereby indemnifies, severally and not jointly, Seller
and its Affiliates, limited partners, general partners, directors, officers and
employees against and agrees to hold each of them harmless from any and all
Damages incurred or suffered by any such party arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by such Buyer pursuant to this Agreement; provided that (i) such Buyer
shall not be liable under this Section 6.02(b) unless the aggregate amount of
Damages with respect to all matters referred to in this Section 6.02(b) exceeds
$100,000 and then only to the extent of such excess and (ii) such Buyer's
maximum liability under this Section 6.02(b) shall not exceed the amount of
Purchase Price paid by such Buyer.
SECTION 6.03. Procedures and Third Party Claims. (a) The party seeking
indemnification under Section 6.02 (the "Indemnified Party") agrees to give
prompt notice to the party against whom indemnity is sought (the "Indemnifying
Party") of the assertion of any claim, or the commencement of any suit, action
or proceeding ("Claim") in respect of which indemnity may be sought under such
Section and will provide the Indemnifying Party such information with respect
thereto that the Indemnifying Party may reasonably request. The failure to so
notify the Indemnifying Party shall not relieve the Indemnifying Party of its
obligations hereunder, except to the extent such failure shall have adversely
prejudiced the Indemnifying Party (except that the Indemnifying Party shall not
be liable for any expenses incurred during the period in which the Indemnified
Party failed to give such notice).
(b) The Indemnifying Party shall be entitled to participate in the
defense of any Claim asserted by any third party ("Third Party Claim") and,
subject to the limitations set forth in this Section, shall be entitled to
control and appoint lead counsel for such defense, in each case at its expense.
(c) If the Indemnifying Party shall assume the control of the defense
of any Third Party Claim in accordance with the provisions of this Section, (i)
the Indemnifying Party shall obtain the prior written consent of the Indemnified
Party (which shall not be unreasonably withheld) before entering into any
settlement of such Third Party Claim, if the settlement does not release the
Indemnified Party from all liabilities and obligations with respect to such
Third Party Claim or the settlement imposes injunctive or other equitable relief
against the Indemnified Party and (ii) the Indemnified Party shall be entitled
to participate in the defense of such Third Party Claim and to employ separate
counsel of its choice for such purpose. The fees and expenses of such separate
counsel shall be borne by the Indemnified Party.
(d) Each party shall cooperate, and cause its respective Affiliates to
cooperate, in the defense or prosecution of any Third Party Claim and shall
furnish or cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or appeals, as
may be reasonably requested in connection therewith.
SECTION 6.04. Calculation of Damages. (a) The amount of any Damages
payable under Section 6.02 by the Indemnifying Party shall be net of any (i)
amounts recovered or recoverable by the Indemnified Party under applicable
insurance policies, (ii) Tax cost incurred by the Indemnified Party arising from
the receipt of indemnity payments and (iii) Tax Benefit realized by the
Indemnified Party arising from the incurrence or payment of any such Damages. In
computing the amount of any such Tax cost or Tax Benefit, the Indemnified Party
shall be deemed to fully utilize, at the highest marginal tax rate then in
effect, all Tax items arising from the receipt of any indemnity payment
hereunder or the incurrence or payment of any indemnified Damages.
(b) The Indemnifying Party shall not be liable under Section 6.02 for
any (i) incidental Damages, (ii) consequential or punitive Damages or (iii)
Damages for lost profits.
SECTION 6.05. Exclusivity. After the Closing, Section 6.02 will provide the
exclusive remedy for any misrepresentation, breach of warranty, covenant or
other agreement or other claim arising out of this Agreement or the transactions
contemplated hereby.
ARTICLE 7
TERMINATION
SECTION 7.01. Grounds for Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual written agreement of Seller and Buyers;
(b) by either Seller or any Buyer as to such Buyer if the Closing
shall not have been consummated as of the close of business on Friday,
August 8, 1997; or
(c) by either Seller or any Buyer if consummation of the transactions
contemplated hereby would violate any non-appealable final order,
decree or judgment of any court or governmental body having competent
jurisdiction.
The party desiring to terminate this Agreement pursuant to clauses 7.01(b) or
(c) shall give notice of such termination to the other party.
SECTION 7.02. Effect of Termination. If this Agreement is terminated as
permitted by Section 7.01, such termination shall be without liability of either
party (or any stockholder, general partner, limited partner, director, officer,
employee, agent, consultant or representative of such party) to the other party
to this Agreement; provided that if such termination shall result from the
willful (i) failure of either party to fulfill a condition to the performance of
the obligations of the other party, (ii) failure to perform a covenant of this
Agreement or (iii) breach by either party hereto of any representation or
warranty or agreement contained herein, such party shall be fully liable for any
and all Damages incurred or suffered by the other party as a result of such
failure or breach. The provisions of Sections 8.03, 8.05 and 8.06 shall survive
any termination hereof pursuant to Section 7.01.
ARTICLE 8
MISCELLANEOUS
SECTION 8.01. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmission) and
shall be given,
if to any Buyer, to such Buyer at the address specified by such Buyer
on the signature pages of this Agreement or in a notice given by such Buyer to
Seller for such purpose;
if to Seller, to:
Quaker Holding Co.
c/o DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such notices, requests and other communications shall be deemed received on
the date of receipt by the recipient thereof if received prior to 5 p.m. in the
place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
SECTION 8.02. Amendments and Waivers. (a) Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement, or in the case of a waiver, by the party against whom the waiver is
to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of
any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 8.03. Expenses. All costs and expenses incurred in connection
with this Agreement shall be paid by the party incurring such cost or expense,
except that if the Closing shall occur, the Company shall reimburse (i) the
Buyers other than the DLJ Entities (as that term is defined in the Investors'
Agreement) for up to $20,000 in respect of fees and expenses of one counsel
retained to represent such Buyers and (ii) the DLJ Entities for all costs and
expenses incurred by the DLJ Entities.
SECTION 8.04. Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided that no party may assign, delegate
or otherwise transfer any of its rights or obligations under this Agreement
without the consent of each other party hereto.
SECTION 8.05. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the State of New York.
SECTION 8.06. Jurisdiction. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or the transactions
contemplated hereby may only be brought in the United States District Court for
the Southern District of New York or any New York State court sitting in New
York City, and each of the parties hereby consents to the jurisdiction of such
courts (and of the appropriate appellate courts therefrom) in any such suit,
action or proceeding and irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such suit, action or proceeding in any such court or that any such suit,
action or proceeding which is brought in any such court has been brought in an
inconvenient forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 8.01 shall be deemed
effective service of process on such party.
SECTION 8.07. Waiver Of Jury Trial. EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 8.08. Counterparts; Third Party Beneficiaries. This Agreement
may be signed 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. This Agreement shall become effective when each party hereto shall
have received a counterpart hereof signed by the other party hereto. No
provision of this Agreement is intended to confer upon any Person other than the
parties hereto any rights or remedies hereunder.
SECTION 8.09. Entire Agreement. This Agreement along with the
Investors' Agreement (including the documents, schedules and exhibits referred
to herein and therein) constitute the entire agreement between the parties with
respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
SECTION 8.10. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 8.11. Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, such provision shall be
executed from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
SECTION 8.12. Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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.
QUAKER HOLDING CO.
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice-President
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MERCHANT BANKING PARTNERS
II-A, L.P.,a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
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
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 MILLENIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ MILLENIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as
managing general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
DLJ FIRST ESC, L.L.C.,
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X.Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
UK INVESTMENT PLAN 1997
PARTNERS
By: Xxxxxxxxx, Xxxxxx & Xxxxxxxx, Inc.,
as general partner
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
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
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc.,
its general partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
APOLLO U.K. PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc.,
its general partner
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Vice President
Address: 0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
XXXX CAPITAL FUND V, L.P.
By: Xxxx Capital Partners V, L.P.,
its general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Parter
Address: c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
XXXX CAPITAL FUND, V-B, L.P.
By: Xxxx Capital Partners V, L.P.,
its general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
BCIP ASSOCIATES
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
BCIP TRUST ASSOCIATES, L.P.
By: Xxxx Capital Partners V, L.P.,
its general partner
By: Xxxx Capital Investors V, Inc.,
its general partner
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Xxxxxx Place
Boston, MA 02116
Attention: Xxxxxxx Xxxxxxxx
XXXXXX X. XXX EQUITY FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
XXXXXX X. XXX FOREIGN FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Managing Director
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THL CO-INVESTORS III-A LLC
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Manager
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
THL CO-INVESTORS III-B LLC
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Manager
Address: 00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
DLJ CAPITAL CORP.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: President
Address: 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
ONTARIO TEACHERS' PENSION
PLAN BOARD
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Portfolio Manager,
Merchant Banking
Address: 0000 Xxxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxx
Xxxxxx, X0X 0X0
SCHEDULE A
Investor No. of Common Shares Aggregate Purchase
DLJ Merchant Banking Partners II, L.P 4,703,762 96,932,137.08
DLJ Merchant Banking Partners II-A,L.P. 187,326 3,860,284.87
DLJ Offshore Partners, L.P. 231,307 4,766,622.62
DLJ Diversified Partners, L.P. 275,003 5,667,095.07
DLJ Diversified Partners-A, L.P. 102,127 2,104,560.24
DLJ Millennium Partners, L.P. 76,055 1,567,276.12
DLJ Millennium Partners - A, L.P. 14,834 305,685.43
DLJMB Funding II, Inc. 946,201 19,498,728.27
DLJ First ESC, L.L.C. 874,223 18,015,434.00
DLJ EAB Partners, L.P. 21,119 435,204.97
UK Investment Plan 1997 Partners 88,052 1,814,515.60
Apollo Investment Fund III, L.P. 738,693 15,222,519.19
Apollo Overseas Partners III, L.P. 44,117 909,143.31
Apollo (U.K.) Partners III, L.P. 27,307 562,718.22
Xxxx Capital Fund V L.P. 158,619 3,268,702.22
Xxxx Capital Fund V-B, L.P. 413,039 8,511,678.44
BCIP Associates 124,016 2,555,635.04
BCIP Trust Associates 114,443 2,358,365.01
Xxxxxx X. Xxx Equity Fund III, L.P. 695,016 14,322,454.99
Xxxxxx X. Xxx Foreign Fund III, L.P. 43,006 886,234.74
THL Co. - Investors III - A LLC 43,910 904,865.69
THL Co. - Investors III - B LLC 28,185 580,825.30
DLJ Capital Corp. 10,568 217,752.91
DLJ Merchant Banking Partners II, L.P. 4,703,762 96,932,137.08
Sprout Growth II, L.P. 457,319 9,424,167.36
The Sprout CEO Fund, L.P. 7,617 156,960.76
Ontario Teachers' Pension Plan Fund 493,115 10,161,797.96
