AMENDED AND RESTATED
INVESTORS' AGREEMENT
dated as of
October 2, 1998
by and among
XXXXXXX HOLDINGS 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 MILLENNIUM PARTNERS, L.P.
DLJ MILLENNIUM PARTNERS -A, L.P.
DLJMB FUNDING II, INC.,
UK INVESTMENT PLAN 1997 PARTNERS,
DLJ EAB PARTNERS, L.P.,
DLJ FIRST ESC L.P.,
DLJ ESC II L.P.
and certain other Stockholders named herein
TABLE OF CONTENTS
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PAGE
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ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2
CORPORATE GOVERNANCE
SECTION 2.01 COMPOSITION OF THE BOARD . . . . . . . . . . . . . . . . . 10
SECTION 2.02 REMOVAL. . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.03 VACANCIES. . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.04 MEETINGS . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.05 ACTION BY THE BOARD. . . . . . . . . . . . . . . . . . . . 10
SECTION 2.06 CONFLICTING CHARTER OR BYLAW PROVISIONS. . . . . . . . . . 11
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01 GENERAL. . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.02 LEGENDS. . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.03 PERMITTED TRANSFEREES. . . . . . . . . . . . . . . . . . . 12
SECTION 3.04 RESTRICTIONS ON TRANSFERS BY MANAGEMENT STOCKHOLDERS . . . 12
SECTION 3.05 RESTRICTIONS ON TRANSFERS BY THE INVESTORS . . . . . . . . 13
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01 RIGHTS TO PARTICIPATE IN TRANSFER. . . . . . . . . . . . . 14
SECTION 4.02 RIGHTS TO COMPEL PARTICIPATION IN CERTAIN TRANSFERS. . . . 15
SECTION 4.03 CERTAIN RIGHTS . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01 DEMAND REGISTRATION. . . . . . . . . . . . . . . . . . . . 17
SECTION 5.02 INCIDENTAL REGISTRATION. . . . . . . . . . . . . . . . . . 20
SECTION 5.03 HOLDBACK AGREEMENTS. . . . . . . . . . . . . . . . . . . . 21
SECTION 5.04 REGISTRATION PROCEDURES. . . . . . . . . . . . . . . . . . 21
SECTION 5.05 INDEMNIFICATION BY THE COMPANY . . . . . . . . . . . . . . 24
PAGE
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SECTION 5.06 INDEMNIFICATION BY PARTICIPATING STOCKHOLDERS. . . . . . . 25
SECTION 5.07 CONDUCT OF INDEMNIFICATION PROCEEDINGS . . . . . . . . . . 26
SECTION 5.08 CONTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 5.09 PARTICIPATION IN PUBLIC OFFERING . . . . . . . . . . . . . 28
SECTION 5.10 OTHER INDEMNIFICATION. . . . . . . . . . . . . . . . . . . 29
SECTION 5.11 COOPERATION BY THE COMPANY . . . . . . . . . . . . . . . . 29
ARTICLE 6
MISCELLANEOUS
SECTION 6.01 ENTIRE AGREEMENT . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.02 BINDING EFFECT; BENEFIT. . . . . . . . . . . . . . . . . . 29
SECTION 6.03 EXCLUSIVE FINANCIAL AND INVESTMENT BANKING ADVISOR . . . . 29
SECTION 6.04 ASSIGNABILITY. . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 6.05 AMENDMENT; WAIVER; TERMINATION . . . . . . . . . . . . . . 30
SECTION 6.06 NOTICES. . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 6.07 HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.08 COUNTERPARTS . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.09 APPLICABLE LAW . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 6.10 SPECIFIC ENFORCEMENT . . . . . . . . . . . . . . . . . . . 31
SECTION 6.11 CONSENT TO JURISDICTION. . . . . . . . . . . . . . . . . . 31
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AMENDED AND RESTATED
INVESTORS' AGREEMENT
AMENDED AND RESTATED INVESTORS' AGREEMENT dated as of October 2, 1998
among (i) XxXxxxx Holdings Co., a Delaware corporation (the "COMPANY"), and
(ii) DLJ Merchant Banking Partners II, L.P., a Delaware limited partnership,
DLJ Offshore Partners II, C.V., a Netherlands Antilles limited partnership,
DLJ Merchant Banking Partners II-A, L.P., a Delaware limited partnership, DLJ
Diversified Partners, L.P., a Delaware limited partnership, DLJ Diversified
Partners-A, L.P., a Delaware limited partnership, DLJ EAB Partners, L.P., a
Delaware limited partnership, DLJ Millenium Partners, L.P., a Delaware
limited partnership, DLJ Millennium Partners-A, L.P., a Delaware limited
partnership, DLJMB Funding II, Inc., a Delaware corporation, UK Investment
Plan 1997 Partners, a Delaware partnership, DLJ First ESC L.P., a Delaware
limited partnership and DLJ ESC II L.P., a Delaware limited partnership,
(each of the foregoing, a "DLJ ENTITY", and collectively, the "DLJ ENTITIES").
WITNESSETH
WHEREAS, in connection with the merger (the "MERGER") of XxXxxxx
Acquisition Co., a Delaware corporation and an indirect second tier
subsidiary of the Company, with and into XxXxxxx Aircraft Holdings, Inc., a
Delaware corporation, pursuant to the Agreement and Plan of Merger (the
"MERGER AGREEMENT") dated as of July 16, 1998 between the parties to the
Merger certain parties hereto have acquired or will be acquiring equity
securities of the Company;
WHEREAS, the parties hereto desire to enter into this Agreement to
govern certain of their rights, duties and obligations after consummation of
the transactions contemplated by the Merger Agreement;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and in the Merger Agreement, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. DEFINITIONS. (a) The following terms, as used herein,
have the following meanings:
"ADVERSE PERSON" means any Person whom the Board determines is a
competitor or a potential competitor of the Company or any of its
Subsidiaries or to whom the Board determines a transfer of Shares would be
inadvisable.
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
Person; PROVIDED that no stockholder of the Company shall be deemed an
Affiliate of any other stockholder of the Company solely by reason of any
investment in the Company. For the purpose of this definition, the term
"CONTROL" (including with correlative meanings, the terms "CONTROLLING",
"CONTROLLED BY" and "UNDER COMMON CONTROL WITH"), when used with respect to
any Person, means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"AFFILIATED EMPLOYEE BENEFIT TRUST" means any trust that is a successor
to the assets held by a trust established under an employee benefit plan
subject to ERISA or any other trust established directly or indirectly under
such plan or any other such plan having the same sponsor.
"AGGREGATE OWNERSHIP" means, with respect to any Stockholder or group of
Stockholders, and with respect to any class of Company Securities, the total
number or amount of such class of Company Securities "beneficially owned" (as
such term is defined in Rule 13d-3 under the Exchange Act) (without
duplication) by such Stockholder or group of Stockholders as of the date of
such calculation (but adjusted in accordance with the proviso below),
calculated on a Fully Diluted basis and taking into account any stock
dividend, stock split or reverse stock split; PROVIDED that such number or
amount of such class of Company Securities shall be increased (without
duplication) with respect to any Stockholder, by any stock appreciation
rights, options, warrants or other rights to purchase or subscribe for Common
Shares of such Other Stockholder as and when such stock appreciation rights,
options, warrants or other rights have vested.
"BOARD" means the board of directors of the Company.
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"BUSINESS DAY" means any day except a Saturday or other day on which
commercial banks in New York City are authorized by law to close.
"BYLAWS" means the Bylaws of the Company, as amended from time to time.
"CHANGE OF CONTROL" means:
(a) any "person" or "group of persons" (within the meaning of Section
13 or 14 of the Exchange Act), other than the DLJ Entities and/or their
respective Permitted Transferees, acquires, directly or indirectly, by
virtue of the consummation of any purchase, merger or other combination,
beneficial ownership (within the meaning of Section 13(d)(3) of the
Exchange Act) of securities of the Company representing more than 51% of
the combined voting power of the Company's then outstanding voting
securities with respect to matters submitted to a vote of the stockholders
generally; or
(b) a sale or transfer by the Company or any of its Subsidiaries of
substantially all of the consolidated assets of the Company and its
Subsidiaries to an entity which is not an Affiliate of the Company prior to
such sale or transfer.
"CHARTER" means the Certificate of Incorporation of the Company, as amended
from time to time.
"CLOSING DATE" means August 28, 1998.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" means the common stock, par value $0.01 per share, of the
Company and any stock into which such Common Stock may thereafter be converted
or changed, and "COMMON SHARES" means shares of Common Stock.
"COMPANY SECURITIES" means the Common Stock and securities convertible into
or exchangeable for Common Stock, the Preferred Stock and options, warrants
(including the Warrants) or other rights to acquire Common Stock, Preferred
Stock or any other equity security issued by the Company.
"DRAG-ALONG PORTION" means, with respect to any Other Stockholder and any
class of Company Securities, the number of such class of Company Securities
beneficially owned by such Other Stockholder on a Fully Diluted basis multiplied
by a fraction, the numerator of which is the number of such class of Company
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Securities proposed to be sold by the DLJ Entities on behalf of the DLJ Entities
and the Other Stockholders and the denominator of which is the total number of
such class of Company Securities beneficially owned by the Stockholders on a
Fully Diluted basis.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FULLY DILUTED" means, with respect to Common Stock and without
duplication, all outstanding Common Shares and all Common Shares issuable in
respect of securities convertible into or exchangeable for Common Shares, stock
appreciation rights, options, warrants (including the Warrants) and other rights
to purchase or subscribe for Common Shares or securities convertible into or
exchangeable for Common Shares; PROVIDED that, to the extent any of the
foregoing stock appreciation rights, options, warrants or other rights to
purchase or subscribe for Common Shares are subject to vesting, the Common
Shares subject to vesting shall be included in the definition of "FULLY DILUTED"
only upon and to the extent of such vesting.
"INITIAL OWNERSHIP" means, with respect to any Stockholder and any class of
Company Securities, the number of shares or units of such class of Company
Securities beneficially owned (and (without duplication) which such Persons have
the right to acquire from any Person) as of the date hereof, or in the case of
any Person that shall become a party to this Agreement on a later date, as of
such date, taking into account any stock split, stock dividend, reverse stock
split or similar event.
"INITIAL PUBLIC OFFERING" means the initial sale after the date hereof of
Registrable Securities pursuant to an effective registration statement under the
Securities Act (other than a registration statement on Form S-8 or any successor
form).
"INVESTORS" means each investor in the Company's equity (other than the DLJ
Entities, the Management Stockholders and their respective Permitted
Transferees), if any, who becomes a Stockholder after the date of this Agreement
for so long as such investor shall beneficially own any Company Securities.
"MANAGEMENT STOCKHOLDERS" means each of the members of management of the
Company (if any) who becomes a Stockholder after the date of this Agreement for
so long as such member of management shall beneficially own any Company
Securities.
4
"Other Stockholders" means all Stockholders and their respective
Permitted Transferees, other than the DLJ Entities and their respective
Permitted Transferees.
"PERMITTED TRANSFEREE" means:
(i) in the case of any DLJ Entity (A) any other DLJ Entity, (B)
any general or limited partner of any DLJ Entity (a "DLJ PARTNER"), and
any corporation, partnership, Affiliated Employee Benefit Trust or other
entity that is an Affiliate of any DLJ Partner (collectively, the "DLJ
AFFILIATES"), (C) any managing director, director, general partner,
limited partner, officer or employee of any DLJ Entity or of 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, the "DLJ ASSOCIATES"), (D)
a trust, the beneficiaries of which, or a corporation, limited
liability company or partnership, the stockholders, members or general
or limited partners of which, include only XXX Xxxxxxxx, XXX Xxxxxxxxxx,
XXX Associates, their spouses or their lineal descendants or (E) a
voting trustee for one or more DLJ Entities, DLJ Affiliates or DLJ
Associates under the terms of a voting trust designed to conform with
the requirements of the Insurance Law of the State of New York; and
(ii) in the case of any Other Stockholder (A) any Other
Stockholder, (B) a Person to whom Shares are transferred from such Other
Stockholder (1) by will or the laws of descent and distribution or (2)
by gift without consideration of any kind; PROVIDED that, in the case of
clause (2), such transferee is the issue or spouse of such Other
Stockholder or (C) a trust that is for the exclusive benefit of such
Other Stockholder or its Permitted Transferees under (B) above.
"PERSON" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"PREFERRED STOCK" means the 14% Senior Redeemable Exchangeable
Preferred Stock, par value $0.01 per share, of the Company, and "PREFERRED
SHARES" means shares of Preferred Stock.
"PRO RATA PORTION" means the number of Common Shares a Stockholder
holds multiplied by a fraction, the numerator of which is the number of
Common Shares to be sold by the DLJ Entities and their Permitted Transferees
in a Public Offering and the denominator of which is the total number of
Common Shares, on
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a Fully Diluted basis, held in the aggregate by the DLJ Entities and their
Permitted Transferees prior to such Public Offering.
"PUBLIC OFFERING" means any primary or secondary public offering of
Registrable Securities of the Company pursuant to an effective registration
statement under the Securities Act other than pursuant to a registration
statement filed in connection with a transaction of the type described in
Rule 145 of the Securities Act or for the purpose of issuing securities
pursuant to an employee benefit plan.
"REGISTRABLE SECURITIES" means at any time, with respect to any
Stockholder or its Permitted Transferees, any Shares of Warrants and any
securities issued or issuable in respect of such Shares or Warrants by way of
conversion, exchange, stock dividend, split or combination, recapitalization,
merger, consolidation or other reorganization or otherwise until (i) a
registration statement covering such Shares or Warrants has been declared
effective by the SEC and such Shares or Warrants have been disposed of
pursuant to such effective registration statement, (ii) such Shares or
Warrants are sold under circumstances in which all of the applicable
conditions of Rule 144 (or any similar provisions then in force) under the
Securities Act are met or (iii) such Shares or Warrants are otherwise
transferred, the Company has delivered a new certificate or other evidence of
ownership for such Shares or Warrants not bearing the legend required
pursuant to this Agreement and such Shares or Warrants may be resold without
subsequent registration under the Securities Act.
"REGISTRATION EXPENSES" means (i) all registration and filing fees, (ii)
fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Securities registered), (iii) printing
expenses, (iv) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), (v) reasonable fees and disbursements
of counsel for the Company and customary fees and expenses for independent
certified public accountants retained by the Company (including expenses
relating to any comfort letters or costs associated with the delivery by
independent certified public accountants of any comfort letter requested
pursuant to Section 5.04(h) hereof), (vi) the reasonable fees and expenses of
any special experts retained by the Company in connection with the applicable
registration, (vii) reasonable fees and expenses of up to one counsel for the
Stockholders participating in the offering selected (A) by the DLJ Entities,
in the case of any offering in which such entities participate, or (B) in any
other case, by the Other Stockholders holding the majority of the Shares or
Warrants to be sold for the account of all Other Stockholders in the offering,
(viii) fees and expenses in connection with any review of underwriting
arrangements by the
6
National Association of Securities Dealers, Inc. (the "NASD"), including fees
and expenses of any "QUALIFIED INDEPENDENT UNDERWRITER", and (ix) fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities; but shall not include any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities, or any
out-of-pocket expenses (except as set forth in clause (vii) above) of the
Stockholders (or the agents who manage their accounts) or any fees and expenses
of underwriter's counsel.
"RESTRICTION TERMINATION DATE" means the earlier to occur of (a) the second
anniversary of the First Public Offering and (b) the fifth anniversary of the
Closing Date.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHARES" means the Common Shares and the Preferred Shares.
"STOCKHOLDER" means each Person (other than the Company) who shall be a
party to or bound by this Agreement, whether in connection with the execution
and delivery hereof as of the date hereof, pursuant to Section 6.04 or
otherwise, so long as such Person shall beneficially own any Company
Securities.
"SUBSIDIARY" means, with respect to any Person, any entity of which
ownership interests having ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions are at the
time directly or indirectly owned by such Person.
"TAG-ALONG PORTION" means with respect to any Tagging Person or the Selling
Person, as the case may be:
(i) where the Selling Person is selling Common Shares, the number of
Common Shares beneficially owned by such Tagging Person or the Selling Person,
as the case may be, on a Fully Diluted Basis multiplied by a fraction, the
numerator of which is the number of Common Shares proposed to be sold in the
Tag-Along Sale pursuant to Section 4.01 and the denominator of which is the
aggregate number of Common Shares beneficially owned by all Stockholders on a
Fully Diluted basis,
(ii) where the Selling Person is selling Preferred Shares, the number of
Preferred Shared beneficially owned by such Tagging Person or the Selling
Person, as the case may be, multiplied by a fraction, the numerator of which is
the number of Preferred Shares proposed to be sold in the Tag-Along Sale
pursuant to
7
Section 4.01 and the denominator of which is the aggregate number of Preferred
Shares beneficially owned by all Stockholders, and
(iii) where the Selling Person is selling Warrants, the number of Common
Shares beneficially owned (or, without duplication, acquirable under the
Warrants) by such Tagging Person or the Selling Person, as the case may be,
on a Fully Diluted Basis multiplied by a fraction, the numerator of which is
the number of Common Shares for which the Warrants proposed to be sold in the
Tag-Along Sale pursuant to Section 4.01 are exercisable and the denominator
of which is the aggregate number of Common Shares beneficially owned by all
Stockholders on a Fully Diluted Basis, PROVIDED that where a Tag-Along Right
includes the right to sell Common Stock, any holder of Warrants may, in lieu
of exercising Warrants, transfer Warrants for some or all of that number of
Common Shares as would otherwise have constituted its Tag-Along Portion, in
which event the price to be received with respect to each such Warrant shall
be the price per Common Share applicable to the Tag-Along Offer, less the
then applicable exercise price of the Warrants owned by such holder.
"THIRD PARTY" means a prospective purchaser of Company Securities in an
arm's-length transaction from a Stockholder where such purchaser is not a
Permitted Transferee of such Stockholder.
"UNDERWRITTEN PUBLIC OFFERING" means a firmly underwritten Public Offering.
"WARRANTS" means the warrants issued by the Company to the Stockholders for
the purchase of an aggregate of 155,000 Common Shares (subject to adjustment as
provided for herein).
(b) The term "DLJ ENTITIES", to the extent such entities shall have
transferred any of their Shares to "Permitted Transferees", shall mean the
DLJ Entities and the Permitted Transferees of the DLJ Entities, taken
together, and any right or action that may be taken at the election of the
DLJ Entities may be taken at the election of the DLJ Entities and such
Permitted Transferees.
(c) The term "OTHER STOCKHOLDERS", to the extent such stockholders
shall have transferred any of their Company Securities to "Permitted
Transferees", shall mean the Other Stockholders and the Permitted
Transferees of the Other Stockholders, taken together, and any right or
action that may be taken at the election of the Other Stockholders may be
taken at the election of the Other Stockholders and such Permitted
Transferees.
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(d) Each of the following terms is defined in the Section set forth
opposite such term:
TERM SECTION
Applicable Holdback Period 5.03
Demand Registration 5.01(a)
DLJMB 2.01
DLJSC 6.03
Drag-Along Rights 4.02(a)
Holders 5.01(a)(ii)
Incidental Registration 5.02(a)
Indemnified Party 5.07
Indemnifying Party 5.07
Independent Director 2.01(a)
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Merger recitals
Merger Agreement recitals
Nominee 2.03(a)
Public Offering Limitation 3.04(a)
Records 5.04(g)
Section 4.01 Response Notice 4.01(a)
Section 4.02 Notice 4.02(a)
Section 4.02 Notice Period 4.02(a)
Section 4.02 Sale 4.02(a)
Section 4.02 Sale Price 4.02(a)
Selling Person 4.01(a)
Selling Stockholder 5.01(a)
Tag-Along Notice 4.01(a)
Tag-Along Notice Period 4.01(a)
Tag-Along Offer 4.01(a)
Tag-Along Right 4.01(a)
Tag-Along Sale 4.01(a)
Tagging Person 4.01(a)
transfer 3.01(a)
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ARTICLE 2
CORPORATE GOVERNANCE
SECTION 2.01. COMPOSITION OF THE BOARD. (a) The Board shall consist
initially of six directors, all of whom shall be designated by DLJ Merchant
Banking Partners II, L.P. ("DLJMB") and one of whom shall not be either
an "Affiliate" or an "Associate" (as such terms are used within the meaning of
Rule 12b-2 under the Exchange Act) of any of the DLJ Entities (the
"INDEPENDENT DIRECTOR").
(b) Each Stockholder entitled to vote for the election of directors to
the Board agrees that it will vote its Common Shares or execute written
consents, as the case may be, and take all other necessary action (including
causing the Company to call a special meeting of stockholders) in order to
ensure that the composition of the Board is as set forth in this Section 2.01.
SECTION 2.02. REMOVAL. Each Stockholder agrees that if, at any time, it
is then entitled to vote for the removal of directors of the Company, it will
not vote any of its Common Shares in favor of the removal of any director who
shall have been designated or nominated pursuant to Section 2.01 unless such
removal shall be for cause or the Persons entitled to designate or nominate
such director shall have consented to such removal in writing.
SECTION 2.03. VACANCIES. If, as a result of death, disability,
retirement, resignation, removal (with or without cause) or otherwise, there
shall exist or occur any vacancy of the Board:
(a) the Person or Persons entitled under Section 2.01 to designate or
nominate such director whose death, disability, retirement, resignation or
removal resulted in such vacancy may designate another individual (the
"NOMINEE") to fill such capacity and serve as a director of the Company; and
(b) each Stockholder then entitled to vote for the election of the
Nominee as a director of the Company agrees that it will vote its Common
Shares, or execute a written consent, as the case may be, in order to ensure
that the Nominee is elected to the Board.
SECTION 2.04. MEETINGS. The Board shall hold a regularly scheduled
meeting at least once every fiscal quarter.
SECTION 2.05. ACTION BY THE BOARD. (a) A quorum of the Board shall
consist of three directors. All actions of the Board shall require the
affirmative
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vote of at least a majority of the directors present at a duly convened
meeting of the Board at which a quorum is present or the unanimous written
consent of the Board; PROVIDED that, in the event there is a vacancy on the
Board and an individual has been nominated to fill such vacancy, the first
order of business shall be to fill such vacancy.
(b) The Board may create executive, compensation and audit committees,
as well as such other committees as it may determine.
SECTION 2.06. CONFLICTING CHARTER OR BYLAW PROVISIONS. Each Stockholder
shall vote its Common Shares or execute written consents, as the case may be,
and take all other actions necessary, to ensure that the Company's Charter
and Bylaws facilitate and do not at any time conflict with any provision of
this Agreement.
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. GENERAL. (a) Each Stockholder understands and agrees that
the Company Securities purchased pursuant to the applicable subscription
agreement have not been registered under the Securities Act and are
restricted securities. Each Stockholder agrees that it will not, directly or
indirectly, sell, assign, transfer, grant a participation in, pledge or
otherwise dispose of ("transfer") any Company Securities (or solicit any
offers to buy or otherwise acquire, or take a pledge of any Company
Securities) except in compliance with the Securities Act and the terms and
conditions of this Agreement. Subject to the Securities Act and Section 4.01,
Company Securities may be freely transferred by any DLJMB Entities.
(b) Any attempt to transfer any Company Securities not in compliance
with this Agreement shall be null and void and the Company shall not, and
shall cause any transfer agent not to, give any effect in the Company's stock
records to such attempted transfer.
SECTION 3.02. LEGENDS. In addition to any other legend that may be
required, each certificate for Shares or Warrants that is issued to any
Stockholder shall bear a legend in substantially the following form:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR ANY
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STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
AMENDED AND RESTATED INVESTORS' AGREEMENT DATED AS OF OCTOBER
2, 1998. COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
XXXXXXX HOLDINGS CO. OR ANY SUCCESSOR THERETO.
If any Company Securities shall cease to be Registrable Securities under
clause (i) or clause (ii) of the definition thereof, the Company shall, upon
the written request of the holder thereof, issue to such holder a new
certificate evidencing such securities without the first sentence of the
legend required by this Section endorsed thereon. If any Company Securities
shall cease to be subject to any and all restrictions on transfer set forth
in this Agreement, the Company shall, upon the written request of the holder
thereof, issue to such holder a new certificate evidencing such securities
without the second sentence of the legend required by this Section endorsed
thereon.
SECTION 3.03. PERMITTED TRANSFEREES. Notwithstanding anything in this
Agreement to the contrary, any Stockholder may at any time transfer any or
all of its Company Securities to one of more of its Permitted Transferees
without the consent of the Board or any other Stockholder or group of
Stockholders and without compliance with Sections 3.04, 3.05 and 4.01 so long
as (a) such Permitted Transferee shall have agreed in writing to be bound by
the terms of this Agreement and (b) the transfer to such Permitted Transferee
is not in violation of applicable federal or state securities laws.
SECTION 3.04. RESTRICTIONS ON TRANSFERS BY MANAGEMENT STOCKHOLDERS. (a)
Each Management Stockholder and each Permitted Transferee of such Management
Stockholder may transfer its Company Securities only as follows:
(i) in a transfer made in compliance with Section 4.01 or 4.02, or
as permitted or required by any employment contract between the Company or
any Subsidiary and an employee;
(ii) subject to the Public Offering Limitations, in a Public
Offering in connection with the exercise of its rights under Section 5.02
hereof;
(iii) in a transfer made at the conclusion of the Applicable
Holdback Period (as defined in Section 5.03) following a Public Offering, in
compliance with Rule 144 promulgated under the Securities Act;
12
PROVIDED, HOWEVER, that until the Restriction Termination Date, the
Aggregate Ownership of such Management Stockholder as a result of such
transfer shall be equal to or exceed the greater of (x) 50% of such
Management Stockholder's Initial Ownership and (y) the percentage of such
Management Stockholder's Initial Ownership that is equal to the Aggregate
Ownership of the DLJ Entities as a percentage of the DLJ Entities' Initial
Ownership; or
(iv) following the Restriction Termination Date, to any Third Party
other than an Adverse Person for consideration consisting solely of cash;
PROVIDED, HOWEVER, that the number of Common Shares transferred by such
Management Stockholder pursuant to this Section 3.04 (a)(iv) in any
twelve month period shall not exceed 20% of such Management
Stockholder's Aggregate Ownership at the beginning of such twelve month
period.
For purposes of this Agreement, "PUBLIC OFFERING LIMITATIONS" means (A)
no Management Stockholder shall be permitted to exercise its rights under
Section 5.02 hereof (x) with respect to the Initial Public Offering and (y)
until such time as the Aggregate Ownership of the DLJ Entities shall be less
than 50% of their aggregate Initial Ownership and (B) in each Public Offering
following the Initial Public Offering, such Management Stockholder shall be
entitled to transfer a number of Shares not exceeding such Management
Stockholder's Pro Rata Portion of such Management Stockholder's Shares.
(b) The provisions of Section 3.04(a) shall terminate upon the earliest
to occur of (i) the tenth anniversary of the Closing Date and (ii) a Change
of Control. Notwithstanding the foregoing sentence, the provisions of Section
3.04(a) shall not terminate with respect to any Management Stockholder's
Shares which shall have been pledged to the Company as security in connection
with any indebtedness for borrowed money owed by such Management Stockholder
to the Company unless the proceeds from the sale of such Shares are applied
to repay such indebtedness in full.
SECTION 3.05. RESTRICTIONS ON TRANSFERS BY THE INVESTORS. (a) Except as
provided in Section 3.03, each of the Investors and its Permitted Transferees
may transfer its Company Securities only as follows:
(i) in a transfer made in compliance with Section 4.01 or 4.02;
or
(ii) in a Public Offering in connection with the exercise of its
rights under Article 5 hereof.
13
(b) The provisions of Section 3.05(a) shall terminate upon the earlier
to occur of (i) the tenth anniversary of the Closing Date and (ii) a Change
of Control.
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01 RIGHTS TO PARTICIPATE IN TRANSFER. (a) If DLJ Entities
(the "SELLING PERSON") propose to transfer (other than transfers of Common
Shares (i) in a Public Offering or (ii) to any Permitted Transferee of any of
the DLJ Entities) a number of Company Securities equal to or exceeding 20% of
the Aggregate Ownership of the DLJ Entities in a single transaction or in a
series of related transactions on the date of the proposed sale (a "TAG-ALONG
SALE"), the Other Stockholders may, at their option, elect to exercise their
rights under this Section 4.01 (each such Stockholder, a "TAGGING PERSON").
In the event of such a proposed transfer, the Selling Person shall provide
each Other Stockholder written notice of the terms and conditions of such
proposed transfer ("TAG-ALONG NOTICE") and offer each Tagging Person the
opportunity to participate in such sale. The Tag-Along Notice shall identify
the number and type of Company Securities subject to the offer ("TAG-ALONG
OFFER"), the cash price at which the transfer is proposed to be made, and
all other material terms and conditions of the Tag-Along Offer. Each Tagging
Person shall have the right (a"TAG-ALONG RIGHT"), exercisable by written
notice ("SECTION 4.01 RESPONSE NOTICE") given to the Selling Person within 10
Business Days of the date of receipt of the Tag-Along Notice by such Tagging
Person (the "TAG-ALONG NOTICE PERIOD"), to request that the Selling Person
include in the proposed transfer the number and type of Company Securities
held by such Tagging Person as is specified in such notice; PROVIDED that if
the aggregate number of Company Securities proposed to be sold by the Selling
Person and all Tagging Persons in such transaction exceeds the number of
Company Securities which can be sold on the terms and conditions set forth in
the Tag-Along Notice, then only the Tag-Along Portion of the Company
Securities of each Tagging Person shall be sold pursuant to the Tag-Along
Offer and the Selling Person shall sell its Tag-Along Portion of the Company
Securities and such additional Company Securities as permitted by Section
4.01(d). Each Tagging Person shall deliver to the Selling Person, together
with its Section 4.01 Response Notice, the certificate or certificates
representing the Company Securities of such Tagging Person to be included in
the transfer, together with a limited power-of-attorney authorizing the
Selling Person to transfer such Company Securities on the terms set forth in
the Tag-Along Notice. Delivery of such certificate or certificates
representing the Company Securities to be
14
transferred and the limited power-of-attorney authorizing the Selling
Person to transfer such Company Securities shall constitute an irrevocable
acceptance of the Tag-Along Offer by such Tagging Persons. If, at the end of
a 120 day period after such delivery, the Selling Person has not completed
the transfer of all such Company Securities on substantially the same terms
and conditions set forth in the Tag-Along Notice, the Selling Person shall
return to each Tagging Person the limited power-of attorney (and all copies
thereof) together with certificates representing the unsold Company
Securities which such Tagging Person delivered for transfer pursuant to this
Section 4.01.
(b) Concurrently with the consumption of the Tag-Along Sale, the Selling
Person shall notify the Tagging Persons thereof, shall remit to the Tagging
Person the total consideration (by bank or certified check) for the Company
Securities of the Tagging Person transferred pursuant thereto, and shall,
promptly after the consummation of such Tag-Along Sale, furnish such other
evidence of the completion and time of completion of such transfer and the
terms thereof as may be reasonably requested by the Tagging Persons.
(c) If at the termination of the Tag-Along Notice Period any Tagging
Person shall not have elected to participate in the Tag-Along Sale, such
Tagging Person will be deemed to have waived its rights under Section 4.01(a)
with respect to the transfer of its Company Securities pursuant to such
Tag-Along Sale.
(d) If any Tagging Person declines to exercise its Tag-Along Rights or
elects to exercise its Tag-Along Rights with respect to less than such
Tagging Person's Tag-Along Portion, the DLJ Entities shall be entitled to
transfer, pursuant to the Tag-Along Offer, a number and type of Company
Securities held by the DLJ Entities equal to the number and type of Company
Securities constituting the portion of such Tagging Person's Tag-Along
Portion with respect to which Tag-Along Rights were not exercised.
(e) The DLJ Entities and any Tagging Person who exercise the Tag-Along
Rights pursuant to this Section 4.01 may sell the Company Securities subject
to the Tag-Along Offer on the terms and conditions set forth in the Tag-Along
Notice (PROVIDED, HOWEVER, that the cash price payable in any such sale may
exceed the cash price specified in the Tag-Along Notice by up to 10%) within
120 days of the date on which Tag-Along Rights shall have been
waived, exercised or expired.
SECTION 4.02. RIGHTS TO COMPEL PARTICIPATION IN CERTAIN TRANSFERS. (a)
If (i) the DLJ Entities propose to transfer not less than 50% of their Initial
Ownership of any class of Company Securities to a Third Party in a bona fide
sale or (ii) the DLJ Entities propose a transfer in which the Company
the Securities to be
15
transferred by the DLJ Entities and their Permitted Transferees constitute
more than 50% of such class of outstanding Company Securities (a "SECTION
4.02 SALE"), the DLJ Entities may at their option require all Other
Stockholders to sell the Drag-Along Portion of their Company Securities
("DRAG-ALONG RIGHTS"). DLJMB shall provide written notice of such Section
4.02 Sale to the Other Stockholders (a "SECTION 4.02 NOTICE") not later than
15 days prior to the proposed Section 4.02 Sale. The Section 4.02 Notice
shall identify the proposed transferee for the Section 4.02 Sale, the number
and type of Company Securities proposed to be transferred pursuant to the
Section 4.02 Sale, the proposed consideration for the Company Securities
(the "SECTION 4.02 SALE PRICE") and all other material terms and conditions
of the proposed Section 4.02 Sale. The number of Company Securities to be
sold by each Other Stockholder will be the Drag-Along Portion of the Company
Securities that such Other Stockholder owns. Subject to the Sections 4.02 and
4.03, each Other Stockholder shall be required to participate in the Section
4.02 Sale on the terms and conditions set forth in the Section 4.02 Notice
and to tender the Drag-Along Portion of its Company Securities as set forth
below. The price payable in such transfer shall be the Section 4.02 Sale
Price. Not later than the 10th day following the date of the Section 4.02
Notice (the "SECTION 4.02 NOTICE PERIOD"), each to the Other Stockholders
shall deliver to a representative of DLJMB designated in the Section 4.02
Notice certificates representing the Drag Along Portion of such Other
Stockholder's Company Securities, duly endorsed, together with all other
documents required to be executed in connection with such Section 4.02 Sale.
If any Other Stockholder should fail to deliver such certificates to DLJMB,
the Company shall cause the books and records of the Company to show that
the Drag-Along Portion of such Other Stockholder's Company Securities are
bound by the provisions of this Section 4.02 and Section 4.03 and that such
Company Securities shall be transferred to the purchaser of the Company
Securities subject to the Section 4.02 Sale immediately upon surrender for
transfer by the holder thereof.
(b) The DLJ Entities shall have a period of 90 days from the date of
receipt of the Section 4.02 Notice to consummate the Section 4.02 Sale on the
terms and conditions set forth in such Section 4.02 Sale Notice. If the
Section 4.02 Sale shall not have been consummated during such period, DLJMB
shall return to each of the Other Stockholders all certificates representing
Company Securities that such Other Stockholder delivered for transfer
pursuant hereto, together with any documents in the possession of DLJMB
executed by the Other Stockholder in connection with such proposed Section
4.02 Sale, and all the restrictions on transfer contained in this Agreement
or otherwise applicable at such time with respect to the Company Securities
owned by the Other Stockholders shall again be in effect.
16
(c) Concurrently with the consummation of any Section 4.02 Sale
pursuant to this Section 4.02 and Section 4.03, DLJMB shall give notice
thereof to all Stockholders, shall remit to each Stockholder who has
surrendered certificates in connection with such Section 4.02 Sale the total
consideration (by bank or certified check) for the Company Securities
represented by such Stockholder's certificates and shall furnish such other
evidence of the completion and time of completion of such Section 4.02 Sale
and the terms thereof as may be reasonably requested by such Stockholders.
SECTION 4.03. CERTAIN RIGHTS. It is understood and agreed that the
employment agreements or associated restricted stock purchase agreements
between one or more Management Stockholders and the Company or any Subsidiary
may contain provisions permitting or requiring, under certain circumstances,
such Management Stockholders to sell to the Company or a Subsidiary, and
permitting or requiring, under certain circumstances, the Company or such
Subsidiary to purchase from such Management Stockholder, Common Shares. Such
provisions may, by the terms of such agreements, remain effective
notwithstanding that the employment relationship created by such employment
agreements has been terminated, in which event such provisions are deemed to
be incorporated herein and made a part hereof, to the extent appropriate.
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. DEMAND REGISTRATION. (a) If the Company shall receive a
written request by the DLJ Entities or their Permitted Transferees (any such
requesting Person, a "SELLING STOCKHOLDER") that the Company effect the
registration under the Securities Act of all or a portion of such Selling
Stockholder's Registrable Securities, and specifying the intended method of
disposition thereof, then the Company shall promptly give written notice of
such requested registration (a "DEMAND REGISTRATION") at least 10 days prior
to the anticipated filing date of the registration statement relating to such
Demand Registration to the Other Stockholders and thereupon will use its
best efforts to effect, as expeditiously as possible, the registration under
the Securities Act of:
(i) the Registrable Securities then held by the Selling
Stockholders which the Company has been so requested to register by the
Selling Stockholders; and
17
(ii) subject to the restrictions set forth in Section 3.04, all
other Registrable Securities of the same type as that to which the
request by the Selling Stockholders relates which any Other Stockholder
entitled to request the Company to effect an Incidental Registration (as
such term is defined in Section 5.02) pursuant to Section 5.02 (all such
Stockholders, together with the Selling Stockholders, the "HOLDERS") has
requested the Company to register by written request received by the
Company within 5 days after the receipt by such Holders of such written
notice given by the Company,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; PROVIDED that, subject to Section 5.01(d) hereof, the Company
shall not be obligated to effect more than six Demand Registrations for the
DLJ Entities; PROVIDED, FURTHER, that the Company shall not be obligated to
effect a Demand Registration unless the aggregate proceeds expected to be
received from the sale of the Common Stock to be included in such Demand
Registration, in the reasonable opinion of DLJMB exercised in good faith,
equal or exceed (x) $25,000,000 if such Demand Registration would constitute
the First Public Offering, or (y) $10,000,000 in all other cases. In no
event will the Company be required to effect more than one Demand
Registration within any four-month period.
(b) Promptly after the expiration of the 5-day period referred to in
Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be
included in the Demand Registration of the other Holders and the number of
Registrable Securities requested to be included therein. The Selling
Stockholders requesting a registration under this Section may, at any time
prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other
Holders, by providing a written notice to the Company revoking such request,
in which case such request, so revoked, shall be considered a Demand
Registration unless the participating Stockholders reimburse the Company for
all costs incurred by the Company in connection with such registration or
unless such revocation arose out of the fault of the Company.
(c) The Company will pay all Registration Expenses in connection with
any Demand Registration.
(d) A registration requested pursuant to this Section shall not be
deemed to have been effected unless the registration statement relating
thereto (A) has become effective under the Securities Act and (B) has
remained effective for a period of at least 180 days (or such shorter period
in which all Registrable Securities of the Holders included in such
registration have actually been sold
18
thereunder); PROVIDED that if (i) after any registration statement requested
pursuant to this Section becomes effective (x) such registration statement is
interfered with by any stop order, injunction or other order or requirement
of the SEC or other governmental agency or court and (y) less than 75% of the
Registrable Securities included in such registration statement is sold
thereunder, or (ii) the Maximum Offering Size (as defined below) is reduced
in accordance with Section 5.01(e) such that less than 66 2/3% of the
Registrable Securities of the Selling Stockholders sought to be included in
such registration are included, such registration statement shall be at the
sole expense of the Company and shall not be considered a Demand Registration.
(e) If a Demand Registration involves an Underwritten Public Offering
and the managing underwriter shall advise the Company and the Selling
Stockholders that, in its view, (i) the and/or type number of Registrable
Securities requested to be included in such registration (including any
securities which the Company proposes to be included which are not
Registrable Securities) or (ii) the inclusion of some or all of the
Registrable Securities owned by the Holders, in any such case, exceeds the
largest number and/or type of securities which can be sold without having an
adverse effect on such offering, including the price at which such securities
can be sold (the "MAXIMUM OFFERING SIZE"), the Company will include in such
registration, in the priority listed below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be
registered by the Selling Stockholders (allocated, if necessary for
the offering not to exceed the Maximum Offering Size, pro rata
among such Holders on the basis of the relative number of shares of
Registrable Securities so requested to be registered);
(B) second, all Registrable Securities requested to be
included in such registration by any other Holder and their
Permitted Transferees (allocated, if necessary for the offering not
to exceed the Maximum Offering Size, pro rata among such Holders on
the basis of the relative number of shares of Registrable
Securities so requested to be included); and
(C) third, any securities proposed to be registered by the
Company.
(f) If, in connection with any Demand Registration pursuant to this
Section with respect to the Common Shares or Preferred Shares, any Selling
Stockholder shall seek to transfer any Warrants together with Common Shares
or Preferred Shares, the Company shall at the request of any such Selling
19
Stockholder effect a registration of such Warrants to which the provisions of
this Article 5 shall apply MUTATIS MUTANDIS and a registration, pursuant to a
shelf registration statement, so as to permit the resale of the Common Shares
for which any Warrants so transferred may be exercisable. The Company shall
maintain the effectiveness of any such shelf registration statement, and take
all actions necessary to permit resale of such Common Shares as may be
required by applicable state securities laws.
SECTION 5.02 INCIDENTAL REGISTRATION. (a) If the Company proposes to
register any Company Securities under the Securities Act (other than a
registration of Common Shares (A) issuable upon exercise of employee stock
options or in connection with any employee benefit or similar plan of the
Company or (B) in connection with a direct or indirect acquisition by the
Company of another company), whether or not for sale for its own account, it
will each such time, subject to the provisions of Section 5.02(b), give
prompt written notice at least 10 days prior to the anticipated filing date
of the registration statement relating to such registration to each DLJ
Entity and each Other Stockholder, which notice shall set forth such
Stockholder's rights under this Section 5.02 and shall offer such
Stockholders the opportunity to include in such registration statement such
number of Registrable Securities of the same type as are proposed to be
registered as each such Stockholder may request (an "INCIDENTAL
REGISTRATION"). Upon the written request of any such Stockholder made within
5 days after the receipt of notice from the Company (which request shall
specify the number of Registrable Securities intended to be disposed of by
such Stockholder), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by such Stockholders, to the extent
requisite to permit the disposition of the Registrable Securities so to be
registered; PROVIDED that (1) if such registration involves an Underwritten
Public Offering, all such Stockholders requesting to be included in the
Company's registration must sell their Registrable Securities to the
underwriters selected as provided in Section 5.04(f) on the same terms and
conditions as apply to the Company and (2) if, at any time after giving
written notice of its intention to register any stock pursuant to this
Section 5.02(a) and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for
any reason not to register such securities, the Company shall give written
notice to all such Stockholders and, thereupon, shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration (without prejudice, however, to the rights of any DLJ Entity
under Section 5.01). No registration effected under this Section 5.02 shall
relieve the Company of its obligations to effect a Demand Registration to the
extent required by Section 5.01. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 5.02.
20
(b) If a registration pursuant to this Section 5.02 involves an
Underwritten Public Offering (other than in the case of an Underwritten
Public Offering requested by a Selling Stockholder in a Demand Registration,
in which case the provisions with respect to priority of inclusion in such
offering set forth in Section 5.01(e) shall apply) and the managing
underwriter advises the Company that, in its view, the number and/or type of
shares of Registrable Securities which the Company and the Other Stockholders
intend to include in such registration exceeds the Maximum Offering Size, the
Company will include in such registration, in the priority listed below, up
to the Maximum Offering Size:
(i) first, so much of the securities proposed to be registered for
the account of the Company as would not cause the offering to exceed the
Maximum Offering Size; and
(ii) second, all Registrable Securities requested to be included in
such registration pursuant to Section 5.02 (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata among such
Stockholders on the basis of the relative number of shares of Registrable
Securities requested to be so included).
SECTION 5.03. HOLDBACK AGREEMENTS. If any registration of Registrable
Securities shall be in connection with an Underwritten Public Offering, each
Stockholder agrees not to effect any public sale or distribution, including
any sale pursuant to Rule 144, or any successor provision, under the
Securities Act, of any Registrable Securities, and not to effect any such
public sale or distribution of any Common Shares or of any stock convertible
into or exchangeable or exercisable for any Common Shares (in each case,
other than as part of such Underwritten Public Offering) during the 14 days
prior to the effective date of such registration statement (except as part of
such registration) or during the period after such effective date equal to
the lesser of (i) such period of time as agreed between such managing
underwriter and the Company and (ii) 180 days (such lesser period, the
"APPLICABLE HOLDBACK PERIOD").
SECTION 5.04. REGISTRATION PROCEDURES. Whenever Stockholders request
that any Registrable Securities be registered pursuant to Section 5.01 or
5.02, the Company will, subject to the provisions of such Sections, use its
best efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof as
quickly as practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file with
the SEC a registration statement on any form for which the Company then
21
qualifies or which counsel for the Company shall deem appropriate and which
form shall be available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of distribution
thereof, and use its best efforts to cause such filed registration statement
to become and remain effective for a period of not less than 180 days.
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
each Stockholder holding Registrable Securities covered by such registration
statement and each underwriter, if any, of the Registrable Securities covered
by such registration statement copies of such registration statement as
proposed to be filed, and thereafter the Company will furnish to such
Stockholder and underwriter, if any, such number to copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Stockholder or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Stockholder.
(c) After the filing of the registration statement, the Company will
promptly notify each Stockholder holding Registrable Securities covered by
such registration statement of any stop order issued or threatened by the SEC
and take all reasonable actions required to prevent the entry of such stop
order or to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify
the Registrable Securities covered by such registration statement under such
other securities or blue sky laws of such jurisdictions in the United States
as any Stockholder holding such Registrable Securities reasonably (in light
of such Stockholder's intended plan of distribution) requests and (ii) cause
such Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and
things that may be reasonably necessary or advisable to enable such
Stockholder to consummate the disposition of the Registrable Securities owned
by such Stockholder; PROVIDED that the Company will not be required to (A)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d),(B) subject
itself to taxation in any such jurisdiction or (C) consent to general service
of process in any such jurisdiction.
(c) The Company will immediately notify each Stockholder holding such
Registrable Securities, at any time when a prospectus relating thereto is
22
required to be delivered under the Securities Act, of the occurrence of an
event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading and
promptly prepare and make available to each such Stockholder any such
supplement or amendment.
(f) (i) The DLJ Entities will have the right, in their sole discretion, to
select an underwriter or underwriters in connection with any Public Offering
resulting from the exercise by any such DLJ Entity or its Permitted Transferee
of a Demand Registration, which underwriter or underwriters may include any
Affiliate of any DLJ Entity and (ii) the Company will select an underwriter or
underwriters in connection with any other Public Offering. In connection with
any Public Offering, the Company will enter into customary agreements (including
an underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the disposition of
Registrable Securities in any such Public Offering, including the engagement of
a "qualified independent underwriter" in connection with the qualification of
the underwriting arrangements with the NASD.
(g) Upon the execution of confidentiality agreements in form and substance
satisfactory to the Company, the Company will make available for inspection by
any Stockholder and any underwriter participating in any disposition pursuant to
a registration statement being filed by the Company pursuant to this Section
5.04 and any attorney, accountant or other professional retained by any such
Stockholder or underwriter (collectively, the "INSPECTORS"), all financial and
other records, pertinent corporate documents and properties of the Company
(collectively, the "RECORDS") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement. Records that the
Company determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless (i)
the disclosure of such Records is necessary to avoid or correct a misstatement
or omission in such registration statement or (ii) the release of such Records
is ordered pursuant to a subpoena or other order from a court of competent
jurisdiction. Each Stockholder agrees that information obtained by it as a
result of such inspections shall be deemed confidential and shall not be used by
it as the basis for any market transactions in the Company Securities or its
Affiliates unless and until such is made generally available to the public.
Each Stockholder further agrees that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company
23
and allow the Company, at its expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential.
(h) The Company will furnish to each such Stockholder and to each such
underwriter, if any, a signed counterpart, addressed to such underwriter, of (i)
an opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary form and covering such matters of the type customarily covered by
opinions or comfort letters, as the case may be, as a majority of such
Stockholders or the managing underwriter therefor reasonably requests.
(i) The Company will otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
stockholders, as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
The Company may require each such Stockholder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required in connection with such
registration.
Each such Stockholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 5.04(e),
such Stockholder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Stockholder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 5.04(e), and, if so directed by the
Company, such Stockholder will deliver to the Company all copies, other than any
permanent file copies then in such Stockholder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event that the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 5.04(a)) by the number of
days during the period from and including the date of the giving of notice
pursuant to Section 5.04(e) to the date when the Company shall make available to
such Stockholder a prospectus supplemented or amended to conform with the
requirements of Section 5.04(e).
SECTION 5.05. INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless each Stockholder holding Registrable Securities
24
covered by a registration statement, its officers, directors and agents, and
each person, if any, who controls such Stockholder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
any registration statement or prospectus relating to the Registrable
Securities (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement
or omission based upon information furnished in writing to the Company by
such Stockholder or on such Stockholder's behalf expressly for use therein;
PROVIDED that with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus, or in any
prospectus, as the case may be, the indemnity agreement contained in this
paragraph shall not apply to the extent that any such loss, claim, damage,
liability or expense results from the fact that a current copy of the
prospectus (or, in the case of a prospectus, the prospectus as amended or
supplemented) was not sent or given to the person asserting any such loss,
claim, damage, liability or expense at or prior to the written confirmation
of the sale of the Registrable Securities concerned to such person if it is
determined that the Company has provided such prospectus and it was the
responsibility of such Stockholder to provide such person with a current copy
of the prospectus (or such amended or supplemented prospectus, as the case
may be) and such current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) would have cured the defect
giving rise to such loss, claim, damage, liability or expense. The Company
also agrees to indemnify any underwriters of the Registrable Securities,
their officers and directors and each person who controls such underwriters
on substantially the same basis as that of the indemnification of the
Stockholders provided in this Section 5.05.
SECTION 5.06. INDEMNIFICATION BY PARTICIPATING STOCKHOLDERS. Each
Stockholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless
the Company, its officers, directors and agents and each Person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Stockholder, but only (i) with
respect to information furnished in writing by such Stockholder or on such
Stockholder's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus or (ii) to the extent that
any loss, claim, damage, liability or expense described in Section 5.05
25
results from the fact that a current copy of the prospectus (or, in the case
of a prospectus, the prospectus as amended or supplemented) was not sent or
given to the Person asserting any such loss, claim, damage, liability or
expense at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is determined that it
was the responsibility of such Stockholder to provide such Person with a
current copy of the prospectus (or such amended or supplemented prospectus,
as the case may be) and such current copy of the prospectus (or such amended
or supplemented prospectus, as the case may be) would have cured the defect
giving rise to such loss, claim, damage, liability or expense. Each such
Stockholder also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Company provided in this Section 5.06. As a condition
to including Registrable Securities in any registration statement filed in
accordance with Article 5 hereof, the Company may require that it shall have
received an undertaking reasonably satisfactory to it from any underwriter to
indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities.
SECTION 5.07. CONDUCT OF INDEMNIFICATION PROCEEDINGS. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 5, such Person (an "INDEMNIFIED PARTY") shall promptly notify
the Person against whom such indemnity may be sought (the "INDEMNIFYING
PARTY") in writing and the Indemnifying Party shall assume the defense
thereof, including the employment of counsel reasonably satisfactory to such
Indemnified Party, and shall assume the payment of all fees and expenses;
PROVIDED that the failure of any Indemnified Party so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of its
obligations hereunder except to the extent that the Indemnifying Party is
materially prejudiced by such failure to notify. In any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Party unless (i) the Indemnifying Party and the Indemnified Party shall have
mutually agreed to the retention of such counsel or (ii) in the reasonable
judgment of such Indemnified Party representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for
the Indemnified Parties, such firm shall be designated in writing by the
Indemnified Parties. The Indemnifying
26
Party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent, or if there be
a final judgment for the plaintiff, the Indemnifying Party shall indemnify
and hold harmless such Indemnified Parties from and against any loss or
liability (to the extent stated above) by reason of such settlement or
judgment. No Indemnifying Party shall, without the prior written consent of
the Indemnified Party, effect any settlement of any pending or threatened
proceeding in respect of which any Indemnified Party is or could have been a
party and indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability arising out of such proceeding.
SECTION 5.08. CONTRIBUTION. If the indemnification provided for in
this Article 5 is unavailable to the Indemnified Parties in respect of any
losses, claims, damages or liabilities referred to herein, then each such
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages or liabilities (i) as between the
Company and the Stockholders holding a Registrable Securities covered by a
registration statement on the one hand and the underwriters on the other, in
such proportion as is appropriate to reflect the relative benefits received
by the Company and such Stockholders on the one hand and the underwriters on
the other, from the offering of the Registrable Securities, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and such Stockholders on the one hand and of such
underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations and (ii) as between the Company on
the one hand and each such Stockholder on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each such
Stockholder in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by
the Company and such Stockholders on the one hand and such underwriters on
the other shall be deemed to be in the same proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and such Stockholders bear to the
total underwriting discounts and commissions received by such underwriters,
in each case as set forth in the table on the cover page of the prospectus.
The relative fault of the Company and such Stockholders on the one hand and
of such underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and such Stockholders or by such
underwriters. The relative fault of the Company on the one hand and of each
such
27
Stockholder on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by such party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Stockholders agree that it would not be just and
equitable if contribution pursuant to this Section 5.08 were determined by
pro rata allocation (even if the underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an Indemnified Party as a
result of the losses, claims, damages or liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 5.08, no
underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Registrable Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission, and no Stockholder shall be required to
contribute any amount in excess of the amount by which the total price at
which the Registrable Securities of such Stockholder were offered to the
public exceeds the amount of any damages which such Stockholder has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Each such Stockholder's obligation to
contribute pursuant to this Seton 5.08 is several in the proportion that the
proceeds of the offering received by such Stockholder bears to the total
proceeds of the offering received by all such Stockholders and not joint.
SECTION 5.09. PARTICIPATION IN PUBLIC OFFERING. No Person may
participate in any Public Offering hereunder unless such Person (a) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) complete and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and the provisions
of this Agreement in respect of registration rights.
28
SECTION 5.10. OTHER INDEMNIFICATION. Indemnification similar to that
specified herein (with appropriate modifications) shall be given by the
Company and each Stockholder participating therein with respect to any
required registration to other qualification of securities under any federal
or state law or regulation or governmental authority other than the
Securities Act.
SECTION 5.11. COOPERATION BY THE COMPANY. In the event any Stockholder
shall transfer any Registrable Securities pursuant to Rule 144A under the
Securities Act, the Company shall cooperate, to the extent commercially
reasonable, with such Stockholder and shall provide to such Stockholder such
information as such Stockholder shall reasonably request.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties hereto and supersedes all prior agreements and
understandings, oral and written, among the parties hereto with respect to
the subject matter hereof.
SECTION 6.02. BINDING EFFECT; BENEFIT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, successors, legal representatives and permitted assigns. Nothing in
this Agreement, expressed or implied, shall confer on any Person other than
the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
SECTION 6.03. EXCLUSIVE FINANCIAL AND INVESTMENT BANKING ADVISOR.
During the period from and including the date hereof through and including
the fifth anniversary of the date hereof, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation ("DLJSC"), or any Affiliate of DLJSC that the DLJ
Entities may choose in their sole discretion, shall be engaged as the
exclusive financial and investment banking advisor of the Company. DLJSC or
such Affiliate shall be entitled to reimbursement from the Company for all
expenses incurred by DLJSC or such Affiliate (including, without limitation,
fees and expenses of counsel) as financial and investment banking advisor of
the Company.
SECTION 6.04. ASSIGNABILITY. This Agreement shall not be assignable by
any party hereto, except that any Person acquiring Shares who is required by
the
29
terms of this Agreement or any employment agreement or stock purchase,
option, stock option or other compensation plan of the Company or any
Subsidiary to become a party hereto shall (unless already bound hereby)
execute and deliver to the Company an agreement to be bound by this Agreement
and shall thenceforth be a "STOCKHOLDER". Any Stockholder who ceases to own
beneficially any Shares shall cease to be bound by the terms hereof (other
than the provisions of Sections 5.05, 5.06, 5.07, 5.08, and 5.10 applicable
to such Stockholder with respect to any offering of Registrable Securities
completed before the date such Stockholder ceased to own any Shares).
SECTION 6.05. AMENDMENT; WAIVER; TERMINATION. No provision of this
Agreement may be waived except by an instrument in writing executed by the
party against whom the waiver is to be effective. No provision of this
Agreement may be amended or otherwise modified except by an instrument in
writing executed by the Company with the approval of the Board and
Stockholders holding at least 75% of the outstanding Shares.
SECTION 6.06. NOTICES. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmissions
and shall be given,
if to the Company, to:
XxXxxxx Holdings Co.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xx Xxxxxxx, XX 00000
Attention: R. Xxxx XxXxxxx
Fax: (000) 000-0000
if to the DLJ Entities, to:
DLJ Merchant Banking Partners II, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Fax: (000) 000-0000
30
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
Fax: (000) 000-0000
All 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. Any notice, request or other written communication sent by
facsimile transmission shall be confirmed by certified mail, return receipt
requested, posted within one Business Day, or by personal delivery, whether
courier or otherwise, made within two Business Days after the date of such
facsimile transmission.
Any Person who becomes a Stockholder shall provide its address and fax
number to the Company, which shall provide such information to each other
Stockholder.
SECTION 6.07. HEADINGS. The headings contained in this Agreement are
for convenience only and shall not affect the meaning or interpretation of
this Agreement.
SECTION 6.08. COUNTERPARTS. This Agreement may be executed in any
number of counterparts,each of which shall be deemed to be an original and
all of which together shall be deemed to be one and the same instrument.
SECTION 6.09. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
SECTION 6.10. SPECIFIC ENFORCEMENT. Each party hereto acknowledges
that the remedies at law of the other parties for a breach or threatened
breach of this Agreement would be inadequate and, in recognition of this
fact, any party to this Agreement, without posting any bond, and in addition
to all other remedies which may be available, shall be entitled to obtain
equitable relief in the form of specific performance, a temporary restraining
order, a temporary or permanent injunction or any other equitable remedy
which may then be available.
31
SECTION 6.11. CONSENT TO JURISDICTION. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or
in connection with, this Agreement or the transactions contemplated hereby
shall be brought in the United States District Court for the Southern
District of New York or any other New York State Court sitting in New York
City, and each of the parties hereby consents to the exclusive jurisdiction
of such courts (and of the appropriate appellate courts therefrom) in any
such suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court,
or that any such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world,
whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such
party as provided in Section 6.06 shall be deemed effective service of
process on such party.
32
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.
XXXXXXX HOLDINGS CO.
By: _______________________________
Name:
Title:
DLJ MERCHANT BANKING
PARTNERS II, L.P.
BY DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: _______________________________
Name:
Title:
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: _______________________________
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
BY DLJ MERCHANT BANKING II, INC.,
Advisory General Partner
By: _______________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: _______________________________
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: _______________________________
Name:
Title:
DLJMB FUNDING II, INC.
By: _______________________________
Name:
Title:
DLJ EAB PARTNERS, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: _______________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: _______________________________
Name:
Title:
UK INVESTMENT PLAN 1997 PARTNERS
XXXXXXXXX, LUFKIN & XXXXXXXX, INC.,
General Partner
By: _______________________________
Name:
Title:
DLJ FIRST ESC L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: _______________________________
Name:
Title:
DLJ ESC II L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: _______________________________
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: _______________________________
Name:
Title:
