Exhibit 2.1
Execution Version
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RECAPITALIZATION AGREEMENT
By and Among
THE ▇▇▇▇▇▇▇▇ GROUP, LTD.,
THE STOCKHOLDERS OF THE ▇▇▇▇▇▇▇▇ GROUP, LTD.
LISTED ON EXHIBIT A HERETO,
▇▇▇▇▇▇▇▇ GROUP HOLDINGS, INC.,
CIVC SIDECAR FUND, L.P.
and
THE CO-INVESTORS NAMED HEREIN
Dated as of the Effective Date,
December 2002
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Table of Contents
ARTICLE I DEFINITIONS ...........................................................2
1.1 Definitions...........................................................2
ARTICLE II PURCHASE AND SALE OF STOCK...........................................12
2.1 Authorization of the Class A Common..................................12
2.2 Contributions of Stock to the Company................................12
2.3 Purchase and Sale of Class A Common..................................12
2.4 Repurchase of Selling Stockholder Shares.............................12
2.5 Repurchase of Certain Rollover Investor Shares.......................13
ARTICLE III THE CLOSING.........................................................13
3.1 Closing Date.........................................................13
3.2 Conditions to the Company's Obligation...............................13
3.3 Conditions to ▇▇▇▇▇▇▇▇ Investors' Obligations........................14
3.4 Conditions to CIVC's Obligations.....................................15
3.5 Conditions to the Rollover Investors' Obligations....................17
3.6 Conditions to the Selling Stockholders' Obligations..................17
3.7 Conditions to ▇▇▇▇▇▇▇▇ Ltd.'s Obligations............................18
ARTICLE IV REPRESENTATIONS AND WARRANTIES.......................................18
4.1 Representations and Warranties of ▇▇▇▇▇▇▇▇ Ltd.......................18
4.2 Stockholders Representations.........................................27
4.3 Representations and Warranties of CIVC and the ▇▇▇▇▇▇▇▇ Investors....27
4.4 Representations and Warranties of the Company........................28
4.5 Other Representations and Warranties of the Company..................29
ARTICLE V COVENANTS.............................................................29
5.1 Pre-Closing Covenants of ▇▇▇▇▇▇▇▇ Ltd................................29
5.2 Pre-Closing Covenants of the Company.................................31
5.3 Mutual Covenants.....................................................32
5.4 Post-Closing Covenants...............................................32
ARTICLE VI OTHER AGREEMENTS.....................................................48
6.1 Certain Understandings...............................................48
6.2 Waiver, Release and Discharge........................................48
6.3 Transfer of Restricted Securities....................................49
6.4 Further Assurances...................................................50
6.5 ▇▇▇▇▇▇▇▇ Representatives.............................................50
6.6 Termination of Existing Stockholders Agreement.......................52
6.7 Contingent Payment...................................................53
ARTICLE VII MISCELLANEOUS.......................................................54
7.1 Assignment...........................................................54
7.2 No Third-Party Beneficiaries.........................................55
7.3 Termination..........................................................56
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7.4 Survival of Representations, Warranties and Covenants................56
7.5 Transaction Expenses.................................................56
7.6 Amendments...........................................................57
7.7 Notices..............................................................57
7.8 Fees.................................................................59
7.9 Consent to Jurisdiction..............................................59
7.10 Severability.........................................................59
7.11 Interpretation.......................................................59
7.12 Waiver...............................................................60
7.13 Counterparts.........................................................60
7.14 Entire Agreement.....................................................60
7.15 Remedies.............................................................60
7.16 Governing Law........................................................60
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LIST OF SCHEDULES
Schedule 4.1(a) Qualification to do Business
Schedule 4.1(b) Conflicts
Schedule 4.1(c) Subsidiaries
Schedule 4.1(d) Capital Structure of ▇▇▇▇▇▇▇▇ Ltd.
Schedule 4.1(e) Financial Statements
Schedule 4.1(f) Taxes
Schedule 4.1(g) Properties
Schedule 4.1(h) Intellectual Property
Schedule 4.1(i) Contracts
Schedule 4.1(j) Litigation; Decrees
Schedule 4.1(k) Insurance
Schedule 4.1(l) Benefit Plans
Schedule 4.1(m) Absence of Changes or Events
Schedule 4.1(n) Compliance with Applicable Laws
Schedule 4.1(o) Licenses; Permits
Schedule 4.1(p) Environmental Matters
Schedule 4.1(q) Employee and Labor Relations
Schedule 4.1(t) Affiliate Transactions
Schedule 4.5 Capital Structure of the Company
Schedule 5.1 Ordinary Conduct
LIST OF EXHIBITS
Exhibit A Share Ownership; Closing Transfers
Exhibit B ▇▇▇▇▇▇▇▇ Certificate of Incorporation
Exhibit C Certificate of Incorporation of the Company
Exhibit D Stockholders Agreement
Exhibit E Class L Purchase Agreement
Exhibit F Registration Agreement
Exhibit G Management Equity Incentive Agreement and Plan
Exhibit H Transferee Joinder Agreement
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RECAPITALIZATION AGREEMENT
This RECAPITALIZATION AGREEMENT is dated as of the Effective Date,
December 2002, by and among ▇▇▇▇▇▇▇▇ Group Holdings, Inc., a Delaware
corporation (the "Company"), The ▇▇▇▇▇▇▇▇ Group, Ltd., a Delaware corporation
("▇▇▇▇▇▇▇▇ Ltd."), the stockholders of ▇▇▇▇▇▇▇▇ Ltd. listed on Exhibit A hereto
(the "Stockholders"), CIVC Sidecar Fund, L.P., a Delaware limited partnership
("CIVC"), and the Co-Investors named herein. Unless otherwise defined herein,
capitalized terms shall have the meanings assigned to them in Article I hereof.
Background
A. The Stockholders and the Management Class B Holders own all of the
issued and outstanding capital stock of ▇▇▇▇▇▇▇▇ Ltd., which consists of
91,860.72 shares of Class A Voting Common Stock, par value $.01 per share (the
"▇▇▇▇▇▇▇▇ Class A Voting Common"), 869,251 shares of Class A Non-Voting Common
Stock, par value $.01 per share (the "▇▇▇▇▇▇▇▇ Class A Non-Voting Common" and
together with the ▇▇▇▇▇▇▇▇ Class A Voting Common, the "▇▇▇▇▇▇▇▇ Class A
Common"), 138,900 shares of Class B Non-Voting Common Stock, par value $.01 per
share (the "▇▇▇▇▇▇▇▇ Class B Common"), 75,000 shares of Class C Non-Voting
Common Stock, par value $.01 per share (the "▇▇▇▇▇▇▇▇ Class C Common"), and
714,721.747 shares of Series A Preferred Stock, par value $.01 (the "▇▇▇▇▇▇▇▇
Preferred Stock"), which ownership is set forth in greater detail on Exhibit A
hereto. The outstanding shares of ▇▇▇▇▇▇▇▇ Class A Common, ▇▇▇▇▇▇▇▇ Class B
Common, ▇▇▇▇▇▇▇▇ Class C Common and ▇▇▇▇▇▇▇▇ Preferred Stock are referred to
collectively as the "▇▇▇▇▇▇▇▇ Shares."
B. Certain Stockholders desire to sell to ▇▇▇▇▇▇▇▇ Ltd., and ▇▇▇▇▇▇▇▇
Ltd. desires to purchase from such Stockholders, shares of ▇▇▇▇▇▇▇▇ Class A
Common, ▇▇▇▇▇▇▇▇ Class B Common, ▇▇▇▇▇▇▇▇ Class C Common and ▇▇▇▇▇▇▇▇ Preferred
Stock, upon the terms and subject to the conditions hereinafter set forth.
C. Certain Stockholders desire to contribute to the Company shares of
▇▇▇▇▇▇▇▇ Class A Common, ▇▇▇▇▇▇▇▇ Class B Common, ▇▇▇▇▇▇▇▇ Class C Common and
▇▇▇▇▇▇▇▇ Preferred Stock in exchange for shares of the Company's Class A Common,
upon the terms and subject to the conditions hereinafter set forth.
D. The Company desires to sell to CIVC and certain of the Co-Investors
and CIVC and certain of the Co-Investors desire to purchase from the Company
shares of the Class A Common, and the Company desires to sell to the ▇▇▇▇▇▇▇▇
Investors and the ▇▇▇▇▇▇▇▇ Investors desire to purchase from the Company shares
of the Class A Common, in each case upon the terms and subject to the conditions
hereinafter set forth.
E. The Investor Rollover, together with the exchange of securities
contemplated by the Class L Purchase Agreement, is intended to qualify as a
tax-free exchange under Code Section 351.
F. The parties hereto desire to take certain other actions as
described in this Agreement and in the other agreements contemplated herein.
Accordingly, intending to be legally bound, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions.
(a) Certain Definitions. As used in this Agreement, the following
terms shall have the meanings assigned to them below:
"Affiliate" shall have the meaning given to such term in Rule 12b-2
under the Securities Exchange Act of 1934, as in effect as of the date of this
Agreement.
"▇▇▇▇▇▇▇▇ Certificate of Incorporation" means the amended and restated
certificate of incorporation of ▇▇▇▇▇▇▇▇ Ltd. in the form attached hereto as
Exhibit B.
"▇▇▇▇▇▇▇▇ Class A Common Purchase Price" means that portion of the
Common Equity Value attributable to each share of ▇▇▇▇▇▇▇▇ Class A Common as set
forth on the Closing Price Certificate.
"▇▇▇▇▇▇▇▇ Class B Common Purchase Price" means that portion of the
Common Equity Value attributable to each share of ▇▇▇▇▇▇▇▇ Class B Common as set
forth on the Closing Price Certificate.
"▇▇▇▇▇▇▇▇ Class C Common Purchase Price" means that portion of the
Common Equity Value attributable to each share of ▇▇▇▇▇▇▇▇ Class C Common as set
forth on the Closing Price Certificate.
"▇▇▇▇▇▇▇▇ Investors" means ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇
and The ▇▇▇▇▇▇▇▇ Foundation.
"▇▇▇▇▇▇▇▇ Preferred Stock Purchase Price" means the Liquidation Value
(as defined in Section 4E of the ▇▇▇▇▇▇▇▇ Certificate of Incorporation) of the
▇▇▇▇▇▇▇▇ Preferred Stock plus all accrued but unpaid dividends thereon as of the
date of determination, as set forth on Exhibit A.
"CIVC Group" means all holders of Class A Common immediately after the
Closing, other than the Management Holders and the ▇▇▇▇▇▇▇▇ Investors, which
holders shall be CIVC, CIVC Partners III-B, GEC CFE, Inc., LB I Group Inc., PPM
America Private Equity Fund, L.P., Old Hickory Fund I, LLC, Antares Capital
Corporation, Centaur Partners V, L.P., ▇▇▇▇▇▇▇▇ Street Partners II, ▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, The ▇▇▇▇▇▇▇ Family Trust, The
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Living Trust, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and each of their
Permitted Transferees (the "Core CIVC Group Members") and any transferee of any
member of the CIVC Group other than a transferee of
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CIVC; provided, however, that for purposes of determining whether the Approval
Rights Conditions (as defined in Section 5.4(b)) are satisfied (including for
purposes of determining whether a Valid Assignment has occurred), the term "CIVC
Group" shall include only the Core CIVC Group Members..
"Class A Transferee" means a direct or indirect transferee of Class A
Common of any member of the CIVC Group other than Permitted Transferees of the
CIVC Group.
"Class L Common" means the Company's Class L Common Stock, par value
$.001 per share.
"Class L Purchase Agreement" means that certain stock purchase
agreement dated as of the Closing Date by and among CIVC and the Co-Investors
and the Company with respect to the issuance and sale of the Company's Class L
Common to CIVC and the Co-Investors.
"Class L Transferee" means a direct or indirect transferee of Senior
Common of any member of the CIVC Group other than Permitted Transferees of the
CIVC Group.
"Closing Price Certificate" means a certificate setting forth the
▇▇▇▇▇▇▇▇ Class A Common Purchase Price, the ▇▇▇▇▇▇▇▇ Class B Common Purchase
Price and the ▇▇▇▇▇▇▇▇ Class C Common Purchase Price, and a reasonably detailed
calculation of the Common Equity Value from which such prices are derived, as
agreed upon by CIVC, the OEP Entities and the ▇▇▇▇▇▇▇▇ Representatives and
delivered to each Stockholder in connection with the Closing.
"Co-Investors" means each initial member of the CIVC Group except
CIVC.
"Common Equity Value" means, determined as of the Closing Date and set
forth on the Closing Price Certificate, an amount equal to $395,000,000 minus
(a) the fees and expenses of the Company, ▇▇▇▇▇▇▇▇ Ltd., the CIVC Group (subject
to Section 7.5 hereof), the Stockholders and their respective representatives,
advisors, lenders, brokers and any other Person in negotiating and closing the
Transactions and the other transactions in connection therewith for which the
Company or ▇▇▇▇▇▇▇▇ Ltd. is liable or otherwise pays, as estimated as of the
Closing Date, minus (b) all Indebtedness of ▇▇▇▇▇▇▇▇ Ltd. owed to any other
Person which is not incurred at or in connection with the Closing (other than
(i) Indebtedness described in clause (v) of the definition of such term in
excess of $900,000 and (ii) guarantees or similar assurances to creditors, but
including letters of credit) plus (c) all cash held by ▇▇▇▇▇▇▇▇ Ltd. minus (d)
the Liquidation Value (as defined in Section 4E of the ▇▇▇▇▇▇▇▇ Certificate of
Incorporation) of the ▇▇▇▇▇▇▇▇ Preferred Stock plus all accrued but unpaid
dividends thereon.
"Common Stock" means the Company's Class A Common, Class L Common,
Redeemable Common and any other class of stock created and issued by the Company
in the future the terms of which provide that the holders thereof shall have a
right to share in the residual profits or assets of the Company along with the
other classes of Common Stock.
"Company Enterprise Value" means the value of the entire Company and
its Subsidiaries in an arm's length sale to an Independent Third Party, without
regard to the capital structure of the Company and its Subsidiaries and assuming
the absence of any Indebtedness. Company Enterprise Value shall be determined as
of December 31 of the year in which the CIVC
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Put Notice or CIVC Call Notice, as the case may be, is delivered and shall be
based upon the actual performance of the Company and its Subsidiaries through
the date on which such notice is given and the budgeted performance of the
Company and its Subsidiaries through year-end.
"Company Equity Value" means the Company Enterprise Value minus all
Indebtedness of the Company existing at the CIVC Put Closing or CIVC Call
Closing which is not incurred at or in connection with the CIVC Put Closing or
CIVC Call Closing or the ▇▇▇▇▇▇▇▇ Put Closing under Section 4 of the Family
Stockholders Agreement, as the case may be, minus transaction expenses incurred
by the Company or the CIVC Group (or the Designated Class A Transferee) in
connection the CIVC Put Closing or CIVC Call Closing or the ▇▇▇▇▇▇▇▇ Put Closing
under Section 4 or 5 of the Family Stockholders Agreement, as the case may be,
including fees and expenses payable to any Bank plus all cash held by the
Company, ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries. The Company Equity Value
shall be determined as of the CIVC Put Closing Date or CIVC Call Closing Date,
as the case may be.
"Company Financials Trigger Event" means either (A) the Senior Credit
Agreement and the Indenture are not then in effect (but only following the
reasonable request of CIVC, which single request will be effective for all
future deliveries pursuant to Section 5.4(a)) or (B) the Company and/or ▇▇▇▇▇▇▇▇
Ltd. are delivering similar information with respect to the Company in
connection with the Senior Credit Agreement or the Indenture.
"Environmental Laws" means federal, state and local laws, rules,
regulations, codes and ordinances, and any orders, decrees, judgments or
injunctions issued, promulgated, approved or entered thereunder, relating to the
environment, including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act ("CERCLA"); the Resource Conservation and
Recovery Act of 1976, as amended Control Act, as amended; the Surface Mining
Control and Reclamation Act of 1977, as amended; the Safe Drinking Water Act, as
amended; the Pollution Control Act of 1990, as amended; the Federal Insecticide,
Fungicide and Rodenticide Act, as amended; and comparable state and local laws
in effect on the date hereof.
"Fair Market Value" means the price a willing buyer and willing seller
would agree to in an Independent Third Party transaction.
"Family Stockholders Agreement" means that certain ▇▇▇▇▇▇▇▇ Family
Stockholders Agreement, dated as of the Closing Date, by and among the Company
and the ▇▇▇▇▇▇▇▇ Investors.
"Hazardous Substances" shall mean "hazardous substances" pursuant to
CERCLA, "hazardous waste" pursuant to RCRA, "toxic pollutants" pursuant to the
Federal Water Pollution Control Act, and friable asbestos, polychlorinated
byphenyls ("PCBs") and petroleum products.
"Indebtedness" means at a particular time, without duplication, (i)
any indebtedness for borrowed money or issued in substitution for or exchange of
indebtedness for borrowed money, (ii) any indebtedness evidenced by any note,
bond, debenture or other debt security, (iii) any commitment by which a Person
assures a creditor against loss (other than contingent reimbursement obligations
with respect to letters of credit), (iv) any Indebtedness otherwise described in
clauses (i)-(iii) or (v) of this definition guaranteed in any manner by a Person
and (v)
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any obligations under capitalized leases with respect to which a Person is
liable, contingently or otherwise, as obligor, guarantor or otherwise, or with
respect to which obligations a Person assures a creditor against loss, in each
case including all capitalized or accrued but unpaid interest thereon.
Notwithstanding the foregoing, "Indebtedness" does not include: (i) trade
payables incurred in the ordinary course of business, (ii) deferred tax
obligations, (iii) minority interest, (iv) non-interest bearing installment
obligations and accrued liabilities incurred in the ordinary course of business,
(v) obligations of the Company or any Subsidiary pursuant to contracts for, or
options, puts or similar arrangements relating to, the purchase of raw materials
or the sale of inventory at a time in the future entered into in the ordinary
course of business, (vi) surety or performance bonds, and (vii) any obligations
under this Agreement (including Section 5.4(c) hereof).
"Indenture" means that certain Indenture dated as of the Closing Date
among ▇▇▇▇▇▇▇▇ Ltd., the guarantors named therein and Bank One, N.A. in
connection with the Notes Offering (or the exchange offer thereby), as it may be
amended from time to time.
"Independent Third Party" means any Person who is not a party hereto,
does not qualify as a Permitted Transferee and who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the Company's
outstanding Class A Common, calculated on a fully-diluted basis (a "5% Owner"),
who is not controlling, controlled by or under common control with any such 5%
Owner and who is not the spouse or descendent (by birth or adoption) of any such
5% Owner or a trust for the benefit of such 5% Owner and/or such other Persons.
"Investment" as applied to any Person means (i) any direct or indirect
purchase or other acquisition by such Person of any notes, instruments (as
defined in Article 9 of the Uniform Commercial Code), stock, securities or
ownership interest (including partnership interests and joint venture interests)
of any other Person and (ii) any capital contribution by such Person to any
other Person. Notwithstanding the foregoing, the term "Investments" shall not
include (i) extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices and (ii) any acquisition or purchase of
indebtedness of the Company or any Subsidiary.
"Knowledge" means, (a) with respect to the Company, the actual
knowledge at the time the relevant representations are made of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and (b) with respect to ▇▇▇▇▇▇▇▇ Ltd., the actual knowledge at the time the
relevant representations are made of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇
▇▇▇▇▇▇.
"Liability" means any liability, debt, obligation, deficiency, tax,
penalty, fine, claim, cause of action or other loss, cost or expense of any kind
or nature whatsoever, whether asserted or unasserted, known or unknown, accrued
or unaccrued, liquidated or unliquidated, and whether due or to become due and
regardless of when asserted.
"Liquid Security" means a security (i) that is immediately eligible
for sale pursuant to a registration statement effective under the Securities Act
(or in lieu of being immediately eligible for sale under such registration
statement, is eligible to be resold in full by the holder under Rule 144 or Rule
145(d) of the Securities Act within 45 days after consummation of the Sale of
the Company) or that the holder has a right to have registered under the
Securities Act pursuant to a shelf registration under the Securities Act within
45 days after consummation of the Sale of the Company or that is immediately
eligible for sale by the holder thereof pursuant to Rule 144(k) of the
Securities Act or any similar provision then in force, (ii) that is listed or
quoted on a
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United States national securities exchange or quoted in the United States Nasdaq
National Market System, (iii) that is not subject to any "hold-back" or
"lock-up" imposed by the issuer or a managing underwriter in connection with a
public offering of the issuer or any other restriction on the disposition
thereof under the terms of any agreement (other than any such agreement whereby
the holder acknowledges its status under Rule 145(c) and the restrictions on its
ability to sell such securities under the Securities Act by virtue thereof,
provided that the securities are either registered for resale by the CIVC Group
or eligible for resale in full under Rule 145(d) within 45 days after
consummation of the Sale of the Company), (iv) of which at least $1 billion
(valued at the then current market price) of such securities are held by
nonaffiliates of the issuer thereof and (v) of which the members of the CIVC
Group do not in the aggregate receive more than 5% of the total number of issued
and outstanding shares of such security held by non-Affiliates of the issuer
after giving effect to the transaction.
"Management Class B Holders" means each holder of ▇▇▇▇▇▇▇▇ Class B
Common that is a current employee of ▇▇▇▇▇▇▇▇ Ltd.
"Management Holders" means each of the employees of the Company and
its Subsidiaries that holds capital stock of the Company other than any ▇▇▇▇▇▇▇▇
Investor.
"Material Adverse Effect" means an effect that is or may reasonably be
expected to be materially adverse to the business (including current business
prospects), results of operations or financial condition of ▇▇▇▇▇▇▇▇ Ltd. and
its Subsidiaries (taken as a whole) or the Company, as the case may be, other
than with respect to any adverse effects which, directly or indirectly, relate
to or result from (i) public or industry knowledge relating to the transactions
contemplated by this Agreement or (ii) general economic conditions. ▇▇▇▇▇▇▇▇
Ltd. or the Company may, however, at their option, include in the Schedules of
this Agreement or elsewhere items which would not have a Material Adverse Effect
within the meaning of the previous sentence in order to avoid any
misunderstanding, and such inclusion shall not be deemed to be an
acknowledgement by ▇▇▇▇▇▇▇▇ Ltd. or the Company that such items would have a
Material Adverse Effect or further define the meaning of such term for the
purpose of this Agreement.
"Notes Offering" means the sale by ▇▇▇▇▇▇▇▇ Ltd. of its Senior
Subordinated Notes due 2009 pursuant to Rule 144A of the Securities Act.
"OEP Entities" means Banc One Equity Capital SBIC Fund II, L.L.C.,
First Chicago Equity Corporation and Cross Creek Partners VIII.
"Permitted Liens" means (i) mechanics', carriers', workers',
repairers', materialmen's, or warehousemen's liens arising out of operation of
law with respect to a liability incurred in the ordinary course of business
consistent with past practice that is not delinquent or in default or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves are established in accordance with GAAP on the Company's books and
records and which are not and would not reasonably be expected, individually or
in the aggregate, to be material; (ii) liens, charges, encumbrances or other
security interests arising under conditional sales contracts and equipment
leases with third parties to the extent the charges therefore are reflected on
the annual budget referred to in Section 5.4(a); (iii) liens, charges,
encumbrances or other security interests for taxes not yet due and payable or
which are being contested in good faith by appropriate proceedings and for which
adequate reserves are established in accordance
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with GAAP on the Company's books and records; (iv) real estate taxes,
assessments and other governmental levies, fees or charges imposed with respect
to real property which are not due and payable or which are being contested in
good faith by appropriate proceedings and for which adequate reserves are
established in accordance with GAAP on the Company's books and records; (v)
zoning, building codes and other land use laws regulating the use or occupancy
of real property or the activities conducted thereon which are imposed by any
governmental authority having jurisdiction over such real property which are not
violated by the current use or occupancy of such real property or the operation
of the business and which would not, individually or in the aggregate, impair in
any material respect the current use or occupancy of such real property; (vi)
easements, rights-of-way, covenants, conditions, restrictions and other similar
matters of record affecting title to real property which, individually or in the
aggregate, do not or would not impair or detract in any material respect the
current use or operation of such real property; (vii) liens, charges,
encumbrances or other security interests securing the Company's indebtedness
pursuant to the Senior Credit Agreement; (viii) any liens, security interests,
claims or encumbrances arising in connection with any Indebtedness incurred in
accordance with Section 5.4(b)(iii) or (iv) hereof; and (ix) any liens, security
interests, claims or encumbrances constituting Permitted Liens under the
Indenture (regardless of whether or not the indebtedness incurred under the
Indenture is then outstanding).
"Permitted Sale of the Company" means a Sale of the Company in which
the consideration paid to the CIVC Group consists of cash or other Liquid
Securities and in which the CIVC Group (i) is offered the same form and value of
consideration as the ▇▇▇▇▇▇▇▇ Investors (or, in the event the ▇▇▇▇▇▇▇▇ Investors
are being offered illiquid securities, the CIVC Group is offered cash or other
Liquid Securities of the same value (ignoring any discount for illiquidity) as
the illiquid securities offered to the ▇▇▇▇▇▇▇▇ Investors) and (ii) is able to
transfer all of the capital stock of the Company then held by the CIVC Group.
"Permitted Transferees" has the meaning given to such term in the
Stockholders Agreement.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means any offering by the Company of its common
stock to the public pursuant to an effective registration statement under the
Securities Act of 1933, as then in effect, or any comparable statement under any
similar federal statute then in force.
"Public Sale" means any sale of capital stock of the Company to the
public pursuant to an offering registered under the Securities Act or to the
public through a broker, dealer or market maker pursuant to the provisions of
Rule 144 or Rule 144A adopted under the Securities Act.
"Put Default Date" means the Closing Deadline Date, provided that if a
Sale Notice is given to the members of the CIVC Group and any Class A Transferee
pursuant to Section 5.4(c)(v), then the Put Default Date shall be the ▇▇▇▇▇▇▇▇
Sale Deadline Date.
7
"Qualified Public Offering" means a firm commitment Public Offering of
shares of the Company's common stock underwritten by a nationally recognized
investment banking firm in which (i) the aggregate proceeds to the Company for
such shares (net of discounts, commissions and related expenses) shall be at
least $100,000,000 and (ii) the price per share paid by the public for such
shares (net of discounts, commissions and related expenses) shall be at least
$3,000.00 (as appropriately adjusted for subsequent stock splits, stock
combinations, stock dividends, recapitalizations and the like with respect to
the common stock).
"Redeemable Common" means the Company's Senior Redeemable Common
Stock, par value $.001 per share.
"Restricted Securities" means the Class A Common issued hereunder and
any securities issued with respect to the Class A Common above by way of a stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization. As to any
particular Restricted Securities, such securities shall cease to be Restricted
Securities when they have (a) been effectively registered under the Securities
Act and disposed of in accordance with the registration statement covering them,
(b) been distributed to the public through a broker, dealer or market maker
pursuant to Rule 144 (or any similar provision then in force) under the
Securities Act or become eligible for sale pursuant to Rule 144(k) (or any
similar provision then in force) under the Securities Act or (c) been otherwise
transferred and new certificates for them not bearing the Securities Act legend
set forth in Section 6.3(c) hereof have been delivered by the Company in
accordance with Section 6.3 hereof. Whenever any particular securities cease to
be Restricted Securities, the holder thereof shall be entitled to receive from
the Company, without expense, new securities of like tenor not bearing a
Securities Act legend of the character set forth in Section 6.3(c) hereof.
"Rollover Investors" means each of the ▇▇▇▇▇▇▇▇ Investors, CIVC
Partners III-B, Centaur Partners V, L.P., ▇▇▇▇▇▇▇▇ Street Partners II, ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and ▇▇▇▇ ▇▇▇▇.
"Sale of the Company" means the sale or recapitalization of the
Company to or by an Independent Third Party or group of Independent Third
Parties pursuant to which such party or parties acquire (i) capital stock of the
Company possessing the voting power under normal circumstances to elect a
majority of the Company's Board of Directors (whether by merger, consolidation
or sale or transfer of the Company's capital stock) or (ii) all or substantially
all of the Company's assets determined on a consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended.
"Selling Stockholders" means the OEP Entities, Baraboo, Inc.,
Continental Illinois Venture Corporation, LaSalle National Corporation, ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇.
"Senior Common" means the Class L Common and the Redeemable Common,
collectively.
8
"Senior Credit Agreement" means that certain credit agreement dated as
of the Closing Date by and among ▇▇▇▇▇▇▇▇ Ltd., Antares Capital Corporation and
the other institutional lenders party thereto which provides the final terms and
conditions of the Senior Debt Financing, as such agreement may be amended from
time to time.
"Senior Debt Financing" means the consummation by the Company of a
senior credit facility consisting of $50,000,000 in term loans and at least
$30,000,000 in available revolving loans.
"Senior Subordinated Notes" means the Company's Senior Subordinated
Notes due 2009 issued in connection with the Notes Offering.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
"Underlying Common" means (i) the Class A Non-Voting Common issued or
issuable upon conversion of the Class L Common, (ii) any Class A Voting Common
issued or issuable upon conversion of the Class A Non-Voting Common and (iii)
any common stock issued or issuable with respect to the securities referred to
in clause (i) or (ii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization. For purposes of this Agreement, any Person who holds
Class L Common shall be deemed to be the holder of the Underlying Common
obtainable upon conversion of the Class L Common in connection with the transfer
thereof or otherwise regardless of any restriction or limitation on the
conversion of the Class L Common, such Underlying Common shall be deemed to be
in existence, and such Person shall be entitled to exercise the rights of a
holder of Underlying Common hereunder. As to any particular shares of Underlying
Common, such shares shall cease to be Underlying Common when they have been (a)
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them, (b) distributed to the public
through a broker, dealer or market maker pursuant to Rule 144 under the
Securities Act (or any similar provision then in force) or (c) repurchased by
the Company or any Subsidiary.
(b) Other Definitions. The following defined terms shall have the
meaning set forth in the referenced Section:
9
As Defined
Defined Term in Section
Approval Right Conditions................................... 5.4(b)
Audited Financial Statements ............................... 4.1(e)
Balance Sheet............................................... 4.1(e)
Balance Sheet Date.......................................... 4.1(e)
Benefit Plans............................................... 4.1(l)
Bonus Payment............................................... Error!
Reference
source not
found.
▇▇▇▇▇▇▇▇ Class A Common..................................... Recitals
▇▇▇▇▇▇▇▇ Class A Investment................................. 2.3
▇▇▇▇▇▇▇▇ Class B Common..................................... Recitals
▇▇▇▇▇▇▇▇ Class C Common..................................... Recitals
▇▇▇▇▇▇▇▇ Ltd................................................ Recitals
▇▇▇▇▇▇▇▇ Preferred Stock.................................... Recitals
▇▇▇▇▇▇▇▇ Representatives.................................... 6.5
▇▇▇▇▇▇▇▇ Sale Deadline Date................................. 5.4(c)(v)
▇▇▇▇▇▇▇▇ Shares............................................. Recitals
CIVC........................................................ Recitals
CIVC Call Closing........................................... 5.4(c)
CIVC Call Closing Date...................................... 5.4(c)
CIVC Call Notice............................................ 5.4(c)
CIVC Class A Investment..................................... 2.3
CIVC Put Closing............................................ 5.4(c)
CIVC Put Closing Date....................................... 5.4(c)
CIVC Put Notice............................................. 5.4(c)
CIVC Repurchase Price....................................... 5.4(c)
Class A Common.............................................. 2.1
Class A Common Investment................................... 2.3
Class A Non-Voting Common................................... 2.1
Class A Voting Common....................................... 2.1
Class A-1 Voting Common..................................... 2.1
Closing..................................................... 3.1
Closing Agreement........................................... 4.1(f)
Closing Date................................................ 3.1
Closing Deadline Date....................................... 5.4(c)(iii)
Code........................................................ 4.1(f)
Company..................................................... Recitals
Company Debt Instrument..................................... 5.4(c)
Contracts................................................... 4.1(i)
Covered Persons............................................. 5.4(h)
Designated Class A Transferee............................... 7.1
Effective Date.............................................. 3.1
Employee Benefit Plans...................................... 4.1(l)
10
ERISA....................................................... 4.1(l)
Excess Parachute Payment.................................... 4.1(f)
Exercise Period............................................. 5.4(c)(i)
Existing Holdco Purchase Agreement.......................... 6.6
Existing Opco Purchase Agreement............................ 6.6
Existing Registration Agreement............................. 6.6
Existing Stockholders Agreement............................. 6.6
Financial Statements........................................ 4.1(e)
Forced Sale Expiration Date................................. 5.4(c)(viii)
Forced Sale Rights.......................................... 5.4(c)(iii)
GAAP........................................................ 4.1(e)
Group Health Plan........................................... 4.1(l)
GUST........................................................ 4.1(l)
HSR Act..................................................... 5.4(f)
Investor Rollover........................................... 2.2
IRS......................................................... 4.1(f)
Liens....................................................... 4.1(g)
Management Class B Exchange and Sale........................ 5.3(a)
Management Holder Agreement................................. 5.3(a)
Multiemployer Plan.......................................... 4.1(l)
Original Stockholders....................................... 6.6
Other Stockholders.......................................... 5.4(c)(v)
Pension Plan................................................ 4.1(l)
Put......................................................... 5.4(c)(i)
Registration Agreement...................................... 3.3(f)
Repricing Date.............................................. 5.4(c)(iv)
Returns..................................................... 4.1(f)
Rollover Investor Purchase Price............................ 2.5
Rollover Investor Repurchase................................ 2.5
Sale Notice................................................. 5.4(c)(v)
Selling Stockholder Purchase Price.......................... 2.4
Selling Stockholder Repurchase.............................. 2.4
Stockholders................................................ Recitals
Stockholders Agreement...................................... 3.2(f)
Tax......................................................... 4.1(f)
Termination Party........................................... 7.3(a)
Top Up Amount............................................... 6.7(a)
Top Up Event................................................ 6.7(a)
Transactions................................................ 3.1
Transferee Joinder Agreement................................ 7.1
Unaudited Financial Statements.............................. 4.1(e)
Valid Assignment............................................ 7.1
11
ARTICLE II
PURCHASE AND SALE OF STOCK
2.1 Authorization of the Class A Common. The Company shall authorize
the issuance (a) to the Rollover Investors of 98,564.061 shares of its Class A
Voting Common Stock, par value $.001 per share (the "Class A Voting Common"),
(b) to CIVC and the Co-Investors of 30,930.682 shares of its Class A-1 Voting
Common Stock, par value $.001 per share (the "Class A-1 Voting Common"), and
13,443.282 shares of its Class A Voting Common and (c) with respect to the
▇▇▇▇▇▇▇▇ Class A Investment to the ▇▇▇▇▇▇▇▇ Investors and ▇▇▇▇ ▇▇▇▇ of 11,200
shares of its Class A Voting Common. The Class A Voting Common, the Class A-1
Voting Common and the Class A Non-Voting Common Stock of the Company, par value
$0.001 per share (the "Class A Non-Voting Common"), are collectively referred to
herein as the "Class A Common." For each share of Class A Common issued
hereunder that is convertible into another class of Class A Common pursuant to
the Certificate of Incorporation, the Company shall authorize a sufficient
number of shares of such other class of Class A Common for issuance upon
conversion thereof. The Class A Common has the rights and preferences set forth
in the Company's Certificate of Incorporation attached hereto as Exhibit C.
2.2 Contributions of Stock to the Company. On the terms and subject to
the conditions of this Agreement, at the Closing referred to below, each
Rollover Investor shall contribute to the Company the number of shares of
▇▇▇▇▇▇▇▇ Class A Common, ▇▇▇▇▇▇▇▇ Class B Common, ▇▇▇▇▇▇▇▇ Class C Common and
▇▇▇▇▇▇▇▇ Preferred Stock held by such Rollover Investor set forth opposite such
Stockholder's name on Exhibit A hereto in exchange for the number and class of
shares of Class A Common set forth opposite such Stockholder's name on Exhibit A
hereto (the "Investor Rollover").
2.3 Purchase and Sale of Class A Common. On the terms and subject to
the conditions of this Agreement, at the Closing referred to below, (a) CIVC and
the Co-Investors shall purchase the number and class of shares of Class A Common
set forth opposite their respective names on Exhibit A hereto at a purchase
price of $1,000.00 per share of each class of Class A Common for an aggregate
purchase price set forth on Exhibit A hereto (the "CIVC Class A Investment") and
(b) the ▇▇▇▇▇▇▇▇ Investors shall purchase the number of shares of Class A Voting
Common set forth opposite their respective names on Exhibit A hereto at a
purchase price of $1,000.00 per share of Class A Common for an aggregate
purchase price set forth on Exhibit A hereto (the "▇▇▇▇▇▇▇▇ Class A Investment"
and, together with the CIVC Class A Investment, the "Class A Common
Investment"). Each sale of the Class A Common to CIVC, each of the Co-Investors
and each of the ▇▇▇▇▇▇▇▇ Investors shall constitute a separate sale hereunder.
2.4 Repurchase of Selling Stockholder Shares. On the terms and subject
to the conditions of this Agreement, at the Closing referred to below, ▇▇▇▇▇▇▇▇
Ltd. shall purchase from each Selling Stockholder all shares of ▇▇▇▇▇▇▇▇ Class A
Common, ▇▇▇▇▇▇▇▇ Class B Common, ▇▇▇▇▇▇▇▇ Class C Common and ▇▇▇▇▇▇▇▇ Preferred
Stock held by such Selling Stockholder as set forth opposite each such
Stockholder's name on Exhibit A hereto at a purchase price per share of ▇▇▇▇▇▇▇▇
Class A Common equal to the ▇▇▇▇▇▇▇▇ Class A Common Purchase Price, at a
purchase price per share of ▇▇▇▇▇▇▇▇ Class B Common equal to the ▇▇▇▇▇▇▇▇ Class
B Common Purchase Price, at a purchase price per share of ▇▇▇▇▇▇▇▇ Class C
Common equal to the Class C Common Purchase Price and at a purchase price per
share of
12
▇▇▇▇▇▇▇▇ Preferred Stock equal to the ▇▇▇▇▇▇▇▇ Preferred Stock Purchase Price,
for an aggregate purchase price (the "Selling Stockholder Purchase Price") set
forth on Exhibit A hereto (the "Selling Stockholder Repurchase").
2.5 Repurchase of Certain Rollover Investor Shares. On the terms and
subject to the conditions of this Agreement, at the Closing referred to below,
▇▇▇▇▇▇▇▇ Ltd. shall purchase from certain Rollover Investors the number of
shares of ▇▇▇▇▇▇▇▇ Class A Common, ▇▇▇▇▇▇▇▇ Class B Common, ▇▇▇▇▇▇▇▇ Class C
Common and ▇▇▇▇▇▇▇▇ Preferred Stock held by such Stockholder as set forth
opposite each such Stockholder's name on Exhibit A hereto at a purchase price
per share of ▇▇▇▇▇▇▇▇ Class A Common equal to the ▇▇▇▇▇▇▇▇ Class A Common
Purchase Price, at a purchase price per share of ▇▇▇▇▇▇▇▇ Class B Common equal
to the ▇▇▇▇▇▇▇▇ Class B Common Purchase Price, at a purchase price per share of
▇▇▇▇▇▇▇▇ Class C Common equal to the Class C Common Purchase Price and at a
purchase price per share of ▇▇▇▇▇▇▇▇ Preferred Stock equal to the ▇▇▇▇▇▇▇▇
Preferred Stock Purchase Price, for an aggregate purchase price (the "Rollover
Investor Purchase Price") set forth on Exhibit A hereto (the "Rollover Investor
Repurchase").
ARTICLE III
THE CLOSING
3.1 Closing Date. Subject to the terms and conditions of this
Agreement, the closing (the "Closing") of each of the Investor Rollover, the
Class A Common Investment, the Selling Stockholder Repurchase and the Rollover
Investor Repurchase (collectively, the "Transactions") shall take place on the
Effective Date at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, at 10:00 a.m. on the Effective Date or, if the conditions to
closing set forth in Sections 3.2 through 3.7 of this Agreement shall not have
been satisfied by such date, then on the first business day after such
conditions have been satisfied. The "Effective Date" shall be the date on which
signature pages executed by CIVC, the Company, ▇▇▇▇▇▇▇▇ Ltd., the OEP Entities
and the ▇▇▇▇▇▇▇▇ Representatives have been received by the Company. The date on
which the Closing shall occur is hereinafter referred to as the "Closing Date."
3.2 Conditions to the Company's Obligation. The obligation of the
Company to deliver its Class A Common to the Rollover Investors in exchange for
the ▇▇▇▇▇▇▇▇ Shares and to sell and issue its Class A Common to CIVC, the
Co-Investors and the ▇▇▇▇▇▇▇▇ Investors is subject to the satisfaction (or
waiver by the Company) as of the Closing of the following conditions:
(a)(i) The representations and warranties of CIVC, the
Co-Investors and the Rollover Investors (other than the ▇▇▇▇▇▇▇▇ Investors) made
in this Agreement shall be true and correct on and as of the Closing Date, as
though made on and as of the Closing Date (except those representations and
warranties that address matters only as of a particular date which shall be true
and correct as of that date) except for (A) changes contemplated by this
Agreement or attributable to matters disclosed by CIVC, the Co-Investors or the
Rollover Investors (other than the ▇▇▇▇▇▇▇▇ Investors), respectively, in the
Schedules hereto, and (B) breaches or inaccuracies of representations or
warranties that are not, individually or in the aggregate, material and (ii)
CIVC, the Co-Investors and the Rollover Investors (other than the ▇▇▇▇▇▇▇▇
Investors) each shall have performed in all material respects their respective
covenants contained in this Agreement required to be performed by the time of
the Closing. For purposes
13
of clause (i) of this Section 3.2(a), such representations and warranties shall
be interpreted without regard to any knowledge or materiality qualifications
contained therein.
(b) As of the Closing, the offering, purchase and sale of the
Class A Common and the issuance of the Class A Common in exchange for cash and
the ▇▇▇▇▇▇▇▇ Shares hereunder shall not be prohibited by, or violate, any
applicable law or governmental rule or regulation and shall not subject the
Company or ▇▇▇▇▇▇▇▇ Ltd. to any material penalty, liability, noncompliance or
other onerous condition or impact under any applicable law or governmental rule
or regulation.
(c) All third party and governmental consents, approvals and
filings required to be made or obtained by any party hereto other than the
Company, ▇▇▇▇▇▇▇▇ Ltd. or the ▇▇▇▇▇▇▇▇ Investors in connection with the
consummation of the transactions hereunder (including, without limitation, all
blue sky law filings and waivers of all preemptive rights and rights of first
refusal) shall have been made and obtained.
(d) The Company shall have received certificates representing the
▇▇▇▇▇▇▇▇ Shares held by each Stockholder (other than any ▇▇▇▇▇▇▇▇ Investor) that
are being contributed to the Company in the Investor Rollover, duly endorsed in
blank or accompanied by a duly executed stock power or other appropriate
transfer instrument.
(e) The Company shall have received the purchase price (in
immediately available funds) for the Class A Common to be issued in the Class A
Common Investment (other than the purchase price to be paid by any ▇▇▇▇▇▇▇▇
Investor).
(f) CIVC, the Co-Investors and the Rollover Investors (other than
the ▇▇▇▇▇▇▇▇ Investors) shall have entered into a stockholders agreement with
the Company substantially in the form attached hereto as Exhibit D (the
"Stockholders Agreement").
(g) CIVC and the Co-Investors shall have entered into the Class L
Purchase Agreement and the transactions contemplated thereby shall have been
consummated or shall be consummated simultaneously with the Closing.
3.3 Conditions to ▇▇▇▇▇▇▇▇ Investors' Obligations. The obligation of
the ▇▇▇▇▇▇▇▇ Investors to purchase the Class A Common in connection with the
▇▇▇▇▇▇▇▇ Class A Investment is subject to the satisfaction (or waiver by the
▇▇▇▇▇▇▇▇ Representatives) as of the Closing of the following conditions:
(a) The representations and warranties of the Company and
▇▇▇▇▇▇▇▇ Ltd. made in this Agreement shall be true and correct on and as of the
Closing Date, as though made on and as of the Closing Date except for (A)
changes contemplated by this Agreement or attributable to matters disclosed by
the Company or ▇▇▇▇▇▇▇▇ Ltd. in the Schedules hereto, (B) those representations
and warranties that address matters only as of a particular date (which shall be
true and correct as of that date), and (C) breaches or inaccuracies of
representations and warranties that do not, individually or in the aggregate,
have a Material Adverse Effect.
(b) As of the Closing, the offering, purchase and sale of the
Class A Common hereunder shall not be prohibited by, or violate any applicable
law or governmental
14
rule or regulation and shall not subject the ▇▇▇▇▇▇▇▇ Investors to any material
penalty, liability, noncompliance or other onerous condition or impact under any
applicable law or governmental rule or regulation.
(c) All third party and governmental consents, approvals and
filings required to be made or obtained by any party hereto other than the
Company, the ▇▇▇▇▇▇▇▇ Investors or ▇▇▇▇▇▇▇▇ Ltd. in connection with the
consummation of the transactions hereunder (including, without limitation, all
blue sky law filings and waivers of all preemptive rights and rights of first
refusal) shall have been made and obtained.
(d) The Senior Debt Financing and the Notes Offering shall have
been consummated or shall be consummated simultaneously with the Closing, on
terms and conditions satisfactory to the ▇▇▇▇▇▇▇▇ Representatives.
(e) CIVC and the Co-Investors shall have entered into the Class L
Purchase Agreement substantially in the form attached hereto as Exhibit E and
the transactions contemplated thereby shall have been consummated or shall be
consummated simultaneously with the Closing.
(f) CIVC, the Co-Investors and each Rollover Investor other than
the ▇▇▇▇▇▇▇▇ Investors shall have entered into the Stockholders Agreement and a
registration rights agreement with the Company and the ▇▇▇▇▇▇▇▇ Investors
substantially in the form attached hereto as Exhibit F (the "Registration
Agreement").
(g) The Company shall, upon the consummation of the transactions
contemplated by this Agreement, own all of the outstanding capital stock of
▇▇▇▇▇▇▇▇ Ltd.
3.4 Conditions to CIVC's and the Co-Investors Obligations. The
obligation of CIVC and the Co-Investors to purchase the Class A Common in
connection with the CIVC Class A Investment is subject to the satisfaction (or
waiver by CIVC) as of the Closing of the following conditions:
(a)(i) The representations and warranties of the Company and
▇▇▇▇▇▇▇▇ Ltd. made in this Agreement shall be true and correct on and as of the
Closing Date, as though made on and as of the Closing Date except for (A)
changes contemplated by this Agreement or attributable to matters disclosed by
the Company or ▇▇▇▇▇▇▇▇ Ltd. in the Schedules hereto, (B) those representations
and warranties that address matters only as of a particular date (which shall be
true and correct as of that date), and (C) breaches or inaccuracies of
representations and warranties that do not, individually or in the aggregate,
have a Material Adverse Effect; (ii) the Company and ▇▇▇▇▇▇▇▇ Ltd. shall have
performed in all material respects their respective covenants contained in this
Agreement required to be performed by the time of the Closing; and (iii) the
Company and ▇▇▇▇▇▇▇▇ Ltd. shall each have delivered to CIVC a certificate dated
the Closing Date and signed by a duly authorized signatory of the Company and
▇▇▇▇▇▇▇▇ Ltd., respectively, confirming to the Knowledge of the Company and
▇▇▇▇▇▇▇▇ Ltd. the satisfaction of the foregoing clauses (i) and (ii). For
purposes of clause (i) of this Section 3.4(a), such representations and
warranties shall be interpreted without regard to any knowledge or materiality
qualifications contained therein.
15
(b) As of the Closing, the offering, purchase and sale of the
Class A Common hereunder shall not be prohibited by, or violate any applicable
law or governmental rule or regulation and shall not subject CIVC or any
Co-Investor to any material penalty, liability, noncompliance or other onerous
condition or impact under any applicable law or governmental rule or regulation.
(c) All third party and governmental consents, approvals and
filings required to be obtained or made by any party hereto other than CIVC or
any Co-Investor in connection with the consummation of the transactions
hereunder (including, without limitation, all blue sky law filings and waivers
of all preemptive rights and rights of first refusal) shall have been made and
obtained.
(d) The Senior Debt Financing and the Notes Offering shall have
been consummated or shall be consummated simultaneously with the Closing, on
terms and conditions satisfactory to CIVC.
(e) The Company shall have entered into the Class L Purchase
Agreement substantially in the form attached hereto as Exhibit E and the
transactions contemplated thereby shall have been consummated or shall be
consummated simultaneously with the Closing.
(f) The terms of the Company's capital stock contained in its
Certificate of Incorporation shall be substantially as set forth on Exhibit C
attached hereto.
(g) The Company and each Rollover Investor other than CIVC
Partners III-B shall have entered into the Stockholders Agreement and the
Registration Agreement.
(h) The Company will, upon the consummation of the transactions
contemplated by this Agreement, own all of the outstanding capital stock of
▇▇▇▇▇▇▇▇ Ltd.
(i) IVC shall have received copies of each of the Company's,
▇▇▇▇▇▇▇▇ Ltd.'s and its Subsidiaries' resolutions authorizing the execution,
delivery and performance of this Agreement and the transactions contemplated
hereby, certified by the respective Secretary of each of the Company, ▇▇▇▇▇▇▇▇
Ltd. and its Subsidiaries.
(j) CIVC shall have received copies of each of ▇▇▇▇▇▇▇▇ Ltd.'s
and its Subsidiaries' articles of incorporation and bylaws, certified by the
respective Secretary of each of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries.
(k) ▇▇▇▇▇▇▇▇ Ltd. shall have repaid in full any outstanding
indebtedness contemplated by Section 5.1(c) hereof.
(l) CIVC shall have received from ▇▇▇▇▇▇▇▇ Ltd. a certificate
which certifies that each Stockholder has (or as of the Closing will have)
repaid in full all indebtedness owed to the Company contemplated by Section
5.1(c) hereof.
(m) ▇▇▇▇▇▇▇▇ Ltd. shall have repurchased or shall repurchase
simultaneously with the Closing any shares of ▇▇▇▇▇▇▇▇ Class B Common which the
16
Management Class B Holders elected to sell to ▇▇▇▇▇▇▇▇ Ltd. for cash pursuant to
the Management Class B Exchange and Sale.
(n) No event, occurrence, fact, condition, change, development or
effect shall exist or have occurred or come to exist since December 31, 2001
that, individually or in the aggregate, has had or resulted in, or could
reasonably be expected to become or result in, a Material Adverse Effect on
▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries.
3.5 Conditions to the Rollover Investors' Obligations. The obligation
of the Rollover Investors to deliver the ▇▇▇▇▇▇▇▇ Shares in connection with the
Rollover Investment is subject to the satisfaction (or waiver by each Rollover
Investor, provided that such waiver shall be effective against only such waiving
Rollover Investor) as of the Closing of the following conditions:
(a) The Class A Common Investment shall have been consummated or
shall be consummated simultaneously with the Closing.
(b) The Selling Stockholder Repurchase shall have been
consummated or shall be consummated simultaneously with the Closing.
(c) The Rollover Investor Repurchase shall have been consummated
or shall be consummated simultaneously with the Closing.
3.6 Conditions to the Selling Stockholders' Obligations. The
obligation of the Selling Stockholders to consummate the Selling Stockholder
Repurchase is subject to the satisfaction (or waiver by the OEP Entities) as of
the Closing of the following conditions:
(a)(i) The representations and warranties of the Company and
▇▇▇▇▇▇▇▇ Ltd. made in this Agreement shall be true and correct on and as of the
Closing Date, as though made on and as of the Closing Date except for (A)
changes contemplated by this Agreement or attributable to matters disclosed by
the Company or ▇▇▇▇▇▇▇▇ Ltd. in the Schedules hereto, (B) those representations
and warranties that address matters only as of a particular date (which shall be
true and correct as of that date), and (C) breaches or inaccuracies of
representations and warranties that do not, individually or in the aggregate,
have a Material Adverse Effect; (ii) the Company and ▇▇▇▇▇▇▇▇ Ltd. shall have
performed in all material respects their respective covenants contained in this
Agreement required to be performed by the time of the Closing; and (iii) the
Company and ▇▇▇▇▇▇▇▇ Ltd. shall each have delivered to the OEP Entities a
certificate dated the Closing Date and signed by a duly authorized signatory of
the Company and ▇▇▇▇▇▇▇▇ Ltd., respectively, confirming to the Knowledge of the
Company and ▇▇▇▇▇▇▇▇ Ltd. the satisfaction of the foregoing clauses (i) and
(ii). For purposes of clause (i) of this Section 3.6(a), such representations
and warranties shall be interpreted without regard to any knowledge or
materiality qualifications contained therein.
(b) As of the Closing, the purchase and sale of the ▇▇▇▇▇▇▇▇
Class A Common, ▇▇▇▇▇▇▇▇ Class B Common, ▇▇▇▇▇▇▇▇ Class C Common and ▇▇▇▇▇▇▇▇
Preferred pursuant to the Selling Stockholder Repurchase shall not be prohibited
by, or violate any applicable law or governmental rule or regulation and shall
not subject any Selling Stockholder
17
to any material penalty, liability, noncompliance or other onerous condition or
impact under any applicable law or governmental rule or regulation.
(c) All third party and governmental consents, approvals and
filings required to be obtained or made by any party hereto other than the
Selling Stockholders in connection with the consummation of the transactions
hereunder (including, without limitation, all blue sky law filings and waivers
of all preemptive rights and rights of first refusal) shall have been made and
obtained.
3.7 Conditions to ▇▇▇▇▇▇▇▇ Ltd.'s Obligations. The obligation of
▇▇▇▇▇▇▇▇ Ltd. to consummate the Selling Stockholder Repurchase and the Rollover
Investor Repurchase is subject to the satisfaction (or waiver by ▇▇▇▇▇▇▇▇ Ltd.)
as of the Closing of the following conditions:
(a) The representations and warranties of the Selling
Stockholders and the Rollover Investors participating in the Rollover Investor
Repurchase in Section 4.2 of this Agreement shall be true and correct in all
material respects on and as of the Closing Date, as though made on and as of the
Closing Date.
(b) As of the Closing, the purchase and sale of the ▇▇▇▇▇▇▇▇
Shares pursuant to the Selling Stockholder Repurchase and the Rollover Investor
Repurchase shall not be prohibited by, or violate, any applicable law or
governmental rule or regulation and shall not subject ▇▇▇▇▇▇▇▇ Ltd. or the
Company to any material penalty, liability, noncompliance or other onerous
condition or impact under any applicable law or governmental rule or regulation.
(c) All third party and governmental consents, approvals and
filings required to be made or obtained by any party hereto other than the
Company or ▇▇▇▇▇▇▇▇ Ltd. in connection with the consummation of the Selling
Stockholder Repurchase and the Rollover Investor Repurchase (including, without
limitation, all blue sky law filings and waivers of all preemptive rights and
rights of first refusal) shall have been made and obtained.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of ▇▇▇▇▇▇▇▇ Ltd. ▇▇▇▇▇▇▇▇ Ltd.
hereby represents and warrants to the Company, CIVC, each of the Co-Investors
and each Stockholder as follows:
(a) Organization and Standing of ▇▇▇▇▇▇▇▇ Ltd. ▇▇▇▇▇▇▇▇ Ltd. is a
corporation duly organized and validly existing under the laws of the State of
Delaware. ▇▇▇▇▇▇▇▇ Ltd. has full corporate power and corporate authority and
possesses all material governmental franchises, licenses, permits,
authorizations and approvals necessary to enable it to use its corporate name
and to own, lease or otherwise hold its properties and assets and to carry on
its business in all material respects as presently conducted. ▇▇▇▇▇▇▇▇ Ltd. is
duly qualified or registered as a foreign corporation to do business, and is in
good standing, in the jurisdictions set forth on Schedule 4.1(a), which
constitute all jurisdictions in which the character of the properties owned,
operated or leased by it or the nature of its activities is such that such
qualification is required by applicable law, except where the failure to so
qualify and be in good
18
standing would not, individually or in the aggregate, have a Material Adverse
Effect. ▇▇▇▇▇▇▇▇ Ltd. has delivered to the Company, CIVC and the ▇▇▇▇▇▇▇▇
Representatives true and complete copies of the certificate of incorporation, as
amended to date, and the bylaws, as in effect on the date hereof, of ▇▇▇▇▇▇▇▇
Ltd.
(b) Conflicts. ▇▇▇▇▇▇▇▇ Ltd. has all requisite corporate power
and corporate authority to enter into this Agreement and to consummate the
transactions contemplated hereby. All corporate acts and other proceedings
required to be taken by ▇▇▇▇▇▇▇▇ Ltd. to authorize the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby have been duly and properly taken. This Agreement has been
duly executed and delivered by ▇▇▇▇▇▇▇▇ Ltd. and constitutes the legal, valid
and binding obligation of ▇▇▇▇▇▇▇▇ Ltd., enforceable against ▇▇▇▇▇▇▇▇ Ltd. in
accordance with its terms. Except as set forth on Schedule 4.1(b), the
execution, delivery and performance by ▇▇▇▇▇▇▇▇ Ltd. of this Agreement and the
consummation by ▇▇▇▇▇▇▇▇ Ltd. of the transactions contemplated hereby will not
(i) violate in any material respect any provision of a material law, rule or
regulation to which ▇▇▇▇▇▇▇▇ Ltd. is subject, (ii) conflict with or violate in
any material respect any order, judgment, injunction, award or decree applicable
to ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries, (iii) violate or conflict with the
certificate of incorporation, bylaws or other similar governing documents of
▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries, (iv) constitute a material default
under or give rise to a right of termination, cancellation or acceleration of
any right or obligation of ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries under any
provision of any material agreement, contract or other instrument binding upon
▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries or any material license, franchise,
permit or other similar authorization held by ▇▇▇▇▇▇▇▇ Ltd. or any of its
Subsidiaries, or (v) result in the creation or imposition of any Lien upon any
of the assets of ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries. Except as set forth
on Schedule 4.1(b) hereto, the execution, delivery and performance by ▇▇▇▇▇▇▇▇
Ltd. of this Agreement and the consummation by ▇▇▇▇▇▇▇▇ Ltd. of the transactions
contemplated hereby does not require any consent from or filing with any
governmental body, agency or official except for consents and filings which, if
not obtained or made, will not individually or in the aggregate have a Material
Adverse Effect or have a material adverse effect on the ability of the parties
hereto to consummate the transactions contemplated hereby.
(c) Subsidiaries. Schedule 4.1(c) correctly sets forth the name
of each Subsidiary of ▇▇▇▇▇▇▇▇ Ltd., the jurisdiction of its incorporation and
the Persons owning the outstanding capital stock of such Subsidiary. Each such
Subsidiary is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, possesses all requisite corporate
power and authority and all material licenses, permits and authorizations
necessary to own its properties and to carry on its businesses as now being
conducted and as presently proposed to be conducted. Each such Subsidiary is
duly qualified or registered as a foreign corporation to do business, and is in
good standing in all jurisdictions in which the character of the properties
owned, operated or leased by it or the nature of its activities is such that
such qualification is required by applicable law, except where the failure to so
qualify and be in good standing would not, individually or in the aggregate,
have a Material Adverse Effect. Except as disclosed on Schedule 4.1(c), neither
▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries, directly or indirectly, owns any
stock of, or any other equity interest in, any other Person. ▇▇▇▇▇▇▇▇ Ltd. has
delivered to the Company, CIVC and the ▇▇▇▇▇▇▇▇ Representatives true and
19
complete copies of the certificates of incorporation, as amended to date, and
the bylaws, as in effect on the date hereof, of each of ▇▇▇▇▇▇▇▇ Ltd.'s
Subsidiaries.
(d) Capital Structure of ▇▇▇▇▇▇▇▇ Ltd. The authorized capital
stock of ▇▇▇▇▇▇▇▇ Ltd. consists solely of (i) 1,100,000 shares of ▇▇▇▇▇▇▇▇ Class
A Voting Common, 91,860.72 of which shares are validly issued and outstanding,
fully paid and nonassessable, (ii) 1,100,000 shares of ▇▇▇▇▇▇▇▇ Class A
Non-Voting Common, 869,251 of which shares are validly issued and outstanding,
fully paid and nonassessable, (iii) 200,000 shares of ▇▇▇▇▇▇▇▇ Class B Common,
138,900 of which shares are validly issued and outstanding, fully paid and
nonassessable, (iv) 100,000 shares of ▇▇▇▇▇▇▇▇ Class C Common, 75,000 of which
shares are validly issued and outstanding, fully paid and nonassessable, and (v)
5,000,000 shares of ▇▇▇▇▇▇▇▇ Preferred Stock, 1,000,000 of which are designated
as Series A Stock and 714,721.747 of which shares of ▇▇▇▇▇▇▇▇ Series A Preferred
Stock are validly issued and outstanding, fully paid and nonassessable. Except
as disclosed on Schedule 4.1(d), there are no voting agreements and no
outstanding warrants, options, preemptive or other similar rights, agreements,
subscriptions, convertible or exchangeable securities or other commitments
pursuant to which ▇▇▇▇▇▇▇▇ Ltd., its Subsidiaries or any Stockholder is or may
become obligated to issue, sell, purchase, return or redeem any shares of
capital stock or other securities of ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries
and no equity securities of ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries are
reserved for issuance for any purpose.
(e) Financial Statements. Schedule 4.1(e) sets forth the audited
consolidated balance sheets of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries as of December
31, 2001 and December 31, 2000, and the related statements of operations and
retained-earnings and cash flows of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries for the
years then ended, together with the notes to such financial statements
(collectively, the "Audited Financial Statements"). Schedule 4.1(e) also sets
forth the unaudited consolidated balance sheet of ▇▇▇▇▇▇▇▇ Ltd. and its
Subsidiaries as of September 30, 2002 (the "Balance Sheet" and September 30,
2002 being the "Balance Sheet Date") and the related income statement of
▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries for the nine (9) month period then ended (the
"Unaudited Financial Statements" and, together with the Audited Financial
Statements, the "Financial Statements"). The Financial Statements have been
prepared in accordance with the books and records of ▇▇▇▇▇▇▇▇ Ltd. and its
Subsidiaries. The Audited Financial Statements present fairly, in all material
respects, the consolidated financial position of ▇▇▇▇▇▇▇▇ Ltd. and its
Subsidiaries as of December 31, 2001 and 2000 and the consolidated results of
operations and cash flows of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries for the years
then ended, in conformity with generally accepted accounting principles
("GAAP"). The Unaudited Financial Statements present fairly, in all material
respects, the financial position of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries as of
September 30, 2002 and the results of its operations for the nine (9) month
period then ended, in conformity with GAAP except for (i) the absence of
footnotes and other disclosures required by GAAP, (ii) normal year end
adjustments and reclassifications and (iii) the absence of a statement of cash
flows.
(f) Taxes.
(i) For purposes of this Agreement, (A) "Tax" or "Taxes"
shall mean all Federal, state, local and foreign taxes and assessments,
including all interest, penalties and additions imposed with respect to such
amounts and (B) "Code" shall mean the Internal Revenue Code of 1986, as amended.
20
(ii) ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries have filed or caused
to be filed in a timely manner (within any applicable extension periods) all
material Tax returns, reports and forms required to have been filed by the Code
or by applicable state, local or foreign Tax laws (collectively, "Returns"); all
such Returns are complete and correct in all material respects; all Taxes shown
to be due on such Returns have been timely paid in full; and no tax liens have
been filed and no material claims are being asserted in writing with respect to
any Taxes, except as set forth on Schedule 4.1(f). All material Taxes accrued
but not yet due on the Balance Sheet Date are accrued on the Balance Sheet.
Since the Balance Sheet Date, neither ▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries
has incurred no material Taxes other than in the ordinary course of its
business. Except as set forth on Schedule 4.1(f), no presently effective waivers
or extensions of statutes of limitation with respect to Taxes have been given by
▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries for any taxable years. Except as set
forth above or on Schedule 4.1(f), as of the date of this Agreement, the Returns
filed by, or with respect to, ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries are not being
examined by, and no written notification of intention to examine has been
received from the Internal Revenue Service ("IRS") or, to ▇▇▇▇▇▇▇▇ Ltd.'s
Knowledge, any other taxing authority with respect to Taxes. Except as set forth
on Schedule 4.1(f), no currently pending issues involving ▇▇▇▇▇▇▇▇ Ltd. or any
of its Subsidiaries have been raised in writing by the IRS or, to the Knowledge
of ▇▇▇▇▇▇▇▇ Ltd., any other taxing authority in connection with any Return.
▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries will not be required to include any item of
income in, or exclude any item of deduction from, taxable income for any taxable
period (or portion thereof) ending after the Closing Date as a result of any (A)
change in method of accounting for a taxable period ending on or prior to the
Closing Date; (B) "closing agreement" as described in Code (S)7121 (or any
corresponding or similar provision of state, local or foreign income Tax law)
executed on or prior to the Closing Date; (C) intercompany transactions or any
excess loss account described in Treasury Regulations under Code (S) 1502 (or
any corresponding or similar provision of state, local or foreign income Tax
law); (D) installment sale or open transaction disposition made on or prior to
the Closing Date; or (E) prepaid amount received on or prior to the Closing
Date.
(g) Sufficiency of Assets. ▇▇▇▇▇▇▇▇ Ltd. or one of its
Subsidiaries has title to, a valid leasehold interest in, or the right to use
all material property and assets necessary for the conduct of its business, free
and clear of all mortgages, liens, attachments, pledges, encumbrances or
security interests of any nature whatsoever, except (i) those disclosed in the
Balance Sheet or Schedule 4.1(g), (ii) any liens for current Taxes not yet due
and payable or which may thereafter be paid without penalty, (iii) zoning,
building and other similar governmental restrictions and liens imposed by
operation of law (including without limitation mechanics', carriers', workmen's,
repairmen's, landlord's or other similar liens arising from or incurred in the
ordinary course of business and for which the underlying payments are not yet
delinquent), and (iv) easements, covenants, rights-of-way or other similar
restrictions and imperfections of title, none of which items referred to in
clauses (iii) and (iv) materially impair the continued use of the property to
which they relate in the business of the Company as presently conducted
(collectively referred to herein as "Liens"). The Company owns no real property.
Set forth on Schedule 4.1(g) hereto is a list of all real property leased by the
Company.
(h) Intellectual Property. Schedule 4.1(h) sets forth a true and
complete list of all material patents, trademarks, trade names, service marks
and copyrights and applications therefore owned by or licensed to ▇▇▇▇▇▇▇▇ Ltd.
or any of its Subsidiaries. Except
21
as set forth in Schedule 4.1(h), ▇▇▇▇▇▇▇▇ Ltd. has no notice or Knowledge of
(nor, to the Knowledge of ▇▇▇▇▇▇▇▇ Ltd., is there any reasonable basis for) any
objections or claim being asserted by any person with respect to any
infringement of any third party's intellectual property rights or the ownership,
validity, enforceability or use of any such patents, trademarks, trade names,
copyrights and applications therefor or challenging or questioning the validity
or effectiveness of any such license which would have a Material Adverse Effect.
(i) Contracts. Except as described in Schedule 4.1(i) or the
other Schedules hereto and except for any agreement entered into by ▇▇▇▇▇▇▇▇
Ltd. or any of its Subsidiaries after the date of this Agreement in accordance
with Section 5.1 hereof, neither ▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries is a
party to or bound by any:
(i) employment or consulting agreements (excluding any such
contracts or arrangements for which the total compensation during each of the
last two years was less than $150,000 per person or which are terminable by
▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries at will, subject to ▇▇▇▇▇▇▇▇ Ltd.'s or
any of its Subsidiaries' customary notice and severance policies or any
severance or "change of control" agreements);
(ii) employee collective bargaining agreement or other
contract with any labor union;
(iii) lease or similar agreement under which ▇▇▇▇▇▇▇▇ Ltd.
or any of its Subsidiaries is lessee of, or holds or uses, any real property,
machinery, equipment, vehicle or other tangible personal property owned by a
third party at an annual rent in excess of $100,000;
(iv) contract that involves the obligation of ▇▇▇▇▇▇▇▇ Ltd.
or any of its Subsidiaries to purchase materials, supplies, equipment or
services from others for payment of more than $250,000 and which is not
terminable by ▇▇▇▇▇▇▇▇ Ltd. any of its Subsidiaries (x) on not more than 90
days' notice without penalty or premium or (y) for a cost of less than $50,000;
(v) contract (excluding purchase orders in the ordinary
course of business) that involves the obligation of ▇▇▇▇▇▇▇▇ Ltd. or any of its
Subsidiaries to deliver products or services to third parties for annual payment
of more than $500,000 and which is not terminable by ▇▇▇▇▇▇▇▇ Ltd. or any of its
Subsidiaries (x) on not more than 90 days' notice without penalty or premium or
(y) for a cost of less than $50,000;
(vi) any contract pursuant to which ▇▇▇▇▇▇▇▇ Ltd. or any of
its Subsidiaries has since January 14, 1998, acquired or agreed to acquire an
equity interest in or all or substantially all of the assets or business of any
other entity or person;
(vii) agreement or contract under which ▇▇▇▇▇▇▇▇ Ltd. or any
of its Subsidiaries has borrowed or loaned any money or issued any note, bond,
indenture or other evidence of indebtedness or guaranteed indebtedness,
liabilities or obligations of others, in each case for an amount in excess of
$100,000 (other than (A) endorsements for the purpose of collection in the
ordinary course of business, and (B) loans to non-executive employees of
▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries in the ordinary course of business);
22
(viii) mortgage, pledge, security agreement, deed of trust
or other document, in each case granting a Lien (including Liens upon properties
acquired under conditional sales, capital leases or other title retention or
security devices) securing obligations in excess of $100,000;
(ix) agreement restricting the right of ▇▇▇▇▇▇▇▇ Ltd. or any
of its Subsidiaries to compete in any material respect with any other person or
entity;
(x) agreement between ▇▇▇▇▇▇▇▇ Ltd. or any of its
Subsidiaries and any Stockholder or Affiliate of any Stockholder;
(xi) agreement, contract, arrangement, or plan that has
resulted or would result, separately or in the aggregate, in the payment of any
"excess parachute payment" within the meaning of Code (S) 280G (or any
corresponding provision of state, local, or foreign Tax law); and
(xii) any partnership or joint venture agreement.
To the Knowledge of ▇▇▇▇▇▇▇▇ Ltd., each agreement, contract, lease,
license, commitment or instrument of ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries
described on Schedule 4.1(i) or the other Schedules hereto (collectively, the
"Contracts") is in full force and effect, except as disclosed on Schedule 4.1(i)
or the other Schedules hereto. To the Knowledge of ▇▇▇▇▇▇▇▇ Ltd., neither
▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries is (with or without the lapse of time
or the giving of notice, or both) in breach or default in any material respect
under any Contract and no other party to any of the Contracts is (with or
without the lapse of time or the giving of notice, or both) in breach or default
in any material respect thereunder.
(j) Litigation; Decrees. Schedule 4.1(j) sets forth a list of all
lawsuits, claims, proceedings or investigations pending or, to the Knowledge of
▇▇▇▇▇▇▇▇ Ltd., threatened against ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries'
properties, assets, operations or business or which challenge the legality of
this Agreement or any action to be taken in connection herewith, except for any
lawsuit, claim, proceeding or investigation which claims an amount of $50,000 or
less. Schedule 4.1(j) sets forth a list of all material judgments, orders and
decrees of any court or any governmental or administrative agency against or
affecting ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries' properties, assets,
operations or business. Except as disclosed on Schedule 4.1(j), to the Knowledge
of ▇▇▇▇▇▇▇▇ Ltd., neither ▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries is in
default under any such judgment, order or decree.
(k) Insurance. Set forth on Schedule 4.1(k) hereto is a list of
all policies of insurance held by, or maintained on behalf of ▇▇▇▇▇▇▇▇ Ltd. and
its Subsidiaries as of the date hereof in effect for policy periods beginning on
or after January 1, 2002, indicating for each policy the carrier, the insured,
the type of insurance, the amounts of coverage and the expiration date. Except
as set forth on Schedule 4.1(k), all such policies are in full force and effect
and neither ▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries has received any written
notice of cancellation, material amendment or material dispute as to coverage
with respect to any such policies.
23
(l) Benefit Plans.
(i) Schedule 4.1(l) sets forth a list of all material
"employee benefit plans" (as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")), bonus, incentive, deferred
compensation, stock or stock option plans or arrangements, and other material
employee fringe benefit plans or arrangements, but excluding in each instance
any "multiemployer plan" as defined in Section 3(37) of ERISA (all the foregoing
being herein called the "Benefit Plans") maintained, or contributed to, by
▇▇▇▇▇▇▇▇ Ltd. Set forth on Schedule 4.1(l) is a list of all "multiemployer
plans" as defined in Section 3(37) of ERISA contributed to or required to be
contributed to by ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries.
(ii) As applicable with respect to each Benefit Plan,
▇▇▇▇▇▇▇▇ Ltd. has made available to each of the Company, CIVC and the ▇▇▇▇▇▇▇▇
Representatives copies of (i) each current Benefit Plan document, including any
amendments, (ii) all trust documents and custodial agreements relating thereto,
(iii) the current summary plan description and each summary of material
modifications thereto, (iv) the most recent annual report (Form 5500 and all
schedules thereto) filed with the IRS and (v) the most recent IRS determination
letter.
(iii) Except as otherwise disclosed on Schedule 4.1(l):
(A) Each Benefit Plan has been maintained, operated and
administered in compliance in all material respects with its terms and any
related documents or agreements and the applicable provisions of ERISA and the
Code.
(B) No Benefit Plan is subject to Title IV of ERISA.
(C) The Benefit Plans which are "employee pension
benefit plans" within the meaning of Section 3(2) of ERISA and which are
intended to meet the qualification requirements of Section 401(a) of the Code
(each a "Pension Plan") have received determination letters from the IRS to the
effect that such Pension Plans are qualified and the related trusts are exempt
from federal income taxes and no determination letter with respect to any
Pension Plan has been revoked. All such Pension Plans have been or will be
timely amended for the tax legislation commonly known as "GUST" and each such
Pension Plan has been or will be submitted to the IRS for a favorable
determination letter within the remedial amendment period prescribed under GUST.
All required contributions have been made to the Pension Plans in accordance
with applicable law. All discretionary contributions with respect to the
Pensions Plans that ▇▇▇▇▇▇▇▇ Ltd. or any Subsidiary has announced to its
employees would be made have been so made.
(D) Each Benefit Plan that is a "group health plan"
within the meaning of ERISA Section 607(1) and that is subject to Code Section
4980B has been operated in compliance in all material respects with the
continuation coverage requirements of those provisions and Part 6 of Title I of
ERISA.
(E) No Benefit Plan provides death or medical benefits,
beyond termination of service or retirement other than (i) coverage mandated by
law, or (ii) death or retirement benefits under a Benefit Plan qualified under
Code Section 401(a).
24
(F) Neither ▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries
has incurred any material liability relating to a complete or partial withdrawal
from a multiemployer plan that has not been fully satisfied.
(m) Absence of Changes or Events. Except as set forth in Schedule
4.1(m) or any other schedule to this Agreement, since the Balance Sheet Date the
business of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries has been conducted in the
ordinary course consistent with past practice and there has not occurred any
event or condition (other than changes relating to the economy in general or
industry conditions), which, individually or in the aggregate, have or had a
Material Adverse Effect.
(n) Compliance with Applicable Laws. Except as set forth in
Schedule 4.1(n), to the Knowledge of ▇▇▇▇▇▇▇▇ Ltd., ▇▇▇▇▇▇▇▇ Ltd. and its
Subsidiaries, their respective business operations and activities, and their
respective properties and assets are in all material respects in compliance with
all applicable material statutes, laws, ordinances, rules and regulations of any
governmental authority or instrumentality. To the Knowledge of ▇▇▇▇▇▇▇▇ Ltd.,
except as set forth on Schedule 4.1(n), since January 1, 1999, neither ▇▇▇▇▇▇▇▇
Ltd. nor any of its Subsidiaries has received written communication from any
governmental entity that alleges that ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries
is in violation of any applicable law, rule or regulation, the substance of
which communication has not been resolved.
(o) Licenses; Permits. To the Knowledge of ▇▇▇▇▇▇▇▇ Ltd., all
material governmental licenses, permits or authorizations of ▇▇▇▇▇▇▇▇ Ltd. and
its Subsidiaries are validly held by ▇▇▇▇▇▇▇▇ Ltd. or such Subsidiary, and
▇▇▇▇▇▇▇▇ Ltd. and each of its Subsidiaries has complied in all material respects
with all requirements in connection therewith and the same will not be subject
to suspension, modification or revocation as a result of this Agreement or the
consummation of the transactions contemplated hereby, except as set forth on
Schedule 4.1(o). To the Knowledge of ▇▇▇▇▇▇▇▇ Ltd., ▇▇▇▇▇▇▇▇ Ltd. and each of
its Subsidiaries has all of the material governmental licenses, permits or
authorizations which are required to carry on the business of ▇▇▇▇▇▇▇▇ Ltd. or
such Subsidiary as such business is now conducted.
(p) Environmental Matters. Except as set forth on Schedule 4.1(p)
hereto, to the Knowledge of ▇▇▇▇▇▇▇▇ Ltd.:
(i) ▇▇▇▇▇▇▇▇ Ltd. and each of its Subsidiaries has all
material permits, licenses, and other authorizations required for the operation
or conduct of the business of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries under
applicable Environmental Laws. ▇▇▇▇▇▇▇▇ Ltd. and each of its Subsidiaries is in
compliance in all material respects with all terms and conditions of such
authorizations, and with all applicable material Environmental Laws.
(ii) During the past three (3) years, neither ▇▇▇▇▇▇▇▇ Ltd.
nor any of its Subsidiaries has received written communication from any
governmental entity that alleges that ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries
is in material violation of any Environmental Law the substance of which
communication has not been resolved.
(iii) Neither ▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries has
received a written request for information, notice of claim, demand, or
notification that it is, or
25
may be, potentially responsible with respect to any material investigation or
material cleanup of any threatened or actual release of any Hazardous Substance.
(iv) There are no underground storage tanks used by ▇▇▇▇▇▇▇▇
Ltd. or any of its Subsidiaries at any of their real properties. None of
▇▇▇▇▇▇▇▇ Ltd., its Subsidiaries or any of their respective contractors has
discharged any Hazardous Substances in material violation of any Environmental
Law for which ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries is liable or in a manner
which gives rise to any material liability of ▇▇▇▇▇▇▇▇ Ltd. or any of its
Subsidiaries.
(v) Schedule 4.1(p) lists all above ground storage tanks
used by ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries at any of their real
properties.
(q) Employee and Labor Relations. Except as set forth in Schedule
4.1(q) hereto:
(i) there is no labor strike, or organized labor dispute,
slowdown or work stoppage or lockout actually pending or, to the Knowledge of
▇▇▇▇▇▇▇▇ Ltd., threatened against or affecting ▇▇▇▇▇▇▇▇ Ltd. or any of its
Subsidiaries which would have a Material Adverse Effect and during the past year
there has not been any such action; and
(ii) there is no unfair labor practice charge or complaint
against ▇▇▇▇▇▇▇▇ Ltd. or any of its Subsidiaries pending or, to the Knowledge of
▇▇▇▇▇▇▇▇ Ltd., threatened before the National Labor Relations Board which would
have a Material Adverse Effect.
(r) Undisclosed Liabilities. To the Knowledge of ▇▇▇▇▇▇▇▇ Ltd.,
except (i) as disclosed, reflected or reserved against in the Balance Sheet or
the notes thereto, (ii) as incurred after the Balance Sheet Date in the ordinary
course of business consistent with prior practice, (iii) with respect to the
matters disclosed in the Schedules to this Agreement, (iv) liabilities and
obligations incurred in connection with this Agreement and the transactions
contemplated hereby, neither ▇▇▇▇▇▇▇▇ Ltd. nor any of its Subsidiaries has any
material liabilities or obligations of a nature required by GAAP to be reflected
on a balance sheet of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries or in the notes thereto
which would have a Material Adverse Effect.
(s) Disclosure. To the Knowledge of ▇▇▇▇▇▇▇▇ Ltd., no
representation or warranty of the Company contained in this Agreement contains
any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained herein, in light of all the
circumstances under which they were made, not misleading.
(t) Affiliate Transactions. Except as set forth on Schedule
4.1(t), no ▇▇▇▇▇▇▇▇ Investor, and no executive officer, director or Affiliate of
▇▇▇▇▇▇▇▇ Ltd. or its Subsidiaries (other than CIVC and its Affiliates) or any
individual related by blood, marriage or adoption to any such individual or any
entity in which any such Person or individual owns any beneficial interest, is a
party to any agreement, contract, commitment or transaction with the Company or
any Subsidiary (other than at-will employment arrangements) or has any material
interest in any property used by the Company or any Subsidiary.
26
4.2 Stockholders Representations. Each Stockholder, CIVC and each
Co-Investor hereby individually and ratably (and not jointly or severally)
represents and warrants to ▇▇▇▇▇▇▇▇ Ltd. with respect to the Selling Stockholder
Repurchase and the Investor Rollover Repurchase and to the Company with respect
to the Class A Investment and the Investor Rollover, as applicable for such
Stockholder, CIVC or Co-Investor, as to such Stockholder, CIVC or Co-Investor
only, as follows:
(a) Authority. This Agreement has been duly executed and
delivered by such Person and constitutes the legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with its terms. If
such Person is not an individual, such Person has all requisite power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. Neither the execution and delivery by such Person (if not an
individual) of this Agreement nor the consummation of the transactions
contemplated hereby will require any consent, approval or authorization under
such Person's formation and governing documents that has not been duly obtained.
The execution, delivery and performance by such Person of this Agreement and the
consummation by such Person of the transactions contemplated hereby will not (i)
violate any provision of law, rule or regulation to which such Person is subject
or (ii) conflict with or violate any order, judgment, injunction, award or
decree applicable to such Person or, if such Person is not an individual, such
Person's formation and governing documents, except in the case of any of the
foregoing clauses (i) or (ii) for any such violation or conflict which would not
individually or in the aggregate have a Material Adverse Effect or have a
material adverse effect on the ability of the parties hereto to consummate the
transactions contemplated hereby. The execution, delivery and performance by
such Person of this Agreement and the consummation by such Person of the
transactions contemplated hereby does not require any consent from or filing
with any governmental body, agency or official except for (i) any consent or
filing that ▇▇▇▇▇▇▇▇ Ltd., the Company or any other Person (other than such
Stockholder, CIVC or Co-Investor, as the case may be) is required to obtain or
make and (ii) consents and filings which, if not obtained or made, will not
individually or in the aggregate have a Material Adverse Effect or have a
material adverse effect on the ability of the parties hereto to consummate the
transactions contemplated hereby.
(b) Ownership of ▇▇▇▇▇▇▇▇ Shares. Such Stockholder owns of record
and beneficially all of the outstanding ▇▇▇▇▇▇▇▇ Shares set forth opposite such
Stockholder's name on Exhibit A hereto, free and clear of any Liens, and has all
requisite legal right, power and authority to transfer such ▇▇▇▇▇▇▇▇ Shares to
the Company or ▇▇▇▇▇▇▇▇ Ltd., as the case may be. Assuming the Company or
▇▇▇▇▇▇▇▇ Ltd., as the case may be, has the requisite corporate power and
authority to be the lawful owner of the ▇▇▇▇▇▇▇▇ Shares, upon delivery to the
Company or ▇▇▇▇▇▇▇▇ Ltd., as the case may be, at the Closing of certificates
representing the ▇▇▇▇▇▇▇▇ Shares duly endorsed for transfer to the Company or
▇▇▇▇▇▇▇▇ Ltd., as the case may be, and receipt by the Stockholders of the
consideration therefor, the Company or ▇▇▇▇▇▇▇▇ Ltd., as the case may be, will
acquire the ▇▇▇▇▇▇▇▇ Shares free and clear of any Liens, other than those
arising from acts of the Company or ▇▇▇▇▇▇▇▇ Ltd., as the case may be.
4.3 Representations and Warranties of CIVC, the Co-Investors and the
▇▇▇▇▇▇▇▇ Investors. CIVC, each of the Co-Investors and each of the ▇▇▇▇▇▇▇▇
Investors hereby individually and ratably (and not jointly or severally)
represent and warrant to the Company, as to such Person only, as follows:
27
(a) CIVC, each of the Co-Investors and each of the ▇▇▇▇▇▇▇▇
Investors understands that the Class A Common purchased hereunder has not been,
and will not be, registered under the Securities Act or any state securities
laws, and is being offered and sold privately in reliance upon the exemptions
provided by the Securities Act as such relate to the private placement of
securities.
(b) The Class A Common will be acquired by CIVC, each of the
Co-Investors and each of the ▇▇▇▇▇▇▇▇ Investors solely for their own respective
accounts, for investment purposes only, and not with a view to the distribution
thereof in violation of the federal securities laws or any applicable state
securities laws; provided that nothing contained herein shall prevent any
Purchaser and subsequent holders of Restricted Securities from transferring such
securities in compliance with the provisions of Section 6.3 hereof.
(c) CIVC, each of the Co-Investors and each of the ▇▇▇▇▇▇▇▇
Investors is an "accredited investor" as defined in Rule 501(A) under the
Securities Act.
(d) CIVC, each of the Co-Investors and each of the ▇▇▇▇▇▇▇▇
Investors fully understands and agrees that he, she or it must bear the economic
risk of his, her or its purchase for an indefinite period of time because, among
other reasons, the Class A Common has not been registered under the Securities
Act or under the securities laws of certain states and, therefore, cannot be
resold, pledged, assigned or otherwise disposed of unless it is subsequently
registered under the Securities Act and under the applicable securities laws of
such states or unless an exemption from such registration is available.
4.4 Representations and Warranties of the Company. The Company hereby
represents and warrants to ▇▇▇▇▇▇▇▇ Ltd., CIVC, the Co-Investors and the
Stockholders as follows:
(a) Authority. The Company is a corporation duly organized and
validly existing under the laws of the State of Delaware. The Company has all
requisite corporate power and corporate authority to enter into this Agreement
and to consummate the transactions contemplated hereby. All corporate acts and
other proceedings required to be taken by the Company to authorize the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly and properly taken. This
Agreement has been duly executed and delivered by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms. The execution, delivery and performance by
the Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby will not (i) violate in any material respect
any provision of a material law, rule or regulation to which the Company is
subject, (ii) conflict or violate in any material respect any order, judgment,
injunction, award or decree applicable to the Company, (iii) violate or conflict
with the Certificate of Incorporation, Bylaws or other similar governing
documents of the Company, (iv) constitute a material default under or give rise
to a right of termination, cancellation or acceleration of any right or
obligation of the Company under any provision of any material agreement,
contract or other instrument binding upon the Company or any license, franchise,
permit or other similar authorization held by the Company, or (v) result in the
creation or imposition of any Lien upon any of the assets of the Company. The
execution, delivery and performance by the Company of this Agreement and the
consummation by the Company of the transactions contemplated hereby does not
require any
28
consent from or filing with any governmental body, agency or official except for
(i) any consent or filing that CIVC, the Co-Investors or the Stockholders are
required to obtain or make, (ii) reports and filings to be made after Closing
which will be made in the time frame required and (iii) consents and filings
which, if not obtained or made, will not individually or in the aggregate have a
Material Adverse Effect or have a material adverse effect on the ability of the
parties hereto to consummate the transactions contemplated hereby.
(b) Securities Act. The ▇▇▇▇▇▇▇▇ Shares purchased by the Company
pursuant to this Agreement are being acquired for investment only and not with a
view to any public distribution thereof, and the Company shall not offer to sell
or otherwise dispose of the ▇▇▇▇▇▇▇▇ Shares so acquired by it in violation of
any of the registration requirements of the Securities Act.
(c) Litigation; Decrees. There are no lawsuits, claims,
proceedings, investigations, injunctions, judgments, orders or decrees pending
or, to the Knowledge of the Company, threatened which challenge or seek to
enjoin or delay this Agreement or the transactions contemplated hereby or which
would materially adversely affect the Company's ability to perform its
obligations under this Agreement or to consummate the transactions contemplated
hereby.
4.5 Other Representations and Warranties of the Company. The Company
hereby represents and warrants to CIVC, the Co-Investors and the Rollover
Investors as follows:
As of the Closing and immediately thereafter, the authorized capital
stock of the Company shall consist of (a) 300,000 shares of Class A Voting
Common, of which 134,069.318 shares will be issued and outstanding, (b) 200,000
shares of Class A Non-Voting Common, of which no shares will be issued and
outstanding, (c) 31,000 shares of Class A-1 Voting Common, of which 30,930.682
shares will be issued and outstanding, (d) 50,000 shares of Class L Common, of
which 30,000 shares will be issued and outstanding and (e) 100,000 shares of
Redeemable Common, of which no shares will be issued and outstanding. As of the
Closing, all of the outstanding shares of the Company's capital stock shall be
validly issued, fully paid and nonassessable. Except as disclosed on Schedule
4.5, there are no voting agreements and no outstanding warrants, options,
preemptive or other similar rights, agreements, subscriptions, convertible or
exchangeable securities or other commitments pursuant to which the Company is or
may become obligated to issue, sell, purchase, return or redeem any shares of
capital stock or other securities of the Company or any of its Subsidiaries and
no equity securities of the Company or any of its Subsidiaries are reserved for
issuance for any purpose.
ARTICLE V
COVENANTS
5.1 Pre-Closing Covenants of ▇▇▇▇▇▇▇▇ Ltd. ▇▇▇▇▇▇▇▇ Ltd. covenants and
agrees as follows:
(a) Access. Prior to the Closing, ▇▇▇▇▇▇▇▇ Ltd. will give CIVC
and the ▇▇▇▇▇▇▇▇ Representatives and their respective representatives,
employees, counsel, lenders, shareholders and accountants reasonable access to
the properties, books and records of ▇▇▇▇▇▇▇▇ Ltd. during regular business
hours.
29
(b) Ordinary Conduct. From and after the date hereof and prior to
Closing, and unless the Company and CIVC shall otherwise consent or agree in
writing and except as contemplated by this Agreement or as disclosed on Schedule
5.1 hereto, ▇▇▇▇▇▇▇▇ Ltd.:
(i) will conduct its business in the ordinary course in a
manner consistent with past practice (it being understood that with respect to
working capital management this means it will not seek to collect its accounts
receivable later than within normal terms and will pay its accounts payable
within normal terms);
(ii) will use its reasonable best efforts to preserve its
business organization intact, to maintain the services of its present key
employees and to preserve the goodwill of the suppliers, customers and others
having business dealings with it;
(iii) will not amend its Certificate of Incorporation,
bylaws or other similar governing documents;
(iv) will not issue any capital stock or rights, warrants or
options to acquire shares of such capital stock or issue any securities
convertible into such shares or convertible into securities in turn so
convertible, or grant any options, warrants or rights to acquire any such
convertible securities;
(v) will not split, combine or reclassify its outstanding
capital stock;
(vi) will not declare or pay any dividend or other
distribution in respect of any class of its capital stock, or make any cash
payment to redeem, purchase or otherwise acquire, or call for redemption, any of
such stock;
(vii) will not merge or consolidate with any other
corporation or, except in the ordinary course of business, acquire any business,
property or assets of any other person, firm, association, corporation or other
business organization;
(viii) will not adopt or amend in any material respect any
▇▇▇▇▇▇▇▇ Ltd. Benefit Plan or increase the compensation of any of its salaried
employees except in the ordinary course of business;
(ix) will not enter into any agreement with any Stockholder
or any affiliate thereof;
(x) will not sell, lease or dispose of any of its assets
except in the ordinary course of business; and
(xi) will not agree to do any of the foregoing.
(c) Repayment of Certain Indebtedness. At or prior to the
Closing, ▇▇▇▇▇▇▇▇ Ltd. will repay in full any then outstanding indebtedness for
borrowed money owed to any other person or entity, except as set forth on
Schedule 5.1. At or prior to the Closing, each
30
Stockholder will repay in full any then outstanding indebtedness for borrowed
money owed by such Stockholder to ▇▇▇▇▇▇▇▇ Ltd.
(d) Management Class B Exchange and Sale. At or prior to the
Closing, ▇▇▇▇▇▇▇▇ Ltd. will repurchase any shares of ▇▇▇▇▇▇▇▇ Class B Common
which the Management Class B Holders elect to sell to ▇▇▇▇▇▇▇▇ Ltd. for cash
pursuant to the Management Class B Exchange and Sale.
5.2 Pre-Closing Covenants of the Company. The Company hereby covenants
and agrees as follows:
(a) Acce Prior to the Closing, the Company will give CIVC and
the ▇▇▇▇▇▇▇▇ Representatives and their respective representatives, employees,
counsel, lenders, shareholders and accountants reasonable access to the
properties, books and records of the Company during regular business hours.
(b) Ordinary Conduct. From and after the date hereof and prior to
Closing, and unless CIVC and the ▇▇▇▇▇▇▇▇ Representatives shall otherwise
consent or agree in writing and except as contemplated by this Agreement or as
disclosed on Schedule 5.1 hereto, the Company:
(i) will not conduct any business other than as necessary to
effect the transactions contemplated by this Agreement;
(ii) will not amend its Certificate of Incorporation, bylaws
or other similar governing documents;
(iii) will not issue any capital stock or rights, warrants
or options to acquire shares of such capital stock or issue any securities
convertible into such shares or convertible into securities in turn so
convertible, or grant any options, warrants or rights to acquire any such
convertible securities;
(iv) will not split, combine or reclassify its outstanding
capital stock;
(v) will not declare or pay any dividend or other
distribution in respect of any class of its capital stock, or make any cash
payment to redeem, purchase or otherwise acquire, or call for redemption, any of
such stock;
(vi) will not merge or consolidate with any other
corporation or, except in the ordinary course of business, acquire any business,
property or assets of any other person, firm, association, corporation or other
business organization;
(vii) will not enter into any agreement with any Stockholder
or any affiliate thereof;
(viii) will not sell, lease or dispose of any of its assets
except in the ordinary course of business; and
31
(ix) will not agree to do any of the foregoing.
5.3 Mutual Covenants. Each of the parties hereto covenants and agrees
as follows:
(a) Management Class B Exchange and Sale. The Company and
▇▇▇▇▇▇▇▇ Ltd. hereby agree to grant the Management Class B Holders the right to
(i) sell all of their ▇▇▇▇▇▇▇▇ Class B Common to ▇▇▇▇▇▇▇▇ Ltd. for cash, (ii)
contribute all of their ▇▇▇▇▇▇▇▇ Class B Common to the Company in exchange for
Class A Common and eligibility for a future grant of options to acquire Class A
Common or (iii) contribute 75% of their ▇▇▇▇▇▇▇▇ Class B Common to the Company
in exchange for Class A Common and sell the balance of such shares to ▇▇▇▇▇▇▇▇
Ltd. for cash, in each case pursuant to a written Management Equity Incentive
Agreement and the 2002 Management Equity Incentive Plan in the form attached
hereto as Exhibit G (collectively, the "Management Holder Agreements"). The
transactions described in this Section 5.3(a) are collectively referred to
herein as the "Management Class B Exchange and Sale."
(b) Publicity. Prior to the Closing, the parties hereto agree
that no public release or announcement concerning the transactions contemplated
hereby shall be issued by any of them without the prior consent (which consent
shall not be unreasonably withheld) of each of the Company, ▇▇▇▇▇▇▇▇ Ltd., CIVC
and the ▇▇▇▇▇▇▇▇ Representatives, except as such release or announcement may be
required by law or the rules or regulations of any United States or foreign
securities exchange, in which case the party required to make the release or
announcement shall allow the other party reasonable time to comment on such
release or announcement in advance of such issuance.
(c) Best Efforts. Subject to the terms and conditions of this
Agreement, each of the Company, ▇▇▇▇▇▇▇▇ Ltd., each Stockholder, CIVC and each
Co-Investor will use their reasonable best efforts to cause each of the
conditions to the Closing that are within their reasonable control to be
satisfied and the Closing to occur as promptly as reasonably possible.
(d) Class L Purchase Agreement. Each of the Company, CIVC and
each of the Co-Investors agrees that, at or prior to the Closing, it shall
execute the Class L Purchase Agreement referred to in Section 3.2(g) and such
Class L Purchase Agreement shall not have been amended or modified and shall be
in full force and effect as of the Closing.
5.4 Post-Closing Covenants.
(a) Financial Statements and Other Information. The Company shall
deliver to each holdter (if such holder is a party to the Stockholders
Agreement) of Class A Common and/or Senior Common, so long as such holder (along
with its Affiliates) then holds Class A Common and/or Senior Common with an
aggregate original cost of at least $5,000,000 as of the Closing (based on the
purchase prices for such securities in this Agreement and the Class L Purchase
Agreement):
(i) as soon as available but in any event within 30 days
after the end of each monthly accounting period in each fiscal year, unaudited
consolidated statements
32
of income and cash flows of ▇▇▇▇▇▇▇▇ Ltd. and its Subsidiaries (or, upon a
Company Financials Trigger Event, the Company and its Subsidiaries) for such
monthly period and for the period from the beginning of the fiscal year to the
end of such month, and unaudited consolidated balance sheets of ▇▇▇▇▇▇▇▇ Ltd.
and its Subsidiaries (or, upon a Company Financials Trigger Event, the Company
and its Subsidiaries) as of the end of such monthly period, setting forth in
each case comparisons to ▇▇▇▇▇▇▇▇ Ltd.'s (or, upon a Company Financials Trigger
Event, the Company's) annual budget and to the corresponding period in the
preceding fiscal year, and all such statements shall be prepared in accordance
with GAAP, consistently applied except as otherwise noted therein, and shall be
certified by the ▇▇▇▇▇▇▇▇ Ltd.'s chief financial officer and shall be
accompanied by a certificate signed by an authorized officer of the Company
stating that neither the Company nor any of its Subsidiaries is in default under
any of its other agreements which default has had or would reasonably be
expected to have a Material Adverse Effect or, if any such default exists,
specifying the nature and period of existence thereof and what actions the
Company and its Subsidiaries have taken and propose to take with respect
thereto;
(ii) within 105 days after the end of each fiscal year,
consolidated statements of income and cash flows of ▇▇▇▇▇▇▇▇ Ltd. and its
Subsidiaries (or, upon a Company Financials Trigger Event, the Company and its
Subsidiaries) for such fiscal year, and consolidated balance sheets of ▇▇▇▇▇▇▇▇
Ltd. and its Subsidiaries (or, upon a Company Financials Trigger Event, the
Company and its Subsidiaries) as of the end of such fiscal year, setting forth
in each case comparisons to ▇▇▇▇▇▇▇▇ Ltd.'s (or, upon a Company Financials
Trigger Event, the Company's) annual budget and to the preceding fiscal year,
all prepared in accordance with GAAP, consistently applied except as otherwise
noted therein, and accompanied by (a) an audit report of an independent
accounting firm of recognized national standing reasonably acceptable to CIVC
(so long as the CIVC Group holds at least 60% of the Class A Common and
Underlying Common, collectively, held by it as of the date hereof) or its
Designated Class A Transferee and (b) a copy of such firm's annual management
letter to the Company's or ▇▇▇▇▇▇▇▇ Ltd.'s Board of Directors;
(iii) promptly upon receipt thereof, any additional reports,
management letters or other similar detailed written information concerning
significant aspects of the Company's or any of its Subsidiaries' operations or
financial affairs given to the Company or ▇▇▇▇▇▇▇▇ Ltd. by its independent
accountants (and not otherwise contained in other materials provided hereunder);
(iv) not later than 30 days prior to the beginning of each
fiscal year, an annual budget prepared on a monthly basis for ▇▇▇▇▇▇▇▇ Ltd. and
its Subsidiaries (or, upon a Company Financials Trigger Event, the Company and
its Subsidiaries) for such fiscal year (displaying anticipated statements of
income and cash flows and balance sheets), and promptly upon preparation thereof
any other significant budgets prepared by ▇▇▇▇▇▇▇▇ Ltd. (or, upon a Company
Financials Trigger Event, the Company) and any revisions of such annual or other
budgets;
(v) within ten days after transmission thereof, copies of
all financial statements, proxy statements, reports and any other general
written communications which the Company sends to its stockholders and copies of
all registration statements and all regular, special or periodic reports which
it files with the Securities and Exchange Commission or with any securities
exchange on which any of its securities are then listed, and copies of all
33
press releases and other statements made available generally by the Company to
the public concerning material developments in the Company's and its
Subsidiaries' businesses;
(vi) promptly (but in any event within five business days)
after the discovery or receipt of notice of any Event of Noncompliance (as
defined in the Company's Certificate of Incorporation) or any default under any
agreement to which the Company or any of its Subsidiaries is a party, which
default has had or would reasonably be expected to have a Material Adverse
Effect; and
(vii) with reasonable promptness, such other information and
financial data concerning the Company and its Subsidiaries as CIVC may
reasonably request, provided that the Company shall not be required to provide
such other information and financial data to any party (including members of the
CIVC Group) other than CIVC.
Any time that ▇▇▇▇▇▇▇▇ Ltd. (or, upon a Company Financials Trigger Event, the
Company and its Subsidiaries) has a material Subsidiary (other than ▇▇▇▇▇▇▇▇
Ltd., Brookwood Landscape, Inc., ▇▇▇▇▇▇▇▇ Sub, Inc. or any Subsidiary that has
been acquired within the 12 months before the date of the financial statements),
the Company shall provide a corresponding consolidating financial statement in
addition to each of the consolidated statements referred to in subparagraphs (i)
and (ii). Each of the financial statements referred to in subparagraphs (i) and
(ii) and, when applicable, the preceding sentence shall present fairly in all
material respects the consolidated financial position of the Company (or
▇▇▇▇▇▇▇▇ Ltd., as applicable) and its Subsidiaries as of the dates stated
therein and the consolidated results of operations and cash flows of the Company
(or ▇▇▇▇▇▇▇▇ Ltd., as applicable) and its Subsidiaries for the periods stated
therein (except as otherwise noted therein), in conformity with GAAP, subject in
the case of the unaudited financial statements to changes resulting from normal
year-end adjustments (none of which would, alone or in the aggregate, be
materially adverse to the financial condition, value, operating results, assets
or operations of the Company and its Subsidiaries taken as a whole) and the
absence of footnote disclosures.
Notwithstanding the foregoing, the provisions of this Section 5.4(a) shall cease
to be effective upon the consummation of a Qualified Public Offering, provided
that the Company shall continue to deliver to each member of the CIVC Group, so
long as such Person meets the requirements set forth in the first sentence of
this Section 5.4(a), the information specified in Sections 5.4(a)(i) and
5.4(a)(iv) hereof.
Except as otherwise required by law or judicial order or decree or by any
governmental agency or authority or by the National Association of Insurance
Commissioners or any nationally recognized rating agency that requires access to
information about such Person's investment portfolio, each Person entitled to
receive information regarding the Company and its Subsidiaries under this
Section 5.4(a) shall use its best efforts to maintain the confidentiality of all
nonpublic information obtained by it hereunder which the Company has reasonably
designated as proprietary or confidential in nature; provided that each such
Person may disclose such information in connection with the sale or transfer of
any Common Stock if such Person's transferee agrees in writing to be bound by
the provisions hereof, to such Person's officers, directors, employees,
attorneys and affiliates, to such Person's financial or other professional
advisors who agree in writing to be bound by the provisions hereof, and as may
be necessary or appropriate to comply with any subpoena or other legal process
or to enforce or protect such
34
Person's rights or remedies in connection with the securities acquired pursuant
hereto; and provided further that each Person entitled to receive information
regarding the Company and its Subsidiaries under this Section 5.4(a) that is
engaged in the business of making private equity investments may disclose the
Company's revenue and cash flow results, estimates of the enterprise value of
the Company and the internal rate of return on such Person's investment in the
Company in communications with its funding sources, potential funding sources or
as may be reasonably necessary to raise capital for future funds.
Notwithstanding the first sentence of this Section 5.4(a), Antares Capital
Corporation shall be entitled to all rights set forth in this Section 5.4(a)
(regardless of its ownership of Class A Common and/or Senior Common so long as
it holds any Class A Common) at any time that Antares Capital Corporation or any
of its Affiliates is not entitled to receive financial statements and similar
information from ▇▇▇▇▇▇▇▇ Ltd. pursuant to the Senior Credit Agreement or any
other agreement with the Company or any of its Subsidiaries.
(b) CIVC Approval Rights. For so long as either (x) the CIVC
Group collectively owns not less than 60% of the Company's Class A Common and
Underlying Common, collectively, held by the CIVC Group as of the date hereof or
(y) there has been a Valid Assignment of the approval rights under this Section
5.4 (the conditions set forth in clauses (x) and (y) preceding, the "Approval
Right Conditions"), the Company and its Subsidiaries shall not take any of the
following actions or permit any of the following events to occur without, in
addition to any vote of the Company's Board of Directors and/or the Company's
stockholders required under the Company's Certificate of Incorporation, Bylaws
and applicable law, the approval of CIVC (or, if the CIVC Group no longer holds
at least 60% of the Company's Class A Common and Underlying Common,
collectively, held by the CIVC Group as of the date hereof and there has been a
Valid Assignment, then the Designated Class A Transferee):
(i) any acquisition by the Company or its Subsidiaries of
stock or other equity securities (whether by merger, consolidation, purchase of
stock or other equity securities or otherwise) or of the assets (outside the
ordinary course of business) of any other entity or the entering into of any
joint venture, except (a) any such acquisition where the aggregate consideration
for such stock or assets (including, without limitation, the assumption of
liabilities, whether direct or indirect) is less than $5,000,000 in any single
transaction or series of related transactions and less than $15,000,000 in the
aggregate in any fiscal year or (b) any such merger or consolidation that
constitutes a Permitted Sale of the Company;
(ii) any disposition (by sale, lease or otherwise) of assets
of the Company or its Subsidiaries outside the ordinary course of business,
except (a) any such disposition where the aggregate consideration for such
assets (including, without limitation, the assumption of liabilities, whether
direct or indirect) is less than $1,000,000 in any single transaction or series
of related transactions and less than $5,000,000 in the aggregate in any fiscal
year, (b) any such disposition that constitutes a Permitted Sale of the Company,
(c) any such disposition undertaken by the Company or any Subsidiary in
connection with the closing of a transaction that satisfies the Company's
obligations under Section 5.4(c) hereof or Section 3G of the Class L Purchase
Agreement or Section 4 or 5 of the Family Stockholders Agreement, (d) any pledge
or granting of a lien or security interest that is a Permitted Lien on such
assets in connection with the incurrence of Indebtedness, or any foreclosure on
or transfer of such assets
35
in connection with such pledge, lien or security interest, (e) any sale or other
disposition of damaged, worn out or obsolete equipment for fair value or (f) any
other pledge or granting of a Permitted Lien;
(iii) any creation or incurrence of any Indebtedness, or
permitting any Subsidiary to create or incur any Indebtedness, other than
Indebtedness (a) if, after such incurrence, (x) on or prior to the second
anniversary of the date hereof, the Company's Leverage Ratio (as defined in the
Senior Credit Agreement as of the date hereof) shall not be more than 4.75 to
1.0, or (y) after the second anniversary of the date hereof, the Company's
Consolidated Leverage Ratio shall not be more than 4.0 to 1.0, (b) for borrowed
money that is undertaken by the Company or its Subsidiaries in connection with
the closing of a transaction that satisfies the Company's obligations under
Section 5.4(c) hereof or Section 3G of the Class L Purchase Agreement or Section
4 or 5 of the Family Stockholders Agreement, (c) that is undertaken to refinance
indebtedness existing at the time of such refinancing so long as the express
terms of such refinancing indebtedness do not impose restrictions on the
Company's right or ability to perform its obligations under Section 5.4(c)(i)
hereof that are more restrictive on the Company's right or ability to perform
its obligations under Section 5.4(c)(i) than those contained in the indebtedness
existing at the time of such refinancing (except any such indebtedness may be
incurred by the Company or its Subsidiaries without any approval of CIVC or the
Designated Class A Transferee if such indebtedness may be refinanced or prepaid
(so long as any prepayment penalty or premium is not commercially unreasonable)
at any time prior to April 1, 2008) or (d) incurred under the Senior Credit
Agreement or the Indenture, each as in effect on the date hereof;
(iv) any amendment, modification or waiver of any provision
of the Senior Credit Agreement or the Indenture if the express terms of such
amendment, modification or waiver impose restrictions on the Company's right or
ability to perform its obligations under Section 5.4(c)(i) hereof that are more
restrictive on the Company's right or ability to perform its obligations under
Section 5.4(c)(i) than those contained in the Senior Credit Agreement or
Indenture as in effect immediately prior to any such amendment, modification or
waiver (except that such amendment, modification or waiver that is more
restrictive may be effected by the Company or its Subsidiaries without any
approval of CIVC or the Designated Class A Transferee under this Section 5.4
(iv) if, after such amendment, modification or waiver, the indebtedness due
under the Senior Credit Agreement or the Indenture (as so amended, modified or
waived) may be prepaid or refinanced by the Company or its Subsidiaries (so long
as any prepayment penalty or premium is not commercially unreasonable) at any
time prior to April 1, 2008);
(v) any increase in the number of shares for which options
or other forms of equity incentives may be granted to officers, directors or
employees of the Company and its Subsidiaries beyond 13,156.096/1/ (as such
number is appropriately adjusted for subsequent stock splits, stock
combinations, stock dividends, recapitalizations and the like with
----------
/1/ will be 7% of the Company's fully-diluted Class A Common (including
Underlying Common) as of Closing
36
respect to the common stock) or any issuance thereof to officers, directors or
employees for less than Fair Market Value;
(vi) any authorization, issuance or entering into an
agreement providing for the issuance (contingent or otherwise, but not including
any such authorization, issuance or agreement to issue securities entered into
as of the date hereof and disclosed in this Agreement (including the Schedules))
(a) of any notes or debt securities containing equity features (including,
without limitation, any notes or debt securities convertible into or
exchangeable for capital stock or other equity securities, issued in connection
with the issuance of capital stock or other equity securities or containing
profit participation features) or (b) effected in connection with the incurrence
of Indebtedness of any capital stock or other equity securities (or securities
convertible into or exchangeable for any capital stock or other equity
securities) or options, warrants or rights to purchase stock or securities for
consideration less than the Fair Market Value thereof, except in each of cases
(a) and (b) in an amount not exceeding an aggregate of 1% of the shares of the
Company's Class A Common on a fully diluted basis in the aggregate at any time
(as such number is appropriately adjusted for subsequent stock splits, stock
combinations, stock dividends, recapitalization and the like with respect to the
common stock) in all such issuances of securities referred to in either case (a)
or (b);
(vii) any issuance of loans or advances to, guarantees for
the benefit of, or Investments in, any Person (other than a wholly-owned
Subsidiary of the Company, whether direct or indirect), except for (a) loans or
advances to employees, including relocation loans, in the ordinary course of
business, (b) acquisitions permitted pursuant to Section 5.4(a)(i) above and (c)
Investments having a stated maturity no greater than one year from the date the
Company makes such Investment in (1) obligations of the United States government
or any agency thereof or obligations guaranteed by the United States government,
(2) certificates of deposit of commercial banks having combined capital and
surplus of at least $50,000,000 or (3) commercial paper with a rating of at
least "Prime-1" by ▇▇▇▇▇'▇ Investors Service, Inc. and (d) other Investments
approved by, or made pursuant to guidelines approved by, the Company's Board of
Directors of up to $1,000,000 outstanding at any time;
(viii) any action by which the Company enters into, amends,
modifies, supplements, or permits any Subsidiary to enter into, amend, modify or
supplement, any agreement, transaction, commitment or arrangement with any of
its or any Subsidiary's executive officers, directors or Affiliates (other than
any member of the CIVC Group) or any of the ▇▇▇▇▇▇▇▇ Investors or with any
individual related by blood, marriage or adoption to any such individual or with
any entity in which any such Person or individual owns a beneficial interest,
except (A) for customary employment arrangements and benefit programs (including
increases in compensation that do not require approval or consent from CIVC or
the Designated Class A Transferee under Section 5.4(b)(ix) below), (B) with
respect to agreements, transactions, commitments or arrangements involving the
▇▇▇▇▇▇▇▇ Investors, if the amount involved is less than $60,000 in any single
transaction or series of related transactions and $100,000 in the aggregate in
any fiscal year, (C) the employment by the Company of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and any
compensation relating thereto that has been unanimously approved by the
Compensation Committee of the Company's Board of Directors and (D) arrangements
in existence on or prior to the date hereof and disclosed on Schedule 4.1(t)
(but not any amendment, modification or supplement thereto);
37
(ix) any increase in the compensation (including salary,
bonus and other forms of current and deferred compensation, but not including
Company-wide benefit plans) payable to any executive officer or director of the
Company or any of its Subsidiaries (including the establishment of and changes
to bonus or other compensation plans that affect the executive management team
as a whole), except for (1) increases unanimously approved by the Company's
Board of Directors (or the appropriate committee thereof), (2) increases not to
exceed the CPI plus 2% per annum pursuant to any plan or agreement with respect
to compensation approved by either CIVC or unanimously approved by the Company's
Board of Directors (or the appropriate committee thereof) and (3) customary or
reasonable increases in connection with the promotion of or granting of
additional responsibilities to any such executive officer of the Company or any
of its Subsidiaries;
(x) any redemption, purchase or other acquisition (whether
direct or indirect) by the Company or its Subsidiaries of any shares of capital
stock of the Company or any Subsidiary (other than a wholly-owned Subsidiary),
or any securities convertible into or exchangeable for such capital stock, or
any options, warrants or rights to purchase such stock or securities, except any
such redemptions or purchases (a) undertaken pursuant to Section 5.4(c) hereof,
Section 11 of the Stockholders Agreement, Section 3G of the Class L Purchase
Agreement, or Section 4 or 5 of the Family Stockholders Agreement, (b) occurring
by reason of a Permitted Sale of the Company, (c) of Class L Common or
Redeemable Common, (d) of any class of common stock or options to acquire any
class of common stock from Management Holders occurring in connection with the
termination of employment of such Management Holders pursuant to any Management
Holder Agreement, (e) from employees of the Company and its Subsidiaries having
a purchase price that, when aggregated with the redemption or purchase price of
all such other redemptions or purchases from employees occurring in the same
fiscal year, does not exceed $200,000 or (f) from employees of the Company and
its Subsidiaries pursuant to the Management Redemption Program adopted by the
Company's Board of Directors in each of years 2005 and 2007 so long as the
aggregate price paid therefore in either such year does not exceed $5,000,000;
(xi) any redemption or purchase by the Company or its
Subsidiaries of any shares of capital stock of the Company, or any securities
convertible into or exchangeable for such capital stock, or any options,
warrants or rights to purchase such stock or securities, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
and his Permitted Transferees (except for any such redemption or purchase
occurring by reason of a Sale of the Company where the consideration paid to the
CIVC Group consists of cash or Liquid Securities in which the CIVC Group is
offered the same form and value of consideration as the ▇▇▇▇▇▇▇▇ Investors) and
in which all of the capital stock of the Company then held by the CIVC Group is
transferred;
(xii) any recapitalization or reorganization which results
in a Change of Control (as defined in Section 6.7(b) hereof), except for any
such recapitalization or reorganization occurring by reason of a Permitted Sale
of the Company;
(xiii) engaging in any business other than the landscape
service and snow removal business or any business related thereto (except (A)
any such change occurring by reason of a Permitted Sale of the Company or (B)
any other business acquired in a transaction approved by CIVC or the Designated
Class A Transferee, as the case may be, pursuant to Section 5.4(b)(i) above) or
any material change in the Company's accounting
38
practices (including, without limitation, any change in the Company's fiscal
year), unless recommended by the Company's accountants in writing or required by
GAAP or the rules or regulations of the Securities Exchange Commission;
(xiv) the termination or hiring of the Company's Chief
Executive Officer (provided that CIVC will not unreasonably withhold its
approval under this paragraph (xiv));
(xv) undertaking or consummating an initial public offering
of any of the Company's or any of its Subsidiaries' equity securities (other
than a Qualified Public Offering);
(xvi) becoming subject to, or permitting any of its
Subsidiaries to become subject to (including, without limitation, by way of
amendment to or modification of) any agreement or instrument which by its
express terms would restrict the Company's right or ability to perform the
provisions of this Agreement, the Registration Agreement, the Stockholders
Agreement, or the Company's Certification of Incorporation or Bylaws (except
that this paragraph (xvi) shall not apply to any agreement or instrument for
indebtedness (or amendment or modification thereof) where the creation or
incurrence of indebtedness thereunder (or the amendment or modification of the
agreement or instrument for such indebtedness) does not require any approval of
CIVC or the Designated Class A Transferee under paragraphs (iii) or (iv) above);
or
(xvii) entering into any agreement (whether oral or written)
obligating the Company to do any of the foregoing.
It is understood and agreed that if at any time neither of the two Approval
Right Conditions is satisfied, this Section 5.4(b) shall forthwith terminate and
be null and void and of no further force and effect.
(c) Right to Sell and Right to Purchase CIVC Group Shares.
(i) Right to Sell Class A Common. Subject to the terms and
conditions hereof, both (A) in each of the years 2008, 2009 and 2010 at any time
from April 1 through and including May 31 of such year (the "Exercise Period"),
and (B) at any time during the Exercise Period in each of the 2 calendar years
commencing after the Forced Sale Expiration Date, CIVC (or, if there is a
Designated Class A Transferee, then such Designated Class A Transferee) may, by
written notice to the Company (a "CIVC Put Notice"), elect to have the CIVC
Group and any Class A Transferee sell to the Company (and the Company, subject
to the terms and conditions hereof, shall purchase), at the CIVC Repurchase
Price specified in Section 5.4(c)(iv) below, all but not less than all of the
shares of Class A Common and Underlying Common then owned by the CIVC Group and
any Class L Transferee (the "Put"), provided that the CIVC Group and each Class
L Transferee of the CIVC Group hereby further agrees to deliver a Put Notice (as
defined in the Class L Common Purchase Agreement) with respect to all of the
Senior Common the CIVC Group and any Class L Transferee then holds (if any)
pursuant to Section 3G(i) of the Class L Purchase Agreement simultaneously with
the delivery of the CIVC Put Notice hereunder. The closing for the sale of the
Class A Common and Underlying Common referred to in this Section 5.4(c)(i) (the
"CIVC Put Closing") shall take place at the
39
offices of the Company at 10:00 a.m. local time on a date (A) not more than 180
days after the date the CIVC Repurchase Price has been determined in accordance
with subparagraph (iv) below, as selected by the Company, or (B) at such other
time or place as the Company and CIVC (or the Designated Class A Transferee) may
agree upon (the "CIVC Put Closing Date"). Each purchase and sale of securities
by the Company and any member of the CIVC Group (or any Class A Transferee) at
any CIVC Put Closing shall constitute a separate purchase and sale hereunder.
The failure of any holder of securities to be acquired at a CIVC Put Closing to
comply with its obligations under this Section 5.4(c) shall have no effect on
the rights and obligations of the other parties hereto to consummate such CIVC
Put Closing, but the non-complying party shall not have any further rights under
this Section 5.4(c) or otherwise to cause the Company to purchase such holder's
Class A Common. At the CIVC Put Closing, each member of the CIVC Group and each
Class A Transferee shall deliver certificates representing all the shares of
Class A Common (accompanied by duly executed stock powers with signatures
guaranteed and other appropriate documentation of authority to transfer) to be
purchased by the Company against payment of the CIVC Repurchase Price by wire
transfer of immediately available funds. Each member of the CIVC Group and each
Class A Transferee will deliver such shares free and clear of all liens, claims
and encumbrances (other than any encumbrances arising under this Agreement or
the Stockholders Agreement). The Company promptly (but in any event within 5
business days) shall notify each member of the CIVC Group and each Class A
Transferee upon receipt of a ▇▇▇▇▇▇▇▇ Put Notice.
(ii) Right to Purchase Class A Common. Subject to the terms
and conditions hereof, (A) from April 1 through and including May 31 of each
year commencing in 2009 or (B) after the fifth anniversary hereof, in the event
that the Company requests that CIVC (or the Designated Class A Transferee)
approve a transaction under Sections 5.4(b)(i), (ii), (iii) or (iv) hereof and
CIVC (or the Designated Class A Transferee) fails to approve such transaction
within 30 days after such request at any time within 60 days after such request,
the Company may, by written notice to each member of the CIVC Group and each
Class A Transferee (the "CIVC Call Notice"), elect to purchase, or have any
designee of the Company purchase, from the members of the CIVC Group and the
Class A Transferees (and each member of the CIVC Group and each Class A
Transferee hereby agrees to sell), at the CIVC Repurchase Price, all but not
less than all of the shares of Class A Common and Underlying Common as are then
owned by the CIVC Group and the Class A Transferees; provided that the Company
hereby further agrees to deliver a Call Notice (as defined in the Class L Common
Purchase Agreement) with respect to all of the Senior Common the CIVC Group and
the Class L Transferees then hold (if any) pursuant to Section 3G(ii) of the
Class L Purchase Agreement simultaneously with the delivery of the CIVC Call
Notice hereunder. At the Company's option, the Company may provide in a CIVC
Call Notice that the Company will purchase any Class A Common issued upon
conversion, on or prior to the Call Closing Date, of Class L Common pursuant to
subparagraph (vi) of Section 3G of the Class L Purchase Agreement, and in such
case any such shares of Class A Common shall be subject to the Company's
repurchase rights under this Section 5.4(c). The closing for the purchase of the
shares of Class A Common and Underlying Common referred to in this Section
5.4(c)(ii) (the "CIVC Call Closing") shall take place at the offices of the
Company at 10:00 a.m. local time on a date (A) not more than 180 days after the
date the CIVC Repurchase Price has been determined in accordance with
subparagraph (iv) below, as selected by the Company, or (B) at such other time
or place as the Company and CIVC (or the Designated Class A Transferee) may
agree upon (the "CIVC Call Closing Date"). Each
40
purchase and sale of securities by the Company and the CIVC Group (or any Class
A Transferee) at any CIVC Call Closing shall constitute a separate purchase and
sale hereunder. The failure of any holder of securities to be acquired at a CIVC
Call Closing to comply with its obligations under this Section 5.4(c) shall have
no effect on the rights and obligations of the other parties hereto to
consummate such CIVC Call Closing, but any non-complying party shall not have
any further rights under this Section 5.4(c) or otherwise to cause the Company
to purchase such holder's Class A Common. At the CIVC Call Closing, each member
of the CIVC Group and each Class A Transferee will deliver certificates
representing all the shares of Class A Common (accompanied by duly executed
stock powers with signatures guaranteed and other appropriate documentation of
authority to transfer) to be purchased by the Company against payment of the
CIVC Repurchase Price by wire transfer of immediately available funds. Each
member of the CIVC Group and each Class A Transferee will deliver such shares
free and clear of all liens, claims and encumbrances (other than any
encumbrances arising under this Agreement or the Stockholders Agreement).
(iii) Payment Subject to Applicable Law and Compliance with
Debt Instruments. It shall be a condition to the obligation of the Company to
pay any portion of the CIVC Repurchase Price at any CIVC Put Closing (i) that
the Company have funds legally available therefor and (ii) with respect to any
CIVC Put Closing to take place prior to December 21, 2009, that such payment not
violate, breach or conflict with, or cause any default under (or constitute any
event that, with notice or the passage of time, or both, would constitute such a
default), the Senior Credit Agreement and the Indenture and/or any refinancings
or replacements thereof (each a "Company Debt Instrument"), it being understood
that after December 20, 2009, clause (ii) above shall not be applicable. In the
event that the Company does not have funds legally available to pay any portion
of the CIVC Repurchase Price, or, with respect to any CIVC Put Closing to take
place prior to December 21, 2009, if payment of any portion of the CIVC
Repurchase Price would violate, breach or conflict with, or cause any default
under (or constitute any event that, with notice or the passage of time, or
both, would constitute such a default), a Company Debt Instrument, then
notwithstanding the provisions of Section 5.4(c)(i) above or any other provision
of this Agreement to the contrary, the CIVC Put Closing Date shall be deferred
until such time as the Company shall have funds legally available therefor and,
until December 20, 2009, such payment would not violate, breach or conflict
with, or cause any default under (or constitute any event that, with notice or
the passage of time, would constitute such a default), a Company Debt
Instrument; provided, however, that to the extent the CIVC Repurchase Price is
not paid to the CIVC Group and the Class A Transferees in full in cash within
180 days after the date the CIVC Repurchase Price is determined, such portion of
the CIVC Repurchase Price as has not then been paid at such time will thereafter
bear interest at a per annum rate of 12% until such portion is paid in full in
cash to the CIVC Group and the Class A Transferees. In addition, (i) until the
CIVC Repurchase Price is paid in full in cash, the CIVC Group and each Class A
Transferee will retain all of the rights of a stockholder, including its rights
under this Agreement (including approval of specified actions and information
and inspection rights), the Stockholders Agreement (including Board
representation on the terms set forth in Section 1 of the Stockholders
Agreement), the Company's Certificate of Incorporation and Bylaws and applicable
law, as if it continued to own the number of shares of Class A Common and
Underlying Common that the unpaid portion of the CIVC Repurchase Price
represents, and (ii) except as otherwise provided in subparagraph (v) below, to
the extent necessary to consummate the CIVC Put Closing or the CIVC Call
Closing, the Company shall
41
use its commercially reasonable efforts to (x) amend the Company Debt
Instruments in a manner that will permit payment of the CIVC Repurchase Price or
(y) raise the funds necessary to pay the CIVC Repurchase Price through either a
debt or an equity offering (it being understood that CIVC and any Class A
Transferee of any member of the CIVC Group will cooperate with any such
undertaking, including by providing any necessary consents or approvals under
this Agreement, the Certificate of Incorporation, applicable law or otherwise to
any such debt or equity offering closing in connection with the CIVC Put
Closing, provided that the terms of such debt or equity offering shall not
adversely affect the Company's payment of the CIVC Repurchase Price hereunder).
Except as otherwise provided in subparagraph (v) below, if the CIVC Repurchase
Price is not paid in full in cash on or prior to the earlier of the date 180
days after the date the CIVC Repurchase Price is determined and 270 days after
the CIVC Put Notice is delivered (the "Closing Deadline Date"), the CIVC Group
and the Class A Transferees shall have the following rights (the "Forced Sale
Rights"):
(A) Sale Transaction. CIVC (or the Designated Class A
Transferee) shall have the right (but not the obligation) to cause a Sale of the
Company. In such event, the Company and each of its stockholders, including each
of the parties to this Agreement and their respective assignees and transferees
(the "Other Stockholders"), hereby agree to take all actions and execute all
instruments as may be necessary or as may be reasonably requested by CIVC (or
the Designated Class A Transferee) to (a) enable CIVC (or the Designated Class A
Transferee) to retain (at the Company's expense) a nationally recognized
investment banker after consultation with the ▇▇▇▇▇▇▇▇ Representatives (provided
that if such investment banker is affiliated with any member of the CIVC Group
or the Designated Class A Transferee, the Company shall have the right to
consent to the fees of such investment banker (in the case of any such
investment banker, other than any investment banker affiliated with Bank of
America, such consent not to be unreasonably withheld or denied)) to assist in
such Sale of the Company, (b) enable the investment banker to conduct an auction
in an orderly process to maximize equityholder value and (c) cause the Company
and/or the Other Stockholders to take any of the following actions or any
combination thereof: (i) selling up to all of the Company's and its
Subsidiaries' assets in one or more transactions; (ii) merging or consolidating
the Company or ▇▇▇▇▇▇▇▇ Ltd. with or into any other Person; and/or (iii)
requiring that each Other Stockholder to sell up to all of the Company's capital
stock then held by such Other Stockholder or causing the Company to sell all
equity securities of ▇▇▇▇▇▇▇▇ Ltd. held by it.
(1) Drag-Along Rights. In order to effectuate the
foregoing, when the CIVC Group has the Forced Sale Rights, each Other
Stockholder hereby agrees to vote for, consent to and raise no objections
against such Sale of the Company. If the Sale of the Company is structured
as a merger or consolidation, each holder of Common Stock shall waive any
dissenters' rights, appraisal rights or similar rights in connection with
such merger or consolidation, or if the Sale of the Company is structured
as a sale of the Company's securities or equity securities of ▇▇▇▇▇▇▇▇
Ltd., each holder of such securities shall agree to sell up to all of such
equity securities and rights to acquire such equity securities on the terms
and conditions so approved and to deliver to the purchaser(s) the
certificates representing the equity securities to be sold. Each Other
Stockholder hereby agrees to take all necessary or desirable actions in
connection with the consummation of the Sale of the Company as requested by
CIVC. In furtherance of the foregoing, CIVC (or the Designated Class A
Transferee) shall have the
42
rights of the ▇▇▇▇▇▇▇▇ Representatives set forth in paragraph 10 of the
Stockholders Agreement. Notwithstanding the foregoing, the obligations of
the Other Stockholders pursuant to this paragraph are subject to the
satisfaction of the following conditions: upon consummation of the Sale of
the Company undertaken under this subparagraph, (i) the proceeds thereof
available to the stockholders of the Company shall be distributed among the
Company's stockholders as if there were a liquidation and dissolution of
the Company, (ii) all holders of a class and series of Common Stock
(including all Class A Common, taken together as a single class) shall
receive in respect of shares of such class the same form and amount of
consideration per share (including for this purpose amounts allocated to
noncompetition, consulting and other similar arrangements other than
commercially reasonable employment arrangements for employees with respect
to their continuing employment and other than amounts payable to, and
retainable by, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ for any non-compete covenants in an
aggregate amount of 250% of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇'▇ annual base salary in
effect at the time of such Sale of the Company for each year such
non-compete covenant remains effective) and the proportion of cash and
other consideration payable to each class and series of Common Stock shall
be identical, (iii) if the holders of any class of Common Stock are given
an option as to the form and consideration to be received (including all
Class A Common, taken together as a single class), all holders of such
class shall be given the same option, (iv) no Other Stockholder shall be
required to share in any indemnification obligations other than
individually and ratably (and not jointly and severally), pro rata with the
Other Stockholders in accordance with each such Other Stockholder's
ownership of Stockholder Shares (as defined in the Stockholders Agreement),
provided that no Other Stockholder shall be required to share in any
indemnification obligations relating to a breach of a representation or
warranty relating solely to another Other Stockholder or such Other
Stockholder's Stockholder Shares such as with respect to title to
Stockholder Shares or authorization to enter into transaction agreements
(such obligations to be borne solely by the other Other Stockholder), and
(v) no Other Stockholder shall be required to share in any indemnification
obligations in excess of the net proceeds payable to such Other Stockholder
in such Sale of the Company. Notwithstanding the foregoing and anything to
the contrary herein, in the event CIVC or the Designated Class A Transferee
has Forced Sale Rights, it will be a condition to any obligation of the
Brickmans or their Permitted Transferees under this Section 5.4(c)(iii)(A)
that upon a Sale of the Company (i) the Brickmans and their Permitted
Transferees receive cash or Liquid Securities (for the purpose substituting
"Brickmans and their Permitted Transferees" for "CIVC Group" in the
definition of Liquid Securities), (ii) the Brickmans and their Permitted
Transferees are offered the same form and value of consideration as the
CIVC Group (or, in the event the CIVC Group is offered illiquid securities,
the Brickmans and their Permitted Transferees are offered cash or other
Liquid Securities of the same value (ignoring any discount for illiquidity)
as the illiquid securities offered to the CIVC Group and (iii) the
Brickmans and their Permitted Transferees are able to transfer all of their
capital stock of the Company then held by the Brickmans and their Permitted
Transferees.
(2) Board Rights. The director(s) elected by the
holders of Class A-1 Common pursuant to the Certificate of Incorporation
shall have the voting rights specified in subparagraph 1C(iii) of
subdivision B of the Certificate of Incorporation (and the holders of the
Class A-1 Common shall have the right to elect one
43
Class A-1 Director (as defined therein), if no Class A-1 Director is then
serving). If for any reason the provisions of paragraph 1C of subdivision B
of Article IV of the Certificate of Incorporation do not provide the voting
rights intended by the parties, the Company shall make alternative
arrangements to provide the CIVC Group or the Designated Class A Transferee
with the benefits of such voting rights.
(iv) Repurchase Price. The "CIVC Repurchase Price" for any
shares sold or purchased under this Section 5.4(c) shall be based on the Company
Equity Value, which shall be derived from the Company Enterprise Value,
determined in the manner as set forth below. For a period of 15 days after the
date of any CIVC Put Notice or CIVC Call Notice, each of CIVC or the Designated
Class A Transferee and the Company agrees to negotiate in good faith to
determine the Company Enterprise Value. In the event such parties reach
agreement, such agreed value shall be the Company Enterprise Value. In the event
the parties are unable to agree within such 15 day period, the Company shall
retain a nationally recognized investment bank or appraisal firm (a "Bank") to
determine the Company Enterprise Value (based on standard appraisal
methodologies) and such determination shall be furnished to CIVC or the
Designated Class A Transferee within 20 days after the end of such 15 day
negotiation period; provided that if the determination of Company Enterprise
Value by such Bank will be in the form of a range, then the Bank shall be
instructed that the higher of such values shall not be more than 110% of the
lower of such values (the "First Bank Range"). If CIVC or the Designated Class A
Transferee fails to object in writing to such appraisal within 15 days after its
receipt thereof, the mid-point of the First Bank Range shall be the Company
Enterprise Value. If CIVC or the Designated Class A Transferee objects in
writing to such appraisal, then CIVC or the Designated Class A Transferee shall
retain a Bank to determine the Company Enterprise Value as described above and
to furnish such determination to the Company within 20 days after such
objection; provided that if the determination of Company Enterprise Value by
such Bank will be in the form of a range, then the Bank shall be instructed that
the higher of such values shall not be more than 110% of the lower of such
values (the "Second Bank Range"). The Company Enterprise Value shall be the
average of the higher mid-point and the lower mid-point; provided, however, that
if the mid-point of the Second Bank Range is more than 110% of the mid-point of
the First Bank Range, then the Company shall retain a third Bank reasonably
acceptable to CIVC or the Designated Class A Transferee (the "Third Bank") to
determine the Company Enterprise Value as described above, within 20 days after
the retention of such Third Bank, and the Company Enterprise Value shall be the
average of the mid-points of the two Bank determinations, the mid-points of
which are closest to one another. All fees and expenses of and other liabilities
to each Bank shall be paid by the party retaining such Bank, except that such
fees, expenses and liabilities with respect to the Third Bank shall be borne by
the party who retained the Bank whose determination is not used to calculate the
Company Enterprise Value, provided that any expenses attributable to CIVC under
this sentence shall be borne by the CIVC Group out of the proceeds paid at the
CIVC Put Closing or the CIVC Call Closing, as the case may be. The Company
Equity Value shall be determined by the Company and CIVC or the Designated Class
A Transferee from the Company Enterprise Value in accordance with the terms
hereof. The CIVC Repurchase Price paid under this Section 5.4(c) shall be that
amount that would be distributed in respect of such Class A Common and
Underlying Common upon a hypothetical liquidation of the Company where the
proceeds available for distribution to all holders of Common Stock or other
equity of the Company in such liquidation are equal to the Company Equity Value.
In the event that a CIVC Put Closing or CIVC Call Closing has not
44
occurred within 180 days after the initial determination of the CIVC Repurchase
Price hereunder (the "Repricing Date"), then (1) the Company and CIVC or the
Designated Class A Transferee shall make another determination of the CIVC
Repurchase Price in accordance with this clause (iv), with all applicable time
periods set forth in this clause (iv) with respect to the price determination
beginning on the Repricing Date, and (2) the holders of securities subject to
repricing under this sentence shall be entitled to receive at the CIVC Call
Closing or CIVC Put Closing the greater of (x) the initial CIVC Repurchase Price
plus any accrued but unpaid interest pursuant to subparagraph (iii) above from
and including the Repricing Date through and including the date on which such
initial CIVC Repurchase Price is paid in full in cash or (y) the CIVC Repurchase
Price determined after the Repricing Date. Notwithstanding the foregoing, in the
event that a Sale of the Company occurs at any time (whether prior to or after
the Repricing Date) after the delivery of a CIVC Put Notice or CIVC Call Notice,
as the case may be, but before or contemporaneous with the payment of the CIVC
Repurchase Price in full in cash, each member of the CIVC Group (or any Class A
Transferee) shall receive the amount per share to which they entitled pursuant
to such Sale of the Company, rather than the CIVC Repurchase Price. From the
date of the delivery of a CIVC Put Notice or CIVC Call Notice, as the case may
be, through the CIVC Put Closing Date or the CIVC Call Closing Date, as the case
may be, the Company shall operate its business in the ordinary course consistent
with past practice.
(v) Notwithstanding the foregoing and anything to the
contrary herein, the Company or the ▇▇▇▇▇▇▇▇ Representatives shall have the
right, at any time prior to the Closing Deadline Date, to deliver a notice (a
"Sale Notice") to the members of the CIVC Group and the Class A Transferees
notifying such holders that the Company or the ▇▇▇▇▇▇▇▇ Representatives have
determined to seek a Sale of the Company, in which event the Company or the
▇▇▇▇▇▇▇▇ Representatives shall use commercially reasonable efforts to effect
such Sale of the Company. In the event a Sale Notice is delivered, for the next
succeeding 180 days (A) the Company will be under no obligation to pay any
portion of the CIVC Repurchase Price at the CIVC Put Closing, (B) neither CIVC
nor any other party will have Forced Sale Rights, including the rights set forth
in subparagraph (iii)(A) above, (C) the Company will not be under any obligation
to seek to amend any Company Debt Instrument or raise debt or equity funds under
clause (ii) of subparagraph (iv) above and (D) paragraphs 10(a), 10(c) and 10(d)
of the Stockholders Agreement would apply to such Sale of the Company (it being
understood, however, that, notwithstanding the foregoing, if a Sale Notice is
delivered and both a Permitted Sale of the Company has not been consummated
within 180 days after delivery of the Sale Notice (the "▇▇▇▇▇▇▇▇ Sale Deadline
Date") and the CIVC Repurchase Price has not been paid by the ▇▇▇▇▇▇▇▇ Sale
Deadline Date, CIVC (or the Designated Class A Transferee) will have the Forced
Sale Rights set forth in subparagraph (iii) above).
(vi) In the event of a Tag-Put (as defined in the Family
Stockholders Agreement), the Company (i) shall not be permitted to consummate
the Tag-Put with any ▇▇▇▇▇▇▇▇ Put Holder unless it simultaneously consummates
the Put or call contemplated by the CIVC Put Notice or CIVC Call Notice to which
it relates and (ii) shall not be permitted to consummate the Put or call with
any member of the CIVC Group or any Class A Transferee unless it simultaneously
consummates the corresponding Tag-Put with all ▇▇▇▇▇▇▇▇ Put Holders
participating in the Tag-Put.
45
(vii) In the event that a Sale of the Company is consummated
within 270 days after (i) any CIVC Call Closing Date, (ii) any CIVC Put Closing
Date that occurs after a Sale Notice has been delivered or (iii) any CIVC Put
Closing Date, if a Sale of the Company is consummated with any Person or
affiliates of any Person that made an offer in writing to the Company to acquire
the Company prior to the CIVC Put Closing Date, the Company promptly (but in any
event within three (3) business days of the closing of such Sale of the Company)
shall pay each member of the CIVC Group and each Class A Transferee in
immediately available funds to an account designated by each such Person the
excess, if any, of (A) the consideration such member of the CIVC Group or Class
A Transferee would have received in such Sale of the Company in respect of the
shares of Class A Common repurchased by the Company on the CIVC Call Closing
Date had they been held by the member of the CIVC Group or Class A Transferee as
of the closing of the Sale of the Company over (B) the CIVC Repurchase Price
received in respect of such shares of Class A Common.
(viii) The Forced Sale Rights of the CIVC Group and the
Class A Transferees with respect to a Put exercise shall expire on the 181st day
after the Put Default Date (the "Forced Sale Expiration Date").
(ix) The provisions of this Section 5.4(c) shall terminate
upon the earlier of (a) the consummation of a Qualified Public Offering of any
equity securities of the Company, (b) a Permitted Sale of the Company or (c)
with respect to any particular share of Class A Common or Underlying Common, a
Public Sale thereof.
(d) Compliance with Agreements. The Company shall perform and
observe (i) all of its obligations to each holder of the Common Stock as set
forth in the Company's Certificate of Incorporation and bylaws, and (ii) all of
its obligations to each holder of Registrable Securities set forth in the
Registration Agreement.
(e) Current Public Information. At all times after the Company
has filed a registration statement with the Securities and Exchange Commission
pursuant to the requirements of either the Securities Act or the Securities
Exchange Act, the Company shall file all reports required to be filed by it
under the Securities Act and the Securities Exchange Act and the rules and
regulations adopted by the Securities and Exchange Commission thereunder.
(f) ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act Filing. Upon any conversion from time
to time of any shares of Class A Non-Voting Common held by members of the CIVC
Group into shares of Class A Voting Common that requires a notification or other
filing under the ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), or any other antitrust laws, the Company shall: (i)
promptly take all actions necessary to make the filings required of it or any of
its Affiliates under the HSR Act and/or such other antitrust laws and, if
requested by the members of the CIVC Group for which such filing is necessary,
request early termination of the waiting period thereunder; (ii) comply
reasonably promptly with any request for additional information or documentary
material received by it or any of its Affiliates from the Federal Trade
Commission or the Antitrust Division of the Department of Justice; (iii) take
such other reasonable steps as may be appropriate to cooperate with the CIVC
Group in attempting to resolve any government investigation or other inquiry
commenced by any governmental authority, including by making available such
Company information and involving such Company personnel as may be useful in
that effort; (iv) cooperate with the CIVC Group in the
46
defense of any court action or other legal proceeding brought by any
governmental authority to restrict or prevent the consummation of the
transactions contemplated hereby, including all reasonable avenues of
administrative or judicial appeal or any adverse judgment, injunction, or other
order; (v) pay the fees and expenses (including attorneys' fees) of the Company
arising out any governmental filing requirements, investigations or inquiries;
and (vi) pay the fees and expenses of each member of the CIVC Group and their
Affiliates arising out of any governmental filing requirements, investigations,
or inquiries, including (a) all out-of-pocket fees and expenses (including
reasonable fees and expenses for attorneys and consultants) in an amount not to
exceed $50,000 in the aggregate and (b) HSR Act filing fees for one filing under
the HSR Act, it being understood that the fees and expenses of the members of
the CIVC Group and their Affiliates from a second or any subsequent filings
shall not be paid by the Company. The Company and the CIVC Group shall each
promptly inform the other of any material communication made to, or received by
such party from, the Federal Trade Commission, the Department of Justice or any
other authority regarding any of the transaction contemplated hereby or such
conversion of the Class A Non-Voting Common. Notwithstanding the foregoing, the
obligations of the Company under this Section 5.4(f) shall terminate on a
prospective basis with respect to any member of the CIVC Group at such time as
the Company exercises its rights to repurchase such party's shares of Class A
Non-Voting Stock pursuant to Article IV, Subdivision B, Section 3B of the
Company's Certificate of Incorporation.
(g) Financial Information. From and after the Closing Date, the
Company will hold all of the books and records of ▇▇▇▇▇▇▇▇ Ltd. existing on the
Closing Date and not destroy or dispose of any thereof for a period of ten years
from the Closing Date or such longer time as may be required by law, and
thereafter, if it desires to destroy or dispose of such books and records, will
offer first in writing at least 60 days prior to such destruction or disposition
to surrender them to CIVC (so long as it holds any Class A Common) or the
▇▇▇▇▇▇▇▇ Representatives (so long as they hold any Class A Common).
(h) Directors' and Officers' Indemnification and Insurance. The
Company shall, and from and after the Closing Date shall cause ▇▇▇▇▇▇▇▇ Ltd. to,
indemnify and hold the past and existing directors and officers of the Company
and ▇▇▇▇▇▇▇▇ Ltd. harmless from and against, to the maximum extent permitted
under applicable law, any and all losses, claims, damages, liabilities (or
actions or proceedings with respect to any thereof) or expenses (including, but
not limited to, all legal expenses and any and all other out-of-pocket expenses
incurred in investigating, preparing to defend or defending against any action
or proceeding, commenced or threatened by any third party, whether or not such
officer or director is a formal party thereto) to which, jointly or severally,
any such officer or director may be subject, which arise out of or are based
upon such officer's or director's service or status as an officer or director of
▇▇▇▇▇▇▇▇ Ltd. prior to the Closing Date, for a period of six years after the
Closing Date; provided, that such period of indemnification shall be extended
for the duration of any and all actions or proceedings with respect to any claim
for indemnification made prior to the expiration of such six-year period;
provided further, such indemnification will only be provided in accordance with
(i) the Company's and ▇▇▇▇▇▇▇▇ Ltd.'s bylaws as in effect on the date hereof and
(ii) applicable state and federal laws, rules and regulations. The Company
shall, and from and after the Closing Date shall cause ▇▇▇▇▇▇▇▇ Ltd. to,
maintain existing policies of liability insurance covering the directors and
officers of the Company and ▇▇▇▇▇▇▇▇ Ltd. for periods prior to the Closing Date
("Covered Persons") or replace such policies with policies with scope
47
of coverage, policy limits, retention amounts, and other material terms that are
no less favorable to such Covered Persons than those of the policies currently
in effect; provided that such insurance is then available on commercially
reasonable terms.
(i) Class L Common Board Observer Right. CIVC hereby agrees it
shall not exercise the right of the holders of the Class L Common pursuant to
the Certificate of Incorporation to designate an observer to attend meetings of
the Company's Board of Directors so long as it and the CIVC Group hold a
majority of the Senior Common.
ARTICLE VI
OTHER AGREEMENTS
6.1 Certain Understandings.
(a) Each of the parties is sophisticated and was advised by
experienced counsel and, to the extent it deemed necessary, other advisors in
connection with this Agreement. Each of the parties hereby acknowledges that (i)
there are no representations or warranties by or on behalf of any party hereto
or any of its respective affiliates or representatives other than those
expressly set forth in this Agreement, and (ii) the parties' respective rights
and obligations with respect to this Agreement and the events giving rise
thereto will be solely as set forth in this Agreement and the other agreements
referred to herein. None of the Stockholders, the Company, ▇▇▇▇▇▇▇▇ Ltd. or any
other Person will have or be subject to any liability to CIVC, the ▇▇▇▇▇▇▇▇
Investors or any other Person resulting from the distribution to the Company,
CIVC or any of the Stockholders, or the Company's, CIVC's or any of the
Stockholders' use of, any information not contained in this Agreement
(including, without limitation, any offering memorandum, brochure or other
publication provided to the Company, CIVC or any of the Stockholders, and any
other document or information provided to the Company, CIVC or any of the
Stockholders in connection with the sale of the ▇▇▇▇▇▇▇▇ Shares and the issuance
of the Class A Common). Notwithstanding anything contained herein to the
contrary, ▇▇▇▇▇▇▇▇ Ltd. makes no representation, warranty or covenant of any
kind with respect to any projections, estimates or budgets heretofore delivered
to or made available to the Company or any of the Stockholders of future
revenues, expenses or expenditures, future results of operations (or any
component thereof), future cash flows or future financial condition (or any
component thereof) of ▇▇▇▇▇▇▇▇ Ltd. or the future business and operations of
▇▇▇▇▇▇▇▇ Ltd.
6.2 Waiver, Release and Discharge. Except as specifically provided in
Section 6.7 hereof, the Selling Stockholders and the Rollover Investors
participating in the Rollover Investor Repurchase hereby acknowledge that the
delivery of such Stockholder's respective portion of the Selling Stockholder
Purchase Price or the Rollover Investor Purchase Price, respectively,
constitutes payment in full for the ▇▇▇▇▇▇▇▇ Shares delivered to ▇▇▇▇▇▇▇▇ Ltd.
in connection with the Selling Stockholder Repurchase and the Rollover Investor
Repurchase, as applicable. Except as specifically provided in Section 6.7
hereof, effective upon the Closing, each Selling Stockholder hereby irrevocably
waives, releases and discharges the Company and its Subsidiaries (and their
respective officers, directors, Affiliates, stockholders, agents, accountants
and attorneys) from any and all Liabilities to such Selling Stockholder of any
kind or nature whatsoever, whether in his or her capacity as a Selling
Stockholder hereunder, as a securityholder, officer, director or manager of the
Company or any of its Subsidiaries or otherwise (including, without limitation,
in respect of rights of contribution or indemnification),
48
in each case whether absolute or contingent, liquidated or unliquidated, known
or unknown, and whether arising hereunder or under any other agreement or
understanding or otherwise at law or equity, and each Selling Stockholder shall
not seek to recover any amounts in connection therewith or thereunder from the
Company or any of its Subsidiaries or their respective officers, directors,
Affiliates, stockholders, agents, accountants and attorneys. In no event shall
the Company or any of its Subsidiaries or their respective officers, directors,
Affiliates, stockholders, agents, accountants and attorneys have any liability
from and after the Closing to any of the Selling Stockholders whatsoever for any
breaches of the representations, warranties, agreements or covenants of the
Company or ▇▇▇▇▇▇▇▇ Ltd. hereunder, and none of the Selling Stockholders shall
in any event seek contribution from the Company or any of its Subsidiaries or
their respective officers, directors, Affiliates, stockholders, agents,
accountants and attorneys for any breaches of the representations, warranties,
agreements or covenants of the Company or ▇▇▇▇▇▇▇▇ Ltd. contained in this
Agreement or in respect of any other payments required to be made by this
Agreement. Except as specifically provided in Section 6.7 hereof, without
limiting any of the foregoing, upon delivery by ▇▇▇▇▇▇▇▇ Ltd. to the Selling
Stockholders of the Selling Stockholder Purchase Price in respect of the
▇▇▇▇▇▇▇▇ Shares delivered and transferred by such Selling Stockholder to
▇▇▇▇▇▇▇▇ Ltd. hereunder, each Selling Stockholder hereby irrevocably waives,
releases and discharges the Company and its Subsidiaries (including ▇▇▇▇▇▇▇▇
Ltd.) (and their respective officers, directors, Affiliates, stockholders,
agents, accountants and attorneys) (i) from all right or title to, or interest
in, any ▇▇▇▇▇▇▇▇ Shares or any capital stock or equity securities of the Company
or ▇▇▇▇▇▇▇▇ Ltd. or options, warrants, rights, contracts, calls, puts, rights to
subscribe, conversion rights or other agreements or commitments providing for
the issuance, disposition or acquisition of any of the Company's or ▇▇▇▇▇▇▇▇
Ltd.'s capital stock or other equity securities which such Selling Stockholder
may have as of the Closing Date (after consummation of the transactions
contemplated hereby), and such Selling Stockholder explicitly agrees to the
immediate termination and forfeiture, as of the Closing Date (after consummation
of the transactions contemplated hereby), to any such options, warrants or other
rights to acquire any ▇▇▇▇▇▇▇▇ Shares or any capital stock or equity securities
of the Company (whether or not earned or exercisable), and (ii) from any and all
Liabilities to such Selling Stockholder as the result of, in connection with,
relating to or incidental to or by virtue of any claim by such Selling
Stockholder that such Selling Stockholder, as of the Closing Date (after
consummation of the transactions contemplated hereby), owns or has any right or
title to, or interest in, any ▇▇▇▇▇▇▇▇ Shares or any capital stock or equity
securities of the Company or options, warrants, rights, Contracts, calls, puts,
rights to subscribe, conversion rights or other agreements or commitments
providing for the issuance, disposition or acquisition of any of the Company's
or ▇▇▇▇▇▇▇▇ Ltd.'s capital stock or other equity securities.
6.3 Transfer of Restricted Securities.
(a) General Provisions. In addition to any requirements set forth
in the Stockholders Agreement, Restricted Securities are transferable only
pursuant to (i) public offerings registered under the Securities Act, (ii) Rule
144 or Rule 144A of the Securities and Exchange Commission (or any similar rule
or rules then in force) if such rule is available and (iii) subject to the
conditions specified in this Section 6.3, any other legally available means of
transfer.
(b) Opinion Delivery. In connection with the transfer of any
Restricted Securities (other than a transfer described in paragraph 6.3(a)(i) or
(ii) above), the
49
holder thereof shall deliver written notice to the Company describing in
reasonable detail the transfer or proposed transfer, together, if reasonably
requested by the Company, with an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Dechert or other
counsel which (to the Company's reasonable satisfaction) is knowledgeable in
securities law matters to the effect that such transfer of Restricted Securities
may be effected without registration of such Restricted Securities under the
Securities Act. In addition, if the holder of the Restricted Securities delivers
to the Company an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, Dechert or such other counsel
that no subsequent transfer of such Restricted Securities shall require
registration under the Securities Act, the Company shall promptly upon such
contemplated transfer deliver new certificates for such Restricted Securities
which do not bear the Securities Act legend set forth in Section 6.3(c) below.
If the Company is not required to deliver new certificates for such Restricted
Securities not bearing such legend, the holder thereof shall not transfer the
same until the prospective transferee has confirmed to the Company in writing
its agreement to be bound by the conditions contained in this Section 6.3.
(c) Legend. Each certificate or instrument representing
Restricted Securities shall be imprinted with a legend in substantially the
following form:
"The securities represented by this certificate were originally issued
on December 20, 2002 and have not been registered under the Securities
Act of 1933, as amended. The transfer of the securities represented by
this certificate is subject to the conditions specified in the
Recapitalization Agreement, dated as of the Effective Date (as defined
therein), and as amended and modified from time to time, between the
issuer (the "Company") and certain investors, and the Company reserves
the right to refuse the transfer of such securities until such
conditions have been fulfilled with respect to such transfer. A copy
of such conditions shall be furnished by the Company to the holder
hereof upon written request and without charge."
(d) Rule 144A. Upon the request of a holder of Restricted
Securities, the Company shall promptly supply to such holder or its prospective
transferees all information regarding the Company required to be delivered in
connection with a transfer pursuant to Rule 144A of the Securities and Exchange
Commission.
(e) Legend Removal. If any Restricted Securities become eligible
for sale pursuant to Rule 144(k), the Company shall, upon the request of the
holder of such Restricted Securities, remove the legend set forth in Section
6.3(c) from the certificates for such Restricted Securities.
6.4 Further Assurances. From time to time, as and when requested by
either party hereto, the other party shall execute and deliver, or cause to be
executed and delivered, all such documents and instruments and shall take, or
cause to be taken, all such further or other actions as such other party may
reasonably deem necessary or desirable to consummate the transactions
contemplated by this Agreement.
6.5 ▇▇▇▇▇▇▇▇ Representatives. Each ▇▇▇▇▇▇▇▇ Investor hereby
irrevocably appoints both ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the
"▇▇▇▇▇▇▇▇
50
Representatives") as such ▇▇▇▇▇▇▇▇ Investor's representatives, attorneys-in-fact
and agents, with full power of -substitution to act in the name, place and stead
of such ▇▇▇▇▇▇▇▇ Investor with respect to the transfer of such ▇▇▇▇▇▇▇▇
Investor's Shares to the Company in accordance with the terms and provisions of
this Agreement and to act on behalf of such ▇▇▇▇▇▇▇▇ Investor in any amendment
of or litigation or arbitration involving this Agreement and to do or refrain
from doing all such further acts and things, and to execute all such documents,
as such ▇▇▇▇▇▇▇▇ Representatives shall deem necessary or appropriate in
connection with any of the transactions contemplated under this Agreement,
including, without limitation, the power:
(a) to take all action necessary or desirable in connection with
the waiver of any condition to the obligations of ▇▇▇▇▇▇▇▇ Investors to
consummate the transactions contemplated by this Agreement;
(b) to bring and transact matters of litigation and to refer
matters to arbitration and to compromise and settle any claim on behalf of any
▇▇▇▇▇▇▇▇ Investor;
(c) to receive or hold the certificates evidencing the shares of
Class A Common to be purchased by the ▇▇▇▇▇▇▇▇ Investors hereunder and to
deliver the ▇▇▇▇▇▇▇▇ Shares to be contributed by the ▇▇▇▇▇▇▇▇ Investors
hereunder, accompanied by executed stock powers, signature guarantees, and any
other documents relating thereto on behalf of the ▇▇▇▇▇▇▇▇ Investors;
(d) to negotiate, execute and deliver all ancillary agreements,
certificates, statements, notices, approvals, extensions, waivers, undertakings,
amendments and other documents required or permitted to be given in connection
with the consummation of the transactions contemplated by this Agreement (it
being understood that each of the ▇▇▇▇▇▇▇▇ Investors shall executive and deliver
any such documents which each of the ▇▇▇▇▇▇▇▇ Representatives agrees to
execute);
(e) to receive funds and give receipt for funds including in
respect of the Rollover Investor Purchase Price payable in respect of ▇▇▇▇▇▇▇▇
Shares held by the ▇▇▇▇▇▇▇▇ Investors, and any adjustment thereto, to distribute
to the ▇▇▇▇▇▇▇▇ Investors their portion of the Rollover Investor Purchase Price,
and any adjustment thereto, and to withhold from such funds a contingency
reserve for the matters referred to below;
(f) to terminate this Agreement if ▇▇▇▇▇▇▇▇ Investors are
entitled to do so;
(g) to give and receive all notices and communications to be
given or received under this Agreement and to receive service of process in
connection with any claims under this Agreement, including service of process in
connection with arbitration; and
(h) to take all actions which under this -Agreement may be taken
by the ▇▇▇▇▇▇▇▇ Representatives and to do or refrain from doing any further act
or deed on behalf of such ▇▇▇▇▇▇▇▇ Investor which the ▇▇▇▇▇▇▇▇ Representatives
deems necessary or appropriate in his sole discretion relating to the subject
matter of this Agreement as fully and completely as such ▇▇▇▇▇▇▇▇ Investor could
do if personally present.
51
It is understood and agreed by ▇▇▇▇▇▇▇▇ Investors that any of the
foregoing actions listed in Sections 6.5(a) through 6.5(h) shall require the
approval of both of the ▇▇▇▇▇▇▇▇ Representatives in order to legally bind any of
the ▇▇▇▇▇▇▇▇ Investors or otherwise be effective under this Section 6.5.
Notwithstanding the previous sentence, if either ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. or
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ dies or otherwise becomes incapacitated and unable to serve as
a ▇▇▇▇▇▇▇▇ Representative, the other party shall become the sole ▇▇▇▇▇▇▇▇
Representative and individually shall have full power and authority granted to
the ▇▇▇▇▇▇▇▇ Representatives in this Agreement. The death or incapacity of any
▇▇▇▇▇▇▇▇ Investor shall not terminate the agency and powers of attorney granted
hereby to the ▇▇▇▇▇▇▇▇ Representatives. The appointment of the ▇▇▇▇▇▇▇▇
Representatives shall be deemed coupled with an interest and shall be
irrevocable and the Company, ▇▇▇▇▇▇▇▇ Ltd., CIVC and any other Person may
conclusively and absolutely rely, without inquiry, upon any action of the
▇▇▇▇▇▇▇▇ Representatives, as the action of ▇▇▇▇▇▇▇▇ Investors in all matters
referred to herein. All actions, decisions and instructions of the ▇▇▇▇▇▇▇▇
Representatives shall be conclusive and binding upon all of the ▇▇▇▇▇▇▇▇
Investors and no ▇▇▇▇▇▇▇▇ Investor shall have any cause of action against the
▇▇▇▇▇▇▇▇ Representatives for any action taken or not taken by the ▇▇▇▇▇▇▇▇
Representatives in his role as such, except for any action or omission taken or
made fraudulently or in bad faith with respect to such ▇▇▇▇▇▇▇▇ Investor.
Without limiting any of the foregoing, it is understood that the appointment of,
and delegation of authority to, the ▇▇▇▇▇▇▇▇ Representatives is exclusive, such
that none of the ▇▇▇▇▇▇▇▇ Investors other than the ▇▇▇▇▇▇▇▇ Representatives may
take any action or make any decision within the scope of the preceding authority
granted to the ▇▇▇▇▇▇▇▇ Representatives.
Except as otherwise provided for in Section 7.5, all reasonable
out-of-pocket fees and expenses (including fees payable to counsel and other
professional and brokerage fees) incurred by the ▇▇▇▇▇▇▇▇ Representatives in
connection with performing such function and in connection with the transactions
contemplated hereby and all payments, damages, costs, fees and expenses in
connection with any claim by or other dispute with the Company under the
Agreement shall be paid by ▇▇▇▇▇▇▇▇ Investors in proportion to their respective
interests in the ▇▇▇▇▇▇▇▇ Shares and may be deducted by the ▇▇▇▇▇▇▇▇
Representatives from any amounts otherwise payable to any ▇▇▇▇▇▇▇▇ Investor
hereunder. The ▇▇▇▇▇▇▇▇ Representatives may withhold from funds received on
behalf of ▇▇▇▇▇▇▇▇ Investors prior to distribution of such funds to ▇▇▇▇▇▇▇▇
Investors any amount which the ▇▇▇▇▇▇▇▇ Representatives deems necessary as a
reserve for any such fees, expenses and claims.
6.6 Termination of Existing Agreements. The Stockholders and ▇▇▇▇▇▇▇▇
Ltd. agree that, effective upon Closing, the following agreements shall
terminate and shall have no further force and effect and each party shall have
no further rights, duties, liabilities or obligations to any other party under
such agreements: (i) the Stockholders Agreement dated as of January 14, 1998, by
and among the Company and the stockholders party thereto (as amended and
restated from time to time, the "Existing Stockholders Agreement"), (ii) the
Registration Agreement dated as of January 14, 1998, by and among the Company
and the stockholders party thereto (the "Existing Registration Agreement"),
(iii) the Stock Purchase Agreement dated as of November 25, 1997, as amended, by
and among The ▇▇▇▇▇▇▇▇ Group Ltd., ▇▇▇▇▇▇▇▇ Acquisition Corp., Continental
Illinois Venture Corporation and First Chicago Equity Corporation (the "Existing
Opco Purchase Agreement") and (iv) the Stock Purchase Agreement dated as of
January 14, 1998, by and among ▇▇▇▇▇▇▇▇ Holdings Corp. and the Purchasers listed
on the schedules thereto (the "Existing Holdco Purchase Agreement"). Without
limiting the
52
generality of the foregoing, the Stockholders who were party to the Existing
Stockholders Agreement (the "Original Stockholders") hereby waive all of their
rights under the Existing Stockholders Agreement with respect to the transfer or
issuance of any ▇▇▇▇▇▇▇▇ Shares in the Transactions, including all rights to
notice of the transfer or issuance of such shares. In consideration of such
waiver, the Company has provided the Original Stockholders with the opportunity
to invest in Class A Common pursuant to and on the terms and conditions
contained in this Agreement.
6.7 Contingent Payment.
(a) Top Up. If on or before three years after the Closing Date,
there is a Change of Control of the Company at a purchase price which implies an
enterprise value of the Company and its Subsidiaries of more than $395,000,000
(a "Top Up Event"), the Company or ▇▇▇▇▇▇▇▇ Ltd. shall, at the time of such
Change of Control, pay to each of the OEP Entities and Baraboo, Inc., an amount
equal to the Applicable Percentage of such OEP Entity's or Baraboo, Inc.'s
respective Allocable Share of Profit (if any) from such Change of Control (the
"Top-Up Amount"). The Top-Up Amount shall be paid in cash; provided that if the
Allocable Share of Profit was received in a combination of cash and other
property, such amount shall be paid in a combination of cash and other property
in the same proportion as such cash and other property were originally received
by the Company.
(b) Definitions.
"Allocable Share of Profit" in connection with a Change of
Control shall mean the excess of the amount (if any) that would have been
payable with respect to the ▇▇▇▇▇▇▇▇ Class A Common held by each OEP Entity and
Baraboo, Inc. immediately prior to the Closing (after paying all fees and
expenses actually payable from the proceeds of such Change of Control
transaction triggering the Top Up Event and after repaying all Indebtedness
actually then outstanding) had the transactions not occurred but instead the
entire Company been sold in the Change of Control transaction triggering the Top
Up Event at the time of the Top Up Event, but assuming that such ▇▇▇▇▇▇▇▇ Shares
(with the terms, rights and preferences such ▇▇▇▇▇▇▇▇ Shares have as of the date
hereof) had remained held by the Stockholders during the period from immediately
prior to Closing through the date of the Top Up Event, over the amounts actually
paid therefor in the Selling Stockholder Repurchase.
"Applicable Percentage" shall mean the percentage set forth below
opposite the time period during which the Change of Control occurred:
Time During Which
Change of Control Occurred Applicable Percentage
------------------------------------ ---------------------
During the first year after Closing 20%
During the second year after Closing 10%
During the third year after Closing 5%
"Change of Control" shall mean the occurrence of one or more of
the following events: (i) any "person" (as such term is used in Section 3(a) (9)
and 13(d) (3) of the
53
Exchange Act), together with its affiliates and associates (as such terms are
defined in Rule 12b-2 promulgated under the Exchange Act) (other than the
Original Investors), becomes the beneficial owner (as such term is defined in
Rule 13d-3 promulgated under the Exchange Act) of 50% or more of the total
voting power, value or economic interest of the common stock (or equivalent
units) of the Company or ▇▇▇▇▇▇▇▇ Ltd. or (ii) any person, together with its
affiliates and associates (other than the Original Investors), have the power,
by contract or otherwise, to elect or designate for election a majority of the
board of directors or other governing body of the Company or ▇▇▇▇▇▇▇▇ Ltd. or
(iii) a sale or transfer (including by operation of law, such as in a merger) by
the Company or any of its Subsidiaries of all or 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.
"Original Investors" shall mean the CIVC Group, the ▇▇▇▇▇▇▇▇
Investors and each other Rollover Investor, the Management Holders and their
respective Permitted Transferees.
(c) Anti-Abuse. The Company shall not take any action or
structure any transaction with the principal intent to evade or avoid the
provision of this Section.
(d) Determination of Fair Market Value. In the event of a dispute
regarding the fair market value of property received in any transaction, such
dispute shall be resolved by a nationally recognized independent investment
banking firm mutually acceptable to the OEP Entities and the Company. If the
Company and the OEP Entities cannot agree upon an investment banking firm within
thirty (30) calendar days after a dispute with respect to fair market value
arises, each shall retain, at their own cost and expense, an investment banking
firm and such firms together shall select a third investment banking firm who
shall resolve all disputes between the parties related to fair market value. The
fees and expenses of such third investment banking firm shall be shared equally
by the Company on the one hand and the Stockholders who claim entitlement to a
Top-Up Amount on the other hand.
(e) This Section 6.7 shall terminate immediately after the
payment of the Top-Up Amount pursuant to this Section 6.7.
ARTICLE VII
MISCELLANEOUS
7.1 Assignment. This Agreement and the rights hereunder shall not be
assignable (other than in connection with a Sale of the Company) or transferable
by the Company or ▇▇▇▇▇▇▇▇ Ltd. without the prior written consent of CIVC (or
the Designated Class A Transferee) and the ▇▇▇▇▇▇▇▇ Representatives. This
Agreement shall inure to the benefit of, and be binding upon and enforceable
against, the successors and permitted assigns of the respective parties hereto.
Prior to the Closing, CIVC may assign its right and obligation to acquire Class
A Common hereunder in whole or in part to any Person that is not a direct
competitor of ▇▇▇▇▇▇▇▇ Ltd., and, subject to the provisions hereof and of the
Stockholders Agreement with respect to transfers of the Class A Common, at any
time after the Closing CIVC and the other members of the CIVC Group may assign
their respective rights hereunder in whole or in part to any transferee of the
Class A Common acquired hereunder (it being understood and agreed that any such
transferee shall be subject to the obligations of the transferor hereunder and
54
it shall be a condition to any such transfer that the transferee sign a joinder
to this Agreement in the form attached hereto as Exhibit H (a "Transferee
Joinder Agreement") whereby such transferee acknowledges such obligations);
provided, however, that CIVC's rights pursuant to Section 5.4(b) may not be
assigned except pursuant to a Valid Assignment (in which case CIVC shall not
have the rights under Section 5.4(b) that explicitly reference CIVC and the
Designated Class A Transferee, and only such Designated Class A Transferee will
have such rights); provided further that CIVC's right to approve actions
contained in Sections 5.4(b)(ix) and (xiv) may not be assigned in any event;
provided further that, upon any such Valid Assignment of the approval rights in
Section 5.4(b), the numbers "$5,000,000" and "$15,000,000" in Section 5.4(b)(i)
shall thereafter be "$20,000,000" and "$40,000,000," respectively, the number
"1%" in Section 5.4(b)(vi) shall thereafter be "2%" and the number "$200,000" in
Section 5.4(b)(x) shall thereafter be "$2,000,000." For the avoidance of doubt,
it is understood and agreed that, in the event of any transfer or assignment by
any member of the CIVC Group of any shares of Class A Common (or any subsequent
transfer by any such transferee), the transferee(s) or assignee(s) shall
continue to have, except as otherwise provided in Section 5.4(c) the rights set
forth in Section 5.4(c)(i), in the event CIVC or the Designated Class A
Transferee so elects, to require that the Company purchase, and the Company or
its designee shall continue to have the rights set forth in Section 5.4(c)(ii)
to purchase, the shares so transferred on the terms set forth in Section 5.4(c)
notwithstanding that such shares are no longer held by a member of the CIVC
Group. Nothing in this Section 7.1 or elsewhere in this Agreement is intended
to, nor shall it, limit any obligation of CIVC or any member of the CIVC Group
to comply with the applicable provisions of the Stockholders Agreement in making
any transfer of shares. Any Class L Transferee (as defined in the Class L
Purchase Agreement) that is not otherwise a party to this Agreement may execute
a Transferee Joinder Agreement and become a party to this Agreement with respect
to such transferee's Underlying Common, whereupon such transferee shall become a
Class A Transferee hereunder. A "Valid Assignment" means an assignment of the
rights of CIVC under Section 5.4(b) occurring in connection with a transfer or
series of transfers by members of the CIVC Group to a Person or a group (as such
term is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended) of affiliated Persons of a number of shares of Class A Common acquired
under this Agreement and Underlying Common acquired under the Class L Purchase
Agreement that is at least equal to 60% of the number of shares of Class A
Common and Underlying Common held by the CIVC Group on the date hereof (as
appropriately adjusted for stock splits, stock dividends, recapitalizations and
similar events), where such rights are assigned to the Person (or group of
affiliated Persons) (the "Designated Class A Transferee," it being understood
that if such transfer is to a group of affiliated Persons, the Designated Class
A Transferee shall be the Person controlling such group) to whom such number of
shares is transferred. Solely for purposes of Section 5.4(c), if there is not a
Designated Class A Transferee pursuant to the immediately preceding sentence,
then the Designated Class A Transferee shall be deemed to refer to the holder or
holders of a majority of the then outstanding Class A Common and Underlying
Common purchased by the CIVC Group on the date hereof. Any assignee's or
transferee's rights hereunder shall be subject in all respects to the terms
hereof. For example, an assignee of rights hereunder who does not hold shares of
Class A Common and Senior Common with an original cost of $5,000,000 as of the
Closing would not have any rights under Section 5.4(a) hereof.
7.2 No Third-Party Beneficiaries. Except as provided in Section
5.4(h), this Agreement is for the sole benefit of the parties hereto and their
permitted assigns and nothing
55
herein expressed or implied shall give or be construed to give to any person or
entity, other than the parties hereto and such assigns, any legal or equitable
rights hereunder.
7.3 Termination.
(a) This Agreement may be terminated prior to Closing by written
notice given by any of ▇▇▇▇▇▇▇▇ Ltd., CIVC, the ▇▇▇▇▇▇▇▇ Representatives or the
OEP Entities (each, a "Termination Party" and collectively, the "Termination
Parties") to each other Termination Party, (i) if the Closing shall not have
occurred by January 31, 2003, other than as a result of a default by the party
seeking to terminate, or (ii) if (x) the purchase and sale of the ▇▇▇▇▇▇▇▇
Shares or the Class A Common contemplated hereby shall violate any
non-appealable final order, decree or judgment of any court or governmental body
having competent jurisdiction or (y) there shall be a statute, rule or
regulation which makes the purchase and sale of the ▇▇▇▇▇▇▇▇ Shares or the Class
A Common contemplated hereby illegal or otherwise prohibited.
(b) In the event of termination by any Termination Party pursuant
to paragraph (a) of this Section 7.3, written notice thereof shall forthwith be
given to all other Termination Parties and the transactions contemplated by this
Agreement shall be terminated, without further action by such Termination
Parties. If the transactions contemplated by this Agreement are terminated as
provided herein:
(i) the provisions of Sections 7.5, 7.7, 7.9, 7.10, 7.11,
7.14 and 7.15 hereof shall remain in full force and effect; and
(ii) in no event shall any termination of this Agreement
limit or restrict the rights and remedies of any party hereto against any other
party which has willfully breached any of the agreements or other provisions of
this Agreement prior to termination hereof.
7.4 Survival of Representations, Warranties and Covenants. The
representations, warranties, covenants and agreements made by the parties in or
pursuant to this Agreement or any certificates delivered pursuant to Article III
of this Agreement shall not survive and shall expire upon the occurrence of the
Closing and there shall be no liability on the part of any party for breaches
prior to the Closing of any such representation, warranty, covenant or
agreement, except that the covenants and agreements set forth in Section 5.4 and
Articles I, II, VI and VII hereof shall survive the Closing.
7.5 Transaction Expenses. Whether or not the Transactions are
consummated, all costs and expenses incurred in connection with this Agreement
and the Transactions shall be paid by the party incurring such costs or
expenses, except as may otherwise be expressly provided in this Agreement.
Notwithstanding the foregoing, ▇▇▇▇▇▇▇▇ Ltd. (or the Company at the Closing, if
it occurs) shall pay all fees and expenses of the Company, ▇▇▇▇▇▇▇▇ Ltd., the
▇▇▇▇▇▇▇▇ Investors, CIVC, Continental Illinois Venture Corporation, the OEP
Entities and each of their respective affiliates, representatives, attorneys and
advisors in connection with (i) negotiating and the Closing of the Transactions
and the transactions contemplated by the other agreements referred to herein (it
being understood that one counsel is being retained by CIVC and Continental
Illinois Venture Corporation and one counsel is being retained by the ▇▇▇▇▇▇▇▇
Investors as a group), (ii) the reasonable fees and expenses of CIVC and the
▇▇▇▇▇▇▇▇
56
Representatives incurred with respect to any amendments or waivers (whether or
not the same become effective) under or in respect of this Agreement, the
agreements contemplated hereby, the Company's Certificate of Incorporation
(including, without limitation, in connection with any proposed merger, sale or
recapitalization of the Company), (iii) stamp and other taxes (not including
income taxes) which may be payable in respect of the execution and delivery of
this Agreement or the issuance, delivery or acquisition of any ▇▇▇▇▇▇▇▇ Shares
or any capital stock of the Company (iv) the reasonable fees and expenses
incurred with respect to the enforcement of the rights granted under this
Agreement and the Certificate of Incorporation, if such party prevails in its
enforcement action, and (v) the reasonable fees and expenses incurred by each
such Person in any filing with any governmental agency with respect to its
investment in the Company or in any other filing with any governmental agency
with respect to the Company which mentions such Person; provided that any fees
and expenses arising out of or related to any future filing pursuant to the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act shall be payable only in accordance with Section 5.4(f).
7.6 Amendments. No amendment to or modification of this Agreement
shall be effective unless it shall be in writing and signed by (a) prior to
Closing, each of ▇▇▇▇▇▇▇▇ Ltd., CIVC, the ▇▇▇▇▇▇▇▇ Representatives and the OEP
Entities and (b) after the Closing, the Company, CIVC and the ▇▇▇▇▇▇▇▇
Representatives.
7.7 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given (a) on the date of delivery if delivered
personally; (b) on the date of transmission if sent via facsimile transmission
to the facsimile number given below, and telephonic confirmation of receipt is
obtained promptly after completion of transmission; (c) on the date after
delivery to a reputable nationally recognized overnight courier service; (d)
three days after being mailed by registered or certified mail (return receipt
requested) to the parties at the following addresses (or at such other address
for a party as shall be specified by like notice) or (e) in the case of a
facsimile transmission to the ▇▇▇▇▇▇▇▇ Representatives, when actually received
and acknowledged either verbally or in writing by a party (other than by
automatic facsimile receipt confirmation):
(i) If to the Company:
▇▇▇▇▇▇▇▇ Group Holdings, Inc.
c/o The ▇▇▇▇▇▇▇▇ Group, Ltd.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy to:
Dechert
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
57
(ii) If to CIVC:
CIVC Sidecar Fund, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) If to ▇▇▇▇▇▇▇▇ Ltd., to:
The ▇▇▇▇▇▇▇▇ Group, Ltd.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
With a required copy to:
Dechert
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) If to the ▇▇▇▇▇▇▇▇ Investors, to:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
58
With a required copy to:
Dechert
4000 ▇▇▇▇ Atlantic Tower
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
(v) If to the Stockholders, to the address listed opposite
each Stockholder's name on Exhibit A hereto.
Such addresses may be changed, from time to time by means of a notice given in
the manner provided in this Section (provided that no such notice shall be
effective until it is received by the other parties hereto).
7.8 Fees. ▇▇▇▇▇▇▇▇ Ltd. agrees to pay any fees or commissions owing to
CIBC World Markets Corp. and ▇▇▇▇▇▇ Brothers Inc. in connection with the
issuance and sale of Senior Subordinated Notes pursuant to the Notes Offering.
Other than such fees or commissions owing to CIBC World Markets Corp. and ▇▇▇▇▇▇
Brothers Inc., ▇▇▇▇▇▇▇▇ Ltd. hereby represents that no broker or finder has
acted for ▇▇▇▇▇▇▇▇ Ltd. in connection with this Agreement or the transactions
contemplated hereby and that there is no such party entitled to any brokerage
fee, finder's fee or commission in respect of the ▇▇▇▇▇▇▇▇ Ltd. The Company
hereby represents that no broker or finder has acted for the Company in
connection with this Agreement or the transactions contemplated hereby and that
there is no such party entitled to any brokerage fee, finder's fee or commission
in respect of the Company. CIVC and each Stockholder hereby represents that no
broker or finder has acted for such Person in connection with this Agreement or
the transactions contemplated hereby and that there is no such party entitled to
any brokerage fee, finder's fee or commission in respect of such Person.
7.9 Consent to Jurisdiction. Each of the parties hereto irrevocably
submits to the exclusive jurisdiction of (a) the state courts of the
Commonwealth of Pennsylvania, Bucks County, and (b) the United States District
Court for the Eastern District of Pennsylvania, for the purposes of any suit,
action or other proceeding arising out of this Agreement or any transactions
contemplated hereby. The Company hereby irrevocably designates, appoints and
empowers ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the ▇▇▇▇▇▇▇▇ Investors irrevocably designate,
appoint and empower the ▇▇▇▇▇▇▇▇ Representatives, in each case as its true and
lawful agent and attorney-in-fact in its name, place and stead to receive and
accept on its behalf service of process in any action, suit or proceeding in
Pennsylvania with respect to any matters as to which it has submitted to
jurisdiction as set forth in the immediately preceding sentence.
7.10 Severability. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof.
7.11 Interpretation. All references to immediately available funds or
dollar amounts contained in this Agreement shall mean United States dollars. All
references to GAAP
59
contained in this Agreement shall mean United States generally accepted
accounting principles. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The parties acknowledge and agree that (i)
each party and its counsel have reviewed the terms and provisions of this
Agreement and have contributed to its revision, (ii) the normal rule of
construction, to the effect that any ambiguities are resolved against the
drafting party, shall not be employed in the interpretation of it, and (iii) the
terms and provisions of this Agreement shall be constructed fairly as to all
parties hereto and not in favor of or against any party, regardless of which
party was generally responsible for the preparation of this Agreement. Any fact
or item that is disclosed in a Schedule or representation in such a way as to
make apparent its relevance to the information called for by another Schedule or
representation shall be deemed to have been disclosed in such other Schedule or
representation. Reference in this Agreement to dollar amount thresholds shall
not, for purposes of this Agreement, be deemed to be evidence of materiality or
a Material Adverse Effect.
7.12 Waiver. Waiver of any term or condition of this Agreement by any
party shall be effective if in writing and shall not be construed as a waiver of
any subsequent breach or failure of the same term or condition, or a waiver of
any other term of this Agreement. No failure or delay by any party in exercising
any right, power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or privilege.
7.13 Counterparts. This Agreement may be executed in any number of
counterparts (including by means of facsimile), all of which shall be considered
one and the same agreement, and shall become effective when one or more such
counterparts have been signed by each of the parties and delivered to the other
parties.
7.14 Entire Agreement. This Agreement, including the Schedules hereto
and the other documents and agreements delivered pursuant to or in connection
with this Agreement, contain the entire agreement and understanding between the
parties hereto with respect to the subject matter hereof and supersede all prior
and contemporaneous agreements, negotiations, correspondence, undertakings and
understandings, oral or written, relating to such subject matter.
7.15 Remedies. The parties hereto shall be entitled to enforce their
rights under this Agreement specifically, to recover damages by reason of any
breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages would not be an adequate remedy for any breach of the provisions of this
Agreement and that they shall be entitled to, from any court of law or equity of
competent jurisdiction, specific performance and/or injunctive relief (without
posting a bond or other security) in the event of any breach of this Agreement.
7.16 Governing Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the Commonwealth of Pennsylvania
applicable to agreements made and to be performed entirely within the
Commonwealth of Pennsylvania, without regard to the conflicts of law principles
thereof.
60
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date first written above.
THE ▇▇▇▇▇▇▇▇ GROUP, LTD
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
▇▇▇▇▇▇▇▇ GROUP HOLDINGS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
CIVC SIDECAR FUND, L.P.
By: CIVC GP Sidecar Fund, L.P.
Its: General Partner
By: CIVC Sidecar GP, LLC
Its: General Partner
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title:
CIVC PARTNERS III-B
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title:
/s/ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Centaur Partners V, L.P.
By: S.B. Westridge, Inc., General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇ STREET PARTNERS II
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title:
/s/ ILLEGIBLE
----------------------------------------
The ▇▇▇▇▇▇▇ Family Trust
/s/ ILLEGIBLE
----------------------------------------
The ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Living Trust
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
PPM AMERICA PRIVATE EQUITY FUND, L.P.
By: PPM America Capital Partners, LLC,
its general partner
By: /s/ ILLEGIBLE
-----------------------------------
Name: ILLEGIBLE
Title: Principal
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
OLD HICKORY FUND I, LLC
By: PPM America, Inc., its manager
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
LB I GROUP INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
ANTARES CAPITAL CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
GEC CFE, INC.
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title: VP
CONTINENTAL ILLINOIS VENTURE CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
LASALLE NATIONAL CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: EVP
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: GSVP
FIRST CHICAGO EQUITY CORPORATION
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title:
BANC ONE EQUITY CAPITAL SBIC FUND II,
L.L.C.
By: Banc One Equity Capital Fund II,
L.L.C.
Its: Managing Member
By: Cross Creek Management Company,
L.L.C.
Its: Managing Member
By: /s/ ILLEGIBLE
-----------------------------------
Its: Member
CROSS CREEK PARTNERS VIII
By: /s/ ILLEGIBLE
-----------------------------------
Name:
Title:
BARABOO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ INVESTORS:
THE ▇▇▇▇▇▇▇▇ FOUNDATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇
Exhibit A
Share Ownership; Closing Transfers
See Attached.
Exhibit B
▇▇▇▇▇▇▇▇ Certificate of Incorporation
See Attached.
Exhibit C
Certificate of Incorporation of the Company
See Attached.
Exhibit D
Stockholders Agreement
See Attached.
Exhibit E
Class L Purchase Agreement
See Attached
Exhibit G
Management Equity Incentive Plan
See Attached.
Exhibit H
Transferee Joinder Agreement
FORM OF TRANSFEREE JOINDER AGREEMENT
Effective upon the execution hereof, the undersigned hereby agrees to
become a party to that certain Recapitalization Agreement, dated as of the
Effective Date (as defined therein), as amended from time to time, by and among
▇▇▇▇▇▇▇▇ Group Holdings, Inc., a Delaware corporation, ▇▇▇▇▇▇▇▇ Ltd., a Delaware
corporation, and each of the stockholders and other parties from time to time a
party thereto (the "Recapitalization Agreement"). The undersigned, by executing
this joinder agreement, shall be entitled to all of the rights and subject to
all of the obligations of a member of the CIVC Group under the Recapitalization
Agreement.
Date: , 200
------------------ -
----------------------------------------
[Name]