EXHIBIT 5
CONFORMED COPY
SUBSCRIPTION AGREEMENT
dated as of
August 7, 1997
among
QUAKER HOLDING CO.
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock
of
Quaker Holding Co.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions............................................ 1
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale...................................... 3
Section 2.02. Closing................................................ 3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01. Corporate Existence and Power.......................... 4
Section 3.02. Corporate Authorization................................ 4
Section 3.03. Governmental Authorization............................. 4
Section 3.04. Noncontravention....................................... 4
Section 3.05. Capitalization and Voting Rights....................... 4
Section 3.06. Valid Issuance of Common Stock......................... 5
Section 3.07. Litigation............................................. 5
Section 3.08. Brokers or Finders' Fees............................... 5
Section 3.09. Newly Formed Corporation............................... 5
Section 3.10. Meaning of Seller...................................... 6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Section 4.01. Existence and Power.................................... 6
Section 4.02. Authorization.......................................... 6
Section 4.03. Governmental Authorization............................. 6
Section 4.04. Purchase for Investment................................ 6
Section 4.05. Private Placement...................................... 6
Section 4.06. Litigation............................................. 7
Section 4.07. Brokers or Finders' Fees............................... 7
ARTICLE 5
CONDITIONS TO CLOSING
Section 5.01. Conditions to Obligations of Each Buyer and Seller..... 8
Section 5.02. Conditions to Obligation of Each Buyer................. 8
Section 5.03. Conditions to Obligation of Seller..................... 8
ARTICLE 6
SURVIVAL; INDEMNIFICATION
Section 6.01. Survival............................................... 9
Section 6.02. Indemnification........................................ 9
Section 6.03. Procedures and Third Party Claims...................... 10
Section 6.04. Calculation of Damages................................. 10
Section 6.05. Exclusivity............................................ 11
ARTICLE 7
TERMINATION
Section 7.01. Grounds for Termination................................ 11
Section 7.02. Effect of Termination.................................. 11
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices................................................ 12
Section 8.02. Amendments and Waivers................................. 12
Section 8.03. Expenses............................................... 13
Section 8.04. Successors and Assigns................................. 13
Section 8.05. Governing Law.......................................... 13
Section 8.06. Jurisdiction........................................... 13
Section 8.07. Waiver Of Jury Trial................................... 13
Section 8.08. Counterparts; Third Party Beneficiaries................ 13
Section 8.09. Entire Agreement....................................... 13
Section 8.10. Captions............................................... 14
Section 8.11. Severability........................................... 14
Section 8.12. Interpretation......................................... 14
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions............................................. 2
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.01. Composition of the Board................................ 9
Section 2.02. Removal................................................. 9
Section 2.03. Vacancies............................................... 9
Section 2.04. Action by the Board..................................... 10
Section 2.05. Conflicting Charter or Bylaw Provision.................. 10
ARTICLE 3
RESTRICTIONS ON TRANSFER
Section 3.01. General................................................. 10
Section 3.02. Legends................................................. 11
Section 3.03. Permitted Transferees................................... 11
Section 3.04. Restrictions on Transfers by Institutional Shareholders. 11
Section 3.05. Restrictions on Transfers by Management Shareholders.... 12
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
Section 4.01. Rights to Participate in Transfer....................... 13
Section 4.02. Right to Compel Participation in Certain Transfers...... 15
Section 4.03. Preemptive Rights....................................... 16
Section 4.04. Certain Other Purchases of Common Stock................. 18
ARTICLE 5
REGISTRATION RIGHTS
Section 5.01. Demand Registration..................................... 18
Section 5.02. Piggyback Registration.................................. 20
Section 5.03. Holdback Agreements..................................... 22
Section 5.04. Registration Procedures................................. 22
Section 5.05. Indemnification by the Company.......................... 25
Section 5.06. Indemnification by Participating Shareholders........... 25
Section 5.07. Conduct of Indemnification Proceedings.................. 26
Section 5.08. Contribution............................................ 27
Section 5.09. Participation in Public Offering........................ 28
Section 5.10. Cooperation by the Company.............................. 28
Section 5.11. No Transfer of Registration Rights...................... 28
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.01. Confidentiality......................................... 29
Section 6.02. Reports................................................. 30
Section 6.03. Limitations on Subsequent Registration.................. 30
Section 6.04. Exclusive Financial Advisor and Investment Banking
Advisor................................................ 30
Section 6.05. Limitation on Purchase of Common Stock.................. 30
ARTICLE 7
MISCELLANEOUS
Section 7.01. Entire Agreement........................................ 30
Section 7.02. Binding Effect; Benefit................................. 31
Section 7.03. Assignability........................................... 31
Section 7.04. Amendment; Waiver; Termination.......................... 31
Section 7.05. Notices................................................. 31
Section 7.06. Headings................................................ 33
Section 7.07. Counterparts............................................ 33
Section 7.08. Applicable Law.......................................... 33
Section 7.09. Specific Enforcement.................................... 33
Section 7.10. Consent to Jurisdiction; Expenses....................... 33
Section 7.11. Severability............................................ 34
Schedule A Schedule of Investors
Exhibit A Certificate of Incorporation
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 7, 1997 between Quaker Holding
Co., a Delaware corporation ("Seller"), and the Persons named on Schedule A
hereto (each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, the Seller has agreed to merge with and into
DecisionOne Holdings Corp. (the "Company") on the terms and conditions set
forth in the Agreement and Plan of Merger dated as of May 4, 1997 (the
"Merger") between Seller and the Company (as subsequently amended, the "Merger
Agreement");
WHEREAS, to finance, in part, the payment of the consideration
payable in the Merger, Seller intends to issue shares of common stock, par
value $0.01 per share (the "Common Stock" or the "Securities");
WHEREAS, all of the outstanding capital stock of the Seller is
currently owned by DLJ Merchant Banking Partners II, L.P. ("DLJMB") and
affiliated funds and entities (collectively, the "DLJMB Funds");
WHEREAS, certain institutional investors wish to invest in the
Seller incident to the Merger;
WHEREAS, Seller desires to issue and sell the Common Stock to
each of the Buyers, and each of the Buyers desires to purchase the Common
Stock from Seller, upon the terms and subject to the conditions hereinafter
set forth;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person.
"Closing Date" means the date of the Closing.
"Common Share" means one share of Common Stock.
"Investors' Agreement" means the Investors' Agreement dated as
of the date hereof among Quaker Holding Co., DLJ Merchant Banking Partners II,
L.P., DLJ Merchant Banking Partners ▇▇-▇, ▇.▇., ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇,
▇.▇., ▇▇▇ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ
Millennium Partners, L.P., DLJ Funding II, Inc., DLJ EAB Partners, L.P., UK
Investment Plan 1997 Partners, DLJ First ESC, LLC, and certain other
shareholders listed on the signature pages thereto.
"Lien" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or encumbrance in respect of
such property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"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.
"Tax" means, with respect to any Person, any net income tax, or
franchise tax based on net income including any alternative or add-on minimum
tax, together with any interest, penalty, addition to tax or additional amount
due from such Person imposed by any governmental authority (domestic or
foreign) responsible for the imposition of any such tax.
"Tax Benefit" means any deduction, amortization, exclusion from
income or other allowance.
"Transaction Documents" means this Agreement, the Merger
Agreement and the Investors' Agreement.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Accredited Investor 4.06(h)
Certificate of Incorporation 3.08
Claim 6.03
Closing 2.02
Common Stock Recitals
Company Recitals
Damages 6.02
DLJMB Recitals
DLJMB Funds Recitals
Indemnified Party 6.03
Indemnifying Party 6.03
Purchase Price 2.01
Securities Recitals
Third Party Claim 6.03
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale. Upon the terms and subject to
the conditions of this Agreement, Seller agrees to issue and sell to each
Buyer, and each Buyer agrees, severally and not jointly, to purchase from
Seller the Common Stock set forth opposite such Buyer's name on Schedule A
hereto at the Closing. The purchase price for the Common Stock (the "Purchase
Price") is the amount in cash specified on Schedule A hereto. The Purchase
Price shall be paid as provided in Section 2.02.
Section 2.02. Closing. The closing (the "Closing") of the
purchase and sale of the Common Stock hereunder shall take place at the
offices of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as
soon as possible, but in no event later than five business days, after
satisfaction of the conditions set forth in Article 5, or at such other time
or place as Buyers and Seller may agree. At the Closing:
(a) Each Buyer shall deliver to Seller, in immediately available
funds, the Aggregate Purchase Price set forth opposite such Buyer's name on
Schedule A hereto, by wire transfer (or other means acceptable to Seller) to
an account of Seller with a bank in New York City designated by Seller, by
notice to such Buyer, not later than two business days prior to the Closing
Date.
(b) Seller shall deliver to each Buyer certificates for the Common
Shares duly registered in the name of such Buyer.
(c) If the Closing has occurred but the Merger is not consummated
prior to the close of business on Friday, August 8, 1997, then Seller shall
immediately deliver to each Buyer, against delivery by such Buyer of the stock
certificates representing the shares of Common Stock purchased by such Buyer,
the Aggregate Purchase Price paid to Seller by such Buyer (as set forth
opposite such Buyer's name on Schedule A hereto), and this Agreement shall
thereupon be terminated.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to each Buyer as of the date
hereof and as of the Closing Date that:
Section 3.01. Corporate Existence and Power. Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all corporate powers and all
governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted and as proposed to be
conducted.
Section 3.02. Corporate Authorization. The execution, delivery
and performance by Seller of each of the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby (including
the issuance and sale of the Common Stock) are within Seller's corporate
powers and have been duly authorized by all necessary corporate action on the
part of Seller. Each of the Transaction Documents constitutes a valid and
binding agreement of Seller, enforceable against Seller in accordance with its
respective terms, except (i) as limited by the applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) as limited by
laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies.
Section 3.03. Governmental Authorization. The execution,
delivery and performance by Seller of each of the Transaction Documents and
the consummation of the transactions contemplated hereby and thereby require
no order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official except such as have been obtained.
Section 3.04. Noncontravention. The execution, delivery and
performance by Seller of each of the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby do not and
will not (i) violate the certificate of incorporation or bylaws of Seller,
(ii) violate any applicable law, rule, regulation, judgment, injunction, order
or decree, (iii) require any consent or other action by any Person under,
constitute a default under (with due notice or lapse of time or both), or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of Seller or to a loss of any benefit to which Seller is entitled
under any provision of any agreement or other instrument binding upon Seller
or any of Seller's assets or properties or (iv) result in the creation or
imposition of any material Lien on any property or asset of Seller.
Section 3.05. Capitalization and Voting Rights. (a) The
authorized capital stock of the Seller consists of 30,000,000 shares of Common
Stock and 15,000,000 shares of preferred stock, and the outstanding capital
stock of the Seller immediately prior to the Closing is 101 shares of Common
Stock and no shares of preferred stock. The rights, privileges and
preferences of the Common Stock are set forth in the Certificate of
Incorporation attached hereto as Exhibit A (the "Certificate of
Incorporation").
(b) Immediately following the Closing the outstanding capital
stock of the Seller will be 10,918,979 shares of Common Stock. 148,400
warrants to purchase 281,960 shares of Common Stock will be issued shortly
after Closing to purchasers of Seller's 11 1/2% Senior Discount Debentures due
2008.
(c) Except as set forth in this Section 3.05 there are, and
immediately after the Closing there will be, no outstanding (i) shares of
capital stock or voting securities of the Seller, (ii) securities of the
Seller convertible into or exchangeable for shares of capital stock or voting
securities of the Seller, (iii) options or other rights to acquire from the
Seller, or other obligation of the Seller to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of the Seller or (iv) other than as expressly permitted in
the Transaction Documents or employment plans, no obligation of the Seller to
repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in (i), (ii),
or (iii).
Section 3.06. Valid Issuance of Common Stock. The shares of
Common Stock which are being issued to the Buyers hereunder, have been duly
and validly authorized and when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be fully paid
and nonassessable, and based in part on the representations of the Buyers
herein, will be validly issued in compliance with all applicable federal and
state securities laws.
Section 3.07. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of Seller,
threatened against or affecting Seller or any of its respective properties
before any court or arbitrator or any governmental body, agency or official
which in any manner challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Agreement or which could
reasonably be expected to have a material adverse effect on the business,
financial condition, properties or operations of Seller, nor is Seller aware
that there is any basis for the foregoing.
Section 3.08. Brokers or Finders' Fees. Other than ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Securities Corporation there is no investment banker,
broker, finder or other intermediary which has been retained by, will be
retained by, or is authorized to act on behalf of Seller who might be entitled
to any fee or commission from the Seller in connection with the transactions
contemplated by this Agreement.
Section 3.09. Newly Formed Corporation. Seller was
incorporated on April 30, 1997 in the State of Delaware solely for the purpose
of effectuating the transactions contemplated in this Agreement and the Merger
Agreement and has not conducted any business or entered into any agreements or
commitments except with respect to the foregoing.
Section 3.10. Meaning of Seller. Except as otherwise
specifically provided herein, references to the Seller contained in this
Article 3 shall be construed to refer to the Seller immediately prior to the
consummation of the transactions contemplated by the Merger Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer represents and warrants to Seller, severally as to
itself only and not jointly or as to any other Buyer, as of the date hereof
and as of the Closing Date that:
Section 4.01. Existence and Power. Such Buyer, if not an
individual, is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all powers (corporate,
partnership or otherwise) and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. Such Buyer, if an individual, has the legal
capacity to enter into this Agreement and the Investors' Agreement.
Section 4.02. Authorization. The execution, delivery and
performance by such Buyer of each of this Agreement and the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby are within the powers (corporate, partnership or otherwise) of such
Buyer and have been duly authorized by all necessary action on the part of
such Buyer. Each of this Agreement and the Investors' Agreement constitutes a
valid and binding agreement of such Buyer, enforceable in accordance with
their respective terms, except (i) as limited by the applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) as limited by
laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies.
Section 4.03. Governmental Authorization. The execution,
delivery and performance by such Buyer of this Agreement and the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby require no order, license, consent, authorization or approval of, or
exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official.
Section 4.04. Purchase for Investment. Such Buyer is
purchasing the Common Stock for investment for its own account and not with a
view to, or for sale in connection with, any distribution thereof.
Section 4.05. Private Placement. (a) Such Buyer understands
that (i) the offering and sale of the Securities hereby is intended to be
exempt from registration under the 1933 Act and (ii) there is only a limited
market for the Common Stock, and there can be no assurance that any Buyer will
be able to sell or dispose of the Common Stock to be purchased by such Buyer.
(b) Such Buyer's financial situation is such that such Buyer can
afford to bear the economic risk of holding the Common Stock acquired
hereunder for an indefinite period of time, and such Buyer can afford to
suffer the complete loss of the investment in the Common Stock .
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and
risks of the investment in the Common Stock, or such Buyer has been advised by
a representative possessing such knowledge and experience.
(d) Such Buyer understands that the Common Stock acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Common Stock as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no (or only a limited) public market for the Common Stock and that,
accordingly, it may not be possible for such Buyer to sell the Common Stock in
case of emergency or otherwise.
(e) Such Buyer and its representatives, including, to the extent
it deems appropriate, its professional, financial, tax and other advisors,
have reviewed all documents provided to them in connection with the investment
in the Common Stock, and such Buyer understands and is aware of the risks
related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, Seller and its representatives concerning the terms and
conditions of the acquisition of the Common Stock and related matters and to
obtain all additional information which such Buyer or its representatives deem
necessary.
(g) All information which such Buyer has provided to Seller and
its representatives concerning such Buyer and such Buyer's financial position
is true, complete and correct, and such Buyer agrees to promptly notify Seller
if at any time this ceases to be the case prior to the Closing.
(h) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
Section 4.06. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of such Buyer
threatened against or affecting, such Buyer before any court or arbitrator or
any governmental body, agency or official which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement or the Investors' Agreement.
Section 4.07. Brokers or Finders' Fees. There is no investment
banker, broker, finder or other intermediary which has been retained by, will
be retained by or is authorized to act on behalf of such Buyer who might be
entitled to any fee or commission from the Company, Seller or the DLJ entities
upon consummation of the transactions contemplated by this Agreement (as
defined in the Investors' Agreement of even date herewith).
ARTICLE 5
CONDITIONS TO CLOSING
Section 5.01. Conditions to Obligations of Each Buyer and
Seller. The obligations of Buyer and Seller to consummate the Closing are
subject to the satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation and no
judgment, injunction, order or decree by any governmental entity of competent
jurisdiction shall prohibit the consummation of the Closing or the Merger.
(b) All material actions by or in respect of, or filings with, any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or obtained.
(c) The conditions to the consummation of the Merger
Agreement (other than the condition set forth in Section 8.01(e) thereof,
which shall be reasonably certain to occur immediately after the Closing)
shall have been satisfied or waived.
Section 5.02. Conditions to Obligation of Each Buyer. The
obligation of each Buyer to consummate the Closing is subject to the
satisfaction of the following further conditions:
(a) (i) Seller shall have performed in all material respects all
of its obligations hereunder required to be performed by it on or prior to the
Closing Date and (ii) the representations and warranties of Seller contained
in this Agreement and in any certificate or other writing delivered by Seller
pursuant hereto shall be true in all material respects when made and at and as
of the Closing Date, as if made at and as of such date.
(b) Such Buyer shall have received all documents it may reasonably
request relating to the existence of Seller and the authority of Seller for
this Agreement, all in form and substance reasonably satisfactory to such
Buyer.
Section 5.03. Conditions to Obligation of Seller. The
obligation of Seller to consummate the Closing with respect to any Buyer is
subject to the satisfaction of the following further conditions:
(a) (i) Such Buyer shall have performed in all material
respects all of its obligations hereunder required to be performed by it at
or prior to the Closing Date and (ii) the representations and warranties of
such Buyer contained in this Agreement and in any certificate or other
writing delivered by such Buyer pursuant hereto shall be true in all
material respects when made and at and as of the Closing Date, as if made
at and as of such date.
(b) Seller shall have received all documents it may reasonably
request relating to the existence of such Buyer and the authority of such
Buyer for this Agreement, all in form and substance reasonably satisfactory
to Seller.
ARTICLE 6
SURVIVAL; INDEMNIFICATION
Section 6.01. Survival. The representations and warranties
of the parties hereto contained in this Agreement or in any certificate
delivered pursuant hereto or in connection herewith shall survive the
Closing until twelve months after the Closing Date, provided that the
representations and warranties contained in Sections 3.01, 3.02, 3.04,
3.05, 3.06 and 4.01 shall survive indefinitely for the maximum period
permitted by applicable law, if longer. Notwithstanding the preceding
sentence, any representation or warranty in respect of which indemnity may
be sought under this Agreement shall survive the time at which it would
otherwise terminate pursuant to the preceding sentence, if notice of the
inaccuracy or breach thereof giving rise to such right of indemnity shall
have been given to the party against whom such indemnity may be sought
prior to such time, but only as to such inaccuracy or breach. A breach of
any representation or warranty made in this Agreement shall not affect in
any manner whatsoever the relative rights and obligations of the parties to
and under the Investors' Agreement.
Section 6.02. Indemnification. (a) Seller hereby indemnifies
each Buyer and its Affiliates, limited partners, general partners, directors,
officers and employees against and agrees to hold each of them harmless from
any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys'
fees and expenses in connection with any action, suit or proceeding)
("Damages") incurred or suffered by any such party arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by Seller pursuant to this Agreement; provided that with respect to
any Buyer, (i) Seller shall not be liable under this Section 6.02(a) unless
the aggregate amount of Damages with respect to all matters referred to in this
Section 6.02(a) for which such Buyer has sought indemnification exceeds
$100,000 and then only to the extent of such excess and (ii) Seller's maximum
liability under this Section 6.02(a) shall not exceed the amount of the
Purchase Price paid by such Buyer.
(b) Each Buyer hereby indemnifies, severally and not jointly,
Seller and its Affiliates, limited partners, general partners, directors,
officers and employees against and agrees to hold each of them harmless
from any and all Damages incurred or suffered by any such party arising out
of any misrepresentation or breach of warranty, covenant or agreement made
or to be performed by such Buyer pursuant to this Agreement; provided that
(i) such Buyer shall not be liable under this Section 6.02(b) unless the
aggregate amount of Damages with respect to all matters referred to in this
Section 6.02(b) exceeds $100,000 and then only to the extent of such excess
and (ii) such Buyer's maximum liability under this Section 6.02(b) shall
not exceed the amount of Purchase Price paid by such Buyer.
Section 6.03. Procedures and Third Party Claims. (a) The party
seeking indemnification under Section 6.02 (the "Indemnified Party") agrees to
give prompt notice to the party against whom indemnity is sought (the
"Indemnifying Party") of the assertion of any claim, or the commencement of
any suit, action or proceeding ("Claim") in respect of which indemnity may be
sought under such Section and will provide the Indemnifying Party such
information with respect thereto that the Indemnifying Party may reasonably
request. The failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder, except to the extent such
failure shall have adversely prejudiced the Indemnifying Party (except that
the Indemnifying Party shall not be liable for any expenses incurred during
the period in which the Indemnified Party failed to give such notice).
(b) The Indemnifying Party shall be entitled to participate in the
defense of any Claim asserted by any third party ("Third Party Claim") and,
subject to the limitations set forth in this Section, shall be entitled to
control and appoint lead counsel for such defense, in each case at its
expense.
(c) If the Indemnifying Party shall assume the control of the defense
of any Third Party Claim in accordance with the provisions of this Section,
(i) the Indemnifying Party shall obtain the prior written consent of the
Indemnified Party (which shall not be unreasonably withheld) before entering
into any settlement of such Third Party Claim, if the settlement does not
release the Indemnified Party from all liabilities and obligations with
respect to such Third Party Claim or the settlement imposes injunctive or
other equitable relief against the Indemnified Party and (ii) the Indemnified
Party shall be entitled to participate in the defense of such Third Party
Claim and to employ separate counsel of its choice for such purpose. The fees
and expenses of such separate counsel shall be borne by the Indemnified Party.
(d) Each party shall cooperate, and cause its respective Affiliates to
cooperate, in the defense or prosecution of any Third Party Claim and shall
furnish or cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or appeals,
as may be reasonably requested in connection therewith.
Section 6.04. Calculation of Damages. (a) The amount of any
Damages payable under Section 6.02 by the Indemnifying Party shall be net of
any (i) amounts recovered or recoverable by the Indemnified Party under
applicable insurance policies, (ii) Tax cost incurred by the Indemnified Party
arising from the receipt of indemnity payments and (iii) Tax Benefit realized
by the Indemnified Party arising from the incurrence or payment of any such
Damages. In computing the amount of any such Tax cost or Tax Benefit, the
Indemnified Party shall be deemed to fully utilize, at the highest marginal
tax rate then in effect, all Tax items arising from the receipt of any
indemnity payment hereunder or the incurrence or payment of any indemnified
Damages.
(b) The Indemnifying Party shall not be liable under Section 6.02 for
any (i) incidental Damages, (ii) consequential or punitive Damages or (iii)
Damages for lost profits.
Section 6.05. Exclusivity. After the Closing, Section 6.2 will
provide the exclusive remedy for any misrepresentation, breach of warranty,
covenant or other agreement or other claim arising out of this Agreement or
the transactions contemplated hereby.
ARTICLE 7
TERMINATION
Section 7.01. Grounds for Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual written agreement of Seller and Buyers;
(b) by either Seller or any Buyer as to such Buyer if the Closing
shall not have been consummated as of the close of business on Friday, August
8, 1997; or
(c) by either Seller or any Buyer if consummation of the
transactions contemplated hereby would violate any non-appealable final order,
decree or judgment of any court or governmental body having competent
jurisdiction.
The party desiring to terminate this Agreement pursuant to
clauses 7.01(b) or (c) shall give notice of such termination to the other
party.
Section 7.02. Effect of Termination. If this Agreement is
terminated as permitted by Section 7.01, such termination shall be without
liability of either party (or any stockholder, general partner, limited
partner, director, officer, employee, agent, consultant or representative of
such party) to the other party to this Agreement; provided that if such
termination shall result from the willful (i) failure of either party to
fulfill a condition to the performance of the obligations of the other party,
(ii) failure to perform a covenant of this Agreement or (iii) breach by either
party hereto of any representation or warranty or agreement contained herein,
such party shall be fully liable for any and all Damages incurred or suffered
by the other party as a result of such failure or breach. The provisions of
Sections 8.03, 8.05 and 8.06 shall survive any termination hereof pursuant to
Section 7.01.
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to any Buyer, to such Buyer at the address specified by such Buyer on
the signature pages of this Agreement or in a notice given by such Buyer to
Seller for such purpose;
if to Seller, to:
Quaker Holding Co.
c/o DLJ Merchant Banking Partners II, L.P.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such 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.
Section 8.02. Amendments and Waivers. (a) Any provision of
this Agreement may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party
to this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 8.03. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense, except that if the Closing shall occur, the Company shall
reimburse (i) the Buyers other than the DLJ Entities (as that term is defined
in the Investors' Agreement) for up to $20,000 in respect of fees and expenses
of one counsel retained to represent such Buyers and (ii) the DLJ Entities for
all costs and expenses incurred by the DLJ Entities.
Section 8.04. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto.
Section 8.05. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New York.
Section 8.06. Jurisdiction. The parties hereto agree that 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 only be brought in the United States
District Court for the Southern District of New York or any New York State
court sitting in New York City, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which
is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of
process on such party as provided in Section 8.01 shall be deemed effective
service of process on such party.
Section 8.07. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 8.08. Counterparts; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each
party hereto shall have received a counterpart hereof signed by the other
party hereto. No provision of this Agreement is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
Section 8.09. Entire Agreement. This Agreement along with the
Investors' Agreement (including the documents, schedules and exhibits referred
to herein and therein) constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
Section 8.10. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 8.11. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be executed from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
Section 8.12. Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
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.
QUAKER HOLDING CO.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice-President
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MILLENIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ MILLENIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as managing
general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ FIRST ESC, L.L.C.,
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇.▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
UK INVESTMENT PLAN 1997
PARTNERS
By: ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, Inc.,
as general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ EAB PARTNERS, L.P.
By: DLJ Merchant Banking Funding II, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
APOLLO U.K. PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc., its
general partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ CAPITAL FUND V, L.P.
By: ▇▇▇▇ Capital Partners V, L.P.,
its general partner
By: ▇▇▇▇ Capital Investors V, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Parter
Address: c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ CAPITAL FUND, V-B, L.P.
By: ▇▇▇▇ Capital Partners V, L.P.,
its general partner
By: ▇▇▇▇ Capital Investors V, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
Address: c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BCIP ASSOCIATES
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
Address: c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
BCIP TRUST ASSOCIATES, L.P.
By: ▇▇▇▇ Capital Partners V, L.P.,
its general partner
By: ▇▇▇▇ Capital Investors V, Inc.,
its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
Address: c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ Place
Boston, MA 02116
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN
FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THL CO-INVESTORS III-A LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Manager
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THL CO-INVESTORS III-B LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Manager
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DLJ CAPITAL CORP.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ONTARIO TEACHERS' PENSION
PLAN BOARD
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager, Merchant Banking
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇
SCHEDULE A
No. of Common Aggregate Purchase
Investor Shares Price
-------- ------------------ ------------------
DLJ Merchant Banking 4,703,762 $96,932,137.08
Partners II, L.P.
DLJ Merchant Banking 187,326 3,860,284.87
Partners II-A,L.P.
DLJ Offshore Partners, L.P. 231,307 4,766,622.62
DLJ Diversified Partners, 275,003 5,667,095.07
L.P.
DLJ Diversified Partners-A, 102,127 2,104,560.24
L.P.
DLJ Millennium Partners, 76,055 1,567,276.12
L.P.
DLJ Millennium Partners - 14,834 305,685.43
A, L.P.
DLJMB Funding II, Inc. 946,201 19,498,728.27
DLJ First ESC, L.L.C. 874,223 18,015,434.00
DLJ EAB Partners, L.P. 21,119 435,204.97
UK Investment Plan 1997 88,052 1,814,515.60
Partners
Apollo Investment Fund III, 738,693 15,222,519.19
L.P.
Apollo Overseas Partners III, 44,117 909,143.31
L.P.
Apollo (U.K.) Partners III, 27,307 562,718.22
▇.▇.
▇▇▇▇ Capital Fund V L.P. 158,619 3,268,702.22
▇▇▇▇ Capital Fund V-B, L.P. 413,039 8,511,678.44
BCIP Associates 124,016 2,555,635.04
BCIP Trust Associates 114,443 2,358,365.01
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund 695,016 14,322,454.99
III, L.P.
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign 43,006 886,234.74
Fund III, L.P.
THL Co. - Investors III - A 43,910 904,865.69
LLC
THL Co. - Investors III - B 28,185 580,825.30
LLC
DLJ Capital Corp. 10,568 217,752.91
Sprout Growth II, L.P. 457,319 9,424,167.36
The Sprout CEO Fund, L.P. 7,617 156,960.76
Ontario Teachers' Pension 493,115 10,161,797.96
Plan Fund
EXHIBIT A
State of Delaware
Office of the Secretary of State
I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "QUAKER HOLDING CO.", FILED IN THIS OFFICE ON THE THIRTIETH
DAY OF APRIL, A.D. 1997, AT 9 O'CLOCK A.M.
[SEAL] /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary of State
AUTHENTICATION: 8584647
DATE: 07-31-97
CERTIFICATE OF INCORPORATION
OF
QUAKER HOLDING CO.
****
FIRST: The name of the Corporation is Quaker Holding Co.
SECOND: The address of its registered office in the State of Delaware
is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of its registered
agent at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
(the "Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 45,000,00 consisting of 30,000,000 shares of Common
Stock, par value $.01 per share (the "Common Stock") and 15,000,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock"). The Board
of Directors is hereby empowered to authorize by resolution or resolutions
from time to time the issuance of one or more classes or series of Preferred
Stock and to fix the designations, powers, preferences and relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to each such class or
series of Preferred Stock and the number of shares constituting each such
class or series, and to increase or decrease the number of shares of any such
class or series to the extent permitted by the Delaware Law.
FIFTH: The name and mailing address of the incorporator are:
Name Mailing Address
---------------
▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The power of the incorporator as such shall terminate upon the filing
of this Certificate of Incorporation.
SIXTH: The names and mailing addresses of the persons who are to serve
-----
as directors until the first annual meeting of stockholders or until their
successors are elected and qualified are:
Name Mailing Address
---- ---------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Name Mailing Address
---- ---------------
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SEVENTH: The Board of Directors shall have the power to adopt, amend or
-------
repeal the bylaws of the Corporation.
EIGHTH: Election of directors need not be by written ballot unless the
------
bylaws of the Corporation so provide.
NINTH: (1) A director of the Corporation shall not be liable to the
-----
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that such person is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless by the Corporation to the fullest
extent permitted by Delaware Law. The right to indemnification conferred in
this ARTICLE NINTH shall also include the right to be paid by the Corporation
the expenses incurred in connection with any such proceeding in advance of its
final disposition to the fullest extent authorized by Delaware Law. The right
to indemnification conferred in this ARTICLE NINTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or
loss incurred by such person in any such capacity or arising out of his status
as such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE NINTH shall not
be exclusive of any other right which any person may otherwise have or
hereafter acquire.
(5) Neither the amendment nor repeal of this ARTICLE NINTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws
of the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE
NINTH in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
TENTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE NINTH,
all rights and powers conferred herein on stockholders, directors and
officers, if any, are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto signed my name this 30th day of
April, 1997.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇
Sole Incorporator