Exhibit 5
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EXECUTION COPY
▇.▇. ▇▇▇▇▇▇▇▇▇ CORPORATION
PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
Dated as of September 21, 2002
TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS...................................................1
Section 1.01. Definitions..........................................1
ARTICLE II. SALE AND PURCHASE OF THE PREFERRED SHARES AND WARRANTS........8
Section 2.01. Sale and Purchase of the Preferred Shares
and the Warrants.....................................8
Section 2.02. Closing..............................................8
Section 2.03. Use of Proceeds......................................9
Section 2.04. Share Adjustment.....................................9
Section 2.05. Allocation..........................................10
ARTICLE III. REPRESENTATIONS AND WARRANTIES...............................10
Section 3.01. Representations and Warranties of the Company.......10
Section 3.02. Representations and Warranties of the Purchasers....22
ARTICLE IV. COVENANTS OF THE PARTIES.....................................23
Section 4.01. Taking of Necessary Action..........................23
Section 4.02. Conduct of Business.................................24
Section 4.03. Financial Statements and Other Reports..............26
Section 4.04. Restricted Actions..................................26
Section 4.05. Required Actions....................................28
Section 4.06. Termination of Obligations..........................29
Section 4.07. Inspection of Property..............................30
Section 4.08. Lost, Stolen, Destroyed or Mutilated Securities.....30
Section 4.09. Listing.............................................30
Section 4.10. Restrictions on Sale or Transfer; Legend............31
Section 4.11. Notice of Breach....................................32
Section 4.12. Non-Disclosure; Interim Public Filings..............32
Section 4.13. Governance Rights...................................33
Section 4.14. Other Transaction Documents.........................34
Section 4.15. Transfer Taxes......................................34
Section 4.16. Dividends...........................................35
Section 4.17. Certain Information Rights..........................35
ARTICLE V. CONDITIONS...................................................35
Section 5.01. Conditions of Purchase..............................35
Section 5.02. Conditions of Sale..................................37
ARTICLE VI. TERMINATION..................................................38
Section 6.01. Termination.........................................38
Section 6.02. Effect of Termination...............................38
ARTICLE VII. SURVIVAL; CERTAIN REMEDIES...................................39
Section 7.01. Survival............................................39
Section 7.02. Indemnification by the Purchasers...................39
Section 7.03. Indemnification by the Company......................39
Section 7.04. Certain Qualifications..............................39
Section 7.05. Indemnification Procedures..........................40
Section 7.06. Liability Limits....................................41
Section 7.07. Duplication.........................................42
Section 7.08. Exclusive Remedies..................................42
ARTICLE VIII. MISCELLANEOUS................................................42
Section 8.01. Notices.............................................42
Section 8.02. Entire Agreement; Amendments; Waivers...............43
Section 8.03. Counterparts........................................43
Section 8.04. Governing Law.......................................43
Section 8.05. Public Announcements................................44
Section 8.06. Closing Payment; Expenses...........................44
Section 8.07. Successors and Assigns..............................44
Section 8.08. Jurisdiction........................................44
Section 8.09. Captions; References................................44
Section 8.10. Severability........................................45
Section 8.11. Aggregation of Stock................................45
Exhibits
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Exhibit A Form of Certificate of Designations
Exhibit B Certain Officers of the Company
Exhibit C Form of Registration Rights Agreement
Exhibit D Form of Warrant
Exhibit E Form of Legal Opinion
Schedules
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Schedule A Purchasers; Specified Purchase Price
Schedule 2.04 Share Adjustment
Schedule 3.01(b) Company Subsidiaries
Schedule 3.01(c) Exceptions No Conflicts Representation
Schedule 3.01(d) Capitalization
Schedule 3.01(h) Litigation
Schedule 3.01(i)(i) Company Plans and Employee Agreements
Schedule 3.01(i)(vii) Retirement and Termination Benefits
Schedule 3.01(i)(viii) Certain Exceptions Related to Company Plans and
Employee Agreements Representation
Schedule 3.01(j) Exceptions to Absence of Certain Changes Representation
Schedule 3.01(o) Exceptions to Title to Properties; Insurance
Representation
Schedule 3.01(t) Commitments
Schedule 3.01(u) Exceptions to Absence of Undisclosed Liabilities
Representation
Schedule 4.01 Certain Consents
Schedule 4.02 Exceptions to Conduct of Business Covenant
PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT, dated as of
September 21, 2002 (this "AGREEMENT"), by and among ▇.▇. ▇▇▇▇▇▇▇▇▇
Corporation, a Delaware corporation (the "COMPANY"), and the investors
listed in Schedule A (each, a "PURCHASER"). Capitalized terms not otherwise
defined where used herein shall have the meanings ascribed thereto in
Article I.
RECITALS:
A. The Company has authorized a new series of its preferred
stock, par value $1 per share, called the Convertible Cumulative Preferred
Stock (the "PREFERRED STOCK"), which is convertible into shares of Common
Stock in accordance with the terms of the Company's Certificate of
Designations governing the Preferred Stock, in the form of Exhibit A (the
"CERTIFICATE OF DESIGNATIONS").
B. The Purchasers have agreed to purchase from the Company, and
the Company has agreed to sell to the Purchasers, subject to the terms and
conditions of this Agreement, shares of the Preferred Stock and the
Warrants.
C. The Company and the Purchasers desire to set forth certain
agreements herein.
AGREEMENT:
NOW THEREFORE, in consideration of the premises and the
representations, warranties and agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound hereby, the parties hereby
agree as follows:
ARTICLE I. DEFINITIONS
Section 1.01. Definitions. As used in this Agreement, the
following terms shall have the meanings set forth below:
"AFFILIATE" or "AFFILIATE" shall mean, with respect to any
Person, any other Person that directly or indirectly controls or is
controlled by or is under common control with such Person. As used in
this definition, "control" (including its correlative meanings,
"controlled by" and "under common control with") shall mean
possession, directly or indirectly, of power to direct or cause the
direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise) of such Person.
"AFFILIATE TRANSACTION" shall have the meaning set forth in
Section 4.04(b).
"AGREEMENT" shall have the meaning set forth in the preamble.
"ALLOCATION" shall have the meaning set forth in Section 2.05.
"ANCILLARY DOCUMENTS" shall mean the Certificate of Designations,
the Registration Rights Agreement, the Warrants and all other
contracts, agreements and other documents being executed and delivered
by the parties hereto pursuant to or in connection with this Agreement
or the transactions contemplated hereby or thereby, but does not
include the Other Transaction Documents.
"BALANCE SHEET" shall have the meaning set forth in Section
3.01(e).
"BUSINESS DAY" shall mean any day, other than a Saturday, Sunday
or a day on which banking institutions in New York City are authorized
or obligated by law or executive order to close.
"CENDON" shall mean CenDon, L.L.C., a Delaware limited liability
company.
"CERTIFICATE OF DESIGNATIONS" shall have the meaning set forth in
the recitals.
"CERTIFICATE OF INCORPORATION" shall have the meaning set forth
in Section 3.01(j).
"CLOSING" shall have the meaning set forth in Section 2.02(a).
"CLOSING DATE" shall have the meaning set forth in Section
2.02(a).
"CLOSING PAYMENT" shall have the meaning set forth in Section
8.06(a).
"CODE" shall mean the Internal Revenue Code of 1986.
"COMMITMENT" shall have the meaning set forth in Section 3.01(t).
"COMMITMENT LETTER" shall mean the (i) commitment letter, dated
September 18, 2002, among Deutsche Bank Securities Inc., Deutsche Bank
Trust Company Americas, Citicorp North America, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc., Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., Bear ▇▇▇▇▇▇▇ & Co.
Inc., ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation and ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., (ii) the fee
letter, dated September 18, 2002, among Deutsche Bank Securities Inc.,
Deutsche Bank Trust Company Americas, Citicorp North America, Inc.,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc., Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., Bear
▇▇▇▇▇▇▇ & Co. Inc., ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation and ▇.▇. ▇▇▇▇▇▇▇▇▇
Inc., (iii) the engagement letter, dated September 18, 2002, among
Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., Bear ▇▇▇▇▇▇▇
& Co. Inc., ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation and ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., (iv)
the side letter related to an increase in the commitment amount, dated
September 18, 2002, among Deutsche Bank Securities Inc., Deutsche Bank
Trust Company Americas, Citicorp North America, Inc., ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ Inc., Bear ▇▇▇▇▇▇▇ Corporate Lending Inc., Bear ▇▇▇▇▇▇▇ & Co.
Inc., ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation and ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., and (v) the
side letter related, in part, to the appointment of joint bookrunners,
dated September 18, 2002, among Deutsche Bank Securities Inc., ▇▇▇▇▇▇▇
▇▇▇▇▇ Barney Inc., Bear ▇▇▇▇▇▇▇ & Co. Inc., ▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation
and ▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., and the exhibits, annexes and schedules to
items (i) - (v).
"COMMON STOCK" shall mean the common stock, par value $1 per
share, of the Company, including any associated Right, as defined in
and issued pursuant to the Rights Agreement.
"COMMON STOCK EQUIVALENTS" shall have the meaning set forth in
Section 2.04.
"COMPANY" shall have the meaning set forth in the preamble.
"COMPANY CERTIFICATE" shall have the meaning set forth in Section
5.01(d).
"COMPANY INDEMNIFIED PARTY" shall have the meaning set forth in
Section 7.02.
"COMPANY PLAN" shall mean each plan, program or policy, payroll
practice, contract, agreement or other arrangement providing for
compensation, severance, termination pay, performance awards, stock or
stock-related awards, profit-sharing, pensions, deferred or incentive
compensation, retirement insurance, fringe benefits or other material
employee benefits for Employees which is now or previously has been
sponsored, maintained, contributed to or required to be contributed to
by the Company or any Company Subsidiary or pursuant to which the
Company or any of the Company Subsidiaries has or may have any
liability.
"COMPANY SUBSIDIARY" and "COMPANY SUBSIDIARIES" shall have the
meanings set forth in Section 3.01(b).
"DESIGNATED TRANSFEREE" shall have the meaning set forth in the
Certificate of Designations.
"DONTECH" shall mean the DonTech II partnership created by the
DonTech II Partnership Agreement.
"DONTECH PARTNERSHIP AGREEMENT" shall mean the DonTech II
Partnership Agreement, effective as of August 19, 1997, by and between
▇.▇. ▇▇▇▇▇▇▇▇▇ Inc., a Delaware Corporation, and Ameritech Publishing
of Illinois, Inc.
"EMPLOYEE" shall mean each current, former or retired employee,
officer or director of the Company or a Company Subsidiary.
"EMPLOYEE AGREEMENT" shall mean each employment, severance or
similar agreement, which is in effect on the date hereof or by which
the Company or any Company Subsidiary is bound, between the Company or
a Company Subsidiary and an Employee.
"ENVIRONMENTAL LAWS" shall have the meaning set forth in Section
3.01(q).
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
"ERISA AFFILIATE" shall mean, with respect to any Person, any
entity that is (i) a member of a "controlled group of corporations,"
under "common control" or a member of an "affiliated service group"
within the meaning of Sections 414(b), (c) or (m) of the Code with
such person, (ii) required to be aggregated under Section 414(o) of
the Code with such person, or (iii) under "common control" with such
person, within the meaning of Section 4001(a)(14) of ERISA, or any
regulations promulgated or proposed under any of the foregoing
Sections of the Code or ERISA.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934.
"GAAP" shall mean generally accepted accounting principles in the
United States of America in effect from time to time.
"GOLDMAN ENTITIES" shall mean each of GSCP 2000, GS Capital
Partners 2000 Offshore, L.P., a Cayman Islands exempted limited
partnership, GS Capital Partners 2000 Employee Fund 2000, L.P., a
Delaware limited partnership, GS Capital Partners 2000 GmbH & Co.
Beteiligungs KG, a German limited partnership, and ▇▇▇▇▇▇▇ Sachs
Direct Investment Fund 2000, L.P. a Delaware limited partnership.
"GOVERNMENTAL ENTITY" shall mean any court, department, body,
board, bureau, administrative agency or commission or other
governmental authority or instrumentality, whether federal, state,
local or foreign.
"GSCP 2000" shall mean GS Capital Partners 2000, L.P., a Delaware
limited partnership.
"HSR ACT" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements
Act of 1976.
"INDEMNIFICATION CLAIM NOTICE" shall have the meaning set forth
in Section 7.05(a).
"INDEMNIFIED PARTY" shall have the meaning set forth in Section
7.05(a).
"INDEMNIFYING PARTY" shall have the meaning set forth in Section
7.05(a).
"INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 3.01(r).
"KNOWLEDGE" shall mean the actual knowledge of the officers of
the Company listed on Exhibit B after reasonable investigation and
inquiry.
"LIABILITY" shall mean any debt, liability or obligation, whether
known or unknown, asserted or unasserted, accrued, absolute,
contingent or otherwise, whether due or to become due.
"LIENS" shall mean any liens, mortgages, deeds of trust, pledges,
security interests, charges, claims, leasehold interests, tenancies,
restrictions and encumbrances of any nature whatsoever.
"LITIGATION" shall have the meaning set forth in Section 3.01(h).
"LOSSES" shall mean each and all of the following items: claims,
losses (including, without limitation, losses of earnings),
liabilities, obligations, payments, damages (actual but not punitive
or consequential), charges, judgments, fines, penalties, amounts paid
in settlement, and costs and expenses (including, without limitation,
interest that may be imposed in connection therewith, costs and
expenses of investigation, suits, proceedings, demands, assessments
and fees, expenses and disbursements of counsel, consultants, and
other experts.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any
reference to a state of facts, event, change, effect or condition,
such state of facts, event, change, effect or condition that has had,
has, or could reasonably be expected to have, a material adverse
effect on (i) the business, assets, operations, properties, condition
(financial or otherwise), prospects, contingent liabilities or
material agreements of the Company and the Company Subsidiaries, taken
as a whole (ii) the ability of the Company or any Company Subsidiary
to perform its obligations under this Agreement, the Ancillary
Documents or any Other Transaction Document, or (iii) the validity or
enforceability of this Agreement, the Ancillary Documents or any Other
Transaction Document or the rights or remedies of the Purchasers
hereunder and thereunder. Notwithstanding anything contained herein to
the contrary, the commencement by or against the Company or any
Company Subsidiary of any case, proceeding or other action under any
law relating to bankruptcy, insolvency or reorganization or the
seeking of an appointment of a receiver, trustee, custodian or other
similar official for the Company or any Company Subsidiary or for all
or any substantial part of the Company's or any Company Subsidiary's
assets, shall be deemed a Material Adverse Effect.
"NET INCOME" shall mean with respect to the Net Income for any
period, the amount reported in the line item of the Company's
financial statements for such period entitled "Net Income" which
financial statements appear in the most recent filing by the Company
with the Securities and Exchange Commission.
"OTHER TRANSACTION DOCUMENTS" shall mean the Sprint Purchase
Agreement, the Sprint Transaction Documents, the Senior Credit
Facility Documents, the Senior Subordinated Credit Facility Documents,
the Senior Subordinated Notes Documents and the Commitment Letter.
"PENSION PLAN" shall mean each Company Plan (other than a
"multiemployer plan" (as defined in ERISA Section 3(37)) that is an
"employee pension benefit plan" within the meaning of Section 3(2) of
ERISA.
"PERMITS" shall mean any licenses, permits, accreditations,
consents, registrations, certificates, and other governmental or
regulatory permits, accreditations, authorizations or approvals
required for the operation of the businesses of the Company and the
Company Subsidiaries and for the ownership, lease or operation of the
Company's and the Company Subsidiaries' properties.
"PERMITTED LIENS" shall mean (i) Liens for Taxes not yet due and
payable, (ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and repairmen incurred in the
ordinary course of business and not yet delinquent, (iii) matters of
record set forth on the title insurance policy insuring title to the
owned real property and (iv) zoning, building or other restrictions,
variances, covenants, rights of way, encumbrances, easements and other
minor irregularities in title, none of such items in (i) - (iv) which,
individually or in the aggregate, materially and adversely detract
from the value of the owned or leased real property based on its
current use or interfere in any material respect with the current use
or occupancy of such owned or leased real property.
"PERSON" or "PERSON" shall mean an individual, corporation,
association, partnership, group (as defined in Section 13(d)(3) of the
Exchange Act and the rules and regulations promulgated thereunder),
trust, joint venture, business trust or unincorporated organization,
or a government or any agency or political subdivision thereof.
"PREFERRED SHARES" shall have the meaning set forth in Section
2.01.
"PREFERRED STOCK" shall have the meaning set forth in the
recitals.
"PRINCIPAL MARKET" shall have the meaning set forth in Section
4.09.
"PURCHASE PRICE" shall have the meaning set forth in Section
2.01.
"PURCHASER" shall have the meaning set forth in the preamble.
"PURCHASER DESIGNEES" shall mean the Directors (i) elected by the
Purchasers to the Company's Board of Directors pursuant to Section 8
of the Certificate of Designations and (ii) designated pursuant to
Section 4.13(a).
"PURCHASER INDEMNIFIED PARTY" shall have the meaning set forth in
Section 7.03.
"PURCHASER'S CERTIFICATE" shall have the meaning set forth in
Section 5.02(d).
"REGISTRABLE SHARES" shall have the meaning set forth in the
Registration Rights Agreement.
"REGISTRATION RIGHTS AGREEMENT" shall mean the registration
rights agreement to be executed by the Company and each Purchaser at
the Closing, which shall be substantially in the form attached hereto
as Exhibit C.
"REPORTS" shall have the meaning set forth in Section 3.01(f).
"RIGHTS AGREEMENT" shall mean the Rights Agreement, dated as of
October 27, 1998, as amended, by and between the Company and The Bank
of New York (successor to First Chicago Trust Company of New York), as
Rights Agent.
"SEC" shall mean the United States Securities and Exchange
Commission.
"SECTION 203" shall have the meaning set forth in Section
3.01(s).
"SECURITIES ACT" shall mean the Securities Act of 1933.
"SENIOR CREDIT FACILITY" shall mean the Senior Facilities, as
defined in the Commitment Letter.
"SENIOR CREDIT FACILITY DOCUMENTS" shall mean any and all
agreements, documents and instruments evidencing or governing the
Senior Credit Facility.
"SENIOR OFFICER'S CERTIFICATE" shall have the meaning set forth
in Section 4.03(a).
"SENIOR SUBORDINATED CREDIT FACILITY" shall mean the Senior
Subordinated Facility, as defined in the Commitment Letter.
"SENIOR SUBORDINATED CREDIT FACILITY DOCUMENTS" shall mean any
and all agreements, documents and instruments evidencing or governing
the Senior Subordinated Credit Facility.
"SENIOR SUBORDINATED NOTES" shall have the meaning set forth in
the Commitment Letter.
"SENIOR SUBORDINATED NOTES DOCUMENTS" shall mean any and all
agreements, documents and instruments evidencing or governing the
Senior Subordinated Notes.
"SPECIFIED PURCHASE PRICE" shall have the meaning set forth in
Section 2.01.
"SPRINT" shall mean Sprint Corporation, a Kansas corporation.
"SPRINT PURCHASE AGREEMENT" shall mean the Stock Purchase
Agreement, dated as of September 21, 2002, by and among Sprint, Centel
Directories LLC, a Delaware limited liability company, and the
Company.
"SPRINT TRANSACTION" shall mean the purchase and sale of the
Shares (as defined in the Sprint Purchase Agreement) pursuant to the
terms and subject to the conditions of the Sprint Purchase Agreement
and the other Sprint Transaction Documents.
"SPRINT TRANSACTION DOCUMENTS" shall mean the Sprint Purchase
Agreement and the Ancillary Agreements (as defined in the Sprint
Purchase Agreement).
"SUBSIDIARY" shall mean, with respect to any corporation (the
"parent") any other corporation, association or other business entity
of which more than 50% of the shares of the voting stock are owned or
controlled, directly or indirectly, by the parent or one or more
Subsidiaries of the parent, or by the parent and one or more of its
Subsidiaries.
"TAX" and "TAXES" shall mean any and all federal, state, local,
foreign or other taxes of any kind (together with any and all
interest, penalties, additions to tax and additional amounts imposed
with respect thereto) imposed by any taxing authority, including,
without limitation, taxes or other charges on or with respect to
income, franchises, windfall or other profits, gross receipts,
property, sales, use, capital stock, payroll, employment, social
security, workers' compensation, unemployment compensation, or net
worth, and taxes or other charges in the nature of excise,
withholding, ad valorem or value added, and includes, without
limitation, any liability for Taxes of another person, as a transferee
or successor, under Treas. Reg. Section 1.1502-6 or analogous
provision of law or otherwise.
"TAX RETURN" shall mean any return, report or similar statement
(including the attached schedules) required to be filed with respect
to any Tax, including, without limitation, any information return,
claim for refund, amended return or declaration of estimated Tax.
"TERMINATING BREACH" shall have the meaning set forth in Section
6.01(e).
"TRANSFER" shall have the meaning set forth in Section 4.10(a).
"VOTING EQUITY INTERESTS" shall have the meaning set forth in the
Certificate of Designations.
"WARRANTS" shall have the meaning set forth in Section 2.01.
ARTICLE II. SALE AND PURCHASE OF THE PREFERRED
SHARES AND WARRANTS
Section 2.01. Sale and Purchase of the Preferred Shares and the
Warrants. Subject to the terms and conditions of this Agreement, and in
reliance upon the representations and warranties hereinafter set forth, the
Company will sell to the Purchasers, and the Purchasers will purchase from
the Company, (i) 200,000 shares of the Preferred Stock (as such number may
be adjusted pursuant to Section 2.04, the "PREFERRED SHARES") and (ii)
warrants to purchase 1,650,000 shares of Common Stock on the terms and
subject to the conditions of the certificate for the Warrants in
substantially the form attached hereto as Exhibit D (the "WARRANTS"), for
an aggregate purchase price of $200.0 million (the "PURCHASE PRICE"). The
number of shares of the Preferred Stock and the number of warrants to be
purchased by each Purchaser at the Closing and the portion of the aggregate
purchase price to be paid by each Purchaser at the Closing in the exchange
therefor, shall be as specified in Schedule A (with respect to each such
Purchaser, such Purchaser's "SPECIFIED PURCHASE PRICE").
Section 2.02. Closing. (a) Subject to the satisfaction or waiver
of the conditions set forth in this Agreement, the closing of the
transactions contemplated by Section 2.01 (the "CLOSING") shall take place
immediately prior to or concurrently with the closing of the Sprint
Transaction, or at such other time as may be mutually agreed upon by the
Purchasers and the Company (the "CLOSING DATE"). The Closing shall occur on
the Closing Date at the offices of ▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
(b) At the Closing: (i) the Company will deliver to the
Purchasers certificates for the Preferred Shares to be sold in accordance
with the provisions of Section 2.01 registered in the respective names and
proportions set forth in Schedule A; (ii) the Company will deliver to the
Purchasers certificates for the Warrants, to be sold in accordance with the
provisions of Section 2.01, in each case duly executed in favor of the
respective names and in the proportions set forth in Schedule A; (iii)
subject to Section 8.06(a), each Purchaser, in full payment for the
Preferred Shares and the Warrants, will deliver to the Company immediately
available funds, by wire transfer to such account as the Company shall
specify, such Purchaser's Specified Purchase Price; and (iv) each party
shall take or cause to happen such other actions, and shall execute and
deliver such other instruments or documents, as shall be required under
Article V.
Section 2.03. Use of Proceeds. The Company shall use the proceeds
from the sale of the Preferred Shares and the Warrants solely (i) to pay
the consideration payable to Sprint or its Affiliates in or as a result of
the Sprint Transaction and (ii) to pay the fees and out-of-pocket expenses
relating to the transactions contemplated hereby and under the Other
Transaction Documents.
Section 2.04. Share Adjustment. If, on or prior to the Closing
Date (or in connection with the Senior Credit Facility, the Senior
Subordinated Credit Facility and/or the Senior Subordinated Notes), the
Company shall issue or sell any shares of Common Stock or any options,
warrants or other equity securities of any nature convertible into or
exchangeable for shares of Common Stock ("COMMON STOCK EQUIVALENTS"), then
the Company shall issue to the Purchasers an additional number of shares of
Preferred Stock determined by multiplying the number of Preferred Shares
then outstanding (which, in the case of an adjustment, if any, to be made
on the Closing Date, shall be 200,000) by a fraction, the numerator of
which shall be the number of shares of Common Stock or Common Stock
Equivalents issued (a) in the case of an adjustment, if any, to be made on
the Closing Date, from the date hereof to the Closing Date or (b) in the
case of an adjustment, if any, to be made after the Closing Date, since the
later of the Closing Date or the date of any prior adjustment made pursuant
to this Section 2.04, and the denominator of which shall be the number of
Voting Equity Interests outstanding immediately prior to such issuance of
Common Stock or Common Stock Equivalents, excluding (1) any Preferred
Shares the outstanding, if any, (2) any shares of Common Stock issuable
upon conversion of the Preferred Shares then outstanding, if any, (3) any
shares of Common Stock issuable upon exercise of the Warrants, and (4) the
Common Stock or Common Stock Equivalents issued (a) in the case of an
adjustment, if any, to be made on the Closing Date, from the date hereof to
the Closing Date or (b) in the case of an adjustment, if any, to be made
after the Closing Date, since the later of the Closing or the date of any
prior adjustment made pursuant to this Section 2.04. Such number of
additional shares will be allocated in a proportional amount to the
Purchasers based on the allocation contained in Schedule A. Schedule 2.04
sets forth an example of how this adjustment provision will work.
Section 2.05. Allocation. On or prior to the Closing Date, the
Purchasers will submit to the Company for the Company's approval (which
shall not be unreasonably withheld) an allocation of the Purchase Price
(the "ALLOCATION"), which Allocation will allocate the Purchase Price
amongst the Warrants and the Preferred Shares. The parties agree to report
the sale and purchase of the Preferred Shares and Warrants for all federal,
state, local and foreign tax purposes in a manner consistent with the
Allocation and agree to take no position inconsistent with the foregoing
(unless otherwise required by a final determination by the appropriate
taxing authority).
ARTICLE III. REPRESENTATIONS AND WARRANTIES
Section 3.01. Representations and Warranties of the Company. The
Company represents and warrants to the Purchasers as follows:
(a) Organization and Good Standing of the Company; Authorization.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all requisite
corporate power and authority and governmental authorizations to own,
operate and lease its properties and to carry on its business as it is now
being conducted, and is duly licensed or qualified to do business in each
other jurisdiction in which it owns or leases properties, or conducts
business, so as to require such qualification, except where the failure to
be so licensed or qualified in any such jurisdiction would not constitute a
Material Adverse Effect. The Company has the corporate power and authority
to execute and deliver this Agreement and the Ancillary Documents and
perform its obligations hereunder and thereunder. The execution and
delivery of this Agreement and the Ancillary Documents and the performance
by the Company of its covenants and agreements under this Agreement and the
Ancillary Documents have been duly and validly authorized by the Board of
Directors of the Company, and no other corporate proceedings on the part of
the Company (including, without limitation, any stockholder vote or
approval) are necessary to authorize the execution, delivery and
performance of this Agreement or the Ancillary Documents or the
consummation of the transactions contemplated hereby and thereby
(including, without limitation, the issuance of Common Stock upon
conversion of the Preferred Stock and upon exercise of the Warrants). This
Agreement and the Ancillary Documents have been duly executed and delivered
by the Company and constitute the valid and binding agreements of the
Company, enforceable against the Company in accordance with their terms,
except that (a) such enforcement may be subject to any bankruptcy,
insolvency, reorganization moratorium, fraudulent transfer or other laws,
now or hereafter in effect relating to or limiting creditors' rights
generally, and (b) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any proceeding therefor may be
brought.
(b) Organization and Good Standing of Company Subsidiaries and
DonTech. (i) Schedule 3.01(b) lists all Subsidiaries of the Company and
their respective jurisdictions of incorporation (collectively, the "COMPANY
SUBSIDIARIES" and each, a "COMPANY SUBSIDIARY;" provided, that for the
purposes of all other defined terms in this Agreement, Section 3.01,
Section 4.03, and Section 4.07, DonTech shall not be deemed to be a Company
Subsidiary, and provided, further, that with respect to the covenants and
agreements as to Company Subsidiaries made in this Agreement, DonTech shall
be deemed to be a Company Subsidiary, but the Company's obligations with
respect to DonTech in this regard shall be limited to the extent the
Company has rights under the DonTech Partnership Agreement that would
permit it to comply with such obligations without violating any obligations
of the Company, including its fiduciary obligations, under the DonTech
Partnership Agreement or otherwise in respect to DonTech). Except as set
forth in Schedule 3.01(b), the Company owns, directly or indirectly, all
the shares of outstanding capital stock of each Company Subsidiary. Except
as set forth in Schedule 3.01(b), (A) there are outstanding no securities
or rights convertible into or exchangeable for shares of any capital stock
of any Company Subsidiary and (B) there are no contracts, commitments,
understandings or arrangements by which any Company Subsidiary is bound to
issue additional shares of its capital stock or options, warrants or rights
to purchase or acquire any additional shares of its capital stock. All of
the shares of capital stock of each of the Company Subsidiaries are duly
and validly authorized, fully paid and non-assessable and, except as set
forth in Schedule 3.01(b), are owned by the Company free and clear of any
Lien with respect thereto. Each Company Subsidiary is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and has all requisite corporate power and
authority and governmental authorizations to own, operate and lease its
properties and to carry on its business as it is now being conducted, and
is duly licensed or qualified to do business in each other jurisdiction in
which it owns or leases properties, or conducts any business, so as to
require such qualification, except where the failure to be so licensed or
qualified in any such jurisdiction would not constitute a Material Adverse
Effect.
(ii) To the Company's knowledge, DonTech is a general
partnership duly organized, validly existing and in good standing
under the laws of the State of Illinois, and has all requisite
power and authority and governmental authorizations to own,
operate and lease its properties and to carry on its business as
it is now being conducted, and is duly licensed or qualified to
do business in each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such
qualification, except where failure to be so licensed or
qualified in any such jurisdiction would not constitute a
Material Adverse Effect. The Company, indirectly through ▇.▇.
▇▇▇▇▇▇▇▇▇ Inc., owns 50% of the general partnership interests of
DonTech.
(c) No Conflicts. Except as set forth in Schedule 3.01(c),
neither the execution and delivery of this Agreement or the Ancillary
Documents nor the consummation of the transactions contemplated by this
Agreement or the Ancillary Documents will (i) conflict with or result in
any breach of any provision of the incorporation documents or By-laws of
the Company or any Company Subsidiary, (ii) except for applicable
requirements of the HSR Act, require any filing with, or the obtaining of
any permit, authorization, consent or approval of, any Governmental Entity,
(iii) violate, conflict with or result in a default (or any event which,
with notice or lapse of time or both, would constitute a default) or
require any consent under, or give rise to any right of termination,
cancellation or acceleration under, any of the terms, conditions or
provisions of any note, mortgage, other evidence of indebtedness,
guarantee, license, agreement, lease or other contract, instrument or
obligation to which the Company or any Company Subsidiary or, to the
Company's knowledge, DonTech is a party or by which the Company or any
Company Subsidiary or any of their respective assets or, to the Company's
knowledge, DonTech or any of its respective assets may be bound, or (iv)
violate any order, injunction, decree, statute, rule or regulation
applicable to the Company, excluding from the foregoing clauses (ii), (iii)
and (iv) such requirements, violations, conflicts, defaults or rights that
would not constitute a Material Adverse Effect.
(d) Capitalization. Schedule 3.01(d) sets forth (i) the
authorized capital stock of the Company, the number of shares of each class
of capital stock issued and outstanding and the number of shares of Common
Stock reserved for issuance in connection with employee benefit, stock
option and dividend reinvestment plans in each case as of the date hereof,
and (ii) all options, warrants, rights to subscribe to, scrip calls,
contracts, undertakings, arrangements and commitments to issue which may
result in the issuance of equity securities of the Company, in each case
setting forth the identity of the holder thereof, the exercise or similar
price and the date of expiration or termination thereof. All of the issued
and outstanding shares of the Company's capital stock have been duly and
validly authorized and issued and are fully paid and non-assessable and are
not subject to any preemptive rights. Except as set forth in Schedule
3.01(d) or pursuant to this Agreement, the Rights Agreement, the Warrants
or the Certificate of Designations, (i) no equity securities of the Company
are or may be required to be issued by reason of any options, warrants,
rights to subscribe to, scrip calls or commitments of any character
whatsoever, (ii) there are outstanding no securities or rights convertible
into or exchangeable for shares of any capital stock of the Company, and
(iii) there are no contracts, commitments, understandings or arrangements
by which the Company is bound to issue additional shares of its capital
stock or securities or rights convertible into or exchangeable for shares
of any capital stock of the Company, or options, warrants or rights to
purchase or acquire any additional shares of its capital stock. Neither the
Company nor any Company Subsidiary is subject to any obligation (contingent
or otherwise) to repurchase or otherwise acquire or retire any of its
capital stock. Except as set forth in Schedule 3.01(d), there are no
contracts, agreements or understandings between the Company and any Person
granting such Person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company owned or to be owned by such Person or to require
the Company to include such securities in any other registration statement
filed by the Company under the Securities Act.
(e) Financial Statements. The Company has previously delivered to
the Purchasers copies of (i) the consolidated balance sheet of the Company
and the Company Subsidiaries as of December 31 for the fiscal years 2000
and 2001, and the related consolidated statements of operations, statements
of stockholders' equity and cash flows for the fiscal years 1999 through
2001, inclusive, as reported in the Company's Annual Report on Form 10-K
(as amended) for the fiscal year ended December 31, 2001, filed by the
Company with the SEC under the Exchange Act, in each case accompanied by
the audit report of PricewaterhouseCoopers LLP, independent public
accountants, and (ii) the unaudited consolidated balance sheet of the
Company and the Company Subsidiaries as of June 30, 2002 (the "BALANCE
SHEET") and the related unaudited consolidated statement of operations,
statements of stockholders' equity and cash flows for the three- and
six-month periods then ended as reported in the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2002, filed with the SEC under
the Exchange Act. All of such financial statements fairly present the
consolidated financial position of the Company and the Company Subsidiaries
as of the dates shown and the results of the consolidated operations,
statements of stockholders' equity and cash flows of the Company and the
Company Subsidiaries for the respective fiscal periods or as of the
respective dates therein set forth, in each case subject, as to interim
statements, to changes resulting from year-end adjustments (none of which
will be material in amount and effect). All of such financial statements
have been prepared in accordance with GAAP consistently applied during the
periods involved, except as otherwise set forth in the notes thereto, and
the Company and the Company Subsidiaries have no liabilities or obligations
of any nature (absolute, accrued, contingent or otherwise) which are not
fully reflected or reserved against in the balance sheet as of June 30,
2002, included in such financial statements, except for liabilities that
may have arisen in the ordinary and usual course of business and consistent
with past practice and that, individually or in the aggregate, would not
constitute a Material Adverse Effect. Neither the Company nor any Company
Subsidiary has entered into any off-balance sheet arrangements or
transactions.
(f) Reports. The Company has filed all reports, registration
statements, proxy statements and other materials, together with any
amendments required to be made with respect thereto, that were required to
be filed with the SEC under the Securities Act or the Exchange Act after
July 1, 1998 (all such reports and statements are collectively referred to
herein as the "REPORTS") and with the New York Stock Exchange. As of their
respective dates, the Reports, including the financial statements contained
therein, complied in all material respects with all of the statutes and
published rules and regulations enforced or promulgated by the regulatory
authority with which they were filed, except to the extent the information
in any Report has been revised or superseded by a later filed Report, did
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading. There are no facts existing as of the date
hereof peculiar to the Company or any Company Subsidiary which the Company
has not disclosed in the Reports or to the Purchasers in writing which,
either individually or in the aggregate, would constitute a Material
Adverse Effect. To the Company's knowledge, there are no facts existing as
of the date hereof peculiar to DonTech that the Company has not disclosed
in the Reports or to the Purchasers in writing which, either individually
or in the aggregate, would constitute a Material Adverse Effect.
(g) Compliance with Applicable Law. Each of the Company, each
Company Subsidiary and, to the Company's knowledge, DonTech is not in
default or violation in any respect of any law, statute, rule, regulation,
policy or guideline of any Governmental Entity applicable to the Company,
any of the Company Subsidiaries or DonTech, as the case may be, other than
such defaults or violations that, either individually or in the aggregate,
would not constitute a Material Adverse Effect, and the business of the
Company, the Company Subsidiaries and, to the Company's knowledge, DonTech,
are in compliance in all material respects with all applicable federal,
state, local and foreign governments' laws and regulations. None of the
Company the Company Subsidiaries or, to the Company's knowledge, DonTech is
in default under or in breach of any order, judgment or decree of any
arbitrator or other Governmental Entity, and neither the Company, nor any
Company Subsidiary or, to the Company's knowledge, DonTech is a party or
subject to any order, judgment or decree of any arbitrator or other
Governmental Entity.
(h) Litigation. As of the date of this Agreement, except as set
forth in the Reports or in Schedule 3.01(h), there is no claim, action,
suit, investigation, proceeding or governmental investigation pending or,
to the Company's knowledge, threatened by or before any arbitration
tribunal, self regulatory agency or body (including, without limitation,
the New York Stock Exchange), Governmental Entity or by any third party (a
"LITIGATION") (i) against or involving the Company or any of the Company
Subsidiaries or involving any of their respective properties or assets,
(ii) to the Company's knowledge, against or involving DonTech or involving
any of its respective properties or assets or (iii) which challenges the
validity of this Agreement or which could reasonably be expected to
adversely affect or restrict the Company's ability to consummate the
transactions contemplated by this Agreement and the Ancillary Documents.
(i) Employee Benefits.
(i) Schedule 3.01(i)(i) contains a true and complete list of
(i) each material Company Plan and (ii) each material Employee
Agreement. Except as set forth on Schedule 3.01(i)(i), the
Company and the Company Subsidiaries do not have any plan or
legally binding commitment (i) to establish any new Company Plan
or to modify or terminate any Company Plan or (ii) to enter into,
modify or terminate any Employee Agreement.
(ii) Current, accurate and complete copies of all documents
embodying or relating to each Company Plan and each Employee
Agreement have been made available to the Purchasers.
(iii) Neither the Company nor a Company Subsidiary has, or
has ever had, any ERISA Affiliates other than the Company or a
Company Subsidiary.
(iv) Each Company Plan and Employee Agreement has been
established and maintained in accordance with its terms in all
material respects and all applicable laws, statutes, orders,
rules and regulations. Each Company Plan intended to qualify
under Section 401 of the Code has a favorable determination
letter from the Internal Revenue Service to the effect that it is
so qualified and, if the letter for such a plan is not current,
such plan is the subject of a timely request for a current
favorable determination letter.
(v) No steps have been taken to terminate any Pension Plan,
no termination of any Pension Plan has occurred and no event has
occurred and no condition exists that could constitute grounds
for terminating any Pension Plan. Each Pension Plan has been
maintained in compliance with the minimum funding standards of
ERISA and the Code and no such Pension Plan has incurred any
"accumulated funding deficiency," as defined in Section 412 of
the Code and Section 302 of ERISA, whether or not waived. The
funded status of each Pension Plan as reflected in the most
recent actuarial report is accurate and such report fairly
presents the funded status of such Pension Plan on the basis set
forth therein.
(vi) No Company Plan is under audit or investigation by the
Internal Revenue Service, the Department of Labor, the Pension
Benefit Guaranty Corporation or other governmental agency and, to
the knowledge of the Company and the Company Subsidiaries, no
such audit or investigation has been threatened. There are no
actions, proceedings, arbitrations, suits or claims pending, or
to the knowledge of the Company or any Company Subsidiaries,
threatened or anticipated (other than routine claims for
benefits) against the Company or any Company Subsidiaries or any
administrator, trustee or other fiduciary of any Company Plan
with respect to any Company Plan or Employee Agreement, or
against any Company Plan or against the assets of any Company
Plan.
(vii) Except as set forth on Schedule 3.01(i)(vii), neither
the Company nor the Company Subsidiaries maintains or contributes
to any Company Plan which provides, or has any liability to
provide, life insurance, medical, severance or other employee
welfare benefits to any Employee upon his retirement or
termination of employment, except as may be required by Section
4980B of the Code.
(viii) Except as set forth on Schedule 3.01(i)(viii), the
execution and performance of the transactions contemplated in
this Agreement will not (either alone or upon the occurrence of
any additional or subsequent events) (i) constitute an event
under any Company Plan or Employee Agreement that will or may
result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution,
increase in benefits or obligations to fund benefits with respect
to any Employee or (ii) result in the triggering or imposition of
any restrictions or limitations on the right of the Company or a
Company Subsidiary to amend or terminate any Company Plan. The
execution and performance of the transactions contemplated in
this Agreement will not cause any payment or benefit which will
or may be made by the Company or a Company Subsidiary with
respect to any Employees to be characterized as an "excess
parachute payment," within the meaning of Section 280G(b)(1) of
the Code.
(ix) There are no, and have never been any, collective
bargaining agreements or other labor union or similar contracts
governing any Employees.
(x) The Company and the Company Subsidiaries are in
compliance in all material respects with all applicable federal,
state and local laws, rules and regulations respecting
employment.
(j) Absence of Certain Changes. Since December 31, 2001, the
business of the Company and the Company Subsidiaries and, to the Company's
knowledge, DonTech has been operated in the usual and ordinary course
consistent with past practice and, except as set forth in the Reports or in
Schedule 3.01(j) or as provided in this Agreement or the Ancillary
Documents:
(i) there has been no event, condition or change that
individually or in the aggregate constitutes a Material Adverse
Effect;
(ii) none of the Company, the Company Subsidiaries or, to
the Company's knowledge, DonTech has entered into any material
transaction or incurred any material liability or material
obligation, except in the ordinary course of its business
consistent with past practice;
(iii) none of the Company, the Company Subsidiaries or, to
the Company's knowledge, DonTech has sold or transferred a
material amount of the assets it owns except in the ordinary
course of its business;
(iv) none of the Company, the Company Subsidiaries or, to
the Company's knowledge, DonTech has incurred any indebtedness
other than indebtedness to trade creditors incurred in the
ordinary course of business;
(v) none of the Company, the Company Subsidiaries or, to the
Company's knowledge, DonTech has changed its accounting policies
or procedures as in effect on December 31, 2001;
(vi) neither the Company nor any Company Subsidiary has
amended or in any way altered its Restated Certificate of
Incorporation, as amended ("CERTIFICATE OF INCORPORATION") or
By-laws;
(vii) the Company has not changed the number of shares of
the authorized or issued capital stock of the Company, issued or
granted any option, warrant, call, commitment, subscription,
right to purchase or agreement of any character relating to the
authorized or issued capital stock of the Company or any Company
Subsidiary, or any securities convertible into shares of such
stock (except for grants of options to purchase Common Stock to
be granted pursuant to Company Plans), split, combined or
reclassified any shares of the capital stock of the Company,
declared, set aside or paid any dividend or other distribution
(whether in cash, stock or property or any combination thereof)
in respect of the capital stock of the Company, or redeemed or
otherwise acquired any shares of such capital stock;
(viii) the Company has not increased the number of members
of the Board of Directors of the Company;
(ix) none of the Company, the Company Subsidiaries or, to
the Company's knowledge, DonTech has acquired any assets other
than in the ordinary and usual course of business;
(x) none of the Company, the Company Subsidiaries or, to the
Company's knowledge, DonTech has entered into employment
agreements with any Employee (other than an agreement terminable
at will without any financial penalty), or granted any increase
in the compensation (including employee benefits) of any
employee, except for increases (A) in the ordinary course of
business and consistent with past practice, (B) as a result of
collective bargaining or (C) as required by any employment or
other agreement, policy or plan currently in effect; and
(xi) none of the Company, the Company Subsidiaries or, to
the Company's knowledge, DonTech has agreed, whether in writing
or otherwise, to take any action that, if taken, would render any
of the representations set forth in this Section 3.01(j) untrue.
(k) Preferred Shares and Warrants. The Preferred Shares have been
duly authorized by all necessary corporate action. When issued and sold
against receipt of the consideration therefor, the Preferred Shares will be
validly issued, fully paid and nonassessable, will not subject the holders
thereof to any personal liability and will not be subject to any preemptive
rights except as contemplated by this Agreement and the Certificate of
Designations. When issued and sold against receipt of the consideration
therefor, the Warrants will not subject the holders thereof to any personal
liability and will not be subject to any preemptive rights except as
contemplated by this Agreement and the Warrants. The Company has 21,909,939
shares of Common Stock that are in treasury and listed on the New York
Stock Exchange. A total of 20,500,000 of such treasury shares of Common
Stock have been duly reserved for issuance upon the conversion or
redemption of the Preferred Shares and the exercise of the Warrants. The
shares of Common Stock issuable upon conversion or redemption of the
Preferred Shares and upon exercise of the Warrants have been duly and
validly authorized and, if and when issued, will be validly issued, fully
paid and non-assessable and will not be subject to any preemptive rights
except as contemplated by this Agreement, the Warrants and the Certificate
of Designations. At the Closing, the Purchasers will receive valid title to
the Preferred Shares and the Warrants, free and clear of any Lien (other
than any restrictions on transfer under state and/or federal securities
laws).
(l) Offering of Securities. Based in part on the representations
and warranties of the Purchasers in Section 3.02, it is not necessary in
connection with the offer, sale and delivery of the Preferred Shares and
the Warrants to the Purchasers to register the offer and sale of the
Preferred Shares and the Warrants under the Securities Act. The Company has
not, directly or indirectly, offered, sold or solicited any offer to buy
and will not, directly or indirectly, offer, sell or solicit any offer to
buy, any security of a type or in a manner which would be integrated with
the sale of the Preferred Shares and the Warrants and require any of the
Preferred Shares or the Warrants to be registered under the Securities Act.
None of the Company, its Affiliates or any person acting on its or any of
their behalf has engaged or will engage in any form of general solicitation
or general advertising (within the meaning of Rule 502(c) under the
Securities Act) in connection with the offering of the Preferred Shares and
the Warrants.
(m) Brokers and Finders. Except for the engagement of Bear,
▇▇▇▇▇▇▇ & Co., Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co., Inc. (the fees and expenses
of each which will be borne solely by the Company), neither the Company nor
any of its Affiliates has employed any financial advisor or finder or
incurred any liability for any financial advisory or finders' fees in
connection with this Agreement or the transactions contemplated by this
Agreement.
(n) Permits. The Company, each Company Subsidiary and, to the
Company's knowledge, DonTech, possesses all Permits required for the
conduct of its respective businesses, except where the failure to possess
any such Permit would not constitute a Material Adverse Effect, and none of
the Company, any Company Subsidiary nor, to the Company's knowledge,
DonTech has received any notice of proceedings relating to the revocation
or modification of any such Permit that, if determined adversely to the
Company, DonTech or any such Company Subsidiary, individually or in the
aggregate, would constitute a Material Adverse Effect. All of such Permits
of the Company and the Company Subsidiaries and, to the Company's knowledge
such Permits of DonTech are valid and in full force and effect, and the
Company, each of the Company Subsidiaries and to the Company's knowledge,
DonTech have duly performed and are in compliance in all respects with all
of their obligations under such Permits, except where the failure to
perform or comply, individually or in the aggregate would not constitute a
Material Adverse Effect. No event has occurred with respect to any of such
Permits of the Company and the Company Subsidiaries or, to the Company's
knowledge, such Permits of DonTech that allows, or after notice or lapse of
time or both would allow, the suspension, limitation, revocation,
non-renewal or termination thereof or would result in any other impairment
of the rights of the holder thereof in and under any of such Permits that,
if such event or events occurred, individually or in the aggregate, would
constitute a Material Adverse Effect, and no terminations thereof or
proceedings to suspend, limit, revoke or terminate any Permits of the
Company and the Company Subsidiaries or, to the Company's knowledge, such
Permits of DonTech, have been threatened that, if acted upon, individually
or in the aggregate, would constitute a Material Adverse Effect.
(o) Title to Properties; Insurance. Except as set forth in
Schedule 3.01(o), the Company, the Company Subsidiaries and, to the
Company's knowledge, DonTech have good and marketable title to all real
properties and all other properties and assets owned by them that are
material to their respective businesses, in each case free from Liens other
than Permitted Liens. Except as set forth in Schedule 3.01(o), the Company,
the Company Subsidiaries and, to the Company's knowledge, DonTech hold any
leased real or personal property that is material to their business under
valid and enforceable leases enforceable against the Company, the Company
Subsidiaries or, to the Company's knowledge, DonTech, with no exceptions
that would materially interfere with the use made or to be made thereof by
them, in each case free from Liens other than Permitted Liens. The Company,
the Company Subsidiaries and, to the Company's knowledge, DonTech have at
all times maintained in full force and effect property damage, liability
and other insurance with financially sound and reputable insurers at levels
of coverage reasonable and customary for the Company's industry.
(p) Taxes. All material Tax Returns required to be filed by the
Company and each Company Subsidiary (provided that for the purposes of this
Section 3.01(p) only, DonTech and CenDon shall each be deemed a Company
Subsidiary), and, to the Company's knowledge, DonTech, have been filed, and
all such Tax Returns are true, complete and correct in all material
respects. Neither the Company nor any of the Company Subsidiaries, or to
the Company's knowledge, DonTech has any liability for Taxes other than
Taxes (i) currently payable without penalty or interest or (ii) being
contested in good faith and by appropriate proceedings and for which, in
the case of both clauses (i) and (ii), adequate reserves have been
established on the Balance Sheet and books and records of the Company or
the Company Subsidiaries, as applicable. There are no proposed Tax
assessments against the Company or any of the Company Subsidiaries, or to
the Company's knowledge, DonTech. Neither the Internal Revenue Service nor
any other taxing authority has asserted any currently ongoing claim for
Taxes, nor to the Company's knowledge, is threatening to assert any claims
for such Taxes, against the Company or any of the Company Subsidiaries or
DonTech. The Company and each of the Company Subsidiaries, and, to the
Company's knowledge, DonTech have withheld or collected and paid over to
the appropriate Governmental Entities (or are properly holding for such
payment) all Taxes required by law to be withheld or collected. There are
no Liens for Taxes upon the assets of the Company or any of the Company
Subsidiaries, or to the Company's knowledge, DonTech (other than Liens for
Taxes that are not yet due). Neither the Company nor any of the Company
Subsidiaries, or to the Company's knowledge, DonTech (i) has any liability
under Treasury Regulation Section 1.1502-6 or analogous state, local, or
foreign law provision for the Taxes of an entity other than the Company or
any of the Company Subsidiaries or DonTech, as applicable, or (ii) is a
party to a Tax sharing or Tax indemnity agreement or any other commitment
of a similar nature with any entity other than the Company or any of the
Company Subsidiaries that remains in effect and under which the Company or
any of the Company Subsidiaries could have any material liability for
Taxes. No claim has been made by a taxing authority in a jurisdiction where
the Company or any of the Company Subsidiaries does not file Tax Returns
that the Company or any of the Company Subsidiaries is or may be subject to
taxation by that jurisdiction. To the Company's knowledge, no claim has
been made by a taxing authority in a jurisdiction where DonTech does not
file Tax Returns that DonTech is or may be subject to taxation by that
jurisdiction. Neither the Company nor any of the Company Subsidiaries or to
the Company's knowledge, DonTech is the subject of any currently ongoing
audit or examination with respect to a material amount of Taxes, nor, to
the Company's knowledge, has any such audit been threatened or proposed, by
any taxing authority.
(q) Environmental Matters. The Company, the Company Subsidiaries
and, to the Company's knowledge, DonTech (i) are in compliance with all
applicable statutes, rules, regulations, decisions or orders of any
Governmental Entity relating to the use, disposal or release of hazardous
or toxic substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "ENVIRONMENTAL LAWS"), (ii) have not generated,
manufactured, treated, stored or disposed of any hazardous substances on
any owned or operated (or previously owned or operated) real property,
except in compliance with Environmental Laws, (iii) are not liable for any
off-site disposal or contamination pursuant to any Environmental Laws, and
(iv) are not subject to any pending claims relating to any Environmental
Laws, which in each of clauses (i) through (iv) individually or in the
aggregate, would constitute a Material Adverse Effect.
(r) Intellectual Property. The Company, the Company Subsidiaries
and, to the Company's knowledge, DonTech license, own or possess, or can
acquire on reasonable terms, all patents, patent rights, licenses,
inventions, copy-rights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names, Internet
domain names, designs, logos, slogans and general intangibles of like
nature, together with goodwill, and registrations and applications relating
to any of the foregoing, as applicable ("INTELLECTUAL PROPERTY"), currently
employed by them in connection with the respective business now operated by
them, except where the failure to own or possess or otherwise be able to
acquire such Intellectual Property, individually or in the aggregate, would
not constitute a Material Adverse Effect. The Intellectual Property owned
or used by the Company, the Company Subsidiaries and, to the Company's
knowledge, DonTech has been duly maintained, is valid and subsisting, in
full force and effect, and has not been cancelled, expired or abandoned,
except where such cancellation, expiration or abandonment would not
constitute a Material Adverse Effect. None of the Company, the Company
Subsidiaries or, to the Company's knowledge, DonTech has received any
notice of infringement of or conflict with asserted rights of others with
respect to any of such Intellectual Property which, singly or in the
aggregate, which, if determined adversely to the Company, would constitute
a Material Adverse Effect.
(s) DGCL Section 203 and Rights Agreement. The Board of Directors
of the Company has taken all action necessary to exempt from the provisions
of Section 203 of the Delaware General Corporation Law ("SECTION 203") and
from being deemed an "Acquiring Person" under the Rights Agreement, to the
extent applicable, this Agreement, any acquisition by the Purchasers or
their Affiliates of the Preferred Shares or the Warrants pursuant to this
Agreement, the Warrants and the Certificate of Designations and any
conversion or exercise by the Purchasers or their Affiliates of the
Preferred Shares or the Warrants into Common Stock. No agreement or
instrument to which the Company or the Company Subsidiaries is a party or
by which any of them is bound, and no state statute similar to Section 203
that is applicable to the Company or the Company Subsidiaries imposes any
restrictions on business combinations or similar transactions with
interested stockholders of a nature similar to those set forth in Section
203. True and correct copies of the resolutions heretofore adopted by the
Company's Board of Directors to implement the foregoing actions with
respect to Section 203 and the Rights Agreement, have been delivered to the
Purchasers and such resolutions are in full force and effect and have not
been amended or modified.
(t) Commitments. (i) This Agreement, the Ancillary Documents, the
Other Transaction Documents, the agreements, documents and instruments set
forth on Schedule 3.01(t) and other schedules to this Agreement and all
documents referenced in or attached as exhibits to the Reports constitute,
as of the date of this Agreement all of the material contracts or
agreements (whether written or oral), including any amendments thereto, (A)
to which the Company, any Company Subsidiaries or, to the Company's
knowledge, DonTech is a party or (B) by or to which the Company, any
Company Subsidiaries or any of their properties or, to the Company's
knowledge, DonTech or its properties may be bound or subject (individually
a "COMMITMENT" and collectively, the "COMMITMENTS"). Schedule 3.01(t) sets
forth a complete and correct list of Commitments of the following type:
Commitments relating to any Litigation;
Commitments containing covenants of the Company or any Company
Subsidiaries or any successor thereto not compete, not to engage in any
line of business or conduct business in any geographical area or with any
Person, or not to disclose certain information; and
Commitments with any Affiliate.
(ii) Complete and correct copies (or, if oral, full written
descriptions) of all Commitments required to be listed on
Schedule 3.01(t), including all amendments thereto, have been
made available to the Purchasers. All of the Commitments are
valid, binding, in full force and effect and enforceable in
accordance with their respective terms by the Company, a Company
Subsidiary or, to the Company's knowledge, DonTech (as the case
may be) against the respective counter parties to such
Commitments, except where the failure to be valid, binding,
enforceable or in full force and effect does not constitute a
Material Adverse Effect. Except as set forth on Schedule 3.01(t),
(A) there is no breach, violation or default and no event that,
with or without notice or the passage of time or both, would
constitute a breach, violation or default, or give rise to any
Lien or right of termination, modification, cancellation,
prepayment, suspension, limitation, revocation or acceleration
under, any Commitment, (B) none of the Company, the Company
Subsidiaries or, to the Company's knowledge, DonTech or any other
party to any of the Commitments is in arrears in respect of the
performance or satisfaction of the terms and conditions on its
part to be performed or satisfied under any of such Commitments,
and (C) no waiver thereunder has been granted by any of the
Parties thereto except in each of clauses (A)-(C) where any such
failure does not, individually or in the aggregate, constitute a
Material Adverse Effect.
(u) Absence of Undisclosed Liabilities. Except as disclosed in
the Reports or Schedule 3.01(u) or the other Schedules to this Agreement,
the Company does not have any Liabilities other than (a) Liabilities
reserved against or otherwise disclosed in the Balance Sheet or the
footnotes thereto, (b) other Liabilities which were incurred after June 30,
2002 in the ordinary course of business consistent (in amount and kind)
with past practice (none of which is a liability resulting from breach of
contract, breach of warranty, tort, infringement, claim or lawsuit) and
which, individually or in the aggregate, do not exceed $1,500,000 and (c)
Liabilities incurred in connection with this Agreement, the Ancillary
Agreements and any Other Transaction Document.
(v) Disclosure. Neither this Agreement nor any other Ancillary
Document, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
herein or therein not misleading.
(w) Holding Company Act and Investment Company Act. Neither the
Company nor any of the Company Subsidiaries or, to the Company's knowledge,
DonTech is: (i) a "public utility company" or a "holding company," or an
"affiliate" or a "subsidiary company" of a "holding company," or an
"affiliate" of such a "subsidiary company," as such terms are defined in
the Public Utility Holding Company Act of 1935, as amended, or (ii) a
"public utility," as defined in the Federal Power Act, as amended. None of
the Company, any Company Subsidiary or, to the Company's knowledge, DonTech
is an "investment company" as defined in the Investment Company Act of
1940, as amended or is controlled by or under control with an Affiliate of,
an "investment company."
(x) Solvency. The Company is not, and after giving effect to the
issuance and sale of the Preferred Shares and the Warrants and the
application of the proceeds therefrom will not be, insolvent within the
meaning of Title 11 of the United States Code, the General Corporation Law
of the State of Delaware, or the General Laws of the State of New York.
(y) D&O Insurance. The Company maintains director and officer
liability insurance coverage in the aggregate amount of $100 million, which
policy has no per individual deductible.
Section 3.02. Representations and Warranties of the Purchasers.
Each Purchaser represents and warrants to, and agrees with, the Company as
follows:
(a) Organization. Such Purchaser is a limited partnership duly
organized and validly existing under the laws of the state or country of
its jurisdiction of formation. Such Purchaser has the power and authority
to execute and deliver this Agreement and the Ancillary Documents to which
it is a party and perform its obligations hereunder and thereunder. The
execution and delivery of this Agreement and the Ancillary Documents to
which it is a party and the performance by such Purchaser of its covenants
and agreements under this Agreement and the Ancillary Documents to which it
is a party have been duly and validly authorized by the general partner of
such Purchaser, and no further proceedings on the part of such Purchaser
are necessary to authorize the execution, delivery and performance of this
Agreement or the Ancillary Documents to which it is a party or the
consummation of the transactions contemplated hereby and thereby. This
Agreement and the Ancillary Documents to which such Purchaser is a party
have been duly executed and delivered by the Purchaser and constitute the
valid and binding agreements of such Purchaser, enforceable against such
Purchaser in accordance with their terms, except that (a) such enforcement
may be subject to any bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other laws, now or hereafter in effect, relating to
or limiting creditors' rights generally, and (b) the remedy of specific
performance and injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the court before
which any proceeding therefor may be brought.
(b) Authorization; No Conflicts. Neither the execution and
delivery of this Agreement or the Ancillary Documents to which such
Purchaser is a party nor the consummation of the transactions contemplated
by this Agreement or the Ancillary Documents to which such Purchaser is a
party will (i) conflict with or result in any breach of any provision of
the organization documents or by-laws of such Purchaser, (ii) except for
the applicable requirements of the HSR Act, require any filing with, or the
obtaining of any permit, authorization, consent or approval of, any
Governmental Entity, (iii) violate, conflict with or result in a default
(or any event which, with notice or lapse of time or both, would constitute
a default) or require any consent under, or give rise to any right of
termination, cancellation or acceleration under, any of the terms,
conditions or provisions of any note, mortgage, other evidence of
indebtedness, guarantee, license, agreement, lease or other contract,
instrument or obligation to which such Purchaser is a party or by which
such Purchaser or any of its assets may be bound, or (iv) violate any
order, injunction, decree, statute, rule or regulation applicable to such
Purchaser, excluding from the foregoing clauses (ii), (iii) and (iv) such
requirements, violations, conflicts, defaults or rights that would not
adversely affect the ability of such Purchaser to consummate the
transactions contemplated by this Agreement.
(c) Brokers and Finders. Neither such Purchaser nor any of its
officers, directors, employees or agents has utilized any broker, finder,
placement agent or financial advisor or incurred any liability for any fees
or commissions in connection with any of the transactions contemplated
hereby or by the Ancillary Documents.
(d) Investment Representations.
(i) Such Purchaser is an "accredited investor" within the
meaning of Rule 501 of Regulation D promulgated under the
Securities Act and was not organized for the specific purpose of
acquiring the Preferred Shares or the Warrants;
(ii) such Purchaser has sufficient knowledge, sophistication
and experience in financial and business matters as are necessary
to evaluate the risks and merits of an investment in the Company;
(iii) such Purchaser has had an opportunity to discuss the
Company's business, management and financial affairs with the
Company's management;
(iv) the Preferred Shares and the Warrants being acquired by
such Purchaser are being acquired for its own account for the
purpose of investment and not with a view to or for sale in
connection with any distribution thereof; and
(v) such Purchaser understands that (A) none of the
Preferred Shares, the shares of Common Stock issuable upon
conversion or redemption thereof, the Warrants or the shares of
Common Stock issuable upon the exercise thereof have been
registered under the Securities Act and are being offered and
sold in reliance upon federal and state exemptions for
transactions not involving any public offering, (B) the Preferred
Shares, the shares of Common Stock issuable upon conversion or
redemption thereof, the Warrants and the shares of Common Stock
issuable upon the exercise thereof must be held indefinitely
unless a subsequent disposition thereof is registered under the
Securities Act or is exempt from such registration, (C) the
Preferred Shares, the shares of Common Stock issuable upon
conversion or redemption thereof, the Warrants and the shares of
Common Stock issuable upon the exercise thereof will bear a
legend to such effect, as applicable, and (D) the Company will
make a notation on its transfer books to such effect.
ARTICLE IV. COVENANTS OF THE PARTIES
Section 4.01. Taking of Necessary Action. Each of the parties
hereto shall use its reasonable best efforts promptly to take or cause to
be taken all action and promptly to do or cause to be done all things
necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this
Agreement. Without limiting the foregoing, the Company and each Purchaser
will, and the Company shall cause each Company Subsidiary to, use its
reasonable best efforts to make all filings (including, without limitation,
under the HSR Act) and obtain all consents of Governmental Entities which
may be necessary or, in the reasonable opinion of the Purchasers or the
Company, as the case may be, advisable for the consummation of the
transactions contemplated by this Agreement and the Ancillary Documents and
with respect to the Company and the Company Subsidiaries, any Other
Transaction Document and all third party consents and filings set forth in
Schedule 4.01.
Section 4.02. Conduct of Business. (a) Except as otherwise
required to perform its obligations under this Agreement or any agreement
contemplated herein, as set forth in Schedule 4.02, or as otherwise agreed
to in writing by the Purchasers, from the date hereof to the Closing Date,
the Company shall, and shall cause each Company Subsidiary to (i) conduct
its business only in the ordinary course and consistent with past practice;
(ii) use its reasonable best efforts to preserve and maintain its assets
and properties and its relationships with its customers, suppliers,
clients, advertisers, distributors, agents, officers and employees and
other Persons with which it has significant business dealings; (iii) use
its reasonable best efforts to maintain all of the material assets it owns
or uses in the ordinary course of business consistent with past practice;
(iv) use its reasonable best efforts to preserve the goodwill and ongoing
operations of its business; (v) maintain its books and records in the
usual, regular and ordinary manner, on a basis consistent with past
practice; (vi) perform and comply in all material respects with its
Commitments; (vii) maintain insurance in full force and effect with respect
to its business with responsible companies, comparable in amount, scope and
coverage to that in effect on the date of this Agreement; and (viii) comply
in all material respects with applicable laws.
(b) Except as expressly contemplated by this Agreement or as set
forth on Schedule 4.02, between the date hereof and the Closing Date, the
Company shall not, and shall cause each Company Subsidiary not to, do any
of the following without the prior written consent of the Purchasers:
(i) amend or in any way alter its Certificate of
Incorporation or By-laws;
(ii) engage in any other act, other than in the ordinary
course of business and consistent with past practice, that would
constitute a Material Adverse Effect or in any way delay or
impair consummation of the transactions contemplated by this
Agreement, the Ancillary Documents or any Other Transaction
Agreement;
(iii) change the number of shares of the authorized or
issued capital stock of the Company, issue or grant any option,
warrant, call, commitment, subscription, right to purchase or
agreement of any character relating to the authorized or issued
capital stock of the Company or any Company Subsidiary, or any
securities convertible into shares of such stock (except for
grants of options to purchase Common Stock granted pursuant to
employee benefit plans of the Company not to exceed the amount
set forth in Schedule 4.02 and, other than the issuance of equity
securities in connection with the Senior Credit Facility, the
Senior Subordinated Credit Facility and/or the Senior
Subordinated Notes for which an adjustment is made pursuant to
Section 2.04), split, combine or reclassify any shares of the
capital stock of the Company, declare, set aside or pay any
dividend or other distribution (whether in cash, stock or
property or any combination thereof) in respect of the capital
stock of the Company, or redeem or otherwise acquire any shares
of such capital stock, other than open market purchases of Common
Stock not in excess of the lesser of $25 million or 25% of the
Company's Net Income for the immediately preceding twelve months
in any given twelve month period;
(iv) issue any equity securities other than the issuance of
equity securities in connection with the Senior Credit Facility
or the Senior Subordinated Credit Facility for which an
adjustment is made pursuant to Section 2.04.;
(v) enter into any transaction or incur any liability or
obligation, except in the ordinary course of business;
(vi) sell, transfer or otherwise dispose of any assets,
except in the ordinary course of business;
(vii) incur any Lien (other than a Permitted Lien) or
indebtedness other than (A) indebtedness to trade creditors
incurred in the ordinary course of business or (B) pursuant to
the Senior Credit Facility or the Senior Subordinated Credit
Facility, or vary the terms of any existing Lien or indebtedness;
(viii) change its independent accountants, accounting
policies or procedures;
(ix) acquire any assets other than in the ordinary and usual
course of business;
(x) enter into an Employee Agreement with any Employee
(other than an agreement terminable at will without any financial
penalty), vary the terms of any Company Plan in any material way
or grant any material increase in the compensation (including
employee benefits) of any Employee, except for increases or
variances (A) in the ordinary course of business and consistent
with past practice, (B) as a result of collective bargaining, or
(C) as required by any employment or other agreement, policy or
plan currently in effect;
(xi) do any other act which is reasonably likely to cause
any representation or warranty in this Agreement to be or become
untrue in any material respect;
(xii) transfer, grant, amend or knowingly terminate any of
its rights under any of the Company's Intellectual Property other
than in the ordinary course of business consistent with past
practices;
(xiii) enter into any transactions or agreements of any kind
with any of its Affiliates, other than with any Company
Subsidiary or between any Company Subsidiaries, including the
making of any loans, advances or investments to or in such
entity, except for transactions or agreements on terms at least
as favorable to the Company entering into such transactions or
agreements as the terms which would be available with independent
third parties at arm's length;
(xiv) make any change in the Company's or any Company
Subsidiary's Tax accounting methods, any new election with
respect to Taxes or any modification or revocation of any
existing election with respect to Taxes or settle or otherwise
dispose of any Tax audit, dispute, or other Tax proceeding; or
(xv) agree to take any of the actions restricted by this
Section 4.02.
Section 4.03. Financial Statements and Other Reports. Subject to
Section 4.06, the Company covenants that, from and after the Closing Date,
it will deliver to each Purchaser:
(a) as soon as practicable and in any event no later than the day
that a Form 10-Q is required to be filed by the Company with the SEC
following each quarterly period (other than the last quarterly period) in
each fiscal year, consolidated statements of operations, statements of
stockholders' equity and cash flows of the Company for the period from the
beginning of the then current fiscal year to the end of such quarterly
period, and a consolidated balance sheet of the Company as of the end of
such quarterly period setting forth in each case in comparative form
figures for the corresponding period or date in the preceding fiscal year,
together with a certificate from a senior officer of the Company to the
effect that such financial statements have been prepared in accordance with
GAAP consistently applied during the periods involved (subject to year-end
adjustments) and that such financial statements fairly present the results
of operations and changes in financial position, stockholders' equity, cash
flows and financial position of the Company and the Company Subsidiaries as
of and for the period then ended (such certificate, the "SENIOR OFFICER'S
CERTIFICATE"); provided, however, that delivery pursuant to Section 4.03(c)
of a copy of the Company's periodic report on Form 10-Q or such period
filed with the SEC shall be deemed to satisfy the requirements of this
Section 4.03(a);
(b) as soon as practicable and in any event no later than the day
that a Form 10-K is required to be filed by the Company with the SEC
following the end of each fiscal year, a consolidated balance sheet of the
Company as of the end of such fiscal year and the related consolidated
statements of operations, statements of stockholders' equity and cash flows
for such fiscal year, setting forth in each case in comparative form the
corresponding figures from the preceding fiscal year, together with the
audit report of PricewaterhouseCoopers LLP or other independent public
accountants of recognized standing selected by the Company; provided,
however, that delivery pursuant to Section 4.03(c) below of a copy of the
Annual Report on Form 10-K of the Company for such fiscal year filed with
the SEC shall be deemed to satisfy the requirements of this Section
4.03(b); and
(c) promptly upon transmission thereof, copies of all such
financial statements, proxy statements, notices and reports as it shall
send to its stockholders and copies of all such registration statements,
other than registration statements relating to employee benefit or dividend
reinvestment plans, and all such regular and periodic reports on Forms
10-K, 10-Q and 8-K (or similar or substitute forms) as it shall file with
the SEC.
Section 4.04. Restricted Actions. Subject to Section 4.06, from
and after the Closing Date, the Company shall not, and shall not permit any
Company Subsidiary to, directly or indirectly, take any of the following
actions without the prior written consent of at least a majority of the
then-outstanding Preferred Shares or the affirmative vote in person or by
proxy at a meeting called for that purpose of the holders of at least a
majority of the Preferred Shares voting thereat:
(a) sell, lease, transfer or otherwise dispose of any asset or
assets of the Company or Company Subsidiaries, including the capital stock
of any Company Subsidiary, other than a disposition of all or substantially
all of the Company's assets in a transaction governed by Section 271 of the
Delaware General Corporation Law, unless (i) the aggregate net proceeds
received in connection with all of such transactions in any given
twelve-month period (whether paid in cash or property) does not exceed $115
million, or (ii) such transaction is between the Company or its wholly
owned Company Subsidiary, on the one hand, and any other wholly owned
Company Subsidiary, on the other hand;
(b) enter into or suffer to exist any contract, agreement,
arrangement or transaction with any Affiliate (other than DonTech, any
Company Subsidiary, and any company that is acquired pursuant to the Other
Transaction Documents), officer, director or stockholder holding greater
than 5% of the Company's outstanding Common Stock (an "AFFILIATE
TRANSACTION"), unless such Affiliate Transaction (i) is determined by a
majority of the Board of Directors to be fair and reasonable to the
Company, and no less favorable to the Company than could have been obtained
in an arm's length transaction with a third party, and (ii) is approved by
a majority of the members of the Board of Directors that are disinterested
in such transaction;
(c) materially alter its principal line of business as conducted
on the Closing Date;
(d) incur, create, guarantee, become or be liable in any manner
with respect to or permit to exist (other than pursuant to the Other
Transaction Documents) any Indebtedness (as such term will be defined by
the parties prior to the Closing Date) if the Leverage Ratio (as such term
will be defined by the parties prior to the Closing Date), as at such time,
is greater than 5.0 to 1.0; provided, however, that nothing in this Section
4.04(d) shall prohibit the Company from incurring up to $25 million of
Indebtedness in any given twelve-month period;
(e) acquire (by merging or consolidating with, or by purchasing
an equity interest in or a portion of the assets of, or by any other
manner) any business or any corporation, partnership, association or other
business organization or division thereof or otherwise acquire or agree to
acquire any assets in excess of $100 million in any given twelve-month
period, other than inventory and other assets to be sold or used in the
ordinary course of business;
(f) amend the Certificate of Incorporation of the Company to
authorize the creation or issuance, or the increase in the authorized
amount, of the Preferred Stock, any Parity Securities (as defined in the
Certificate of Designations) or Senior Securities (as defined in the
Certificate of Designations), or to authorize the creation or issuance of
securities convertible into or exchangeable for, or options, warrants or
other rights to acquire, the Preferred Stock, any Parity Securities or
Senior Securities;
(g) reclassify any series of Junior Securities (as defined in the
Certificate of Designations) as Senior Securities or Parity Securities;
(h) amend, repeal or change (whether by merger, consolidation or
otherwise) any of the provisions of the Certificate of Incorporation or
By-laws of the Company or the provisions of the Certificate of Designations
or the Warrants in any manner that would alter or change the powers,
preferences or rights of the shares of the Preferred Stock or the Warrants,
as the case may be, so as to affect them adversely, or otherwise restrict
the rights, preferences or privileges of the Preferred Stock or the
Warrants;
(i) pay or declare any dividend or distribution on any shares of
its capital stock (other than dividends on the Common Stock payable in
additional shares of Common Stock) or apply any of its assets to the
redemption, retirement, purchase or acquisition, directly or indirectly,
through Company Subsidiaries or otherwise, of any shares of its capital
stock (other than (A) redemptions, retirements, purchases or acquisitions
of the Preferred Stock in accordance with the terms of the Certificate of
Designations, and (B) (x) the repurchase of shares of Common Stock from
employees or former employees of the Company who acquired such shares
directly from the Company and which repurchases are approved by a majority
of the board of directors and (y) open market purchases, which, in the case
of both (x) and (y) taken together are not in excess of the lesser of $25
million or 25% of the Company's Net Income for the immediately preceding
twelve months in any given twelve-month period);
(j) sell, offer for sale or solicit offers to buy any security
(as defined in the Securities Act) that would be integrated with the sale
of the Preferred Shares and the Warrants in a manner that would require the
registration under the Securities Act of the sale of the Preferred Shares
and the Warrants to the Purchasers or any Affiliate of the Purchasers;
(k) prior to the 18-month anniversary of the Closing Date, issue
any equity securities (or securities exchangeable for or convertible into
equity securities, or any options, warrants, rights to subscribe to, scrip
calls, contracts, undertakings, arrangements or commitments to issue which
may result in the issuance of equity securities of the Company) other than
a Permitted Issuance (as defined in the Certificate of Designations);
(l) increase the number of directors comprising the board of
directors to more than ten directors; or
(m) amend, modify or supplement any provision of the Rights
Agreement in a manner that adversely affects the rights and benefits of any
Purchaser under any such provision.
Section 4.05. Required Actions. Subject to Section 4.06, from and
after the Closing Date, the Company shall and, where applicable, shall
cause each Company Subsidiary to:
(a) use its reasonable best efforts to maintain at all times a
valid listing for the Common Stock on the NYSE or another national
securities exchange;
(b) maintain and keep its properties in good repair, working
order and condition, and from time to time make all necessary or desirable
repairs, renewals and replacements;
(c) maintain or cause to be maintained with financially sound and
reputable insurers that have a rating of "A" or better as established by
Best's Rating Guide (or an equivalent rating with such other publication of
a similar nature as shall be in current use), (i) public liability and
property damage insurance with respect to their respective businesses and
properties against loss or damage of the kinds and in amounts customarily
carried or maintained by companies of established reputation engaged in
similar businesses and (ii) directors' and officers' liability insurance
providing at least the same coverage and amounts and containing terms and
conditions which are not less advantageous in any material respect, in each
case than the directors' and officers' liability insurance maintained by
the Company as of the Closing Date;
(d) pay and discharge when due all Tax liabilities, assessments
and governmental charges or levies imposed upon its properties or upon the
income or profits therefrom (in each case before the same become delinquent
and before penalties accrue thereon), unless the same are being contested
in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP, consistently applied, are being maintained by the
Company;
(e) at all times cause to be done all things necessary to
maintain, preserve and renew all Permits required for the conduct of its
respective business;
(f) comply with all applicable laws, rules and regulations of all
Governmental Entities, the violation of which would constitute a Material
Adverse Effect;
(g) maintain proper books of record and account which present
fairly in all respects its financial condition and results of operations
and make provisions on its financial statements for all such proper
reserves as in each case are required in accordance with GAAP, consistently
applied;
(h) reserve and keep available out of its authorized shares of
Common Stock, solely for the purposes of issuance upon conversion of the
Preferred Shares and exercise of the Warrants, such number of shares of
Common Stock as are issuable upon the conversion of all outstanding
Preferred Shares and exercise of all Warrants as such number may change
from time to time; and
(i) use its reasonable best efforts to at all times file all
reports (including annual reports, quarterly reports and the information,
documentation and other reports) required to be filed by the Company under
the Securities Act and the Exchange Act and the rules and regulations
promulgated thereunder, and the Company shall use its reasonable best
efforts to file each of such reports on a timely basis, all to the extent
required to enable such holders to sell securities pursuant to Rule 144
promulgated under the Securities Act (as such rule may be amended from time
to time) or any similar rule or regulation hereafter adopted by the SEC and
to enable the Company to register securities with the SEC on Form S-3 or
any similar short-form registration statement.
Section 4.06. Termination of Obligations. The obligations of the
Company set forth in Section 4.03, Section 4.04 and Section 4.05 (other
than the obligations set forth in Section 4.04(h) and Section 4.05(h))
shall terminate and no longer be of any effect from and after such time as
the Purchasers no longer have the right pursuant to the Certificate of
Designations to elect a Director of the Company.
Section 4.07. Inspection of Property. Until the Closing Date or
the earlier termination of this Agreement, the Company will permit
representatives of the Purchasers to visit and inspect any of the
properties of the Company or any of the Company Subsidiaries, to examine
the corporate books, records, agreements and files of the Company and make
copies or extracts therefrom and to request information at reasonable times
and intervals concerning the general status of the Company's financial
condition and operations, all upon reasonable notice and at such reasonable
times and as often as such Purchaser may reasonably request. The Purchasers
will, and will instruct each of their respective Affiliates, associates,
partners, employees, agents and advisors to, hold in confidence all such
information as is confidential or proprietary, will use such information
only in connection with the purchase of the Preferred Shares and the
Warrants in accordance with this Agreement and, if this Agreement is
terminated in accordance with its terms, will deliver promptly to the
Company all copies of such information (and any copies, compilations or
extracts thereof or based thereon) then in their possession or under their
control.
Section 4.08. Lost, Stolen, Destroyed or Mutilated Securities.
Upon receipt of evidence satisfactory to the Company of the loss, theft,
destruction or mutilation of any certificate for any security of the
Company and, in the case of loss, theft or destruction, upon delivery of an
undertaking by the holder thereof to indemnify the Company (and, if
requested by the Company, the delivery of an indemnity bond sufficient in
the judgment of the Company to protect the Company from any loss it may
suffer if a certificate is replaced), or, in the case of mutilation, upon
surrender and cancellation thereof, the Company will issue a new
certificate for an equivalent number of shares or warrants.
Section 4.09. Listing. The Company shall promptly secure the
listing of all of the Registrable Shares (as defined in the Registration
Rights Agreement), other than any shares of the Preferred Stock and the
Warrants, upon each national securities exchange and automated quotation
system (as applicable, the "PRINCIPAL MARKET"), if any, upon which shares
of Common Stock are then listed (subject to official notice of issuance)
and shall maintain, so long as any other shares of Common Stock shall be so
listed, such listing of all Registrable Shares from time to time issuable
under the terms of the Certificate of Designations. The Company shall pay
all fees and expenses in connection with satisfying its obligations under
this Section 4.09.
Section 4.10. Restrictions on Sale or Transfer; Legend. (a) No
Purchaser will, directly or indirectly, offer, sell, transfer, assign,
pledge, hypothecate or otherwise dispose of the beneficial ownership of
(any such act, a "TRANSFER") any Preferred Shares or Warrants prior to the
first anniversary of the Closing Date, except for, and subject in each case
to compliance with all applicable requirements of law and the receipt of
any necessary governmental approvals, (i) a Transfer by any Purchaser to an
Affiliate of such Purchaser or a Designated Transferee, provided that prior
to such Transfer each such transferee consents in writing with the Company
to be bound by the restrictions on transfer set forth in this Section 4.10
and assumes all other rights and obligations of the Purchasers under this
Agreement and the Registration Rights Agreement; (ii) a Transfer to the
Company or to a wholly owned direct or indirect subsidiary of the Company;
(iii) a Transfer pursuant to a merger or consolidation in which the Company
is a constituent corporation; (iv) a Transfer pursuant to a bona fide third
party tender offer or exchange offer; (v) redemptions and conversions of
the Preferred Shares in accordance with the terms of the Certificate of
Designations; and (vi) exercise of the Warrants in accordance with their
terms. From and after the first anniversary of the Closing Date none of the
foregoing restrictions on Transfer shall apply, so long as such Transfer is
made in compliance with all applicable requirements of law and any
necessary governmental approvals have been obtained.
(b) The Purchasers acknowledge and agree that as of the date
hereof none of the Preferred Shares, the shares of Common Stock issuable
upon conversion thereof, the Warrants or the shares of Common Stock
issuable upon the exercise thereof have been nor will be registered under
the Securities Act or the securities laws of any state and that they may be
sold or otherwise disposed of only in one or more transactions registered
under the Securities Act and, where applicable, such laws or as to which an
exemption from the registration requirements of the Securities Act and,
where applicable, such laws, is available. The Purchasers acknowledge that,
except as provided in the Registration Rights Agreement, the Purchasers
have no right to require the Company to register the Preferred Shares, the
shares of Common Stock issuable upon conversion thereof, the Warrants or
the shares of Common Stock issuable upon exercise thereof. The Purchasers
further acknowledge and agree that each certificate for the Preferred
Shares and the Warrants shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AND MAY NOT BE
TRANSFERRED, SOLD OR OTHERWISE DISPOSED OF EXCEPT WHILE SUCH A
REGISTRATION IS IN EFFECT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER SUCH ACT OR SUCH LAWS. THIS CERTIFICATE IS ISSUED PURSUANT
TO AND SUBJECT TO THE RESTRICTIONS ON TRANSFER AND OTHER
PROVISIONS OF A PREFERRED STOCK AND WARRANT PURCHASE AGREEMENT
DATED AS OF SEPTEMBER 21, 2002 BETWEEN THE COMPANY AND THE
PURCHASERS REFERRED TO THEREIN, A COPY OF WHICH IS ON FILE WITH
THE COMPANY. EXCEPT AS PROVIDED IN SUCH PREFERRED STOCK AND
WARRANT PURCHASE AGREEMENT, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE NOT TRANSFERABLE AND ANY PURPORTED TRANSFER IN
VIOLATION OF THE PROVISIONS OF SUCH PREFERRED STOCK AND WARRANT
PURCHASE AGREEMENT SHALL BE VOID AND OF NO FORCE AND EFFECT.
(c) Any holder of the Preferred Shares or the Warrants may
request the Company to remove the legend described herein from the
certificates evidencing such Preferred Shares or Warrants by submitting to
the Company such certificates, together with an opinion of counsel
reasonably satisfactory to the Company to the effect that such legend is no
longer required under the Securities Act or this Agreement.
Section 4.11. Notice of Breach. From the date hereof through the
Closing Date, as promptly as practicable, and in any event not later than
five business days after the Company becomes aware thereof, the Company
shall provide the Purchasers with written notice of (a) any representation
or warranty of the Company contained in this Agreement, the Ancillary
Documents or any Other Transaction Document being untrue or inaccurate in
any material respect at any time from the date hereof to the Closing Date,
or (b) any failure of the Company to comply with or satisfy in any material
respect any covenant, condition or agreement to be complied with or
satisfied by the Company under this Agreement, the Ancillary Documents or
any Other Transaction Document; provided, however, that the delivery of any
notice pursuant to this Section 4.11 shall not limit or otherwise affect
the remedies available to the Purchasers, or modify in any way any
disclosure made in this Agreement, the Ancillary Documents or any Other
Transaction Document or the schedules hereto or thereto as of the date
hereof.
Section 4.12. Non-Disclosure; Interim Public Filings. Subject to
Section 8.05, the Company shall deliver to the Purchasers complete and
correct copies of all press releases and public filings made between the
date hereof and the Closing Date. The Company shall not disclose the name
or identity of any of the Purchasers as a Purchaser without the prior
written consent of such Purchaser, except in connection with the Company's
filing of a Form 8-K under the Exchange Act, as a result of this Agreement,
the Ancillary Documents or any Other Transaction Document or the
transactions contemplated hereby and thereby, or other similarly required
Exchange Act reports or is required by applicable law or the rules or
regulations of any exchange on which securities of the Company are listed
or traded, in which case prior to making such disclosure the Company shall
give written notice to such Purchaser, describing in reasonable detail the
proposed content of such disclosure, shall permit such Purchaser to review
and comment upon the form and substance of such disclosure and shall take
such comments into account (but shall not be required to accept such
comments) in making such disclosure.
Section 4.13. Governance Rights. (a) (i) The Purchasers shall be
entitled to elect directors as set forth in the Certificate of
Designations. (ii) In addition, if the Purchasers convert Preferred Stock
following delivery by the Company of a notice of redemption in accordance
with the provisions of Section 5(a) of the Certificate of Designations,
such conversion shall not affect their rights to designate directors and in
such case, the Purchasers shall continue to be entitled to designate
directors as and to the extent they would have had such rights had the
Purchasers not converted any Preferred Stock beneficially owned by them,
namely that at such time, (x) as the outstanding shares of Common Stock
then owned by the Purchasers, their respective Affiliates or any Designated
Transferees constitutes less than 50% of the number of shares of Common
Stock beneficially owned by them immediately after the Closing Date (as
such number may be adjusted for stock dividends, stock splits, combinations
and recapitalizations and other similar events), the number of directors
the Purchasers are then entitled to designate and elect under this Section
4.13(a)(ii) shall be reduced by one; and (y) as the outstanding shares of
Common Stock then owned by the Purchasers, their respective Affiliates or
any Designated Transferees constitutes less than 15% of the number of
shares of Common Stock beneficially owned by them immediately after the
Closing Date (as such number may be adjusted for stock dividends, stock
splits, combinations and recapitalizations and other similar events), the
Purchasers shall not be entitled to designate or elect any directors under
this Section 4.13(a)(ii). No conversion of Preferred Stock shall result in
any Purchaser Designee being required to resign or be removed from the
board of directors prior to the expiration of his then applicable term. To
the extent Purchaser Designees are to be members of any class of directors,
the identity of such class shall be as reasonably requested by the
Purchasers. (iii) For so long as GSCP 2000 and its Affiliates collectively
beneficially own a number of shares of Common Stock (which beneficial
ownership shall assume immediate convertibility of all shares of Preferred
Stock then owned) that is not less than 7.5% of the number of shares of
Common Stock beneficially owned (which beneficial ownership shall assume
immediate convertibility of all shares of Preferred Stock then owned) by
them immediately after the Closing (as such number may be adjusted for
stock dividends, stock splits, combinations and recapitalizations and other
similar events), GSCP 2000 shall have the right to designate, at all times
and from time to time, one non-voting observer to the board of directors.
(b) At any time the Purchasers shall be entitled to designate a
Purchaser Designee (or a replacement therefor), the Company shall exercise
all authority under applicable law to cause any slate of directors
presented to stockholders for election of directors to the board of
directors to contain such Purchaser Designee(s) and use its reasonable best
efforts to have such Purchaser Designee(s) elected to the board of
directors.
(c) Prior to the Closing, each of the Company and the board of
directors shall take such action as may be necessary (including seeking any
necessary vote or approval of any stockholder of the Company, taking any
action necessary to expand the size of the board of directors, or causing
any existing director to resign in order to make room for the Purchaser
Designees) to cause the Purchaser Designees to be elected to the board of
directors.
(d) Purchasers and the Company agree that one Purchaser Designee
shall have the right, subject to compliance with applicable NYSE and SEC
rules and regulations, to sit on each Committee of the board of directors.
(e) If requested by a majority of the Purchasers, the Company
will use its best efforts (in accordance with the certificate of
incorporation and by-laws of the Company and the DGCL) to cause the removal
of any Purchaser Designee (in accordance with the certificate of
incorporation and by-laws of the Company and the DGCL). If any vacancy
among the Purchaser Designees caused by removal or by the death, retirement
or resignation of any Purchaser Designee exists, the Purchasers shall have
the right to designate a replacement director for such Purchaser Designee
and the Company shall exercise all authority under applicable law to cause
such replacement director to be duly elected as a director of the Company.
In the event that the term of any director who at such time is a Purchaser
Designee is to expire, then in connection with any meeting of the Company's
stockholders at which a successor to such director is to be elected, the
Company shall nominate a Purchaser Designee designated by the Purchasers
and shall recommend that stockholders vote in favor of such individual's
election to the board of directors in any proxy statement, information
statement or other communication to stockholders issued or disseminated by
the Company. In the event of any vacancy among the Purchaser Designees, the
board of directors shall not take any action not approved by the remaining
Purchaser Designee (or by the Purchasers if there be no remaining Purchaser
Designee) during the period from the time the Purchasers inform the Company
of a designee to fill any such vacancy to the time such designee is duly
appointed or elected to the board of directors. Whenever the number of
directors that the Purchasers have the right to designate is reduced in
accordance with the Certificate of Designations, the Purchaser will cause
the appropriate number of Purchaser Designee(s) to promptly tender their
resignation(s) from the board of directors.
(f) At any time GSCP 2000 shall be entitled to designate a
non-voting observer to the board of directors, the Company shall permit any
such non-voting observer to attend each meeting of the board of directors
of the Company and each meeting of any committee thereof and to participate
in all discussions during each such meeting; provided, however, that the
Company reserves the right to exclude such non-voting observers from access
to any material or meeting or portion thereof if the Company believes that
such exclusion is reasonably necessary to preserve the attorney-client
privilege or to protect confidential proprietary information. The Company
shall send to the non-voting observers the notice of the time and place of
such meeting in the same manner and at the same time as it shall send such
notice to its directors or committee members, as the case may be. The
Company shall also provide to the non-voting observers copies of all
notices, reports, minutes and consents at the time and in the manner as
they are provided to the board of directors or committee, except for
information reasonably designated as proprietary information reasonably
designated as proprietary information by the board of directors. At any
time GSCP 2000 shall be entitled to designate a non-voting member to the
board of directors, GSCP 2000 shall also be entitled to consult with and
advise management of the Company on significant business issues, including
management's proposed annual operating plans, and management will meet with
representatives of GSCP 2000 at the Company's facilities at mutually
agreeable times for such consultation and advice, including to review
progress in achieving said plans. Upon notice given by GSCP 2000 to the
Company, the Company shall commence to give GSCP 2000 reasonable advance
written notice of any significant new initiatives or material changes to
existing operating plans and shall afford GSCP 2000 adequate time to meet
with management to consult on such initiatives or changes prior to
implementation.
(g) Notwithstanding Section 4.13(f), for so long as any Purchaser
holds any Preferred Shares, the Company shall provide to the Purchasers
copies of all notices, reports, minutes and consents at the time and in the
manner as they are provided to the board of directors or committee, except
for information reasonably designated as proprietary information by the
board of directors.
(h) The rights set forth in this Section 4.13 are intended to
satisfy the requirement of contractual management rights for purposes of
qualifying GSCP 2000's interests in the Company as venture capital
investments for purposes of the Department of Labor's "plan assets"
regulations, and in the event such rights are not satisfactory for such
purposes, GSCP 2000, the Company and the Purchasers shall reasonably
cooperate in good faith to agree upon mutually satisfactory management
rights which satisfy such regulations.
Section 4.14. Other Transaction Documents. The Company shall keep
Purchasers fully informed of, provide Purchasers will copies of all drafts
of, and discuss with the Purchasers on a timely basis, each of the Other
Transaction Documents and shall not, without the prior written consent of
each Purchaser, (i) execute any of the Other Transaction Documents to be
executed after the date hereof or (ii) amend, waive, supplement or modify
any provisions of any of the Other Transaction Documents executed on or
prior to the date hereof.
Section 4.15. Transfer Taxes. The Company shall be responsible
for any Liability with respect to any transfer, stamp or similar non-income
Taxes that may be payable in connection with the execution, delivery and
performance of this Agreement including, without limitation, any such Taxes
with respect to the issuance of the Preferred Shares or shares of Common
Stock issuable upon conversion thereof.
Section 4.16. Dividends. The Company agrees that, after the tenth
anniversary of the Closing Date, it shall pay cash dividends on the
Preferred Stock on a current basis so long as it is not precluded from
doing so under law. In furtherance thereof, the Company shall refrain from
entering into any agreements which would preclude such payments, seek a
waiver under any agreements which would prevent such payments at any time
and take whatever actions are necessary, including revaluing assets, to
create surplus for the purpose of paying such dividends.
Section 4.17. Certain Information Rights. Between the date hereof
and the Closing Date, the Company shall inform the Purchasers promptly of
any inquiries, discussions, offers or proposals for, or negotiations
looking toward, any purchase or other acquisition of any of the capital
stock of or equity interests in (whether newly issued or currently
outstanding) the Company or any of the Company Subsidiaries; and the
Company shall provide promptly to the Purchasers copies of any written
documents prepared by or received by the Company or its advisors in
connection therewith.
ARTICLE V. CONDITIONS
Section 5.01. Conditions of Purchase. The obligations of each
Purchaser to purchase the Preferred Shares and the Warrants at the Closing
are subject to satisfaction or waiver of each of the following conditions
on or prior to the Closing Date:
(a) Representations and Warranties; Covenants. The
representations and warranties of the Company contained in this Agreement
and the Ancillary Documents shall be true and correct in all material
respects (disregarding for these purposes any materiality, Material Adverse
Effect or corollary qualifications contained therein) on and as of the date
of this Agreement or the date of such Ancillary Documents, as the case may
be, and on and as of the Closing Date with the same effect as though made
on and as of such date, and the Company shall have performed all
obligations and complied with all agreements, undertakings, covenants and
conditions required hereunder and thereunder to be performed by it at or
prior to the Closing.
(b) No Injunction. There shall not be in effect any statute,
rule, order, decree or injunction of a court or agency of competent
jurisdiction which enjoins or prohibits consummation of the transactions
contemplated hereby.
(c) Regulatory Approvals. All permits, consents, authorizations,
orders and approvals of, and filings and registrations required under any
federal or state law, rule or regulation for or in connection with the
execution and delivery of this Agreement and the Ancillary Documents and
the consummation by the parties hereto of the transactions contemplated on
such parties' part hereby and thereby shall have been obtained or made and
all statutory waiting periods thereunder in respect thereof shall have
expired, including without limitation, any waiting periods under the HSR
Act.
(d) Company Certificate. The Company shall have delivered to the
Purchasers a certificate, dated the Closing Date, signed by its chief
executive officer and its chief financial officer, in form and substance
reasonably satisfactory to the Purchasers to the effect that the conditions
set forth in this Section 5.01 have been satisfied (the "COMPANY
CERTIFICATE").
(e) Registration Rights Agreement. The Registration Rights
Agreement shall have been executed and delivered by the parties thereto and
shall be in full force and effect.
(f) Certificate of Designations. The Certificate of Designations
shall have been duly filed with the Secretary of State of Delaware and
shall have become effective and shall be in full force and effect.
(g) Certain Transaction Documents. (A) the Other Transaction
Documents executed prior to or simultaneously with this Agreement shall not
have been amended, modified, supplemented, or provisions thereof waived, in
violation of Section 4.14, (B) the Other Transaction Documents a form of
which is attached to an Other Transaction Document executed prior to or
simultaneously with this Agreement shall, at the time of execution thereof,
be in all material respects in the form as so attached (and the
documentation pursuant to which the Special Purpose Vehicle Term Sheet (as
defined in the Sprint Purchase Agreement) shall give effect in all material
respects to the terms set forth in such Term Sheet and be otherwise
reasonably satisfactory to the Purchasers), and (C) the Purchasers shall be
satisfied in their sole discretion with the form and substance of any other
of the Other Transaction Documents to be prepared after the execution of
this Agreement.
(h) Other Transactions. The transactions contemplated by the
Other Transaction Documents that by their terms are to be completed prior
to or concurrently with the Closing (which shall include, without
limitation, the Sprint Transaction) shall have been completed immediately
prior to or concurrently with the Closing in accordance with the terms and
provisions of the applicable Other Transaction Document.
(i) Legal Opinion. The Purchasers shall have received, dated the
Closing Date and addressed to each Purchaser, an opinion of ▇▇▇▇▇, Day,
▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Company, substantially in the form attached
hereto as Exhibit E.
(j) Simultaneous Closing by Other Purchasers. Each other
Purchaser shall concurrently purchase and pay for the Preferred Shares and
the Warrants set forth opposite its name in Schedule A.
(k) Directors. The Purchaser Designees shall have been elected to
the Board of Directors of the Company, effective as of the Closing and the
Board of Directors of the Company shall consist of no more than ten
directors.
(l) Material Adverse Change. There shall not have occurred since
December 31, 2001 any event or occurrence which has resulted in or could
reasonably be expected to result in any material adverse change in the
business, assets, operations, properties, condition (financial or
otherwise), prospects, contingent liabilities or material agreements of the
Company and the business acquired pursuant to the Sprint Transaction, taken
as a whole.
(m) NYSE Approval. The NYSE shall (1) not have withdrawn its
advice that stockholder approval of the issuance of Common Stock upon
conversion of the Preferred Shares and exercise of the Warrants is not
required under Rule 312 of the NYSE Listed Company Manual and (2) have
confirmed that the terms of the Preferred Stock, as set forth in the
Certificate of Designations and this Agreement, comply with the NYSE's
Voting Rights Policy as set forth in Rule 313 of the NYSE Listed Company
Manual, which advice shall not have been withdrawn.
(n) Debt Financing. The Company shall have received proceeds from
the financing contemplated by the Commitment Letter on the terms and
subject to the conditions thereof.
Section 5.02. Conditions of Sale. The obligation of the Company
to sell the Preferred Shares and the Warrants at the Closing is subject to
satisfaction or waiver of each of the following conditions precedent:
(a) Representations and Warranties; Covenants The representations
and warranties of the Purchasers contained in this Agreement shall be true
and correct in all material respects (disregarding for these purposes any
materiality, Material Adverse Effect or corollary qualifications contained
therein) on and as of the date of this Agreement and on and as of the
Closing Date with the same effect as though made on and as of such dates,
and the Purchasers shall have performed all obligations and complied with
all agreements, undertakings, covenants and conditions required hereunder
to be performed at or prior to the Closing.
(b) No Injunction. There shall not be in effect any statute,
rule, order, decree or injunction of a court or agency of competent
jurisdiction with enjoins or prohibits consummation of the transactions
contemplated hereby.
(c) Regulatory Consents. (i) All permits, consents,
authorizations, orders and approvals of, and filings and registrations
required under federal or state law, rule or regulation for or in
connection with the execution and delivery of this Agreement and the
Ancillary Documents to which such Purchaser is a party and the consummation
by the parties hereto of the transactions contemplated on such parties'
part hereby and thereby shall have been obtained or made and all statutory
waiting periods thereunder in respect thereof shall have expired.
(d) Purchaser's Certificate. Each Purchaser shall have delivered
to the Company a certificate, dated the Closing Date, in form and substance
reasonably satisfactory to the Company to the effect that the condition set
forth in Section 5.02(a) have been satisfied (the "PURCHASER'S
CERTIFICATE").
(e) NYSE Approval. The NYSE shall (1) not have withdrawn its
advice that stockholder approval of the issuance of Common Stock upon
conversion of the Preferred Shares and exercise of the Warrants is not
required under Rule 312 of the NYSE Listed Company Manual and (2) have
confirmed that the terms of the Preferred Stock, as set forth in the
Certificate of Designations and this Agreement, comply with the NYSE's
Voting Rights Policy as set forth in Rule 313 of the NYSE Listed Company
Manual, which advice shall not have been withdrawn.
(f) Debt Financing. The Company shall have received proceeds from
the financing contemplated by the Commitment Letter on the terms and
subject to the conditions thereof.
(g) Other Transactions. The transactions contemplated by the
Other Transaction Documents that by their terms are to be completed prior
to or concurrently with the Closing (which shall include, without
limitation, the Sprint Transaction) shall have been completed immediately
prior to or concurrently with the Closing in accordance with the terms and
provisions thereof.
(h) Purchase Price. The Purchasers shall have delivered
immediately prior to or concurrently with the Closing in immediately
available funds, by wire transfer to such account as the Company shall have
specified, an amount equal to the purchase price to have been paid pursuant
to Section 2.01.
ARTICLE VI. TERMINATION
Section 6.01. Termination. This Agreement may be terminated on or
any time prior to the Closing:
(a) by the mutual written consent of each of the Purchasers and
the Company; or
(b) by either the Company or the Purchasers if the Sprint
Purchase Agreement shall have been terminated pursuant to its terms; or
(c) by the Purchasers if the Closing shall not have occurred
prior to January 31, 2003, unless the failure of such occurrence shall be
due to the failure of the Purchasers to perform or observe any agreement
set forth herein required to be performed or observed by the Purchasers on
or before the Closing; or
(d) by the Company or the Purchasers if a Governmental Entity
shall have issued a nonappealable final order, decree or ruling or taken
any other action having the effect of permanently restraining, enjoining or
otherwise prohibiting the transactions contemplated by this Agreement; or
(e) by the Purchasers or the Company, (i) if any representation
or warranty of the other party set forth in this Agreement or in any other
Ancillary Document shall be untrue in any material respect when made, or
(ii) upon a breach in any material respect of any covenant or agreement on
the part of the other set forth in this Agreement or in any other Ancillary
Document (either (i) or (ii) above being a "TERMINATING BREACH"); provided,
that, each Terminating Breach would cause the conditions to the
non-terminating party's obligations not to be satisfied and such
Terminating Breach is not cured within 20 days after written notice from
the non-breaching party.
Section 6.02. Effect of Termination. In the event of the
termination of this Agreement as provided in Section 6.01, all obligations
and agreements of the parties set forth in this Agreement shall forthwith
become void except for the obligations set forth in Section 8.05 and
Section 8.06 (which shall remain in full force and effect) and there shall
be no liability or obligation on the part of the parties hereto except as
otherwise provided in this Agreement. Notwithstanding the foregoing, the
termination of this Agreement under Section 6.01(c) shall not relieve
either party of any liability for breach of this Agreement prior to the
date of termination.
ARTICLE VII. SURVIVAL; CERTAIN REMEDIES
Section 7.01. Survival. The representations and warranties of the
parties contained in this Agreement shall expire on the second anniversary
of the Closing, except that the representations and warranties set forth in
Sections 3.01(a) and 3.01(d), shall survive indefinitely and the
representations and warranties set forth in Sections 3.01(i)(iii) and
3.01(p) shall survive until thirty days following the expiration of the
applicable statute of limitations. After the expiration of such periods,
any claim by a party hereto based upon any such representation or warranty
shall be of no further force and effect unless a party has asserted a claim
in accordance with this Article VII for breach of any such representation
or warranty prior to the expiration of such period, in which event any
representation or warranty to which such claim relates shall survive with
respect to such claim until such claim is resolved as provided in this
Article VII. The covenants and agreements of the parties contained in this
Agreement shall survive the Closing in accordance with their terms without
limitation as to time, unless a specified period is set forth in this
Agreement, in which event such specified period will control.
Section 7.02. Indemnification by the Purchasers. Each Purchaser,
severally and not jointly, shall, from and after the Closing Date,
indemnify the Company and its Affiliates and agents, and the officers,
directors, employees, successors, transferees and assigns of each of them
(each, a "COMPANY INDEMNIFIED PARTY") against and hold them harmless from
and against all Losses incurred by any of them based upon, resulting from
or arising out of (i) the breach of any representation or warranty of such
Purchaser contained in this Agreement or (ii) the breach of or failure to
perform any covenant or agreement of such Purchaser contained in this
Agreement.
Section 7.03. Indemnification by the Company. The Company shall,
from and after the Closing Date, indemnify each of the Purchasers and each
of their respective Affiliates and agents and the officers, directors,
employees, members, successors, transferees and assigns of each of them
(each, an "PURCHASER INDEMNIFIED PARTY") against and hold them harmless
from and against all Losses incurred by any of them based upon, resulting
from or arising out of (i) the breach of any representation or warranty of
the Company contained in this Agreement, (ii) the breach of or failure to
perform any covenant or agreement of the Company contained in this
Agreement or (iii) the Litigation entitled DonTech vs. Adoption World v.
Ameritech Corporation (Case Number 98 L 13197).
Section 7.04. Certain Qualifications. The Material Adverse Effect
and other materiality (or correlative meaning) qualifications included in
the representations, warranties, covenants and agreements contained herein
shall have no effect on any provisions in this Article VII concerning the
indemnities of the Company or the Purchasers with respect to such
representations, warranties, covenants and agreements, each of which
representations, warranties, covenants and agreements shall be read as
though there were no Material Adverse Effect or other materiality
qualification for purposes of such indemnities. All knowledge
qualifications included in the representations, warranties, covenants and
agreements contained herein with respect to DonTech or its business,
operations, assets, financial condition, liabilities or agreements shall
have no effect on any provisions of this Article VII concerning the
indemnities of the Company with respect to such representations,
warranties, covenants and agreements, each of which shall be read as though
there were no such knowledge qualifications for purposes of such
indemnities.
Section 7.05. Indemnification Procedures.
(a) An Purchaser Indemnified Party or a Company Indemnified
Party, as the case may be (for purposes of this Section 7.05, an
"INDEMNIFIED PARTY"), shall give the indemnifying party under Section 7.02
or 7.03, as applicable (for purposes of this Section 7.05, an "INDEMNIFYING
PARTY"), prompt written notice (the "INDEMNIFICATION CLAIM NOTICE") of any
third party claim for which it will seek indemnification hereunder;
provided that failure of the Indemnified Party to give the Indemnifying
Party prompt written notice as provided herein shall not relieve the
Indemnifying Party of any of its obligations hereunder except to the extent
that the Indemnifying Party is prejudiced thereby. The Indemnifying Party
shall have the right to assume, through counsel of its own choosing, which
counsel shall be reasonably satisfactory to the Indemnified Party, the
defense of any third party claim which is the subject of indemnification
hereunder at its own expense. If the Indemnifying Party elects to assume
the defense of any such claim, the Indemnified Party may participate with
its own counsel in such defense, but in such case the fees and expenses of
counsel to the Indemnified Party shall be paid by the Indemnified Party.
The Indemnified Party shall, upon reasonable notice, provide the
Indemnifying Party with access to its records and personnel relating to any
such claim during normal business hours and shall otherwise cooperate with
the Indemnifying Party in the defense or settlement thereof, and the
Indemnifying Party shall reimburse the Indemnified Party for all its
reasonable out-of-pocket expenses in connection therewith. If the
Indemnifying Party elects to direct the defense of any such claim, the
Indemnified Party shall not pay, or permit to be paid, any part of such
claim unless the Indemnifying Party consents in writing to such payment
(which consent shall not be unreasonably withheld) or unless the
Indemnifying Party withdraws from or fails to maintain the defense of such
claim or unless a final judgment from which no appeal may be taken by or on
behalf of the Indemnifying Party is entered against the Indemnified Party
for indemnification; provided that, if the third party claimant is prepared
to settle its claim by payment to it of a specified amount and,
notwithstanding the request of the Indemnified Party for consent to the
proposed settlement, the Indemnifying Party does not consent thereto, then
the Indemnifying Party shall indemnify the Indemnified Party separately for
the difference, if any, between the specified amount of the proposed
settlement and the amount which is finally adjudicated to be the amount of
the Liability to the third party. No settlement in respect of any
third-party claim may be effected by the Indemnifying Party without the
Indemnified Party's prior written consent (which consent shall not be
unreasonably withheld). If the Indemnifying Party shall fail to undertake
any such defense (or shall fail upon request to advise the Indemnified
Party in writing that it will undertake such defense) within 30 days of
receipt of the Indemnification Claim Notice, or subsequently withdraws from
or fails to maintain the defense of such claim, the Indemnified Party shall
have the right to undertake the defense or settlement thereof at the
Indemnifying Party's expense. If the Indemnified Party assumes the defense
of any such claim pursuant to the previous sentence it may conduct such
defense (including entering into any settlement) as it reasonably deems
appropriate.
(b) Notwithstanding the foregoing, with respect to any claim that
the Indemnifying Party is defending, the Indemnified Party shall have the
right to retain separate counsel to represent it and the Indemnifying Party
shall pay the fees and expenses of such separate counsel if there are
conflicts that make it reasonably necessary for separate counsel to
represent the Indemnified Party and the Indemnifying Party.
(c) In the event that an Indemnified Party asserts the existence
of a claim with respect to Losses (but excluding claims resulting from the
assertion of Liability by third parties), it shall give written notice to
the Indemnifying Party. Such written notice shall state that it is being
given pursuant to this Section 7.05(c), specify the nature and amount of
the claim asserted, and indicate the date on which such assertion shall be
deemed accepted and the amount of the claim deemed a valid claim (such date
to be established in accordance with the next sentence). If the
Indemnifying Party, within 30 days after the mailing of notice by such
Indemnified Party, shall not give written notice to such Indemnified Party
announcing its intent to contest such assertion of such Indemnified Party,
such assertion shall be deemed accepted and the amount of claim shall be
deemed a valid claim. In the event, however, that the Indemnifying Party
contests the assertion of a claim by giving such written notice to such
Indemnified Party within said period, then the parties shall act in good
faith to reach agreement regarding such claim. In the event that litigation
shall arise with respect to any such claim, the prevailing party shall be
entitled to reimbursement of costs and expenses incurred in connection with
such litigation including attorney fees, if the parties hereto, acting in
good faith, cannot reach agreement with respect to such claim within ten
days after such notice.
(d) The parties agree to treat any indemnification payments made
by the Company pursuant to this Agreement for Tax purposes as adjustments
to the purchase price of the Preferred Shares.
Section 7.06. Liability Limits. (a) Notwithstanding anything to
the contrary set forth in this Agreement, except for fraud, the Purchaser
Indemnified Parties shall not make a claim against the Company for
indemnification under Section 7.03(i) (not including indemnification for
breaches of the representations and warranties made by the Company in
Section 3.01(i)(iii)) for Purchaser Losses unless and until the aggregate
amount of Purchaser Losses under Section 7.03(i) (not including
indemnification for breaches of the representations and warranties made by
the Company in Section 3.01(i)(iii)) exceeds $1,000,000 and then the
Purchaser Indemnified Parties shall be entitled to indemnification from
first dollar. Further, the Company's indemnification obligations pursuant
to Section 7.03(i) shall not exceed in the aggregate $100,000,000.
(b) Notwithstanding anything to the contrary set forth in this
Agreement, except for fraud, the Company Indemnified Parties shall not make
a claim against the Purchasers for indemnification under Section 7.02(i)
for Company Losses unless and until the aggregate amount of Company Losses
under Section 7.02(i) exceeds $1,000,000 and then the Company Indemnified
Parties shall be entitled to indemnification from first dollar. Further,
the Purchasers' indemnification obligations pursuant to Section 7.02(i)
shall not exceed in the aggregate $100,000,000.
Section 7.07. Duplication. Any Liability for indemnification
hereunder shall be determined without duplication of recovery by reason of
the state of facts giving rise to such Liability constituting a breach of
more than one representation, warranty, covenant or agreement; provided,
however, that subject to there being no duplication of recovery, the
Indemnified Party shall be entitled to recover to the maximum extent
provided in this Agreement (by way of example, if any Indemnified Party's
entitlement to indemnification is both by reason for a breach of a
representation and warranty to which the two year survival period of
Section 7.01 applies and by reason of a breach of a representation and
warranty to which such survival period does not apply, the Indemnified
Party shall be entitled to indemnification without regard to such two year
survival period). The amount of any Loss for which indemnification is
provided under this Article VII shall be calculated (i) net of any amounts
actually recovered by the Indemnified Party (A) under insurance policies
with respect to such Loss and (B) any amounts actually recovered from third
parties pursuant to indemnification or otherwise with respect to such Loss,
and (ii) net of any tax benefits obtained or reasonably expected to be
obtained by the Indemnified Party or its affiliates with respect to such
Loss.
Section 7.08. Exclusive Remedies. Except for fraud, the
provisions of this Article VII set forth the exclusive rights and remedies
of the Purchasers and the Company to seek or obtain damages from any party
after the Closing Date with respect to breaches of representations,
warranties or covenants under this Agreement (other than any remedy or
relief arising from the failure of any party to perform its obligations
under the Ancillary Documents); provided, however, that nothing herein
shall limit any remedy in equity.
ARTICLE VIII. MISCELLANEOUS
Section 8.01. Notices. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given,
if delivered personally, by facsimile or sent by overnight courier as
follows:
If to the Purchasers, to:
GS Capital Partners 2000, L.P.
GS Capital Partners 2000 Offshore, L.P.
GS Capital Partners 2000 GmbH & Co. Beteiligungs KG
GS Capital Partners 2000 Employee Fund, ▇.▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Direct Investment Fund 2000, L.P.
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇, Esq.
with a copy to (which shall not constitute notice):
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Shine, Esq.
If to the Company, to:
▇.▇. ▇▇▇▇▇▇▇▇▇ Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
with a copy to (which shall not constitute notice):
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
or to such other address or addresses as shall be designated in writing.
All notices shall be effective when received.
Section 8.02. Entire Agreement; Amendments; Waivers. This
Agreement and the Ancillary Documents set forth the entire agreement
between the parties hereto with respect to the transactions contemplated by
this Agreement. Any provision of this Agreement may be amended or modified
in whole or in part at any time by an agreement in writing among the
parties hereto executed in the same manner as this Agreement. No failure on
the part of any party to exercise, and no delay in exercising, any right
shall operate as a waiver thereof nor shall any single or partial exercise
by any party of any right preclude any other or future exercise thereof or
the exercise of any other right. No investigation by the Purchasers of the
Company prior to or after the date hereof shall stop or prevent the
Purchasers from exercising any right hereunder or be deemed to be a waiver
of any such right.
Section 8.03. Counterparts. This Agreement may be executed by
facsimile signature and may be executed in one or more counterparts, each
of which shall be deemed to constitute an original, but all of which
together shall constitute one and the same documents.
Section 8.04. Governing Law. This Agreement shall be governed by,
and interpreted in accordance with, the laws of the State of New York
applicable to contracts made and to be performed in that State without
giving effect to any conflict of laws rules or principles that might
require the application of the laws of another jurisdiction.
Section 8.05. Public Announcements. Each of the parties hereto
agree to hold in strict confidence and not to publicly disclose the status
of any discussions or relations between the parties with respect to the
subject matter of this Agreement until such time as the parties mutually
agree to publicly disclose such information or are legally obligated
(whether by federal securities laws, the rules of any stock exchange or
otherwise) to disclose such information. Subject to the provisions of the
previous sentence, the parties hereto will cooperate with each other in the
development and distribution of all news releases and other public
information disclosures with respect to this Agreement and any of the
transactions contemplated hereby, and neither party hereto will make any
news releases or other information disclosures with respect to the subject
matter of this Agreement without the prior consent of the other party
hereto.
Section 8.06. Closing Payment; Expenses. (a) On the Closing Date,
the Company will pay to each Purchaser 1% of the portion of the purchase
price paid by such Purchaser to the Company on the Closing Date (the
"CLOSING PAYMENT"). Any obligation owed by the Company to the Purchasers
pursuant to this Section 8.06 shall be offset by the Purchasers against the
amount of the obligation owed to the Company by the Purchasers pursuant to
Section 2.02(b).
(b) The Company shall pay (i) all fees, costs and expenses
incurred by it in connection with the preparation, negotiation, execution,
and performance of this Agreement or any of the transactions contemplated
by this Agreement or the Other Transaction Documents, (ii) the reasonable
third party and out-of-pocket expenses (including, without limitation, all
reasonable fees and expenses of each counsel, accountants and consultants
of each such party) incurred by the Purchasers or their Affiliates since
August 16, 2002 in connection with the preparation, negotiation, execution,
and performance of this Agreement or any of the transactions contemplated
by this Agreement and (iii) all costs of filings required under the HSR Act
in connection with the execution and performance of this Agreement. Without
limiting the generality of the foregoing, the expenses referred to in
clause (iii) above shall be paid by the Company when due or payable and on
the Closing Date or the date on which this Agreement is terminated pursuant
to Article VI hereof, the Company shall pay all expenses listed in clause
(ii) of the previous sentence which have accrued as of such date.
Section 8.07. Successors and Assigns. Subject to applicable law
and the provisions of Section 4.10, each Purchaser may assign its rights
under this Agreement in whole or in part to any of its respective
Affiliates or any Designated Transferee, but no such assignment shall
relieve such Purchaser of its obligations hereunder. The Company may not
assign any of its rights or delegate any of its duties under this Agreement
without the prior written consent of each of the Purchasers. Any purported
assignment in violation of this Section 8.07 shall be void.
Section 8.08. Jurisdiction. The courts of the State of New York
in New York County and the United States District Court for the Southern
District of New York shall have jurisdiction over the parties with respect
to any dispute or controversy between them arising under or in connection
with this agreement and, by execution and delivery of this agreement, each
of the parties to this Agreement submits to the jurisdiction of those
courts, including but not limited to the in personam and subject matter
jurisdiction of those courts, waives any objections to such jurisdiction on
the grounds of venue or forum non conveniens, the absence of in personam or
subject matter jurisdiction and any similar grounds, consents to service of
process by mail (in accordance with Section 8.01) or any other manner
permitted by law, and irrevocably agrees to be bound by any judgment
rendered thereby in connection with this Agreement.
Section 8.09. Captions; References. The captions contained in
this Agreement are for reference purposes only and are not part of this
Agreement. Unless otherwise indicated, all references to Articles,
Sections, subsections, Schedules or Exhibits in this Agreement refer to the
Articles, Sections, subsections and clauses of, and the Schedules or
Exhibits to, this Agreement.
Section 8.10. Severability. Should any part of this Agreement for
any reason be declared invalid, such decision shall not affect the validity
of any remaining portion, which remaining portion shall remain in full
force and effect as if this Agreement had been executed with the invalid
portion thereof eliminated, and it is hereby declared the intention of the
parties hereto that they would have executed the remaining portion of this
Agreement without including therein any such part or parts which may, for
any reason, be hereafter declared invalid.
Section 8.11. Aggregation of Stock. All shares of capital stock
held or acquired by each of the Goldman Entities shall be aggregated
together for the purpose of determining the availability and exercise of
any right of each such Goldman Entity under this Agreement.
IN WITNESS WHEREOF, this Agreement has been executed by the
respective duly authorized officers of the parties hereto, all as of the
date first above written.
▇.▇. ▇▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
GS CAPITAL PARTNERS 2000, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
GS CAPITAL PARTNERS 2000 OFFSHORE, L.P.
By: GS Advisors 2000, L.L.C.
Its General Partner
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President
GS CAPITAL PARTNERS 2000 GmbH & CO.
BETEILIGUNGS KG
By: ▇▇▇▇▇▇▇ Sachs Management GP GmbH
Its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Managing Director
GS CAPITAL PARTNERS 2000 EMPLOYEE FUND, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Its: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ DIRECT INVESTMENT FUND 2000, L.P.
By: GS Employee Funds 2000 GP, L.L.C.
Its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President