CONFORMED COPY
Exhibit 4
INVESTORS' AGREEMENT
dated as of
August 7, 1997
among
DECISIONONE HOLDINGS CORP.,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS II - A, L.P.,
DLJ OFFSHORE PARTNERS II, ▇.▇.,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇.▇.,
▇▇▇ DIVERSIFIED PARTNERS - A, L.P.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS - A, L.P.,
DLJMB FUNDING II, INC.,
UK INVESTMENT PLAN 1997 PARTNERS,
DLJ EAB PARTNERS, L.P.,
DLJ FIRST ESC, LLC,
AND
CERTAIN OTHER PERSONS NAMED HEREIN
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.............................................................2
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
SECTION 2.01. Composition of the Board...............................................10
SECTION 2.02. Removal................................................................10
SECTION 2.03. Vacancies..............................................................10
SECTION 2.04. Action by the Board....................................................11
SECTION 2.05. Conflicting Charter or Bylaw Provision.................................11
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General................................................................12
SECTION 3.02. Legends................................................................12
SECTION 3.03. Permitted Transferees..................................................13
SECTION 3.04. Restrictions on Transfers by Institutional Shareholders................13
SECTION 3.05. Restrictions on Transfers by Management Shareholders...................13
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
SECTION 4.01. Rights to Participate in Transfer......................................15
SECTION 4.02. Right to Compel Participation in Certain Transfers.....................17
SECTION 4.03. Preemptive Rights......................................................19
SECTION 4.04. Certain Other Purchases of Common Stock................................20
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. Demand Registration....................................................21
SECTION 5.02. Piggyback Registration.................................................23
SECTION 5.04. Registration Procedures................................................25
SECTION 5.05. Indemnification by the Company.........................................29
SECTION 5.06. Indemnification by Participating Shareholders..........................29
SECTION 5.08. Contribution...........................................................31
SECTION 5.09. Participation in Public Offering.......................................33
SECTION 5.10. Cooperation by the Company.............................................33
SECTION 5.11. No Transfer of Registration Rights.....................................33
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
SECTION 6.01. Confidentiality........................................................33
SECTION 6.02. Reports................................................................34
SECTION 6.03. Limitations on Subsequent Registration.................................35
SECTION 6.04. Exclusive Financial Advisor and Investment Banking Advisor.............35
SECTION 6.05. Limitation on Purchase of Common Stock.................................35
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Entire Agreement.......................................................35
SECTION 7.02. Binding Effect; Benefit................................................36
SECTION 7.03. Assignability..........................................................36
SECTION 7.04. Amendment; Waiver; Termination.........................................36
SECTION 7.05. Notices................................................................37
SECTION 7.06. Headings...............................................................38
SECTION 7.07. Counterparts...........................................................38
SECTION 7.08. Applicable Law.........................................................38
SECTION 7.09. Specific Enforcement...................................................38
SECTION 7.10. Consent to Jurisdiction; Expenses......................................39
SECTION 7.11. Severability...........................................................39
INVESTORS' AGREEMENT
AGREEMENT dated as of August 7, 1997 among (i) DecisionOne Holdings
Corp. (the "Company"), (ii) DLJ Merchant Banking Partners II, L.P. ("DLJMB"),
DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P., DLJMB Funding
II, Inc., DLJ Merchant Banking Partners II - A, L.P., DLJ Diversified Partners -
A., L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners - A, L.P., UK
Investment Plan 1997 Partners, DLJ EAB Partners, L.P., and DLJ First ESC, LLC
(each a "DLJ Entity" and a "Shareholder" and collectively the "DLJ Entities"),
(iii) Apollo Investment Fund III L.P. ("Apollo Investment"), Apollo Overseas
Partners III L.P. ("Apollo Overseas"), Apollo (U.K.) Partners III, L.P. ("Apollo
U.K."), ▇▇▇▇ Capital Fund V L.P. ("▇▇▇▇ Capital V"), ▇▇▇▇ Capital Fund, V-B,
L.P. ("▇▇▇▇ Capital V-B"), BCIP Associates ("BCIP"), BCIP Trust Associates L.P.
("BCIP Trust"), ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund III, L.P. ("THL"), ▇▇▇▇▇▇ ▇. ▇▇▇
Foreign Fund III, L.P. ("THL Foreign Fund"), THL Co-Investors III-A, LLC ("THL
Co-Investors A"), THL Co-Investors III-B, LLC ("THL Co-Investors B"), DLJ
Capital Corp. ("DLJ Capital"), Sprout Growth II, L.P. ("Sprout"), The Sprout CEO
Fund, L.P. ("Sprout CEO Fund"), and Ontario Teachers' Pension Plan Board (each a
"Shareholder" and collectively, the Shareholders listed in this clause (iii) are
referred to as the "Institutional Shareholders") and (iv) certain other Persons
listed on the signature pages hereof (each a "Shareholder" and collectively, the
"Management Shareholders").
W I T N E S S E T H :
WHEREAS, pursuant to the Subscription Agreement and the DecisionOne
Direct Investment Program (as defined below) certain parties hereto are or will
be acquiring securities of Quaker Holding Co. and the Company, respectively; and
WHEREAS, pursuant to the terms of the Merger Agreement (as defined
below), Quaker Holding Co. will be merged with and into the Company, with the
Company as the surviving corporation (the "Merger");
WHEREAS, the parties hereto desire to enter into this Agreement to
govern certain of their rights, duties and obligations after consummation of the
transactions contemplated by the Merger Agreement, the Subscription Agreement
and the DecisionOne Direct Investment Program;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"Adjusted Initial Ownership" means, with respect to any Management
Shareholder, the number of shares of Common Stock and Common Stock Equivalents
owned as of the date hereof, or in the case of any Person that shall become a
party to this Agreement on a later date, as of such date, taking into account
any stock split, stock dividend, reverse stock-split or similar event.
"Adverse Person" means any Person whom the Board of Directors of the
Company determines is a competitor or a potential competitor of the Company or
its Subsidiaries.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control with
such Person, provided that no securityholder of the Company shall be deemed an
Affiliate of any other securityholder solely by reason of any investment in the
Company. For the purpose of this definition, the term "control" (including with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as used with respect to any Person, shall mean the possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities or by contract or otherwise.
"Affiliated Employee Benefit Trust" means any trust that is a successor
to the assets held by a trust established under an employee benefit plan subject
to ERISA or any other trust established directly or indirectly under such plan
or any other such plan having the same sponsor.
"Apollo Entities" means Apollo Investment, Apollo Overseas, Apollo
U.K. and their Permitted Transferees.
"Bain Entities" means ▇▇▇▇ Capital V, ▇▇▇▇ Capital V-B, BCIP, BCIP
Trust and their Permitted Transferees.
"beneficially own" shall have the meaning set forth in Rule 13d-3 of
the Exchange Act.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"Change of Control" means such time as (a) the DLJ Entities shall own
less than 20% of the outstanding shares of Common Stock, (b) the transfer of all
or substantially all of the assets of the Company to any Person or group shall
have been consummated, or (c) the Company shall have been liquidated.
"Closing Date" means August 7, 1997.
"Common Stock" shall mean the common stock, par value $.01 per share,
of the Company and any stock into which such Common Stock may thereafter be
converted or changed.
"Common Stock Equivalent" means
(20.61 - P) x N
---------------
20.61
where "N" equals the number of Roll-Over Options, and "P" equals the exercise
price of such Roll-Over Option.
"DecisionOne Direct Investment Program" means the investment program of
the Company pursuant to which certain members of the Company's management will
acquire shares of Common Stock.
"Drag-Along Portion" means, with respect to any Other Shareholder and
any class of Common Stock, the number of such class of Common Stock beneficially
owned by such Other Shareholder multiplied by a fraction, the numerator of which
is the number of such class of Common Stock proposed to be sold by the DLJ
Entities on behalf of the DLJ Entities and the Other Shareholders and the
denominator of which is the total number of such class of Common Stock on a
Fully Diluted basis beneficially owned by the Shareholders.
"Equity Securities" means the Common Stock, securities convertible into
or exchangeable for Common Stock and options, warrants or other rights to
acquire Common Stock, preferred stock or any other equity security issued by the
Company.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"First Public Offering" means the first sale after the date hereof of
Common Stock pursuant to an effective registration statement under the
Securities Act (other than a registration statement on Form S-8 or any successor
form).
"Fully Diluted" means all outstanding shares of Common Stock and all
shares issuable in respect of securities convertible into or exchangeable for
such Common Stock, stock appreciation rights or options, warrants and other
irrevocable rights to purchase or subscribe for such Common Stock or securities
convertible into or exchangeable for such Common Stock; provided that no Person
shall be deemed to own such number of Fully Diluted shares of any Common Stock
as such Person has the right to acquire from any Person other than the Company.
"Initial Ownership" means, with respect to any Shareholder, the number
of shares of Common Stock beneficially owned (and (without duplication) which
such Persons have the right to acquire from any Person) as of the date hereof,
or in the case of any Person that shall become a party to this Agreement on a
later date, as of such date, taking into account any stock split, stock
dividend, reverse stock split or similar event.
"Merger Agreement" means the Agreement and Plan of Merger dated as of
May 4, 1997, as subsequently amended, between the Company and Quaker Holding Co.
"Other Shareholders" means all Shareholders other than the DLJ
Entities.
"Percentage Ownership" means, with respect to any Shareholder at any
time, (i) the number of shares of Fully Diluted Common Stock that such
Shareholder beneficially owns (and (without duplication) has the right to
acquire from any Person) at such time, divided by (ii) the total number of
shares of Fully Diluted Common Stock at such time.
"Permitted Transferee" means (i) in the case of an Institutional
Shareholder (a) any general or limited partner or shareholder of such
Shareholder, and any corporation, partnership or other entity that is an
Affiliate of such Shareholder (collectively, "Shareholder Affiliates"), (b) any
general partner, limited partner, employee, officer or director of such
Shareholder or a Shareholder Affiliate, or any spouse, lineal descendant,
sibling, parent, heir, executor, administrator, testamentary trustee, legatee or
beneficiary of any of the foregoing persons described in this clause (b)
(collectively, "Shareholder Associates"), and (c) any trust, the beneficiaries
of which, or any corporation, limited liability company or partnership,
stockholders, members or general or limited partners of which include only such
Shareholder, such Shareholder Affiliates or Shareholder Associates;
(ii) in the case of a Management Shareholder (a) any other Shareholder,
(b) a spouse or lineal descendant (whether natural or adopted), sibling, parent,
heir, executor, administrator, testamentary trustee, legatee or beneficiary of
any of such Management Shareholder, (c) any trust, the beneficiaries of which,
or any corporation, limited liability company or partnership, stockholders,
members or general or limited partners of which include only the Persons named
in clauses (a) or (b) or (d) any charitable remainder trust; or
(iii) in the case of any DLJ Entity (A) any other DLJ Entity, (B) any
general or limited partner of any such entity (a "DLJ Partner"), and any
corporation, partnership, Affiliated Employee Benefit Trust or other entity
which is an Affiliate of any DLJ Partner (collectively, the "DLJ Affiliates"),
(C) any managing director, general partner, director, limited partner, officer
or employee of such DLJ Entity or a DLJ Affiliate, or the heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any of the
foregoing Persons referred to in this clause (C) (collectively, "DLJ
Associates"), and (D) any trust, the beneficiaries of which, or any corporation,
limited liability company or partnership, the stockholders, members or general
or limited partners of which, include only such ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇
Associates, their spouses or their lineal descendants. The term "DLJ Entities",
to the extent such entities shall have transferred any of their Shares to
"Permitted Transferees", shall mean the DLJ Entities and the Permitted
Transferees of the DLJ Entities, taken together, and any right or action that
may be exercised or taken at the election of the DLJ Entities may be exercised
or taken at the election of the DLJ Entities and such Permitted Transferees.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Pro Rata Portion" means the number of Shares a Shareholder holds
(either Purchased Shares or non-Purchased Shares, as the case may be) multiplied
by a fraction, the numerator of which is the number of Shares to be sold by the
DLJ Entities and the Institutional Shareholders and their Permitted Transferees
in a Public Offering and the denominator of which is the total number of Shares,
on a Fully Diluted basis, held in the aggregate by the DLJ Entities and the
Institutional Shareholders and their Permitted Transferees prior to such Public
Offering.
"Public Offering" means any primary or secondary public offering of
Common Stock pursuant to an effective registration statement under the
Securities Act other than pursuant to a registration statement filed in
connection with a transaction of the type described in Rule 145 of the
Securities Act or for the purpose of issuing securities pursuant to an employee
benefit plan.
"Purchased Shares" means those Shares purchased by a Management
Shareholder on the Closing Date for cash and/or with the proceeds of a
promissory note of the type contemplated by the DecisionOne Direct Investment
Plan.
"Registrable Securities" means at any time, with respect to any
Shareholder or its Permitted Transferees, any shares of Common Stock then owned
by such Shareholder or its Permitted Transferees until (i) a registration
statement covering such securities has been declared effective by the SEC and
such securities have been disposed of pursuant to such effective
registration statement, (ii) such securities are sold under circumstances in
which all of the applicable conditions of Rule 144 (or any similar provisions
then in force) under the Securities Act are met or such securities may be sold
pursuant to Rule 144(k) or (iii) such securities are otherwise transferred, the
Company has delivered a new certificate or other evidence of ownership for such
securities not bearing the legend required pursuant to this Agreement and such
securities may be resold without subsequent registration under the Securities
Act.
"Registration Expenses" means (i) all registration and filing fees,
(ii) fees and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the securities registered), (iii) printing expenses, (iv)
internal expenses of the Company (including, without limitation, all salaries
and expenses of its officers and employees performing legal or accounting
duties), (v) reasonable fees and disbursements of counsel for the Company and
customary fees and expenses for independent certified public accountants
retained by the Company (including expenses relating to any comfort letters or
costs associated with the delivery by independent certified public accountants
of a comfort letter or comfort letters requested pursuant to Section 5.04(g)
hereof), (vi) the reasonable fees and expenses of any special experts retained
by the Company in connection with such registration, (vii) reasonable fees and
expenses of up to one counsel for the Shareholders participating in the
offering, (viii) fees and expenses in connection with any review of underwriting
arrangements by the National Association of Securities Dealers, Inc. (the
"NASD") including fees and expenses of any "qualified independent underwriter"
and (ix) fees and disbursements of underwriters customarily paid by issuers or
sellers of securities, but shall not include any underwriting fees, discounts or
commissions attributable to the sale of Registrable Securities, or any
out-of-pocket expenses (except as set forth in clause (vii) above) of the
Shareholders or any fees and expenses of underwriter's counsel.
"Restriction Termination Date" means the fourth anniversary of the
Closing Date.
"Roll-Over Option" means an option granted by the Company to a
Management Shareholder prior to the Merger which option, at the effective time
of the Merger, was converted into an option to purchase shares of Common Stock
of the surviving corporation.
"Section 4.03 Portion" means the pro rata portion of any Equity
Securities proposed to be issued by the Company with respect to which
Shareholders shall be entitled to exercise their rights under Section 4.03,
(a) in the case of any Institutional Shareholder, based upon such
Institutional Shareholder's Initial Ownership of shares of Common Stock as a
percentage of the sum of (i) the Initial Ownership of Common Stock of the
DLJ Entities and all Institutional Stockholders and (ii) the Adjusted Initial
Ownership of all Management Stockholders, or
(b) in the case of any Management Shareholder, based upon such
Management Shareholder's Adjusted Initial Ownership of shares of Common Stock as
a percentage of the sum of (i) the Initial Ownership of the DLJ Entities and the
Institutional Shareholders and (ii) the Adjusted Initial Ownership of all
Management Shareholders.
"Section 4.04 Portion" means, with respect to any Shareholder at any
time, the number of shares of common stock purchased by DLJ Entities in a
transaction subject to Section 4.04, multiplied by a fraction, the numerator of
which is (i) the number of shares of Common Stock on a Fully Diluted basis that
such Shareholder beneficially owns at such time, and the denominator of which is
(ii) the total number of shares of Common Stock on a Fully Diluted basis
beneficially owned at such time by all Other Shareholders and the DLJ Entities.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder" means each Person (other than the Company) who shall be a
party to this Agreement, whether in connection with the execution and delivery
hereof as of the date hereof, pursuant to Section 7.03 or otherwise, so long as
such Person shall beneficially own any Common Stock.
"Shares" means shares of Common Stock held by the Shareholders.
"Sprout Entities" means DLJ Capital, Sprout, Sprout CEO Fund, and their
Permitted Transferees.
"Subject Securities" means the Common Stock beneficially owned by the
Management Shareholders and Institutional Shareholders to be transferred in a
Section 4.02 Sale.
"Subscription Agreement" means the Subscription Agreement of even date
herewith among Quaker Holding Co., the DLJ Entities and the Institutional
Investors.
"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person.
"THL Entities" means THL, THL Foreign Fund, THL Co-Investors A, THL
Co-Investors B, and their Permitted Transferees.
"Tag-Along Portion" means the number of shares of Common Stock held
(or, without duplication, that such Shareholder has the right to acquire from
any Person) by the Tagging Person or the Selling Person, as the case may be,
multiplied by a fraction, the numerator of which is the number of shares of
Common Stock proposed to be sold by the Selling Person pursuant to Section 4.01,
and the denominator of which is the aggregate number of shares of Common Stock
on a Fully Diluted basis owned by all Shareholders.
"Third Party" means a prospective purchaser of Common Stock in an
arm's-length transaction from a Shareholder where such purchaser is not a
Permitted Transferee of such Shareholder.
"Underwritten Public Offering" means a firmly underwritten public
offering of Registrable Securities of the Company pursuant to an effective
registration statement under the Securities Act.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Cause 2.02
Confidential Information 6.01(b)
Demand Registration 5.01(a)
Drag-Along Rights 4.02(a)
Holders 5.01(a)(ii)
Incidental Registration 5.02(a)
Indemnified Party 5.07
Indemnifying Party 5.07
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Nominee 2.03(a)
Piggyback Registration 5.02(a)
Public Offering Limitations 3.05(a)
Records 5.04(g)
Representatives 6.01(b)
Section 4.01 Response Notice 4.01(a)
Section 4.02 Sale 4.02(a)
Section 4.02 Notice 4.02(a)
Section 4.02 Sale Price 4.02(a)
Section 4.02 Notice Period 4.02(a)
Section 4.03 Notice 4.03
Section 4.03 Portion 4.03
Section 4.04 Notice 4.04
Selling Person 4.01(a)
Selling Shareholder 5.01(a)
Shareholder 7.03
Tag-Along Notice 4.01(a)
Tag-Along Notice Period 4.01(a)
Tag-Along Offer 4.01(a)
Tag-Along Right 4.01(a)
Tag-Along Sale 4.01(a)
Tagging Person 4.01(a)
Transfer 3.01(a)
Trigger Date 6.05
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
SECTION 2.01. Composition of the Board. The Board shall consist of
seven members, of whom four shall be nominated by DLJMB, two shall be nominated
by DLJMB and shall be individuals which are not "Affiliates" or "Associates" (as
those terms are used within the meaning of Rule 12b-2 of the General Rules and
Regulations under the Exchange Act) of any Shareholder or its Affiliates, and
one shall be nominated by the Management Shareholders. Each Shareholder entitled
to vote for the election of directors to the Board agrees that it will vote its
shares of Common Stock or execute consents, as the case may be, and take all
other necessary action (including causing the Company to call a special meeting
of shareholders) in order to ensure that the composition of the Board is as set
forth in this Section 2.01; provided that, no Shareholder shall be required to
vote for another Shareholder's nominee(s) if the number of shares of Common
Stock held by the Shareholder or group of Shareholders, as applicable, making
the nomination (or, in the case of a nomination by DLJMB, of the DLJ Entities)
is, at the close of business on the day preceding such vote or execution of
consents, less than 10% of such Shareholder's or group of Shareholders' (or the
DLJ Entities'), as applicable, Initial Ownership of Common Stock on a Fully
Diluted basis.
SECTION 2.02. Removal. Each Shareholder agrees that if, at any time, it
is then entitled to vote for the removal of directors of the Company, it will
not vote any of its shares of Common Stock in favor of the removal of any
director who shall have been designated or nominated pursuant to Section 2.01
unless such removal shall be for Cause or the Person(s) entitled to designate or
nominate such director shall have consented to such removal in writing, provided
that if the Persons entitled to designate or nominate any director pursuant to
Section 2.01 shall request the removal, with or without Cause, of such director
in writing, such Shareholder shall vote its shares of Common Stock in favor of
such removal.
Removal for "Cause" shall mean removal of a director because of such director's
(a) willful and continued failure substantially to perform his duties with the
Company in his established position, (b) willful conduct which is injurious to
the Company or any of its Subsidiaries, monetarily or otherwise, (c) conviction
for, or guilty plea to, a felony or a crime involving moral turpitude, or (d)
abuse of illegal drugs or other controlled substances or habitual intoxication.
SECTION 2.03. Vacancies. If, as a result of death, disability, retirement,
resignation, removal (with or without Cause) or otherwise, there shall exist or
occur any vacancy on the Board:
(a) The Shareholder(s) entitled under Section 2.01 to nominate such
director whose death, disability, retirement, resignation or removal resulted in
such vacancy, may, subject to the provisions of Section 2.01, nominate another
individual (the "Nominee") to fill such vacancy and serve as a director of the
Company; and
(b) each Shareholder then entitled to vote for the election of the
Nominee as a director of the Company agrees that it will vote its shares of
Common Stock, or execute a written consent, as the case may be, in order to
ensure that the Nominee be elected to the Board; provided that, no Shareholder
shall be required to vote for another party's Nominee(s) if the Percentage
Ownership of the Shareholder or group of Shareholders, as applicable, making the
nomination (or, in the case of a nomination by DLJMB, of the DLJ Entities), at
the close of business of the day preceding such vote or execution of consents,
is less than 10% on a Fully Diluted basis of such Shareholder's or group of
Shareholders' (or the DLJ Entities'), as applicable, Initial Ownership of Common
Stock.
SECTION 2.04. Action by the Board. (a) A quorum of the Board shall
consist initially of four directors; provided that DLJMB shall have the right,
in its sole discretion, until such time as the Percentage Ownership of the DLJ
Entities is less than 10% on a Fully Diluted basis of the DLJ Entities' Initial
Ownership of Common Stock, to increase or decrease the number of directors
necessary to constitute a quorum.
(b) All actions of the Board shall require the affirmative vote of at
least a majority of the directors at a duly convened meeting of the Board at
which a quorum is present or the unanimous written consent of the Board;
provided that, in the event there is a vacancy on the Board and an individual
has been nominated to fill such vacancy, the first order of business shall be to
fill such vacancy.
SECTION 2.05. Conflicting Charter or Bylaw Provision. Each Shareholder
shall vote its shares of Common Stock, and shall take all other actions
reasonably necessary, to ensure that the Company's certificate of incorporation
and bylaws copies of which are attached hereto as Exhibits A and B) facilitate
and do not at any time conflict with any provision of this Agreement.
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General. (a) Each Shareholder understands and agrees that
the Common Stock purchased pursuant to the Subscription Agreement or the
DecisionOne Direct Investment Program have not been registered under the
Securities Act and are restricted securities. Each Shareholder agrees that it
will not, directly or indirectly, sell, assign, transfer, grant a participation
in, pledge or otherwise dispose of ("transfer") any Common Stock (or solicit any
offers to buy or otherwise acquire, or take a pledge of any Common Stock) except
in compliance with the Securities Act and the terms and conditions of this
Agreement.
(b) Any attempt to transfer any Common Stock not in compliance with
this Agreement shall be null and void and the Company shall not, and shall cause
any transfer agent not to, give any effect in the Company's stock records to
such attempted transfer.
SECTION 3.02. Legends. (a) In addition to any other legend that may be
required, each certificate for shares of Common Stock that is issued to any
Shareholder shall bear a legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO ADDITIONAL RESTRICTIONS
ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT DATED AS OF AUGUST 7, 1997,
COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM DECISIONONE HOLDINGS CORP. OR
ANY SUCCESSOR THERETO."
(b) If any Common Stock shall cease to be Registrable Securities under
clause (i) or clause (ii) of the definition thereof, the Company shall, upon the
written request of the holder thereof, issue to such holder a new certificate
evidencing such shares without the first sentence of the legend required by
Section 3.02(a) endorsed thereon. If any Common Stock cease to be subject to any
and all restrictions on transfer set forth in this Agreement, the Company shall,
upon the written request of the holder thereof, issue to such holder a new
certificate evidencing such Common Stock without the second sentence of the
legend required by Section 3.02(a) endorsed thereon.
SECTION 3.03. Permitted Transferees. Notwithstanding anything in this
Agreement to the contrary, any Shareholder may at any time transfer any or all
of its Common Stock to one or more of its Permitted Transferees without the
consent of the Board or any other Shareholder or group of Shareholders and
without compliance with Sections 3.04, 3.05 and 4.01 so long as (a) such
Permitted Transferee shall have agreed in writing to be bound by the terms of
this Agreement and (b) the transfer to such Permitted Transferee is not in
violation of applicable federal or state securities laws.
SECTION 3.04. Restrictions on Transfers by Institutional Shareholders.
(a) Except as provided in Section 3.03, each Institutional Shareholder and each
Permitted Transferee of such Institutional Shareholder may transfer its Common
Stock only as follows:
(i) in a transfer made in compliance with Section 4.01 or 4.02;
(ii) in a Public Offering in connection with the exercise of its
rights under Article 5 hereof; or
(iii) following the earlier to occur of (i) the date on which the
Percentage Ownership of such Institutional Shareholder is less than 25%
of its Initial Ownership of Common Stock and (ii) the seventh
anniversary of the Closing Date, to any Person other than any Adverse
Person.
(b) The restrictions set forth in Section 3.04(a)(i) and (a)(ii) shall
terminate at such time as aggregate Percentage Ownership of the DLJ Entities and
their Permitted Transferees is equal to or less than 50% of the aggregate
Initial Ownership of Common Stock of DLJ Entities.
SECTION 3.05. Restrictions on Transfers by Management Shareholders.
(a) Except as provided in Section 3.03, each Management Shareholder and each
Permitted Transferee of such Management Shareholder may transfer its Common
Stock only as follows:
(i) in a transfer made in compliance with Section 4.01 or 4.02;
(ii) subject to the Public Offering Limitations (as defined below), in
a Public Offering in connection with the exercise of its rights under
Article 5 hereof;
(iii) 180 days following a Public Offering, to any Third Party, in a
transfer made in compliance with Rule 144 promulgated under the
Securities Act; provided, however, that until the Restriction
Termination Date, the Percentage Ownership of such Management
Shareholder as a result of such transfer shall be equal to or exceed
the greater of (x) 50% of such Management Shareholder's Initial
Ownership of Common Stock and
(y) a percentage of such Management Shareholder's Initial Ownership
equal to the Remaining Percentage. For purposes of this Section
3.05(a)(iii), "Remaining Percentage" means the Percentage Ownership of
the DLJ Entities and the Institutional Investors immediately prior to
such proposed transfer pursuant to this Section 3.05(a)(iii) calculated
by subtracting from the Initial Ownership of the DLJ Entities and the
Institutional Investors the number of shares of Common Stock
theretofore transferred by the DLJ Entities and the Institutional
Investors; or
(iv) following the Restriction Termination Date, to any Third Party
other than an Adverse Person for consideration consisting solely of cash,
provided, however, that the number of Shares transferred by such Management
Shareholder pursuant to this Section 3.05(a)(iv) in any twelve-month period
shall not exceed 20% of such Management Shareholder's Percentage Ownership at
the beginning of such twelve month period.
For purposes of this Agreement, "Public Offering Limitations" means (A)
except as set forth in the proviso at the end of this paragraph, no Management
Shareholder shall be permitted to exercise its rights under Section 5.02 hereof
(x) with respect to the First Public Offering and (y) until such time as the
Percentage Ownership of the DLJ Entities and the Institutional Shareholders and
their Permitted Transferees shall be less than 50% of their aggregate Initial
Ownership of Common Stock and (B) in each Public Offering following the First
Public Offering, such Management Shareholder shall be entitled to transfer a
number of Shares not exceeding such Management Shareholder's Pro Rata Portion of
non- Purchased Shares; provided, however, that notwithstanding the restrictions
set forth in clauses (A) and (B), each Management Shareholder shall be permitted
to exercise its rights pursuant to Section 5.02 hereof in respect of such
Management Shareholder's Pro Rata Portion of its Purchased Shares in any Public
Offering and transfer such Purchased Shares pursuant to Section 3.05(a)(ii).
(b) The provisions of Section 3.05(a) shall terminate upon the
earliest to occur of (i) one or more Public Offerings of Shares yielding
aggregate gross proceeds of at least $100,000,000, (ii) the fourth anniversary
of the Closing Date and (iii) a Change of Control. Notwithstanding the foregoing
sentence, the provisions of Section 3.05(a) shall not terminate with respect to
any Management Shareholder's Shares which shall have been pledged to the Company
as security in connection with any indebtedness for borrowed money owed by such
Management Shareholder to the Company unless the proceeds from the sale of such
Shares, net of any taxes due on such proceeds, are applied to repay the such
indebtedness in full.
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
SECTION 4.01. Rights to Participate in Transfer. (a) If DLJ Entities
(the "Selling Person") propose to transfer (other than transfers of shares of
Common Stock (i) in a Public Offering, (ii) to any Permitted Transferee of any
of the DLJ Entities or (iii) up to 2.5% in the aggregate of the securities of
such class outstanding on the date of the first transfer of any shares of Common
Stock by any of the DLJ Entities (such percentage, the "Free Percentage")), in a
transaction otherwise permitted by Article 3 hereof, (a "Tag-Along Sale"), the
Other Shareholders may, at their option, elect to exercise their rights under
this Section 4.01 (each such Shareholder, a "Tagging Person"). In the event of
such a proposed transfer, the Selling Person shall provide each Other
Shareholder written notice of the terms and conditions of such proposed transfer
("Tag-Along Notice") and offer each Tagging Person the opportunity to
participate in such sale. The Tag-Along Notice shall identify the number of
shares of Common Stock subject to the offer ("Tag-Along Offer"), the cash price
at which the transfer is proposed to be made, and all other material terms and
conditions of the Tag-Along Offer, including the form of the proposed agreement,
if any. From the date of the Tag-Along Notice, each Tagging Person shall have
the right (a "Tag- Along Right"), exercisable by written notice ("Section 4.01
Response Notice") given to the Selling Person within 5 Business Days (the
"Tag-Along Notice Period"), to request that the Selling Person include in the
proposed transfer the number of Shares held by such Tagging Person as is
specified in such notice; provided that if the aggregate number of Shares
proposed to be sold by the Selling Person and all Tagging Persons in such
transaction exceeds the number of Shares which can be sold on the terms and
conditions set forth in the Tag-Along Notice, then only the Tag-Along Portion of
Shares of the Selling Person and each Tagging Person shall be sold pursuant to
the Tag-Along Offer. In the event the DLJ Entities shall propose to transfer a
number of Shares in excess of the Free Percentage, the Tag-Along Portion shall
be calculated with respect to all of the Shares proposed to be transferred by
the DLJ Entities. If the Tagging Persons exercise their Tag-Along Rights
hereunder, each Tagging Person shall deliver, together with its Section 4.01
Response Notice, to the Selling Person the certificate or certificates
representing the Shares of such Tagging Person to be included in the transfer,
together with a limited power-of-attorney authorizing the Selling Person to
transfer such Shares on the terms set forth in the Tag-Along Notice. It is
understood that to the extent the DLJ Entities can do so without affecting the
other terms on which the Tag-Along Sale is proposed to be made, the DLJ Entities
will seek to exclude from the terms of such Tag-Along Sale any material
restrictions on the ability, following such Tag-Along Sale, of any Tagging
Person to conduct its business in a manner consistent with past practice.
Delivery of such certificate or certificates representing the Shares to be
transferred and the limited power-of-attorney authorizing the Selling Person to
transfer such Shares shall constitute an irrevocable acceptance of the Tag-Along
Offer by such Tagging Persons. If, at the end of a 120 day period after such
delivery, the Selling
Person has not completed the transfer of all such Shares on substantially the
same terms and conditions set forth in the Tag-Along Notice, the Selling Person
shall return to each Tagging Person the limited power-of-attorney (and all
copies thereof) together with all certificates representing the Shares which
such Tagging Person delivered for transfer pursuant to this Section 4.01.
(b) Concurrently with the consummation of the Tag-Along Sale, the
Selling Person shall notify the Tagging Persons thereof, shall remit to the
Tagging Persons the total consideration (by bank or certified check) for the
Shares of the Tagging Persons transferred pursuant thereto, and shall, promptly
after the consummation of such Tag-Along Sale furnish such other evidence of the
completion and time of completion of such transfer and the terms thereof as may
be reasonably requested by the Tagging Persons.
(c) If at the termination of the Tag-Along Notice Period any Tagging
Person shall not have elected to participate in the Tag-Along Sale, such Tagging
Person will be deemed to have waived its rights under Section 4.01(a) with
respect to the transfer of its securities pursuant to such Tag-Along Sale.
(d) If any Tagging Person declines to exercise its Tag-Along Rights or
elects to exercise its Tag-Along Rights with respect to less than such Tagging
Person's Tag-Along Portion, the DLJ Entities shall be entitled to transfer,
pursuant to the Tag-Along Offer, a number of Shares held by the DLJ Entities
equal to the number of Shares constituting the portion of such Tagging Person's
Tag-Along Portion with respect to which Tag-Along Rights were not exercised.
(e) The DLJ Entities and any Tagging Person who exercises the TagAlong
Rights pursuant to this Section 4.01 may sell the Shares subject to the Tag-
Along Offer on the terms and conditions set forth in the Tag-Along Notice
(provided, however, that the cash price payable in any such sale may exceed the
cash price specified in the Tag-Along Notice by up to 10%) within 120 days of
the date on which Tag-Along Rights shall have been waived, exercised or expire.
SECTION 4.02. Right to Compel Participation in Certain Transfers. (a)
If (i) the DLJ Entities propose to transfer not less than 50% of their Initial
Ownership of Common Stock to a Third Party in a bona fide sale, (ii) the DLJ
Entities propose a transfer in which the Shares to be transferred by the DLJ
Entities, the Institutional Shareholders and their Permitted Transferees
constitute more than 50% of the outstanding shares of Common Stock (a "Section
4.02 Sale"), the DLJ Entities may at their option require all Other Shareholders
to sell the Subject Securities ("Drag-Along Rights") then held by every Other
Shareholder, and (subject to and at the closing of the Section 4.02 Sale) to
exercise all, but not less than all, of the options held by every Other
Shareholder and to sell all of the shares of Common Stock received upon such
exercise to such Third Party, for the same consideration per share of Common
Stock and otherwise on the same terms and conditions as the DLJ Entities;
provided that any
Other Shareholder who holds options the exercise price per share of which is
greater than the per share price at which the Shares are to be sold to the Third
Party may, if required by the DLJ Entities to exercise such options, in place of
such exercise, submit to irrevocable cancellation thereof without any liability
for payment of any exercise price with respect thereto. In the event the Section
4.02 Sale is not consummated with respect to any shares acquired upon exercise
of such options, or the Section 4.02 Sale is not consummated, such options shall
be deemed not to have been exercised or cancelled, as applicable. DLJMB shall
provide written notice of such Section 4.02 Sale to the Other Shareholders (a
"Section 4.02 Notice") not later than the 15th day prior to the proposed Section
4.02 Sale. The Section 4.02 Notice shall identify the transferee, the number of
Subject Securities, the consideration for which a transfer is proposed to be
made (the "Section 4.02 Sale Price") and all other material terms and conditions
of the Section 4.02 Sale. The number of shares of Common Stock to be sold by
each Other Shareholder will be the Drag-Along Portion of the shares of Common
Stock that such Other Shareholder owns. Subject to Section 4.02(d), each Other
Shareholder shall be required to participate in the Section 4.02 Sale on the
terms and conditions set forth in the Section 4.02 Notice and to tender all its
Subject Securities as set forth below. It is understood that to the extent the
DLJ Entities can do so without affecting the other terms on which the Section
4.02 Sale is proposed to be made, the DLJ Entities will seek to exclude from the
terms of such Section 4.02 Sale any material restrictions on the ability,
following such Section 4.02 Sale, of any Other Shareholder to conduct its
business in a manner consistent with past practice. The price payable in such
transfer shall be the Section 4.02 Sale Price. Not later than the 10th day
following the date of the Section 4.02 Notice (the "Section 4.02 Notice
Period"), each of the Other Shareholders shall deliver to a representative of
DLJMB designated in the Section 4.02 Notice certificates representing all
Subject Securities held by such Other Shareholder, duly endorsed, together with
all other documents required to be executed in connection with such Section 4.02
Sale or, if such delivery is not permitted by applicable law, an unconditional
agreement to deliver such Subject Securities pursuant to this Section 4.02 at
the closing for such Section 4.02 Sale against delivery to such Other
Shareholder of the consideration therefor. If an Other Shareholder should fail
to deliver such certificates to DLJMB, the Company shall cause the books and
records of the Company to show that such Subject Securities are bound by the
provisions of this Section 4.02 and that such Subject Securities shall be
transferred to the purchaser of the Subject Securities immediately upon
surrender for transfer by the holder thereof.
(b) The DLJ Entities shall have a period of 90 days from the date of
receipt of the Section 4.02 Notice to consummate the Section 4.02 Sale on the
terms and conditions set forth in such Section 4.02 Sale Notice. If the Section
4.02 Sale shall not have been consummated during such period, DLJMB shall return
to each of the Other Shareholders all certificates representing Shares that such
Other Shareholder delivered for transfer pursuant hereto, together with any
documents in the possession of DLJMB executed by the Other Shareholder in
connection with such proposed transfer, and all the restrictions on transfer
contained in this Agreement or otherwise applicable at such time with respect to
Common Stock owned by the Other Shareholders shall again be in effect.
(c) Concurrently with the consummation of the transfer of Shares
pursuant to this Section 4.02, DLJMB shall give notice thereof to all
Shareholders, shall remit to each of the Shareholders who have surrendered their
certificates the total consideration (by bank or certified check) for the Shares
transferred pursuant hereto and shall furnish such other evidence of the
completion and time of completion of such transfer and the terms thereof as may
be reasonably requested by such Shareholders.
(d) Notwithstanding any provision of this Agreement to the contrary,
in the event the terms on which a Section 4.02 Sale is proposed to be made shall
include a provision which materially and adversely affects the ability of any
Other Shareholder to compete in any line of business or geographic area, such
Other Shareholder shall not be required to participate in the Section 4.02 Sale
on the terms and conditions set forth in the Section 4.02 Notice. In the event
any Shareholder shall elect, pursuant to the preceding sentence, not to
participate in the Section 4.02 Sale, the DLJ Entities shall have the right to
purchase, and such Shareholder shall be obligated to sell to the DLJ Entities,
such Shareholder's Subject Securities, at the Section 4.02 Sale Price and on
substantially the same terms (other than any such non-compete provision), not
later than immediately prior to the consummation of the Section 4.02 Sale.
SECTION 4.03. Preemptive Rights. (a) The Company shall provide each
Shareholder with a written notice (a "Section 4.03 Notice") of any proposed
issuance by the Company of Equity Securities at least 10 days prior to the
proposed issuance date. Such notice shall specify the price at which the Equity
Securities are to be issued and the other material terms of the issuance. In the
event the DLJ Entities propose to purchase any such Equity Securities from the
Company, each Other Shareholder shall be entitled to purchase, at the price and
on the terms at which the DLJ Entities propose to purchase such Equity
Securities and specified in such Section 4.03 Notice, such Shareholder's Section
4.03 Portion of the Equity Securities proposed to be issued. A Shareholder may
exercise its rights under this Section 4.03 by delivering written notice of its
election to purchase Equity Securities to the Company, DLJMB and each Other
Shareholder within 5 days of receipt of the Section 4.03 Notice. A delivery of
such a written notice (which notice shall specify the number of shares (or
amount) of Equity Securities to be purchased by the Shareholder submitting such
notice) by such Shareholder shall constitute a binding agreement of such
Shareholder to purchase, subject to the purchase by the DLJ Entities of their
portion of such Equity Securities, at the price and on the terms specified in
the Section 4.03 Notice, the number of shares (or amount) of Equity Securities
specified in such Shareholder's written notice. In the event the Equity
Securities proposed to be issued by the Company are not shares of Common Stock,
it shall be a condition to
the consummation of the purchase of such Equity Securities pursuant to this
Section 4.03 by any Shareholder that such Shareholder shall execute an amendment
of this Agreement on the terms consistent with this Agreement reasonably
satisfactory to the Company and the DLJ Entities.
(b) In the event any Other Shareholder declines to exercise its
preemptive rights under this Section 4.03 or elects to exercise such rights with
respect to less than such Shareholder's Section 4.03 Portion, the DLJ Entities
shall be entitled to purchase from the Company the number of Equity Securities
constituting the Section 4.03 Portion with respect to which such Other
Shareholder shall not have exercised its preemptive rights.
(c) In the case of any issuance of Equity Securities, the Company
shall have 90 days from the date of the Section 4.03 Notice to consummate the
proposed issuance of any or all of such Equity Securities which the Shareholders
have not elected to purchase at the price and upon terms that are not materially
less favorable to the Company than those specified in the Section 4.03 Notice.
At the consummation of such issuance, the Company shall issue certificates
representing the Equity Securities to be purchased by each Shareholder
exercising preemptive rights pursuant to this Section 4.03 registered in the
name of such Shareholder, against payment by such Shareholder of the purchase
price for such Equity Securities. If the Company proposes to issue Equity
Securities after such 90-day period, it shall again comply with the procedures
set forth in this Section.
(d) Notwithstanding the foregoing, no Shareholder shall be entitled to
purchase Equity Securities as contemplated by this Section 4.03 in connection
with issuances of Equity Securities (i) to employees of the Company or any
Subsidiary pursuant to employee benefit plans or arrangements approved by the
Board (including upon the exercise of employee stock options), (ii) in
connection with any bona fide, arm's-length restructuring of outstanding debt of
the Company or any Subsidiary, or (iii) in connection with any bona fide,
arm'slength direct or indirect merger, acquisition or similar transaction. The
Company shall not be under any obligation to consummate any proposed issuance of
Equity Securities, regardless of whether it shall have delivered a Section 4.03
Notice in respect of such proposed issuance.
(e) The Company will use its reasonable best efforts to provide the
Section 4.03 Notice at least 15 Business Days prior to any proposed issuance of
Equity Securities. In the event it is impracticable to provide the Section 4.03
Notice at least 15 Business Days prior to such issuance, any Shareholder may
offer to finance or arrange to finance the purchase by any other Shareholder of
such other Shareholder's Section 4.03 Portion and such financing or arranging
Shareholder shall be entitled to receive as compensation for such services
reasonable and customary fees and expenses. No Shareholder shall be under any
obligation to provide or arrange such financing for any other Shareholder.
SECTION 4.04. Certain Other Purchases of Common Stock. In the event, at
any time prior to the Trigger Date, the DLJ Entities shall acquire any shares of
Common Stock from any Person other than the Shareholders, the DLJ Entities shall
deliver, within five Business Days of the date of such acquisition, a notice to
each Other Shareholder (a "Section 4.04 Notice") specifying the number of shares
of Common Stock acquired and the weighted average of price per share paid by the
DLJ Entities. Such Section 4.04 Notice shall constitute an offer to each such
Other Shareholder to purchase such Shareholder's Section 4.04 Portion of the
number of shares of Common Stock acquired by the DLJ Entities. A Shareholder may
exercise its rights under this Section 4.04 by delivering written notice of its
election to purchase its Section 4.04 Portion within 10 days of receipt of the
Section 4.04 Notice. A delivery of such written notice (which shall specify the
number of shares of Common Stock to be purchased by the Shareholder submitting
such notice) by such Shareholder shall constitute a binding agreement of such
Shareholder to purchase, at the price and on the terms specified in the Section
4.04 Notice, the number of shares of Common Stock specified in such notice. At
the consummation of the transfer of the shares of Common Stock purchased by the
DLJ Entities to any Shareholder that shall have exercised its rights hereunder,
the DLJ Entities shall deliver to such Shareholder certificates representing the
shares of Common Stock to be purchased against payment by such Shareholder of
the purchase price for such shares of Common Stock.
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. Demand Registration. (a) If the Company shall receive a
written request by the DLJ Entities or their Permitted Transferees (any such
requesting Person, a "Selling Shareholder") that the Company effect the
registration under the Securities Act of all or a portion of such Selling
Shareholder's Registrable Securities, and specifying the intended method of
disposition thereof, then the Company shall promptly give written notice of such
requested registration (a "Demand Registration") at least 5 days prior to the
anticipated filing date of the registration statement relating to such Demand
Registration to the Other Shareholders and thereupon will use its best efforts
to effect, as expeditiously as possible, the registration under the Securities
Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Selling Shareholders, then held by the
Selling Shareholders; and
(ii) subject to the restrictions set forth in Section 5.02, all other
Registrable Securities of the same type as that to which the request by
the Selling Shareholders relates which any Other Shareholder entitled
to request the Company to effect a Piggyback Registration (as such term
is
defined in Section 5.02) pursuant to Section 5.02 (all such
Shareholders, together with the Selling Shareholders, the "Holders")
has requested the Company to register by written request received by
the Company within 2 days (one of which shall be a Business Day) after
the receipt by such Holders of such written notice given by the
Company,
all to the extent necessary to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities so to be
registered; provided that, subject to Section 5.01(d) hereof, the Company shall
not be obligated to effect more than six Demand Registrations for the DLJ
Entities; and provided further that the Company shall not be obligated to effect
a Demand Registration unless the aggregate proceeds expected to be received from
the sale of the Common Stock requested to be included in such Demand
Registration, in the reasonable opinion of DLJMB exercised in good faith, equals
or exceeds (x) $50,000,000 if such Demand Registration would constitute the
First Public Offering, or (y) $10,000,000 in all other cases. In no event will
the Company be required to effect more than one Demand Registration within any
four-month period.
(b) Promptly after the expiration of the 2-day period referred to in
Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be
included in the Demand Registration of the other Holders and the number of
Registrable Securities requested to be included therein. The Selling
Shareholders requesting a registration under Section 5.01(a) may, at any time
prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other
Holders, by providing a written notice to the Company revoking such request, in
which case such request, so revoked, shall be considered a Demand Registration
unless such revocation arose out of the fault of the Company or unless the
participating Shareholders reimburse the Company for all costs incurred by the
Company in connection with such registration, in which case such request shall
not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with
any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not
be deemed to have been effected (i) unless the registration statement relating
thereto (A) has become effective under the Securities Act and (B) has remained
effective for a period of at least 180 days (or such shorter period in which all
Registrable Securities of the Holders included in such registration have
actually been sold thereunder); provided that if after any registration
statement requested pursuant to this Section 5.01 becomes effective (x) such
registration statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or other governmental agency or court and (y)
less than 75% of the Registrable Securities included in such registration
statement has been sold thereunder, such registration statement shall not be
considered a Demand Registration, or (ii) if the
Maximum Offering Size (as defined below) is reduced in accordance with Section
5.01(e) such that less than 66 2/3% of the Registrable Securities of the Selling
Shareholders sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering
and the managing underwriter shall advise the Company and the Selling
Shareholders that, in its view, (i) the number of shares of Registrable
Securities requested to be included in such registration (including any
securities which the Company proposes to be included which are not Registrable
Securities) or (ii) the inclusion of some or all of the shares of Registrable
Securities owned by the Holders, in any such case, exceeds the largest number of
shares which can be sold without having an adverse effect on such offering,
including the price at which such shares can be sold (the "Maximum Offering
Size"), the Company will include in such registration, in the priority listed
below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be
registered by the parties requesting such Demand Registration
and all Registrable Securities requested to be included in
such registration by any other Holder (allocated, if necessary
for the offering not to exceed the Maximum Offering Size, pro
rata among such Holders on the basis of the relative number of
Registrable Securities so requested to be included in such
registration); and
(B) second, any securities proposed to be registered by
the Company.
(f) Upon written notice to each Selling Shareholder, the Company may
postpone effecting a registration pursuant to this Section 5.01 on one occasion
during any period of six consecutive months for a reasonable time specified in
the notice but not exceeding 90 days (which period may not be extended or
renewed), if (1) an investment banking firm of recognized national standing
shall advise the Company and the Selling Shareholders in writing that effecting
the registration would materially and adversely affect an offering of securities
of such Company the preparation of which had then been commenced or (2) the
Company is in possession of material non-public information the disclosure of
which during the period specified in such notice the Company believes, in its
reasonable judgment, would not be in the best interests of the Company.
(g) After the Company has effected two Demand Registrations pursuant
to this Section 5.01 of Common Stock, the Other Shareholders, upon request of
the Other Shareholders owning a majority of the Shares acquired by the Other
Shareholders on Closing Date, may request that the Company register Common Stock
which are Registrable Securities then owned by such Other Shareholders. In no
event will the Company be required to effect more than one such Demand
Registration. The provisions of this Article 5 shall apply, mutatis mutandis,
to any such Demand Registration.
SECTION 5.02. Piggyback Registration. (a) If the Company proposes to
register any of its Common Stock under the Securities Act (including pursuant to
a Demand Registration), whether or not for sale for its own account, it will
each such time, subject to the provisions of Section 5.02(b) hereof, give prompt
written notice at least 5 days prior to the anticipated filing date of the
registration statement relating to such registration to all Shareholders and
their respective Permitted Transferees (or, in the case of a Demand Registration
requested by the DLJ Entities, to all Other Shareholders), which notice shall
set forth such Shareholders' rights under this Section 5.02 and shall offer all
Shareholders the opportunity to include in such registration statement such
number of shares of Common Stock as each such Shareholder may request (a
"Piggyback Registration"). Upon the written request of any such Shareholder made
within 2 days (one of which shall be a Business Day) after the receipt of notice
from the Company (which request shall specify the number of shares of Common
Stock intended to be disposed of by such Shareholder), the Company will use its
reasonable best efforts to effect the registration under the Securities Act of
all shares of Common Stock which the Company has been so requested to register
by such Shareholders, to the extent requisite to permit the disposition of the
shares of Common Stock so to be registered; provided that (i) if such
registration involves an Underwritten Public Offering, all such Shareholders
requesting to be included in the Company's registration must sell their
Registrable Securities to the underwriters selected as provided in Section
5.04(f) on the same terms and conditions as apply to the Company or the Selling
Shareholder, as applicable, and (ii) if, at any time after giving written notice
of its intention to register any stock pursuant to this Section 5.02(a) and
prior to the effective date of the registration statement filed in connection
with such registration, the Company shall determine for any reason not to
register such stock, the Company shall give written notice to all such
Shareholders and, thereupon, shall be relieved of its obligation to register any
Registrable Securities in connection with such registration; and provided
further that the right of the Management Shareholders and their Permitted
Transferees to request a Piggyback Registration will be subject to the Public
Offering Limitations. No registration effected under this Section 5.02 shall
relieve the Company of its obligations to effect a Demand Registration to the
extent required by Section 5.01 hereof. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 5.02.
(b) If a registration pursuant to this Section 5.02 involves an
Underwritten Public Offering (other than in the case of an Underwritten Public
Offering requested by the DLJ Entities in a Demand Registration, in which case
the provisions with respect to priority of inclusion in such offering set forth
in Section 5.01(e) shall apply) and the managing underwriter advises the Company
that, in its view, the number of shares of Common Stock which the Company and
the selling Shareholders intend to include in such registration exceeds the
Maximum Offering Size, the Company will include in such registration, in the
following priority, up to the Maximum Offering Size:
(i) first, so much of the Common Stock proposed to be registered for
the account of the Company as would not cause the offering to exceed
the Maximum Offering Size; and
(ii) second, all Registrable Securities requested to be included in
such registration by any Shareholder pursuant to Section 5.02
(allocated, if necessary for the offering not to exceed the Maximum
Offering Size, pro rata among such Shareholders on the basis of the
relative number of shares of Registrable Securities so requested to be
included in such registration).
SECTION 5.03. Holdback Agreements. With respect to each and every
firmly underwritten Public Offering, each Shareholder agrees and their Permitted
Transferees will agree not to offer or sell any shares of Common Stock (except
for shares of Common Stock, if any, sold in that Public Offering) during the 14
days prior to the effective date of the applicable registration statement for a
public offering of shares of Common Stock (except as part of such registration)
and during the period after such effective date equal to the lesser of: (i) 180
days or (ii) any such shorter period as the Company and the lead managing
underwriter of an Underwritten Public Offering agree.
SECTION 5.04. Registration Procedures. Whenever Shareholders request
that any Registrable Securities be registered pursuant to Section 5.01 or 5.02
hereof, the Company will, subject to the provisions of such Sections, use its
reasonable best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof as quickly as practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and file
with the SEC a registration statement on any form selected by counsel for the
Company and which form shall be available for the sale of the Registrable
Securities to be registered thereunder in accordance with the intended method of
distribution thereof, and use its reasonable best efforts to cause such filed
registration statement to become and remain effective for a period of not less
than 180 days (or such shorter period in which all of the Registrable Securities
of the Holders included in such registration statement shall have actually been
sold thereunder).
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to each
Shareholder and each underwriter, if any, of the Registrable Securities covered
by such registration statement copies of such registration statement as proposed
to be filed, and thereafter the Company will furnish to such Shareholder and
underwriter, if any, such number of copies of such registration statement, each
amendment and supplement thereto (in each case including all exhibits thereto
and documents incorporated by reference therein), the prospectus included in
such registration statement (including each preliminary prospectus) and such
other documents as such Shareholder or underwriter may reasonably request in
order to facilitate the disposition of the Registrable Securities owned by such
Shareholder. Each Shareholder shall have the right to request that the Company
modify any information contained in such registration statement, amendment and
supplement thereto pertaining to such Shareholder and the Company shall use its
reasonable best efforts to comply with such request, provided, however, that the
Company shall not have any obligation to so modify any information if so doing
would cause the prospectus to contain an untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) After the filing of the registration statement, the Company will
(i) cause the related prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, (ii) comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or supplement to such prospectus and (iii) promptly
notify each Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC or any
state securities commission under state blue sky laws and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
(d) The Company will use its reasonable best efforts to (i) register
or qualify the Registrable Securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions in the United
States as any Shareholder holding such Registrable Securities reasonably (in
light of such Shareholder's intended plan of distribution) requests and (ii)
cause such Registrable Securities to be registered with or approved by such
other governmental agencies or authorities as may be necessary by virtue of the
business and operations of the Company and do any and all other acts and things
that may be reasonably necessary or advisable to enable such Shareholder to
consummate the disposition of the Registrable Securities owned by such
Shareholder; provided that the Company will not be required to (A) qualify
generally to do business in any jurisdiction where it would not otherwise be
required to qualify but for this paragraph (d), (B) subject itself to taxation
in any such jurisdiction or (C) consent to general service of process in any
such jurisdiction.
(e) The Company will immediately notify each Shareholder holding such
Registrable Securities covered by such registration statement, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading and promptly prepare and make available to each such Shareholder and
file with the SEC any such supplement or amendment.
(f) In connection with (i) any Demand Registration requested by the
DLJ Entities or their Permitted Transferees or (ii) any registration of
Registrable Securities pursuant to this Article 5 the Company shall appoint the
underwriter or underwriters chosen by DLJMB. The Company will enter into
customary agreements (including an underwriting agreement in customary form) and
take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities, including the
engagement of a "qualified independent underwriter" in connection with the
qualification of the underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form and substance
reasonably satisfactory to the Company, the Company will make available for
inspection by any Shareholder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Company
pursuant to this Section 5.04 and any attorney, accountant or other professional
retained by any such Shareholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company (collectively, the "Records") as shall be
reasonably requested by any such Person, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement.
(h) The Company will furnish to each such Shareholder and to each such
underwriter, if any, a signed counterpart, addressed to such underwriter and the
participating Shareholders, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such matters
of the type customarily covered by opinions or comfort letters, as the case may
be, as a majority of such Shareholders or the managing underwriter therefor
reasonably requests.
(i) The Company will otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC and the relevant
state blue sky commissions, and make available to its securityholders, as soon
as reasonably practicable, an earnings statement covering a period of 12 months,
beginning within three months after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act.
(j) The Company may require each such Shareholder to promptly furnish
in writing to the Company information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required in connection with such
registration.
(k) Each such Shareholder agrees that, upon receipt of any notice from
the Company of the happening of any event of the kind described in Section
5.04(e) hereof, such Shareholder will forthwith discontinue disposition of
Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Shareholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5.04(e) hereof, and,
if so directed by the Company, such Shareholder will deliver to the Company all
copies, other than any permanent file copies then in such Shareholder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event that the Company shall give
such notice, the Company shall extend the period during which such registration
statement shall be maintained effective (including the period referred to in
Section 5.04(a) hereof) by the number of days during the period from and
including the date of the giving of notice pursuant to Section 5.04(e) hereof to
the date when the Company shall make available to such Shareholder a prospectus
supplemented or amended to conform with the requirements of Section 5.04(e)
hereof.
(l) The Company will use its reasonable best efforts to list such
Registrable Securities on any securities exchange on which the Common Stock is
then listed or on NASDAQ if the Common Stock is then quoted on NASDAQ not later
than the effective date of such registration statement.
SECTION 5.05. Indemnification by the Company. The Company agrees to
indemnify and hold harmless each Shareholder holding Registrable Securities
covered by a registration statement, its officers, directors, employees,
partners and agents, and each Person, if any, who controls such Shareholder
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act (and officers, directors, employees, partners and agents of such
controlling Persons) from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
or caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue
statement or omission or alleged untrue statement or omission so made in strict
conformity with information furnished in writing to the Company by such
Shareholder or on such Shareholder's behalf expressly for use therein; provided
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus, or in any prospectus,
as the case may be, the indemnity agreement contained in this paragraph shall
not apply to the extent that any such loss, claim, damage, liability or expense
results from the fact that a current copy of the prospectus (or, in the case of
a prospectus, the prospectus as amended or supplemented) was not sent or given
to the Person asserting any such loss, claim, damage, liability or expense at or
prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that the Company has provided such
current copy of such prospectus (or such amended or supplemented prospectus, as
the case may be) to such Shareholder in a timely manner prior to such sale and
it was the responsibility of such Shareholder under the Securities Act to
provide such Person with a current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) and such current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be)
would have cured the defect giving rise to such loss, claim, damage, liability
or expense. The Company also agrees to indemnify any underwriters of the
Registrable Securities, their officers and directors and each person who
controls such underwriters on substantially the same basis as that of the
indemnification of the Shareholders provided in this Section 5.05.
SECTION 5.06. Indemnification by Participating Shareholders. Each
Shareholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless the
Company, its officers, directors and agents and each Person (other than such
Shareholder) if any, who controls the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act to the same
extent as the foregoing indemnity from the Company to such Shareholder, but only
(i) with respect to information furnished in writing by such Shareholder or on
such Shareholder's behalf expressly for use in any registration statement or
prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus or (ii) to the extent that any
loss, claim, damage, liability or expense described in Section 5.05 results from
the fact that a current copy of the prospectus (or, in the case of a prospectus,
the prospectus as amended or supplemented) was not sent or given to the Person
asserting any such loss, claim, damage, liability or expense at or prior to the
written confirmation of the sale of the Registrable Securities concerned to such
Person if it is determined that it was the responsibility of such Shareholder to
provide such Person with a current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) and such current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be)
would have cured the defect giving rise to such loss, claim, damage, liability
or expense. Each such Shareholder shall be prepared, if required by the
underwriting agreement, to indemnify and hold
harmless underwriters of the Registrable Securities, their officers and
directors and each person who controls such underwriters on substantially the
same basis as that of the indemnification of the Company provided in this
Section 5.06. As a condition to including Registrable Securities in any
registration statement filed in accordance with Article 5 hereof, the Company
may require that it shall have received an undertaking reasonably satisfactory
to it from any underwriter to indemnify and hold it harmless to the extent
customarily provided by underwriters with respect to similar securities.
No Shareholder shall be liable under Section 5.06 for any damage
thereunder in excess of the net proceeds realized by such Shareholder in the
sale of the Registrable Securities of such Shareholder.
SECTION 5.07. Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 5, such Person (an "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses; provided that the failure of
any Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure to notify. In any
such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of such Indemnified Party representation of both parties by
the same counsel would be inappropriate due to actual or potential differing
interests between them. It is understood that the Indemnifying Party shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (in addition to any local counsel) at any time for
all such Indemnified Parties, and that all such fees and expenses shall be
reimbursed as they are incurred. In the case of any such separate firm for the
Indemnified Parties, such firm shall be designated in writing by the Indemnified
Parties. The Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent, or if there be a final judgment for the plaintiff, the Indemnifying
Party shall indemnify and hold harmless such Indemnified Parties from and
against any and all losses, claims, damages, liabilities and expenses or
liability (to the extent stated above) by reason of such settlement or judgment.
No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such
Indemnified Party, unless such settlement includes an unconditional release of
such Indemnified Party from all liability arising out of such proceeding.
SECTION 5.08. Contribution. If the indemnification provided for in this
Article 5 is held by a court of competent jurisdiction to be unavailable to the
Indemnified Parties in respect of any losses, claims, damages or liabilities
referred to herein, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities (i)
as between the Company and the Shareholders holding Registrable Securities
covered by a registration statement and their related Indemnified Parties on the
one hand and the underwriters and their related Indemnified Parties on the
other, in such proportion as is appropriate to reflect the relative benefits
received by the Company and such Shareholders on the one hand and the
underwriters on the other, from the offering of the Shareholders' Registrable
Securities, or if such allocation is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits but also
the relative fault of the Company and such Shareholders on the one hand and of
such underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations and (ii) as between the Company and
their related Indemnified Parties on the one hand and each such Shareholder and
their related Indemnified Parties on the other, in such proportion as is
appropriate to reflect the relative fault of the Company and of each such
Shareholder in connection with such statements or omissions, as well as any
other relevant equitable considerations. The relative benefits received by the
Company and such Shareholders on the one hand and such underwriters on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and such Shareholders bear to the total
underwriting discounts and commissions received by such underwriters, in each
case as set forth in the table on the cover page of the prospectus. The relative
fault of the Company and such Shareholders on the one hand and of such
underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company and such Shareholders or by such underwriters. The
relative fault of the Company on the one hand and of each such Shareholder on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not be just and
equitable if contribution pursuant to this Section 5.08 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 immediately preceding paragraph. The
amount paid or payable by an Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such Indemnified Party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 5.08 no underwriter shall be
required to contribute any amount in excess of the underwriting discount
applicable to securities purchased by such underwriter in such offering, less
the aggregate amount of any damages which such underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no Shareholder shall be required to contribute any
amount in excess of the amount by which the net proceeds realized on the sale of
the Registrable Securities of such Shareholder exceeds the amount of any damages
which such Shareholder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Each Shareholder's obligation
to contribute pursuant to this Section 5.08 is several in the proportion that
the proceeds of the offering received by such Shareholder bears to the total
proceeds of the offering received by all such Shareholders and not joint.
SECTION 5.09. Participation in Public Offering. No Person may
participate in any Underwritten Public Offering hereunder unless such Person (a)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements and the provisions of
this Agreement in respect of registration rights.
SECTION 5.10. Cooperation by the Company. In the event any Shareholder
shall transfer any Registrable Securities pursuant to Rule 144A under the
Securities Act, the Company shall cooperate, to the extent commercially
reasonable, with such Shareholder and shall provide to such Shareholder such
information as such Shareholder shall reasonably request.
SECTION 5.11. No Transfer of Registration Rights. None of the rights of
Shareholders under this Article 5 shall be assignable by any Shareholder to any
Person acquiring securities of such Shareholder in any Public Offering or
pursuant to Rule 144A of the Securities Act.
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
SECTION 6.01. Confidentiality. (a) Each Shareholder hereby agrees that
Confidential Information (as defined below) furnished and to be furnished to it
was and will be made available in connection with such Shareholder's investment
in the Company. Each Shareholder agrees that it will use the Confidential
Information only in connection with its investment in the Company and not for
any other purpose. Each Shareholder further acknowledges and agrees that it will
not disclose any Confidential Information to any Person; provided that
Confidential Information may be disclosed (i) to such Shareholder's
Representatives (as defined below) in the normal course of the performance of
their duties or to any financial institution providing credit to such
Shareholder, (ii) to the extent required by applicable law, rule or regulation
(including complying with any oral or written questions, interrogatories,
requests for information or documents, subpoena, civil investigative demand or
similar process to which a Shareholder is subject; provided that such
Shareholder gives the Company prompt notice of such request(s), to the extent
practicable, so that the Company may seek an appropriate protective order or
similar relief (and the Shareholder shall cooperate with such efforts by the
Company, and shall in any event make only the minimum disclosure required by
such law, rule or regulation)), (iii) to any Person to whom such Shareholder is
contemplating a transfer of its Shares (provided that such transfer would not be
in violation of the provisions of this Agreement and as long as such potential
transferee is advised of the confidential nature of such information and agrees
to be bound by a confidentiality agreement in form and substance satisfactory to
the Company (it being understood that a confidentiality agreement consistent
with the provisions hereof shall be satisfactory to the Company)) or (iv) if the
prior written consent of the Board shall have been obtained. Nothing contained
herein shall prevent the use (subject, to the extent possible, to a protective
order) of Confidential Information in connection with the assertion or defense
of any claim by or against the Company or any Shareholder.
(b) "Confidential Information" means any information concerning the
Company and Persons which are or become its subsidiaries or the financial
condition, business, operations or prospects of the Company and Persons which
are or become its subsidiaries in the possession of or furnished to any
Shareholder (including, without limitation by virtue of its present or former
right to designate a director of the Company); provided that the term
"Confidential Information" does not include information which (i) is or becomes
generally available to the public other than as a result of a disclosure by a
Shareholder or its partners, directors, officers, employees, agents, counsel,
investment advisers or representatives (all such persons being collectively
referred to as "Representatives") in violation of the Merger Agreement or this
Agreement, (ii) is or was available to such Shareholder on a nonconfidential
basis prior to its disclosure to such Shareholder or its Representatives by the
Company or (iii) was or becomes available to such Shareholder on a
non-confidential basis from a source other than the Company,
provided that such source is or was (at the time of receipt of the relevant
information) not, to the best of such Shareholder's knowledge, bound by a
confidentiality agreement with (or other confidentiality obligation to) the
Company or another Person.
SECTION 6.02. Reports. The Company will furnish the Institutional
Shareholders with the quarterly and annual financial reports that the Company is
required to file with the Securities and Exchange Commission pursuant to Section
13 or Section 15(d) of the Exchange Act promptly after the filing thereof or, in
the event the Company is not required to file such reports, quarterly and annual
reports containing the same information as would be required in such reports on
the date that such reports would otherwise be filed.
SECTION 6.03. Limitations on Subsequent Registration. The Company shall
not enter into any agreement with any holder or prospective holder of any
securities of the Company (a) that would allow such holder or prospective holder
to include such securities in any registration filed pursuant to Section 5.01 or
5.02 hereof, unless under the terms of such agreement, such holder or
prospective holder may include such securities in any such registration only to
the extent that the inclusion of such securities would not reduce the amount of
the Registrable Securities of the Shareholders included therein or (b) on terms
otherwise more favorable than this Agreement.
SECTION 6.04. Exclusive Financial Advisor and Investment Banking
Advisor. During the period from and including the date hereof through and
including the fifth anniversary of the date hereof, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
Securities Corporation ("DLJSC"), or any Affiliate that DLJMB may choose in its
sole discretion, shall be engaged as the exclusive financial advisor and
investment banker for the Company on financial and other terms customary in the
industry to be agreed between the Company and DLJSC.
SECTION 6.05. Limitation on Purchase of Common Stock. Until the earlier
to occur of (i) the seventh anniversary of the Closing Date or (ii) the date on
which at least 40% of the outstanding Common Stock on a Fully Diluted basis of
the Company is held by Persons other than the Shareholders (the "Trigger Date"),
no Institutional Shareholder shall acquire any shares of Common Stock except (i)
in a purchase of Equity Securities pursuant to Section 4.03 or Section 4.04
hereof or (ii) in a transfer from any other Shareholder which is otherwise
permitted under the terms of Article 3 hereof.
ARTICLE 7
MISCELLANEOUS
SECTION 7.01. Entire Agreement. This Agreement, the Merger Agreement
and the Subscription Agreement constitute the entire agreement among the parties
with respect to the subject matter hereof and thereof and supersede all prior
and contemporaneous agreements and understandings, both oral and written,
between the parties with respect to the subject matter hereof and thereof.
SECTION 7.02. Binding Effect; Benefit. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, successors, legal representatives and permitted assigns. Nothing in this
Agreement, expressed or implied, is intended to confer on any Person other than
the parties hereto, and their respective heirs, successors, legal
representatives and permitted assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
SECTION 7.03. Assignability. (a) Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by the Company or any Shareholder; provided that any Person acquiring
shares of Common Stock who is required by the terms of this Agreement to become
a party hereto shall execute and deliver to the Company an agreement to be bound
by this Agreement and shall thenceforth be a "Shareholder".
(b) Any Permitted Transferee of a Management Shareholder who shall
become a party hereto shall be deemed a "Management Shareholder".
(c) Any Permitted Transferee of an Institutional Shareholder who shall
become a party to this Agreement shall be deemed an "Institutional Shareholder".
SECTION 7.04. Amendment; Waiver; Termination. (a) No provision of this
Agreement may be waived except by an instrument in writing executed by the party
against whom the waiver is to be effective. No provision of this Agreement may
be amended or otherwise modified except by an instrument in writing executed by
the Company with approval of the Board of Directors and holders of at least 50%
of the Shares held by the parties to this Agreement at the time of such proposed
amendment or modification.
(b) In addition, any amendment or modification of any provision of
this Agreement that would adversely affect any DLJ Entity may be effected only
with the consent of such DLJ Entity.
(c) In addition, any amendment or modification of any provision of
this Agreement that would adversely affect any (i) Institutional Shareholder may
be effected only with the consent of Institutional Shareholders holding at least
50% of the shares held by the Institutional Shareholders or (ii) Management
Shareholder may be effected only with the consent of Management Shareholders
holding at least 50% of the shares held by the Management Shareholders.
(d) This Agreement shall terminate on the tenth anniversary of the
date hereof unless earlier terminated.
SECTION 7.05. Notices. (a) All notices and other communications given
or made pursuant hereto or pursuant to any other agreement among the parties,
unless otherwise specified, shall be in writing and shall be deemed to have been
duly given and received when sent by fax (with confirmation in writing via first
class U.S. mail) or delivered personally or on the third Business Day after
being sent by registered or certified U.S. mail (postage prepaid, return receipt
requested) to the parties at the fax number or address set forth below or at
such other addresses as shall be furnished by the parties by like notice:
if to the Company to:
DecisionOne Holdings Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
if to any Shareholder, to such Shareholder at the address
specified by such Shareholder on the signature pages of this
Agreement or in a notice given by such Shareholder to the
Company for such purpose with a copy, in the case of the
Institutional Shareholders (other than the Sprout Entities),
to
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Any Person who becomes a Shareholder shall provide its address and fax
number to the Company, which shall promptly provide such information to each
other Shareholder.
(b) Notices required to be given pursuant to Sections 5.01(a) and
5.01(b) and Section 5.02 by the Company shall be deemed given only if such
notices are
also be given telephonically and by fax to the following persons (or any other
individual the respective entities may designate in writing to the Company to
replace such person):
(i) for the benefit of the Management Shareholders, to ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇ and fax: ▇▇▇-▇▇▇-▇▇▇▇;
(ii) for the benefit of the Apollo Entities, to any of ▇▇▇▇▇▇▇ ▇▇▇▇▇
at ▇▇▇-▇▇▇-▇▇▇▇, fax: 212-___-____, ▇▇▇▇▇▇ ▇▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇, fax:
212-___-____, or ▇▇▇▇ ▇▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇, fax: 212-___-____;
(iii) for the benefit of the ▇▇▇▇ Entities, to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at
▇▇▇-▇▇▇-▇▇▇▇, fax: 617-___-____ or ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇,
fax: 617-___-____;
(iv) for the benefit of the THL Entities, to any of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇, fax: 617-___-
----;
(v) for the benefit of the Sprout Entities, to __________;
(vi) for the benefit of the Ontario Teachers' Pension Plan Board,
to ▇▇▇▇ ▇▇▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇, fax: 416-___-____;
(vii) in the case of any registration not requested by the DLJ
Entities, for the benefit of the DLJ Entities, to ▇▇▇▇▇ ▇▇▇▇▇▇, at
▇▇▇-▇▇▇-▇▇▇▇, fax: ▇▇▇-▇▇▇-▇▇▇▇; and
(viii) to ▇▇▇▇▇ ▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇, fax: ▇▇▇-▇▇▇-▇▇▇▇.
SECTION 7.06. Headings. The headings contained in this Agreement are
for convenience only and shall not affect the meaning or interpretation of this
Agreement.
SECTION 7.07. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
SECTION 7.08. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to the conflicts of laws rules of such state.
SECTION 7.09. Specific Enforcement. Each party hereto acknowledges that
the remedies at law of the other parties for a breach or threatened breach of
this Agreement would be inadequate and, in recognition of this fact, any party
to this Agreement, without posting any bond, and in addition to all other
remedies
which may be available, shall be entitled to obtain equitable relief in the form
of specific performance, a temporary restraining order, a temporary or permanent
injunction or any other equitable remedy which may then be available.
SECTION 7.10. Consent to Jurisdiction; Expenses. (a) 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 shall be brought in any Federal Court sitting in New York,
New York, or any New York State court sitting in New York, New York, and each of
the parties hereby consents to the exclusive jurisdiction of such courts (and of
the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection which it 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 by any method provided in Section 7.05 shall be
deemed effective service of process on such party and consents to the personal
jurisdiction of any Federal Court sitting in New York, New York, or any New York
State court sitting in New York, New York.
(b) In any dispute arising under this Agreement among any of the
parties hereto, the costs and expenses (including, without limitation, the
reasonable fees and expenses of counsel) incurred by the prevailing party shall
be paid by the party that does not prevail.
SECTION 7.11. Severability. If one or more provisions of this Agreement
are held to be unenforceable to any extent under applicable law, such provision
shall be interpreted as if it were written so as to be enforceable to the
maximum possible extent so as to effectuate the parties' intent to the maximum
possible extent, and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms to the maximum extent permitted by law.
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.
DECISIONONE HOLDINGS CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President and Chief
Financial Officer
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 MILLENNIUM 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 MILLENNIUM PARTNERS-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: ▇▇▇-▇▇▇-▇▇▇▇
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:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ 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 Partner
Address:
c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ Place
Boston, MA 02116
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇ CAPITAL FUND, V-B, L.P.
By: ▇▇▇▇ Capital Investors 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: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
BCIP ASSOCIATES
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ Place
Boston, MA 02116
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
BCIP TRUST ASSOCIATES, L.P.
By: ▇▇▇▇ Capital Investors V, L.P., its
general partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two ▇▇▇▇▇▇ Place
Boston, MA 02116
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Address:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇ Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
Address:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇ Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
THL CO-INVESTORS III-A LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Manager
Address:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇ Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
THL CO-INVESTORS III-B LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇
Title: Manager
Address:
c/o ▇▇▇▇▇▇ ▇. ▇▇▇ Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
DLJ CAPITAL CORP.
By: /s/ Art ▇▇▇▇▇▇▇▇▇
Name: Art ▇▇▇▇▇▇▇▇▇
Title:
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art ▇▇▇▇▇▇▇▇▇
Name: Art ▇▇▇▇▇▇▇▇▇
Title:
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art ▇▇▇▇▇▇▇▇▇
Name: Art ▇▇▇▇▇▇▇▇▇
Title:
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ONTARIO TEACHERS' PENSION PLAN BOARD
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Portfolio Manager, Merchant
Banking
Address:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
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