Exhibit 10.15
SUBORDINATED NOTE HOLDERS STOCKHOLDERS AGREEMENT
This SUBORDINATED NOTE HOLDERS STOCKHOLDERS AGREEMENT (this "Agreement")
is entered into and effective as of July 10, 1997 among WGL Holdings, Inc., a
Delaware corporation (the "Company"), DLJ Merchant Banking Partners II, L.P., a
Delaware limited partnership ("DLJ Partners II"), DLJMB Funding II, Inc., a
Delaware corporation ("DLJ Funding II"), DLJ Merchant Banking Partners II-A,
L.P., a Delaware limited partnership ("DLJ Partners II-A"), DLJ Diversified
Partners, L.P., a Delaware limited partnership ("Diversified Partners"), DLJ
Diversified Partners-A, L.P., a Delaware limited partnership ("Diversified
Partners-A"), DLJ Millennium Partners, L.P., a Delaware limited partnership
("Millennium Partners"), DLJ First ESC L.L.C., a Delaware limited liability
company ("First ESC"), DLJ Offshore Partners II, C.V., a Netherlands Antilles
limited partnership ("Offshore Partners II"), DLJ EAB Partners, L.P., a Delaware
limited partnership ("EAB Partners"), UK Investment Plan 1997 Partners, a
Delaware partnership ("UK Partners"), DLJ Investment Partners, L.P., a Delaware
limited partnership ("DLJIP"), DLJ Investment Funding, Inc. ("Funding"), DLJ
First ESC L.L.C. (in its capacity as a Purchaser under the Purchase Agreement,
as hereinafter defined, "Purchaser First ESC"), The Northwestern Mutual Life
Insurance Company ("Northwestern") and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation ("DLJSC") (each of DLJIP, Funding, Purchaser First ESC, Northwestern
and DLJSC being hereinafter referred to individually as a "Holder" and
collectively as the "Holders"), and each other holder of record of Common Shares
(as defined below) who may hereafter duly and properly execute a separate
agreement to be bound by the terms hereof (each DLJ Party (as hereinafter
defined), the Holders, and each other Person (as defined below) that hereafter
may become a party hereto as contemplated hereby being hereinafter referred to
individually as a "Party" and collectively as the "Parties")
RECITALS
1. The Company has authorized 100,000,000 shares of common stock,
$.001 par value per share (the "Common Shares")
2. Concurrently herewith, DLJ, the Company, Xxxxxx Xxxxxxxxxx Ltd.,
a New York corporation ("WGL"), and
the Individual Holders are consummating the transactions contemplated by that
certain Stock Purchase Agreement, dated as of June 19, 1997 (the "Purchase
Agreement"), pursuant to which the Company will acquire 100% of the Capital
Shares of WGL.
3. In connection with the transactions contemplated by the Xxxxxxxx
Xxxxxxxxx, XXX, the Company and the Individual Holders are hereafter entering
into that certain Stockholders Agreement to be dated as of July 16, 1997 (the
"Seller Stockholders Agreement").
4. Concurrently herewith, the Company and the Holders are entering
into (i) that certain Securities Purchase Agreement dated as of July 10, 1997
(the "Sub-Note Agreement"), pursuant to which the Company is issuing an
aggregate of 3,188,312 Common Shares of the Company in connection with a private
placement of an aggregate of $25,000,000 principal amount of the Company's 13%
Senior Subordinated Notes due 2007 (the "Notes") and (ii) that certain
Registration and Antidilution Agreement dated as of July 10, 1997 pertaining to
the Shares.
5. In connection with the foregoing transactions, the parties hereto
are entering into this Agreement in order to define certain rights and
obligations of such parties.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
AGREEMENT
ARTICLE I
GENERAL PROVISIONS;
REPRESENTATIONS AND WARRANTIES
1.1 Certain Terms. In addition to the terms defined elsewhere herein, when
used herein the following terms shall have the meanings indicated:
"Adverse Person" means (i) any Persons that are competitors of the
Company, directly involved in the business of designing, developing,
manufacturing, marketing,
2
selling or distributing of implantable power sources, implantable medical
devices, lithium batteries, silver vanadium oxide batteries, microvasive
surgical instruments and close-tolerance medical and aerospace miniature
components intended for commercial distribution, including (without limitation)
pacemakers, cardioverter-defibrillators and capacitors for defibrillator
applications, (ii) any Persons that are present or former customers of the
Company and (iii) any other Persons the Board of Directors reasonably designates
as such from time to time.
"Affiliate" means, with respect to any Person, any Person
controlling, controlled by, or under common control with such Person. For the
purposes of this definition, "control" means the possession of the power to
direct or cause the direction of management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
With respect to any Common Shares, "beneficial" ownership or
"beneficially" owned shall have the same meaning as in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended.
"Board of Directors" means the board of directors of the Company.
"Capital Shares" means any and all shares, interests, participations
or other equivalents (however designated) of capital shares of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation), and any and all warrants, options or other rights to purchase or
acquire any of the foregoing.
"Common Share Equivalents" means (without duplication with any other
Common Shares or Common Share Equivalents) rights, warrants, options,
convertible securities, or exchangeable securities or indebtedness, or other
rights, exercisable for or convertible or exchangeable into, directly or
indirectly, Common Shares or securities convertible or exchangeable into Common
Shares, whether at the time of issuance or upon the passage of time or the
occurrence of some future event.
"DLJ" means all of the DLJ Parties, collectively.
"DLJ Party" means any of XXX Xxxxxxxx XX, XXX Xxxxxxx XX, XXX
Partners II-A, Diversified Partners,
3
Diversified Partners-A, Millennium Partners, First ESC, Offshore Partners II,
EAB Partners or UK Partners.
"DLJSC" means Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation or
any successor thereto.
"Fully-Diluted Common Shares" means, at any time, the then
outstanding Common Shares of the Company plus (without duplication) all Common
Shares issuable, whether at such time or upon the passage of time or the
occurrence of future events, upon the exercise, conversion or exchange of all
then-outstanding Common Share Equivalents.
"Individual Holder" has the meaning assigned to such term in the
Seller Stockholders Agreement.
"Permitted Transferee" means in the case of any DLJ Party, (A) any
other DLJ Party, (B) any corporation, partnership or other entity which is an
Affiliate of any DLJ Party (collectively, the "DLJ Affiliates"), (C) any
managing director, general partner, director, limited partner, officer or
employee of any DLJ Party or any DLJ Affiliate, or the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any of the
foregoing Persons referred to in this clause (C) (collectively, "DLJ
Associates"), (D) any trust, the beneficiaries of which, or any corporation,
limited liability company or partnership, the shareholders, members or general
or limited partners of which, include only one or more XXX Xxxxxxx, XXX
Xxxxxxxxxx, XXX Associates, their spouses or their lineal descendants and (E) a
voting trustee for one or more DLJ Parties or for one or more DLJ Affiliates or
DLJ Associates under the terms of a voting trust.
"Person" means any natural person, corporation, limited partnership,
general partnership, joint stock company, joint venture, association, company,
trust, bank, trust company, land trust, business trust or other organization,
whether or not a legal entity, and any government or agency or political
subdivision thereof.
"Qualified IPO" means a consummated initial public offering of
Common Shares which is underwritten on a firm commitment basis by a
nationally-recognized investment banking firm.
"SEC" means the Securities and Exchange Commission or any successor
governmental agency.
4
"Securities Act" means the Securities Act of 1933, as amended, or
any successor federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect at the time.
"Subsidiary" means (i) any corporation or other entity a majority of
the Capital Shares of which having ordinary voting power to elect a majority of
the board of directors or other Persons performing similar functions is at the
time owned, directly or indirectly, with power to vote, by the Company or any
direct or indirect Subsidiary of the Company or (ii) a partnership in which the
Company or any direct or indirect Subsidiary is a general partner.
1.2 Representations and Warranties.
(a) Each Holder (as to itself only) hereby represents and warrants
to the Company and the other Parties that:
(i) it has full power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated
hereby, and the execution, delivery and performance by it of this
Agreement and the consummation by it of the transactions contemplated
hereby have been duly authorized by all necessary action;
(ii) this Agreement has been duly and validly executed and
delivered by such Party and constitutes the binding obligation of such
Party enforceable against such Party in accordance with its terms; and
(iii) the execution, delivery and performance by such Party of
this Agreement and the consummation by such Party of the transactions
contemplated hereby will not, with or without the giving of notice or the
lapse of time, or both, (A) violate any provision of law, statute, rule or
regulation to which it is subject, (B) violate any order, judgment or
decree applicable to it or (C) conflict with, or result in a breach or
default under, any term or condition of any agreement or other instrument
to which such Party is a party or by which such Party is bound.
(b) The Company hereby represents and warrants to each Party that:
5
(i) it is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, it has full
corporate power and authority under its certificate of incorporation to
execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby, and the execution, delivery and
performance by it of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action;
(ii) this Agreement has been duly and validly executed and
delivered by the Company and constitutes the binding obligation thereof
enforceable against the Company in accordance with its terms; and
(iii) the execution, delivery and performance by the Company
of this Agreement and the consummation by the Company of the transactions
contemplated hereby will not, with or without the giving of notice or the
lapse of time, or both, (A) violate any provision of law, statute, rule or
regulation to which the Company is subject, (B) violate any order,
judgment or decree applicable to the Company or (C) conflict with, or
result in a breach or default under, any ten or condition of its
certificate of incorporation or by-laws or any agreement or other
instrument to which the Company is a party or by which it is bound.
(c) Each DLJ Party (as to itself only) hereby represents and
warrants to the Company and the other Parties that:
(i) it is duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or
organization, as the case may be, it has full power and authority under
its certificate of incorporation or other such organizational document(s)
to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby, and the execution, delivery and
performance by it of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action;
(ii) this Agreement has been duly and validly executed and
delivered by such DLJ Party and constitutes the binding obligation thereof
enforceable
6
against such DLJ Party in accordance with its terms; and
(iii) the execution, delivery and performance by such DLJ
Party of this Agreement and the consummation by such DLJ Party of the
transactions contemplated hereby will not, with or without the giving of
notice or the lapse of time, or both, (A) violate any provision of law,
statute, rule or regulation to which such DLJ Party is subject, (B)
violate any order, judgment or decree applicable to such DLJ Party or (C)
conflict with, or result in a breach or default under, any term or
condition of its certificate of incorporation or by-laws (or such other
comparable organizational and governing document(s), as the case may be)
or any agreement or other instrument to which such DLJ Party is a party or
by which it is bound.
ARTICLE II
MANAGEMENT OF THE COMPANY;
ACTIVITIES OF THE PARTIES
2.1 Board of Directors. The Parties and the Company shall take all action
within their respective power, including, but not limited to, the voting of
Capital Shares of the Company (to the extent that any such Person holds Capital
Shares of the Company entitled to vote thereon), required to cause the Board of
Directors to at all times consist of seven (7) directors (or such greater number
as the DLJ Parties shall select), one of whom shall be the Chief Executive
Officer of the Company. At any time DLJIP owns $6,250,000 or more in principal
amount of the Notes, DLJIP shall have the right to designate an observer (the
"DLJIP Observer") who shall be entitled to attend all meetings of the Board of
Directors and to receive any notice delivered with respect to any such meeting.
The Company shall pay all reasonable travel and other such expenses actually
incurred by the DLJIP Observer in connection with the DLJIP Observer's
attendance at any meetings of the Board of Directors.
2.2 Election of Director Designated by Individual Holders. So long as the
Individual Holders collectively own beneficially in the aggregate at least three
percent (3%) of the Fully-Diluted Common Shares, each Holder, DLJ and each
7
Permitted Transferee (if any) shall take all action within its power, including,
but not limited to, the voting of Capital Shares of the Company (to the extent
that any such Person holds Capital Shares of the Company entitled to vote
thereon), required to cause the Board of Directors to include either (a)
Xxxxxxxx X. Xxxxxxxxxxx or (b) with the consent of DLJ Partners II (which
consent shall not be unreasonably withheld), one director designated by the
Individual Holders and Permitted Individual Holder Transferees (if any) then
owning beneficially a majority of the aggregate Fully-Diluted Common Shares then
held by all Individual Holders and Permitted Individual Holder Transferees (if
any).
2.3 Election of Directors Designated by DLJ Partners II. Each Holder shall
take all action within its power, including, but not limited to, the voting of
Capital Shares of the Company (to the extent that any such Person holds Capital
Shares of the Company entitled to vote thereon), required to cause the Board of
Directors to include a number of directors designated by DLJ Partners II, or its
successor in interest, equal to up to (i) one less than the maximum number of
directors then comprising the Board of Directors so long as Section 2.2 hereof
remains in effect or (ii) the maximum number of directors then comprising the
Board of Directors if DLJ and its Permitted Transferees are not required to vote
its Capital Shares in favor of a director designated by the Individual Holders
pursuant to Section 2.2 hereof.
2.4 Replacement of Designated Directors. In the event that any director (a
"Withdrawing Director") designated in the manner set forth in Section 2.2 or 2.3
is unable to serve, or once having commenced to serve, is removed or withdraws
from the Board of Directors, such Withdrawing Director's replacement (the
"Substitute Director") on the Board of Directors (and, if applicable, any
executive or similar committee thereof) shall be designated in accordance with
Section 2.2 or 2.3, as applicable. The Company and each of the Parties agrees to
take all action within its power, including, but not limited to, (i) the voting
of Capital Shares of the Company (to the extent that any such Person holds
Capital Shares of the Company entitled to vote thereon) to cause the election of
such Substitute Director as soon as practicable following his or her designation
and (ii) the instructing of any director it had previously designated to serve
as a member of the Board of Directors, as the first order of business at the
first meeting thereof
8
after such Substitute Director has been so designated, to vote to seat such
designated Substitute Director as a director in place of the Withdrawing
Director.
2.5 Termination. Notwithstanding anything to the contrary in this Article
II, at any time after the consummation of a Qualified IPO, in the event that any
Holder transfers any Common Shares to any transferee in accordance with this
Agreement, such Common Shares shall thereafter be free from the voting
agreements set forth in this Article II and no longer subject thereto.
ARTICLE III
TRANSFER OF SECURITIES
3.1 Transfer of Shares. No Holder may transfer any Capital Shares to any
Adverse Person, except pursuant to a transfer contemplated by Section 3.2 or 3.3
hereof.
3.2 Right of Participation.
(a) If one or more DLJ Parties and/or Permitted Transferees (if any)
propose to sell Common Shares or Common Share Equivalents for value (such DLJ
Parties and any such Permitted Transferees being referred to herein as a
"Transferor") in one transaction or a series of related transactions, but
excluding (a) a sale which is pursuant to a Qualified IPO or (b) any sale in
which all of the Parties agree to participate, then such Transferor shall offer
(the "Participation Offer") to include in the proposed sale a number of Common
Shares or Common Shares represented by Common Share Equivalents designated by
any of the Parties, not to exceed, in respect of any such Party, the number of
Common Shares equal to the product of (i) the aggregate number of Common Shares
or Common Shares represented by Common Share Equivalents to be sold to the
proposed transferee and (ii) a fraction, the numerator of which is equal to the
number of Fully-Diluted Common Shares held by such Party and the denominator of
which is equal to the number of Fully-Diluted Common Shares. The Transferor
shall give written notice to each Party of the Participation Offer (the
"Transferor's Notice") at least 20 days prior to the proposed sale. The
Transferor's Notice shall specify the proposed transferee, the number of Common
Shares or Common Shares represented by Common Share Equivalents and, if
applicable, the class or classes of Common Shares to be sold
9
to such transferee, the amount and type of consideration to be received
therefor, and the place and date on which the sale is to be consummated. Each
Party who wishes to include Common Shares or Common Share Equivalents in the
proposed sale in accordance with the terms of this Section 3.2 shall so notify
the Transferor not more than 20 days after the date of the Transferor's Notice.
The Participation Offer shall be conditioned upon the Transferor's sale of
Common Shares or Common Share Equivalents pursuant to the transactions
contemplated in the Transferor's Notice with the transferee named therein. If
any Party accepts the Participation Offer, the Transferor shall reduce to the
extent necessary the number of Common Shares or Common Share Equivalents it
otherwise would have sold in the proposed sale so as to permit other Parties who
have accepted the Participation Offer to sell the number of Common Shares or
Common Share Equivalents that they are entitled to sell under this Section 3.2,
and the Transferor and such other Party or Parties shall sell the number of
Common Shares or Common Share Equivalents specified in the Participation Offer
to the proposed transferee in accordance with the terms of such sale set forth
in the Transferor's Notice.
(b) The provisions of this Section 3.2 shall terminate upon the
consummation of a Qualified IPO.
3.3 Drag-Along Rights.
(a) Notwithstanding any other provision in this Article III, if one
or more DLJ Parties (such DLJ Parties being referred to herein as the "Seller")
propose to sell fifty percent (50%) or more of the Common Shares and Common
Share Equivalents held by DLJ at the time of such sale ("Sale Shares") to a
third party or parties which is not an Affiliate of DLJ (a "Third Party")
pursuant to a Bona Fide Offer (as defined below), then Seller shall have the
right, subject to the provisions of this Section 3.3, to require all other
Parties that are not DLJ Parties (collectively, the "Co-Sellers") to include in
such sale (a "Required Sale"), by delivering notice (the "Required Sale Notice")
to such other Parties, a number of the Common Shares and Common Share
Equivalents held by the Co-Sellers (the "Co-Sellers' Shares") equal to, with
respect to each Co-Seller, the number of Common Shares and Common Shares
represented by Common Share Equivalents held by such Co-Seller multiplied by a
fraction, the numerator of which is the number of Common Shares represented by
the Sale Shares and the denominator of which is the number of Common Shares and
10
Common Shares represented by Common Share Equivalents held by Seller on the date
of such Required Sale Notice (the "Notice Date")
(b) The Required Sale Notice shall set forth: (i) the Notice Date,
(ii) the name and address of the Third Party, (iii) the proposed amount and type
of consideration to be paid per Common Shares for the Sale Shares (the "Sale
Price"), and the terms and conditions of payment offered by the Third Party in
reasonable detail, together with written proposals or agreements, if any, with
respect thereto, (iv) the aggregate number of Sale Shares, (v) confirmation that
Seller is selling fifty percent (50%) or more of the aggregate number of
Fully-Diluted Common Shares then held by DLJ to a Third Party, (vi) the
aggregate number of Common Shares and Common Shares represented by Common Share
Equivalents held by DLJ on the Notice Date and (vii) the proposed date of the
Required Sale (the "Required Sale Date"), which shall be not less than 30 nor
more than 180 days after the Notice Date.
(c) The Co-Sellers shall cooperate in good faith with Seller in
connection with consummating the Required Sale (including, without limitation,
the giving of consents and the voting of any Common Shares of the Company held
by the Co-Sellers to approve such Required Sale); provided, however, that in the
event of any such Required Sale, the Co-Sellers will not be required to make any
representations, warranties or indemnities in connection therewith except for
representations and warranties as to title to the Common Shares and Common Share
Equivalents to be sold by Co-Seller pursuant to the Required Sale. On the
Required Sale Date, the Co-Sellers shall deliver, free and clear of all liens,
claims or encumbrances, a certificate or certificates and/or other instrument or
instruments for all of its respective Co-Sellers' Shares, duly endorsed and in
proper form for transfer, with the signature guaranteed, to such Third Party in
the manner and at the address indicated in the Required Sale Notice and Seller
shall cause each Co-Seller's share of the purchase price to be paid to such
Co-Seller.
(d) "Bona Fide Offer" shall mean an offer (whether in the form of a
purchase of Common Shares, merger, recapitalization, or otherwise) for Common
Shares.
(e) The provisions of this Section 3.3 shall terminate upon the
consummation of a Qualified IPO.
11
3.4 Prohibited Transfers. Any purported transfer of Common Shares and/or
Common Share Equivalents by a Party which is not permitted by the provisions of
Section 3.1, 3.2 or 3.3, or which is in violation of such provisions, shall be
void and of no force and effect whatsoever.
3.5 Certain Events Not Deemed Transfers. Except as contemplated by Section
3.3, in no event shall any of the following constitute a transfer of Common
Shares for purposes of Section 3.1, 3.2 or 3.3 or be subject to the terms
hereof: (a) an exchange, reclassification or other conversion of Common Shares
into any cash, securities or other property pursuant to a merger, consolidation
or recapitalization of the Company or any Subsidiary with, or a sale or transfer
by the Company or any Subsidiary of all or substantially all its assets to, any
Person or (b) a conversion of outstanding Common Share Equivalents into Common
Shares in accordance with the terms thereof.
3.6 Transfers Subject to Compliance with Securities Act. No Common Shares
may be transferred by a Holder (other than (i) to one or more Affiliates of such
Party, (ii) pursuant to an effective registration statement under the Securities
Act, (iii) pursuant to and in compliance with Rule 144A under the Securities
Act, (iv) to an institutional "accredited investor" (as defined in Rule 501(a)
(1), (2), (3) or (7) under the Securities Act) or (v) outside the United States
to a "foreign person" in compliance with Rule 904 of Regulation S under the
Securities Act), provided, that in the case of a transfer pursuant to clause
(iii) (iv) or (v), the transferring Party shall deliver a certificate to the
Company properly completed in the form annexed hereto as Exhibit B, unless such
Party first delivers to the Company an opinion of counsel, which opinion and
counsel shall be reasonably satisfactory to the Company, to the effect that such
transfer is not required to be registered under the Securities Act.
3.7 Permitted Transferees.
(a) Notwithstanding anything in this Agreement to the contrary, any
DLJ Party or any permitted Transferee may, without the consent of the Company or
any of the Parties and without compliance with Section 3.1, 3.2 or 3.3, at any
time transfer any or all of its Common Shares and Common Share Equivalents to
one or more permitted Transferees, so long as the transfer to such Person is not
in violation of applicable federal or state securities laws, and such
12
Person(s), by accepting such Common Shares and/or Common Share Equivalents,
shall be deemed to have agreed to be bound by the terms of this Agreement on the
same terms as DLJ generally. In the event that any DLJ Party or any Permitted
Transferee transfers any Common Shares and/or Common Share Equivalents to any
transferee other than a Permitted Transferee or any Person which is a Party to
this Agreement, such Common Shares and/or Common Share Equivalents, as the case
may be, shall thereafter be free from the restrictions set forth in this
Agreement and no longer subject thereto and such transferee shall have no rights
hereunder, and the definition of Party hereunder shall not include such
transferee.
(b) Notwithstanding anything in this Agreement to the contrary, upon
the death of any Party who is a natural person, the transfer of any or all of
its Common Shares and/or Common Share Equivalents to one or more of such Party's
legatees, heirs or trustees of a testamentary trust, or to an executor or
administrator of the estate of such deceased Party incident to guardianship or
probate proceedings involving such estate shall not require the consent of the
Company or any of the Parties and shall not be subject to compliance with
Section 3.1, 3.2, 3.3 or 3.4 so long as (i) such heir shall have agreed in
writing to be bound by the terms of this Agreement and (ii) the transfer to such
heir is not in violation of applicable federal or state securities laws.
3.8 Holders Transfers. Any Person(s) to whom any Holder transfers Common
Shares or Common Share Equivalents, by accepting such Common Shares and/or
Common Share Equivalents, shall be deemed to have agreed to be bound by the
terms of this Agreement (on the same terms as the Holder).
ARTICLE IV
TERMINATION
4.1 Termination. This Agreement shall terminate upon the earlier of (i)
the dissolution, liquidation or winding-up of the Company or (ii) the date on
which DLJ and all Permitted Transferees collectively are no longer the
beneficial owner of at least five percent (5%) of the Fully-Diluted Common
Shares. A Person who ceases to hold any Common Shares or Common Share
Equivalents and who ceases
13
to beneficially own any Common Shares or Common Share Equivalents shall cease to
be a Party and shall have no further rights or obligations under this Agreement.
ARTICLE V
MISCELLANEOUS
5.1 Amendment. Any provision of this Agreement may be altered,
supplemented, amended, or waived only by the written consent of each of (i) the
Company and (ii) all of the Parties, except that any Party may unilaterally
waive any of its rights hereunder so long as such waiver is in writing.
5.2 Specific Performance. The Parties and the Company recognize that the
obligations imposed on them in this Agreement are special, unique, and of
extraordinary character, and that in the event of breach by any party, damages
will be an insufficient remedy; consequently, it is agreed that the Parties and
the Company may have specific performance and injunctive relief (in addition to
damages) as a remedy for the enforcement hereof, without proving damages.
5.3 Assignment. Except as otherwise expressly provided herein, the terms
and conditions of this Agreement shall inure to the benefit of and be binding
upon the respective successors and assigns of the Parties and the Company. No
such assignment shall relieve the assignor from any liability hereunder. Any
purported assignment made in violation of this Section 5.3 shall be void and of
no force and effect.
5.4 Shares Subject to this Agreement. All Common Shares and Common Share
Equivalents now owned or hereafter acquired by any of the Parties shall be
subject to, and entitled to the benefits of, the terms of this Agreement.
5.5 Legends.
(a) Each certificate for Common Shares and Common Share Equivalents
held by any Person a party hereto shall include a legend in substantially the
following form:
THIS SECURITY IS SUBJECT TO CERTAIN VOTING AGREEMENTS, RESTRICTIONS
ON TRANSFER, AND
14
OTHER TERMS AND CONDITIONS SET FORTH IN THE SUBORDINATED NOTE
HOLDERS STOCKHOLDERS AGREEMENT, DATED AS OF JULY 10, 1997, AS THE
SAME MAY BE AMENDED FROM TIME TO TIME, A COPY OF WHICH MAY BE
OBTAINED FROM THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.
(b) A restriction on transfer of Common Shares and Common Share
Equivalents set forth in such legend (a "Restriction") shall cease and terminate
as to any particular Common Shares or Common Share Equivalents when, in the
opinion of the Company and counsel reasonably satisfactory to the Company (which
opinion shall be delivered to the Company in writing), such Restriction is no
longer required. Whenever such Restriction shall cease and terminate as to any
Common Shares or Common Share Equivalents, the holder thereof shall be entitled
to receive from the Company, without expense to such holder, new certificate(s)
not bearing a legend stating such Restriction.
5.6 Notices. Any and all notices, designations, consents, offers,
acceptances or other communications provided for herein (each a "Notice") shall
be given in writing by overnight courier, telegram or telecopy which shall be
addressed, or sent, to the respective addresses as follows (or such other
address as the Company or any Party may specify to the Company and all other
Parties by Notice):
The Company:
WGL Holdings, Inc.
10,000 Xxxxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: President
Telecopy No.: (000) 000-0000
DLJ Parties:
DLJ Partners II
DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx/Xxx Xxxxx
Telecopy No.: (000) 000-0000
15
DLJ Funding II
DLJMB Funding II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx/Xxx Xxxxx
Telecopy No.: (000) 000-0000
DLJ Partners II-A
DLJ Merchant Banking Partners II-A, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxx/Xxx Xxxxx
Telecopy No.: (000) 000-0000
Diversified Partners
DLJ Diversified Partners, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
Diversified Partners-A
DLJ Diversified Partners-A, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
Millennium Partners
DLJ Millennium Partners, L.P.
c/o DLJ Merchant Banking II, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
First ESC
DLJ First ESC L.L.C.
c/o DLJ LBO Plans Management Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
16
Offshore Partners II
DLJ Offshore Partners II, C.V.
c/o DLJ Offshore Management N.V.
Xxxx X. Xxxxxxxxxx 00
Xxxxxxxxxx, Xxxxxxx
Xxxxxxxxxxx, Antilles
Telecopy No.: 011-59-99-614-129
EAB Partners
DLJ EAB Partners, L.P.
c/o DLJ LBO Plans Management Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
UK Partners
UK Investment Plan 1997 Partners
2121 Avenue of the Stars
Xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telecopy No.: (000) 000-0000
in each case with a copy to:
Xxxxxx X. Xxxxx, Esq.
Weil, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Holders:
XXXXX
XXX Xxxxxxxxxx Xxxxxxxx, X.X.
x/x XXX Investment Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Jr./Xxx Xxxxx
Telecopy No.: (000) 000-0000
Funding
DLJ Investment Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxx, Jr./Xxx Xxxxx
Telecopy No.: (000) 000-0000
17
Purchaser First ESC
DLJ First ESC L.L.C.
c/o DLJ LBO Plans Management Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx/Xxxxxx Xxxxxxxxx
Telecopy No.: (000) 000-0000
Northwestern
The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Investment Operations
Telecopy No.: (000) 000-0000
DLJSC
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ____________________
Telecopy No.: _________________
with a copy to:
Xxxx Xxxxxxxx, Esq.
Xxxxxx Xxxxxx & Xxxxxxx
Eighty Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy No.: (000) 000-0000
Each Other Party:
To such address or telecopy number as such Party provides by Notice to the
Company and all other Parties or, if such address is not so provided, to such
Party's address as is reflected on the stock transfer records of the Company at
such time.
All Notices shall be deemed effective and received (a) if given by telecopy,
when such telecopy is transmitted to the telecopy number specified above and
receipt thereof is confirmed; (b) if given by overnight courier, on the business
day immediately following the day on which such Notice is delivered to a
reputable overnight courier service; or (c) if given by telegram, when such
Notice is delivered at the address specified above. No Party shall be
18
entitled to receive a Notice hereunder (or a copy of a Notice delivered to the
Company) if, at the time such Notice is to be sent, such Party (including its
Affiliates and the employees of such Party and its Affiliates) no longer owns
any Common Shares.
5.7 Confidentiality. The Parties shall, and shall cause their respective
officers, directors, employees and agents and the respective subsidiaries and
Affiliates of the Parties and their respective officers, directors, employees
and agents to, hold confidential and not use in any manner detrimental to the
Company or any of its Subsidiaries all information they may have or obtain
concerning the Company or any of its Subsidiaries and their respective assets,
business, operations or prospects ("Confidential Information"); provided,
however, that the foregoing shall not apply to (a) information that is or
becomes generally available to the public other than as a result of a disclosure
by a Party or any of its employees, agents, accountants, legal counsel or other
representatives, (b) information that is or becomes available to a Party or any
of its employees, agents, accountants, legal counsel or other representatives on
a nonconfidential basis prior to its disclosure by the Company or its employees,
agents, accountants, legal counsel or other representatives, and (c) information
that is required to be disclosed by a Party or any of its employees, agents,
accountants, legal counsel or other representatives as a result of any
applicable law, rule or regulation of any governmental authority or stock
exchange. If any Party desires to sell Common Shares or Common Share Equivalents
and in connection with such potential sale desires to disclose information
regarding the Company to the potential purchaser in such sale which it is not
permitted to disclose pursuant to the preceding sentence, such Party shall
notify the Company of such Party's desire to disclose such information and shall
identify the potential purchaser in such notification. The Company may require
any such potential purchaser of Common Shares or Common Share Equivalents to
enter into a confidentiality agreement with respect to Confidential Information
on customary terms used in confidentiality agreements in connection with
corporate acquisitions.
5.8 Exclusive Financial Advisor and Investment Banking Advisor. During the
five-year period beginning on the date hereof, DLJSC, or any Affiliate of DLJSC
that DLJ Partners II or DLJSC may choose, in their sole and absolute discretion,
shall be engaged as the exclusive financial and
19
investment banking advisor for the Company and its subsidiaries pursuant to the
terms of an agreement substantially in the form of the agreement attached hereto
as Exhibit A hereto.
5.9 Counterparts. This Agreement may be executed in two or more
counterparts and each counterpart shall be deemed to be an original and all such
counterparts together shall constitute one and the same agreement of the parties
hereto.
5.10 Section Headings. Headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Agreement or any provisions hereof.
5.11 Choice of Law. This Agreement, including, without limitation, the
interpretation, construction, validity and enforceability thereof, shall be
governed by the internal laws of the State of New York including Section 5-1401
of the General Obligations Law of the State of New York without regard to the
principles of conflict of laws thereof.
5.12 Entire Agreement. This Agreement contains the entire understanding of
the parties hereto respecting the subject matter hereof and supersedes all prior
agreements, discussions and understandings with respect thereto.
5.13 Cumulative Rights. The rights of the Parties and the Company under
this Agreement are cumulative and in addition to all similar and other rights of
the parties under other agreements.
5.14 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.
5.15 Submission to Jurisdiction. (a) Any legal action or proceeding with
respect to this Agreement, the Common Shares or any document related thereto may
be brought in the courts of the State of New York or of the United States of
America for the Southern District of New York, and, by execution and delivery of
this Agreement, the Company and each Party hereby accepts for itself and in
respect of its
20
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. The parties hereto hereby irrevocably waive any objection, including,
without limitation, any objection to the laying of venue or based on the grounds
of forum non conveniens, which any of them may now or hereafter have to the
bringing of any such action or proceeding in such respective jurisdictions.
(b) The Company and each Party irrevocably consent to the service of
process of any of the aforesaid courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Company or such Party, respectively, at its address provided herein.
(c) Nothing contained in this Section 5.15 shall affect the right of
any party hereto to serve process in any other manner permitted by law.
5.16 Waiver of Jury Trial. Each of the parties hereto waives any right it
may have to trial by jury in respect of any litigation based on, or arising out
of, under or in connection with this Agreement, any Common Shares or Common
Share Equivalents or any course of conduct, course of dealing, verbal or written
statement or action of any party hereto.
[SIGNATURES CONTAINED ON SUCCEEDING PAGES]
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
WGL Holdings, Inc.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Xxxxx X. Xxxxxxx
President
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
DLJB FUNDING II, INC.
By: /s/ Xxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------------------------
Title: Attorney-in-Fact
------------------------------------------
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
22
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ DIVERSIFIED PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ DIVERSIFIED PARTNERS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ MERCHANT BANKING II, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
DLJ FIRST ESC L.L.C.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION
As Manager
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
23
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
DLJ EAB PARTNERS, L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
UK INVESTMENT PLAN 1997 PARTNERS
By: XXXXXXXXX, LUFKIN & XXXXXXXX,
INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Attorney-in-Fact
----------------------------------
24
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ Investment Partners, Inc.,
General Partner
By: /s/ Xxxx X. Xxxxxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxxxxx, Xx.
-----------------------------------
Title: Managing Director
----------------------------------
25
DLJ INVESTMENT FUNDING, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Secretary
----------------------------------
26
DLJ FIRST ESC L.L.C.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION
As Manager
By: /s/ Xx Xxxxxxx
-------------------------------------
Name: Xx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
27
THE NORTHWESTERN MUTUAL LIFE INSURANCE
COMPANY
By: /s/ A. Xxxx Xxxxxxx
-------------------------------------
Name: A. Xxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------
28
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES
CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------------
Title: Senior Vice President
----------------------------------
29
SCHEDULE I
This Schedule I is a part of and is incorporated into that certain letter
agreement (together, the "Agreement") dated July 10, 1997 by and between WGL
Holdings, Inc. (which together with its subsidiaries is hereinafter referred to
as the "Company") and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
("DLJ").
The Company will indemnify and hold harmless DLJ and its affiliates, and
the respective directors, officers, agents and employees of DLJ and its
affiliates (other than the Company) (DLJ and each such entity or person, an
"Indemnified Person"), from and against any losses, claims, damages, judgments,
assessments, costs and other liabilities (collectively, "Liabilities"), and will
reimburse each Indemnified Person for all fees and expenses (including the
reasonable fees and expenses of counsel) (collectively, "Expenses") as they are
incurred in investigating, preparing, pursuing or defending any claim, action,
proceeding or investigation, whether or not in connection with pending or
threatened litigation and whether or not any Indemnified Person is a party
(collectively, "Actions"), arising out of or in connection with advice or
services rendered or to be rendered by any Indemnified Person pursuant to this
Agreement, the transactions contemplated hereby or any Indemnified Person's
actions or inactions in connection with any such advice, services or
transactions; provided that the Company will not be responsible for any
Liabilities or Expenses of any Indemnified Person that are determined by a
judgment of a court of competent jurisdiction which is no longer subject to
appeal or further review to have resulted solely from such Indemnified Person's
gross negligence or willful misconduct in connection with any of the advice,
actions, inactions or services referred to above. The Company also agrees to
reimburse each Indemnified Person for all Expenses as they are incurred in
connection with enforcing such Indemnified Person's rights under this Agreement
(including, without limitation, its rights under this Schedule I).
Upon receipt by an Indemnified Person of actual notice of an Action
against such Indemnified Person with respect to which indemnity may be sought
under this Agreement, such Indemnified Person shall promptly notify the Company
in writing; provided that failure so to notify the Company shall not relieve the
Company from any liability which the Company may have on account of this
indemnity or otherwise, except to the extent the Company shall have been
materially prejudiced by such failure. The Company shall, if requested by DLJ,
assume the defense of any such Action including the employment of counsel
reasonably satisfactory to DLJ. Any Indemnified Person shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Person, unless: (i) the Company has failed promptly to assume
the defense and employ counsel or (ii) the named parties to any such Action
(including any impleaded parties) include such Indemnified Person and the
Company, and such Indemnified Person shall have been advised by counsel that
there may be one or more legal defenses available to it which are different from
or in addition to those available to the Company; provided that the Company
shall not in such event be responsible hereunder for the fees and expenses of
more than one firm of separate counsel in connection with any Action in the same
jurisdiction, in addition to any local counsel. The Company shall not be liable
for any settlement of any Action effected without its written consent. In
addition, the Company will not, without prior written consent of DLJ, settle,
compromise or consent to the entry of any judgment in or otherwise seek to
terminate any pending or threatened Action in respect of which indemnification
or contribution may be sought hereunder (whether or not any Indemnified
Person is a party thereto) unless such settlement, compromise, consent or
termination includes an unconditional release of each Indemnified Person from
all Liabilities arising out of such Action.
In the event the foregoing indemnity is unavailable to an Indemnified
Person [other than] in accordance with this Agreement, the Company shall
contribute to the Liabilities and Expenses paid or payable by such Indemnified
Person in such proportion as is appropriate to reflect (i) the relative benefits
to the Company and its shareholders, on the one hand, and to DLJ, on the other
hand, of the matters contemplated by this Agreement or (ii) if the allocation
provided by the immediately preceding clause is not permitted by the applicable
law, not only such relative benefits but also the relative fault of the Company,
on the one hand, and DLJ, on the other hand, in connection with the matters as
to which such Liabilities or Expenses relate, as well as any other relevant
equitable considerations; provided that in no event shall the Company contribute
less than the amount necessary to ensure that all Indemnified Persons, in the
aggregate, are not liable for any Liabilities and Expenses in excess of the
amount of fees actually received by DLJ pursuant to the Agreement. For purposes
of this paragraph, the relative benefits to the Company and its shareholders, on
the one hand, and to DLJ, on the other hand, of the matters contemplated by the
Agreement shall be deemed to be in the same proportion as (a) the total value
paid or contemplated to be paid or received or contemplated to be received by
the Company or the Company's shareholders, as the case may be, in the
transaction or transactions that are within the scope of the Agreement, whether
or not any such transaction is consummated, bears to (b) the fees paid or to be
paid to DLJ under the Agreement.
The Company also agrees that no Indemnified Person shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to the
Company for or in connection with advice or services rendered or to be rendered
by any Indemnified Person pursuant to this Agreement, the transactions
contemplated hereby or any Indemnified Person's actions or inactions in
connection with any such advice, services or transactions except for Liabilities
(and related Expenses) of the Company that are determined by a judgment of a
court of competent jurisdiction which is no longer subject to appeal or further
review to have resulted solely from such Indemnified Person's gross negligence
or willful misconduct in connection with any such advice, actions, inactions or
services.
The reimbursement, indemnity and contribution obligations of the Company
set forth herein shall apply to any modification of this Agreement and shall
remain in full force and effect regardless of any termination of, or the
completion of any Indemnified Person's services under or in connection with,
this Agreement.
EXHIBIT B
[FORM OF SECURITIES ACT COMPLIANCE CERTIFICATE]
31
CERTIFICATE
To: WGL Holdings, Inc. ("Holdings" or the "Company")
In connection with a proposal transfer of shares of Common Stock,
par value $.001 per share, of Holdings (the "Shares") occurring prior to the
date of the declaration by the Securities and Exchange Commission ("SEC") of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act") covering resales of such shares (which
effectiveness shall not have been suspended or terminated at the date of the
transfer), the undersigned confirms that it has not utilized any general
solicitation or general advertising in connection with the transfer and that
such Shares are being transferred:
[Check One]
(1) _____ to Holdings or a subsidiary thereof; or
(2) _____ pursuant to and in compliance with Rule 144A under the Securities
Act; or
(3) _____ to an institutional "accredited investor" (as defined in Rule 501
(a) (1), (2), (3) or (7) under the Securities Act) that has
furnished to Holdings a signed letter containing certain
representations and agreements (the form of which appears below); or
(4) _____ outside the United States to a "foreign person" in compliance with
Rule 904 of Regulation S under the Securities Act; or
(5) _____ pursuant to the exemption from registration provided by Rule 144
under the Securities Act; or
(6) _____ pursuant to another available exemption from the registration
requirements of the Securities Act.
Unless one of the boxes is checked, Holdings will refuse to register any of the
Shares proposed to be transferred in the name of any person other than the
registered Holder thereof; provided, that if box (4), (5) or (6) is checked, the
Company may require, prior to registering any such transfer
of the Shares, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (4)) and other information as
the Company has reasonably requested to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Company shall not be obligated to
register Shares in the name of any person other than the Holder hereof unless
and until the conditions to any such transfer of registration set forth herein
shall have been satisfied.
Date: Signed: ________________________
(Sign exactly as your
name appears on the share
certificate(s)
representing the Shares
being transferred
Signature Guarantee:
2
[TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED]
The undersigned represents and warrants that it is purchasing the
Shares referred in this certification for its own account or an account with
respect to which it exercises sole investment discretion and that it and any
such account is a "qualified institutional buyer" within the meaning of Rule
144A under the Securities Act and is aware that the sale to it is being made in
reliance on Rule 144A and acknowledges that it has received such information
regarding the Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware that the
transferor is relying upon the undersigned's foregoing representations in order
to claim the exemption from registration provided by Rule 144A.
Date:
__________________________________
NOTICE: To be executed by an
executive officer
3
[FORM OF LETTER TO BE COMPLETED
BY PURCHASER IF (3) ABOVE IS CHECKED]
Ladies and Gentlemen:
1. The undersigned understands that the offer and sale of the Shares
referred to in the attached certificate have not been registered under the
Securities Act, and that such Shares may not be offered or sole except as
permitted in the following sentence. The undersigned agrees, on its own behalf
and on behalf of any accounts for which it is acting as hereinafter stated, that
if it should sell, pledge or otherwise transfer any such Shares it will do so
only (1) (W) inside the United States to a person who the seller reasonably
believes is a qualified institutional buyer within the meaning of Rule 144A
under the securities act in a transaction meeting the requirements of rule 144A,
or in accordance with Rule 144 under the Securities Act, or pursuant to another
exemption from the registration requirements of the Securities Act (and based
upon an opinion of counsel, if the company so requests), (x) to Holdings, (y)
outside of the United States to a foreign person in a transaction meeting the
requirements of Rule 904 under the Securities Act or (z) pursuant to an
effective registration statement under the Securities Act and (2) in each case,
in accordance with the applicable securities laws of any state of the United
States or any other applicable jurisdiction, and undersigned further agrees to
provide to any person purchasing any of such Shares from us a notice advising
such purchaser that resales of such Shares are restricted as stated herein.
2. The undersigned understands that, on any proposed resale of all
or any of such Shares, it may be required to furnish Holdings such certification
and other information as Holdings may reasonably require to confirm that the
proposed sale complies with the foregoing restrictions. The undersigned further
understands that the Shares purchased by it will bear a legend to the foregoing
effect.
3. The undersigned is an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) and (7) under the Securities Act) and has
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of an investment
4
in the Shares, and the undersigned and any accounts for which it is acting are
each able to bear the economic risk of our or its investment, as the case may
be.
4. The undersigned is acquiring the Shares purchased by us for
its/our account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which the undersigned exercises sole
investment discretion.
Date: ________________________________
NOTICE: To be signed by an
executive officer
5
