Exhibit 4.1
DDi CORP.
STOCKHOLDERS AGREEMENT
The Amended and Restated Stockholders Agreement (the "1998 Agreement") made
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as of July 23, 1998 by and among:
(i) DDi Corp., a California corporation, f/k/a Details Holdings Corp.
and Details, Inc. (including its successor corporation following the
Merger (defined below), the "Company");
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(ii) each of ▇▇▇▇ Capital Fund V, L.P., ▇▇▇▇ Capital Fund V-B, L.P., BCIP
Associates and BCIP Trust Associates, L.P., RGIP, LLC (collectively,
the "Investors");
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(iii) DI Investors, L.L.C., Chase Manhattan Capital, L.P., PMI Mezzanine
Fund, LP, Celerity Dynamo, L.L.C., Celerity Details, L.L.C.,
Celerity Liquids, L.L.C., KB Mezzanine Fund II, L.P., Indosuez DCI
Partners and ▇▇▇▇▇▇▇▇▇ ESOP Capital Partners (together with such
others who shall become party to this Agreement as an Other
Investor, the "Other Investors");
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(iv) The holders, from time to time, of the Lender Warrants (together
with such others who acquire Lender Shares, the "Lenders");
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(v) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ (together with such others who shall become party to
this Agreement as a Manager, the "Managers"); and
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(vi) ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇ (together with such others who
shall become party to this Agreement as an Employee, the "Employees"
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and together with the Investors, the Other Investors, the Lenders
and the Managers, the "Stockholders"),
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is hereby amended and restated in its entirety pursuant to Section 12.2 of the
1998 Agreement by written agreement of the Majority Investors, the Majority
Other Holders, the Majority Managers and the Majority Lenders (as each term is
defined in the 1998 Agreement) in the form of this Stockholders Agreement (the
1998 Agreement as amended and restated hereby is referred to herein as the
"Agreement") as of March __, 2000 to read as follows:
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Recitals
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1. The Company (i) has filed a registration statement on Form S-1 with
the Commission (as defined herein); (ii) intends to merge with and into DDi
Corp., a Delaware corporation, in which merger (the "Merger") the holders of the
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outstanding Common Stock of DDi Corp., a California corporation, will receive
shares of common stock, par value $.01 (the "Delaware Common Stock") of DDi
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Corp., a Delaware corporation, as merger consideration; and (iii) intends to
effect an Initial Public Offering of Delaware Common Stock.
2. The parties desire to amend and restate the 1998 Agreement prior to
the Merger and the effectiveness of such Initial Public Offering.
3. Pursuant to the terms of a Share Purchase Agreement dated March __,
2000, the Company intends to acquire the capital stock of MCM Electronics, Ltd.
("MCM") and, in connection, with such acquisition, the Beneficial Owners and
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Natwest Nominees (each as defined in such Share Purchase Agreement, and for
purposes of this agreement the "NatWest Investors") and all other record and/or
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beneficial holders of MCM capital stock ("MCM Managers") will acquire Delaware
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Common Stock in consideration of their interests in the capital stock of MCM.
4. It is a condition to the closing of the acquisition of MCM that the
NatWest Investors execute a counterpart signature page to this Agreement as
"Other Investors" and that MCM Managers execute a counterpart signature page to
this Agreement as "Managers."
Agreement
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Therefore, the parties hereto hereby agree as follows:
1. EFFECTIVENESS; DEFINITIONS.
1.1 Effectiveness. This Agreement shall become effective upon the closing
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of the Initial Public Offering.
1.2 Definitions. Certain terms are used in this Agreement as specifically
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defined herein. These definitions are set forth or referred to in Section 13
hereof.
2. [RESERVED].
3. [RESERVED].
4. [RESERVED].
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5. [RESERVED]
6. [RESERVED]
7. [RESERVED]
8. REGISTRATION RIGHTS. The Company will perform and comply, and cause each
of their respective subsidiaries to perform and comply, with such of the
following provisions as are applicable to it. Each holder of Shares will
perform and comply with such of the following provisions as are applicable to
such holder.
8.1 Demand Registration Rights for Investor Shares.
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8.1.1. General. One or more holders of Investor Shares representing
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at least 25% of the total amount of Investor Shares then outstanding
("Initiating Investors"), by notice to the Company specifying the intended
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method or methods of disposition, may request that the Company effect the
registration under the Securities Act for a Public Offering of all or a
specified part of the Registrable Securities held by such Initiating
Investors (for purposes of this Agreement, "Registrable Investor
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Securities" shall mean Registrable Securities constituting Investor
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Shares). The Company will then use its best efforts to effect the
registration under the Securities Act of the Registrable Securities which
the Company has been requested to register by such Initiating Investors
together with all other Registrable Securities which the Company has been
requested to register pursuant to Section 8.3 (which request shall specify
the intended method of disposition of such Registrable Securities), all to
the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities which
the Company has been so requested to register; provided, however, that the
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Company shall not be obligated to take any action to effect any such
registration pursuant to this Section 8.1.1:
(a) Within 180 days immediately following the effective date of
any registration statement pertaining to an underwritten public
offering of securities of the Company for its own account (other than
a Rule 145 Transaction, or a registration relating solely to employee
benefit plans);
(b) (i) On any form other than Form S-3 (or any successor form)
if the Company has previously effected five or more registrations of
Registrable Securities under this Section 8.1.1 on any form other than
Form S-3 (or any successor form); provided, however, that no
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registrations of Registrable Securities which shall not have become
and remained effective in accordance with the provisions of this
Section 8, and no registrations of Registrable Securities pursuant to
which the
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Initiating Investors and all other holders of Registrable Investor
Securities joining therein are not able to include at least 90% of the
Registrable Securities which they desired to include, shall be
included in the calculation of numbers of registrations contemplated
by this clause (b);
(c) If the Company shall have furnished to the Initiating
Investors and such other holders of Registrable Securities which the
Company has been requested to register pursuant to this Section 8.1.1
a certificate, signed by the President of the Company, stating that in
the good faith judgment of the Board it would be seriously detrimental
to the Company and its shareholders for such Registration Statement to
be filed at the date filing would have been required, in which case
the Company shall have an additional period of not more than 60 days
within which to file such Registration Statement; provided, however,
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that the Company shall not so postpone a registration pursuant to this
clause (c) more than once in any twelve month period;
(d) On any form other than Form S-3 (or any successor form), if
the anticipated aggregate offering price to the public of the
Registrable Securities to be included in the registration by all
holders is less than $5,000,000; or
(e) After five years after the closing of the Initial Public
Offering.
8.1.1.1. Form. Except as otherwise provided above, each registration
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requested pursuant to this Section 8.1.1 shall be effected by the filing of
a registration statement on Form S-1 (or any other form which includes
substantially the same information as would be required to be included in a
registration statement on such form as currently constituted), unless the
use of a different form has been agreed to in writing by holders of at
least a majority of the Registrable Investor Securities to be included in
the proposed registration statement in question (the "Majority
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Participating Investors").
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8.1.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of holders of Investor Shares incurred in connection with each
registration of Registrable Securities requested pursuant to this Section
8.1, other than underwriting discount and commission, if any, and
applicable transfer taxes, if any.
8.1.3. Additional Procedures. In the case of a registration
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pursuant to Section 8.1 hereof, whenever the Majority Participating
Investors shall request that such registration shall be effected pursuant
to an underwritten offering, the Company
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shall include such information in the written notices to holders of
Registrable Securities referred to in Section 8.3. In such event, the right
of any holder of Registrable Securities to have securities owned by such
holder included in such registration pursuant to Section 8.1 shall be
conditioned upon such holder's participation in such underwriting and the
inclusion of such holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed upon by the Majority Participating
Investors and such holder) to the extent provided herein. If requested by
such underwriters, the Company together with the holders of Registrable
Securities proposing to distribute their securities through such
underwriting will enter into an underwriting agreement with such
underwriters for such offering containing such representations and
warranties by the Company and such holders and such other terms and
provisions as are customarily contained in underwriting agreements with
respect to secondary distributions, including, without limitation,
customary indemnity and contribution provisions.
8.2. DI Investors Demand Registration Rights.
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8.2.1. General. To the extent DI Investors, L.L.C. or its Affiliates
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hold at least 50% of the Shares issued to them by the Company in connection
with the consummation of the Recapitalization Agreement, DI Investors,
L.L.C. or such Affiliate ("Initiating Other Investors"), by notice to the
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Company specifying the intended method or methods of disposition, may
request that the Company effect the registration under the Securities Act
for a Public Offering of all or a specified part of the Registrable
Securities held by such Initiating Other Investors (for purposes of this
Agreement, "Registrable Other Securities" shall mean Registrable Securities
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constituting Other Shares). The Company will then use its reasonable
efforts to effect the registration under the Securities Act of the
Registrable Securities which the Company has been requested to register by
such Initiating Other Investors together with all other Registrable
Securities which the Company has been requested to register pursuant to
Section 8.3 (which request shall specify the intended method of disposition
of such Registrable Securities), all to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid)
of the Registrable Securities which the Company has been so requested to
register; provided, however, that the Company shall not be obligated to
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take any action to effect any such registration pursuant to this Section
8.2.1:
(a) If the Company has previously effected two registrations of
Registrable Securities under this Section 8.2.1; provided, however,
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that no registrations of Registrable Securities which either (i) shall
not have become and remained effective in accordance with the
provisions of this Section 8 or (ii) shall not have enabled the
Initiating Other Investors to include in such registration at least
90% of the Registrable Securities which they desired to
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include shall be included in the calculation of the number of
registrations contemplated by this clause (a);
(b) Prior to the 360th day following the closing of the Initial
Public Offering;
(c) Within 180 days immediately following the effective date of
any registration statement pertaining to an underwritten public
offering of securities of the Company for its own account (other than
a registration on Form S-4 relating solely to a Rule 145 Transaction,
or a registration relating solely to employee benefit plans);
(d) If the Company shall have furnished to the Initiating Other
Investors and such other holders of Registrable Securities which the
Company has been requested to register pursuant to this Section 8.2.1
a certificate, signed by the President of the Company, stating that in
the good faith judgment of the Board it would be seriously detrimental
to the Company and its shareholders for such Registration Statement to
be filed at the date filing would have been required, in which case
the Company shall have an additional period of not more than 60 days
within which to file such Registration Statement; provided, however,
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that the Company shall not so postpone a registration pursuant to this
clause (d) more than once in any twelve month period;
(e) On any form other than Form S-3 (or any successor form); or
(f) After five years after the closing of the Initial Public
Offering.
8.2.1.1. Form. Each registration requested pursuant to this
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Section 8.2.1 shall be effected by the filing of a registration
statement on Form S-3 (or any successor form).
8.2.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of holders of Other Shares incurred in connection with each
registration of Registrable Securities requested pursuant to this Section 8.2,
other than underwriting discount and commission, if any, and applicable transfer
taxes, if any.
8.2.3. Additional Procedures. In the case of a registration pursuant
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to Section 8.2 hereof, whenever the Initiating Other Investors shall request
that such registration shall be effected pursuant to an underwritten offering,
the Company shall include such information in the written notices to holders of
Registrable Securities referred to in Section 8.3. In such event, the right of
any holder of Registrable Securities to have securities owned by such holder
included in such registration pursuant to Section 8.2 shall be conditioned upon
such holder's participation in such
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underwriting and the inclusion of such holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed upon by the Majority
Participating Other Investors and such holder) to the extent provided herein. If
requested by such underwriters, the Company together with the holders of
Registrable Securities proposing to distribute their securities through such
underwriting will enter into an underwriting agreement with such underwriters
for such offering containing such representations and warranties by the Company
and such holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, customary indemnity and contribution provisions.
8.2A Demand Registration Rights for NatWest Investors and MCM Managers.
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8.2A.1. General. At any time between the 180th and 360th day
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following the effective date of the Initial Public Offering, NatWest
Investors holding a majority of the Registrable Securities originally
issued to the NatWest Investors by the Company, by notice to the Company
(with a copy to the Investors), specifying the intended method or methods
of disposition, may request that the Company effect the registration under
the Securities Act for a Public Offering of up to 50% of the Registrable
Securities held by the NatWest Investors. Upon receipt of such notice, the
Company will give notice to the MCM Managers of the receipt of such notice.
Any such MCM Manager, by written response delivered to the Company within
20 days after the effectiveness of such notice, may request that up to
44.44% of the Registrable Securities held by such MCM Manager be included
in such registration. The Company will then use its best efforts to effect
the registration under the Securities Act of the Registrable Securities
which the Company has been requested to register pursuant to this Section
8.2A.1 by the NatWest Investors and the MCM Managers, to the extent
requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities which the
Company has been so requested to register; provided, however, that the
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Company shall not take any action to effect any such registration pursuant
to this Section 8.2A.1:
(a) Following the effective date of any registration
statement pertaining to an underwritten public offering of
securities of the Company in connection with which the NatWest
Investors have the right to include at least 50% of their
Registrable Securities pursuant to Section 8.3;
(b) During any period during which the Company or the
Initiating Investors are actively planning an underwritten
offering of securities of the Company in connection with which
the NatWest Investors and the MCM Managers would have the right
to include Registrable Securities pursuant to Section 8.3; or
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(c) If the Company shall have furnished to the NatWest
Investors a certificate, signed by the President of the Company,
stating that in the good faith judgment of the Board it would be
seriously detrimental to the Company and its shareholders for
such Registration Statement to be filed at the date filing would
have been required, in which case the Company shall have an
additional period of not more than 60 days within which to file
such Registration Statement.
8.2A.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of the NatWest Investors incurred in connection with each
registration of Registrable Securities requested pursuant to this Section
8.2A, other than underwriting discount and commission, if any, and
applicable transfer taxes, if any.
8.2A.3. No Underwritten Offering. Any registration pursuant to
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Section 8.2A.1 hereof may not be effected pursuant to an underwritten
offering.
8.2A.4. No Piggyback Rights. Notwithstanding the provisions of
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Section 8.3.1.1, except as provided in Section 8.2A.1, no holder of
Registrable Securities shall have the right to have any such Registrable
Securities included in a registration requested pursuant to Section 8.2A.1.
8.3. Piggyback Registration Rights.
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8.3.1. Piggyback Registration.
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8.3.1.1. General. Each time the Company proposes to
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register any shares of Common Stock under the Securities Act on a form
which would permit registration of Registrable Securities for sale to
the public, for its own account or for the account of any holder of
its shares of Common Stock, for sale in a Public Offering, the Company
will give notice to all holders of shares of Common Stock of its
intention to do so. Any such holder may, by written response delivered
to the Company within 20 days after the effectiveness of such notice,
request that all or a specified part of the Registrable Securities
held by such holder be included in such registration. The Company
thereupon will use its reasonable efforts to cause to be included in
such registration under the Securities Act all shares of Common Stock
which the Company has been so requested to register by such holders,
to the extent required to permit the disposition (in accordance with
the methods to be used by the Company or other holders of shares of
Common Stock in such Public Offering) of the Registrable Securities to
be so registered. No registration of Registrable Securities effected
under this Section 8.3 shall relieve the Company of any of its
obligations to effect registrations of Registrable Securities pursuant
to Section 8.1 hereof.
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8.3.1.2. Excluded Transactions. The Company shall not be
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obligated to effect any registration of Registrable Securities under
this Section 8.3 incidental to the registration of any of its
securities in connection with:
(a) Any Public Offering relating to employee benefit
plans or dividend reinvestment plans;
(b) Any Public Offering relating to the acquisition or
merger after the date of the Original Agreement by the Company
or any of its subsidiaries of or with any other businesses; or
(c) Any Public Offering initiated by the NatWest
Investors pursuant to Section 8.2A.1.
8.3.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of holders of Registrable Securities incurred in connection with
each registration of Registrable Securities requested pursuant to this
Section 8.3, other than underwriting discount and commission, if any, and
applicable stamp or transfer taxes, if any; provided, however, that the
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Company shall not be required to pay in respect of the fees and expenses of
any attorneys or other advisers retained by such holders more than an
aggregate for all such holders of $25,000 in the case of each such
registration.
8.3.3. Additional Procedures. Holders of Shares participating in any
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Public Offering pursuant to this Section 8.3 shall take all such actions
and execute all such documents and instruments that are reasonably
requested by the Company to effect the sale of their Shares in such Public
Offering, including, without limitation, being parties to the underwriting
agreement entered into by the Company and any other selling shareholders in
connection therewith and being liable in respect of the representations and
warranties by, and the other agreements (including customary selling
stockholder indemnifications and "lock-up" agreements) on the part of, the
Company and any other selling shareholders to and for the benefit of the
underwriters in such underwriting agreement; provided, however, that (i)
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with respect to individual representations, warranties and agreements of
sellers of Shares in such Public Offering, the aggregate amount of such
liability shall not exceed such holder's net proceeds from such offering
and (ii) with respect to all other representations, warranties and
agreements of sellers of shares in such Public Offering, the aggregate
amount of such liability shall not exceed the lesser of (a) such holder's
pro rata portion of any such liability, in accordance with such holder's
portion of the total number of Shares included in the offering or (b) such
holder's net proceeds from such offering.
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8.4 Certain Other Provisions.
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8.4.1 Underwriter's Cutback. In connection with any registration of
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shares in an underwritten offering, the underwriter may determine that
marketing factors (including, without limitation, an adverse effect on the
per share offering price) require a limitation of the number of shares to
be underwritten. Notwithstanding any contrary provision of this Section 8
and subject to the terms of this Section 8.4.1, the underwriter may limit
the number of shares which would otherwise be included in such registration
by excluding any or all Registrable Securities from such registration (it
being understood that the number of shares which the Company seeks to have
registered in such registration shall not be subject to exclusion, in whole
or in part, under this Section 8.4.1). Upon receipt of notice from the
underwriter of the need to reduce the number of shares to be included in
the registration, the Company shall advise all holders of the Company's
securities that would otherwise be registered and underwritten pursuant
hereto, and the number of shares of such securities, including Registrable
Securities, that may be included in the registration shall be allocated in
the following manner, unless the underwriter shall determine that marketing
factors require a different allocation: shares, other than Registrable
Securities, requested to be included in such registration by shareholders
shall be excluded; and, if a limitation on the number of shares is still
required, the number of Registrable Securities that may be included in such
registration shall be allocated among the holders thereof in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities
which each such holder requested be registered in such registration. For
purposes of any underwriter cutback, all Registrable Securities held by any
holder of Registrable Securities which is a partnership, corporation or
limited liability company shall also include any Registrable Securities
held by the partners, retired partners, shareholders, members or affiliated
entities of such holder, or the estates and family members of any such
partners, retired partners and members and any trusts for the benefit of
any of the foregoing persons, and such holder and other persons shall be
deemed to be a single selling holder, and any pro rata reduction with
respect to such selling holder shall be based upon the aggregate amount of
Registrable Securities owned by all entities and individuals included in
such selling holder, as defined in this sentence. No securities excluded
from the underwriting by reason of the underwriter's marketing limitation
shall be included in such registration. If any holder of Registrable
Securities disapproves of the terms of the underwriting, it may elect to
withdraw therefrom by written notice to the Company and the underwriter.
The Registrable Securities so withdrawn shall also be withdrawn from
registration.
8.4.2. Other Actions. If and in each case when the Company is
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required to use its best efforts to effect a registration of any
Registrable Securities as provided in this Section 9, the Company shall
take appropriate and customary actions in furtherance thereof, including,
without limitation: (i) promptly filing with the Commission a registration
statement and using reasonable efforts to cause such registration statement
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to become effective, (ii) preparing and filing with the Commission such
amendments and supplements to such registration statements as may be
required to comply with the Securities Act and to keep such registration
statement effective for a period not to exceed 270 days (or 30 days in the
case of a registration statement filed pursuant to Section 8.2A) from the
date of effectiveness or such earlier time as the Registrable Securities
covered by such registration statement shall have been disposed of in
accordance with the intended method of distribution therefor or the
expiration of the time when a prospectus relating to such registration is
required to be delivered under the Securities Act, (iii) use its best
efforts to register or qualify such Registrable Securities under the state
securities or "blue sky" laws of such jurisdictions as the sellers shall
reasonably request; provided, however, that the Company shall not be
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obligated to file any general consent to service of process or to qualify
as a foreign corporation in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in
any jurisdiction in which it would not otherwise be so subject; and (iv)
otherwise cooperate reasonably with, and take such customary actions as may
reasonably be requested by the holders of Registrable Securities in
connection with, such registration.
8.4.3. Selection of Underwriters and Counsel. The underwriters and
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legal counsel to be retained in connection with any Public Offering shall
be selected by the Board or, in the case of an offering following a request
therefor under Section 8.1.1, the Initiating Investors.
8.4.4. Lock-Up. Without the prior written consent of the
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underwriters managing any Public Offering, for a period beginning seven
days immediately preceding and ending on (a) in the case of the IPO, the
180th day following the effective date of the registration statement used
in connection with such offering or (b) in the case of any Public Offering
that is not the IPO or effected pursuant to Section 8.2A, the 90th day
following the effective date of the registration statement used in
connection with such offering, no holder of Shares (whether or not a
selling shareholder pursuant to such registration statement) shall Transfer
any Common Stock except pursuant to such registration statement or to a
Permitted Transferee in accordance with the terms of this Agreement.
8.5. Indemnification and Contribution.
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8.5.1. Indemnities of the Company. In the event of any registration
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of any Registrable Securities or other debt or equity securities of the
Company or any of its subsidiaries under the Securities Act pursuant to
this Section 9 or otherwise, and in connection with any registration
statement or any other disclosure document produced by or on behalf of the
Company or any of its subsidiaries including, without limitation, reports
required and other documents filed under the Exchange Act, and other
documents pursuant to which any debt or equity securities of the Company or
any of its
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subsidiaries are sold (whether or not for the account of the Company or its
subsidiaries), the Company will, and hereby do, and will cause each of
their respective subsidiaries, jointly and severally to, indemnify and hold
harmless each seller of Registrable Securities, any Person who is or might
be deemed to be a controlling Person of the Company or any of its
subsidiaries within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, their respective direct and indirect
partners, advisory board members, directors, officers, trustees, members
and shareholders, and each other Person, if any, who controls any such
seller or any such holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each such person being
referred to herein as a "Covered Person"), against any losses, claims,
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damages or liabilities, joint or several, to which such Covered Person may
be or become subject under the Securities Act, the Exchange Act, any other
securities or other law of any jurisdiction, the common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any
untrue statement or alleged untrue statement of any material fact contained
or incorporated by reference in any registration statement under the
Securities Act, any preliminary prospectus or final prospectus included
therein, or any related summary prospectus, or any amendment or supplement
thereto, or any document incorporated by reference therein, or any other
such disclosure document (including without limitation reports and other
documents filed under the Exchange Act and any document incorporated by
reference therein) or other document or report, (ii) 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 or (iii)
any violation or alleged violation by the Company or any of its
subsidiaries of any federal, state, foreign or common law rule or
regulation applicable to the Company or any of its subsidiaries and
relating to action or inaction in connection with any such registration,
disclosure document or other document or report, and will reimburse such
Covered Person for any legal or any other expenses incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided, however, that neither the
-------- -------
Company nor any of its subsidiaries shall be liable to any Covered Person
in any such case to the extent that any such loss, claim, damage,
liability, action or proceeding arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made
in such registration statement, any such preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, incorporated
document or other such disclosure document or other document or report, in
reliance upon and in conformity with written information furnished to the
Company or to any of its subsidiaries through an instrument duly executed
by such Covered Person specifically stating that it is for use in the
preparation thereof. The indemnities of the Company and of its subsidiaries
contained in this Section 8.5.1 shall remain in full force and effect
regardless of any investigation made by or on behalf of such Covered Person
and shall survive any transfer of securities.
-12-
8.5.2 Indemnities to the Company. The Company and any of its
--------------------------
subsidiaries may require, as a condition to including any securities in any
registration statement filed pursuant to this Section 9, that the Company
and any of its subsidiaries shall have received an undertaking satisfactory
to it from the prospective seller of such securities, to indemnify and hold
harmless the Company and any of its subsidiaries, each director of the
Company or any of its subsidiaries, each officer of the Company or any of
its subsidiaries who shall sign such registration statement and each other
Person (other than such seller), if any, who controls the Company and any
of its subsidiaries within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act with respect to any statement in or
omission from such registration statement, any preliminary prospectus or
final prospectus included therein, or any amendment or supplement thereto,
or any other disclosure document (including, without limitation, reports
and other documents filed under the Exchange Act or any document
incorporated therein) or other document or report, if such statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company or any of its subsidiaries through an
instrument executed by such seller specifically stating that it is for use
in the preparation of such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement, incorporated
document or other document or report. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on behalf of
the Company, any of its subsidiaries or any such director, officer or
controlling Person and shall survive any transfer of securities.
8.5.3 Indemnification Procedures. Promptly after receipt by a Person
--------------------------
entitled to indemnification pursuant to the foregoing provisions of this
Section 8.5 (an "Indemnitee") of notice of the commencement of any action
----------
or proceeding involving a claim of the type referred to in the foregoing
provisions of this Section 8.5, such Indemnitee will, if a claim in respect
thereof is to be made by such Indemnitee against any indemnifying party,
give written notice to each such indemnifying party of the commencement of
such action; provided, however, that the failure of any Indemnitee to give
-------- -------
notice to such indemnifying party as provided herein shall not relieve any
indemnifying party of its obligations under the foregoing provisions of
this Section 8.5, except and solely to the extent that such indemnifying
party is actually and materially prejudiced by such failure to give notice.
In case any such action is brought against an Indemnitee, each indemnifying
party will be entitled to participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly notified, to the extent
that it may wish, with counsel reasonably satisfactory to such Indemnitee
(who shall not, except with the consent of the Indemnitee, be counsel to
such an indemnifying party), and after notice from an indemnifying party to
such Indemnitee of its election so to assume the defense thereof, such
indemnifying party will not be liable to such Indemnitee for any legal or
other expenses subsequently incurred by the latter in connection with the
defense thereof; provided, however, that (i) if the Indemnitee reasonably
-------- -------
determines that there may be a conflict between the positions of such
-13-
indemnifying party and the Indemnitee in conducting the defense of such
action or if the Indemnitee reasonably concludes that representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them, then counsel for the Indemnitee
shall conduct the defense to the extent reasonably determined by such
counsel to be necessary to protect the interests of the Indemnitee and such
indemnifying party shall employ separate counsel for its own defense, (ii)
in any event, the Indemnitee shall be entitled to have counsel chosen by
such Indemnitee participate in, but not conduct, the defense and (iii) the
indemnifying party shall bear the legal expenses incurred in connection
with the conduct of, and the participation in, the defense as referred to
in clauses (i) and (ii) above. If, within a reasonable time after receipt
of the notice, such indemnifying party shall not have elected to assume the
defense of the action, such indemnifying party shall be responsible for any
legal or other expenses incurred by such Indemnitee in connection with the
defense of the action, suit, investigation, inquiry or proceeding. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnitee of a release from
all liabilities in respect of such claim or litigation.
8.5.4. Contribution. If the indemnification provided for in Sections
------------
8.5.1 or 8.5.2 hereof is unavailable to a party that would have been an
Indemnitee under any such Section in respect of any losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
therein, then each party that would have been an indemnifying party
thereunder shall, in lieu of indemnifying such Indemnitee, contribute to
the amount paid or payable by such Indemnitee as a result of such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) in such proportion as is appropriate to reflect the relative fault
of such indemnifying party on the one hand and such Indemnitee on the other
in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions or proceedings in
respect thereof). The relative fault 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 indemnifying party or such
Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The parties agree that it would not be just or equitable if
contribution pursuant to this Section 8.5.4 were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the preceding sentence. The
amount paid or payable by a contributing party as a result of the losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above in this Section 8.5.4 shall include any legal or
other expenses reasonably incurred by such Indemnitee in connection with
investigating or defending any such action or claim. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be
-14-
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
8.5.5. Limitation on Liability of Holders of Registrable Securities.
------------------------------------------------------------
The liability of each holder of Registrable Securities in respect of any
indemnification or contribution obligation of such holder arising under
this Section 8.5 shall not in any event exceed an amount equal to the net
proceeds to such holder (after deduction of all underwriters' discounts and
commissions) from the disposition of the Registrable Securities disposed of
by such holder pursuant to such registration.
9. TRANSFERS TO OTHER HOLDERS. Shares Transferred by a holder of Shares to
another holder of Shares under this Agreement shall be deemed for all purposes
hereof to be Investor Shares, Other Shares, Management Shares or Employee Shares
hereunder, as the case may be, of like kind with the other Shares held by such
acquiring holder.
10. REMEDIES.
10.1. Generally. The Company and each holder of Shares shall have all
---------
remedies available at law, in equity or otherwise in the event of any breach or
violation of this Agreement or any default hereunder by the Company or any
holder of Shares. The parties acknowledge and agree that in the event of any
breach of this Agreement, in addition to any other remedies which may be
available, each of the parties hereto shall be entitled to specific performance
of the obligations of the other parties hereto and, in addition, to such other
equitable remedies (including, without limitation, preliminary or temporary
relief) as may be appropriate in the circumstances.
10.2. [RESERVED]
----------
11. LEGENDS.
11.1. [Reserved].
----------
11.2. 1933 Act Legends. Each certificate representing Shares shall have
----------------
the following legend endorsed conspicuously thereupon:
The securities represented by this certificate were issued in a
private placement, without registration under the Securities Act of 1933,
as amended (the "Act"), and may not be sold, assigned, pledged or otherwise
transferred in the absence of an effective registration under the Act
covering the transfer or an opinion of counsel, satisfactory to the issuer,
that registration under the Act is not required.
-15-
11.3. Stop Transfer Instruction. The Company will instruct any transfer
-------------------------
agent not to register the Transfer of any Shares until the conditions specified
in the foregoing legend is satisfied.
11.4. Termination of Certain Restrictions. The legend set forth in Section
-----------------------------------
11.2 shall cease to be required as to any particular Shares (i) when, in the
opinion of Ropes & ▇▇▇▇, or other counsel reasonably acceptable to the Company,
such restrictions are no longer required in order to assure compliance with the
Securities Act or (ii) when such Shares have been effectively registered under
the Securities Act or transferred pursuant to Rule 144. Wherever (i) such
restrictions shall cease and terminate as to any Shares or (ii) such Shares
shall be transferable under paragraph (k) of Rule 144, the holder thereof shall
be entitled to receive from the Company, without expense, new certificates not
bearing the legend set forth in Section 11.2 hereof.
12. AMENDMENT, TERMINATION, ETC.
12.1. Oral Modifications. This Agreement may not be orally amended,
------------------
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
12.2. Written Modifications. This Agreement may be amended, modified,
---------------------
extended or terminated, and the provisions hereof may be waived, only by an
agreement in writing signed by the Majority Investors; provided, however, that
-------- -------
(a) the consent of the Majority Other Holders shall be required for any
amendment, modification, extension, termination or waiver which has a material
adverse effect on the rights or obligations of the holders of Other Shares as
such under this Agreement, (b) the consent of the Majority Managers shall be
required for any amendment, modification, extension, termination or waiver which
has a material adverse effect on the rights or obligations of the holders of
Management Shares as such under this Agreement, (c) the consent of the Majority
Employees shall be required for any amendment, modification, extension,
termination or waiver which has a material adverse effect on rights or
obligations of the holders of Employee Shares as such under this Agreement (d)
the consent of holders of a majority of the Shares originally issued to the
NatWest Investors and the MCM Managers shall be required for any amendment,
modification, extension, termination or waiver which has a material adverse
effect on their rights or obligations under Section 8.2A of this Agreement and
(e) the consent of the Majority Lenders shall be required for any amendment,
modification, extension, termination or waiver which has a material adverse
effect on the rights or obligations of the holders of Lender Shares as such
under this Agreement. Each such amendment, modification, extension, termination
and waiver shall be binding upon each party hereto and each holder of Shares
subject hereto. In addition, each party hereto and each holder of Shares
subject hereto may waive any right hereunder by an instrument in writing signed
by such party or holder.
12.3. Termination. No termination under this Agreement shall relieve any
-----------
Person of liability for breach prior to termination.
-16-
12.4. Additional Parties. In appropriate circumstances, the Company may
------------------
require certain other Persons to which Common Stock is issued to execute
counterparts hereto to become bound hereby. Such counterparts shall indicate
the designation of Shares issued to such Persons.
13. DEFINITIONS. For purposes of this Agreement:
13.1. Certain Matters of Construction. In addition to the definitions
-------------------------------
referred to or set forth below in this Section 13:
(a) The words "hereof", "herein", "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement, and reference to a particular
Section of this Agreement shall include all subsections thereof;
(b) Definitions shall be equally applicable to both the singular and
plural forms of the terms defined;
(c) The masculine, feminine and neuter genders shall each include
the other; and
(d) References to the date hereof shall be deemed to be references
to the date of the Original Agreement.
13.2. Definitions. The following terms shall have the following meanings:
-----------
"AAA" shall have the meaning set forth in Section 15.2.1.
---
"Affiliate" shall mean, with respect to any specified Person, any
---------
other Person which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control
with, such specified Person (for the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise).
"Agreement" shall have the meaning set forth in the Preamble.
---------
"Board" shall mean the board of directors of the Company.
-----
-17-
"Class A Stock" shall mean the Class A common stock, par value $.01,
-------------
of the Company prior to the Merger.
"Class L Stock" shall mean the Class L common stock, par value $.01,
-------------
of the Company prior to the Merger.
"Commission" shall mean the Securities and Exchange Commission.
----------
"Common Stock" shall mean the Class A Stock, the Class L Stock and the
------------
Delaware Common Stock.
"Company" shall have the meaning set forth in the Preamble.
-------
"Convertible Securities" shall mean any evidence of indebtedness,
----------------------
shares of stock (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable or exercisable for shares of
Common Stock.
"Covered Person" shall have the meaning set forth in Section 8.5.1.
--------------
"Delaware Common Stock" shall have the meaning set forth in the
---------------------
Recitals.
"Employee Shares" shall mean (i) all shares of Common Stock (other
---------------
than shares of Restricted Common Stock or Common Stock issued pursuant to
the exercise of any Option) originally issued to, or issued with respect to
shares originally issued to, or held by, an Employee, whenever issued and
(ii) for all purposes of this Agreement, all Options (treating such Options
as a number of Shares equal to the number of Equivalent Shares represented
by such Options), all shares of Common Stock issued pursuant to the
exercise of any Option and all shares of Restricted Common Stock originally
granted or issued to, or issued with respect to shares or options
originally issued to, or held by, an Employee, whenever issued.
"Employees" shall have the meaning set forth in the Recitals.
---------
"Exchange Act" shall mean the Securities Exchange Act of 1934, as in
------------
effect from time to time.
"Indemnitee" shall have the meaning set forth in Section 8.5.3.
----------
"Independent Investment Banking Firm" shall mean a nationally
-----------------------------------
recognized investment banking firm selected by the Board which does not
hold any equity interest in the Company or in any shareholder of the
Company and which is not employed by either the Company or the Investor at
the time the applicable fairness opinion is furnished (other than
employment for the purpose of providing such fairness opinion).
-18-
"Initial Public Offering" means the initial Public Offering registered
-----------------------
on Form S-1 (or any successor form under the Securities Act).
"Initiating Investors" shall have the meaning set forth in Section
--------------------
8.1.1.
"Initiating Other Investors" shall have the meaning set forth in
--------------------------
Section 8.2.1.
"Investor Shares" shall mean (i) all shares of Common Stock (other
---------------
than shares of Common Stock issued pursuant to the exercise of any Option)
originally issued to, or issued with respect to shares originally issued
to, or held by, any Investor, whenever issued and (ii) for all purposes of
this Agreement, all Options (treating such Options as a number of Shares
equal to the number of Equivalent Shares represented by such Options) and
all shares of Common Stock issued pursuant to the exercise of any Option
originally granted or issued to, or issued with respect to shares or
options originally issued to, or held by, an Investor, whenever issued.
"Investors" shall have the meaning set forth in the Preamble.
---------
"Lender Shares" shall mean (i) all shares of Common Stock issued
-------------
pursuant to the exercise of any Lender Warrant or other Option originally
granted or issued to, or issued with respect to shares or options
originally issued to, or held by, a Lender, whenever issued.
"Lender Warrants" shall mean the warrants issued under the Warrant
---------------
Agreements to acquire Common Stock.
"Lenders" shall have the meaning set forth in the Preamble.
-------
"Majority Employees" shall mean, as of any date, the holders of a
------------------
majority of the Employee Shares outstanding on such date.
"Majority Investors" shall mean, as of any date, the holders of a
------------------
majority of the Investor Shares outstanding on such date.
"Majority Lenders" shall mean, as of any date, the holders of a
----------------
majority of the Lender Shares outstanding on such date.
"Majority Managers" shall mean, as of any date, the holders of a
-----------------
majority of the Management Shares outstanding on such date.
"Majority Other Holders" shall mean, as of any date, the holders of a
----------------------
majority of Other Shares outstanding on such date.
-19-
"Majority Participating Investors" shall have the meaning set forth in
--------------------------------
Section 8.1.1.
"Majority Participating Other Investors" shall mean holders of at
--------------------------------------
least a majority of the Registrable Other Securities to be included in any
given proposed registration statement.
"Management Shares" shall mean (i) all shares of Common Stock (other
-----------------
than shares of Restricted Common Stock or Common Stock issued pursuant to
the exercise of any Option) originally issued to, or issued with respect to
shares originally issued to, or held by, a Manager, whenever issued and
(ii) for all purposes of this Agreement, all Options (treating such Options
as a number of Shares equal to the number of Equivalent Shares represented
by such Options), all shares of Common Stock issued pursuant to the
exercise of any Option and all shares of Restricted Common Stock originally
granted or issued to, or issued with respect to shares or options
originally issued to, or held by, a Manager, whenever issued.
"Managers" shall have the meaning set forth in the Preamble.
--------
"MCM" shall have the meaning set forth in the Recitals.
---
"MCM Managers" shall have the meaning set forth in the Recitals.
------------
"Merger" shall have the meaning set forth in the Recitals.
------
"NatWest Investors" shall have the meaning set forth in the Recitals.
-----------------
"Options" shall mean any options or warrants (including without
-------
limitation the Lender Warrants) to subscribe for, purchase or otherwise
acquire either Common Stock or Convertible Securities.
"Other Investors" shall have the meaning set forth in the Preamble.
---------------
"Other Shares" shall mean (i) all shares of Common Stock (other than
------------
shares of Common Stock issued pursuant to the exercise of any Option)
originally issued to, or issued with respect to shares originally issued
to, or held by, an Other Investor, whenever issued and (ii) for all
purposes of this Agreement, all Options (treating such Options as a number
of Shares equal to the number of Equivalent Shares represented by such
Options) and all shares of Common Stock issued pursuant to the exercise of
any Option originally granted or issued to, or issued with respect to
shares or options originally issued to, or held by, an Other Investor,
whenever issued.
-20-
"Person" shall mean any individual, partnership, corporation, company,
------
association, trust, joint venture, unincorporated organization, entity or
division, or any government, governmental department or agency or political
subdivision thereof.
"Public Offering" shall mean a public offering and sale of Common
---------------
Stock for cash pursuant to an effective registration statement under the
Securities Act.
"Registrable Investor Securities" shall have the meaning set forth in
-------------------------------
Section 8.1.1.
"Registrable Other Securities" shall have the meaning set forth in
----------------------------
Section 8.2.1.
"Registrable Securities" shall mean (i) all shares of Class A Stock,
----------------------
(ii) all shares of Class A Stock issuable upon conversion of Shares of
Class L Stock, (iii) all shares of Class A Stock issuable upon exercise of
any Option or any Warrant, (iv) all shares of Delaware Common Stock issued
in the Merger, (v) all shares of Common Stock issued to the NatWest
Investors or the MCM Managers in consideration of their interests in MCM,
and (vi) all shares of Class A Stock or Delaware Common Stock directly or
indirectly issued or issuable with respect to the securities referred to in
clauses (i), (ii), (iii), (iv) or (v) above by way of stock dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, in each
case which (a) constitute Shares or (b) are the subject of a separate
registration rights agreement. As to any particular Registrable
Securities, such shares shall cease to be Registrable Securities when (a) a
registration statement with respect to the sale of such securities shall
have become effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration statement, (b)
such securities shall have been distributed to the public pursuant to Rule
144 (or any successor provision) under the Securities Act, (c) subject to
the provisions of Section 11 hereof, such securities shall have been
otherwise transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the Company and
subsequent disposition of them shall not require registration of them under
the Securities Act or such securities may be distributed without volume
limitation or other restrictions on transfer under Rule 144 (including
without application of paragraphs (c), (e) (f) and (h) of Rule 144), or (d)
such securities shall have ceased to be outstanding.
"Regulation D" shall mean Regulation D under the Securities Act.
------------
"Restricted Common Stock" shall mean Shares issued or sold to Managers
-----------------------
(other than the MCM Managers) with respect to which there are restrictions
on Transfer independent of this Agreement.
-21-
"Rule 144" shall mean Rule 144 under the Securities Act.
--------
"Rule 145 Transaction" shall mean a registration on Form S-4 pursuant
--------------------
to Rule 145 of the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as in effect
--------------
from time to time.
"Shares" shall mean all Investor Shares, Lender Shares, Other Shares,
------
Management Shares and Employee Shares.
"Stockholders" shall have the meaning set forth in the Preamble.
------------
"Transfer" shall mean any sale, pledge, assignment, encumbrance or
--------
other transfer or disposition of any Shares to any other Person, whether
directly, indirectly, voluntarily, involuntarily, by operation of law,
pursuant to judicial process or otherwise.
"Warrant Agreements" shall mean those certain Warrant Agreements, each
------------------
dated as of the date of the Original Agreement, as amended, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Warrant Agent.
14. MISCELLANEOUS.
14.1. Authority; Effect. Each party hereto represents and warrants to and
-----------------
agrees with each other party that the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized on behalf of such party and do not violate any agreement or other
instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association.
14.2. Transactions with Affiliates. Prior to the consummation of a
----------------------------
transaction with an Affiliate of an Investor involving consideration of more
than $10 million, the Company will secure a fairness opinion from an Independent
Investment Banking Firm as to the fairness of such transaction to the Company
from a financial point of view.
14.3. Notices. Any notices and other communications required or permitted
-------
in this Agreement shall be effective if in writing and (a) delivered personally
or (b) sent (i) by Federal Express, DHL or UPS, delivery charges prepaid or (ii)
by registered or certified mail, return receipt requested, postage prepaid, in
each case, addressed as follows:
-22-
If to the Company or the Investors, to them:
c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇
with a copy to:
Ropes & ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
If to an Other Investor, a Manager, an Employee or a Lender, to it at
the address set forth on the records of the Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date received, if personally delivered, (b)
two business days after being sent by Federal Express, DHL or UPS and (c) three
business days, if sent by registered or certified mail. Each of the parties
hereto shall be entitled to specify a different address by giving notice as
aforesaid to each of the other parties hereto.
14.4. Binding Effect, etc. This Agreement constitutes the entire
-------------------
agreement of the parties with respect to its subject matter, supersedes all
prior or contemporaneous oral or written agreements or discussions with respect
to such subject matter, and shall be binding upon and inure to the benefit of
the parties hereto and their respective heirs, representatives, successors and
assigns.
14.5. Descriptive Headings. The descriptive headings of this Agreement
--------------------
are for convenience of reference only, are not to be considered a part hereof
and shall not be construed to define or limit any of the terms or provisions
hereof.
14.6. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
14.7. Severability. In the event that any provision hereof would, under
------------
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or
-23-
limiting it so as to be valid and enforceable to the maximum extent compatible
with, and possible under, applicable law. The provisions hereof are severable,
and in the event any provision hereof should be held invalid or unenforceable in
any respect, it shall not invalidate, render unenforceable or otherwise affect
any other provision hereof.
15. GOVERNING LAW.
15.1. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the domestic substantive laws of the State of Delaware without
giving effect to any choice or conflict of laws provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction; provided, however, that any dispute relating to the provisions of
Section 15.2 hereof shall be governed by the United States Arbitration Act as
then in force.
-24-
Stockholders Agreement
March , 2000
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE INVESTORS: ▇▇▇▇ CAPITAL FUND V, ▇.▇.
▇▇▇▇ CAPITAL FUND V-B, L.P.
By ▇▇▇▇ Capital Partners V, L.P.,
their general partner
By ▇▇▇▇ Capital Investors V, Inc.,
its general partner
By______________________________________
Title: Managing Director
BCIP ASSOCIATES
BCIP TRUST ASSOCIATES, L.P.
By__________________________________
Title: a general partner
THE OTHER INVESTORS: CELERITY DYNAMO, L.L.C.
By__________________________
its
CELERITY LIQUIDS, L.L.C.
By__________________________
its
Stockholders Agreement
March , 2000
CELERITY DETAILS, L.L.C.
By__________________________
its
CHASE MANHATTAN CAPITAL, L.P.
By_____________________________
its
CHASE SECURITIES INC.
By____________________________
its
DI INVESTORS, L.L.C.
By___________________________
its
Stockholders Agreement
March , 2000
LENDERS:
CHASE MANHATTAN CAPITAL, L.P.
By_____________________________
its
CHASE SECURITIES INC.
By____________________________
its
Stockholders Agreement
March , 2000
MANAGERS:
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