Exhibit 4.1
INVESTORS' AGREEMENT
dated as of
April 15, 1999
among
CONDOR SYSTEMS, INC.
and the
several Shareholders from time to time parties hereto
TABLE OF CONTENTS
-----------------------
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.....................................................1
ARTICLE 2
CORPORATE GOVERNANCE
SECTION 2.01. Composition of the Board........................................7
SECTION 2.02. Removal.........................................................8
SECTION 2.03. Vacancies.......................................................8
SECTION 2.04. Meetings........................................................9
SECTION 2.05. Action by the Board.............................................9
SECTION 2.06. Certain Approval Rights.........................................9
SECTION 2.07. Affiliate Transactions.........................................10
SECTION 2.08. Capitalization of Company......................................11
SECTION 2.09. Conflicting Charter or Bylaw Provisions........................12
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General........................................................12
SECTION 3.02. Legends........................................................13
SECTION 3.03. Permitted Transferees..........................................13
SECTION 3.04. Restrictions on Transfers by Management Shareholders...........14
SECTION 3.05. Restrictions on Transfers by GTP Shareholders..................15
SECTION 3.06. Restrictions on Transfers by ▇▇▇▇▇▇▇...........................17
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01. Rights to Participate in Transfer..............................21
SECTION 4.02. Right to Compel Participation in Certain Transfers.............22
ARTICLE 5
PREEMPTIVE RIGHTS
SECTION 5.01. Pre-emptive Rights.............................................24
PAGE
ARTICLE 6
REGISTRATION RIGHTS
SECTION 6.01. Demand Registration............................................25
SECTION 6.02. Incidental Registration........................................30
SECTION 6.03. Holdback Agreements............................................31
SECTION 6.04. Registration Procedures........................................31
SECTION 6.05. Indemnification by the Company.................................34
SECTION 6.06. Indemnification by Participating Shareholders..................35
SECTION 6.07. Conduct of Indemnification Proceedings.........................36
SECTION 6.08. Contribution...................................................37
SECTION 6.09. Participation in Public Offering...............................38
SECTION 6.10. Other Indemnification..........................................38
SECTION 6.11. Cooperation by the Company.....................................39
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Entire Agreement...............................................39
SECTION 7.02. Effectiveness; Binding Effect; Benefit.........................39
SECTION 7.03. Assignability..................................................39
SECTION 7.04. Amendment and Waiver...........................................40
SECTION 7.05. Notices........................................................40
SECTION 7.06. Headings.......................................................42
SECTION 7.07. Counterparts...................................................42
SECTION 7.08. Applicable Law.................................................42
SECTION 7.09. Specific Enforcement...........................................42
SECTION 7.10. Consent to Jurisdiction........................................42
INVESTORS' AGREEMENT
INVESTORS' AGREEMENT dated as of April 15, 1999 among Condor Systems,
Inc., a California corporation (the "Company") and the several Shareholders of
the Company from time to time parties hereto.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein,
have the following meanings:
"Adverse Person" means any Person or group of affiliated Persons whom
the Board determines is a competitor or a potential competitor of, or otherwise
adverse to, the Company, its subsidiaries or any of the Shareholders.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person; provided that no Shareholder of the Company shall be deemed an
Affiliate of any other Shareholder of the Company solely by reason of any
investment in the Company. For the purpose of this definition, the term
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), when used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.
"Affiliated Employee Benefit Trust" means any trust that is a successor
to the assets held by a trust established under an employee benefit plan subject
to ERISA or any other trust established directly or indirectly under such plan
or any other such plan having the same sponsor.
"▇▇▇▇▇▇▇" means together, ▇▇▇▇▇▇▇ Capital II L.P. and Strategic
Entrepreneur Fund II L.P.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"Bylaws" means the bylaws of the Company, as amended from time to
time.
"Charter" means the articles of incorporation of the Company, as
amended from time to time.
"Closing Date" means April 15, 1999.
"Co-Investment Agreement" means the Co-Investment Agreement dated as of
April 8, 1998, attached as Exhibit I hereto.
"Common Stock" means the Class A Common Stock, the Class B Common Stock
and the Class C Common Stock of the Company and any stock into which such Common
Stock may thereafter be converted or changed. References herein to all or a
portion of the outstanding shares of Common Stock shall mean without regard to
class and without regard to voting rights, counting all classes of Common Stock
as one class of Common Stock on a share-for-share basis.
"Company Securities" means (i) the Common Stock, (ii) securities
convertible into or exchangeable for Common Stock, (iii) options, warrants or
other rights to acquire Common Stock or (iv) any other equity security issued by
the Company.
"Consulting Agreement" means the Consulting Agreement among DLJ
Merchant Banking II, Inc., GTP, and the members of GTP, if and when such
agreement is executed, and as thereafter amended or supplemented.
"DLJMB Entity" means each of, and the "DLJMB Entities" means
collectively, DLJ Merchant Banking Partners II, L.P., a Delaware limited
partnership ("DLJMB Partners II"), DLJ Offshore Partners II, C.V. a Netherlands
Antilles limited partnership, DLJ Merchant Banking Partners II-A, L.P., a
Delaware limited partnership, DLJ Diversified Partners, L.P., a Delaware limited
partnership, DLJ Diversified Partners-A, L.P., a Delaware limited partnership,
DLJ EAB Partners, L.P., a Delaware limited partnership, DLJ Millennium Partners,
L.P., a Delaware limited partnership, DLJ Millennium Partners-A, L.P., a
Delaware limited partnership, DLJMB Funding II, Inc., a Delaware corporation, UK
Investment Plan 1997 Partners, a Delaware partnership, DLJ First ESC, L.P., a
Delaware limited partnership and DLJ ESC II, L.P., a Delaware limited
partnership.
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"DLJMB Proportion" means a fraction, the numerator of which is the
number of shares of Common Stock to be sold by the DLJMB Entities in the
transaction in question and the denominator of which is the total number of
shares of Common Stock owned by the DLJMB Entities immediately prior to such
transaction.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GTP" means Global Technology Partners, LLC, a Delaware limited
liability company.
"GTP Principal" means any person who is, at the time, a member of GTP,
and a party to the Consulting Agreement (if it has previously been executed) and
the Co-Investment Agreement (each as amended or supplemented).
"GTP Shareholder" means each of, and "GTP Shareholders" means
collectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, and any GTP Principal who acquires Company
Securities from a GTP Shareholder as a Permitted Transferee.
"Initial Ownership" means, with respect to any Shareholder, the number
of shares of Common Stock owned by such Shareholder as of the Closing Date
(taking into account any stock split, stock dividend, reverse stock split or
other similar event occurring after such date but not taking account of shares
that may be acquired pursuant to other Company Securities).
"Initial Public Offering" means the first sale of shares of Common
Stock pursuant to a Public Offering.
"Management Shareholders" means ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇.
"Permitted Transferee" means:
(i) in the case of ▇▇▇▇▇▇▇, the other ▇▇▇▇▇▇▇ funds listed on the
attached Schedule I hereto;
(ii) (x) in the case of any GTP Shareholder: (A) any other GTP
Shareholder in the event that the transferring GTP Shareholder dies,
3
becomes disabled, or is divorced, and (B) any person who is a GTP
Principal but not a GTP Shareholder provided that (a) the Consulting
Agreement (if it has previously been executed) and the Co-Investment
Agreement (each as amended or supplemented) are still in effect (or
DLJMB Partners II's prior written approval has been obtained) and (b)
transfer to such person will not cause the transferee to own an amount
of Common Stock greater than the largest amount of Common Stock owned
by any GTP Shareholder as of the Closing Date; and (y) in the case of
any GTP Shareholder who accepts a full-time position with the federal,
or with any state or local, government, or with any organization where
possession of Company Securities may give rise to an apparent or actual
conflict of interest, such GTP Shareholder is permitted to transfer his
Company Securities to a blind trust (and if the conflict of interest
terminates, such Shareholder may reacquire such transferred Company
Securities); provided that any and all trustees of the blind trust will
be required with respect to a particular matter to vote such shares of
Common Stock held in such trust in the same proportion as all other
shares of Common Stock held by GTP Shareholders in the aggregate are
voted for or against the particular matter being voted on, and provided
further that with respect to the particular GTP Shareholder described
in this clause (y), such blind trust (or trustee or trustees, if
applicable) shall be deemed a Permitted Transferee .
(iii) in the case of any Management Shareholder, (A) subject to
Board approval, or in the event that the transferring Management
Shareholder dies, becomes disabled, or is divorced, any other
Management Shareholder, (B) a spouse or lineal descendant of any such
Management Shareholder, or (C) any trust, the beneficiaries of which
include only the Management Shareholder and /or the persons named in
clause (B); and
(iv) in the case of any DLJMB Entity, (A) any other DLJMB Entity,
(B) any general or limited partner of any DLJMB Entity (a "DLJMB
Partner"), and any Affiliated Employee Benefit Trust or other Person
that is an Affiliate of any DLJMB Partner (collectively, the "DLJMB
Affiliates"), (C) any managing director, general partner, director,
limited partner, officer or employee of any DLJMB Entity or of any
DLJMB Affiliate, or the heirs, executors, administrators, testamentary
trustees, legatees or beneficiaries of any of the foregoing persons
referred to in this clause (C) (collectively, "DLJMB Associates"), (D)
a trust, the beneficiaries of which, or a corporation, limited
liability company or partnership, all of the stockholders, members or
general or limited partners of which, include only the DLJMB Entities,
DLJMB Affiliates, DLJMB Associates, their spouses or their lineal
descendants, or (E) a voting trustee
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for one or more DLJMB Entities, DLJMB Affiliates or DLJMB Associates
under the terms of a voting trust designed to conform with the
requirements of the Insurance Law of the State of New York.
Unless otherwise indicated, any reference to a Shareholder (including
without limitation ▇▇▇▇▇▇▇, any DLJMB Entity, any GTP Shareholder, and any
Management Shareholder) shall include its Permitted Transferees to the extent
Company Securities have been transferred to such Permitted Transferees, and any
rights or action that may be taken at the election of such Shareholder may be
taken at the election of such Shareholder and its Permitted Transferees.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization, including
a government or political subdivision or an agency or instrumentality thereof.
"Public Offering" means an underwritten public offering of Common Stock
pursuant to an effective registration statement under the Securities Act (other
than a registration statement on Form ▇-▇, ▇-▇ or any successor forms).
"Registrable Securities" means any shares of Common Stock owned by a
Shareholder and not acquired after the Initial Public Offering in market
transactions.
"Registration Expenses" means (i) all registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications), (iii) printing expenses, (iv) internal expenses of the Company
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), (v) reasonable fees and
disbursements of counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company (including the
expenses of any comfort letters), (vi) the reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
(vii) reasonable fees and expenses of one counsel for the Shareholders
participating in the offering selected (A) by ▇▇▇▇▇▇▇, in the case of an
offering pursuant to a Catch-up Demand Registration or Unlimited Demand
Registration, (B) except as set forth in clause (A), by the DLJMB Entities, in
the case of any offering in which such entities participate, or (C) in any other
case, by the Shareholders holding the majority of shares to be sold for the
account of all Shareholders in the offering, (viii) fees and expenses in
connection with any review of underwriting arrangements by the National
Association of Securities Dealers, Inc. (the "NASD") including fees and expenses
of any "qualified independent underwriter" and (ix) fees and disbursements of
underwriters customarily paid by issuers or sellers of securities;
5
but shall not include any underwriting fees, discounts or commissions
attributable to the sale of Registrable Securities, or any out-of-pocket
expenses (except as set forth in clause (vii) above) of the Shareholders (or the
agents who manage their accounts) or any fees and expenses of underwriter's
counsel.
"Restriction Termination Date" means the earlier to occur of (a) the
second anniversary of the Initial Public Offering and (b) the fifth anniversary
of the Closing Date.
"Rule 144" means Rule 144 (or any successor provisions) under the
Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder" means each Person (other than the Company) who shall be a
party to or bound by this Agreement, whether in connection with the execution
and delivery hereof as of the date hereof, pursuant to Section 7.03, or
otherwise, so long as such Person owns any Company Securities.
Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Applicable Holdback Period 6.03
Capital Return Date 3.04(a)
Catch-up Demand Registration 6.01(a)(iii)
Catch-up Shareholder Amount 6.01(a)
Catch-up Shareholder Maximum 6.01(a)
Catch-up Shares 3.06(a)(iii)
Class A Common Stock 2.08
Class B Common Stock 2.08
Class C Common Stock 2.08
Demand Registration 6.01(a)(iii)
DLJMB Termination Date 2.06
Drag-Along Rights 4.02(a)
Holders 6.01(a)
Incidental Registration 6.02(a)
Indemnified Party 6.07
Indemnifying Party 6.07
Inspectors 6.04(g)
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Term Section
Offering Amount 6.01(a)
Ombudsman 2.05
Option Shares 3.04(a)
Public Offering Limitations 3.04(a)
Records 6.04(g)
Regular Demand Registration 6.01(a)(i)
Selling Person 4.01(a)
Selling Shareholder 6.01(a)
Shareholder Amount 6.01(a)
Shareholder Maximum 6.01(a)
Shareholder Portion 6.01(a)
Tag-Along Offer 4.01(a)
Tag-Along Right 4.01(a)
Tag-Along Sale 4.01(a)
Tagging Person 4.01(a)
transfer 3.01
Unlimited Demand Registration 6.01(a)(ii)
Unlimited Shareholder Maximum 6.01(a)
Unlimited Tradable Shares 6.01(a)(iii)(B)
ARTICLE 2
CORPORATE GOVERNANCE
SECTION 2.01. Composition of the Board. (a) Each Shareholder agrees
that the Board shall consist of five directors, three of whom will be nominated
by the GTP Shareholders (two of whom will be GTP Shareholders, and one of whom
will be designated by the GTP Shareholders), one of whom will be nominated by
▇▇▇▇▇▇▇, and one of whom will be the Chief Executive Officer of the Company
appointed by the Board; provided that the GTP Shareholders may, and, if required
by a U.S. Government agency for whom the Company performs classified contracts,
will, select as the third GTP Shareholder nominee a non-GTP Shareholder having
considerable relevant business experience but no prior financial or contractual
relationship with any of the Shareholders. The GTP nominees shall select the
Chairman of the Board, and have initially selected ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇. The
rights of any group of Shareholders to nominate under this Section shall
terminate when the number of shares of Common Stock held by such group of
Shareholders is less than 10% of its Initial Ownership.
7
(b) If the Company could continue to perform classified work in
circumstances where the holders of the Class C Common Stock held instead an
equal number of shares of Class A Common Stock, and such holders elect, pursuant
to Section 2.08 hereof, to have the shares of Class C Common Stock converted to
shares of Class A Common Stock (which will automatically also cause all shares
of Class B Common Stock to be converted to shares of Class A Common Stock): (i)
the GTP Shareholders' right to nominate three directors will become a right of
DLJMB Partners II to nominate such directors (at least one of whom shall be a
GTP Shareholder so long as the Consulting Agreement (if it has previously been
executed) and the Co-Investment Agreement (each as amended or supplemented) are
still in effect), (ii) the GTP nominees' right to seats on committees will
become a right of the nominees of DLJMB Partners II, and (iii) the DLJMB
Entities will be obligated to vote for Board nominees as the GTP Shareholders
would under Section 2.01(c).
(c) The GTP Shareholders and ▇▇▇▇▇▇▇ will be required to vote for the
GTP nominees and the Chief Executive Officer unless the number of shares of
Common Stock held by GTP Shareholders and the DLJMB Entities is less than 10% of
the Initial Ownership of the GTP Shareholders and the DLJMB Entities, and the
GTP Shareholders and ▇▇▇▇▇▇▇ will be required to vote for the ▇▇▇▇▇▇▇ nominee
unless and until the number of shares of Common Stock held by ▇▇▇▇▇▇▇ is less
than 10% of ▇▇▇▇▇▇▇'▇ Initial Ownership.
(d) The rights to nominate directors pursuant to Section 2.01(a) and
(b), and the right to require other parties to vote therefor pursuant to Section
2.01(c), shall not be transferable by the GTP Shareholders, other than to their
Permitted Transferees, and shall not be transferable by DLJMB Partners II or
▇▇▇▇▇▇▇.
SECTION 2.02. Removal. Each Shareholder (other than the Management
Shareholders) agrees that it will vote all of its shares of Common Stock
entitled to vote in favor of the removal of any director who shall have been
designated or nominated or appointed pursuant to Section 2.01 at the request of
the Persons entitled to designate or nominate or appoint such director, and
otherwise only for cause or with the consent of such Persons.
SECTION 2.03. Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without cause) or otherwise, there
shall exist or occur any vacancy of the Board:
(a) the Person or Persons entitled under Section 2.01 to designate
or nominate or appoint such director whose death, disability,
retirement, resignation or removal resulted in such vacancy may
designate another individual to fill such capacity and serve as a
director of the Company; and
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(b) subject to Section 2.01, each Shareholder (other than the
Management Shareholders) agrees to vote all of its shares of Common
Stock entitled to vote in favor of the election of such designee as a
director.
SECTION 2.04. Meetings. The Board shall hold a regularly scheduled
meeting at least once every calendar quarter.
SECTION 2.05. Action by the Board. (a) A quorum of the Board shall
consist of three directors. All actions of the Board shall require the
affirmative vote of at least a majority of the directors present at a duly
convened meeting of the Board (with prior notice as provided in the ByLaws) at
which a quorum is present or the unanimous written consent of the Board;
provided that, in the event there is a vacancy on the Board and an individual
has been nominated to fill such vacancy, the first order of business shall be to
fill such vacancy.
(b) The Board shall create a compensation committee which will have
three seats. The ▇▇▇▇▇▇▇ nominee will be entitled to one seat, and the GTP
nominees will be entitled to the other two seats. Subject to Section 2.06(ix),
the compensation committee will make all compensation decisions.
(c) The Board shall create an audit committee which will have three
seats. The GTP nominees will be entitled to two seats; one of which will be held
by a GTP Shareholder and one of which will be held by the third GTP nominee. The
▇▇▇▇▇▇▇ nominee will be entitled to the third seat. An individual shall be
appointed by the audit committee to oversee the Company's handling of classified
and controlled unclassified information (the "Ombudsman"), who shall report to
the audit committee as needed, and no less than once per quarter.
(d) The Board shall not create any other committees, except as
required for appropriate regulatory authorities.
SECTION 2.06. Certain Approval Rights. The Board has full authority to
take any and all lawful action; provided that the prior written approval of
DLJMB Partners II shall be required for the following corporate actions:
(i) the sale or disposal of all Company assets (or a substantial
part thereof);
(ii) pledges, mortgages, or other encumbrances of the Company
assets (other than for obtaining working capital or funds for capital
improvements);
9
(iii) the issuance or redemption by the Company of debt or equity
securities (including options and other equity-based compensation);
(iv) the Company's participation in any corporate mergers,
consolidations, reorganizations or acquisitions (of stock or assets);
(v) the dissolution of the Company, the sale or liquidation of its
business, or a change of control;
(vi) the Company's filing of a bankruptcy petition or the
windingdown of its business;
(vii) a change in the Company's independent auditors;
(viii) a change in the Company's Charter; and
(ix) any proposed increase in the base salary for any senior
manager of 20% or more in any given year, or a bonus for any senior
manager in any given year greater than 70% of base salary (140% for the
Chief Executive Officer).
These approval rights shall terminate if all shares of Class B Common
Stock and Class C Common Stock have been converted to shares of Class A Common
Stock as contemplated by Section 2.08. These approval rights shall also
terminate if the number of shares of Common Stock owned by the DLJMB Entities is
less than 10% of the Initial Ownership of the DLJMB Entities (the "DLJMB
Termination Date"). These approval rights shall not be transferable by DLJMB
Partners II.
SECTION 2.07. Affiliate Transactions. All transactions (other than
issuances of equity securities) between the Company, on the one hand, and any
shareholder or group of shareholders owning 5% or more of the outstanding shares
of Common Stock or of the total voting power of the outstanding shares of Common
Stock or any Affiliates thereof, on the other hand, shall be on terms no less
favorable to the Company than those that can be obtained by the Company from an
unaffiliated third party with similar qualifications. Any issuances or
repurchases of equity securities by the Company shall be at fair market value as
determined by the Board. It is understood and agreed that (a) the financial
advisory agreement between ▇▇▇▇▇▇▇ Capital Management Corp. and the Company
dated ▇▇▇▇▇ ▇, ▇▇▇▇, (▇) the financial advisory agreement between ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation and the Company dated March 4, 1999
(only with respect to such agreement and not with respect to the
10
future agreements contemplated therein), and (c) transactions contemplated by
the Co-Investment Agreement (or an amendment, supplement, or replacement thereof
which provides for benefits to the GTP Shareholders which are proportionately
(taking into account the size of the transaction) not materially greater than
those contemplated to be received by the GTP Shareholders in the transactions
consummated on the Closing Date) do not violate this Section 2.07.
SECTION 2.08. Capitalization of Company. (a) Each Shareholder agrees
that the Company shall be authorized to issue three classes of shares of capital
stock, designated "Class A Common Stock", "Class B Common Stock", and "Class C
Common Stock" (collectively, "Common Stock").
(b) ▇▇▇▇▇▇▇ and the Management Shareholders will initially be holders
of shares of Class A Common Stock. The GTP Shareholders will initially be
holders of shares of Class B Common Stock. The DLJMB Entities will initially be
holders of shares of Class C Common Stock.
(c) Each of the shares of Common Stock shall be identical in all
respects and shall have equal rights, powers, and privileges, except as set
forth in the Company's Charter and below:
(i) Conversion. (A) Any holder of shares of Class B Common Stock
who transfers such shares to any Person (other than a Permitted
Transferee of such holder, in which case such shares shall not convert,
or a holder of Class C Common Stock, in which case such shares shall
automatically convert to shares of Class C Common Stock) shall be
required to exercise its right to convert such shares to Class A Common
Stock as a condition to such transfer. Notwithstanding the foregoing,
no conversion from shares of Class B Common Stock to shares of Class A
Common Stock shall be made unless (i) the holders of the remaining
shares of Class B Common Stock would be entitled to designate a
majority of the Board of Directors of the Corporation, or (ii) such
entitlement is not required in order for the Corporation to continue to
perform classified work.
(B) Any holder of shares of Class C Common Stock who transfers
such shares to any Person (other than another holder of Class C Common
Stock or an Affiliate of such holder, in which case such shares shall
not convert) shall be required to exercise its right to convert such
shares to Class A Common Stock as a condition of such transfer.
(C) If the Company could continue to perform classified work in
circumstances where the holders of the Class C Common Stock held
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instead an equal number of shares of Class A Common Stock, the holders
of the Class C Common Stock may, at their option by majority vote (with
subsequent notice to the other Shareholders) elect to require all
holders of Class C Common Stock to convert their shares of Class C
Common Stock to Class A Common Stock on a share for share basis,
whereupon all such holders shall convert all such shares. Upon such
conversion, each share of Class B Common Stock will, as provided in the
charter, automatically convert into Class A Common Stock on a share for
share basis.
(ii) Dividends, Splits and Reclassifications. (A) Any dividends
or distributions with respect to Common Stock shall be declared and paid
at the same time and at the same rate per share on Class A Common Stock,
Class B Common Stock, and Class C Common Stock. Any stock dividends on
any class of Common Stock shall be paid in stock of such class, and any
splits, divisions, or combinations of Common Stock shall be made in the
same ratios with respect to the Class A Common Stock, Class B Common
Stock, and Class C Common Stock.
(B) Except as set forth in clause (A) above, each share of Class
A Common Stock, Class B Common Stock, and Class C Common Stock shall be
treated equally in respect of any dividends or distributions, when and
as declared, and whether by dividend, recapitalization, reorganization,
merger or otherwise.
SECTION 2.09. Conflicting Charter or Bylaw Provisions. Each Shareholder
shall vote its Company Securities entitled to vote and take all other actions
necessary to ensure that the Company's Charter and Bylaws facilitate and do not
at any time conflict with any provision of this Agreement.
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General. Each Shareholder understands and agrees that the
Company Securities acquired on the Closing Date have not been registered under
the Securities Act and are "restricted securities" as defined in Rule 144. Each
Shareholder agrees that it will not, directly or indirectly, sell, assign,
transfer, grant a participation in, pledge or otherwise dispose of ("transfer")
any Company Securities (or solicit any offers to buy or otherwise acquire, or
take a pledge of any Company Securities) except in compliance with the
Securities Act and the terms and conditions of this Agreement. Any attempt to
transfer any Company
12
Securities not in compliance with this Agreement shall be null and void and the
Company shall not, and shall cause any transfer agent not to, give any effect in
the Company's stock records to such attempted transfer.
SECTION 3.02. Legends. In addition to any other legend that may be
required, each certificate for Company Securities that is issued to any
Shareholder shall bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED
OR SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS'
AGREEMENT DATED AS OF APRIL 15, 1999, COPIES OF WHICH MAY BE OBTAINED
UPON REQUEST FROM CONDOR SYSTEMS, INC. OR ANY SUCCESSOR THERETO."
If with respect to any Company Securities, (a) a registration statement
covering such securities has been declared effective by the SEC and such
securities have been disposed of pursuant to such effective registration
statement or (b) such securities are sold under circumstances in which all of
the applicable conditions of Rule 144 are met, the Company shall, upon the
written request of the holder thereof, issue to such holder a new certificate
evidencing such securities without the first sentence of the legend required by
this Section endorsed thereon. If any Company Securities cease to be subject to
any and all restrictions on transfer set forth in this Agreement, the Company
shall, upon the written request of the holder thereof, issue to such holder a
new certificate evidencing such Company Securities without the second sentence
of the legend required by this Section endorsed thereon.
SECTION 3.03. Permitted Transferees. Notwithstanding anything in this
Agreement to the contrary, any Shareholder may at any time transfer any or all
of its Company Securities to one or more of its Permitted Transferees without
the consent of the Board or any other Shareholder or group of Shareholders and
without compliance with Sections 3.04, 3.05, 3.06 and 4.01 so long as (a) such
Permitted Transferee shall have become a party to this Agreement and executed
and delivered a copy of this Agreement to the Company and (b) the transfer to
such Permitted Transferee is not in violation of applicable federal or state
securities laws. A Permitted Transferee will be entitled to the rights and
subject to the obligations of the transferor hereunder; however it shall not
have any rights to nominate any directors under Section 2.01, except if it is a
Permitted Transferee
13
of a GTP Shareholder, and shall not have any approval rights under Section 2.06.
No transferee other than a Permitted Transferee shall be entitled to any rights
or subject to any obligations of the transferor under this Agreement.
SECTION 3.04. Restrictions on Transfers by Management Shareholders.
(a) Each Management Shareholder may transfer its Company Securities only
as follows; provided that notwithstanding anything herein to the contrary, such
transfers cannot, prior to eight years after the date of this Agreement, reduce
the ownership of shares of Common Stock by such Management Shareholder to below
that percentage of its Initial Ownership as equals the percentage of the DLJMB
Entities' Initial Ownership after previous (or simultaneous, if in the same
transaction) dispositions by the DLJMB Entities:
(i) in a transfer made in compliance with Section 4.01 or 4.02;
(ii) subject to the Public Offering Limitations, in a Public
Offering in connection with the exercise of its rights under Article 6
hereof;
(iii) following the second anniversary of the Initial Public
Offering, in a transfer made in compliance with Rule 144 and Section
6.03 hereof; or
(iv) following the Restriction Termination Date, on an arms-length
basis to any unaffiliated third party other than an Adverse Person for
consideration consisting solely of cash, provided, however, that the
number of shares of Common Stock transferred by such Management
Shareholder pursuant to this clause (iv) in any 12-month period shall
not exceed 20% of the total number of shares of Common Stock owned by
such Management Shareholder at the beginning of such 12-month period.
For purposes of this Agreement, "Public Offering Limitations" means (A)
in the Initial Public Offering no Management Shareholder may transfer any shares
of Common Stock, unless otherwise determined by the Board; (B)(i) in the first
Public Offering following the Initial Public Offering, until the date on which
the DLJMB Entities have received aggregate cash proceeds from the sale of shares
of Common Stock equal to the DLJMB Entities' initial investment in shares of
Common Stock (the "Capital Return Date"), no Management Shareholder may sell
more shares of Common Stock acquired pursuant to exercise of employee stock
options ("Option Shares") than the product of the number of Option Shares held
by such person or group prior to such Public Offering and the lesser of (x) 50%
of the DLJMB Proportion and (y) 20% and (ii) in each Public
14
Offering thereafter, no Management Shareholder may sell more Option Shares than
the product of the number of Option Shares held by such person or group prior to
the Public Offering and the lesser of (x) the DLJMB Proportion and (y) 50%.
(b) The provisions of Section 3.04(a) shall terminate upon the DLJMB
Termination Date.
SECTION 3.05. Restrictions on Transfers by GTP Shareholders.
(a) Each GTP Shareholder may transfer its Company Securities only as
follows; provided that notwithstanding anything herein to the contrary, such
transfers cannot, without the prior written approval of DLJMB Partners II,
reduce the ownership of shares of Common Stock of such GTP Shareholder to below
that percentage of its Initial Ownership as equals the percentage of the DLJMB
Entities' Initial Ownership remaining after previous (or simultaneous, if in the
same transaction) dispositions of Common Stock by the DLJMB Entities, and
provided further that the proceeds from any such transfers must be first used to
repay all loans incurred by such GTP Shareholder to pay for shares of Common
Stock:
(i) in a transfer made in compliance with Section 4.01 or 4.02;
(ii) in a Public Offering (including the Initial Public Offering)
in connection with the exercise of its rights under Article 6 hereof;
(iii) following the second anniversary of the Initial Public
Offering, in a transfer made in compliance with Rule 144 and Section
6.03 hereof; or
(iv) following the Restriction Termination Date on an arms-length
basis to any unaffiliated third party other than an Adverse Person for
consideration consisting solely of cash.
(b) (i) If a GTP Shareholder proposes to transfer shares of Common
Stock owned by such GTP Shareholder in a transaction pursuant to
Section 3.05(a)(iii) or 3.05(a)(iv), such GTP Shareholder shall provide
the DLJMB Entities, the Management Shareholders and the Company written
notice of such proposed transfer. The notice shall identify the number
of shares of Common Stock proposed to be transferred, the cash price
per share at which a transfer is proposed to be made and all other
material terms and conditions of the offer. Each GTP Shareholder agrees
that it will not enter into any discussions or negotiations with any
third
15
party concerning a transaction that might constitute or result in any
such offer, except in full compliance with Section 3.05(b).
(ii) The receipt of a such notice by the DLJMB Entities and the
Company from a GTP Shareholder shall constitute an offer by such GTP
Shareholder to sell first, to the DLJMB Entities and, if not accepted
or only accepted in part by the DLJMB Entities, second to the Company,
for cash, the shares of Common Stock at the price and on the other
terms and conditions set forth in such notice. Such offer shall be
irrevocable for 10 Business Days (or in the case of a sale pursuant to
Rule 144, 24 hours) after receipt of such notice by the DLJMB Entities
and the Company. During such period, any of the DLJMB Entities and the
Company shall have the right to accept such offer as to all or a
portion of the shares of Common Stock (provided that first priority of
the right to accept is given to the DLJMB Entities; and provided
further that the aggregate number of shares of Common Stock accepted by
the DLJMB Entities and the Company (and any participating Management
Shareholders) together equals the total number of shares of Common
Stock subject to the offer) by giving a written notice of acceptance to
such Shareholder prior to the expiration of the offer period.
(iii) If one or more of the DLJMB Entities accept the offer, the
Management Shareholders will have the right to participate with the
DLJMB Entities in the purchase, pro rata based on their respective
Initial Ownership. In addition, if the shares to be sold by the GTP
Shareholders are shares of Class B Common Stock: (A) the shares of
Common Stock purchased by the DLJMB Entities shall convert upon the
closing of such sale into shares of Class C Common Stock and (B) the
shares of Common Stock purchased by the Management Shareholders shall
convert upon the closing of such sale into shares of Class A Common
Stock.
(iv) Any person who has accepted the offer shall purchase and pay
for all shares of Common Stock accepted within 30 days after such
acceptance; provided that if the purchase and sale of such shares is
subject to any prior regulatory approval, the time period during which
such purchase and sale may be consummated shall be extended until the
expiration of five Business Days after all such approvals shall have
been received; provided further that such time period shall not exceed
120 days without the prior written consent of the GTP Shareholder.
(v) Upon the failure to accept the offer in full prior to the
expiration of the offer period or the failure to consummate the
purchase within 30 (or 120 days, if applicable) after the acceptance of
the offer,
16
there shall commence a 60-day period during which the GTP Shareholder
that gave the notice shall have the right to transfer to a third party
any or all of the shares of Common Stock subject to such offer at a
price in cash not less than 90% of the price indicated in the applicable
notice to the DLJMB Entities and the Company, and on the other terms and
conditions set forth therein, provided that the transfer to such third
party is not in violation of applicable federal or state or foreign
securities laws. If such Shareholder does not consummate the sale in
accordance with the foregoing time limitations, such Shareholder may not
thereafter transfer any shares of Common Stock in a transaction pursuant
to Section 3.05(a)(iii) or 3.05(a)(iv) without repeating the foregoing
procedures.
(vi) Notwithstanding anything in this Section 3.05(b) to the
contrary, the provisions of this Section 3.05(b) will not be applicable
to transfers made pursuant to and in compliance with any provisions of
this Agreement other than Sections 3.05(a)(iii) or (iv).
(c) The provisions of Sections 3.05(a) and (b) shall terminate upon the
DLJMB Termination Date.
SECTION 3.06. Restrictions on Transfers by ▇▇▇▇▇▇▇.
(a) ▇▇▇▇▇▇▇ may transfer its Company Securities only as follows:
(i) prior to the Initial Public Offering, in a transfer made in
compliance with Section 4.01 or 4.02;
(ii) in the Initial Public Offering in connection with the
exercise of its rights under Article 6 hereof;
(iii) in the first two years following the Initial Public
Offering, if the Shareholders own at the time of transfer more than 50%
of the outstanding shares of Common Stock, then:
(A) in a transfer made in compliance with Section 4.01 or
4.02;
(B) with respect to Catch-up Shares only,
(1) in a transfer made in compliance with Rule 144,
provided that sales by ▇▇▇▇▇▇▇ pursuant to this clause (1)
shall not (x) in any 60 day period, total over $3.5 million,
occur on more than seven trading days or occur
17
outside a two week period, or (y) occur in more than four
60-day periods;
(2) in a transfer made pursuant to a Catch-Up Demand
Registration (as defined in Section 6.01(a)(iii)), or
(3) in a transfer made pursuant to a Regular Demand
Registration (as defined in Section 6.01(a)(i)) initiated by
a Shareholder other than ▇▇▇▇▇▇▇ or pursuant to an Incidental
Registration (as defined in Section 6.02(a)), subject to
applicable priority provisions.
"Catch-up Shares" means the number of shares of Common Stock that
▇▇▇▇▇▇▇ would have been entitled to transfer pursuant to Section
4.01 after the Initial Public Offering or a Demand Registration
initiated by a Shareholder other than ▇▇▇▇▇▇▇ or an Incidental
Registration (excluding the Initial Public Offering), in each
case, in which ▇▇▇▇▇▇▇ elected not to participate; and
(C) in a transfer made pursuant to an Unlimited Demand
Registration (as defined in Section 6.01(a)(ii)) or the transfer
of Unlimited Tradable Shares (as defined in Section 6.01);
(iv) in the first two years following the Initial Public Offering,
if the Shareholders own at the time of such transfer 50% or less of the
outstanding shares of Common Stock or after two years following the
Initial Public Offering, then:
(A) in a transfer made in compliance with Section 4.01 or
4.02;
(B) in a transfer made in compliance with Rule 144;
(C) in a transfer made pursuant to a Regular Demand
Registration, a Catch-up Demand Registration or an Incidental
Registration;
(D) in the event that ▇▇▇▇▇▇▇ own either (a) less than 3.5%
of the outstanding shares of Common Stock, or (b) shares of
Common Stock with a market value of less than $8 million in the
aggregate, to any Person other than an Adverse Person; or
18
(E) pursuant to an Unlimited Demand Registration or the
transfer of Unlimited Tradable Shares.
(v) ▇▇▇▇▇▇▇ may transfer its shares of Common Stock to general or
limited partners of ▇▇▇▇▇▇▇, in the event that any of the DLJMB
Entities transfers shares of Common Stock to any general or limited
partners of DLJMB Entities; provided that ▇▇▇▇▇▇▇ cannot transfer to
its general and limited partners a number of shares of Common Stock
that is greater than 57% of the number of shares of Common Stock that
the DLJMB Entities transfer to their general and limited partners.
(b) (i) If ▇▇▇▇▇▇▇ proposes to transfer shares of Common Stock owned by
▇▇▇▇▇▇▇ in a transaction pursuant to Sections 3.06(a)(iii)(B)(1),
3.06(a)(iii)(C) (only as to Unlimited Tradable Shares), 3.06(a)(iv)(B),
3.06(a)(iv)(D), or 3.06(a)(iv)(E) (only as to Unlimited Tradable Shares),
▇▇▇▇▇▇▇ shall provide the DLJMB Entities, the other Shareholders and the Company
written notice of such offer. The notice shall identify the number of shares of
Common Stock proposed to be sold and the cash price per share of Common Stock at
which a sale is proposed to be made and all other material terms and conditions
of the offer. ▇▇▇▇▇▇▇ agrees that it will not enter into any discussions or
negotiations with any third party concerning a transaction that might constitute
or result in any such offer, except in full compliance with Section 3.06(b).
(ii) The receipt of such notice by the DLJMB Entities and the
Company from ▇▇▇▇▇▇▇ shall constitute an offer by such Shareholder to
sell first, to the DLJMB Entities and, if not accepted or only accepted
in part by the DLJMB Entities, second to the Company for cash the
shares of Common Stock at the offer price and on the other terms and
conditions set forth in such notice. Such offer shall be irrevocable
for 24 hours after receipt of such notice by the DLJMB Entities and the
Company. During such 24-hour period, any of the DLJMB Entities and the
Company shall have the right to accept such offer as to all or a
portion of the shares of Common Stock (provided that first priority of
the right to accept is given to the DLJMB Entities; and provided
further, that the aggregate number of shares of Common Stock accepted
by the DLJMB Entities and the Company (and any participating Management
Shareholders and GTP Shareholders) together equals the total number of
shares of Common Stock subject to the offer) by giving a written notice
of acceptance to such Shareholder prior to the expiration of such
24-hour period.
(iii) If any of the DLJMB Entities accept the offer, the
Shareholders other than ▇▇▇▇▇▇▇ will have the right to participate with
such DLJMB Entity in the purchase, pro rata based on their respective
19
Initial Ownership, and at the discretion of the compensation committee,
the Company may lend on an arms-length basis necessary funds to any
Management Shareholder who wishes to participate for up to seven
Business Days. In addition, if at the time of such purchase any shares
of Class C Common Stock are outstanding, the shares purchased by the
DLJMB Entities shall convert upon the closing of such sale into shares
of Class C Common Stock.
(iv) Any person who has accepted the offer shall purchase and pay
for all shares of Common Stock accepted within 3 trading days after
acceptance of the offer.
(v) Upon the failure to accept the offer in full prior to the
expiration of the 24-hour period or the failure to consummate the
purchase within 3 trading days after the acceptance of the offer, there
shall commence a 60-day period during which the Shareholder that gave
the notice shall have the right to transfer to a third party any or all
of the shares of Common Stock subject to the such offer at a price in
cash not less than 90% of the price indicated in the applicable notice
to the DLJMB Entities and the Company, and on the other terms and
conditions set forth therein. If such Shareholders do not consummate
the sale in accordance with the foregoing time limitations, such
Shareholders may not thereafter transfer any shares of Common Stock in
a transaction pursuant to Sections 3.06(a)(iii)(B)(1), 3.06(a)(iii)(C)
(only as to Unlimited Tradable Shares), 3.06(a)(iv)(B), 3.06(a)(iv)(D),
or 3.06(a)(iv)(E) (only as to Unlimited Tradable Shares), without
repeating the foregoing procedures.
(vi) Notwithstanding anything in this Section 3.06(b) to the
contrary, the provisions of this Section 3.06(b) will not be applicable
to transfers made pursuant to and in compliance with any provisions of
this Agreement other than Sections 3.06(a)(iii)(B)(1), 3.06(a)(iii)(C)
(only as to Unlimited Tradable Shares), 3.06(a)(iv)(B), 3.06(a)(iv)(D),
or 3.06(a)(iv)(E) (only as to Unlimited Tradable Shares).
(c) The provisions of Sections 3.06(a) and (b) shall terminate on the
date that the number of shares of Common Stock owned by the DLJMB Entities
(excluding, for purposes of this Section 3.06 only, shares of Common Stock owned
by any Permitted Transferee who is not (i) a DLJMB Entity, (ii) a general
partner of a DLJMB Entity, (iii) a trust, the beneficiaries of which, or a
corporation, limited liability company or partnership, all of the stockholders,
members or general or limited partners of which, include only the DLJMB
Entities, or (iv) a voting trustee for one or more DLJMB Entities) is less than
10% of the Initial Ownership of the DLJMB Entities.
20
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01. Rights to Participate in Transfer. (a) If one or more of
the DLJMB Entities (collectively, the "Selling Person") propose to transfer any
shares of Common Stock (other than to a Permitted Transferee) (a "Tag-Along
Sale"), the Selling Person shall provide each other Shareholder written notice
of the terms and conditions of such proposed transfer and offer each such
Shareholder the opportunity to participate in such transfer. The notice shall
identify the number of shares of Common Stock subject to the offer ("Tag-Along
Offer"), the per share cash price at which the sale is proposed to be made, and
all other material terms and conditions of the offer, including the form of the
proposed agreement, if any. From the date of such notice, each such Shareholder
shall have the right (a "Tag-Along Right"), exercisable by written notice given
to the Selling Person within 15 days, to request that the Selling Person include
in the proposed sale the number of shares of Common Stock owned by such
Shareholder (a "Tagging Person") as is specified in such Tagging Person's
notice; provided that if the aggregate number of shares of Common Stock proposed
to be sold by the Selling Person and all Tagging Persons in such transaction
exceeds the number of shares of Common Stock that can be sold to the third party
on the terms and conditions proposed, then each such Person shall be entitled to
sell a maximum number of shares of Common Stock equal to the product of (1) the
total number of shares of Common Stock that can be sold to the third party on
the terms and conditions proposed and (2) a fraction the numerator of which is
the total number of shares owned by such Shareholder and the denominator of
which is the aggregate number of shares of Common Stock owned by the Selling
Person and all Tagging Persons. Each Tagging Person shall deliver, together with
its notice of acceptance, to the Selling Person the certificate or certificates
representing the shares of Common Stock to be included in the transfer, together
with a limited power-of-attorney authorizing the Selling Person to transfer such
shares on the terms set forth in the notice from the Selling Person. Delivery of
such certificate or certificates and other documents to the Selling Person shall
constitute an irrevocable acceptance of the Tag-Along Offer by such Tagging
Persons. If, at the end of a 120 day period after such delivery, the Selling
Person has not completed the sale of all such shares of Common Stock on
substantially the same terms and conditions set forth in the notice from the
Selling Person, the Selling Person shall return to each Tagging Person the
limited power-of-attorney (and all copies thereof) together with all
certificates which such Tagging Person delivered for transfer pursuant to this
Section 4.01.
21
(b) Concurrently with the consummation of the Tag-Along Sale, the
Selling Person shall notify the Tagging Persons thereof, shall remit to the
Tagging Persons the total consideration (less their proportional share of any
expenses of such sale) (by bank or certified check) for the shares of Common
Stock of the Tagging Persons sold pursuant thereto, and shall, promptly after
the consummation of such sale, furnish such other evidence of the completion and
time of completion of such transfer and the terms thereof as may be reasonably
requested by the Tagging Persons.
(c) If at the termination of the notice period referred to in Section
4.01(a) any Shareholder shall not have elected to participate in the Tag-Along
Sale, such Shareholder will be deemed to have waived its rights under Section
4.01(a) with respect to the transfer of its shares pursuant to such Tag-Along
Sale.
(d) If any Shareholder declines to exercise its Tag-Along Rights or
elects to exercise its Tag-Along Rights with respect to less than the maximum
number of shares it was entitled to sell, the Tagging Persons who do respond and
the DLJMB Entities shall be entitled to sell, pursuant to the Tag-Along Offer,
an additional number of shares of Common Stock equal to the number of shares of
Common Stock constituting their pro rata portion of the unexercised portion of
the number of shares of such Shareholder.
(e) The Selling Person may sell the shares of Common Stock subject to
the Tag-Along Offer on the terms and conditions set forth in the notice it gave
(provided, however, that the cash price payable in any such sale may exceed the
cash price specified in the notice by up to 10%) within 120 days of the date on
which Tag-Along Rights shall have been waived, exercised or expire.
(f) The Tag-Along Rights pursuant to this Section 4.01 will terminate
upon the DLJMB Termination Date.
SECTION 4.02. Right to Compel Participation in Certain Transfers. (a) If
the DLJMB Entities propose to transfer not less than 80% of the shares of Common
Stock then owned by them to an unaffiliated third party in a bona fide sale, the
DLJMB Entities may at their option require each of the other Shareholders to
sell a number of shares of Common Stock equal to the product of the total number
of shares of Common Stock owned by such other Shareholders and the DLJMB
Proportion on the terms and conditions proposed by the third party ("Drag-Along
Rights"). The DLJMB Entities shall provide written notice of such sale to the
other Shareholders not later than the 15th day prior to the proposed sale. The
notice shall identify the transferee, the number of shares of Common Stock to be
sold by each Shareholder, the proposed consideration and all other material
terms and conditions. Subject to the terms hereof, each
22
Shareholder shall be required to participate in the sale on the terms and
conditions set forth in the notice and to tender all of its shares of Common
Stock to be sold as set forth below; provided that (x) ▇▇▇▇▇▇▇ shall not be
responsible for any post-closing covenants or obligations that would limit the
normal operation of ▇▇▇▇▇▇▇ or companies they have invested in, other than pro
rata indemnification provisions and nonsolicitation provisions and (y) the GTP
Shareholders shall not be personally responsible for any post-closing covenants
or obligations other than pro rata indemnification provisions and
nonsolicitation provisions imposed on all other Shareholders. Not later than the
10th day following the date of the notice from the DLJMB Entities, each of the
other Shareholders shall deliver to a Person designated in the notice
certificates representing the shares to be sold by such Shareholder, duly
endorsed, together with all other documents required to be executed in
connection with such sale. If a Shareholder should fail to deliver such
certificates, the Company shall cause the books and records of the Company to
show that such shares of Common Stock are bound by the provisions of this
Section 4.02 and that such shares of Common Stock shall be transferred to the
purchaser immediately upon surrender for transfer by the holder thereof.
(b) The DLJMB Entities shall have a period of 45 days from the date of
receipt of the notice to consummate the sale on the terms and conditions set
forth in such notice. If the sale shall not have been consummated during such
period, the DLJMB Entities shall return to each of the other Shareholders all
certificates and other documents that such Shareholder delivered for transfer
pursuant hereto, and all the restrictions on transfer contained in this
Agreement or otherwise applicable at such time with respect to Company
Securities owned by the other Shareholders shall again be in effect.
(c) Concurrently with the consummation of the transfer of shares of
Common Stock pursuant to this Section 4.02, the DLJMB Entities shall give notice
thereof to the other Shareholders, shall remit to such Shareholders the total
consideration (less their proportional share of any expenses of such sale) (by
bank or certified check) for the shares of Common Stock sold by such
Shareholders pursuant hereto and shall furnish such other evidence of the
completion and time of completion of such transfer and the terms thereof as may
be reasonably requested by such Shareholders.
(d) The Drag-Along Rights pursuant to this Section 4.02 will terminate
upon the earlier to occur of (i) at such time as the DLJMB Entities and the
other Shareholders own less than 50% of the outstanding shares of Common Stock
and (ii) the second anniversary of the Initial Public Offering.
23
ARTICLE 5
PREEMPTIVE RIGHTS
SECTION 5.01. Pre-emptive Rights. (a) If the Company proposes to issue
Company Securities to the DLJMB Entities (excluding for these purposes any
Permitted Transferees who are not DLJMB Entities) or successor DLJ merchant
banking funds with substantially similar investment objectives, (i) each of
▇▇▇▇▇▇▇ and the Management Shareholders shall have the pre-emptive right to
acquire its portion of such Company Securities, (ii) GTP Shareholders shall have
pre-emptive rights as provided in the Co-Investment Agreement, and (iii) each
GTP Shareholder shall have the pre-emptive right to acquire a number of Company
Securities equal to the excess, if any, of (A) its portion of such Company
Securities over (B) the number of Company Securities that it has the right to
acquire pursuant to clause (ii) of this sentence. For these purposes, each
Shareholder's portion will mean a fraction, the numerator of which is such
Shareholder's Initial Ownership and the denominator of which is the Initial
Ownership of all Shareholders.
(b) In the case of ▇▇▇▇▇▇▇, the Company Securities that it may acquire
pursuant to this Section 5.01 (when taken together with all Company Securities
owned by ▇▇▇▇▇▇▇ immediately after the Closing Date) may not exceed $50 million
in aggregate purchase price. After any offer of Company Securities to ▇▇▇▇▇▇▇
pursuant to this Section 5.01, the $50 million aggregate amount referred to
above shall be reduced by the amount of the Company Securities so offered to
▇▇▇▇▇▇▇, whether or not ▇▇▇▇▇▇▇ accepts such offer. Notwithstanding anything
contained in this paragraph (b) to the contrary, ▇▇▇▇▇▇▇ shall be entitled to
any pre-emptive rights it would otherwise have pursuant to the preceding
paragraph (a) if the Company Securities are sold at an effective price per share
of Common Stock less than the price per share paid at the Closing Date.
(c) Subject to any bank loan agreements and legal loan-to-value
requirements, and subject to the discretion of the compensation committee, the
Company may loan (on an arms-length basis) the Management Shareholders any funds
needed by them to exercise pre-emptive rights.
(d) At the discretion of the compensation committee, unexercised options
held by Management Shareholders or GTP Shareholders may be taken into account in
determining the amount of shares that they and the other parties are allowed to
purchase pursuant to this Section.
24
ARTICLE 6
REGISTRATION RIGHTS
SECTION 6.01. Demand Registration. (a) If the Company shall receive a
written request (any requesting Person in this Article 6 being referred to as a
"Selling Shareholder") that the Company effect the registration under the
Securities Act so as to permit the disposition (in accordance with the intended
method of disposition specified therein) of:
(i) all or a portion of such Selling Shareholder's Registrable
Securities, (A) at any time by the DLJMB Entities and (B) by ▇▇▇▇▇▇▇ at
any time after the earlier of (x) two years following an Initial Public
Offering and (y) the first date after the Initial Public Offering on
which the Shareholders own 50% or less of the outstanding shares of
Common Stock (any such requested registration, a "Regular Demand
Registration");
(ii) all or a portion of ▇▇▇▇▇▇▇'▇ Registrable Securities, at any
time following the Initial Public Offering (an "Unlimited Demand
Registration"); or
(iii) all or a portion of ▇▇▇▇▇▇▇'▇ Registrable Securities, at any
time following the Initial Public Offering, provided that the request is
limited to the number of Catch-Up Shares (as defined in Section 3.06)
and it is in an amount which exceeds $20 million (a "Catch-Up Demand
Registration", and each of a Regular Demand Registration, an Unlimited
Demand Registration and Catch-Up Demand Registration being a "Demand
Registration");
then the Company shall use its best efforts, subject to the other terms and
conditions hereof, to effect, as expeditiously as possible, the registration
under the Securities Act of the Registrable Securities entitled to be included
pursuant to this Section 6.01 in such registration. If a Demand Registration
involves an underwritten Public Offering, in consultation with the managing
underwriter, the Selling Shareholders shall have the right to determine the
acceptable price range for the offering. Based upon such price range, the
managing underwriters will determine the number of shares of Registrable
Securities that can be sold in such offering in such price range (the "Offering
Amount"). Notwithstanding anything to the contrary contained herein, subject to
Sections 6.01(d) and 6.01(e), the Company shall not be obligated to initiate any
Demand Registration within four months after termination of any other
registration, and the Company's obligation to effect any Demand Registration in
this Section 6.01(a) is subject to the following:
25
(A) Regular Demand Registrations. With respect to Regular
Demand Registrations, the Company shall not be required to effect
more than five Regular Demand Registrations for the benefit of
the DLJMB Entities on the one hand and one Regular Demand
Registration for ▇▇▇▇▇▇▇ on the other hand, and shall not be
required to effect more than one Regular Demand Registration
within four months after termination of any other Regular Demand
Registration, or more than one Regular Demand Registration for
▇▇▇▇▇▇▇ within nine months after termination of any other Regular
Demand Registration for ▇▇▇▇▇▇▇; provided that (x) if the party
initiating a Regular Demand Registration is not able to register
all of the shares of Common Stock it sought to register, it will
be entitled to an additional Regular Demand Registration, (y)
▇▇▇▇▇▇▇ will have the right to an additional Regular Demand
Registration the first time ▇▇▇▇▇▇▇ purchases securities directly
from the Company in a future issuance of Company Securities by
the Company and (z) the DLJMB Entities will be entitled to
additional Regular Demand Registrations each time one or more of
them purchase securities directly from the Company in any future
issuances of Company Securities by the Company.
With respect to a Regular Demand Registration, the Company shall
be entitled to include in such registration, prior to the
inclusion of any Registrable Securities by any Shareholders, a
number of shares of Registrable Securities up to the Offering
Amount. To the extent the Company determines to include a number
of shares of Registrable Securities less than the Offering Amount
(the difference between the Offering Amount and the number of
shares to be included in the registration by the Company is
hereinafter referred to as the "Shareholder Amount"), the Company
shall promptly give written notice of such Regular Demand
Registration at least 15 Business Days prior to the anticipated
filing date of the registration statement relating to such
Regular Demand Registration to the Shareholders (such
Shareholders, including the Selling Shareholders, the "Holders").
Each Holder shall have the right to request the inclusion in such
registration of a number of shares of Registrable Securities
equal to the Shareholder Amount multiplied by a fraction (its
"Shareholder Portion"), the numerator of which is such Holder's
Initial Ownership and the denominator of which is the aggregate
Initial Ownership of Holders entitled to be included (its
"Shareholder Maximum"), and each Holder may request the Company
to include in such registration a number of shares of Registrable
Securities up to its
26
Shareholder Maximum by written request within 10 Business Days
after the receipt by such Holders of such written notice given by
the Company. If a Holder elects not to request inclusion of its
full Shareholder Maximum, the other Holders who have elected to
request inclusion of their full Shareholder Maximums will be able
to request inclusion of additional shares of Registrable
Securities equal in the aggregate to the unused portion of such
Shareholder Maximum, pro rata based on their respective Initial
Ownership.
(B) Unlimited Demand Registrations. With respect to Unlimited
Demand Registrations, ▇▇▇▇▇▇▇ will initially have the right to
request only one Unlimited Demand Registration. The Company will
not be required to initiate an Unlimited Demand Registration
within nine months after termination of any other registration.
If the number of shares of Common Stock requested to be
registered and sold by ▇▇▇▇▇▇▇ (and not giving effect to any
shares of Common Stock requested by other Shareholders to be
included) would result in the Shareholders owning less than a
majority of the outstanding shares of Common Stock after
consummation of the offering, the Company shall not be required
to effect such Unlimited Demand Registration. If ▇▇▇▇▇▇▇ requests
to register less than $20 million of shares of Common Stock, the
Company may elect not to register such shares, at which time
▇▇▇▇▇▇▇ will be free to dispose of such shares ("Unlimited
Tradable Shares") in any market transaction or to any
unaffiliated third party other than an Adverse Person. Further,
if another Shareholder is included in the Unlimited Demand
Registration, ▇▇▇▇▇▇▇ shall have the right to another Unlimited
Demand Registration if it is not able to register all of the
shares of Common Stock it sought to register (without regard to
its Unlimited Shareholder Maximum).
With respect to an Unlimited Demand Registration, the Company
shall promptly give written notice of such Unlimited Demand
Registration at least 15 Business Days prior to the anticipated
filing date of the registration statement relating to such
Unlimited Demand Registration to the other Shareholders. Each
Holder shall have the right to request the inclusion in such
registration of a number of shares of Registrable Securities
equal to the Offering Amount multiplied by its Shareholder
Portion (its "Unlimited Shareholder Maximum"), and each Holder
may request the Company to include in such registration a number
of shares of Registrable Securities up to its Unlimited
Shareholder Maximum
27
by written request within 10 Business Days after the receipt by
such Holders of such written notice given by the Company. If a
Holder elects not to request inclusion of its full Unlimited
Shareholder Maximum, the other Holders who have elected to
request inclusion of their full Unlimited Shareholder Maximums
will be able to request inclusion of additional shares of
Registrable Securities equal in the aggregate to the unused
portion of such Unlimited Shareholder Maximum, pro rata based on
their respective Initial Ownership, provided that if ▇▇▇▇▇▇▇ has
sought to register all of its shares of Registrable Securities
(without regard to its Unlimited Shareholder Maximum), and such
amount is less than $20 million and the Company has determined to
register such shares rather than elect to have them become
Unlimited Tradable Shares, then in no event shall ▇▇▇▇▇▇▇'▇
Unlimited Shareholder Maximum be set such that ▇▇▇▇▇▇▇ holds more
than $8 million of shares of Registrable Securities after
consummation of the offering.
If the Offering Amount exceeds the number of shares of
Registrable Securities to be included in the registration by all
Shareholders pursuant to the foregoing provisions, the Company
shall then be entitled to include in the registration a number of
shares equal to such excess.
(C) Catch-Up Demand Registration. With respect to Catch-Up
Demand Registrations, ▇▇▇▇▇▇▇ shall have one Catch- Up Demand
Registration for each transaction in which Catch-Up Shares are
created. The Company shall not be required to initiate a Catch-Up
Demand Registration within six months after termination of any
other Catch-Up Demand Registration.
With respect to a Catch-Up Demand Registration, ▇▇▇▇▇▇▇ shall be
entitled to include in such registration, prior to the inclusion
of any Registrable Securities by any Shareholders, a number of
shares of Registrable Securities up to the Offering Amount. To
the extent ▇▇▇▇▇▇▇ determines to include a number of shares of
Registrable Securities less than the Offering Amount (the
difference between the Offering Amount and the number of shares
requested by ▇▇▇▇▇▇▇ to be included in the registration is
hereinafter referred to as the "Catch-Up Shareholder Amount"),
the Company shall promptly give written notice of such Catch-Up
Demand Registration at least 15 Business Days prior to the
anticipated filing date of the registration statement relating to
such Catch-Up
28
Demand Registration to the other Shareholders. Each of the other
Shareholders shall have the right to request the inclusion in
such registration of a number of shares of Registrable Securities
equal to the Catch-Up Shareholder Amount multiplied by such
Shareholder's Shareholder Portion (the "Catch-Up Shareholder
Maximum"), and each such Shareholder may request the Company to
include in such registration a number of shares of Registrable
Securities, up to its Catch-Up Shareholder Maximum by written
request within 10 Business Days after the receipt by such
Shareholders of such written notice given by the Company. If a
Shareholder elects not to request inclusion of its full Catch-Up
Shareholder Maximum, the other Shareholders who have elected to
request inclusion of their full Catch-Up Shareholder Maximums
will be able to request inclusion of additional shares of
Registrable Securities equal in the aggregate to the unused
portion of such Catch-Up Shareholder Maximum, pro rata based on
their respective Initial Ownership.
If the Offering Amount exceeds the number of shares of
Registrable Securities to be included in the registration by all
Shareholders pursuant to the foregoing provisions, the Company
shall then be entitled to include in the registration a number of
shares equal to such excess.
(b) The Selling Shareholders requesting a registration under this
Section may, at any time prior to the effective date of the registration
statement relating to such registration, revoke such request, without liability
to any of the other Holders, by providing a written notice to the Company
revoking such request, in which case such request, so revoked, shall still be
considered a Demand Registration unless the Selling Shareholders reimburse the
Company for all costs incurred by the Company in connection with such
registration, or unless such revocation arose out of the fault of the Company.
(c) Except as provided in (b) above, the Company will pay all
Registration Expenses in connection with any Demand Registration.
(d) A registration requested pursuant to this Section shall not be
deemed to have been effected unless the registration statement relating thereto
(i) has become effective under the Securities Act and (ii) has remained
effective for a period of at least 180 days (or such shorter period in which all
Registrable Securities of the Holders included in such registration have
actually been sold thereunder).
29
(e) If a Demand Registration involves an underwritten Public Offering,
and after the Offering Amount is initially set, it is changed by the managing
underwriters, the Registrable Securities to be included in the Public Offering
shall be re-allocated among the Company and the holders thereof in the same
manner in which they were initially allocated.
SECTION 6.02. Incidental Registration. (a) If the Company proposes to
register any Company Securities under the Securities Act (other than a
registration (i) on Form S-8 or S-4 or any successor or similar forms, (ii)
relating to Common Stock issuable upon exercise of employee stock options or in
connection with any employee benefit or similar plan of the Company, (iii) in
connection with a direct or indirect acquisition by the Company of another
company, or (iv) pursuant to a Demand Registration), whether or not for sale for
its own account, it will each such time, subject to the provisions of Section
6.02(b), give prompt written notice at least 30 days prior to the anticipated
filing date of the registration statement relating to such registration to each
Shareholder, which notice shall set forth such Shareholder's rights under this
Section 6.02 and shall offer such Shareholders the opportunity to include in
such registration statement such number of Registrable Securities of the same
type as are proposed to be registered as each such Shareholder may request (an
"Incidental Registration"). Upon the written request of any such Shareholder
made within 15 days after the receipt of notice from the Company (which request
shall specify the number of Registrable Securities intended to be disposed of by
such Shareholder), the Company will use its best efforts to effect the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register by such Shareholders, to the extent
requisite to permit the disposition of the Registrable Securities so to be
registered; provided that (I) if such registration involves a Public Offering,
all such Shareholders requesting to be included in the Company's registration
must sell their Registrable Securities to the underwriters selected as provided
in Section 6.04(f) on the same terms and conditions as apply to the Company and
(II) if, at any time after giving written notice of its intention to register
any stock pursuant to this Section 6.02(a) and prior to the effective date of
the registration statement filed in connection with such registration, the
Company shall determine for any reason not to register such securities, the
Company shall give written notice to all such Shareholders and, thereupon, shall
be relieved of its obligation to register any Registrable Securities in
connection with such registration (without prejudice, however, to rights of a
Selling Shareholder or Holder under Section 6.01). No registration effected
under this Section 6.02 shall relieve the Company of its obligations to effect a
Demand Registration to the extent required by Section 6.01. The Company will pay
all Registration Expenses in connection with each registration of Registrable
Securities requested pursuant to this Section 6.02.
30
(b) If a registration pursuant to this Section 6.02 involves a Public
Offering and the managing underwriter advises the Company that, in its view, the
number of shares of Common Stock that the Company and such Shareholders intend
to include in such registration exceeds the Offering Amount, the Company will
include in such registration, in the following priority, up to the Offering
Amount:
(i) first, any securities proposed to be registered by the Company
for its own account; and
(ii) second, all Registrable Securities requested to be included
in such registration by any Shareholder pursuant to this Section 6.02
(allocated, if necessary for the offering not to exceed the Offering
Amount, pro rata among such Shareholders on the basis of their
Shareholder Portion (as defined in Section 6.01)).
SECTION 6.03. Holdback Agreements. If any registration of Registrable
Securities shall be in connection with a Public Offering, each Shareholder
agrees not to effect any public sale or distribution, including any sale
pursuant to Rule 144, or any successor provision, under the Securities Act, of
any Registrable Securities, and not to effect any such public sale or
distribution of any other Common Stock of the Company or of any securities
convertible into or exchangeable or exercisable for any Common Stock of the
Company (in each case, other than as part of such Public Offering) during the 14
days prior to the effective date of such registration statement (except as part
of such registration) or during the period after such effective date equal to
the lesser of (i) such period of time as agreed between such managing
underwriter and the Company that shall apply to all Shareholders and (ii) 180
days (such lesser period, the "Applicable Holdback Period").
SECTION 6.04. Registration Procedures. Whenever Shareholders request
that any Registrable Securities be registered pursuant to Section 6.01 or 6.02,
the Company will, subject to the provisions of such Sections, use its best
efforts to effect the registration and the sale of such Registrable Securities
in accordance with the intended method of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file with
the SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and which form
shall be available for the sale of the Registrable Securities to be registered
thereunder in accordance with the intended method of distribution thereof, and
use
31
its best efforts to cause such filed registration statement to become and remain
effective for a period of not less than 180 days.
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
participating Shareholder and each underwriter, if any, of the Registrable
Securities covered by such registration statement copies of such registration
statement as proposed to be filed, and thereafter the Company will furnish to
such Shareholder and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein),
the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Shareholder or
underwriter may reasonably request in order to facilitate the disposition of the
Registrable Securities owned by such Shareholder.
(c) After the filing of the registration statement, the Company will
promptly notify each Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC and
take all reasonable actions required to prevent the entry of such stop order or
to remove it if entered.
(d) The Company will use its best efforts to (i) register or qualify the
Registrable Securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions in the United States as any
Shareholder holding such Registrable Securities reasonably (in light of such
Shareholder's intended plan of distribution) requests and (ii) cause such
Registrable Securities to be registered with or approved by such other
governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Shareholder to
consummate the disposition of the Registrable Securities owned by such
Shareholder; provided that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
such jurisdiction.
(e) The Company will immediately notify each Shareholder holding such
Registrable Securities, at any time when a prospectus relating thereto is
required to be delivered under the Securities Act, of the occurrence of an event
requiring the preparation of a supplement or amendment to such prospectus so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such
32
prospectus will not contain an untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and promptly prepare and make available to
each such Shareholder any such supplement or amendment.
(f) The DLJMB Entities will have the right, in their sole discretion, to
select an underwriter or underwriters in connection with any Public Offering. In
connection with any Public Offering, the Company will enter into customary
agreements (including an underwriting agreement in customary form) and take such
other actions as are reasonably required in order to expedite or facilitate the
disposition of Registrable Securities in any such Public Offering, including the
engagement of a "qualified independent underwriter" in connection with the
qualification of the underwriting arrangements with the NASD.
(g) Upon the execution of confidentiality agreements in form and
substance satisfactory to the Company, the Company will make available for
inspection by any Shareholder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Company
pursuant to this Section 6.04 and any attorney, accountant or other professional
retained by any such Shareholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any Inspectors in connection with
such registration statement. Records that the Company determines, in good faith,
to be confidential and that it notifies the Inspectors are confidential shall
not be disclosed by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such registration
statement or (ii) the release of such Records is ordered pursuant to a subpoena
or other order from a court of competent jurisdiction. Each Shareholder agrees
that information obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it or its Affiliates as the basis for any
market transactions in the shares of Common Stock unless and until such is made
generally available to the public. Each Shareholder further agrees that it will,
upon learning that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company, at its expense,
to undertake appropriate action to prevent disclosure of the Records deemed
confidential.
(h) The Company will furnish to each such Shareholder and to each such
underwriter, if any, a signed counterpart, addressed to such underwriter, of (i)
an opinion or opinions of counsel to the Company and (ii) a comfort letter or
comfort letters from the Company's independent public accountants, each in
customary
33
form and covering such matters of the type customarily covered by opinions or
comfort letters, as the case may be, as a majority of such Shareholders or the
managing underwriter therefor reasonably requests.
(i) The Company will otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
Shareholders, as soon as reasonably practicable, an earnings statement covering
a period of 12 months, beginning within three months after the effective date of
the registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act.
The Company may require each such Shareholder to promptly furnish in
writing to the Company such information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required in connection with such
registration.
Each such Shareholder agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section 6.04(e),
such Shareholder will forthwith discontinue disposition of Registrable
Securities pursuant to the registration statement covering such Registrable
Securities until such Shareholder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 6.04(e), and, if so directed by the
Company, such Shareholder will deliver to the Company all copies, other than any
permanent file copies then in such Shareholder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. In the event that the Company shall give such notice, the Company shall
extend the period during which such registration statement shall be maintained
effective (including the period referred to in Section 6.04(a)) by the number of
days during the period from and including the date of the giving of notice
pursuant to Section 6.04(e) to the date when the Company shall make available to
such Shareholder a prospectus supplemented or amended to conform with the
requirements of Section 6.04(e).
SECTION 6.05. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Shareholder holding Registrable Securities
covered by a registration statement, its officers, directors and agents, and
each Person, if any, who controls such Shareholder within the meaning of Section
15 of the Securities Act or Section 20 of the Exchange Act from and against any
and all losses, claims, damages and liabilities caused by any untrue statement
or alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or
34
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished in writing
to the Company by such Shareholder or on such Shareholder's behalf expressly for
use therein; provided that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus, or in
any prospectus, as the case may be, the indemnity agreement contained in this
paragraph shall not apply to the extent that any such loss, claim, damage,
liability or expense results from the fact that a current copy of the prospectus
(or, in the case of a prospectus, the prospectus as amended or supplemented) was
not sent or given to the Person asserting any such loss, claim, damage,
liability or expense at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is determined that the
Company has provided such prospectus and it was the responsibility of such
Shareholder to provide such Person with a current copy of the prospectus (or
such amended or supplemented prospectus, as the case may be) and such current
copy of the prospectus (or such amended or supplemented prospectus, as the case
may be) would have cured the defect giving rise to such loss, claim, damage,
liability or expense. The Company also agrees to indemnify any underwriters of
the Registrable Securities, their officers and directors and each Person who
controls such underwriters, on substantially the same basis as that of the
indemnification of the Shareholders provided in this Section 6.05.
SECTION 6.06. Indemnification by Participating Shareholders. Each
Shareholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless the
Company, its officers, directors and agents and each Person, if any, who
controls the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent as the foregoing
indemnity from the Company to such Shareholder, but only (i) with respect to
information furnished in writing by such Shareholder or on such Shareholder's
behalf expressly for use in any registration statement or prospectus relating to
the Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus or (ii) to the extent that any loss, claim, damage,
liability or expense described in Section 6.05 results from the fact that a
current copy of the prospectus (or, in the case of a prospectus, the prospectus
as amended or supplemented) was not sent or given to the Person asserting any
such loss, claim, damage, liability or expense at or prior to the written
confirmation of the sale of the Registrable Securities concerned to such Person
if it is determined that it was the responsibility of such Shareholder to
provide such Person with a current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) and such current copy of the
35
prospectus (or such amended or supplemented prospectus, as the case may be)
would have cured the defect giving rise to such loss, claim, damage, liability
or expense. Each such Shareholder also agrees to indemnify and hold harmless
underwriters of the Registrable Securities, their officers and directors and
each Person who controls such underwriters, on substantially the same basis as
that of the indemnification of the Company provided in this Section 6.06. As a
condition to including Registrable Securities in any registration statement
filed in accordance with Article 6 hereof, the Company may require that it shall
have received an undertaking reasonably satisfactory to it from any underwriter
to indemnify and hold it harmless to the extent customarily provided by
underwriters with respect to similar securities. Each Shareholder's obligation
to indemnify pursuant to this Section 6.06 shall be limited in amount to the
public offering price of the shares sold by such Shareholder.
SECTION 6.07. Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 6, such Person (an "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses; provided that the failure of
any Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure to notify. In any
such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of such Indemnified Party representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by the Indemnified
Parties. The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any loss or liability (to the extent stated above) by reason of such
settlement or judgment. No Indemnifying Party shall,
36
without the prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such proceeding.
SECTION 6.08. Contribution. If the indemnification provided for in this
Article 6 is unavailable (other than pursuant to its terms) to the Indemnified
Parties in respect of any losses, claims, damages or liabilities referred to
herein, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (i)
as between the Company and the Shareholders holding Registrable Securities
covered by a registration statement on the one hand and the underwriters on the
other, in such proportion as is appropriate to reflect the relative benefits
received by the Company and such Shareholders on the one hand and the
underwriters on the other, from the offering of the Registrable Securities, or
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and such Shareholders on the one hand and of such
underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations and (ii) as between the Company on the one
hand and each such Shareholder on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each such
Shareholder in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and such Shareholders on the one hand and such underwriters on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and such Shareholders bear to the total
underwriting discounts and commissions received by such underwriters, in each
case as set forth in the table on the cover page of the prospectus. The relative
fault of the Company and such Shareholders on the one hand and of such
underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and such Shareholders or by such underwriters. The
relative fault of the Company on the one hand and of each such Shareholder on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such party,
and the parties' relative intent,
37
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company and the Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 6.08 were determined by pro
rata allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6.08, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Shareholder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Securities of such Shareholder were offered
to the public exceeds the amount of any damages which such Shareholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. Each such Shareholder's obligation to contribute
pursuant to this Section 6.08 is several in the proportion that the proceeds of
the offering received by such Shareholder bears to the total proceeds of the
offering received by all such Shareholders and not joint.
SECTION 6.09. Participation in Public Offering. No Person may
participate in any Public Offering hereunder unless such Person (a) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and the provisions of
this Agreement in respect of registration rights.
SECTION 6.10. Other Indemnification. Indemnification similar to that
specified herein (with appropriate modifications) shall be given by the Company
and each Shareholder participating therein with respect to any required
38
registration or other qualification of securities under any federal or state law
or regulation or governmental authority other than the Securities Act.
SECTION 6.11. Cooperation by the Company. In the event any Shareholder
shall transfer any Registrable Securities pursuant to Rule 144A under the
Securities Act, the Company shall cooperate with such Shareholder (which shall
include, without limitation, making registration rights with respect to the
Registrable Securities to be sold (or securities issuable or to be issued in
exchange therefor) available to the ultimate purchasers thereof) and shall
provide to such Shareholder such information as such Shareholder shall
reasonably request.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto and supersede all prior agreements and
understandings, oral and written, among the parties hereto with respect to the
subject matter hereof.
SECTION 7.02. Effectiveness; Binding Effect; Benefit. This Agreement
shall become effective on the Closing Date. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective heirs,
successors, legal representatives and permitted assigns. Nothing in this
Agreement, expressed or implied, shall confer on any Person other than the
parties hereto, and their respective heirs, successors, legal representatives
and permitted assigns, any rights, remedies, obligations or liabilities under or
by reason of this Agreement.
SECTION 7.03. Assignability. This Agreement shall not be assignable by
any party hereto, except that any Person acquiring shares of Common Stock who is
required by the terms of this Agreement or any employment agreement or stock
purchase, option, stock option or other compensation plan of the Company or any
subsidiary to become a party hereto shall (unless already bound hereby) execute
and deliver to the Company an agreement to be bound by this Agreement and shall
thenceforth be a "Shareholder". Any Shareholder who ceases to own any shares of
Common Stock shall cease to be bound by the terms hereof (other than the
provisions of Sections 6.04(g), 6.05, 6.06, 6.07, 6.08, and 6.10 applicable to
such Shareholder with respect to any offering of Registrable Securities
completed before the date such Shareholder ceased to own any shares of Common
Stock).
39
SECTION 7.04. Amendment and Waiver. No provision of this Agreement may
be waived except by an instrument in writing executed by the party against whom
the waiver is to be effective. No provision of this Agreement may be amended or
otherwise modified except by an instrument in writing executed by the Company
with the approval of the Board and Shareholders holding at least 85% of the
outstanding shares of Common Stock; provided that any amendment or other
modification of this Agreement that would adversely affect any Shareholder may
be effected only with the consent of such Shareholder.
SECTION 7.05. Notices. All notices, requests and other communications to
any party hereunder shall be in writing (including facsimile transmissions) and
shall be given,
if to the Company or the Management Shareholders, to:
Condor Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Seyfarth, Shaw, ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇ ▇. ▇▇▇▇▇▇ ▇▇.,
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to the DLJMB Entities at their addresses listed below.
if to the DLJMB Entities, to:
DLJ Merchant Banking Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
40
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to ▇▇▇▇▇▇▇, to:
▇▇▇▇▇▇▇ Capital
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to GTP Shareholders, to:
Global Technology Partners, LLC
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
41
All notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5 p.m. in
the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to have
been received until the next succeeding business day in the place of receipt.
Any notice, request or other written communication sent by facsimile
transmission shall be confirmed by certified mail, return receipt requested,
posted within one Business Day, or by personal delivery, whether courier or
otherwise, made within two Business Days after the date of such facsimile
transmission.
Any Person who becomes a Shareholder shall provide its address and fax
number to the Company, which shall promptly provide such information to each
other Shareholder.
SECTION 7.06. Headings. The headings contained in this Agreement are
for convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 7.07. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original and all of
which together shall be deemed to be one and the same instrument.
SECTION 7.08. Applicable Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
SECTION 7.09. Specific Enforcement. Each party hereto acknowledges that
the remedies at law of the other parties for a breach or threatened breach of
this Agreement would be inadequate and, in recognition of this fact, any party
to this Agreement, without posting any bond, and in addition to all other
remedies which may be available, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy which may then be available.
SECTION 7.10. Consent to Jurisdiction. Any suit, action or proceeding
seeking to enforce any provision of, or based on any matter arising out of or in
connection with, this Agreement or the transactions contemplated hereby may be
brought in the United States District Court for the Southern District of New
York or any other New York State court sitting in New York City, and each of the
parties hereby consents to the non-exclusive jurisdiction of such courts (and of
the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection which it
42
may now or hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which
is brought in any such court has been brought in an inconvenient forum. Process
in any such suit, action or proceeding may be served on any party anywhere in
the world, whether within or without the jurisdiction of any such court. Without
limiting the foregoing, each party agrees that service of process on such party
as provided in Section 7.05 shall be deemed effective service of process on such
party.
43
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
CONDOR SYSTEMS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chief Financial Officer
SHAREHOLDERS OF CONDOR
SYSTEMS, INC.
SPOUSES: GTP SHAREHOLDERS:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ illegible signature
------------------------------ ------------------------------
Name: A. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇
By: By:
------------------------------ ------------------------------
Name: Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ illegible signature By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------------
Name: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ illegible signature By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------ ------------------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇ CAPITAL II L.P.
By: ▇▇▇▇▇▇▇ Brothers L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
STRATEGIC ENTREPRENEUR FUND II
L.P.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
DLJMB ENTITIES:
DLJ MERCHANT BANKING
PARTNERS II, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
BY DLJ MERCHANT BANKING II, INC.,
Advisory General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
BY DLJ DIVERSIFIED PARTNERS, INC.,
Managing General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
BY DLJ DIVERSIFIED PARTNERS INC.,
Managing General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJMB FUNDING II, INC.
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
UK INVESTMENT PLAN 1997
PARTNERS
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
INC., General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ FIRST ESC, L.P.
BY DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ ESC II, L.P.
DLJ LBO PLANS MANAGEMENT
CORPORATION, as General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
BY DLJ MERCHANT BANKING II, INC.,
Managing General Partner
By: /s/ illegible signature
-----------------------------------
Name:
Title:
SPOUSES: MANAGEMENT SHAREHOLDERS:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
By: /s/ illegible signature By: /s/ illegible signature
----------------------------------- -----------------------------------
Name: Name:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
By: /s/ illegible signature By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇
By: /s/ illegible signature By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------- -----------------------------------
Name: Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
By: /s/ illegible signatire By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------- -----------------------------------
Name: Name: ▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
By: N/A By: /s/ illegible signature
----------------------------------- -----------------------------------
Name: Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------- -----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
By: /s/ illegible signature By: /s/ illegible signature
----------------------------------- -----------------------------------
Name: Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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By: /s/ illegible signature By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ illegible signature By: /s/ illegible signature
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Name: Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ illegible signature By: /s/ illegible signature
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Name: Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ illegible signature
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name:
▇▇▇▇ ▇▇▇▇▇▇
By: /s/ illegible signature By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: Name: ▇▇▇▇ ▇▇▇▇▇▇
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By: /s/ illegible signature By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE I
Names of ▇▇▇▇▇▇▇ Funds
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▇▇▇▇▇▇▇ Capital, ▇.▇.
▇▇▇▇▇▇▇ Capital "B" L.P.
Strategic Entrepreneur Fund, ▇.▇.
▇▇▇▇▇▇▇ Capital II, L.P.
Strategic Entrepreneur Fund II, L.P.
EXHIBIT I
Co-Investment Agreement
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[See exhibit to Form SF 328, included at Tab 67]