INVESTORS' AGREEMENT
dated as of
September 29, 1999
among
XXXXXXX RIVER LABORATORIES HOLDINGS, INC.
and the
several Stockholders from time to time parties hereto
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions 1
ARTICLE 2
CORPORATE COVERNANCE
SECTION 2.01. Composition of the Board 8
SECTION 2.02. Removal 9
SECTION 2.03. Vacancies 9
SECTION 2.04. Meetings 9
SECTION 2.05. Action by the Board 9
SECTION 2.06. Conflicting Charter or Bylaw Provisions 10
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General 10
SECTION 3.02. Legends 10
SECTION 3.03. Permitted Transferees 11
SECTION 3.04. Restrictions on Transfers by Management 11
Stockholders
SECTION 3.05. Restrictions on Transfers by CRL 12
SECTION 3.06. Restrictions on Transfers by New Minority 13
Shareholders; Right of Refusal
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01. Rights to Participate in Transfer 15
SECTION 4.02. Right to Compel Participation in Certain 17
Transfers
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. Demand Registration 18
SECTION 5.02. Incidental Registration 22
SECTION 5.03. Holdback Agreements 23
SECTION 5.04. Registration Procedures 23
SECTION 5.05. Indemnification by the Company 26
SECTION 5.06. Indemnification by Participating 27
Stockholders
SECTION 5.07. Conduct of Indemnification Proceedings 28
SECTION 5.08. Contribution 29
SECTION 5.09. Participation in Public Offering 30
SECTION 5.10. Other Indemnificaiton 30
SECTION 5.11. Cooperation by the Company 30
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Entire Agreement 31
SECTION 6.02. Binding Effect; Benefit 31
SECTION 6.03. Exclusive Financial and Investment Banking 31
Advisor
SECTION 6.04. Put Right 31
SECTION 6.05. Pre-emptive Rights 32
SECTION 6.06. Assignability 33
SECTION 6.07. Amendment; Waiver; Termination 33
SECTION 6.08. Notices 34
SECTION 6.09. Headings 37
SECTION 6.10. Counterparts 37
SECTION 6.11. Applicable Law 37
SECTION 6.12. Specific Enforcement 37
SECTION 6.13. Consent to Jurisdiction 37
INVESTORS' AGREEMENT
AGREEMENT dated as of September 29, 1999 among Xxxxxxx River
Laboratories Holdings, Inc., a Delaware corporation (the
"Company"), CRL Acquisition LLC, a Delaware limited liability
company (the "LLC"), DLJ Investment Partners, L.P., DLJ
Investment Funding, Inc., DLJ ESC II L.P. (collectively with DLJ
Investment Partners, L.P., and DLJ Investment Funding, Inc.,
"DLJIP"), The 1818 Mezzanine Fund, L.P. ("BB"), [Trust Company of
the West] ("TW"), [Carlyle] ("Carlyle"), CRL Holdings, Inc., a
Delaware corporation ("CRL"), and certain other Persons listed on
the signature pages hereof (each, a "Management Stockholder", and
collectively, the "Management Stockholders").
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Adverse Person" means any Person whom the Board of Directors of
the Company reasonably determines is a competitor or a potential
competitor of the Company or its subsidiaries in a business that
is material to the Company and its subsidiaries, taken as a
whole.
"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 stockholder of
the Company shall be deemed an Affiliate of any other stockholder
of the Company solely by reason of any investment in the Company.
For the purpose of this definition, the term "control" (including
with correlative meanings, the terms "controlling", "controlled
by" and "under common control with"), when used with respect to
any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
"Affiliated Employee Benefit Trust" means any trust that is a
successor to the assets held by a trust established under an
employee benefit plan subject to ERISA or any other trust
established directly or indirectly under such plan or any other
such plan having the same sponsor.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by
law to close.
"Bylaws" means the Bylaws of the Company, as amended from time to
time.
"Charter" means the Certificate of Incorporation of the Company,
as amended from time to time.
"Closing Date" means September 29, 1999.
"Common Stock" means the common stock, par value $0.01 per share,
of the Company and any stock into which such Common Stock may
thereafter be converted or changed, and "Common Shares" means
shares of Common Stock.
"Company Securities" means the Common Stock and securities
convertible into or exchangeable for Common Stock and options,
warrants (including the Warrants) or other rights to acquire
Common Stock or any other equity security issued by the Company,
provided that notwithstanding the foregoing, the term "Company
Securities" shall not include the High Yield Warrants.
"Drag-Along Portion" means, with respect to any Other Stockholder
and any class of Company Securities, the number of such class of
Company Securities beneficially owned by such Other Stockholder
on a Fully Diluted basis (but without duplication) multiplied by
a fraction, the numerator of which is the number of such class of
Company Securities proposed to be sold by the LLC on behalf of
the LLC and the Other Stockholders and the denominator of which
is the total number of such class of Company Securities on a
Fully Diluted basis beneficially owned by the Stockholders.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Fully Diluted" means, with respect to Common Stock and without
duplication, all outstanding Shares and all Shares issuable in
respect of securities convertible into or exchangeable for
Shares, options, warrants (including the Warrants) and other
rights to purchase or subscribe for Shares or securities
convertible into or exchangeable for Common Stock; provided that,
to the extent any of the foregoing options, warrants or other
rights to purchase or subscribe for Shares are subject to
vesting, the Shares subject to vesting shall be included in the
definition of "Fully Diluted" only upon and to the extent of such
vesting; and
provided further that any Shares that vest upon and as a result
of a certain transaction shall be included in the definition of
"Fully Diluted" for purposes of such transaction.
"High Yield Warrants" means the warrants that are issued to
purchasers of the Senior Subordinated Notes of Xxxxxxx River
Laboratories, Inc. on or around the Closing Date for the purchase
of shares of Common Stock constituting not more than 6% of the
fully diluted equity of the Company.
"Initial Ownership" means, with respect to any Stockholder and
any class of Company Securities, the number of shares of such
class of Company Securities beneficially owned (and without
duplication) which such Persons have the right to acquire 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.
"Initial 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 (1) a registration
statement on Form S-8 or any successor form and (2) a shelf
registration statement filed with respect to the High Yield
Warrants and / or Warrants).
"Other Stockholders" means all Stockholders other than the LLC
and its Permitted Transferees; provided that DLJIP, BB, TW, and
Carlyle shall be considered for purposes of this Agreement to be
Other Stockholders.
"Permitted Transferee" means:
(i) in the case of the LLC: (A) any of: DLJ Merchant Banking
Partners II, L.P., a Delaware limited partnership, DLJ Offshore
Partners II, C.V. a Netherlands Antilles limited partnership, DLJ
Merchant Banking Partners II-A, L.P., a Delaware limited
partnership, DLJ Diversified Partners, L.P., a Delaware limited
partnership, DLJ Diversified Partners-A, L.P., a Delaware limited
partnership, DLJ EAB Partners, L.P., a Delaware limited
partnership, DLJ Millennium Partners, L.P., a Delaware limited
partnership, DLJ Millennium Partners-A, L.P., a Delaware limited
partnership, DLJMB Funding II, Inc., a Delaware corporation, UK
Investment Plan 1997 Partners, a Delaware partnership, DLJ First
ESC, L.P., a Delaware limited partnership and DLJ ESC II, L.P., a
Delaware limited partnership, (each of the foregoing, a "DLJ
Entity", and collectively, the "DLJ Entities"), (B) any general
or limited partner of any DLJ Entity (a "DLJ Partner"), and any
corporation, partnership, Affiliated Employee Benefit Trust or
other entity that is an Affiliate of any DLJ Partner
(collectively, the "DLJ Affiliates"), (C) any managing director,
general partner, director, limited partner, officer or employee
of any DLJ Entity or of any 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"), (D) a trust, the
beneficiaries of which, or a corporation, limited liability
company or partnership, the stockholders, members or general or
limited partners of which, include only XXX Xxxxxxxx, XXX
Xxxxxxxxxx, XXX Associates, their spouses or their lineal
descendants, or (E) a voting trustee for one or more DLJ
Entities, DLJ Affiliates or DLJ Associates; provided that
notwithstanding the foregoing, no Other Stockholder shall be a
Permitted Transferee of the LLC;
(ii) in the case of CRL, Bausch & Lomb Incorporated ("B&L"), or
any wholly-owned subsidiary of B&L; and
(iii) in the case of any Management Stockholder: (A) a Person to
whom Shares are transferred from such Other Stockholder (1) by
will or the laws of descent and distribution or (2) by gift
without consideration of any kind; provided that, in the case of
clause (2), such transferee is the issue or spouse of such
Management Stockholder, (B) a trust that is for the exclusive
benefit of such Management Stockholder or its Permitted
Transferees under (A) above, or a custodian or guardian for the
exclusive benefit of the same, or (C) the Company, in a transfer
approved by the Board; and
(iv) in the case of DLJIP, BB, TW, and Carlyle: any Affiliate of
such Person.
"Person" means an individual, corporation, 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 Stockholder holds
multiplied by a fraction, the numerator of which is the number of
Shares to be sold by the LLC and its 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
LLC and its Permitted Transferees prior to such Public
Offering (excluding any Shares acquired or acquirable upon the
exercise of High Yield Warrants).
"Public Offering" means an underwritten public offering of
Registrable Securities of the Company pursuant to an effective
registration statement under the Securities Act.
"Registrable Securities" means any Shares or Warrants until (i) a
registration statement covering such Shares or Warrants has been
declared effective by the SEC and such Shares or Warrants have
been disposed of pursuant to such effective registration
statement, (ii) such Shares or Warrants are sold under
circumstances in which all of the applicable conditions of Rule
144 are met, or (iii) such Shares or Warrants are otherwise
transferred, the Company has delivered a new certificate or other
evidence of ownership for such Shares or Warrants not bearing the
legend required pursuant to this Agreement and such Shares or
Warrants may be resold without subsequent registration under the
Securities Act, provided that the term "Registrable Securities"
shall not apply to any Shares received upon exercise of any High
Yield Warrants.
"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 Shares
or Warrants), (iii) printing expenses, (iv) internal expenses of
the Company (including, without limitation, all salaries and
expenses of its officers and employees performing legal or
accounting duties), (v) reasonable fees and disbursements of
counsel for the Company and customary fees and expenses for
independent certified public accountants retained by the Company
(including the expenses of any comfort letters or costs
associated with the delivery by independent certified public
accountants of a comfort letter or comfort letters requested
pursuant to Section 5.04(h)), (vi) the reasonable fees and
expenses of any special experts retained by the Company in
connection with such registration, (vii) reasonable fees and
expenses of one counsel for the Stockholders participating in the
offering selected (A) by the LLC, in the case of any offering in
which the LLC or any Permitted Transferee of the LLC
participates, or (B) in any other case, by the Other Stockholders
holding the majority of Shares to be sold for the account of all
Other Stockholders 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 Stockholders (or the agents who manage their
accounts) or any fees and expenses of underwriter's counsel.
"Restriction Termination Date" means the earlier to occur of (a)
the second anniversary of the Initial Public Offering and (b) the
fifth anniversary of the Closing Date.
"Rule 144" means Rule 144 and Rule 144A (or any successor
provisions) under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of Common Stock.
"Stockholder" means each Person (other than the Company) who
shall be a party to or bound by this Agreement, whether in
connection with the execution and delivery hereof as of the date
hereof, pursuant to Section 6.06, or otherwise, so long as such
Person shall (i) beneficially own (directly or indirectly) any
Company Securities, or (ii) have any stock appreciation rights,
options, warrants (other than High Yield Warrants) or other
rights to purchase or subscribe for Company Securities.
"Subject Securities" means any Company Securities beneficially
owned by the Other Stockholders.
"Tag-Along Portion" means the number of shares of Common Stock
held (or, without duplication, acquirable under the Warrants)
(excluding any shares of Common Stock acquired or acquirable
under the High Yield Warrants) 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 in the Tag-Along Sale 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
Stockholders (excluding any shares of Common Stock acquired or
acquirable under the High Yield Warrants).
"Third Party" means a prospective purchaser of Shares in an arm's-
length transaction from a Stockholder where such purchaser is not
a Permitted Transferee of such Stockholder.
"Warrants" means the warrants issued by the Company to the DLJ
Entities for the purchase of shares of Common Stock constituting
not more than
10% (the "Agreed Percentage") of the fully diluted equity of the
Company, provided that the Agreed Percentage shall be subject to
adjustment in the event of any disruption or adverse change in
current financial or capital markets generally or in the market
for new issuances of high yield securities.
"Warrant Shares" means shares of Common Stock issuable by the
Company upon exercise of the Warrants.
(b) The term "LLC", to the extent the LLC shall have transferred
any of its Shares to "Permitted Transferees", shall mean the LLC
and the Permitted Transferees of the LLC, taken together, and any
right or action that may be taken at the election of the LLC may
be taken at the election of the holders of a majority of the
Shares then held by the LLC and such Permitted Transferees.
(c) The term "Other Stockholders", to the extent such
stockholders shall have transferred any of their Shares to
"Permitted Transferees", shall mean the Other Stockholders and
the Permitted Transferees of the Other Stockholders, taken
together, and any right or action that may be taken at the
election of the Other Stockholders may be taken at the election
of the Other Stockholders and such Permitted Transferees.
(d) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
Applicable Holdback Period 5.03
beneficially own 1.01(a)
Demand Registration 5.01(e)
DLJSC 6.03
Drag-Along Rights 4.02(a)
Exercise Period 6.04
Holders 5.01(a)
Incidental Registration 5.01(e)
Indemnified Party 5.07
Indemnifying Party 5.07
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Nominee 2.03(a)
Put 6.04
Records 5.04(g)
Section 4.01 Response Notice 4.01(a)
Section 4.02 Notice 4.02(a)
Section 4.02 Notice Period 4.02(a)
Section 4.02 Sale 4.02(a)
Section 4.02 Sale Price 4.02(a)
Selling Person 4.01(a)
Selling Stockholder 5.01(e)
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)
ARTICLE 2
CORPORATE GOVERNANCE
SECTION 2.01. Composition of the Board. (a) The Board shall
consist initially of nine directors, (i) seven of whom (including
the Chairman) will be designated by DLJ Merchant Banking Partners
II, L.P., (ii) one of whom will be designated by CRL, and (iii)
one of whom will be the Chief Executive Officer appointed by the
Board. DLJIP shall be entitled to designate [two] observer[s] to
the Board, who shall be entitled to receive a copy of any
materials distributed to all members of the Board, until the date
on which DLJIP owns (directly or indirectly) less than 50% of the
equity interest in the Company which it owned (indirectly) as of
the Closing Date.
(b) Each Stockholder (other than CRL) entitled to vote for the
election of directors to the Board agrees that it will vote its
Shares or execute written consents, as the case may be, and take
all other necessary action (including causing the Company to call
a special meeting of stockholders) in order to ensure that the
composition of the Board is as set forth in this Section 2.01;
provided that no Other Stockholder shall be required to vote for
the board-designees of DLJ Merchant Banking Partners II, L.P. if
the aggregate number of Common Shares held by the LLC is less
than 10% of its Initial Ownership of Common Shares, and provided
further that no party hereto shall be required to vote for the
board-designee of CRL if the aggregate number of Common Shares
held by CRL is less than 40% of the Initial Ownership of CRL.
SECTION 2.02. Removal. Each Stockholder (other than CRL) 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
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 Persons
entitled to designate or nominate such director shall have
consented to such removal in writing.
SECTION 2.03. Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without cause) or
otherwise, there shall exist or occur any vacancy of the Board:
(a) the Person or Persons entitled under Section 2.01 to
designate or nominate such director whose death, disability,
retirement, resignation or removal resulted in such vacancy may
designate another individual (the "Nominee") to fill such
capacity and serve as a director of the Company; and
(b) each Stockholder (other than CRL) then entitled to vote for
the election of the Nominee as a director of the Company agrees
that it will vote its Shares, or execute a written consent, as
the case may be, in order to ensure that the Nominee is elected
to the Board.
SECTION 2.04. Meetings. The Board shall hold a regularly
scheduled meeting at least once every calendar quarter, and
notice of each meeting shall be given to all directors at least
five Business Days prior to such meeting.
SECTION 2.05. Action by the Board. (a) A quorum of the Board
shall consist of four directors, of whom at least three must be
designees of DLJ Merchant Banking Partners II, L.P.; provided
that the LLC shall have the right at any time to change the
number of directors necessary to constitute a quorum of the
Board. All actions of the Board shall require the affirmative
vote of at least a majority of the directors present at a duly
convened meeting of the Board at which a quorum is present or the
unanimous written consent of the Board; provided that, in the
event there is a vacancy on the Board and an individual has been
nominated to fill such vacancy, the first order of business shall
be to fill such vacancy.
(b) CRL shall have the right to send an observer who is an
employee of B&L or an Affiliate of B&L to any meeting of the
Board that the director who is designated by CRL is unable to
attend. The observer shall have the privilege of voice but no
vote with respect to any matter and shall be given a copy of any
materials distributed to the Board members for such meeting.
(c) The Board may create executive, compensation and audit
committees, as well as such other committees as it may determine.
DLJ Merchant Banking Partners II, L.P. shall be entitled to
designate a majority of the directors on any committee created by
the Board.
SECTION 2.06. Conflicting Charter or Bylaw Provisions. Each
Stockholder shall vote its Shares or execute written consents, as
the case may be, and take all other actions necessary, to ensure
that the Company's Charter and Bylaws facilitate and do not at
any time conflict with any provision of this Agreement.
ARTICLE 3
RESTRICTIONS ON TRANSFER
SECTION 3.01. General. (a) Each Stockholder understands and
agrees that the Company Securities purchased pursuant to the
applicable subscription agreement have not been registered under
the Securities Act and are restricted securities. Each
Stockholder agrees that it will not, directly or indirectly,
sell, assign, transfer, grant a participation in, pledge or
otherwise dispose of ("transfer") any Company Securities (or
solicit any offers to buy or otherwise acquire, or take a pledge
of any Company Securities) except in compliance with the
Securities Act and the terms and conditions of this Agreement.
Any attempt to transfer any Company Securities not in compliance
with this Agreement shall be null and void and the Company shall
not, and shall cause any transfer agent not to, give any effect
in the Company's stock records to such attempted transfer.
No transferee other than a Permitted Transferee or a party hereto
shall be required or permitted to become a party to this
Agreement or have the benefit of any rights hereunder or the
burden of any obligations hereunder.
Except as set forth in the first paragraph of this Section 3.01,
transfers by the LLC are not subject to any restrictions.
SECTION 3.02. Legends. In addition to any other legend that may
be required, each certificate for shares of Common Stock and each
Warrant that is issued to any Stockholder 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 SEPTEMBER 29, 1999, COPIES OF WHICH
MAY BE OBTAINED UPON REQUEST FROM XXXXXXX RIVER
LABORATORIES HOLDINGS, INC. OR ANY SUCCESSOR THERETO."
If any Company Securities 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 securities without the first sentence of the legend required
by this Section endorsed thereon. If any Company Securities cease
to be subject to any and all restrictions on transfer set forth
in this Agreement, the Company shall, upon the written request of
the holder thereof, issue to such holder a new certificate
evidencing such Company Securities without the second sentence of
the legend required by this Section endorsed thereon.
SECTION 3.03. Permitted Transferees. Notwithstanding anything in
this Agreement to the contrary, any Stockholder may at any time
transfer any or all of its Company Securities to one or more of
its Permitted Transferees without the consent of the Board or any
other Stockholder or group of Stockholders and without compliance
with Sections 3.04, 3.05, 3.06 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 Management
Stockholders.
(a) Each Management Stockholder and each Permitted Transferee of
such Management Stockholder may transfer its Company Securities
only as follows:
(i) in a transfer made in compliance with Section 4.01 or 4.02;
(ii) subject to the Public Offering Limitations, in a Public
Offering in connection with the exercise of its rights under
Article 5 hereof;
(iii) after the Initial Public Offering, pursuant to the
exemption from registration provided under Rule 144, provided
that until the later of (A) the third anniversary of the IPO and
(B) the Restriction Termination Date, such sales cannot reduce
the Stockholder's ownership to (or occur at a time when such
Stockholder's ownership is otherwise) below the greater of (X)
50% of his or her Initial Ownership and (Y) that percentage of
his or her Initial Ownership as equals the percentage of the
LLC's Initial Ownership remaining after previous dispositions by
the LLC; or
(iv) following the Restriction Termination Date, to (A) any Third
Party other than an Adverse Person or any person deemed
inappropriate by the Board or (B) any Third Party through a
national securities exchange, in each case for consideration
consisting solely of cash, provided, however, that the amount
sold in any 12-month period may not exceed 20% of the Management
Stockholder's Initial Ownership.
For purposes of this Agreement, "Public Offering Limitations"
means (A) no Management Stockholder shall be permitted to sell
any Shares in the Initial Public Offering, (B) in the first
public offering following the Initial Public Offering, no
Management Stockholder may sell more than the lesser of (x) 50%
of his or her Pro Rata Portion and (y) 20% of his or her holdings
prior to the offering and (C) in each public offering thereafter,
each Management Stockholder may sell no more than the lesser of
(x) his or her Pro Rata Portion and (y) 50% of his or her
holdings prior to the offering.
(b) The provisions of Section 3.04(a) shall terminate upon the
earliest to occur of (i) the tenth anniversary of the Closing
Date and (ii) the date upon which the shareholdings of the LLC
fall below 10% of its Initial Ownership.
Notwithstanding the foregoing sentence, the provisions of Section
3.04(a) shall not terminate with respect to any Management
Stockholder's Shares which shall have been pledged to the Company
as security in connection with any indebtedness for borrowed
money owed by such Management Stockholder to the Company unless
the proceeds from the sale of such Shares are applied to repay
such indebtedness in full.
SECTION 3.05. Restrictions on Transfers by CRL.
(a) CRL may transfer its Company Securities 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;
(iii) after the Initial Public Offering, pursuant to the
exemption from registration provided under Rule 144, provided,
however, that the amount sold in any 12-month period pursuant to
this clause (iii) may not exceed 25% of CRL's Initial Ownership.
(iv) following the Restriction Termination Date, to (A) any Third
Party other than an Adverse Person or any person deemed
inappropriate by
the Board or (B) any Third Party through a national securities
exchange, in each case for consideration consisting solely of
cash.
(b) The provisions of Section 3.05(a) shall terminate upon the
earliest to occur of (i) the tenth anniversary of the Closing
Date and (ii) the date upon which the shareholdings of the LLC
fall below 10% of its Initial Ownership.
SECTION 3.06. Restrictions on Transfers by New Minority
Shareholders; Right of First Refusal.
(a) Each of DLJIP, BB, TW, and Carlyle (a "New Minority
Shareholder") may transfer its Company Securities 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;
(iii) after the Initial Public Offering, pursuant to the
exemption from registration provided under Rule 144; or
(iv) after the earlier of (A) [3] years from the Closing Date or
(B) the Initial Public Offering, to any Third Party other than an
Adverse Person or any person deemed inappropriate by the Board,
for consideration consisting solely of cash, provided that the
transferor shall first have complied with Section 3.06(b).
(b) Right of First Refusal.
(i) If a New Minority Shareholder proposes to transfer Company
Securities owned by such New Minority Shareholder in a
transaction pursuant to Section 3.06(a)(iv), such New Minority
Shareholder shall provide DLJ Merchant Banking II, Inc. and the
Company written notice of such proposed transfer. The notice
shall identify the number of Company Securities proposed to be
transferred, the cash price at which a transfer is proposed to be
made and all other material terms and conditions of the offer.
(ii) The receipt of a such notice by DLJ Merchant Banking II,
Inc. and the Company from a New Minority Shareholder shall
constitute an offer by such New Minority Shareholder to sell
first, to the DLJ Entities and, if not accepted or only accepted
in part by the DLJ Entities, second to the Company, for cash, the
Company Securities at the price and on the
other terms and conditions set forth in such notice. Such offer
shall be irrevocable for 10 Business Days after receipt of such
notice by the DLJ Entities and the Company. During such period,
any of the DLJ Entities and the Company shall have the right to
accept such offer as to all or a portion of the Company
Securities (provided that first priority of the right to accept
is given to the DLJ Entities; and provided further that the
aggregate number of Company Securities accepted by the DLJ
Entities and the Company together equals the total number of
Company Securities subject to the offer) by giving a written
notice of acceptance to such Ne Minority Shareholder prior to the
expiration of the offer period.
(iii) Any Person who has accepted the offer shall purchase and
pay for all Company Securities accepted within 30 days after such
acceptance.
(iv) Upon the failure to accept the offer in full prior to the
expiration of the offer period or the failure to consummate the
purchase within 30 days after the acceptance of the offer, there
shall commence a 60-day period during which the New Minority
Shareholder that gave the notice shall have the right to transfer
to a third party any or all of the Company Securities subject to
such offer at a price in cash not less than 90% of the price
indicated in the applicable notice to DLJ Merchant Banking II,
Inc. and the Company, and on the other terms and conditions set
forth therein, provided that the transfer to such third party is
not in violation of applicable federal or state or foreign
securities laws. If such New Minority Shareholder does not
consummate the sale in accordance with the foregoing time
limitations, such New Minority Shareholder may not thereafter
transfer any Company Securities in a transaction pursuant to
Section 3.06(a)(iv) without repeating the foregoing procedures.
(c) The provisions of Section 3.06(a) shall terminate upon the
earliest to occur of (i) the tenth anniversary of the Closing
Date and (ii) the date upon which the shareholdings of the LLC
fall below 10% of its Initial Ownership.
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS
SECTION 4.01. Rights to Participate in Transfer. (a) If the LLC
(the "Selling Person") proposes to transfer a number of Shares
equal to or exceeding 25% of the outstanding Shares in a single
transaction or in a series of related transactions on the date of
the proposed sale (a "Tag-Along Sale"), the Other
Stockholders may, at their option, elect to exercise their rights
under this Section 4.01 (each such Stockholder, a "Tagging
Person"), provided that no such rights shall apply to transfers
of Shares (i) in a Public Offering or pursuant to Rule 144
(defined for these purposes to exclude Rule 144A under the
Securities Act), (ii) to any Permitted Transferee of the LLC
(defined for these purposes to exclude, except in the case of a
general distribution to DLJ Partners, any Permitted Transferee
who is a Permitted Transferee solely by reason of being an
Affiliate of a DLJ Partner), or (iii) to holders of limited
liability company units in the LLC ("Units"). In the event of
such a proposed transfer, the Selling Person shall provide each
Other Stockholder 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 and type of Company
Securities 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 15 Business
Days (the "Tag-Along Notice Period"), to request that the Selling
Person include in the proposed transfer the number of Company
Securities held by such Tagging Person as is specified in such
notice; provided that if the aggregate number of Company
Securities proposed to be sold by the Selling Person and all
Tagging Persons in such transaction exceeds the number of Company
Securities which can be sold on the terms and conditions set
forth in the Tag-Along Notice, then only the Tag-Along Portion of
Company Securities of each Tagging Person shall be sold pursuant
to the Tag-Along Offer and the Selling Person shall sell its Tag-
Along Portion of Company Securities and such additional Company
Securities as permitted by Section 4.01(d). 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 Company Securities of such Tagging Person to be
included in the transfer, together with a limited power-of-
attorney authorizing the Selling Person to transfer such
Securities on the terms set forth in the Tag-Along Notice.
Delivery of such certificate or certificates representing the
Company Securities to be transferred and the limited power-of-
attorney authorizing the Selling Person to transfer such Company
Securities 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 Company Securities on substantially the
same 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%), the Selling Person shall return to each Tagging Person
the limited power-of-attorney (and all copies thereof) together
with all certificates representing the Company Securities 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 Company Securities 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, but not with respect
to any future sales.
(d) If any Stockholder 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 Tagging Persons
who do respond and the LLC shall be entitled to transfer,
pursuant to the Tag-Along Offer, an additional number of Company
Securities equal to the number of Company Securities constituting
their pro rata portion of such Tagging Person's Tag-Along Portion
with respect to which Tag-Along Rights were not exercised.
(e) The LLC and any Tagging Person who exercises the Tag-Along
Rights pursuant to this Section 4.01 may sell the Company
Securities 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.
(f) In the event that the DLJ Entities propose to transfer a
number of Units equal to or exceeding 40% of the outstanding
Units in a single transaction or in a series of related
transactions on the date of the proposed sale, other than
transfers of Units (i) in a Public Offering or pursuant to Rule
144 (defined for these purposes to exclude Rule 144A under the
Securities Act) or (ii) to any Permitted Transferee of the LLC
(defined for these purposes to exclude, except in the case of a
general distribution to DLJ Partners, any Permitted Transferee
who is a Permitted Transferee solely by reason of being an
Affiliate of a DLJ Partner), the Board of Directors shall in good
faith determine an appropriate procedure which shall mutatis
mutandis reflect the procedures of this Section 4.01 to allow
Company Securities to be sold proportionally by Other
Stockholders as part of such sale, and shall in good faith
determine an appropriate valuation for such Company Securities
reflecting the price per Unit at which the DLJ Entities propose
to sell the Units.
(g) This Section 4.01 shall terminate upon the Initial Public
Offering.
SECTION 4.02. Right to Compel Participation in Certain Transfers.
(a) If (i) the LLC proposes to transfer not less than 50% of its
Initial Ownership of Common Stock to a Third Party in a bona fide
sale or (ii) the LLC proposes an arms-length transfer in which
the shares of Common Stock to be transferred by the LLC and its
Permitted Transferees constitute more than 50% of the outstanding
shares of Common Stock (a "Section 4.02 Sale"), the LLC may at
its option require all Other Stockholders to sell the Drag-Along
Portion of the Subject Securities ("Drag-Along Rights") then held
by every Other Stockholder, 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 Stockholder 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 LLC;
provided that any Other Stockholder 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 LLC 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 canceled, as applicable. The
LLC shall provide written notice of such Section 4.02 Sale to the
Other Stockholders (a "Section 4.02 Notice") not later than the
15th Business 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
Stockholder will be the Drag-Along Portion of the shares of
Common Stock that such Other Stockholder owns. Each Other
Stockholder 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. The price payable in such transfer shall be the Section
4.02 Sale Price. Not later than the 10th Business Day following
the date of the Section 4.02 Notice (the "Section 4.02 Notice
Period"), each of the Other Stockholders shall deliver to a
representative of the LLC designated in the Section 4.02 Notice
certificates representing all Subject Securities representing the
Drag Along Portion held by such Other Stockholder,
duly endorsed, together with all other documents required to be
executed in connection with such Section 4.02 Sale. If an Other
Stockholder should fail to deliver such certificates to the
representative of the LLC, 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 LLC shall have a period of 45 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, the LLC shall return to each of
the Other Stockholders all certificates representing Subject
Securities that such Other Stockholder delivered for transfer
pursuant hereto, together with any documents in the possession of
the LLC executed by the Other Stockholder 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 Stockholders shall
again be in effect.
(c) Concurrently with the consummation of the transfer of Company
Securities pursuant to this Section 4.02, the LLC shall give
notice thereof to all Stockholders, shall remit to each of the
Stockholders who have surrendered their certificates the total
consideration (by bank or certified check) for the Subject
Securities 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 Stockholders.
ARTICLE 5
REGISTRATION RIGHTS
SECTION 5.01. Demand Registration. (a) If the Company shall
receive a written request by the LLC or its Permitted Transferees
or DLJIP (any such requesting Person, a "Selling Stockholder")
that the Company effect the registration under the Securities Act
of all or a portion of such Selling Stockholder'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 30
days prior to the anticipated filing date of the registration
statement relating to such Demand Registration to the Other
Stockholders 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 Stockholders, then held by
the Selling Stockholders; and
(ii) subject to the restrictions set forth in Section 5.01(e),
all other Registrable Securities of the same type as that to
which the request by the Selling Stockholders relates which any
Other Stockholder entitled to request the Company to effect an
Incidental Registration (as such term is defined in Section 5.02)
pursuant to Section 5.02 (all such Stockholders, together with
the Selling Stockholders, the "Holders") has requested the
Company to register by written request received by the Company
within 15 days 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 (A) more than six Demand Registrations for
the LLC and its Permitted Transferees or (B) one Demand
Registration for DLJIP (which Demand Registration right may not
be exercised prior to the date that is 180 days after an Initial
Public Offering); 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 to be included in such Demand Registration, in the
reasonable opinion of DLJ Merchant Banking II, Inc. exercised in
good faith, equals or exceeds (Y) $10,000,000 if such Demand
Registration would constitute the Initial Public Offering, or (Z)
$5,000,000 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 15-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 Stockholders requesting a
registration under this Section may, at any time prior to the
effective date of the registration statement relating to such
registration, revoke such request, without liability to any of
the other Holders, by providing a written notice to the Company
revoking such request, in which case such request, so revoked,
shall be considered a Demand Registration unless the
participating Stockholders reimburse the Company for all costs
incurred by the Company in connection with such registration, or
unless such revocation arose out of the fault of the Company, 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 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 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) or 5.01(f) such that less than 66 2/3% of
the Registrable Securities of the Selling Stockholders 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 Stockholders that, in its view, (i) the number 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 Registrable Securities owned by
the Holders, in any such case, exceeds the largest number of
securities which can be sold without having an adverse effect on
such offering, including the price at which such securities 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: (1) in the case of a Demand by the LLC and its
Permitted Transferees, all Securities requested to be registered
by the Selling Stockholder and by all of its Permitted
Transferees and CRL, DLJIP, BB, TW and Carlyle (allocated, if
necessary for the offering not to exceed the Maximum Offering
Size, pro rata among such Persons on the basis of the relative
number of shares of Registrable Securities requested to be
registered), or (2) in the case of a Demand by DLJIP, all
Securities requested to be registered by the Selling Stockholder
and by all of its Permitted Transferees and BB, TW and Carlyle
(allocated, if necessary for the offering not to exceed the
Maximum Offering Size, pro rata among such Persons on the basis
of the relative number of shares of Registrable Securities
requested to be registered);
(B) second: (1) in the case of a Demand by the LLC and its
Permitted Transferees, 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 other Holders on the basis of the
relative number of shares of Registrable Securities requested to
be included in such registration), or (2) in the case of a Demand
by DLJIP, all Registrable Securities requested to be included in
such registration by the LLC and its Permitted Transferees and by
CRL (allocated, if necessary for the offering not to exceed the
Maximum Offering Size, pro rata among such other Holders on the
basis of the relative number of shares of Registrable Securities
requested to be included in such registration);
(C) third: (1) in the case of a Demand by the LLC and its
Permitted Transferees, any securities proposed to be registered
by the Company, or (2) in the case of a Demand by DLJIP, 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 other Holders on the basis of the relative number of shares
of Registrable Securities requested to be included in such
registration); and
(D) fourth: in the case of a Demand by DLJIP, any securities
proposed to be registered by the Company.
(f) If the Company files a shelf registration statement with
respect to the High Yield Warrants, the Company shall notify the
holders of the Warrants at least 20 days prior to such filing.
The holders of the Warrants shall have the right (which shall not
be deemed to be a use of a Demand Registration right), by notice
to the Company, to include the Warrants in such shelf
registration statement.
Notwithstanding anything in this Agreement to the contrary, this
Agreement shall
not be construed to confer on any Stockholder (other than holders
of Warrants in their capacity as such, together with any Persons
entitled to indemnification hereunder in connection therewith)
any rights in connection with such shelf registration statement.
SECTION 5.02. Incidental Registration. (a) If the Company
proposes to register any Company Securities under the Securities
Act (other than a registration (A) on Form S-8 or S-4 or any
successor or similar forms, (B) relating to Common Stock issuable
upon exercise of employee stock options or in connection with any
employee benefit or similar plan of the Company or (C) in
connection with a direct or indirect acquisition by the Company
of another company),
whether or not for sale for its own account, it will each such
time, subject to the provisions of Section 5.02(b), give prompt
written notice at least 30 days prior to the anticipated filing
date of the registration statement relating to such registration
to the LLC and each Other Stockholder, which notice shall set
forth such Stockholder's rights under this Section 5.02 and shall
offer such Stockholders the opportunity to include in such
registration statement such number of Registrable Securities of
the same type as are proposed to be registered as each such
Stockholder may request (an "Incidental Registration"). Upon the
written request of any such Stockholder made within 15 days after
the receipt of notice from the Company (which request shall
specify the number of Registrable Securities intended to be
disposed of by such Stockholder), the Company will use its best
efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so
requested to register by such Stockholders, to the extent
requisite to permit the disposition of the Registrable Securities
so to be registered; provided that (I) if such registration
involves a Public Offering, all such Stockholders 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 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 securities,
the Company shall give written notice to all such Stockholders
and, thereupon, shall be relieved of its obligation to register
any Registrable Securities in connection with such registration
(without prejudice, however, to rights of the LLC under Section
5.01). 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.
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 a
Public Offering (other than in the case of a Public Offering
requested by the LLC or any of its Permitted Transferees or the
Other Stockholders 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 that the Company and such Stockholders 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 securities proposed to be registered by
the Company as would not cause the offering to exceed the Maximum
Offering Size;
(ii) second, all Registrable Securities requested to be included
in such registration by the LLC and its Permitted Transferees or
any Other Stockholder pursuant to this Section 5.02 (allocated,
if necessary for the offering not to exceed the Maximum Offering
Size, pro rata among such Stockholders 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. If any registration of
Registrable Securities shall be in connection with a Public
Offering, the LLC and its Permitted Transferees and each Other
Stockholder agrees not to effect any public sale or distribution,
including any sale pursuant to Rule 144, or any successor
provision, under the Securities Act, of any Registrable
Securities, and not to effect any such public sale or
distribution of any other Common Stock of the Company or of any
stock convertible into or exchangeable or exercisable for any
Common Stock of the Company (in each case, other than as part of
such Public Offering) during the 14 days prior to the effective
date of such registration statement (except as part of such
registration) or during the period after such effective date
equal to the lesser of (i) such period of time as agreed between
such managing underwriter and the Company and (ii) 180 days (such
lesser period, the "Applicable Holdback Period").
SECTION 5.04. Registration Procedures. Whenever Stockholders
request that any Registrable Securities be registered pursuant to
Section 5.01 or 5.02, the Company will, subject to the provisions
of such Sections, use its best efforts to effect the registration
and the sale of such Registrable Securities in accordance with
the intended method of disposition thereof as quickly as
practicable, and in connection with any such request:
(a) The Company will as expeditiously as possible prepare and
file with the SEC a registration statement on any form for which
the Company then qualifies or which counsel for the Company shall
deem appropriate and which form shall be available for the sale
of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and
use its best efforts to cause such filed registration statement
to become and remain effective for a period of not less than 180
days.
(b) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or
supplement thereto, furnish to participating Stockholder 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 Stockholder 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 Stockholder or underwriter may reasonably
request in order to facilitate the disposition of the Registrable
Securities owned by such Stockholder.
(c) After the filing of the registration statement, the Company
will promptly notify each Stockholder holding Registrable
Securities covered by such registration statement of any stop
order issued or threatened by the SEC and take all reasonable
actions required to prevent the entry of such stop order or to
remove it if entered.
(d) The Company will use its best efforts to (i) register or
qualify the Registrable Securities covered by such registration
statement under such other securities or blue sky laws of such
jurisdictions in the United States as any Stockholder holding
such Registrable Securities reasonably (in light of such
Stockholder'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 Stockholder to
consummate the disposition of the Registrable Securities owned by
such Stockholder; 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 Stockholder holding
such Registrable Securities, at any time when a prospectus
relating thereto is required to be delivered under the Securities
Act, of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such
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
Stockholder any such supplement or amendment.
(f) The LLC will have the right, in its sole discretion, to
select an underwriter or underwriters in connection with any
Public Offering, which underwriter or underwriters may include
any Affiliate of any DLJ Entity. In connection with any Public
Offering, the Company will enter into customary agreements
(including an underwriting agreement in customary form) and take
such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities
in any such Public Offering, including the engagement of a
"qualified independent underwriter" in connection with the
qualification of the underwriting arrangements with the NASD.
(g) Upon the execution of confidentiality agreements in form and
substance satisfactory to the Company, the Company will make
available for inspection by any Stockholder 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 Stockholder or underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent
corporate documents and properties of the Company (collectively,
the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the
Company's officers, directors and employees to supply all
information reasonably requested by any Inspectors in connection
with such registration statement. Records that the Company
determines, in good faith, to be confidential and that it
notifies the Inspectors are confidential shall not be disclosed
by the Inspectors unless (i) the disclosure of such Records is
necessary to avoid or correct a misstatement or omission in such
registration statement or (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of
competent jurisdiction. Each Stockholder agrees that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any
market transactions in the Company Securities or its Affiliates
unless and until such is made generally available to the public.
Each Stockholder further agrees that it will, upon learning that
disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Company and allow the Company,
at its expense, to undertake appropriate action to prevent
disclosure of the Records deemed confidential.
(h) The Company will furnish to each such Stockholder and to each
such underwriter, if any, a signed counterpart, addressed to such
underwriter, of (i) an opinion or opinions of counsel to the
Company and (ii) a comfort letter or comfort letters from the
Company's independent public accountants, each in customary 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 Stockholders or the managing underwriter therefor reasonably
requests.
(i) The Company will otherwise use its best efforts to comply
with all applicable rules and regulations of the SEC, and make
available to its stockholders, as soon as reasonably practicable,
an earnings statement covering a period of 12 months, beginning
within three months after the effective date of the
registration statement, which earnings statement shall satisfy
the provisions of Section 11(a) of the Securities Act.
The Company may require each such Stockholder to promptly furnish
in writing to the Company such information regarding the
distribution of the Registrable Securities as the Company may
from time to time reasonably request and such other information
as may be legally required in connection with such registration.
Each such Stockholder 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), such Stockholder will forthwith
discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until
such Stockholder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 5.04(e), and, if so
directed by the Company, such Stockholder will deliver to the
Company all copies, other than any permanent file copies then in
such Stockholder'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)) by the number of days
during the period from and including the date of the giving of
notice pursuant to Section 5.04(e) to the date when the Company
shall make available to such Stockholder a prospectus
supplemented or amended to conform with the requirements of
Section 5.04(e).
SECTION 5.05. Indemnification by the Company. The Company agrees
to indemnify and hold harmless each Stockholder holding
Registrable Securities covered by a registration statement, its
officers, directors and agents, and each person, if any, who
controls such Stockholder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against
any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact
contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the
Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission
or alleged untrue statement or omission based upon information
furnished in writing to the Company by such Stockholder or on
such Stockholder's behalf expressly for use therein; provided
that with respect to any untrue statement or omission or alleged
untrue statement or omission made in any preliminary prospectus,
or in any
prospectus, as the case may be, the indemnity agreement contained
in this paragraph shall not apply to the extent that any such
loss, claim, damage, liability or expense results from the fact
that a current copy of the prospectus (or, in the case of a
prospectus, the prospectus as amended or supplemented) was not
sent or given to the person asserting any such loss, claim,
damage, liability or expense at or prior to the written
confirmation of the sale of the Registrable Securities concerned
to such person if it is determined that the Company has provided
such prospectus and it was the responsibility of such Stockholder
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 Stockholders provided
in this Section 5.05.
SECTION 5.06. Indemnification by Participating Stockholders. Each
Stockholder holding Registrable Securities included in any
registration statement agrees, severally but not jointly, to
indemnify and hold harmless the Company, its officers, directors
and agents and each person, if any, who controls the Company
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Stockholder, but
only (i) with respect to information furnished in writing by such
Stockholder or on such Stockholder'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 Stockholder 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 Stockholder
also agrees to indemnify and hold harmless underwriters of the
Registrable Securities, their officers and directors and each
person who controls such underwriters on substantially the same
basis as that of the indemnification of the Company provided in
this Section 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.
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 loss 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 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
Stockholders holding Registrable Securities covered by a
registration statement on the one hand and the underwriters on
the other, in such proportion as is appropriate to reflect the
relative benefits received by the Company and such Stockholders
on the one hand and the underwriters on the other, from the
offering of the Registrable Securities, or if such allocation is
not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also
the relative fault of the Company and such Stockholders on the
one hand and of such underwriters on the other in connection with
the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant
equitable considerations and (ii) as between the Company on the
one hand and each such Stockholder on the other, in such
proportion as is appropriate to reflect the relative fault of the
Company and of each such Stockholder in connection with such
statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company and
such Stockholders 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 Stockholders 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
Stockholders 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
Stockholders or by such underwriters. The relative fault of the
Company on the one hand and of each such Stockholder 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 Stockholders agree that it would not be just
and equitable if contribution pursuant to this Section 5.08 were
determined by pro rata allocation (even if the underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an Indemnified Party as
a result of the losses, claims, damages or liabilities referred
to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this
Section 5.08, no underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which
the Registrable Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages which such underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission
or alleged omission, and no Stockholder shall be required to
contribute any amount in excess of the amount by which the total
price at which the Registrable Securities of such Stockholder
were offered to the public exceeds the amount of any damages
which such Stockholder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Each
such Stockholder's obligation to contribute pursuant to this
Section 5.08 is several in the proportion that the proceeds of
the offering received by such Stockholder bears to the total
proceeds of the offering received by all such Stockholders and
not joint.
SECTION 5.09. Participation in Public Offering. No Person may
participate in any Public Offering hereunder unless such Person
(a) agrees to sell such Person's securities on the basis provided
in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements, and (b) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably and
customarily required under the terms of such underwriting
arrangements and the provisions of this Agreement in respect of
registration rights.
SECTION 5.10. Other Indemnification. Indemnification similar to
that specified herein (with appropriate modifications) shall be
given by the Company and each Stockholder participating therein
with respect to any required registration or other qualification
of securities under any federal or state law or regulation or
governmental authority other than the Securities Act.
SECTION 5.11. Cooperation by the Company. In the event any
Stockholder shall transfer any Registrable Securities pursuant to
Rule 144A under the Securities Act, the Company shall cooperate
with such Stockholder (which shall include, without limitation,
making registration rights with respect to the Registrable
Securities to be sold (or securities issuable or to be issued in
exchange therefor) available to the ultimate purchasers thereof)
and shall provide to such Stockholder such information as such
Stockholder shall reasonably request, provided that any
registration rights made available pursuant hereto shall not be
on terms substantially more favorable to the possessors thereof
than the registration rights granted herein to the LLC.
ARTICLE 6
MISCELLANEOUS
SECTION 6.01. Entire Agreement. This Agreement constitutes the
entire agreement among the parties hereto and supersede all prior
agreements and understandings, oral and written, among the
parties hereto with respect to the subject matter hereof.
SECTION 6.02. 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, shall confer on any Person other than the parties
hereto, their respective heirs, successors, legal representatives
and permitted assigns, the DLJ Entities, and DLJ Merchant Banking
II, Inc., any rights, remedies, obligations or liabilities under
or by reason of this Agreement.
SECTION 6.03. Exclusive Financial and Investment Banking Advisor.
During the period from and including the date hereof through and
including the fifth anniversary of the date hereof, Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation ("DLJSC"), or any
Affiliate of DLJSC that the LLC may choose in its sole
discretion, shall be engaged as the exclusive financial and
investment banking advisor of the Company.
SECTION 6.04. Put Right. (a) During the period, if any, beginning
on (i) the earlier of (A) the date that all of the Indebtedness
(as defined in, and for the purposes hereof such term shall
include, the Subordinated Discount Note Due 2010 issued by the
Company to CRL Holdings, Inc.) of the Company and its
subsidiaries incurred on or prior to the Closing Date has been
repaid in full (including any refinancings or replacements of
such Indebtedness) or (B) the date that (1) all of the
Indebtedness of the Company and its subsidiaries incurred on or
prior to the Closing Date has been repaid in full, refinanced or
replaced and (2) the documentation relating to all of the
refinanced or replacement Indebtedness referred to in the
preceding clause (A) permits the Put (as defined below) to be
exercised, provided that in connection with any refinancing or
replacement referred to in the preceding clause (A) the Company
shall make a good faith effort to obtain such permission in the
documentation thereof, and ending on (ii) the earliest of (X) the
date of the Initial Public Offering, (Y) the date on which the
LLC shall own less than 50% of the outstanding Common Stock, and
(Z) twelve years from the Closing Date, CRL shall have the right
to sell (the "Put") all, but not less than all, of the Common
Stock owned by it (excluding any Common Stock acquired by it
after the Closing Date) to the Company. The price per share for
the Common Stock purchased pursuant to the Put shall be the fair
market value thereof as determined by an investment bank of
nationally recognized
standing selected by the Board, which shall not be an affiliate
of the LLC or the DLJ Entities.
(b) In the event that CRL proposes to exercise its rights under
this section, it shall provide the Company with written notice
thereof (the "Section 6.04 Notice"). The Company shall then have
75 days from the date of its receipt of the Section 6.04 Notice
in which to obtain the determination of the price per share set
forth in clause (a) above, and to provide written notice to CRL
of such price per share (the "Value Notice"). CRL shall then have
10 Business Days from the date of its receipt of the Value Notice
in which it may provide written notice to the Company of its
intention to exercise the Put (the "Put Notice"). If CRL does not
provide the Put Notice to the Company within such 10 day period,
it shall forfeit all its rights under this Section 6.04. If CRL
does provide the Put Notice to the Company within such 10 day
period: (i) the Company shall deliver to CRL the price per share
set forth in the Value Notice for the Common Stock to be sold by
CRL, and (ii) CRL shall simultaneously deliver to the Company
certificates representing such Common Stock, together with duly
executed stock powers, on a date to be determined by mutual
agreement (but not less than 10 days after the date of the
Company's receipt of the Put Notice).
SECTION 6.05. Pre-emptive Rights. (a) If the Company proposes to
issue any Company Securities (other than (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 direct or indirect merger, acquisition or
similar transaction, (iii) pursuant to a Public Offering, (iv)
upon the exercise of Warrants or High Yield Warrants, or (v) on
or prior to the Closing Date), each Other Stockholder shall have
the pre-emptive right to acquire its pre-emptive portion of such
Company Securities, at the same price per Company Security at
which such Company Securities are sold in such issuance. For
these purposes, "pre-emptive portion" shall mean a fraction, the
numerator of which is the Initial Ownership of such Stockholder
and the denominator of which is the Initial Ownership of all
Stockholders.
(b) The Company shall provide written notice to each Other
Stockholder at least twenty days prior to any issuance of Company
Securities with respect to which such Other Stockholder would
have pre-emptive rights pursuant to clause (a) above. Each Other
Stockholder shall then have ten days from its receipt of such
notice in which to provide written notice to the Company of its
exercise of its rights pursuant to this Section 6.05.
(c) The rights of any Other Stockholder under this Section 6.05
shall expire at such time as such Other Stockholder owns less
than 40% of its Initial Ownership of Common Stock.
(d) The Company shall not be under any obligation to consummate
any proposed issuance of Company Securities, regardless of
whether it shall have delivered a written notice in respect of
such issuance.
SECTION 6.06. Assignability. This Agreement shall not be
assignable by any party hereto, except that any Person acquiring
Shares who is required by the terms of this Agreement or any
employment agreement or stock purchase, option, stock option or
other compensation plan of the Company or any Subsidiary to
become a party hereto shall (unless already bound hereby) execute
and deliver to the Company an agreement to be bound by this
Agreement and shall thenceforth be a "Stockholder". Any
Stockholder who ceases to own beneficially any Shares shall cease
to be bound by the terms hereof (other than the provisions of
Sections 5.05, 5.06, 5.07, 5.08, and 5.10 applicable to such
Stockholder with respect to any offering of Registrable
Securities completed before the date such Stockholder ceased to
own any Shares).
SECTION 6.07. Amendment; Waiver; Termination. 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 (i) the
Company with the approval of the Board, (ii) DLJMB, and (iii)
CRL, until such time as CRL is no longer entitled to nominate a
director to the Board; provided that if any such amendment or
modification has an adverse effect on any Stockholder that is
materially disproportionate to the effect of such amendment or
modification on Stockholders generally, the approval of such
Stockholder shall also be required.
SECTION 6.08. Notices. All notices, requests and other
communications to any party hereunder shall be in writing
(including facsimile transmissions and shall be given,
if to the Company or the Management Stockholders, to:
Xxxxxxx River Laboratories Holdings, Inc.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxx
Fax: (000) 000-0000
with a copy to:
Attention:
Fax:
and a copy to the LLC at its address listed below;
if to the LLC, to:
CRL Acquisition LLC
x/x XXX Xxxxxxxx Xxxxxxx Xxxxxxxx XX, X.X.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxx
Fax: (000) 000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx.
Fax: (000) 000-0000
if to CRL, to:
Attention:
Fax:
with a copy to:
Xxxxx Xxxxxxx LLP
Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxx Xxxxx
Fax: (000) 000-0000
if to DLJ Investment Partners, L.P., to:
DLJ Investment Partners, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: 000-000-0000
if to DLJ Investment Funding, Inc., to:
DLJ Investment Funding, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: 000-000-0000
if to DLJ ESC II, L.P., to:
DLJ ESC II L.P.
c/o DLJ LBO Plans
Management Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Fax: 000-000-0000
if to BB, to:
Xxxxx Brothers Xxxxxxxx & Co.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Fax: 000-000-0000
with a copy to:
Xxxx Xxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxx
Fax: 000-000-0000
if to TW, to:
Attention:
Fax:
with a copy to:
Attention:
Fax:
if to Carlyle, to:
Attention:
Fax:
with a copy to:
Attention:
Fax:
All notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if
received prior to 5 p.m. in the place of receipt and such day is
a business day in the place of receipt. Otherwise, any such
notice, request or communication shall be deemed not to have been
received until the next succeeding business day in the place of
receipt. Any notice, request or other written communication sent
by facsimile transmission shall be confirmed by certified mail,
return receipt requested, posted within one Business Day, or by
personal delivery, whether courier or otherwise, made within two
Business Days after the date of such facsimile transmission.
Any Person who becomes a Stockholder shall provide its address
and fax number to the Company, which shall promptly provide such
information to each other Stockholder.
SECTION 6.09. Headings. The headings contained in this Agreement
are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
SECTION 6.10. 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 6.11. Applicable Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE
CONFLICTS OF LAW RULES OF SUCH STATE.
SECTION 6.12. 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 6.13. Consent to Jurisdiction. Any suit, action or
proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby may be brought in the United
States District Court for the Southern District of New York or
any other New York State court sitting in New York City, and each
of the parties hereby consents to the non-exclusive jurisdiction
of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably
waives, to the fullest extent permitted by law, any objection
which it may now or hereafter have to the laying of the venue of
any such suit, action or proceeding in any such court or that any
such suit, action or proceeding which is brought in any such
court has been brought in an inconvenient forum. Process in any
such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party
agrees that service of process on such party as provided in
Section 6.08 shall be deemed effective service of process on such
party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
XXXXXXX RIVER LABORATORIES
HOLDINGS, INC.
By:
Name:
Title:
CRL ACQUISITION LLC
By:
Name:
Title:
CRL HOLDINGS, INC.
By: ____________________
Name:
Title:
DLJ INVESTMENT PARTNERS, L.P.
By: DLJ INVESTMENT PARTNERS, INC.,
Managing General Partner
By:
Name:
Title:
DLJ ESC II L.P.
By: DLJ LBO PLANS MANAGEMENT
CORPORATION,
General Partner
By:
Name:
Title:
DLJ INVESTMENT FUNDING, INC.
By:
Name:
Title:
THE 1818 MEZZANINE FUND, L.P.
By: XXXXX BROTHERS XXXXXXXX & CO.
General Partner
By:
Name:
Title:
[TRUST COMPANY OF THE WEST]
By:
Name:
Title:
[CARLYLE]
By:
Name:
Title:
MANAGEMENT STOCKHOLDERS
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
Xxxxx X. Palm
Real X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xx. Xxxxx Sun Xxx
Xx. Xxxx X. Xxxxxx
Xx. Xxxxxxxxxx Xxxxxxxx
Xx. Xxx Xxxxxx
Xxxxxxxxx Xxxxxxxxx
