EXHIBIT 4.4
STOCKHOLDERS AGREEMENT
dated
August 16, 1999
among
▇▇▇▇▇▇▇ HOLDINGS (N.A.), INC.,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS ▇▇-▇, ▇.▇.,
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇.,
▇▇▇ DIVERSIFIED PARTNERS, L.P.,
DLJ DIVERSIFIED PARTNERS -A, L.P.,
DLJMB FUNDING II, INC.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS-A, L.P.,
DLJ EAB PARTNERS, ▇.▇.,
▇▇▇ ▇▇▇ ▇▇, ▇.▇.,
▇▇▇ FIRST ESC, 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......................................................11
SECTION 2.05. Action by the Board...........................................11
SECTION 2.06. Conflicting Charter or Bylaw Provisions.......................11
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General.......................................................11
SECTION 3.02. Legends.......................................................12
SECTION 3.03. Permitted Transferees.........................................12
SECTION 3.04. Restrictions on Transfers by Management Stockholders..........12
SECTION 3.05. Restrictions on Transfers by Certain Other Shareholders........13
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01. Rights to Participate in Transfer.............................14
SECTION 4.02. Right to Compel Participation in Certain Transfers............16
SECTION 4.03. Certain Rights................................................17
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. Demand Registration...........................................18
SECTION 5.02. Incidental Registration.......................................20
SECTION 5.03. Holdback Agreements...........................................22
SECTION 5.04. Registration Procedures.......................................22
SECTION 5.05. Indemnification by the Company................................25
PAGE
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SECTION 5.06. Indemnification by Participating Stockholders.................26
SECTION 5.07. Conduct of Indemnification Proceedings........................27
SECTION 5.08. Contribution..................................................27
SECTION 5.09. Participation in Public Offering..............................29
SECTION 5.10. Other Indemnification.........................................29
SECTION 5.11. Cooperation by the Company....................................29
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Entire Agreement..............................................30
SECTION 6.02. Binding Effect; Benefit.......................................30
SECTION 6.03. Exclusive Financial and Investment Banking Advisor............30
SECTION 6.04. Assignability.................................................30
SECTION 6.05. Amendment; Waiver; Termination................................31
SECTION 6.06. Notices.......................................................31
SECTION 6.07. Headings......................................................32
SECTION 6.08. Counterparts..................................................32
SECTION 6.09. Applicable Law................................................32
SECTION 6.10. Specific Enforcement..........................................32
SECTION 6.11. Consent to Jurisdiction.......................................32
SECTION 6.12. Squam and Public Offering.....................................33
ii
STOCKHOLDERS AGREEMENT
AGREEMENT dated August 16, 1999 among (i) ▇▇▇▇▇▇▇ Holdings (N.A.), Inc., a
Delaware corporation (the "Company"), (ii) DLJ Merchant Banking Partners II,
L.P., a Delaware limited partnership, DLJ Merchant Banking Partners II-A, L.P.,
a Delaware limited partnership, DLJ Offshore Partners II, C.V., a Netherlands
Antilles limited partnership, DLJ Diversified Partners, L.P., a Delaware
limited partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJMB Funding II, Inc., a Delaware corporation, DLJ Millennium
Partners, L.P., a Delaware limited partnership, DLJ Millennium Partners-A,
L.P., a Delaware limited partnership, DLJ EAB Partners, L.P., a Delaware
limited partnership, DLJ ESC II, L.P., a Delaware limited partnership, and DLJ
First ESC, L.P., a Delaware limited partnership (each of the foregoing, a "DLJ
Entity", and collectively, the "DLJ Entities"), (iii) Squam Lake Investors IV,
L.P. ("Squam") and (iv) such other parties who may become parties to this
Agreement pursuant to the terms hereof.
W I T N E S S E T H:
WHEREAS, pursuant to the terms of the Stock Subscription Agreement dated
as of June 15, 1999 (the "Initial Subscription Agreement") among the Company
and the DLJ Entities, the DLJ Entities acquired certain equity securities of
the Company and, pursuant to the terms of the Stock Subscription Agreement
dated August 16, 1999 (the "Second Subscription Agreement" and, together with
the Initial Subscription Agreement, the "Stock Subscription Agreements") among
the Company and the other Persons named therein, the DLJ Entities and Squam are
acquiring certain additional 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 Stock Subscription Agreements;
NOW, THEREFORE, in consideration of the covenants and agreements contained
herein and in the Stock Subscription Agreements, 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 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 securityholder of the Company shall be deemed an
Affiliate of any other securityholder 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
amount of such 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 amount of securities shall be increased (without
duplication) with respect to any Other Stockholder, by any stock appreciation
rights, options, warrants or other rights to purchase or subscribe for Company
Securities of such Other Stockholder as and when such stock appreciation
rights, options, warrants or other rights have vested.
"Benchmark Securities" means, with respect to any class of Company
Securities, the aggregate number of such securities sold or proposed to be sold
by the DLJ Entities (other than to their Permitted Transferees) subsequent to
the date hereof until the first to occur of (i) the aggregate number of such
securities so sold
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or proposed to be sold by the DLJ Entities (other than to their Permitted
Transferees) equals 50% of the Initial Ownership of such class of Company
Securities of the DLJ Entities and (ii) the aggregate amount in cash (net of
any commissions, fees or expenses) collectively received or to be received by
the DLJ Entities, without duplication, as a result of the sale subsequent to
the date hereof or proposed sale of any such class of Company Securities,
(other than to their Permitted Transferees) shall equal the aggregate amount
invested by the DLJ Entities as of such date in such class of Company
Securities.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday 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" (as such term is used in Section 3(a)(9) and
13(d)(3) of the Exchange Act) other than (A) the DLJ Entities and/or their
respective Permitted Transferees or (B) any "group" (within the meaning of
such Section 13(d)(3)) of which the DLJ Entities constitute a majority (on
the basis of ownership interest), acquires, directly or indirectly, by
virtue of the consummation of any purchase, merger or other combination,
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 Restated Certificate of Incorporation of the Company,
as amended from time to time.
"Closing Date" means August __, 1999.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
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"Coinvestment Shares" means Shares of the Company purchased under the
▇▇▇▇▇▇▇ Holdings Investment Program and designated as Coinvestment Shares.
"Common Stock" means the Voting Common Stock and the Non-Voting Common
Stock and "Common Shares" means shares of Common Stock.
"Company Securities" means the Common Stock, the Preferred Stock and
securities convertible into or exchangeable for Common Stock or Preferred Stock
and options, warrants or other rights to acquire Common Stock or Preferred
Stock or any other equity security issued by the Company. For purposes of this
Agreement, the Voting Common Stock and the Non-Voting Common Stock shall be
deemed to be part of the same class of Company Securities.
"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 (but
without duplication) multiplied by a fraction, the numerator of which is the
number of such class of Company 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 on
a Fully Diluted basis beneficially owned by the Stockholders.
"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 any class of Company Securities and
without duplication, all outstanding shares of such class and all shares
issuable in respect of securities convertible into or exchangeable for shares
of such class, stock appreciation rights, options, warrants and other rights to
purchase or subscribe for shares of such class or securities convertible into
or exchangeable for shares of such class; provided that, to the extent any of
the foregoing stock appreciation rights, options, warrants or other rights to
purchase or subscribe for shares of such class are subject to vesting, the
shares of such class 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 of such class of Company Securities
beneficially owned (and (without duplication) which such Persons have the right
to acquire) as of the date hereof, or in the case of any Person that shall
become a
4
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 first sale after the date hereof of
Common Stock pursuant to an effective registration statement under the
Securities Act (other than a registration statement on Form S-8 or any
successor form).
"Management Stockholders" means each of the members of management of the
Company or any of its Subsidiaries (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.
"▇▇▇▇▇▇▇ Holdings Investment Program" means the ▇▇▇▇▇▇▇ Holdings (N.A.),
Inc. Direct Investment Program.
"▇▇▇▇▇▇▇ Holdings Option Program" means the ▇▇▇▇▇▇▇ Holdings (N.A.), Inc.
Management Incentive Plan.
"Non-Voting Common Stock" means the Class B Convertible Non- Voting Common
Stock, par value $0.01 per share, of the Company and any stock (other than
Voting Common Stock) into which such common stock may thereafter be converted
or changed, and "Non-Voting Common Shares" means shares of Non-Voting Common
Stock.
"Other Stockholders" means all Stockholders other than the DLJ Entities,
and their respective Permitted Transferees.
"Other Non-Management Stockholders" means all Stockholders other than (i)
the DLJ Entities, and their respective Permitted Transferees, and (ii) the
Management Stockholders.
"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,
general partner, director, 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, "DLJ Associates"), (D) a trust, the beneficiaries of
5
which, or a corporation, limited liability company or partnership,
the stockholders, members or general or limited partners of which,
include only ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ 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) the Company, (B)
any DLJ Entity, (C) any Other Stockholder, (D) 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 (E) a
trust that is for the exclusive benefit of such Other Stockholder or
its Permitted Transferees under (D) above.
"Person" means an individual, corporation, partnership, association, trust
or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Preferred Stock" means the 16% Senior Exchangeable Preferred Stock, par
value $0.01 per share, of the Company and any stock (other than Common Stock)
into which such Preferred Stock may thereafter be converted or changed, and
"Preferred Shares" means shares of Preferred Stock.
"Pro Rata Portion" means the number of Shares a Stockholder holds
multiplied by a fraction, the numerator of which is the number of 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 Shares, on a Fully Diluted
basis, held in the aggregate by the DLJ Entities and their Permitted
Transferees prior to such Public Offering.
"Public Offering" means an underwritten 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 then owned by such
Stockholder or its Permitted Transferees until (i) a registration statement
covering such Shares has been declared effective by the SEC and such Shares
have been
6
disposed of pursuant to such effective registration statement, (ii) such Shares
are sold under circumstances in which all of the applicable conditions of Rule
144 are met or (iii) such Shares are otherwise transferred, the Company has
delivered a new certificate or other evidence of ownership for such Shares not
bearing the legend required pursuant to this Agreement and such Shares 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 Shares), (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 the expenses of any comfort letters or costs associated with the
delivery by independent certified public accountants of a comfort letter or
comfort letters requested pursuant to Section 5.04(h)), (vi) the reasonable
fees and expenses of any special experts retained by the Company in connection
with such registration, (vii) reasonable fees and expenses of 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 Shares
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 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 Initial Public Offering and (b) the fifth anniversary
of the Closing Date.
"Rule 144" means Rule 144 and Rule 144A (or any successor provisions)
under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
7
"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 (i) beneficially own any Company
Securities, or (ii) have any stock appreciation rights, options, warrants or
other rights to purchase or subscribe for Company Securities.
"Tag-Along Portion" means
(i) where the Selling Person is selling Common Stock, the number of
Common Shares held by the Tagging Person or the Selling Person, as the
case may be, 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 on a Fully Diluted basis owned by all
Stockholders; and
(ii) where the Selling Person is selling Preferred Stock, the number
of Preferred Shares held by the 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 Section 4.01, and the denominator of which is the aggregate
number of Preferred Shares owned by all Stockholders.
"Third Party" means a prospective purchaser of Shares 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.
"Voting Common Stock" means the Class A 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 "Voting Common Shares" means shares of Voting
Common Stock.
(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.
8
(c) The term "Other Stockholders", to the extent such stockholders shall
have transferred any of their Shares 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.
(d) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Applicable Holdback Period 5.03
beneficially own 1.01(a)
Demand Registration 5.01(e)
DLJSC 6.03
Drag-Along Rights 4.02(a)
Holders 5.01(e)
Incidental Registration 5.01(e)
Indemnified Party 5.07
Indemnifying Party 5.07
Independent Director 2.01(a)
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Nominee 2.03(a)
Public Offering Limitations 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(e)
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 five directors, four of whom will be designated by DLJ Merchant
Banking Partners II, L.P., and one of whom will be ▇▇▇▇ ▇. ▇▇▇▇▇, for so long
as he is employed as chief executive officer of ▇▇▇▇▇▇▇ Group, Inc.; provided
that at least one of the directors designated by DLJ Merchant Banking Partners
II, L.P. 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 the DLJ
Entities or the Other Stockholders (the "Independent Director"). The DLJ
Entities shall be permitted at any time to increase the number of directors
from five to seven and DLJ Merchant Banking Partners II, L.P. shall be
permitted to designate the two additional directors.
(b) Each Stockholder entitled to vote for the election of directors to the
Board agrees that it will vote its Voting 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 Voting 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 Voting Common Shares,
or execute a written consent, as the case may be, in order to ensure that the
Nominee is elected to the Board.
10
SECTION 2.04. Meetings. The Board shall hold a regularly scheduled meeting
at least once every calendar quarter.
SECTION 2.05. Action by the Board. (a) A quorum of the Board shall consist
of three directors, of whom at least two must be designees of DLJ Merchant
Banking Partners II, L.P.; provided that the DLJ Entities shall have the right
at any time to increase the number of directors necessary to constitute a
quorum of the Board. All actions of the Board shall require the affirmative
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. The DLJ Entities shall be
entitled to majority representation on any committee created by the Board.
SECTION 2.06. Conflicting Charter or Bylaw Provisions. Each Stockholder
shall vote its Voting 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 or the ▇▇▇▇▇▇▇ Holdings Investment Program and the ▇▇▇▇▇▇▇ Holdings
Option Program 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.
11
(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 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 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 STOCKHOLDERS AGREEMENT DATED
AUGUST __, 1999, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM ▇▇▇▇▇▇▇
HOLDINGS (N.A.), INC. 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 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 Company 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 or 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, 4.02 or 4.03
or as permitted or required by the ▇▇▇▇▇▇▇ Holdings Investment
12
Program, the ▇▇▇▇▇▇▇ Holdings Option Program or 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 Article 5 hereof; or
(iii) following the Restriction Termination Date, to any Third Party
other than an Adverse Person for consideration consisting solely of cash;
provided that the number of Shares transferred by such Management
Stockholder pursuant to this Section 3.04(a)(iii) in any twelve-month
period shall not exceed 20% of the greater of (x) such Management
Stockholder's Aggregate Ownership at the beginning of such twelve- month
period and (y) such Management Stockholder's Aggregate Ownership as of the
date hereof.
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 Common Stock of the DLJ Entities shall be
less than 50% of their aggregate Initial Ownership of Common Stock and (B)
subject to clause (A) above, 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.
(b) The provisions of Section 3.04(a) shall terminate upon 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
Company Securities 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 Company
Securities are applied to repay such indebtedness in full.
(c) In addition to any other restriction contained in this Agreement and
notwithstanding any other provision of this Section 3.04, neither a Management
Stockholder nor any Permitted Transferee thereof may transfer Coinvestment
Shares (as defined in the ▇▇▇▇▇▇▇ Holdings Investment Program) prior to the
date such Shares have vested in accordance with the terms of the ▇▇▇▇▇▇▇
Holdings Investment Program and the relevant purchase agreement thereunder.
SECTION 3.05. Restrictions on Transfers by Certain Other Shareholders. (a)
Each Other Shareholder (other than a Management Shareholder) may transfer its
Company Securities only as follows:
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(i) in a transfer made in compliance with Section 4.01 or 4.02;
(ii) in a Public Offering (other than the Initial Public Offering) in
connection with the exercise of its rights under Section 5.02; or
(iii) in a transfer made at the conclusion of the Applicable Holdback
Period following a Public Offering, in compliance with Rule 144
promulgated under the Securities Act.
(b) The provisions of Section 3.05(a) shall terminate upon the earliest to
occur of (i) the fifth anniversary of the Closing Date, (iii) the second
anniversary of the Initial Public Offering and (iii) 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 shares of a
class of Company Securities (i) in a Public Offering or (ii) to any Permitted
Transferee of any of the DLJ Entities), in a transaction otherwise permitted by
Article 3 hereof, a number of shares of a class of Company Securities equal to
or exceeding 40% of the Aggregate Ownership of the DLJ Entities of securities
of such class 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 class 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, including the form of the proposed
agreement, if any. From the date of the Tag-Along Notice, 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 (the "Tag-Along Notice Period"), to request that the Selling Person
include in the proposed transfer the number of shares of such class of Company
Securities held by such Tagging Person as is specified in such notice; provided
that if the aggregate number of shares of such class of Company Securities
proposed to be sold by the Selling Person and all Tagging Persons in such
transaction exceeds the number of shares of such class of Company Securities
which can be sold on the
14
terms and conditions set forth in the Tag-Along Notice, then only the Tag-Along
Portion of each Tagging Person shall be sold pursuant to the Tag-Along Offer
and the Selling Person shall sell its Tag-Along Portion and such additional
shares of such class of Company Securities as permitted by Section 4.01(d). If
the Tagging Persons exercise their Tag-Along Rights hereunder, each Tagging
Person shall deliver, together with its Section 4.01 Response Notice, to the
Selling Person the certificate or certificates representing the 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 securities on
the terms set forth in the Tag-Along Notice. Delivery of such certificate or
certificates representing the securities to be transferred and the limited
power-of-attorney authorizing the Selling Person to transfer such 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 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 all certificates
representing the securities which such Tagging Person delivered for transfer
pursuant to this Section 4.01.
(b) Concurrently with the consummation of the Tag-Along Sale, the Selling
Person shall notify the Tagging Persons thereof, shall remit to the Tagging
Persons the total consideration (by bank or certified check) for the shares of
such class of Company Securities of the Tagging Persons 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 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 of shares of such class of Company
Securities held by the DLJ Entities equal to the number of shares of such class
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 exercises the Tag- Along
Rights pursuant to this Section 4.01 may sell the securities subject to the
Tag-Along Offer on the terms and conditions set forth in the Tag-Along Notice
15
(provided 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 expire.
SECTION 4.02. Right 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 class of Company
Securities to be transferred by the DLJ Entities and their Permitted
Transferees constitute more than 50% of such class of 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 such class of Company Securities
("Drag-Along Rights") then held by every Other Stockholder and, in the case of
Voting Common Stock, (subject to and at the closing of the Section 4.02 Sale)
to exercise all, but not less than all, of the options held by every Other
Stockholder and to sell all of the shares of Common Stock received upon such
exercise to such Third Party, for the same consideration per share of Common
Stock and otherwise on the same terms and conditions as the DLJ Entities;
provided that any Other Stockholder who holds options the exercise price per
share of which is greater than the per share price at which the Voting Common
Shares are to be sold to the Third Party may, if required by the DLJ Entities
to exercise such options, in place of such exercise, submit to irrevocable
cancellation thereof without any liability for payment of any exercise price
with respect thereto. In the event the Section 4.02 Sale is not consummated
with respect to any Voting Common Shares acquired upon exercise of such
options, or the Section 4.02 Sale is not consummated, such options shall be
deemed not to have been exercised or canceled, as applicable. DLJMB shall
provide written notice of such Section 4.02 Sale to the Other Stockholders (a
"Section 4.02 Notice") not later than the 15th day prior to the proposed
Section 4.02 Sale. The Section 4.02 Notice shall identify the transferee, the
number and class of Company Securities, the consideration for which a transfer
is proposed to be made (the "Section 4.02 Sale Price") and all other material
terms and conditions of the Section 4.02 Sale. The number of shares of such
class of Company Securities to be sold by each Other Stockholder will be the
Drag-Along Portion of such class that such Other Stockholder owns. Subject to
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 its Drag-Along Portion of such class 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 of the Other Stockholders shall deliver to
a representative of DLJMB designated in the Section 4.02 Notice certificates
representing its Drag Along Portion of such class of Company Securities, duly
endorsed, together with all other documents required to be executed in
connection
16
with such Section 4.02 Sale. If an Other Stockholder should fail to deliver
such certificates to DLJMB, the Company shall cause the books and records of
the Company to show that such Other Stockholder's Drag-Along Portion of such
class of Company Securities are bound by the provisions of this Section 4.02
and Section 4.03 and that such securities shall be transferred to the purchaser
of the 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 shares
of such class of 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
transfer, and all the restrictions on transfer contained in this Agreement or
otherwise applicable at such time with respect to the securities owned by the
Other Stockholders shall again be in effect.
(c) Concurrently with the consummation of any Section 4.02 Sale, 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 shares of such class
of Company Securities represented by such Stockholder's certificates and shall
furnish such other evidence of the completion and time of completion of such
transfer 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, Company Securities.
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.
17
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 which the Company has been so
requested to register by the Selling Stockholders, then held by the
Selling Stockholders; and
(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; and 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,
equals or exceeds (x) $50,000,000 if such Demand Registration would constitute
the Initial 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
18
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, in which case such request shall not be
considered a Demand Registration.
(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 (i) 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 thereunder); provided that if 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 has been sold thereunder, such registration statement shall not be
considered a Demand Registration or (ii) if 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.
(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 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 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 Benchmark Securities requested to be registered
by the Selling Stockholder and by all other DLJ Entities and their
Permitted Transferees (allocated, if necessary for the
19
offering not to exceed the Maximum Offering Size, pro rata among such
entities on the basis of the relative number of shares of Registrable
Securities requested to be registered);
(B) second, all Registrable Securities (other than Benchmark
Securities) requested to be included in such registration by all DLJ
Entities and their Permitted Transferees and any other Holder
(allocated, if necessary for the offering not to exceed the Maximum
Offering Size, pro rata among such DLJ Entities and their Permitted
Transferees and such other Holders on the basis of the relative
number of shares of Registrable Securities (excluding any Benchmark
Securities) requested to be included in such registration); and
(C) third, any securities proposed to be registered by the
Company.
SECTION 5.02. Incidental Registration. (a) If the Company proposes to
register any Company Securities under the Securities Act (other than a
registration (A) on Form S-8 or S-4 or any successor or similar forms, (B)
relating to Common Stock issuable upon exercise of employee stock options or in
connection with any employee benefit or similar plan of the Company or (C) 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 30 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 15 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 (I) if such registration involves a 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
(II) 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
20
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 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.
(b) If a registration pursuant to this Section 5.02 involves a Public
Offering (other than in the case of a Public Offering requested by any DLJ
Entity or any of their Permitted Transferees or the Other Stockholders 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 of
Shares that the Company and such Stockholders intend to include in such
registration exceeds the Maximum Offering Size, the Company will include in
such registration, in the following priority, up to the Maximum Offering Size:
(i) first, so much of the securities proposed to be registered by the
Company as would not cause the offering to exceed the Maximum Offering
Size;
(ii) second, all Benchmark Securities requested to be included in
such registration statement by the DLJ Entities and their Permitted
Transferees (allocated, if necessary for the offering not to exceed the
Maximum Offering Size, pro rata among such entities on the basis of the
relative number of shares of Registrable Securities requested to be so
included); and
(iii) third, all Registrable Securities other than Benchmark
Securities requested to be included in such registration by any DLJ Entity
and its Permitted Transferees or any Other Stockholder pursuant to this
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 (excluding any
Benchmark Securities) so requested to be included in such registration).
SECTION 5.03. Holdback Agreements. If any registration of Registrable
Securities shall be in connection with a Public Offering, each DLJ Entity and
its Permitted Transferees and each Other Stockholder agrees not to effect any
public
21
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 other Common Stock of the
Company or of any stock convertible into or exchangeable or exercisable for any
Common Stock of the Company (in each case, other than as part of such 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
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
participating Stockholder 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 of 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
22
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.
(e) The Company will immediately notify each Stockholder holding such
Registrable Securities, at any time when a prospectus relating thereto is
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
23
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 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.
24
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
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
25
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 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")
26
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 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 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
27
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 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
28
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 Section 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)
completes 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.
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 or 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 with such Stockholder (which shall
include, without limitation, making registration rights with respect to the
Registrable Securities to be sold (or securities issuable or to be issued in
exchange therefor) available to the ultimate purchasers thereof) and shall
provide to such Stockholder such information as such Stockholder shall
reasonably request.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Entire Agreement. This Agreement and the Stock Subscription
Agreements constitute the entire agreement among the parties hereto and
supersede 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,
29
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 earlier
of (i) the fifth anniversary of the date hereof and (ii) the date that the DLJ
Entities no longer own in aggregate Securities representing more than 50% of
the combined voting power of the then outstanding voting Securities of the
Company or any successor thereto (whether by merger, consolidation, securities
purchase or otherwise) with respect to matters submitted to a vote of the
stockholders generally. ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ 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
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. (a) 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.
(b) This Agreement shall terminate on the earlier of (i) the tenth
anniversary of the date hereof and (ii) such time as the aggregate number of
30
Common Shares held by the DLJ Entities is less than 10% of their Initial
Ownership of Common 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 or the Management Stockholders, to:
▇▇▇▇▇▇▇ Holdings (N.A.), Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to the DLJ Entities at their addresses listed below
if to the DLJ Entities, to:
DLJ Merchant Banking Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to an Other Non-Management Stockholder, at the address and/or the fax
number set forth on the signature page of such stockholder to this
Agreement.
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
31
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 promptly 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 DELAWARE 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.
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 may
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 non-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
32
provided in Section 6.06 shall be deemed effective service of process on such
party.
SECTION 6.12. Squam and Public Offering. Upon the consummation of an
initial Public Offering, Squam shall no longer be bound by the provisions set
forth in Article 2.
33
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.
▇▇▇▇▇▇▇ HOLDINGS (N.A.), INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
DLJ MERCHANT BANKING
PARTNERS II, L.P.
BY DLJ MERCHANT BANKING II, INC.
Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
BY DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ OFFSHORE PARTNERS II, C.V.
BY DLJ MERCHANT BANKING II,
INC., Advisory General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ DIVERSIFIED PARTNERS, L.P.
BY DLJ DIVERSIFIED PARTNERS,
INC., Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJMB FUNDING II, INC.
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ MILLENNIUM PARTNERS, L.P.
BY DLJ MERCHANT BANKING II,
INC., Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ MILLENNIUM PARTNERS-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ EAB PARTNERS, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ ESC II, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
DLJ FIRST ESC, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ ▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Vice President
SQUAM LAKE INVESTORS IV, L.P.
BY GPI, INC., as Managing General
Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Information for notices:
Squam Lake Investors IV, L.P.
c/o Bain & Company, Inc.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Fax: ▇▇▇-▇▇▇-▇▇▇▇