Exhibit 10.26
STOCKHOLDERS AGREEMENT
This STOCKHOLDERS AGREEMENT (this "Agreement") is entered into and
effective as of August 23, 1999 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.P., a Delaware limited partnership
("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"), Xxxx Xxxxxxx (the "Individual Holder"), and each
other holder of record of Common Shares (as defined below) who may as a
Permitted Individual Holder Transferee (as defined below) hereafter duly and
properly execute a separate agreement to be bound by the terms hereof (each DLJ
Party (as hereinafter defined), the Individual Holder, 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. The Individual Holder is a key employee of Xxxxxxxxxx-Xxxxxxx,
Inc., a wholly-owned subsidiary of the Company and formerly known as Hittman
Materials & Medical Components, Inc. ("HMMC"). The Company purchased HMMC from
the Individual Holder and his affiliates in 1998.
3. The Individual Holder has offered to purchase, and the Company
has agreed to sell to the Individual Holder, Common Shares of the Company, and
the parties hereto are entering into this Agreement in order to define certain
rights and obligations of such parties with respect to such Common Shares and
related matters.
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:
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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, selling or distributing of implantable power sources,
implantable medical devices, lithium batteries, silver vanadium oxide batteries,
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,
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securities, or exchangeable securities or indebtedness, or other rights,
exercisable for or convertible or exhangeable 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, 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.
"Fair Market Value" means, as of any date, the fair market value of
one Common Share as of such date as determined in good faith by the Board of
Directors of the Company.
"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.
"Permitted Individual Holder Transferee" means (i) any trust,
limited partnership or other comparable entity established for the benefit of
the Individual Holder, the spouse and/or one or more of the lineal descendants
of the Individual Holder which is controlled by such Individual Holder, (ii) the
spouse, parent, brother, sister and/or one or more of the lineal descendants,
step-children, brothers-in-law and/or sisters-in-law of any Individual Holder
and (iii) a trust, corporation or foundation organized for charitable purposes.
"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 partners of which, include only one or more XXX Xxxxxxx, XXX Xxxxxxxxxx,
XXX Associates, their spouses or their lineal descendants and (E) a
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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.
"Registrable Securities" means the Common Shares and any Common
Shares which are issuable upon the exercise of any right, including pursuant to
any option, warrant or security convertible into Common Shares or similar right
and any other securities issued or issuable with respect to such Shares by way
of a share dividend or share split or in connection with a combination of
shares, recapitalization, merger, consolidation or reorganization; PROVIDED,
that any Registrable Security will cease to be a Registrable Security when (a) a
registration statement covering such Registrable Security has been declared
effective by the SEC and it has been disposed of pursuant to such effective
registration statement, (b) it is 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 it is eligible for sale under such Rule 144
without respect to any volume limitations or (c)(i) it has been otherwise
transferred and (ii) the Company has delivered a new certificate or other
evidence of ownership for it not bearing the legend required pursuant to Section
7.5 of this Agreement and (iii) it may be resold without subsequent registration
under the Securities Act.
"SEC" means the Securities and Exchange Commission or any
successor governmental agency.
"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.
"Selling Holder" means a holder of Registrable Securities who is
selling Registrable Securities pursuant to a registration statement under the
Securities Act.
"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
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convertible 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.
"Underwriter" means a securities dealer which purchases any Common
Shares as principal and not as part of such dealer's market-making activities.
1.2 Representations and Warranties.
(a) The Individual Holder 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:
(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
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(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 term 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 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, 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
2.1 Election of Directors Designated by DLJ Partners II. The Individual
Holder and each Permitted Individual Holder Transferee (if any) shall take all
action within its power,
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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 all of the
directors designated by DLJ Partners II, or its successor in interest.
2.2 Replacement of Designated Directors. In the event that any director (a
"Withdrawing Director") designated in the manner set forth in Section 2.1 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 2.1.
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 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.
ARTICLE III
TRANSFER OF SECURITIES
3.1 Transfer of Shares. Neither the Individual Holder nor any Permitted
Individual Holder Transferee may transfer any Capital Shares of the Company
prior to the earlier to occur of (a) a Qualified IPO and (b) the third
anniversary of the date of this Agreement (the "Third Anniversary"), except as
contemplated by Sections 3.2, 3.3, 3,4, 3.5, 3.8 or 3.9 hereof or pursuant to an
offering of equity securities registered under the Securities Act by the Company
(except that the Company shall be under no obligation to register any Capital
Shares of the Company then held by the Individual Holder or any Permitted
Individual Holder Transferee in connection with any such registered offering),
except to the extent required under Article IV; provided, however, that in the
event the Third Anniversary occurs before a Qualified IPO, no Party that is not
a DLJ Party may transfer any Common Shares or Common Share Equivalents to any
Adverse Person prior to a Qualified IPO.
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
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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, (b) a sale or sales which are effected by
one or more DLJ Parties and/or any Permitted Transferee(s), in a single
transaction or series of related transactions, and which do not involve more
than 25% of the Fully-Diluted Common Shares and (c) 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 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. Notwithstanding anything in the
foregoing to the contrary, no Common Share Equivalents shall receive the
benefits of this Section 3.2 prior to the time such Common Share Equivalents are
exercisable for or convertible or exchangeable into Common Shares and, in order
to obtain the benefits of this Section 3.2, any such Common Share Equivalents in
the form of options, warrants or other securities convertible or exchangeable
into or exercisable for Common Shares must be exercised or canceled prior to or
simultaneously with the consummation of the sale pursuant to this Section 3.2.
(b) The provisions of this Section 3.2 shall terminate upon the
consummation of a Qualified IPO.
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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") all of the Common Shares and Common Share
Equivalents held by the Co-Sellers (the "Co-Sellers' Shares") by delivering
notice (the "Required Sale Notice") to such other Parties.
(b) The Required Sale Notice shall set forth: (i) the date of such
notice (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, and (vi) 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). 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 Common Shares and Common Share Equivalents, 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) In the event of any Required Sale, all Co-Sellers which hold
Common Share Equivalents in the form of options, warrants or other securities
convertible into or exercisable for Common Shares must exercise or cancel all
such options, warrants or conversion or other rights prior to or simultaneously
with the consummation of the Required Sale.
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(f) The provisions of this Section 3.3 shall terminate upon the
consummation of a Qualified IPO.
3.4 Right of First Refusal.
(a) If the Individual Holder and each Permitted Individual Holder
Transferee shall have received, after the Third Anniversary and before a
Qualified IPO, a bona fide offer from a third party ("Third Party Offerer") to
purchase all and not less than all of the Common Shares and Common Share
Equivalents of the Company then beneficially owned by the Individual Holder and
each such Permitted Individual Holder Transferee (the "ROFR Shares") and they
desire to transfer the ROFR Shares to the Third Party Offeror, then the
Individual Holder and each such Permitted Individual Holder Transferee shall
first offer to sell all of their ROFR Shares to the Company and DLJ Partners II,
or its successor in interest, at the same purchase price and on the same terms
and conditions as are set forth in the offer of the Third Party Offeror. For
purposes of this Section 3.4, the term "Offerees" shall mean (i) DLJ Partners II
(or its successors in interest) and (ii) the Company. The offer to the Offerees
shall be in writing and shall have a complete executed copy of the offer from
the Third Party Offeror attached thereto. The offer shall continue in effect
during the option periods provided for in Section 3.4(b) hereof (the "Option
Periods"), during which Option Periods the ROFR Shares shall not be transferred
to any Person except the Offerees. The offer may be accepted by one or more of
the Offerees in whole or but not in part.
(b)(i) In the event the Offerees receive a written offer to purchase
pursuant to Section 3.4(a) above, the Company shall initially have thirty (30)
days ("First Option Period") to elect to purchase all or any part of the ROFR
Shares subject to such offer.
(ii) If the Company does not elect to purchase all of the ROFR
Shares prior to the expiration of the First Option Period, then DLJ Partners II
(or its successor in interest) shall have thirty (30) days ("Second Option
Period") to elect to purchase all or any part of the ROFR Shares that the
Company does not elect to purchase during the First Option Period. DLJ Partners
II may assign its option to purchase ROFR Shares under this Section 3.4 one or
more of the other DLJ Parties.
(iii) Election by an Offeree to purchase ROFR Shares pursuant to
this Section 3.4 shall be effected by sending written notice of such election to
the Individual Holder and the Company prior to the expiration of the applicable
Option Period. The closing of any purchase and sale of ROFR Shares hereunder
shall take place at the office of the Company within ten (10) business days
after the date of the notice of election to purchase.
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(iv) If the Company and or DLJ Partners II does not elect to
purchase all of the ROFR Shares as provided for in this Section 3.4, then the
Individual Holder and each Permitted Individual Holder Transferee shall have the
right, for a period of 90 days after the expiration of the Option Periods, to
transfer all of the ROFR Shares to the Third Party Offeror. If such transfer to
the Third Party Offeror does not take place within such 90-day period, then the
ROFR Shares shall remain subject to all of the terms and conditions of this
Agreement.
(c) The provisions of this Section 3.4 shall terminate upon the
consummation of a Qualified IPO.
3.5 Company Call Option.
(a) In the event that the Individual Holder violates any noncompete
or confidentiality obligation owed by the Individual Holder to the Company (or
any of its Affiliates) under any contract or pursuant to applicable law, then
the Company shall have the option to acquire any or all Common Shares and any or
all Common Share Equivalents beneficially owned by the Individual Holder and the
Permitted Individual Holder Transferees at a price per share for such Common
Shares or Common Share Equivalents equal to the lesser of the price originally
paid by such Person to acquire such Common Shares and/or Common Share
Equivalents and the Fair Market Value thereof.
(b) In the event that the Company elects to exercise the option
granted pursuant to this Section 3.5 to acquire the Common Shares and/or any
Common Share Equivalents beneficially owned by the Individual Holder and/or
Permitted Individual Holder Transferees, the Company shall pay the purchase
price for such Common Shares and/or Common Share Equivalents in cash, up to an
aggregate purchase price for such purchases of $750,000; and the Company shall
make any additional payments required under this Section 3.5 by delivery of a
promissory note, which shall be subordinated to all debt of the Company, bearing
interest at 7% per annum (which interest may be payable by delivery of notes of
like tenor in principal amount equal to the interest then due) with a maturity
one year beyond the maturity of Company's subordinated debt at the close of
business on the date of this Agreement.
3.6 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, 3.3 or 3.4, or which is in violation of such provisions, or
which is not a transfer to a Permitted Individual Holder Transferee pursuant to
Section 3.9 shall be void and of no force and effect whatsoever.
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3.7 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, 3.3 or 3.4 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.
3.8 Transfers Subject to Compliance with Securities Act. No Common Shares
may be transferred by the Individual Holder or any Permitted Individual Holder
Transferee (other than pursuant to an effective registration statement under the
Securities Act) 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.
3.9 Permitted Transferees.
Notwithstanding anything in this Agreement to the contrary, the
Individual Holder and any Permitted Individual Holder Transferee may, without
the consent of the Company or any of the Parties and without compliance with
Section 3.1, 3.2, 3.3 or 3.4, at any time transfer any or all of its Common
Shares and Common Share Equivalents to one or more Permitted Individual Holder
Transferees, so long as the transfer to such Person is not in violation of
applicable federal or state securities laws, and such 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 the
Individual Holder). In the event that the Individual Holder or any Permitted
Individual Holder Transferee transfers any Common Shares and/or Common Share
Equivalents to any transferee other than a Permitted Individual Holder
Transferee or any Person which is a Party to this Agreement, if such transfer
was permitted under the terms of 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.
ARTICLE IV
PIGGY-BACK REGISTRATION
4.1 Notice; Piggyback Registration. Subject to the provisions of this
Agreement, if the Company proposes to file a registration statement under the
Securities Act with respect to
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an offering of any equity securities by the Company for its own account or for
the account of any of its equity holders (other than a registration statement on
Form S-4 or Form S-8, or any substitute form that may be adopted by the SEC, or
any registration statement filed in connection with an exchange offer or
offering of securities solely to the Company's existing security holders), then
the Company shall give written notice of such proposed filing to the Parties
(including any Permitted Individual Holder Transferees) as soon as practicable
(but in no event less than 30 days before the anticipated effective date of such
registration statement), and such notice shall offer such Persons the
opportunity to register such number of Registrable Securities as each such
Person may request (a "Piggyback Registration"). Subject to Sections 4.2, 4.3,
4.4, 4.5 and 4.6 hereof, the Company shall include in each such Piggyback
Registration all Registrable Securities requested to be included in the
registration for such offering. Each such holder of Registrable Securities shall
be permitted to withdraw all or part of such holder's Registrable Securities
from a Piggyback Registration at any time prior to the effective date thereof.
4.2 Selection of Underwriters. DLJ Partners II shall, for a period of
thirty (30) days after the receipt by DLJ Partners II of Notice of a Piggyback
Registration, have the right, but not the obligation, to designate, in its sole
and absolute discretion, the book-running managing Underwriter with respect to
the Piggyback Registration or any other underwritten public offering of
Registrable Securities or other securities of the Company (the "Managing
Underwriter") and shall, in consultation with the Company, select such
additional Underwriters to be used in connection with the offering, if any,
unless, at the time the Company takes the necessary corporate action to approve
the filing of the registration statement, DLJ and Permitted Transferees
collectively do not beneficially own at least five percent (5%) of the
Fully-Diluted Common Shares. In the event that DLJ Partners II exercises such
right by notifying the Company thereof, DLJ Partners II shall select, upon
consultation with the Company, one or more co-managers for each such offering if
DLJ Partners II, in its sole discretion, shall determine that any be necessary,
and the underwriting fees related to any such offering shall be allocated among
any such co-managers in such proportions as DLJ Partners II shall determine. The
Managing Underwriter's compensation for such services will be at market rates
subject to the type and size of the offering. In the event of any such offering,
the Managing Underwriter and the Company will enter into an agreement
appropriate to the circumstances, containing provisions for, among other things,
compensation, indemnification, contribution, and representations and warranties,
which are usual and customary for similar agreements entered into by the
Managing Underwriter or other investment bankers of national standing acting in
similar transactions. The Managing Underwriter shall have no obligation to act
as underwriter or dealer-manager to the Company or to purchase any securities of
the Company, except to the extent that such obligations arise out of an
underwriting agreement or dealer-manager agreement, as the case may be, with
respect to a particular offering executed and delivered by both the Managing
Underwriter and the Company. In the event that DLJ and Permitted Transferees
collectively do not beneficially
- 14 -
own at least five percent (5%) of the Fully-Diluted Common Shares at the time
the Company takes the necessary corporate action to approve the filing of the
registration statement, or DLJ Partners II does not exercise such right within
such thirty (30) day period by notifying the Company thereof, the Company shall
select the book-running managing Underwriter and such additional Underwriters to
be used in connection with the offering.
4.3 Underwriters' Cut-Backs. The Company shall use all commercially
reasonable efforts to cause the Managing Underwriter or any other managing
Underwriter of a proposed underwritten offering, as the case may be, to permit
the Registrable Securities requested to be included in the registration
statement for such offering under Section 4.1 or pursuant to other piggyback
registration rights, if any, granted by the Company ("Piggyback Securities") to
be included on the same terms and conditions as any similar securities included
therein. Notwithstanding the foregoing, the Company shall not be required to
include any Party's Piggyback Securities in such offering unless such Party
accepts the terms of the underwriting agreement between the Company and the
Managing Underwriter (or other managing Underwriter) or Underwriters, and
otherwise complies with the provisions of Section 4.4 below. If the managing
Underwriter or Underwriters of a proposed underwritten offering advise the
Company in writing that in their opinion the total amount of securities,
including Piggyback Securities, to be included in such offering is sufficiently
large to potentially impede or interfere with the offering, then in such event
the securities to be included in such offering shall be allocated first to the
Company and then, to the extent that any additional securities can, in the
opinion of such managing Underwriter or Underwriters, be sold without any such
potential to impede or interfere with the offering, pro rata among the holders
of Piggyback Securities on the basis of the number of Registrable Securities
requested to be included in such registration by each such holder.
4.4 Participation. No Party may participate in any underwritten
registration under this Article IV unless such Party (a) agrees to sell such
Party's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Person entitled hereunder to approve such
arrangements, (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements and this Agreement and (c) if
requested by another Person participating in such underwritten registration,
provides that all securities convertible or exchangeable into Common Shares that
are included in such underwritten registration shall be so converted or
exchanged on or prior to the consummation thereof.
4.5 Termination by the Company. Notwithstanding anything herein to the
contrary, at any time prior to the effectiveness of any registration statement
filed pursuant hereto, the Company shall have the right, in its sole and
absolute discretion, not to proceed with the registration of any securities
pursuant to such registration statement and, in the event that the Company
exercises such right, no holder of Registrable Securities shall have any right
to
- 15 -
require the Company to register any such Registrable Securities except in
accordance with the express provisions of this Agreement.
4.6 Lock-Up Letters. Each holder of Registrable Securities (whether or not
such Registrable Securities are included in a registration statement pursuant
hereto) agrees to execute a written agreement not to effect any public sale or
distribution of the issue being registered or of any securities convertible into
or exchangeable or exercisable for such securities, including a sale pursuant to
Rule 144 under the Securities Act, during the 14 days prior to, and during the
180-day period beginning on the effective date of a registration statement filed
pursuant hereto except as part of such registration if and to the extent
requested by the Company in the case of a non-underwritten public offering or if
and to the extent requested by the Managing Underwriter or managing Underwriter
or Underwriters as case may be, in the case of an underwritten public offering.
ARTICLE V
REGISTRATION PROCEDURES
5.1 Procedures.
(a) The Company may require each Selling Holder to promptly furnish
in writing to the Company such information regarding the distribution of the
Registrable Securities as it may from time to time reasonably request and such
other information as may be legally required in connection with any
registration. Notwithstanding anything herein to the contrary, the Company shall
have the right to exclude from any offering the Registrable Securities of any
Selling Holder who does not comply with the provisions of the immediately
preceding sentence.
(b) Each Selling Holder agrees that, (i) upon receipt of any notice
from the Company of the happening of any event which makes any statement made in
a registration statement or related prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material respect or
that requires the making of any changes in such registration statement,
prospectus or documents so that, in the case of the registration statement, it
will not contain any 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 that in the case of the prospectus, it will not
contain any 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,
in light of the circumstances under which they were made, not misleading, (ii)
such Selling Holder will forthwith discontinue disposition of Registrable
- 16 -
Securities pursuant to the registration statement covering such Registrable
Securities until such Selling Holder's receipt of the copies of the supplemented
or amended prospectus contemplated by Section 5.1(b)(i) hereof, and, if so
directed by the Company, such Selling Holder will deliver to the Company all
copies, other than permanent file copies, then in such Selling Holder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event the Company shall give such
notice, the Company shall extend the period during which such registration
statement shall be maintained effective by the number of days during the period
from and including the date of the giving of notice pursuant to Section
5.1(b)(i) hereof to the date when the Company shall make available to the
Selling Holders of Registrable Securities covered by such registration statement
a prospectus supplemented or amended to conform with the requirements of Section
5.1(b)(i) hereof.
5.2 Registration Expenses. In connection with any registration statement
required to be filed hereunder, the Company shall pay the following registration
expenses (the "Registration Expenses"): (a) all registration and filing fees
(including, without limitation, with respect to filings to be made with the
National Association of Securities Dealers, Inc.), (b) 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), (c) printing expenses, (d) internal expenses of the
Company (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), (e) the fees and
expenses incurred in connection with the listing on an exchange of the
Registrable Securities if the Company shall choose to list such Registrable
Securities, (f) fees and disbursements of counsel for the Company and customary
fees and expenses for independent certified public accountants retained by the
Company, (g) the fees and expenses of any special experts retained by the
Company in connection with such registration, and (h) fees and expenses of any
"qualified independent underwriter" or other independent appraiser participating
in an offering pursuant to Rule 2720(c) of the National Association of
Securities Dealers, Inc. The Company shall not have any obligation to pay any
underwriting fees, discounts, or commissions attributable to the sale of
Registrable Securities or, except as provided by clause (b) or (h) above, any
out-of-pocket expenses of the Selling Holders (or the agents who manage their
accounts) or the fees and disbursements of counsel for any Underwriter.
5.3 Deferral. Notwithstanding anything to the contrary contained in this
Agreement, the Company shall not be obligated to prepare and file, or cause to
become effective, any registration statement pursuant to this Agreement at any
time when, in the good faith judgment of the Board of Directors, the filing
thereof at the time requested or the effectiveness thereof after filing should
be delayed to permit the Company to include in the registration statement the
financial statements of the Company (and any required audit opinion thereon) for
the then immediately preceding fiscal year or fiscal quarter, as the case may
be.
- 17 -
The filing of a registration statement by the Company cannot be deferred
pursuant to the provisions of the immediately preceding sentence beyond the time
that such financial statements (or any required audit opinion thereon) would be
required to be filed with the SEC as part of the Company's Annual Report on Form
10-K or Quarterly Report on Form 10-Q, as the case may be, if the Company were
then obligated to file such reports. Notwithstanding anything to the contrary
contained in this Agreement, the Company shall not be obligated to cause a
registration statement previously filed pursuant hereto to become effective, and
may suspend sales by the Parties of Registrable Securities under any
registration that has previously become effective, at any time when, in the good
faith judgment of the Board of Directors, it reasonably believes that the
effectiveness of such registration statement or the offering of securities
pursuant thereto would materially adversely affect a pending or proposed
acquisition, merger, recapitalization, consolidation, reorganization or similar
transaction or negotiations, discussions or pending proposals with respect
thereto; provided that deferrals pursuant to this sentence shall not exceed, in
the aggregate, 120 days in any calendar year. The filing of a registration
statement, or any amendment or supplement thereto by the Company cannot be
deferred, and the rights of holders of Registrable Securities to make sales
pursuant to an effective registration statement cannot be suspended, pursuant to
the provisions of the immediately preceding sentence, for more than 15 days
after the abandonment or consummation of any of the foregoing proposals or
transactions or, in any event, for more than 30 days after the date of the
determination of the Board of Directors pursuant to the immediately preceding
sentence of this Section 5.3.
ARTICLE VI
TERMINATION
6.1 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 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.
- 18 -
ARTICLE VII
MISCELLANEOUS
7.1 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.
7.2 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.
7.3 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 succcssors 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 7.3 shall be void and of
no force and effect.
7.4 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.
7.5 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
OTHER TERMS AND CONDITIONS SET FORTH IN THE
STOCKHOLDERS AGREEMENT, DATED AS OF
_________, AS THE SAME MAY BE AMENDED FROM
TIME TO TIME, A COPY OF WHICH MAY BE
- 19 -
OBTAINED FROM THE COMPANY AT ITS PRINCIPAL
EXECUTIVE OFFICES.
(b) A restriction on transfer of Common Shares set forth in such
legend (a "Restriction") shall cease and terminate as to any particular Common
Shares 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, 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.
7.6 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 telescope 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
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
- 00 -
XXX Xxxxxxxx XX-X
XXX 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.P.
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
- 21 -
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, Xxx Xxxx 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.
Well, Gotshal & Xxxxxx LLP
000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
To the Individual Holder or any Permitted Individual Holder Transferee:
To such address or telescope number of such Party as is set forth on Schedule I
hereto or 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.
- 22 -
All Notices shall be deemed effective and received (a) if given by telescope,
when such telescope is transmitted to the telescope 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 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.
7.7 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 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 to enter into a confidentiality agreement with respect to
Confidential Information on customary terms used in confidentiality agreements
in connection with corporate acquisitions.
7.8 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 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.
- 23 -
7.9 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.
7.10 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.
7.11 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.
7.12 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.
7.13 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.
7.14 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.
7.15 Submission to Jurisdiction. (a) Any legal action or proceeding with
respect to this Agreement, the Common Shares or any document relaxed 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 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 or on
Schedule I, as the case may be.
- 24 -
(c) Nothing contained in this Section 7.15 shall affect the right of
any party hereto to serve process in any other manner permitted by law.
7.16 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 any course
of conduct, course of dealing, verbal or written statement or action of any
party hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the date first above written.
WGL HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
DLJMB FUNDING II, INC.
By: /s/ XXX XXXXX
-----------------------------------------
Name: XXX XXXXX
--------------------------------------
Title: Vice President
-------------------------------------
-25-
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
By: DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners. Inc.
Managing General Partner
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
- 26 -
DLJ MILLENIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management
Corporation
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
Managing General Partner
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
- 27 -
UK INVESTMENT PLAN 1997 PARTNERS
By: UK INVESTMENT PLAN 1997, INC.
By: /s/ XXX XXXXX
------------------------------------
Name: XXX XXXXX
----------------------------------
Title: Vice President
---------------------------------
Xxxx Xxxxxxx
/s/ Xxxx Xxxxxxx
------------------------------------
SCHEDULE I
Xxxx Xxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Telecopy No.: 000-000-0000
