==========================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 1)
DECISIONONE HOLDINGS CORP.
(Name of Issuer)
Common Stock
$.01 PAR VALUE
(Title of Class of Securities)
243458 10 0
(CUSIP Number)
Donaldson, Lufkin & Jenrette, Inc.
(Name of Persons Filing Statement)
George R. Bason, Jr.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Tel. No.: 212 450 4340
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
August 7 , 1997
(Date of Event which Requires Filing of
this Statement)
If the filing person has previously filed a statement on
Schedule 13G to report the acquisition which is the subject of this Schedule
13D, and is filing this statement because of Rule 13d-1(b)(3) or (4), check
the following: [ ]
==========================================================================
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH 7,995,513
9 SOLE DISPOSITIVE POWER
4,703,762
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking Partners II-A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 7,995,513
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
187,326
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH 7,995,513
9 SOLE DISPOSITIVE POWER
76,055
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Millennium Partners - A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
14,834
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
EAB Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 7,995,513
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
21,119
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Offshore Partners II, C.V.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Netherlands Antilles
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 7,995,513
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
231,307
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
5,234,403
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Merchant Banking II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 7,995,513
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
5,234,403
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES
BENEFICIALLY OWNED BY 8 SHARED VOTING POWER
EACH REPORTING PERSON
WITH 7,995,513
9 SOLE DISPOSITIVE POWER
275,003
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners- A, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
102,127
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Associates, LP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
8 SHARED VOTING POWER
NUMBER OF SHARES
BENEFICIALLY OWNED BY 7,995,513
EACH REPORTING PERSON
WITH 9 SOLE DISPOSITIVE POWER
377,130
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Diversified Partners, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
377,130
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ First ESC L.L.C.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
874,223
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
OO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ LBO Plans Management Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
874,223
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJMB Funding II, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
946,201
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Investors, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
7,431,957
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprout Growth II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
457,319
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Sprout CEO Fund, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
7,617
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
DLJ Capital Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
10,568
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997 Partners
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
88,052
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
UK Investment Plan 1997, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
-0-
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
88,052
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,995,513 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.0% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson Lufkin & Jenrette Securities Corporation
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
20,900
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON -0-
WITH
9 SOLE DISPOSITIVE POWER
20,900
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
20,900 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.2% - See Item 5
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Donaldson Lufkin & Jenrette, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
20,900
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 7,995,513
WITH
9 SOLE DISPOSITIVE POWER
8,016,413
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
HC, CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Equitable Companies Incorporated
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DE
7 SOLE VOTING POWER
20,900
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON 8,016,413
WITH
9 SOLE DISPOSITIVE POWER
8,016,413
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
CO, HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA - UAP
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Finaxa
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
HC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances I.A.R.D. Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 - (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
AXA Courtage Assurance Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alpha Assurances Vie Mutuelle
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [x]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
IC
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Claude Bebear, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Patrice Garnier, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE 13D
CUSIP No. 243458 10 0
<S> <C> <C>
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Henri de Clermont - Tonnerre, as AXA Voting Trustee
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
Not Applicable
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Citizen of France
7 SOLE VOTING POWER
See Item 5
NUMBER OF SHARES 8 SHARED VOTING POWER
BENEFICIALLY OWNED BY
EACH REPORTING PERSON See Item 5
WITH
9 SOLE DISPOSITIVE POWER
See Item 5
10 SHARED DISPOSITIVE POWER
See Item 5
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,016,413 - See Item 5 (not to be construed as an admission of beneficial ownership)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
64.1% - See Item 5
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<//TABLE>
This Schedule 13D is amended and restated in its entirety to
read as follows:
Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the common stock, $0.01 par value per share (the "Shares"), of DecisionOne
Holdings Corp., a Delaware corporation ("DecisionOne"). The principal
executive offices of DecisionOne are located at 50 East Swedesford Road,
Frazer, Pennsylvania, 19355.
Item 2. Identity and Background.
This Schedule 13D is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"): (1) DLJ Merchant
Banking Partners II, L.P., a Delaware limited partnership ("Partners II"); (2) DLJ
Merchant Banking Partners II-A, L.P. a Delaware limited partnership ("Partners
II-A"); (3) DLJ Millennium Partners, L.P., a Delaware limited partnership
("Millennium"); (4) DLJ Millennium Partners-A, L.P., a Delaware limited
partnership ("Millennium-A"); (5) EAB Partners, L.P., a Delaware limited
partnership ("EAB"); (6) DLJ Offshore Partners II, C.V., a Netherlands
Antilles limited partnership ("Offshore II"); (7) DLJ Merchant Banking II,
LLC, a Delaware limited liability company ("MBII LLC"); (8) DLJ Merchant
Banking II, Inc., a Delaware corporation ("MBII INC"); (9) DLJ Diversified
Partners, L.P., a Delaware limited partnership ("Diversified"); (10) DLJ
Diversified Partners-A, L.P., a Delaware limited partnership
("Diversified-A"); (11) DLJ Diversified Associates, L.P., a Delaware limited
partnership ("DA LP"); (12) DLJ Diversified Partners, Inc., a Delaware
corporation ("DP INC"); (13) DLJ First ESC, L.L.C., a Delaware limited
liability company ("ESC"); (14) DLJ LBO Plans Management Corporation, a
Delaware corporation ("LBO"); (15) DLJ MB Funding II, Inc., a Delaware
corporation ("Funding II"); (16) DLJ Capital Investors, Inc., a Delaware
corporation ("DLJCI"); (17) UK Investment Plan 1997 Partners, a Delaware
general partnership ("UKIP 1997") (18) UK Investment Plan 1997, Inc. ("UKIP
1997 INC" and together with the previously listed entities, the "DLJ
Entities"); (19) Sprout Growth II, L.P., a Delaware limited partnership
("Growth II"); (20) Sprout CEO Fund, L.P., a Delaware limited partnership
("CEO"); (21) DLJ Capital Corporation, a Delaware corporation ("DLJCC" and
together with Growth II and CEO, the "Sprout Funds"); (22) Donaldson, Lufkin
& Jenrette Securities Corporation, a Delaware corporation ("DLJSC"); (23)
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation ("DLJ"); (24) The
Equitable Companies Incorporated, a Delaware corporation ("EQ"); (25) AXA-UAP,
a societe anonyme organized under the laws of France ("AXA"); (26) Finaxa, a societe
anonyme organized under the laws of France; (27) AXA Assurances I.A.R.D.
Mutuelle, a mutual insurance company organized under the laws of France; (28)
AXA Assurances Vie Mutuelle, a mutual insurance company organized under the
laws of France; (29) AXA Courtage Assurance Mutuelle, a mutual insurance
company organized under the laws of France; (30) Alpha Assurances Vie
Mutuelle, a mutual insurance company organized under the laws of France, and
(31) Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre, trustees
(the "AXA Voting Trustees") of a voting trust (the "AXA Voting Trust")
established pursuant to a Voting Trust Agreement by and among AXA and the AXA
Voting Trustees dated as of May 12, 1992, and as amended January 22, 1997.
Partners II, Partners II-A, Offshore II, Diversified,
Diversified-A, ESC, Funding II, UKIP 1997, Millennium, Millennium-A and EAB
are collectively referred to as the "DLJ Funds" and DLJCC, Growth II and
CEO are collectively referred to as the "Sprout Funds".
Partners II and Partners II-A are each Delaware limited
partnerships which make investments for long term appreciation. MBII LLC is
the Associate General Partner of Partners II and Partners II-A. MBII INC is
the Managing General Partner of Partners II and Partners II-A. MBII LLC and
MBII INC make all of the investment decisions on behalf of Partners II and
Partners II-A.
Millennium, Millennium-A, and EAB are each Delaware limited
partnerships and Offshore II is a Netherlands Antilles limited partnership.
Each partnership makes investments for long term appreciation. MBII LLC is
the Associate General Partner of Millennium, Millennium-A, EAB and Offshore
II. MBII INC is the General Partner of Millennium, Millennium-A, EAB, and
Offshore II. MBII LLC and MBII INC make all of the investment decisions on
behalf of Millennium, Millennium-A, EAB, and Offshore.
MBII LLC is a Delaware limited liability company and is a
registered investment adviser. As the Advisory General Partner of Partners
II, Partners II-A, Millennium, Millennium II-A, EAB and Offshore II, MBII LLC,
in conjunction with MBII INC, participates in investment decisions made on
behalf of these entities. MBII INC is the managing member of MBII LLC.
MBII INC is a Delaware corporation and is a registered
investment adviser. As the Managing General Partner of Partners II and
Partners II-A, and as the General Partner of Millennium, Millennium-A, EAB and
Offshore II, MBII INC-A is responsible for the day to day management of these
entities and, in conjunction with MBII LLC, participates in investment
decisions made on behalf of these entities. MBII INC is a wholly owned
subsidiary of DLJCI.
Diversified and Diversified-A are each Delaware limited
partnerships which make investments for long term appreciation. A portion of
Diversified and Diversified-A's capital commitments are dedicated to making
side-by-side investments with Partners II and Partners II-A, respectively. DA
LP is the Associate General Partner of Diversified and Diversified-A and DP
INC is the Managing General Partner of Diversified and Diversified-A. DP INC
is responsible for the day to day management of Diversified and Diversified-A.
DA LP is a Delaware limited partnership and a registered
investment adviser. As the Associate General Partner of Diversified and
Diversified-A, DA LP, in conjunction with DP INC and subject to the terms of
the Diversified Agreement, participates in the management of investments of
Diversified and Diversified-A. DP INC is the general partner of DA LP.
DP INC is a Delaware corporation and a registered investment
adviser. As the Managing General Partner of Diversified and Diversified-A, DP
INC is responsible for the day to day management of Diversified and
Diversified-A. In conjunction with DA LP, DP INC participates in the
investment decisions made on behalf of Diversified and Diversified-A. DP INC
is a wholly owned subsidiary of DLJCI.
ESC is a Delaware limited liability company and "employee
securities company" as defined in the Investment Company Act of 1940, as
amended ("ESC"). LBO, as the manager of ESC, makes all of the investment
decisions on behalf of ESC.
LBO is a Delaware corporation and a registered investment
adviser. LBO is a wholly owned subsidiary of DLJCI.
Funding II is a Delaware corporation which makes investments
for long term appreciation generally side-by-side with Partners II.
Funding II is a wholly owned subsidiary of DLJCI.
DLJCI is a Delaware holding company. DLJCI is a wholly owned
subsidiary of DLJ.
UKIP 1997 is a Delaware general partnership which makes
investments for long term appreciation generally side-by-side with Partners
II. UKIP 1997 INC and DLJ are each general partners of UKIP 1997.
UKIP 1997 INC is a Delaware corporation. UKIP 1997 INC is a
wholly owned subsidiary of DLJ.
Growth II is a Delaware limited partnership which makes
investments for long term appreciation. DLJCC is the managing general partner
of Growth II. DLJCC makes all of the investment decisions on behalf of Growth
II.
CEO is a Delaware limited partnership which makes investments
for long term appreciation. DLJCC is the managing general partner of CEO.
DLJCC makes all of the investment decisions on behalf of CEO.
DLJCC is a Delaware corporation formed to make investments in
industrial and other companies to participate in the management of venture
capital pools. DLJCC is a wholly owned subsidiary of DLJ.
DLJSC is a Delaware corporation and a registered
broker/dealer. DLJSC is a wholly owned subsidiary of DLJ.
DLJ is a publicly held Delaware corporation. DLJ directly
owns all of the capital stock of DLJCI, UKIP 1997 INC, DLJCC and DLJSC.
DLJ, acting on its own behalf or through its subsidiaries, is a registered
broker/dealer and registered investment adviser engaged in investment
banking, institutional trading and research, investment management and
financial and correspondent brokerage services.
EQ is a Delaware corporation and is a holding company. As of
August 19, 1997, EQ owns, directly or indirectly, 76.4% of DLJ.
AXA is a societe anonyme organized under the laws of France
and a holding company for an international group of insurance and related
financial services companies. As of June 30, 1997, approximately 60.5% of
the outstanding common stock, as well as certain shares of convertible
preferred stock, of EQ, was beneficially owned by AXA. For insurance
regulatory purposes, to insure that certain indirect minority shareholders
of AXA will not be able to exercise control over EQ and certain of its
insurance subsidiaries, the voting shares of EQ capital stock beneficially
owned by AXA and its subsidiaries have been deposited into the AXA Voting
Trust. For additional information regarding the AXA Voting Trust,
reference is made to the Schedule 13D filed by AXA with respect to EQ. As
of August 19, 1997, AXA directly owned 0.2% of DLJ.
Finaxa is a societe anonyme organized under the laws of France
and is a holding company. As of March 5, 1997, Finaxa controlled directly and
indirectly approximately 22.4% of the issued ordinary shares (representing
approximately 32.8% of the voting power) of AXA.
Each of AXA Assurances I.A.R.D. Mutuelle, AXA Assurances
Vie Mutuelle, AXA Courtage Assurance Mutuelle, and Alpha Assurances Vie
Mutuelle (collectively, the "Mutuelles AXA") is a mutual insurance company
organized under the laws of France. Each of the Mutuelles AXA is owned by
its policy holders. As of March 5, 1997, the Mutuelles AXA, as a group,
owned approximately 61.4% of the issued shares (representing
approximately 72.0% of the voting power) of Finaxa. Including the ordinary
shares owned by Finaxa, on March 5, 1997, the Mutuelles AXA directly or
indirectly controlled 25.9% of the issued ordinary shares (representing
37.8% of the voting power) of AXA. Acting as a group, the Mutuelles
AXA control AXA and Finaxa.
Claude Bebear, Patrice Garnier and Henri de Clermont-Tonnerre,
the AXA Voting Trustees, exercise all voting rights with respect to the shares
of EQ capital stock beneficially owned by AXA and its subsidiaries that have
been deposited in the AXA Voting Trust. The business address, citizenship and
present principal occupation of each of the AXA Voting Trustees are set forth
on Schedule K attached hereto.
The address of the principal business and office of each of the
DLJ Entities, the Sprout Funds, DLJSC and DLJ is 277 Park Avenue, New York,
New York 10172. The address of the principal business and principal office of
EQ is 1290 Avenue of the Americas, New York, New York 10104.
The address of the principal business and principal office
of each of AXA and the AXA Voting Trustees is 9 Place Vendome, 75001 Paris,
France; of Finaxa is 23, avenue Matignon, 75008 Paris, France; of each of
AXA Assurances I.A.R.D. Mutuelle and AXA Assurances Vie Mutuelle is 21,
rue de Chateaudun, 75009 Paris, France; of AXA Courtage Assurance Mutuelle
is 26, rue Louis-le-Grand, 75002 Paris, France; and of Alpha Assurances Vie
Mutuelle is Tour Franklin, 100/101 Terrasse Boieldieu, Cedex 11, 92042
Paris La Defense, France.
The name, business address, citizenship, present principal
occupation or employment and the name and business address of any
corporation or organization in which each such employment is conducted, of
each executive officer or member, as applicable, of the Board of Directors,
the Supervisory Board or the Conseil d'Administration (French analogue of a
Board of Directors) of MBII INC, DP INC, LBO, FUNDING II, DLJCI, UKIP 1997
INC, DLJCC, DLJSC, DLJ INC, EQ, AXA, Finaxa and the Mutuelles AXA are set
forth on Schedules A through P, respectively, attached hereto.
During the past five (5) years, neither any of the Reporting
Persons nor, to the best knowledge of any of the Reporting Persons, any of the
other persons listed on Schedules A through P attached hereto, has been (i)
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or (ii) a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to United
States federal or state securities laws or finding any violation with respect
to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
The general and limited partners of the DLJ Funds and the
Sprout Funds contributed $172,960,020 and $10,936,592, respectively, for
7,520,009 and 475,504 Shares, respectively.
Item 4. Purpose of Transaction.
On May 4, 1997, DecisionOne and Quaker Holding Co., a Delaware
corporation that, as of May 4, 1997, was wholly-owned by certain of the DLJ
Funds ("Quaker"), entered into an Agreement and Plan of Merger (as amended on
July 15, 1997, the "Merger Agreement," attached to the Schedule 13D filed on
May 20, 1997, and made a part hereof as Exhibit 3). The Merger Agreement
provides, among other things, for the merger of Quaker with and into
DecisionOne (the "Merger"), with DecisionOne as the surviving corporation (the
"Surviving Corporation"). The Merger Agreement provides that approximately
94.7% of the issued and outstanding Shares of DecisionOne will be converted
into cash and that approximately 5.3% of such Shares will be retained by
existing stockholders. The transactions contemplated by the Merger Agreement
were approved by the stockholders of DecisionOne and were consummated, in each
case, on August 7, 1997 (the "Effective Time").
Item 5. Interest in Securities of the Issuer.
DLJSC has been a market-maker in the Units of DecisionOne
since July 30, 1997. Each Unit consists of a $1,000 principal amount at
maturity 11 1/2% Senior Discount Debenture due 2008 and one warrant to purchase
1.9 Shares. In the ordinary course of its market-making activities, DLJSC has
acquired and disposed of Units at prices ranging from $572.80 to $625.00 per
Unit during the period of July 30, 1997 to August 19, 1997.
Pursuant to the terms of the Merger Agreement, on August 7,
1997 (the "Closing Date"), DecisionOne filed a Certificate of Merger with the
Secretary of the State of Delaware, and the Merger was effective as of the
filing of such certificate. In connection therewith, immediately prior to
the Effective Time, Quaker entered into a Subscription Agreement (the
"Subscription Agreement") (attached hereto and made a part hereof as
Exhibit 5) with Apollo Investment Fund III, L.P., Apollo Overseas Partners
III, L.P., Apollo (U.K.) Partners III, L.P. (collectively, "Apollo"),
Bain Capital Fund V, L.P., Bain Capital Fund V-B, L.P., BCIP Trust
Associates (collectively, "Bain"), Thomas H. Lee Equity Fund III, L.P.,
Thomas H. Lee Foreign Fund III, L.P., THL Co. - Investors III - A LLC, THL
Co. - Investors III - B LLC (collectively, "THL"), DLJCC, Growth II and CEO
and Ontario Teachers' Pension Plan Fund ("Teachers", and collectively with
the DLJ Funds, Apollo, Bain, THL and the Sprout Funds, the "Institutional
Investors"), dated August 7, 1997, pursuant to which the DLJ Funds and the
Institutional Investors purchased shares of common stock of Quaker on the
terms set forth therein. At the Effective Time, each outstanding share of
Quaker common stock was converted into one Share. Immediately following
the Effective Time, the DLJMB Funds' and Institutional Investors'
approximate percentage ownership of the outstanding common stock of the
Surviving Corporation is as follows:
(1) DLJ Funds, 60.6%; (2) Apollo, 6.5%; (3) Bain 6.5%; (4)
THL 6.5%; (5) Sprout Funds, 3.8%; and (6) Teachers, 4.0%.
In addition, DecisionOne, the DLJ Funds, the Institutional
Investors and certain members of DecisionOne management (the "Management
Shareholders"), have entered into an Investors' Agreement dated as of August
7, 1997 (the "Investors' Agreement") (attached hereto and made part hereof as
Exhibit 6).
Pursuant to the Investors' Agreement, the Board of Directors
will comprise 7 members, 4 of which will be nominated by Partners II, 2 of
which will be independent directors satisfactory to the DLJ Funds and 1 of
which will be nominated by the Management Shareholders. Each of the parties
to the Investors' Agreement has agreed to vote its shares of DecisionOne in
favor of the persons so nominated, provided that none of the parties will be
required to vote for another party's nominees if the number of Shares held by
the person or group making the nomination is less than 10% of such person's or
group's Initial Ownership (defined as the number of Shares held by such person
or group as of the date of the Investors' Agreement).
As long as ownership by the DLJ Funds and their permitted
transferees of Shares exceeds 50% of their Initial Ownership of Common Stock,
each of the Institutional Shareholders and their Permitted Transferees may
transfer shares to other Permitted Transferees (as defined in the Investors'
Agreement) and, otherwise, only as follows: (i) pursuant to the Tag-along
Rights described below; (ii) pursuant to the Drag-along Rights described
below; and (iii) pursuant to the exercise of registration rights described
below. As to any Institutional Shareholder, shares will be freely
transferable at the earlier of (i) the date on which such Shareholder's
ownership of shares of DecisionOne falls below 25% of its Initial Ownership
and (ii) 7 years after the Closing Date, provided that no transfer that is
otherwise permitted under the Investors' Agreement may be made to any Adverse
Person (defined as any person determined by the Board of Directors to be a
competitor or potential competitor of DecisionOne), and provided further that
Tag-along Rights, Drag-along Rights and registration rights will continue in
effect.
The Management Shareholders may sell or otherwise transfer
their shares of DecisionOne only as follows: (i) to a Permitted Transferee;
(ii) pursuant to the Tag-along Rights described below; (iii) pursuant to the
Drag-along Rights described below; (iv) in a public offering; provided that
(a) no Management Shareholder may sell any shares of DecisionOne in the first
public offering of shares of DecisionOne after the date of the Investors'
Agreement (the "FPO"), (b) in each public offering following the FPO, each
Management Shareholder may sell no more than his or her Pro Rata Portion
(defined as the number of shares of DecisionOne the Shareholder in question
holds (either non-Purchased Shares or Purchased Shares, as the case may be)
multiplied by a fraction the numerator of which is the number of Shares to be
sold by the DLJ Funds and the Institutional Shareholders and their Permitted
Transferees in the public offering in question and the denominator of which is
the total number of Shares held in aggregate by the DLJ Funds and the
Institutional Shareholders and their Permitted Transferees prior to such
public offering) of non-Purchased Shares and (d) notwithstanding any of the
above, each Management Shareholder may sell a number of the Shares purchased
by such Management Shareholder on the Closing Date ("Purchased Shares") equal
to his or her Pro Rata Portion in each public offering, including the FPO (the
limitations in (a), (b), (c) and (d) are referred to collectively as the
"Public Offering Limitations"); (v) 180 days after any public offering,
pursuant to the exemption from registration provided under Rule 144 under the
Securities Act of 1933 (the "Securities Act"), provided that until the fourth
anniversary of the Investors' Agreement (the "Restriction Termination Date")
such sales cannot reduce the Management Shareholder's ownership to (or occur
at a time when such Shareholder'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 Initial Ownership of the
DLJ Funds and the Institutional Shareholders remaining after previous
dispositions by the DLJ Funds and the Institutional Shareholders; and (vi)
after the Restriction Termination Date, pursuant to a sale to a third party for
cash, provided that (x) the amount sold in any 12-month period may not exceed
20% of the Management Shareholder's holdings at the beginning of the 12-month
period and (y) in no event will a Management Shareholder sell securities to an
Adverse Person (as defined in the Investors' Agreement).
The above transfer restrictions applicable to the Management
Shareholders will terminate upon the earliest to occur of (i) one or more
public offering of Shares having a value of at least $100,000,000, (ii) the
fourth anniversary of the Investors Agreement and (iii) a change of control of
DecisionOne. Notwithstanding the foregoing sentence, the transfer restrictions
will not terminate with respect to a Management Shareholder's Shares if there
are any outstanding loans from DecisionOne to the Management Shareholder that
are secured by such Shares unless the proceeds from the sale of such Shares
are applied to repay the loan in full.
The Investors' Agreement provides that if the DLJ Funds
propose to sell Shares, the Management Shareholders and the other
Institutional Shareholders will have the right to participate in the sale
("Tag-along Rights"), provided that no such rights shall apply (i) to sales of
up to 2 1/2%, in the aggregate, of the outstanding Shares, (ii) to sales to
Permitted Transferees of the DLJ Funds, or (iii) to public offerings. If
Tag-along Rights apply, the DLJ Funds will inform the Management
Shareholders and the Institutional Shareholders (collectively, the "Tag
Shareholders") of the terms and conditions of the proposed sale and offer each
Tag Shareholder the opportunity to participate. If the number of Shares that
the DLJ Funds and the Tag Shareholders propose to sell exceeds the number
that can be sold on the terms and conditions proposed by the buyer, the DLJ
Funds and each Tag Shareholder who has exercised Tag-along Rights will be
entitled to sell up to his or her Tag Along Portion. Tag Along Portion shall
mean the number of Shares owned by such Tag Shareholder (on a fully diluted
basis) (and in the case of the DLJ Funds, owned by the DLJ Funds on a
fully diluted basis) multiplied by a fraction, the numerator of which shall be
the number of Shares proposed to be sold by the DLJ Funds and the
denominator of which shall be the total number of Shares (on a fully diluted
basis) held by parties to the Investors' Agreement. To the extent any Tag
Shareholder sells less than such Tag Shareholder's Tag Along Portion, the
DLJ Funds shall be entitled to sell their own Shares in lieu of such Tag
Shareholder. The DLJ Funds and the Tag Shareholders who have exercised
Tag-along Rights may sell their Shares on substantially the same terms and
conditions set forth in the notice (subject to an increase in the amount of
consideration of up to 10%) within 120 days of the date all Tag-along Rights
are waived, exercised or expire.
The Investors' Agreement contemplates that if (i) the DLJ
Funds propose to sell Shares constituting not less than 50% of their Initial
Ownership in a bona fide third party sale, or (ii) the DLJ Funds propose a
sale in which the Shares to be sold by the DLJ Funds and the Institutional
Shareholders and their permitted transferees, together with the Subject
Securities (as defined below), constitute more than 50% of the outstanding
Shares held by all such Shareholders, the DLJ Funds will be entitled to
compel the Institutional Shareholders and the Management Shareholders to
participate in the sale ("Drag-along Rights") with respect to the Shares owned
by each Institutional Shareholder and Management Shareholder which constitute
the Drag-along Portion of the number of Shares that such person owns.
Drag-along Portion shall mean as to any Institutional or Management
Shareholder the number of Shares such person owns (on a fully diluted basis)
multiplied by a fraction the numerator of which is the number of Shares to be
sold by the seller and proposed sellers and the denominator of which is the
total number of Shares owned by the seller and proposed sellers. Shareholders
have the right, under certain circumstances, to refuse to participate in such
a sale; should any Shareholder refuse, the DLJ Funds may cause such
Shareholder to sell its Drag-Along Portion to the DLJ Funds.
The parties to the Investors' Agreement also have the right,
(A) in the event DecisionOne proposes to issue any equity securities and the
DLJ Funds propose to purchase any securities to be issued, to purchase their
pro rata portion of such equity securities on a preemptive basis and (B) to
purchase their pro rata portion of any additional Shares the DLJ Funds may
purchase.
The DLJ Funds have the right to request DecisionOne to
register for sale their Shares, on six occasions, if the aggregate proceeds
expected to be received from such sale exceeds $50,000,000 (in the case of the
first public offering following August 7, 1997) or $10,000,000 in all other
cases. Once DecisionOne has effected two such registrations for the DLJMB
Funds, the other parties to the Investors' Agreement may request one
registration of their Shares. Each party to the Investors' Agreement has the
right, subject to certain limitations, to request DecisionOne to include its
Shares in any registration under taken by DecisionOne. All requests for
registration are subject to certain other customary terms and conditions.
While each of the DLJ Entities may be deemed to beneficially
own the Shares held by the DLJ Funds, the Institutional Shareholders and the
Management Shareholders (collectively, the "Investors' Shares"), each of the
DLJ Entities disclaims beneficial ownership of those Investors' Shares held by
the Institutional Shareholders and Management Shareholders.
Each of the reporting persons has the sole power to dispose of
the number of Shares beneficially owned directly by each of them as indicated
in the tables above.
As the sole stockholder of DLJCI and UKIP 1997 INC and
DLJCC, DLJ may be deemed, for purposes of Rule 13d-3 under the Act, to
beneficially own indirectly the Shares that may be deemed to be owned
beneficially by each of them. As the sole stockholder of DLJSC, DLJ may be
deemed, for purposes of 13d-3 under the Act, to beneficially own indirectly
the Shares beneficially owned directly by DLJSC which it acquires in the
ordinary course through its activities as a market maker in the Units.
Because of EQ's ownership of DLJ, EQ may be deemed, for purposes of Rule
13d-3 under the Act, to beneficially own indirectly the Shares that may be
deemed to be beneficially owned indirectly by DLJ. Each of DLJ and EQ
disclaims beneficial ownership of the such Shares.
Because of AXA's ownership interest in EQ, and the AXA
Voting Trustees' power to vote the EQ shares placed in the AXA Voting Trust,
each of AXA and the AXA Voting Trustees may be deemed, for purposes of
Rule 13d-3 under the Act, to beneficially own indirectly the Shares
that EQ may be deemed to beneficially own indirectly. Because of the direct
and indirect ownership interest in AXA of Finaxa and the Mutuelles AXA,
each of Finaxa and the Mutuelles AXA may be deemed, for purposes of Rule 13d-3
under the Act, to beneficially own indirectly the Shares that
AXA may be deemed to beneficially own indirectly. AXA, Finaxa, the
Mutuelles AXA, and the AXA Voting Trustees expressly disclaim beneficial
ownership of any of the Shares.
Subject to market conditions and other factors, the DLJ Funds
or other affiliates of DLJ may acquire or dispose of shares of DecisionOne
from time to time in future open-market, privately negotiated or other
transactions, may enter into agreements with third parties relating to
acquisitions of securities issued or to be issued by the Surviving
Corporation, may enter into agreements with the management of DecisionOne
relating to acquisitions of shares of the Surviving Corporation by members of
management, issuances of options to management or their employment by the
surviving corporation, or may effect other similar agreements or transactions.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
See response to Item 4.
A copy of the Merger Agreement was attached as Exhibit 3 to the
Schedule 13D filed by the Reporting Persons with the Securities and Exchange
Commission on May 20, 1997 and is incorporated herein by reference.
A copy of each of the Subscription Agreement and the Investors'
Agreement are attached hereto as Exhibits 5 and 6 and are incorporated herein
by reference. The summaries of the terms of the Merger Agreement, the
Subscription Agreement and the Investors' Agreement set forth herein are
qualified in their entirety by reference to Exhibits 3, 5 and 6, respectively.
DLJSC has been a market-maker in the Units of DecisionOne since
July 30, 1997. Each Unit consists of a $1,000 principal amount at maturity
11 1/2% Senior Discount Debenture due 2008 and one warrant to purchase 1.9
shares of common stock, par value $.01 per share of DecisionOne. In the
ordinary course of its market-making activities, DLJSC has acquired and
disposed of Units at prices ranging from $572.80 to $625.00 per Unit during
the period of July 30, 1997 to August 19, 1997.
Except for the agreements described in the response to Item 4,
to the best knowledge of the Reporting Persons, there are no contracts,
arrangements, understandings or relationships (legal or otherwise) between the
persons enumerated in Item 2, and any other person, with respect to any
securities of DecisionOne, including, but not limited to, transfer or voting
of any of the securities, finder's fees, joint ventures, loan or option
arrangements, puts or calls, guarantees of profits, division of profits or
loss, or the giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1: Joint filing agreement among the Reporting Persons
Exhibit 2: Powers of Attorney (previously filed with the
Schedule 13D on May 20, 1997)
Exhibit 3: Agreement and Plan of Merger dated as of May 4,
1997 between DecisionOne Holdings Corp. and
Quaker Holding Co. (previously filed with the
Schedule 13D on May 20, 1997)
Exhibit 4: Voting Agreement and Irrevocable Proxy dated May
4, 1997 between DecisionOne Holdings Corp.,
Quaker Holding Co., J.H. Whitney & Co., Welsh,
Carson, Anderson & Stowe IV, L.P., Welsh, Carson,
Anderson & Stowe VI, L.P. and WCAS Capital
Partners, L.P. (previously filed with the
Schedule 13D on May 20, 1997)
Exhibit 5: Subscription Agreement dated as of August 7,
1997 among Quaker Holding Co. and the buyers
named therein.
Exhibit 6: Investors' Agreement dated as of August 7, 1997
among DecisionOne Holdings Corp., the DLJ Funds
and certain other persons named therein.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Merchant Banking Partners II, L.P.
By DLJ Merchant Banking II, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
DLJ Merchant Banking Partners II-A, L.P.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
DLJ Millennium Partners, L.P.
By DLJ Merchant Banking II, Inc.,
as General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
DLJ Millennium Partners -A, L.P.
By DLJ Merchant Banking II, Inc.,
as General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
EAB Partners, L.P.
By DLJ Merchant Banking II, Inc.,
as General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Offshore Partners II, C.V.
By DLJ Merchant Banking II, Inc.,
as General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Merchant Banking II, LLC
By DLJ Merchant Banking II, Inc.,
as Managing Member
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Merchant Banking II, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Diversified Partners, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
DLJ Diversified Partners-A, L.P.
By DLJ Diversified Partners, Inc.,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Diversified Associates, L.P.
By DLJ Diversified Partners, Inc.,
as General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Diversified Partners, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ First ESC L.L.C.
By DLJ LBO Plans Management Corporation,
as Manager
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ LBO Plans Management Corporation
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJMB Funding II, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
DLJ Capital Investors, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
Sprout Growth II, L.P.
By DLJ Capital Corporation,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President,
Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
Sprout CEO Fund, L.P.
By DLJ Capital Corporation,
as Managing General Partner
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President,
Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
DLJ Capital Corporation
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
UK Investment Plan 1997 Partners
By UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief of the
undersigned, the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Date: August 26, 1997
UK Investment Plan 1997, Inc.
By: /s/ Thomas E. Siegler
------------------------------------
Name: Thomas E. Siegler
Title: Secretary and Treasurer
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
Donaldson, Lufkin & Jenrette Securities
Corporation
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
------------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and
Controller
After reasonable inquiry and to the best knowledge and belief
of the undersigned, the undersigned certifies that the information set forth
in this statement is true, complete and correct.
Date: August 26, 1997
AXA-UAP
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting
Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
------------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
Schedule A
Executive Officers and Directors
of
DLJ Merchant Banking II, Inc.
The names of the Directors and the names and titles of the
Executive Officers of DLJ Merchant Banking II, Inc. ("MBII INC") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of MBII INC at 277 Park Avenue, New York, New York 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to MBII INC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
------------------------- -----------------------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Nicole S. Arnaboldi Managing Director
* Thompson Dean Managing Director
Carlos Garcia Managing Director
* Peter T. Grauer Managing Director
* David L. Jaffe Managing Director
* Lawrence M.v.D. Schloss Managing Director and Chief Operating
Officer
* Karl R. Wyss Managing Director
<FN>
---------------
* Director
Schedule B
Executive Officers and Directors
of
DLJ Diversified Partners, Inc.
The names of the Directors and the names and titles of the
Executive Officers of DLJ Diversified Partners, Inc. ("DP INC") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of DP INC at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
DP INC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
------------------------ -------------------------------------------
* Hamilton E. James Chairman; Managing Director, Donaldson,
Lufkin & Jenrette, Inc.
* Lawrence M.v.D. Schloss Managing Director and Chief Operating
Officer; Managing Director and Chief
Operating Officer, DLJ Merchant Banking II,
Inc.
* Marjorie S. White Secretary and Treasurer; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
<FN>
- ----------------------------------
* Director
Schedule C
Executive Officers and Directors
of
DLJ LBO Plans Management Corporation
The names of the Directors and the names and titles of the
Executive Officers of DLJ LBO Plans Management Corporation ("LBO") and their
business addresses and principal occupations are set forth below. Each
Director's or Executive Officer's business address is that of LBO at 277 Park
Avenue, New York, New York 10172. Unless otherwise indicated, each occupation
set forth opposite an individual's name refers to LBO and each individual is a
United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ---------------------------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Vincent DeGiaimo Vice President; Senior Vice President and
Managing Director, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President and Secretary; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
<FN>
- ----------------------------------
* Director
Schedule D
Executive Officers and Directors
of
DLJ MB Funding, II, Inc.
The names of the Directors and the names and titles of the
Executive Officers of DLJ MB Funding, II, Inc. ("Funding II") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of Funding II at 277 Park Avenue, New York, New York 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to Funding II and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ---------------------------------------------
* Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Charles J. Hendrickson Treasurer; Senior Vice President and
Treasurer, Donaldson, Lufkin & Jenrette, Inc.
Marjorie S. White Secretary; Vice President, Donaldson, Lufkin
& Jenrette, Inc.
<FN>
- ----------------------------------
* Director
Schedule E
Executive Officers and Directors
of
DLJ Capital Investors, Inc.
The names of the Directors and the names and titles of the
Executive Officers of DLJ Capital Investors, Inc. ("DLJCI") and their business
addresses and principal occupations are set forth below. If no address is
given, the Director's or Executive Officer's business address is that of DLJCI
at 277 Park Avenue, New York, New York 10172. Unless otherwise indicated,
each occupation set forth opposite an individual's name refers to DLJCI and
each individual is a United States citizen.
Name, Business Address Present Principal Occupation
----------------------- ---------------------------------------------
* John S. Chalsty Chairman; Chairman and Chief Executive
Officer, Donaldson, Lufkin & Jenrette, Inc.
* Hamilton E. James Chief Executive Officer; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Joe L. Roby Chief Operating Officer; President and Chief
Operating Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
<FN>
- ----------------------------------
* Director
Schedule F
Executive Officers and Directors
of
UK Investment Plan 1997, Inc.
The names of the Directors and the names and titles of the
Executive Officers of UK Investment Plan 1997, Inc. ("UKIP 1997 INC") and
their business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of UKIP 1997 INC at 277 Park Avenue, New York, New York 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to UKIP 1997 INC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
---------------------- ---------------------------------------------
Anthony F. Daddino President; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Vice President, Secretary and Treasurer; Vice
President, Donaldson, Lufkin & Jenrette, Inc.
* Stuart S. Flamberg Director of Taxes; Senior Vice President and
Director of Taxes, Donaldson, Lufkin &
Jenrette, Inc.
* Mark A. Competiello Tax Manager; Senior Vice President and Tax
Manager, Donaldson, Lufkin & Jenrette, Inc.
<FN>
- ----------------------------------
* Director
Schedule G
Executive Officers and Directors
of
DLJ Capital Corporation
The names of the Directors and the names and titles of the
Executive Officers of DLJ Capital Corporation ("DLJCC") and their business
addresses and principal occupations are set forth below. Each Director's or
Executive Officer's business address is that of DLJCC at 277 Park Avenue, New
York, New York 10172. Unless otherwise indicated, each occupation set forth
opposite an individual's name refers to DLJCC and each individual is a United
States citizen.
Name, Business Address Present Principal Occupation
----------------------- ---------------------------------------------
* Richard E. Kroon President and Chief Executive Officer
* Anthony F. Daddino Vice President; Executive Vice President and
Chief Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
* Marjorie S. White Secretary and Treasurer; Vice President,
Donaldson, Lufkin & Jenrette, Inc.
<FN>
- ----------------------------------
* Director
Schedule H
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette Securities Corporation
The names of the Directors and the names and titles of the
Executive Officers of Donaldson, Lufkin & Jenrette Securities Corporation
("DLJSC") and their business addresses and principal occupations are set forth
below. If no address is given, the Director's or Executive Officer's business
address is that of DLJSC at 277 Park Avenue, New York, New York 10172. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to DLJSC and each individual is a United States citizen.
Name, Business Address Present Principal Occupation
----------------------- ----------------------------------------------
* John S. Chalsty Chairman and Chief Executive Officer;
Chairman and Chief Executive Officer,
Donaldson, Lufkin & Jenrette, Inc.
* Joe L. Roby President and Chief Operating Officer;
President and Chief Operating Officer,
Donaldson, Lufkin & Jenrette, Inc.
* Carl B. Menges Vice Chairman of the Board; Vice Chairman
of the Board, Donaldson, Lufkin & Jenrette,
Inc.
* Hamilton E. James Managing Director; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Richard S. Pecther Managing Director; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Theodore P. Shen Managing Director; Managing Director,
Donaldson, Lufkin & Jenrette, Inc.
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer; Executive Vice President and Chief
Financial Officer, Donaldson, Lufkin &
Jenrette, Inc.
<FN>
- ----------------------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
Schedule I
Executive Officers and Directors
of
Donaldson, Lufkin & Jenrette, Inc.
The names of the Directors and the names and titles of the
Executive Officers of Donaldson, Lufkin & Jenrette, Inc. ("DLJ") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of DLJ at 277 Park Avenue, New York, New York 10172. Unless otherwise
indicated, each occupation set forth opposite an individual's name refers to
DLJ and each individual is a United States citizen.
</TABLE>
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- -------------------------------------------------
<S> <C> <C>
* John S. Chalsty Chairman and Chief Executive Officer.
* Joe L. Roby President and Chief Operating Officer
* Claude Bebear (1) Chairman and Chief Executive Officer, AXA-UAP
AXA-UAP
23, avenue Matignon
75008 Paris, France
* Henri de Castries (1) Executive Vice President Financial Services and
AXA-UAP Life Insurance Activities U.S. & U.K., AXA-UAP
23, avenue Matignon
75008 Paris, France
* Denis Duverne (1) Senior Vice President - International Life,
AXA-UAP AXA-UAP
23, avenue Matignon
75008 Paris, France
* Louis Harris Chairman and Chief Executive Officer, LH
LH Research Research (research)
152 East 38th Street
New York, New York 10016-2605
* Henri G. Hottingeur (2) Chairman and Chief Executive Officer, Banque
Banque Hottingeur Hottingeur (banking)
38, rue de Provence
75009 Paris, France
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525, Box 36
121 King Street, West
Toronto, Ontario
M5H 3T9 Canada
* Francis Jungers Retired
19880 NW Nestucca Drive
Portland, Oregon 97229
* Joseph J. Melone Chairman of the Board, The Equitable Life
The Equitable Companies Incorporated Assurance Society of the United States
1290 Avenue of the Americas
New York, New York 10019
* W. J. Sanders, III Chairman and Chief Executive Officer,
Advanced Micro Devices, Inc. Advanced Micro Devices
901 Thompson Place
Sunnyvale, CA 94086
* Stanley B. Tulin Senior Executive Vice President and Chief
Financial Officer; Executive Vice President and
Chief Financial Officer, The Equitable
Companies Incorporated
* John C. West Retired
Bothea, Jordan & Griffin
23B Shelter Cove
Hilton Head Island, SC 29928
* Carl B. Menges Vice Chairman of the Board
* Hamilton E. James Managing Director
* Richard S. Pecther Managing Director
* Theodore P. Shen Managing Director
* Anthony F. Daddino Executive Vice President and Chief Financial
Officer
<FN>
- ----------------------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of Canada
(3) Citizen of Switzerland
</TABLE>
Schedule J
Executive Officers and Directors
of
The Equitable Companies Incorporated
The names of the Directors and the names and titles of the
Executive Officers of The Equitable Companies Incorporated ("EQ") and their
business addresses and principal occupations are set forth below. If no
address is given, the Director's or Executive Officer's business address is
that of EQ at 1290 Avenue of the Americas, New York, New York 10104. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to EQ and each individual is a United States citizen.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- -----------------------------------------------
<S> <C> <C>
* Claude Bebear (1) Chairman of the Board; Chairman of the
AXA-UAP Executive Board, AXA-UAP
23, avenue Matignon
75008 Paris, France
* John S. Chalsty Chairman and Chief Executive Officer,
Donaldson, Lufkin & Jenrette, Inc. Donaldson, Lufkin & Jenrette, Inc.
277 Park Avenue
New York, NY 10172
* Francoise Colloc'h (1) Senior Executive Vice President, Group
AXA-UAP Human Resources and Communications,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Henri de Castries (1) Vice Chairman of the Board; Senior
AXA-UAP Executive Vice President, Financial Services
23, avenue Matignon and Life Insurance Activities, AXA-UAP
75008 Paris, France
* Joseph L. Dionne Chairman and Chief Executive Officer, The
The McGraw-Hill Companies McGraw-Hill Companies (publishing)
1221 Avenue of the Americas
New York, NY 10020
* William T. Esrey Chairman of the Board and Chief Executive
Sprint Corporation Officer, Sprint Corporation
P.O. Box 11315 (telecommunications)
Kansas City, MO 64112
* Jean-Rene Fourtou (1) Chairman and Chief Executive Officer,
Rhone-Poulenc S.A. Rhone-Poulenc S.A. (manufacturer of
25 quai Paul Doumer chemicals and agricultural products)
92408 Courbevoie Cedex
France
* Jacques Friedmann Chairman of the Supervisory Board,
AXA-UAP AXA-UAP
9, Place Vendome
75001 Paris
France
Robert E. Garber Executive Vice President and General
Counsel; Executive Vice President and
General Counsel, The Equitable Life
Assurance Society of the United States
* Donald J. Greene, Esq. Counselor-at-Law, Partner, LeBoeuf, Lamb,
LeBoeuf, Lamb, Greene & MacRae, L.L.P. Greene & MacRae, L.L.P. (law firm)
125 West 55th Street
New York, NY 10019
* Anthony J. Hamilton (2) Group Chairman and Chief Executive Officer,
35 Wilson Street Fox-Pitt, Kelton Group Limited (finance)
London, England EC2M 2SJ
* John T. Hartley Retired Chairman and Chief Executive
Harris Corporation Officer, currently Director, Harris
1025 Nasa Boulevard Corporation (manufacturer of electronic,
Melbourne, FL 32919 telephone and copying systems)
* John H. F. Haskell, Jr. Director and Managing Director, Dillon, Read
Dillon, Read & Co., Inc. & Co., Inc. (investment banking firm)
535 Madison Avenue
New York, NY 10022
* Mary R. (Nina) Henderson President, CPC Specialty Markets Group of
CPC Specialty Markets Group CPC International, Inc. (food manufacturer)
700 Sylvan Avenue
Englewood, NJ 07632
* W. Edwin Jarmain (3) President, Jarmain Group Inc. (private
Jarmain Group Inc. investment holding company)
Suite 2525
121 King Street West
Toronto, Ontario M5H 3T9
Canada
* Winthrop Knowlton Chairman, Knowlton Brothers, Inc. (private
Knowlton Brothers, Inc. investment firm); President and Chief
530 Fifth Avenue Executive Officer, Knowlton Associates Inc.
New York, NY 10036 (consulting firm)
William T. McCaffrey Executive Vice President and Chief
Administrative Officer; Senior Executive Vice
President and Chief Operating Officer, The
Equitable Life Assurance Society of the
United States
* Joseph J. Melone Chairman of the Board, The Equitable Life
Assurance Society of the United States
* Edward D. Miller President and Chief Executive Officer;
President and Chief Executive Officer, The
Equitable Life Assurance Society of the
United States
Peter D. Noris Executive Vice President and Chief
Investment Officer; Executive Vice President
and Chief Investment Officer, The Equitable
Life Assurance Society of the United States
* Didier Pineau-Valencienne(1) Chairman and Chief Executive Officer,
64-70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment)
92646 Boulogne Cedex, France
* George J. Sella, Jr. Retired Chairman, President and Chief
American Cyanamid Company Executive Officer, American Cyanamid
P.O. Box 397 Company (manufacturer of pharmaceutical
Newton, NJ 07860 products and agricultural products)
Jose Suquet Executive Vice President; Executive Vice
President and Chief Agency Officer; The
Equitable Life Assurance Society of the
United States
Stanley B. Tulin Executive Vice President and Chief Financial
Officer; Senior Executive Vice President and
Chief Financial Officer, The Equitable Life
Assurance Society of the United States
* Dave H. Williams Chairman and Chief Executive Officer,
Alliance Capital Alliance Capital Management Corp.
Management Corporation (investment adviser)
1345 Avenue of the Americas
New York, NY 10105
<FN>
- ----------------------------------
* Director
(1) Citizen of the Republic of France
(2) Citizen of United Kingdom
(3) Citizen of Canada
</TABLE>
Schedule K
Members of Executive Committee and Supervisory Board
of
AXA-UAP
The names and titles (for the Executive Committee members) of the
Members of the Executive Committee and Supervisory Board of AXA-UAP and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's business is 23, avenue Matignon, 75008 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA-UAP and each individual is a citizen of the
Republic of France.
Members of the Executive Committee
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
----------------------- ---------------------------------------------
<S> <C> <C>
Claude Bebear Chairman of the Executive Board
Donald Brydon (1) Senior Executive Vice President, AXA Asset
Management Europe
Henri de Castries Senior Executive Vice President, Financial
Services and Insurance Activities (U.S. and
U.K.)
John Chalsty (2) Senior Executive Vice President; Chairman
and Chief Executive Officer, Donaldson,
Lufkin & Jenrette, Inc. (investment banking)
Francoise Colloc'h Senior Executive Vice President, Group
Human Resources and Communications
Jean-Pierre Gerard (3) Senior Executive Vice President; Chief
Executive Officer, Royale Belge (insurance)
Michael Hart (1) Senior Executive Vice President; Chief
Executive Officer, Sun Life & Provincial
Holdings PLC (insurance)
Denis Kessler Senior Executive Vice President, Insurance
Activities outside France, U.K. and the U.S.
Claas Kleyboldt (4) Senior Executive Vice President; Chairman of
the Executive Board of Colonia Konzern AG
(insurance)
Gerard de La Martiniere Senior Executive Vice President, Chief
Financial Officer
Joseph J. Melone (2) Senior Executive Vice President; Chairman of
the Board, The Equitable Life Assurance
Society of the United States
Edward D. Miller (2) President and Chief Executive Officer, The
Equitable Companies Incorporated and The
Equitable Life Assurance Society of the United
States
Jean-Louis Meunier Senior Executive Vice President, Chief
Underwriting Officer
Michel Pinault Senior Executive Vice President, Group
Administration
Claude Tendil Senior Executive Vice President, Chairman
and Chief Executive Officer - French
Insurance Activities, international risks,
transnational insurance projects and
information systems policy
Geoff Tomlinson (5) Senior Executive Vice President; Managing
Director, National Mutual Holdings
(insurance)
Dave H. Williams (2) Senior Executive Vice President; Chairman
and Chief Executive Officer, Alliance Capital
Management Corporation (investment adviser)
</TABLE>
Members of the Supervisory Board
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------------------------- -----------------------------------------------
<S> <C> <C>
Jacques Friedmann Chairman of the Supervisory Board
9 Place Vendome
75008 Paris, France
Jean-Louis Beffa Chairman and Chief Executive Officer,
"Les Miroirs" Compagnie de St. Gobain (industry)
Cedex 27
92096 Paris La Defense, France
Antoine Bernheim General Partner, Lazard Freres et Cie
121, Boulevard Haussman (investment banking); Chairman,
75008 Paris, France Assicurazioni Generali S.p.A. (insurance)
Jacques Calvet Chairman of the Executive Board, Peugeot
75, avenue de la Grande Armee S.A. (auto manufacturer)
75116 Paris, France
Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
90, rue de Miromesnil SCA (transportation)
75008 Paris, France
David Dautresme General Partner, Lazard Freres et Cie
121, Boulevard Haussman (investment banking)
75008 Paris, France
Guy Dejouany Honorary Chairman, Compagnie General des
52, rue d'Anjou Eaux (industry and services)
75008 Paris, France
Paul Desmarais (7) Chairman and Chief Executive Officer, Power
751, Square Victoria Corporation of Canada (industry and services)
Montreal Quebec
H3Y 3J7 Canada
Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
Michel Francois-Poncet Chairman of the Supervisory Board,
3, rue d'Autin Compagnie Financiere de Paribas (financial
75002 Paris, France services and banking)
Patrice Garnier Retired
Latreaumont
76360 Baretin, France
Anthony J. Hamilton (1) General Partner, Fox-Pitt, Kelton Group
35 Wilson Street Limited (finance)
London, England EC2M 2SJ
Henri Hottinguer (6) Chairman and Chief Executive Officer,
38, rue de Provence Banque Hottinguer (banking)
75009 Paris, France
Richard H. Jenrette (2) Senior Advisor, Donaldson, Lufkin &
c/o Donaldson, Lufkin & Jenrette, Inc. Jenrette, Inc. (investment banking)
277 Park Avenue
New York, New York 10172
Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
Gerard Mestrallet Chairman and Chief Executive Officer,
1, rue d'Astorg Compagnie de Suez (finance)
75008 Paris, France
Friedel Neuber Chairman of the Executive Board,
Girozentrade Herzogstrasse 15 WestDeutsche Landesbank (banking)
D40127 Dusseldorf, Germany
Alfred von Oppenheim (4) Chairman, Bank Oppenheim (banking)
Konsortium Oppenheim
Unter Sachsenrausen 4
50667 Koln, Germany
Michel Pebereau Chairman and Chief Executive Officer,
16, Boulevard des Italiens Banque Nationale de Paris (banking)
75009 Paris, France
Didier Pineau-Valencienne Chairman and Chief Executive Officer,
64-70, avenue Jean Baptiste Clement Schneider S.A. (electric equipment)
92646 Boulogne Cedex, France
Bruno Roger General Partner, Lazard Freres & Cie
21, Boulevard Hausmann (investment banking)
75008 Paris, France
Simone Rozes First Honorary President, Cour de Cassation
2, rue Villaret de Joyeuse (government)
75017 Paris, France
<FN>
- ----------------------------------
(1) Citizen of the United Kingdom
(2) Citizen of the United States of America
(3) Citizen of Belgium
(4) Citizen of Germany
(5) Citizen of Australia
(6) Citizen of Switzerland
(7) Citizen of Canada
</TABLE>
Schedule L
Executive Officers and
Members of Conseil d'Administration
of
FINAXA
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of Finaxa and their business addresses
and principal occupations are set forth below. If no address is given, the
Member's or Executive Officer's business address is that of Finaxa at 23,
avenue Matignon, 75008 Paris, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Finaxa and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------------------- ----------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman and Chief Executive Officer;
Chairman of the Executive Board, AXA-UAP
* Henri de Castries Senior Executive Vice President, Financial
Services and Life Insurance Activities (U.S.
& U. K), AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
90, rue de Miromesnil SCA (transportation)
75008 Paris, France
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Hottinguer (1) Chairman and Chief Executive Officer,
38, rue de Provence Banque Hottinguer (banking)
75009 Paris, France
* Paul Hottinguer (1) Assistant Chairman and Chief Executive
38, rue de Provence Officer, Banque Hottinguer (banking)
75009 Paris, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Andre Levy-Lang Chief Executive Officer, Paribas
3, rue d'Antin (banking)
75002 Paris, France
Gerard de la Martiniere Chief Executive Officer; Senior Executive
Vice President, Chief Financial Officer,
AXA-UAP
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
<FN>
- ----------------------------------
* Member, Conseil d'Administration
(1) Citizen of Switzerland
</TABLE>
Schedule M
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES I.A.R.D. MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of AXA Assurances I.A.R.D. Mutuelle and
their business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances I.A.R.D. Mutuelle at 21, rue de Chateaudun, 75009 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Assurances I.A.R.D. Mutuelle and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
- ------------------------------------ -----------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
Jean-Luc Bertozzi Executive Officer
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
5, rue la Bruyere (industry)
75009 Paris, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Chairman and Chief Executive Officer,
56, rue Jean Giraudoux Strafor Facom (office furniture)
67000 Strasbourg, France
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive
Vice President, French Insurance Activities,
AXA-UAP
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
<FN>
- ----------------------------------
* Member, Conseil d'Administration
</TABLE>
Schedule N
Executive Officers and
Members of Conseil d'Administration
of
AXA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of AXA Assurances Vie Mutuelle and their
business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Assurances Vie Mutuelle at 21, rue de Chateaudun, 75009 Paris, France.
Unless otherwise indicated, each occupation set forth opposite an individual's
name refers to AXA Assurances Vie Mutuelle and each individual is a citizen of
the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
- ------------------------------------ -----------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
Jean-Luc Bertozzi Executive Officer
* Jean-Pierre Chaffin Manager, Federation de la Metallurgie
5, rue la Bruyere (industry)
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
90, rue de Miromesnil SCA (transportation)
75008 Paris, France
* Gerard Coutelle Retired
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom (office
67000 Strasbourg, France furniture)
* Francois Richer Retired
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive
Vice President, French Insurance Activities,
AXA-UAP
* Nicolas Thiery Chairman and Chief Executive Officer,
6 Cite de la Chapelle Etablissements Jaillard (management
75018 Paris, France consulting)
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen, France
<FN>
- ----------------------------------
* Member, Conseil d'Administration
</TABLE>
Schedule O
Executive Officers and
Members of Conseil d'Administration
of
AXA COURTAGE ASSURANCE MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of AXA Courtage Assurance Mutuelle and
their business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of AXA Courtage Assurance Mutuelle at 26, rue de Louis-le-Grand, 75002 Paris,
France. Unless otherwise indicated, each occupation set forth opposite an
individual's name refers to AXA Courtage Assurance Mutuelle and each
individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------------------------- ----------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Francis Cordier Chairman and Chief Executive Officer, Group
rue Nicephore Niepce BP 232 76304 Demay Lesieur (food industry)
Sotteville Les Rouen, France
* Gerard Coutelle Retired
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom (office
67000 Strasbourg, France furniture)
* Francis Magnan Chairman and Chief Executive Officer,
50, boulevard des Dames Compagnie Daher (air and sea transportation)
13002 Marseille, France
* Jean de Ribes Chairman and Chief Executive Officer,
13, rue Notre Dame des Victoires 75008 Banque Rivaud (banking)
Paris, France
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Jean-Paul Saillard Manager, AXA-UAP
23, avenue Matignon
75008 Paris, France
* Claude Tendil Chief Executive Officer; Senior Executive
21, rue de Chateaudun Vice President, French Insurance Activities,
75009 Paris, France AXA-UAP
<FN>
- ----------------------------------
* Member, Conseil d'Administration
</TABLE>
Schedule P
Executive Officers and
Members of Conseil d'Administration
of
ALPHA ASSURANCES VIE MUTUELLE
The names of the Members of Conseil d'Administration and the names
and titles of the Executive Officers of Alpha Assurances Vie Mutuelle and
their business addresses and principal occupations are set forth below. If no
address is given, the Member's or Executive Officer's business address is that
of Alpha Assurances Vie Mutuelle at Tour Franklin, 100/101 Terrasse Boieldieu,
Cedex 11, 92042 Paris La Defense, France. Unless otherwise indicated, each
occupation set forth opposite an individual's name refers to Alpha Assurances
Vie Mutuelle and each individual is a citizen of the Republic of France.
<TABLE>
<CAPTION>
Name, Business Address Present Principal Occupation
---------------------------------- -----------------------------------------------
<S> <C> <C>
* Claude Bebear Chairman; Chairman of the Executive Board,
23, avenue Matignon AXA-UAP
75008 Paris, France
* Henri Brischoux Corporate Secretary; G.I.E. AXA France
21, rue de Chateaudun
75009 Paris, France
* Bernard Cornille Audit Manager, AXA Assurances
21, rue de Chateaudun
75009 Paris, France
* Henri de Castries Senior Executive Vice President, Financial
23, avenue Matignon Services and Life Insurance Activities (U.S.
75008 Paris, France & U.K.), AXA-UAP
* Henri de Clermont-Tonnerre Chairman of the Supervisory Board, Qualis
90, rue de Miromesnil SCA (transportation)
75008 Paris, France
* Claude Fath Executive Officer
* Jean-Rene Fourtou Chairman and Chief Executive Officer,
25, quai Paul Doumer Rhone-Poulenc S.A. (industry)
92408 Courbevoie Cedex
France
* Patrice Garnier Retired
Latreaumont
76360 Baretin, France
* Henri Lachmann Vice Chairman; Chairman and Chief
56, rue Jean Giraudoux Executive Officer, Strafor Facom (office
67000 Strasbourg, France furniture)
* Georges Rousseau Retired
2, rue des Mouettes
76130 Mont Saint Aignan, France
* Claude Tendil Chief Executive Officer; Senior Executive
21, rue de Chateaudun Vice President, French Insurance Activities,
75009 Paris, France AXA-UAP
* Francis Vaudour Chief Executive Officer, Segafredo Zanetti
14, boulevard Industriel France S.A. (coffee importing and processing)
76301 Sotteville les Rouen,
France
<FN>
- ----------------------------------
* Member, Conseil d'Administration
</TABLE>
EXHIBIT 1
Joint Filing Agreement
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, as amended, each of the persons named below agrees to the joint filing
of a Statement on Schedule 13D (including amendments thereto) with respect to
the common stock, par value $0.01, of DecisionOne Holdings Corp., a Delaware
corporation and further agrees that this Joint Filing Agreement be included as
an exhibit to such filings provided that, as contemplated by Section
13d-1(f)(l)(ii), no person shall be responsible for the completeness or
accuracy of the information concerning the other persons making the filing,
unless such person knows or has reason to believe that such information is
inaccurate. This Joint Filing may be executed in any number of counterparts,
all of which together shall constitute one and the same instrument.
DLJ Merchant Banking Partners II, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking Partners II-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Millennium Partners, L.P.
by: DLJ Merchant Banking II, Inc.
its: General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Millennium Partners-A, L.P.
by: DLJ Merchant Banking II, Inc.
its: General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
EAB Partners, L.P.
by: DLJ Merchant Banking II, Inc.
its: General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Offshore Partners II, C.V.
by: DLJ Merchant Banking II, Inc.
its: General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking II, LLC
by: DLJ Merchant Banking II, Inc.
its: Managing Member
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Merchant Banking II, Inc.
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners, L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners-A L.P.
by: DLJ Diversified Partners, Inc.
its: Managing General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Associates, L.P.
by: DLJ Diversified Partners, Inc.
its: General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Diversified Partners, Inc.
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ First ESC, L.L.C.
by: DLJ LBO Plans Management Corporation
its: Manager
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJ LBO Plans Management Corporation
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
DLJMB Funding II, Inc.
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary
DLJ Capital Investors, Inc.
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
UK Investment Plan 1997 Partners
by: UK Investment Plan 1997, Inc.
By: /s/ Majorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Vice President,
Secretary and Treasurer
UK Investment Plan 1997, Inc.
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Vice President,
Secretary and Treasurer
Sprout Growth II, L.P.
by: DLJ Capital Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
Sprout CEO Fund, L.P.
by: DLJ Capital Corporation
its: Managing General Partner
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
DLJ Capital Corporation
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Secretary and Treasurer
Donaldson, Lufkin & Jenrette Securities Corporation
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
Donaldson, Lufkin & Jenrette, Inc.
By: /s/ Marjorie S. White
-------------------------------------
Name: Marjorie S. White
Title: Vice President and Secretary
The Equitable Companies Incorporated
By: /s/ Alvin H. Fenichel
-------------------------------------
Name: Alvin H. Fenichel
Title: Senior Vice President and Controller
AXA-UAP
Finaxa
AXA Assurances I.A.R.D. Mutuelle
AXA Assurances Vie Mutuelle
AXA Courtage Assurance Mutuelle
Alpha Assurances Vie Mutuelle
Claude Bebear, as AXA Voting Trustee
Patrice Garnier, as AXA Voting Trustee
Henri de Clermont-Tonnerre, as AXA Voting Trustee
Signed on behalf of each of the above
By: /s/ Alvin H. Fenichel
-------------------------------------
Name: Alvin H. Fenichel
Title: Attorney-in-fact
EXHIBIT 5
CONFORMED COPY
SUBSCRIPTION AGREEMENT
dated as of
August 7, 1997
among
QUAKER HOLDING CO.
and
THE BUYERS NAMED HEREIN
relating to the purchase and sale
of
Common Stock
of
Quaker Holding Co.
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions............................................ 1
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale...................................... 3
Section 2.02. Closing................................................ 3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01. Corporate Existence and Power.......................... 4
Section 3.02. Corporate Authorization................................ 4
Section 3.03. Governmental Authorization............................. 4
Section 3.04. Noncontravention....................................... 4
Section 3.05. Capitalization and Voting Rights....................... 4
Section 3.06. Valid Issuance of Common Stock......................... 5
Section 3.07. Litigation............................................. 5
Section 3.08. Brokers or Finders' Fees............................... 5
Section 3.09. Newly Formed Corporation............................... 5
Section 3.10. Meaning of Seller...................................... 6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Section 4.01. Existence and Power.................................... 6
Section 4.02. Authorization.......................................... 6
Section 4.03. Governmental Authorization............................. 6
Section 4.04. Purchase for Investment................................ 6
Section 4.05. Private Placement...................................... 6
Section 4.06. Litigation............................................. 7
Section 4.07. Brokers or Finders' Fees............................... 7
ARTICLE 5
CONDITIONS TO CLOSING
Section 5.01. Conditions to Obligations of Each Buyer and Seller..... 8
Section 5.02. Conditions to Obligation of Each Buyer................. 8
Section 5.03. Conditions to Obligation of Seller..................... 8
ARTICLE 6
SURVIVAL; INDEMNIFICATION
Section 6.01. Survival............................................... 9
Section 6.02. Indemnification........................................ 9
Section 6.03. Procedures and Third Party Claims...................... 10
Section 6.04. Calculation of Damages................................. 10
Section 6.05. Exclusivity............................................ 11
ARTICLE 7
TERMINATION
Section 7.01. Grounds for Termination................................ 11
Section 7.02. Effect of Termination.................................. 11
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices................................................ 12
Section 8.02. Amendments and Waivers................................. 12
Section 8.03. Expenses............................................... 13
Section 8.04. Successors and Assigns................................. 13
Section 8.05. Governing Law.......................................... 13
Section 8.06. Jurisdiction........................................... 13
Section 8.07. Waiver Of Jury Trial................................... 13
Section 8.08. Counterparts; Third Party Beneficiaries................ 13
Section 8.09. Entire Agreement....................................... 13
Section 8.10. Captions............................................... 14
Section 8.11. Severability........................................... 14
Section 8.12. Interpretation......................................... 14
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions............................................. 2
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.01. Composition of the Board................................ 9
Section 2.02. Removal................................................. 9
Section 2.03. Vacancies............................................... 9
Section 2.04. Action by the Board..................................... 10
Section 2.05. Conflicting Charter or Bylaw Provision.................. 10
ARTICLE 3
RESTRICTIONS ON TRANSFER
Section 3.01. General................................................. 10
Section 3.02. Legends................................................. 11
Section 3.03. Permitted Transferees................................... 11
Section 3.04. Restrictions on Transfers by Institutional Shareholders. 11
Section 3.05. Restrictions on Transfers by Management Shareholders.... 12
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
Section 4.01. Rights to Participate in Transfer....................... 13
Section 4.02. Right to Compel Participation in Certain Transfers...... 15
Section 4.03. Preemptive Rights....................................... 16
Section 4.04. Certain Other Purchases of Common Stock................. 18
ARTICLE 5
REGISTRATION RIGHTS
Section 5.01. Demand Registration..................................... 18
Section 5.02. Piggyback Registration.................................. 20
Section 5.03. Holdback Agreements..................................... 22
Section 5.04. Registration Procedures................................. 22
Section 5.05. Indemnification by the Company.......................... 25
Section 5.06. Indemnification by Participating Shareholders........... 25
Section 5.07. Conduct of Indemnification Proceedings.................. 26
Section 5.08. Contribution............................................ 27
Section 5.09. Participation in Public Offering........................ 28
Section 5.10. Cooperation by the Company.............................. 28
Section 5.11. No Transfer of Registration Rights...................... 28
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.01. Confidentiality......................................... 29
Section 6.02. Reports................................................. 30
Section 6.03. Limitations on Subsequent Registration.................. 30
Section 6.04. Exclusive Financial Advisor and Investment Banking
Advisor................................................ 30
Section 6.05. Limitation on Purchase of Common Stock.................. 30
ARTICLE 7
MISCELLANEOUS
Section 7.01. Entire Agreement........................................ 30
Section 7.02. Binding Effect; Benefit................................. 31
Section 7.03. Assignability........................................... 31
Section 7.04. Amendment; Waiver; Termination.......................... 31
Section 7.05. Notices................................................. 31
Section 7.06. Headings................................................ 33
Section 7.07. Counterparts............................................ 33
Section 7.08. Applicable Law.......................................... 33
Section 7.09. Specific Enforcement.................................... 33
Section 7.10. Consent to Jurisdiction; Expenses....................... 33
Section 7.11. Severability............................................ 34
Schedule A Schedule of Investors
Exhibit A Certificate of Incorporation
SUBSCRIPTION AGREEMENT
AGREEMENT dated as of August 7, 1997 between Quaker Holding
Co., a Delaware corporation ("Seller"), and the Persons named on Schedule A
hereto (each a "Buyer" and collectively, the "Buyers").
W I T N E S S E T H :
WHEREAS, the Seller has agreed to merge with and into
DecisionOne Holdings Corp. (the "Company") on the terms and conditions set
forth in the Agreement and Plan of Merger dated as of May 4, 1997 (the
"Merger") between Seller and the Company (as subsequently amended, the "Merger
Agreement");
WHEREAS, to finance, in part, the payment of the consideration
payable in the Merger, Seller intends to issue shares of common stock, par
value $0.01 per share (the "Common Stock" or the "Securities");
WHEREAS, all of the outstanding capital stock of the Seller is
currently owned by DLJ Merchant Banking Partners II, L.P. ("DLJMB") and
affiliated funds and entities (collectively, the "DLJMB Funds");
WHEREAS, certain institutional investors wish to invest in the
Seller incident to the Merger;
WHEREAS, Seller desires to issue and sell the Common Stock to
each of the Buyers, and each of the Buyers desires to purchase the Common
Stock from Seller, upon the terms and subject to the conditions hereinafter
set forth;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person.
"Closing Date" means the date of the Closing.
"Common Share" means one share of Common Stock.
"Investors' Agreement" means the Investors' Agreement dated as
of the date hereof among Quaker Holding Co., DLJ Merchant Banking Partners II,
L.P., DLJ Merchant Banking Partners II-A, L.P., DLJ Offshore Partners II,
C.V., DLJ Diversified Partners, L.P., DLJ Diversified Partners-A, L.P., DLJ
Millennium Partners, L.P., DLJ Funding II, Inc., DLJ EAB Partners, L.P., UK
Investment Plan 1997 Partners, DLJ First ESC, LLC, and certain other
shareholders listed on the signature pages thereto.
"Lien" means, with respect to any property or asset, any
mortgage, lien, pledge, charge, security interest or encumbrance in respect of
such property or asset.
"1934 Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"1933 Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Tax" means, with respect to any Person, any net income tax, or
franchise tax based on net income including any alternative or add-on minimum
tax, together with any interest, penalty, addition to tax or additional amount
due from such Person imposed by any governmental authority (domestic or
foreign) responsible for the imposition of any such tax.
"Tax Benefit" means any deduction, amortization, exclusion from
income or other allowance.
"Transaction Documents" means this Agreement, the Merger
Agreement and the Investors' Agreement.
(b) Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
Accredited Investor 4.06(h)
Certificate of Incorporation 3.08
Claim 6.03
Closing 2.02
Common Stock Recitals
Company Recitals
Damages 6.02
DLJMB Recitals
DLJMB Funds Recitals
Indemnified Party 6.03
Indemnifying Party 6.03
Purchase Price 2.01
Securities Recitals
Third Party Claim 6.03
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale. Upon the terms and subject to
the conditions of this Agreement, Seller agrees to issue and sell to each
Buyer, and each Buyer agrees, severally and not jointly, to purchase from
Seller the Common Stock set forth opposite such Buyer's name on Schedule A
hereto at the Closing. The purchase price for the Common Stock (the "Purchase
Price") is the amount in cash specified on Schedule A hereto. The Purchase
Price shall be paid as provided in Section 2.02.
Section 2.02. Closing. The closing (the "Closing") of the
purchase and sale of the Common Stock hereunder shall take place at the
offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York, as
soon as possible, but in no event later than five business days, after
satisfaction of the conditions set forth in Article 5, or at such other time
or place as Buyers and Seller may agree. At the Closing:
(a) Each Buyer shall deliver to Seller, in immediately available
funds, the Aggregate Purchase Price set forth opposite such Buyer's name on
Schedule A hereto, by wire transfer (or other means acceptable to Seller) to
an account of Seller with a bank in New York City designated by Seller, by
notice to such Buyer, not later than two business days prior to the Closing
Date.
(b) Seller shall deliver to each Buyer certificates for the Common
Shares duly registered in the name of such Buyer.
(c) If the Closing has occurred but the Merger is not consummated
prior to the close of business on Friday, August 8, 1997, then Seller shall
immediately deliver to each Buyer, against delivery by such Buyer of the stock
certificates representing the shares of Common Stock purchased by such Buyer,
the Aggregate Purchase Price paid to Seller by such Buyer (as set forth
opposite such Buyer's name on Schedule A hereto), and this Agreement shall
thereupon be terminated.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to each Buyer as of the date
hereof and as of the Closing Date that:
Section 3.01. Corporate Existence and Power. Seller is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation and has all corporate powers and all
governmental licenses, authorizations, permits, consents and approvals
required to carry on its business as now conducted and as proposed to be
conducted.
Section 3.02. Corporate Authorization. The execution, delivery
and performance by Seller of each of the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby (including
the issuance and sale of the Common Stock) are within Seller's corporate
powers and have been duly authorized by all necessary corporate action on the
part of Seller. Each of the Transaction Documents constitutes a valid and
binding agreement of Seller, enforceable against Seller in accordance with its
respective terms, except (i) as limited by the applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) as limited by
laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies.
Section 3.03. Governmental Authorization. The execution,
delivery and performance by Seller of each of the Transaction Documents and
the consummation of the transactions contemplated hereby and thereby require
no order, license, consent, authorization or approval of, or exemption by, or
action by or in respect of, or notice to, or filing or registration with, any
governmental body, agency or official except such as have been obtained.
Section 3.04. Noncontravention. The execution, delivery and
performance by Seller of each of the Transaction Documents and the
consummation of the transactions contemplated hereby and thereby do not and
will not (i) violate the certificate of incorporation or bylaws of Seller,
(ii) violate any applicable law, rule, regulation, judgment, injunction, order
or decree, (iii) require any consent or other action by any Person under,
constitute a default under (with due notice or lapse of time or both), or give
rise to any right of termination, cancellation or acceleration of any right or
obligation of Seller or to a loss of any benefit to which Seller is entitled
under any provision of any agreement or other instrument binding upon Seller
or any of Seller's assets or properties or (iv) result in the creation or
imposition of any material Lien on any property or asset of Seller.
Section 3.05. Capitalization and Voting Rights. (a) The
authorized capital stock of the Seller consists of 30,000,000 shares of Common
Stock and 15,000,000 shares of preferred stock, and the outstanding capital
stock of the Seller immediately prior to the Closing is 101 shares of Common
Stock and no shares of preferred stock. The rights, privileges and
preferences of the Common Stock are set forth in the Certificate of
Incorporation attached hereto as Exhibit A (the "Certificate of
Incorporation").
(b) Immediately following the Closing the outstanding capital
stock of the Seller will be 10,918,979 shares of Common Stock. 148,400
warrants to purchase 281,960 shares of Common Stock will be issued shortly
after Closing to purchasers of Seller's 11 1/2% Senior Discount Debentures due
2008.
(c) Except as set forth in this Section 3.05 there are, and
immediately after the Closing there will be, no outstanding (i) shares of
capital stock or voting securities of the Seller, (ii) securities of the
Seller convertible into or exchangeable for shares of capital stock or voting
securities of the Seller, (iii) options or other rights to acquire from the
Seller, or other obligation of the Seller to issue, any capital stock, voting
securities or securities convertible into or exchangeable for capital stock or
voting securities of the Seller or (iv) other than as expressly permitted in
the Transaction Documents or employment plans, no obligation of the Seller to
repurchase or otherwise acquire or retire any shares of capital stock or any
convertible securities, rights or options of the type described in (i), (ii),
or (iii).
Section 3.06. Valid Issuance of Common Stock. The shares of
Common Stock which are being issued to the Buyers hereunder, have been duly
and validly authorized and when issued, sold and delivered in accordance with
the terms hereof for the consideration expressed herein, will be fully paid
and nonassessable, and based in part on the representations of the Buyers
herein, will be validly issued in compliance with all applicable federal and
state securities laws.
Section 3.07. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of Seller,
threatened against or affecting Seller or any of its respective properties
before any court or arbitrator or any governmental body, agency or official
which in any manner challenges or seeks to prevent, enjoin, alter or materially
delay the transactions contemplated by this Agreement or which could
reasonably be expected to have a material adverse effect on the business,
financial condition, properties or operations of Seller, nor is Seller aware
that there is any basis for the foregoing.
Section 3.08. Brokers or Finders' Fees. Other than Donaldson,
Lufkin & Jenrette Securities Corporation there is no investment banker,
broker, finder or other intermediary which has been retained by, will be
retained by, or is authorized to act on behalf of Seller who might be entitled
to any fee or commission from the Seller in connection with the transactions
contemplated by this Agreement.
Section 3.09. Newly Formed Corporation. Seller was
incorporated on April 30, 1997 in the State of Delaware solely for the purpose
of effectuating the transactions contemplated in this Agreement and the Merger
Agreement and has not conducted any business or entered into any agreements or
commitments except with respect to the foregoing.
Section 3.10. Meaning of Seller. Except as otherwise
specifically provided herein, references to the Seller contained in this
Article 3 shall be construed to refer to the Seller immediately prior to the
consummation of the transactions contemplated by the Merger Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Each Buyer represents and warrants to Seller, severally as to
itself only and not jointly or as to any other Buyer, as of the date hereof
and as of the Closing Date that:
Section 4.01. Existence and Power. Such Buyer, if not an
individual, is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization and has all powers (corporate,
partnership or otherwise) and all material governmental licenses,
authorizations, permits, consents and approvals required to carry on its
business as now conducted. Such Buyer, if an individual, has the legal
capacity to enter into this Agreement and the Investors' Agreement.
Section 4.02. Authorization. The execution, delivery and
performance by such Buyer of each of this Agreement and the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby are within the powers (corporate, partnership or otherwise) of such
Buyer and have been duly authorized by all necessary action on the part of
such Buyer. Each of this Agreement and the Investors' Agreement constitutes a
valid and binding agreement of such Buyer, enforceable in accordance with
their respective terms, except (i) as limited by the applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws of general application
affecting enforcement or creditors' rights generally, or (ii) as limited by
laws relating to the availability of specific performance, injunctive relief,
or other equitable remedies.
Section 4.03. Governmental Authorization. The execution,
delivery and performance by such Buyer of this Agreement and the Investors'
Agreement and the consummation of the transactions contemplated hereby and
thereby require no order, license, consent, authorization or approval of, or
exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official.
Section 4.04. Purchase for Investment. Such Buyer is
purchasing the Common Stock for investment for its own account and not with a
view to, or for sale in connection with, any distribution thereof.
Section 4.05. Private Placement. (a) Such Buyer understands
that (i) the offering and sale of the Securities hereby is intended to be
exempt from registration under the 1933 Act and (ii) there is only a limited
market for the Common Stock, and there can be no assurance that any Buyer will
be able to sell or dispose of the Common Stock to be purchased by such Buyer.
(b) Such Buyer's financial situation is such that such Buyer can
afford to bear the economic risk of holding the Common Stock acquired
hereunder for an indefinite period of time, and such Buyer can afford to
suffer the complete loss of the investment in the Common Stock .
(c) Such Buyer's knowledge and experience in financial and
business matters are such that it is capable of evaluating the merits and
risks of the investment in the Common Stock, or such Buyer has been advised by
a representative possessing such knowledge and experience.
(d) Such Buyer understands that the Common Stock acquired
hereunder are a speculative investment which involves a high degree of risk of
loss of the entire investment therein, that there are substantial restrictions
on the transferability of the Common Stock as set forth in the Investors'
Agreement, and that for an indefinite period following the date hereof there
will be no (or only a limited) public market for the Common Stock and that,
accordingly, it may not be possible for such Buyer to sell the Common Stock in
case of emergency or otherwise.
(e) Such Buyer and its representatives, including, to the extent
it deems appropriate, its professional, financial, tax and other advisors,
have reviewed all documents provided to them in connection with the investment
in the Common Stock, and such Buyer understands and is aware of the risks
related to such investment.
(f) Such Buyer and its representatives have been given the
opportunity to examine all documents and to ask questions of, and to receive
answers from, Seller and its representatives concerning the terms and
conditions of the acquisition of the Common Stock and related matters and to
obtain all additional information which such Buyer or its representatives deem
necessary.
(g) All information which such Buyer has provided to Seller and
its representatives concerning such Buyer and such Buyer's financial position
is true, complete and correct, and such Buyer agrees to promptly notify Seller
if at any time this ceases to be the case prior to the Closing.
(h) Such Buyer is an "accredited investor" as such term is
defined in Regulation D under the 1933 Act.
Section 4.06. Litigation. There is no action, suit,
investigation or proceeding pending against, or to the knowledge of such Buyer
threatened against or affecting, such Buyer before any court or arbitrator or
any governmental body, agency or official which in any manner challenges or
seeks to prevent, enjoin, alter or materially delay the transactions
contemplated by this Agreement or the Investors' Agreement.
Section 4.07. Brokers or Finders' Fees. There is no investment
banker, broker, finder or other intermediary which has been retained by, will
be retained by or is authorized to act on behalf of such Buyer who might be
entitled to any fee or commission from the Company, Seller or the DLJ entities
upon consummation of the transactions contemplated by this Agreement (as
defined in the Investors' Agreement of even date herewith).
ARTICLE 5
CONDITIONS TO CLOSING
Section 5.01. Conditions to Obligations of Each Buyer and
Seller. The obligations of Buyer and Seller to consummate the Closing are
subject to the satisfaction of the following conditions:
(a) No provision of any applicable law, rule or regulation and no
judgment, injunction, order or decree by any governmental entity of competent
jurisdiction shall prohibit the consummation of the Closing or the Merger.
(b) All material actions by or in respect of, or filings with, any
governmental body, agency, official or authority required to permit the
consummation of the Closing shall have been taken, made or obtained.
(c) The conditions to the consummation of the Merger
Agreement (other than the condition set forth in Section 8.01(e) thereof,
which shall be reasonably certain to occur immediately after the Closing)
shall have been satisfied or waived.
Section 5.02. Conditions to Obligation of Each Buyer. The
obligation of each Buyer to consummate the Closing is subject to the
satisfaction of the following further conditions:
(a) (i) Seller shall have performed in all material respects all
of its obligations hereunder required to be performed by it on or prior to the
Closing Date and (ii) the representations and warranties of Seller contained
in this Agreement and in any certificate or other writing delivered by Seller
pursuant hereto shall be true in all material respects when made and at and as
of the Closing Date, as if made at and as of such date.
(b) Such Buyer shall have received all documents it may reasonably
request relating to the existence of Seller and the authority of Seller for
this Agreement, all in form and substance reasonably satisfactory to such
Buyer.
Section 5.03. Conditions to Obligation of Seller. The
obligation of Seller to consummate the Closing with respect to any Buyer is
subject to the satisfaction of the following further conditions:
(a) (i) Such Buyer shall have performed in all material
respects all of its obligations hereunder required to be performed by it at
or prior to the Closing Date and (ii) the representations and warranties of
such Buyer contained in this Agreement and in any certificate or other
writing delivered by such Buyer pursuant hereto shall be true in all
material respects when made and at and as of the Closing Date, as if made
at and as of such date.
(b) Seller shall have received all documents it may reasonably
request relating to the existence of such Buyer and the authority of such
Buyer for this Agreement, all in form and substance reasonably satisfactory
to Seller.
ARTICLE 6
SURVIVAL; INDEMNIFICATION
Section 6.01. Survival. The representations and warranties
of the parties hereto contained in this Agreement or in any certificate
delivered pursuant hereto or in connection herewith shall survive the
Closing until twelve months after the Closing Date, provided that the
representations and warranties contained in Sections 3.01, 3.02, 3.04,
3.05, 3.06 and 4.01 shall survive indefinitely for the maximum period
permitted by applicable law, if longer. Notwithstanding the preceding
sentence, any representation or warranty in respect of which indemnity may
be sought under this Agreement shall survive the time at which it would
otherwise terminate pursuant to the preceding sentence, if notice of the
inaccuracy or breach thereof giving rise to such right of indemnity shall
have been given to the party against whom such indemnity may be sought
prior to such time, but only as to such inaccuracy or breach. A breach of
any representation or warranty made in this Agreement shall not affect in
any manner whatsoever the relative rights and obligations of the parties to
and under the Investors' Agreement.
Section 6.02. Indemnification. (a) Seller hereby indemnifies
each Buyer and its Affiliates, limited partners, general partners, directors,
officers and employees against and agrees to hold each of them harmless from
any and all damage, loss, liability and expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys'
fees and expenses in connection with any action, suit or proceeding)
("Damages") incurred or suffered by any such party arising out of any
misrepresentation or breach of warranty, covenant or agreement made or to be
performed by Seller pursuant to this Agreement; provided that with respect to
any Buyer, (i) Seller shall not be liable under this Section 6.02(a) unless
the aggregate amount of Damages with respect to all matters referred to in this
Section 6.02(a) for which such Buyer has sought indemnification exceeds
$100,000 and then only to the extent of such excess and (ii) Seller's maximum
liability under this Section 6.02(a) shall not exceed the amount of the
Purchase Price paid by such Buyer.
(b) Each Buyer hereby indemnifies, severally and not jointly,
Seller and its Affiliates, limited partners, general partners, directors,
officers and employees against and agrees to hold each of them harmless
from any and all Damages incurred or suffered by any such party arising out
of any misrepresentation or breach of warranty, covenant or agreement made
or to be performed by such Buyer pursuant to this Agreement; provided that
(i) such Buyer shall not be liable under this Section 6.02(b) unless the
aggregate amount of Damages with respect to all matters referred to in this
Section 6.02(b) exceeds $100,000 and then only to the extent of such excess
and (ii) such Buyer's maximum liability under this Section 6.02(b) shall
not exceed the amount of Purchase Price paid by such Buyer.
Section 6.03. Procedures and Third Party Claims. (a) The party
seeking indemnification under Section 6.02 (the "Indemnified Party") agrees to
give prompt notice to the party against whom indemnity is sought (the
"Indemnifying Party") of the assertion of any claim, or the commencement of
any suit, action or proceeding ("Claim") in respect of which indemnity may be
sought under such Section and will provide the Indemnifying Party such
information with respect thereto that the Indemnifying Party may reasonably
request. The failure to so notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder, except to the extent such
failure shall have adversely prejudiced the Indemnifying Party (except that
the Indemnifying Party shall not be liable for any expenses incurred during
the period in which the Indemnified Party failed to give such notice).
(b) The Indemnifying Party shall be entitled to participate in the
defense of any Claim asserted by any third party ("Third Party Claim") and,
subject to the limitations set forth in this Section, shall be entitled to
control and appoint lead counsel for such defense, in each case at its
expense.
(c) If the Indemnifying Party shall assume the control of the defense
of any Third Party Claim in accordance with the provisions of this Section,
(i) the Indemnifying Party shall obtain the prior written consent of the
Indemnified Party (which shall not be unreasonably withheld) before entering
into any settlement of such Third Party Claim, if the settlement does not
release the Indemnified Party from all liabilities and obligations with
respect to such Third Party Claim or the settlement imposes injunctive or
other equitable relief against the Indemnified Party and (ii) the Indemnified
Party shall be entitled to participate in the defense of such Third Party
Claim and to employ separate counsel of its choice for such purpose. The fees
and expenses of such separate counsel shall be borne by the Indemnified Party.
(d) Each party shall cooperate, and cause its respective Affiliates to
cooperate, in the defense or prosecution of any Third Party Claim and shall
furnish or cause to be furnished such records, information and testimony, and
attend such conferences, discovery proceedings, hearings, trials or appeals,
as may be reasonably requested in connection therewith.
Section 6.04. Calculation of Damages. (a) The amount of any
Damages payable under Section 6.02 by the Indemnifying Party shall be net of
any (i) amounts recovered or recoverable by the Indemnified Party under
applicable insurance policies, (ii) Tax cost incurred by the Indemnified Party
arising from the receipt of indemnity payments and (iii) Tax Benefit realized
by the Indemnified Party arising from the incurrence or payment of any such
Damages. In computing the amount of any such Tax cost or Tax Benefit, the
Indemnified Party shall be deemed to fully utilize, at the highest marginal
tax rate then in effect, all Tax items arising from the receipt of any
indemnity payment hereunder or the incurrence or payment of any indemnified
Damages.
(b) The Indemnifying Party shall not be liable under Section 6.02 for
any (i) incidental Damages, (ii) consequential or punitive Damages or (iii)
Damages for lost profits.
Section 6.05. Exclusivity. After the Closing, Section 6.2 will
provide the exclusive remedy for any misrepresentation, breach of warranty,
covenant or other agreement or other claim arising out of this Agreement or
the transactions contemplated hereby.
ARTICLE 7
TERMINATION
Section 7.01. Grounds for Termination. This Agreement may be
terminated at any time prior to the Closing:
(a) by mutual written agreement of Seller and Buyers;
(b) by either Seller or any Buyer as to such Buyer if the Closing
shall not have been consummated as of the close of business on Friday, August
8, 1997; or
(c) by either Seller or any Buyer if consummation of the
transactions contemplated hereby would violate any non-appealable final order,
decree or judgment of any court or governmental body having competent
jurisdiction.
The party desiring to terminate this Agreement pursuant to
clauses 7.01(b) or (c) shall give notice of such termination to the other
party.
Section 7.02. Effect of Termination. If this Agreement is
terminated as permitted by Section 7.01, such termination shall be without
liability of either party (or any stockholder, general partner, limited
partner, director, officer, employee, agent, consultant or representative of
such party) to the other party to this Agreement; provided that if such
termination shall result from the willful (i) failure of either party to
fulfill a condition to the performance of the obligations of the other party,
(ii) failure to perform a covenant of this Agreement or (iii) breach by either
party hereto of any representation or warranty or agreement contained herein,
such party shall be fully liable for any and all Damages incurred or suffered
by the other party as a result of such failure or breach. The provisions of
Sections 8.03, 8.05 and 8.06 shall survive any termination hereof pursuant to
Section 7.01.
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile
transmission) and shall be given,
if to any Buyer, to such Buyer at the address specified by such Buyer on
the signature pages of this Agreement or in a notice given by such Buyer to
Seller for such purpose;
if to Seller, to:
Quaker Holding Co.
c/o DLJ Merchant Banking Partners II, L.P.
277 Park Avenue
New York, New York 10172
Attention: Peter T. Grauer
Fax: (212) 892-7272
with a copy to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: George R. Bason, Jr.
Fax: (212) 450-4800
or to such other address or telecopy number and with such other copies as such
party may hereafter specify for the purpose of notice.
All such notices, requests and other communications shall be deemed received
on the date of receipt by the recipient thereof if received prior to 5 p.m. in
the place of receipt and such day is a business day in the place of receipt.
Otherwise, any such notice, request or communication shall be deemed not to
have been received until the next succeeding business day in the place of
receipt.
Section 8.02. Amendments and Waivers. (a) Any provision of
this Agreement may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed, in the case of an amendment, by each party
to this Agreement, or in the case of a waiver, by the party against whom the
waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 8.03. Expenses. All costs and expenses incurred in
connection with this Agreement shall be paid by the party incurring such cost
or expense, except that if the Closing shall occur, the Company shall
reimburse (i) the Buyers other than the DLJ Entities (as that term is defined
in the Investors' Agreement) for up to $20,000 in respect of fees and expenses
of one counsel retained to represent such Buyers and (ii) the DLJ Entities for
all costs and expenses incurred by the DLJ Entities.
Section 8.04. Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of each other party hereto.
Section 8.05. Governing Law. This Agreement shall be governed
by and construed in accordance with the law of the State of New York.
Section 8.06. Jurisdiction. The parties hereto agree that any
suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby may only be brought in the United States
District Court for the Southern District of New York or any New York State
court sitting in New York City, and each of the parties hereby consents to the
jurisdiction of such courts (and of the appropriate appellate courts
therefrom) in any such suit, action or proceeding and irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such suit, action or
proceeding in any such court or that any such suit, action or proceeding which
is brought in any such court has been brought in an inconvenient forum.
Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of
process on such party as provided in Section 8.01 shall be deemed effective
service of process on such party.
Section 8.07. Waiver Of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 8.08. Counterparts; Third Party Beneficiaries. This
Agreement may be signed in any number of counterparts, each of which shall be
an original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each
party hereto shall have received a counterpart hereof signed by the other
party hereto. No provision of this Agreement is intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
Section 8.09. Entire Agreement. This Agreement along with the
Investors' Agreement (including the documents, schedules and exhibits referred
to herein and therein) constitute the entire agreement between the parties
with respect to the subject matter of this Agreement and supersedes all prior
agreements and understandings, both oral and written, between the parties with
respect to the subject matter of this Agreement.
Section 8.10. Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
Section 8.11. Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, such provision
shall be executed from this Agreement and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforced in
accordance with its terms to the maximum extent permitted by law.
Section 8.12. Interpretation. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
QUAKER HOLDING CO.
By: /s/ Kirk Wortman
-------------------------
Name: Kirk Wortman
Title: Vice-President
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as advisory general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc., as managing
general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ FIRST ESC, L.L.C.,
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B.Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
UK INVESTMENT PLAN 1997
PARTNERS
By: Donaldson, Lufkin & Jenrette, Inc.,
as general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ EAB PARTNERS, L.P.
By: DLJ Merchant Banking Funding II, Inc.,
its general partner
By: /s/ Kirk B. Wortman
-------------------------
Name: Kirk B. Wortman
Title: Attorney-in-Fact
Address: c/o DLJ Merchant
Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
APOLLO INVESTMENT FUND III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc.,
its general partner
By: /s/ Josh Harris
-------------------------
Name: Josh Harris
Title: Vice President
Address: 1301 Avenue of the Americas
38th Floor
New York, NY 10019
APOLLO OVERSEAS PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc.,
its general partner
By: /s/ Josh Harris
-------------------------
Name: Josh Harris
Title: Vice President
Address: 1301 Avenue of the Americas
38th Floor
New York, NY 10019
APOLLO U.K. PARTNERS III, L.P.
By: Apollo Advisors II, L.P., its
general partner
By: Apollo Capital Management II, Inc., its
general partner
By: /s/ Josh Harris
-------------------------
Name: Josh Harris
Title: Vice President
Address: 1301 Avenue of the Americas
38th Floor
New York, NY 10019
BAIN CAPITAL FUND V, L.P.
By: Bain Capital Partners V, L.P.,
its general partner
By: Bain Capital Investors V, Inc.,
its general partner
By: /s/ Stephen Pagliuca
-------------------------
Name: Stephen Pagliuca
Title: General Parter
Address: c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
BAIN CAPITAL FUND, V-B, L.P.
By: Bain Capital Partners V, L.P.,
its general partner
By: Bain Capital Investors V, Inc.,
its general partner
By: /s/ Stephen Pagliuca
-------------------------
Name: Stephen Pagliuca
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
BCIP ASSOCIATES
By: /s/ Stephen Pagliuca
-------------------------
Name: Stephen Pagliuca
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
BCIP TRUST ASSOCIATES, L.P.
By: Bain Capital Partners V, L.P.,
its general partner
By: Bain Capital Investors V, Inc.,
its general partner
By: /s/ Stephen Pagliuca
-------------------------
Name: Stephen Pagliuca
Title: General Partner
Address: c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Scott Schoen
-------------------------
Name: Scott Schoen
Title: Managing Director
Address: 75 State Street
Boston, MA 02109
THOMAS H. LEE FOREIGN
FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Scott Schoen
-------------------------
Name: Scott Schoen
Title: Managing Director
Address: 75 State Street
Boston, MA 02109
THL CO-INVESTORS III-A LLC
By: /s/ Thomas H. Lee
-------------------------
Name: Thomas H. Lee
Title: Manager
Address: 75 State Street
Boston, MA 02109
THL CO-INVESTORS III-B LLC
By: /s/ Thomas H. Lee
-------------------------
Name: Thomas H. Lee
Title: Manager
Address: 75 State Street
Boston, MA 02109
DLJ CAPITAL CORP.
By: /s/ Richard E. Kroon
-------------------------
Name: Richard E. Kroon
Title: President
Address: 277 Park Avenue
New York, NY 10172
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Richard E. Kroon
-------------------------
Name: Richard E. Kroon
Title: President
Address: 277 Park Avenue
New York, NY 10172
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Richard E. Kroon
-------------------------
Name: Richard E. Kroon
Title: President
Address: 277 Park Avenue
New York, NY 10172
ONTARIO TEACHERS' PENSION
PLAN BOARD
By: /s/ Dean Metcalf
-------------------------
Name: Dean Metcalf
Title: Portfolio Manager, Merchant Banking
Address: 5650 Yonge Street
North York, Ontario
Canada, M2M 4H5
SCHEDULE A
No. of Common Aggregate Purchase
Investor Shares Price
- -------- ------------------ ------------------
DLJ Merchant Banking 4,703,762 $96,932,137.08
Partners II, L.P.
DLJ Merchant Banking 187,326 3,860,284.87
Partners II-A,L.P.
DLJ Offshore Partners, L.P. 231,307 4,766,622.62
DLJ Diversified Partners, 275,003 5,667,095.07
L.P.
DLJ Diversified Partners-A, 102,127 2,104,560.24
L.P.
DLJ Millennium Partners, 76,055 1,567,276.12
L.P.
DLJ Millennium Partners - 14,834 305,685.43
A, L.P.
DLJMB Funding II, Inc. 946,201 19,498,728.27
DLJ First ESC, L.L.C. 874,223 18,015,434.00
DLJ EAB Partners, L.P. 21,119 435,204.97
UK Investment Plan 1997 88,052 1,814,515.60
Partners
Apollo Investment Fund III, 738,693 15,222,519.19
L.P.
Apollo Overseas Partners III, 44,117 909,143.31
L.P.
Apollo (U.K.) Partners III, 27,307 562,718.22
L.P.
Bain Capital Fund V L.P. 158,619 3,268,702.22
Bain Capital Fund V-B, L.P. 413,039 8,511,678.44
BCIP Associates 124,016 2,555,635.04
BCIP Trust Associates 114,443 2,358,365.01
Thomas H. Lee Equity Fund 695,016 14,322,454.99
III, L.P.
Thomas H. Lee Foreign 43,006 886,234.74
Fund III, L.P.
THL Co. - Investors III - A 43,910 904,865.69
LLC
THL Co. - Investors III - B 28,185 580,825.30
LLC
DLJ Capital Corp. 10,568 217,752.91
Sprout Growth II, L.P. 457,319 9,424,167.36
The Sprout CEO Fund, L.P. 7,617 156,960.76
Ontario Teachers' Pension 493,115 10,161,797.96
Plan Fund
EXHIBIT A
State of Delaware
Office of the Secretary of State
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY
CERTIFY THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF
INCORPORATION OF "QUAKER HOLDING CO.", FILED IN THIS OFFICE ON THE THIRTIETH
DAY OF APRIL, A.D. 1997, AT 9 O'CLOCK A.M.
[SEAL] /s/ Edward J. Freel
-----------------------------------
Edward J. Freel, Secretary of State
AUTHENTICATION: 8584647
DATE: 07-31-97
CERTIFICATE OF INCORPORATION
OF
QUAKER HOLDING CO.
****
FIRST: The name of the Corporation is Quaker Holding Co.
SECOND: The address of its registered office in the State of Delaware
is 1013 Centre Road, Wilmington, Delaware 19805. The name of its registered
agent at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware as the same exists or may hereafter be amended
(the "Delaware Law").
FOURTH: The total number of shares of stock which the Corporation shall
have authority to issue is 45,000,00 consisting of 30,000,000 shares of Common
Stock, par value $.01 per share (the "Common Stock") and 15,000,000 shares of
Preferred Stock, par value $.01 per share (the "Preferred Stock"). The Board
of Directors is hereby empowered to authorize by resolution or resolutions
from time to time the issuance of one or more classes or series of Preferred
Stock and to fix the designations, powers, preferences and relative,
participating, optional or other rights, if any, and the qualifications,
limitations or restrictions thereof, if any, with respect to each such class or
series of Preferred Stock and the number of shares constituting each such
class or series, and to increase or decrease the number of shares of any such
class or series to the extent permitted by the Delaware Law.
FIFTH: The name and mailing address of the incorporator are:
Name Mailing Address
---------------
Patricia Long 450 Lexington Avenue
New York, NY 10017
The power of the incorporator as such shall terminate upon the filing
of this Certificate of Incorporation.
SIXTH: The names and mailing addresses of the persons who are to serve
-----
as directors until the first annual meeting of stockholders or until their
successors are elected and qualified are:
Name Mailing Address
---- ---------------
Peter T. Grauer 277 Park Avenue
New York, NY 10172
Name Mailing Address
---- ---------------
Kirk Wortman 277 Park Avenue
New York, NY 10172
SEVENTH: The Board of Directors shall have the power to adopt, amend or
-------
repeal the bylaws of the Corporation.
EIGHTH: Election of directors need not be by written ballot unless the
------
bylaws of the Corporation so provide.
NINTH: (1) A director of the Corporation shall not be liable to the
-----
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director to the fullest extent permitted by Delaware Law.
(2)(a) Each person (and the heirs, executors or administrators of such
person) who was or is a party or is threatened to be made a party to, or is
involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative, by reason of the
fact that such person is or was a director or officer of the Corporation or is
or was serving at the request of the Corporation as a director or officer of
another corporation, partnership, joint venture, trust or other enterprise,
shall be indemnified and held harmless by the Corporation to the fullest
extent permitted by Delaware Law. The right to indemnification conferred in
this ARTICLE NINTH shall also include the right to be paid by the Corporation
the expenses incurred in connection with any such proceeding in advance of its
final disposition to the fullest extent authorized by Delaware Law. The right
to indemnification conferred in this ARTICLE NINTH shall be a contract right.
(b) The Corporation may, by action of its Board of Directors, provide
indemnification to such of the officers, employees and agents of the
Corporation to such extent and to such effect as the Board of Directors shall
determine to be appropriate and authorized by Delaware Law.
(3) The Corporation shall have power to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or
loss incurred by such person in any such capacity or arising out of his status
as such, whether or not the Corporation would have the power to indemnify him
against such liability under Delaware Law.
(4) The rights and authority conferred in this ARTICLE NINTH shall not
be exclusive of any other right which any person may otherwise have or
hereafter acquire.
(5) Neither the amendment nor repeal of this ARTICLE NINTH, nor the
adoption of any provision of this Certificate of Incorporation or the bylaws
of the Corporation, nor, to the fullest extent permitted by Delaware Law, any
modification of law, shall eliminate or reduce the effect of this ARTICLE
NINTH in respect of any acts or omissions occurring prior to such amendment,
repeal, adoption or modification.
TENTH: The Corporation reserves the right to amend this Certificate of
Incorporation in any manner permitted by Delaware Law and, with the sole
exception of those rights and powers conferred under the above ARTICLE NINTH,
all rights and powers conferred herein on stockholders, directors and
officers, if any, are subject to this reserved power.
IN WITNESS WHEREOF, I have hereunto signed my name this 30th day of
April, 1997.
/s/ Patricia Long
---------------------------------
Patricia Long
Sole Incorporator
EXHIBIT 6
CONFORMED COPY
INVESTORS' AGREEMENT
dated as of
August 7, 1997
among
DECISIONONE HOLDINGS CORP.,
DLJ MERCHANT BANKING PARTNERS II, L.P.,
DLJ MERCHANT BANKING PARTNERS II - A, L.P.,
DLJ OFFSHORE PARTNERS II, C.V.,
DLJ DIVERSIFIED PARTNERS, L.P.,
DLJ DIVERSIFIED PARTNERS - A, L.P.,
DLJ MILLENNIUM PARTNERS, L.P.,
DLJ MILLENNIUM PARTNERS - A, L.P.,
DLJMB FUNDING II, INC.,
UK INVESTMENT PLAN 1997 PARTNERS,
DLJ EAB PARTNERS, L.P.,
DLJ FIRST ESC, LLC,
AND
CERTAIN OTHER PERSONS NAMED HEREIN
TABLE OF CONTENTS
-------------
Page
----
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.......................................... 1
ARTICLE 2
PURCHASE AND SALE
Section 2.01. Purchase and Sale.................................... 3
Section 2.02. Closing.............................................. 3
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF SELLER
Section 3.01. Corporate Existence and Power........................ 4
Section 3.02. Corporate Authorization.............................. 4
Section 3.03. Governmental Authorization........................... 4
Section 3.04. Noncontravention..................................... 4
Section 3.05. Capitalization and Voting Rights..................... 4
Section 3.06. Valid Issuance of Common Stock....................... 5
Section 3.07. Litigation........................................... 5
Section 3.08. Brokers or Finders' Fees............................. 5
Section 3.09. Newly Formed Corporation............................. 5
Section 3.10. Meaning of Seller.................................... 6
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF BUYERS
Section 4.01. Existence and Power.................................. 6
Section 4.02. Authorization........................................ 6
Section 4.03. Governmental Authorization........................... 6
Section 4.04. Purchase for Investment.............................. 6
Section 4.05. Private Placement.................................... 6
Section 4.06. Litigation........................................... 7
Section 4.07. Brokers or Finders' Fees............................. 7
ARTICLE 5
CONDITIONS TO CLOSING
Section 5.01. Conditions to Obligations of Each Buyer and Seller... 8
Section 5.02. Conditions to Obligation of Each Buyer............... 8
Section 5.03. Conditions to Obligation of Seller................... 8
ARTICLE 6
SURVIVAL; INDEMNIFICATION
Section 6.01. Survival............................................. 9
Section 6.02. Indemnification...................................... 9
Section 6.03. Procedures and Third Party Claims.................... 10
Section 6.04. Calculation of Damages............................... 10
Section 6.05. Exclusivity.......................................... 11
ARTICLE 7
TERMINATION
Section 7.01. Grounds for Termination.............................. 11
Section 7.02. Effect of Termination................................ 11
ARTICLE 8
MISCELLANEOUS
Section 8.01. Notices.............................................. 12
Section 8.02. Amendments and Waivers............................... 12
Section 8.03. Expenses............................................. 13
Section 8.04. Successors and Assigns............................... 13
Section 8.05. Governing Law........................................ 13
Section 8.06. Jurisdiction......................................... 13
Section 8.07. Waiver Of Jury Trial................................. 13
Section 8.08. Counterparts; Third Party Beneficiaries.............. 13
Section 8.09. Entire Agreement..................................... 13
Section 8.10. Captions............................................. 14
Section 8.11. Severability......................................... 14
Section 8.12. Interpretation....................................... 14
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions.......................................... 2
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.01. Composition of the Board............................. 9
Section 2.02. Removal.............................................. 9
Section 2.03. Vacancies............................................ 9
Section 2.04. Action by the Board.................................. 10
Section 2.05. Conflicting Charter or Bylaw Provision............... 10
ARTICLE 3
RESTRICTIONS ON TRANSFER
Section 3.01. General.............................................. 10
Section 3.02. Legends.............................................. 11
Section 3.03. Permitted Transferees................................ 11
Section 3.04. Restrictions on Transfers by Institutional
Shareholders......................................... 11
Section 3.05. Restrictions on Transfers by Management Shareholders. 12
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
Section 4.01. Rights to Participate in Transfer.................... 13
Section 4.02. Right to Compel Participation in Certain Transfers... 15
Section 4.03. Preemptive Rights.................................... 16
Section 4.04. Certain Other Purchases of Common Stock.............. 18
ARTICLE 5
REGISTRATION RIGHTS
Section 5.01. Demand Registration.................................. 18
Section 5.02. Piggyback Registration............................... 20
Section 5.03. Holdback Agreements.................................. 22
Section 5.04. Registration Procedures.............................. 22
Section 5.05. Indemnification by the Company....................... 25
Section 5.06. Indemnification by Participating Shareholders........ 25
Section 5.07. Conduct of Indemnification Proceedings............... 26
Section 5.08. Contribution......................................... 27
Section 5.09. Participation in Public Offering..................... 28
Section 5.10. Cooperation by the Company........................... 28
Section 5.11. No Transfer of Registration Rights................... 28
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.01. Confidentiality...................................... 29
Section 6.02. Reports.............................................. 30
Section 6.03. Limitations on Subsequent Registration............... 30
Section 6.04. Exclusive Financial Advisor and Investment Banking
Advisor.............................................. 30
Section 6.05. Limitation on Purchase of Common Stock............... 30
ARTICLE 7
MISCELLANEOUS
Section 7.01. Entire Agreement..................................... 30
Section 7.02. Binding Effect; Benefit.............................. 31
Section 7.03. Assignability........................................ 31
Section 7.04. Amendment; Waiver; Termination....................... 31
Section 7.05. Notices.............................................. 31
Section 7.06. Headings............................................. 33
Section 7.07. Counterparts......................................... 33
Section 7.08. Applicable Law....................................... 33
Section 7.09. Specific Enforcement................................. 33
Section 7.10. Consent to Jurisdiction; Expenses.................... 33
Section 7.11. Severability......................................... 33
INVESTORS' AGREEMENT
AGREEMENT dated as of August 7, 1997 among (i) DecisionOne
Holdings Corp. (the "Company"), (ii) DLJ Merchant Banking Partners II, L.P.
("DLJMB"), DLJ Offshore Partners II, C.V., DLJ Diversified Partners, L.P.,
DLJMB Funding II, Inc., DLJ Merchant Banking Partners II - A, L.P., DLJ
Diversified Partners - A., L.P., DLJ Millennium Partners, L.P., DLJ Millennium
Partners - A, L.P., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P.,
and DLJ First ESC, LLC (each a "DLJ Entity" and a "Shareholder" and
collectively the "DLJ Entities"), (iii) Apollo Investment Fund III L.P.
("Apollo Investment"), Apollo Overseas Partners III L.P. ("Apollo Overseas"),
Apollo (U.K.) Partners III, L.P. ("Apollo U.K."), Bain Capital Fund V L.P.
("Bain Capital V"), Bain Capital Fund, V-B, L.P. ("Bain Capital V-B"), BCIP
Associates ("BCIP"), BCIP Trust Associates L.P. ("BCIP Trust"), Thomas H. Lee
Equity Fund III, L.P. ("THL"), Thomas H. Lee Foreign Fund III, L.P. ("THL
Foreign Fund"), THL Co-Investors III-A, LLC ("THL Co-Investors A"), THL
Co-Investors III-B, LLC ("THL Co-Investors B"), DLJ Capital Corp. ("DLJ
Capital"), Sprout Growth II, L.P. ("Sprout"), The Sprout CEO Fund, L.P.
("Sprout CEO Fund"), and Ontario Teachers' Pension Plan Board (each a
"Shareholder" and collectively, the Shareholders listed in this clause (iii)
are referred to as the "Institutional Shareholders") and (iv) certain other
Persons listed on the signature pages hereof (each a "Shareholder" and
collectively, the "Management Shareholders").
W I T N E S S E T H :
WHEREAS, pursuant to the Subscription Agreement and the
DecisionOne Direct Investment Program (as defined below) certain parties
hereto are or will be acquiring securities of Quaker Holding Co. and the
Company, respectively; and
WHEREAS, pursuant to the terms of the Merger Agreement (as
defined below), Quaker Holding Co. will be merged with and into the Company,
with the Company as the surviving corporation (the "Merger");
WHEREAS, the parties hereto desire to enter into this Agreement
to govern certain of their rights, duties and obligations after consummation
of the transactions contemplated by the Merger Agreement, the Subscription
Agreement and the DecisionOne Direct Investment Program;
The parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. (a) The following terms, as used
herein, have the following meanings:
"Adjusted Initial Ownership" means, with respect to any
Management Shareholder, the number of shares of Common Stock and Common Stock
Equivalents owned as of the date hereof, or in the case of any Person that
shall become a party to this Agreement on a later date, as of such date,
taking into account any stock split, stock dividend, reverse stock-split or
similar event.
"Adverse Person" means any Person whom the Board of Directors
of the Company determines is a competitor or a potential competitor of the
Company or its Subsidiaries.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under common control
with such Person, provided that no securityholder of the Company shall be
deemed an Affiliate of any other securityholder solely by reason of any
investment in the Company. For the purpose of this definition, the term
"control" (including with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Affiliated Employee Benefit Trust" means any trust that is a
successor to the assets held by a trust established under an employee benefit
plan subject to ERISA or any other trust established directly or indirectly
under such plan or any other such plan having the same sponsor.
"Apollo Entities" means Apollo Investment, Apollo Overseas,
Apollo U.K. and their Permitted Transferees.
"Bain Entities" means Bain Capital V, Bain Capital V-B, BCIP,
BCIP Trust and their Permitted Transferees.
"beneficially own" shall have the meaning set forth in Rule
13d-3 of the Exchange Act.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in New York City are authorized by law to close.
"Change of Control" means such time as (a) the DLJ Entities
shall own less than 20% of the outstanding shares of Common Stock, (b) the
transfer of all or substantially all of the assets of the Company to any
Person or group shall have been consummated, or (c) the Company shall have
been liquidated.
"Closing Date" means August 7, 1997.
"Common Stock" shall mean the common stock, par value $.01 per
share, of the Company and any stock into which such Common Stock may
thereafter be converted or changed.
"Common Stock Equivalent" means
(20.61 - P) x N
---------------
20.61
where "N" equals the number of Roll-Over Options, and "P" equals the exercise
price of such Roll-Over Option.
"DecisionOne Direct Investment Program" means the investment
program of the Company pursuant to which certain members of the Company's
management will acquire shares of Common Stock.
"Drag-Along Portion" means, with respect to any Other
Shareholder and any class of Common Stock, the number of such class of Common
Stock beneficially owned by such Other Shareholder multiplied by a fraction,
the numerator of which is the number of such class of Common Stock proposed to
be sold by the DLJ Entities on behalf of the DLJ Entities and the Other
Shareholders and the denominator of which is the total number of such class of
Common Stock on a Fully Diluted basis beneficially owned by the Shareholders.
"Equity Securities" means the Common Stock, securities
convertible into or exchangeable for Common Stock and options, warrants or
other rights to acquire Common Stock, preferred stock or any other equity
security issued by the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"First Public Offering" means the first sale after the date
hereof of Common Stock pursuant to an effective registration statement under
the Securities Act (other than a registration statement on Form S-8 or any
successor form).
"Fully Diluted" means all outstanding shares of Common Stock
and all shares issuable in respect of securities convertible into or
exchangeable for such Common Stock, stock appreciation rights or options,
warrants and other irrevocable rights to purchase or subscribe for such Common
Stock or securities convertible into or exchangeable for such Common Stock;
provided that no Person shall be deemed to own such number of Fully Diluted
shares of any Common Stock as such Person has the right to acquire from any
Person other than the Company.
"Initial Ownership" means, with respect to any Shareholder, the
number of shares of Common Stock beneficially owned (and (without duplication)
which such Persons have the right to acquire from any Person) as of the date
hereof, or in the case of any Person that shall become a party to this
Agreement on a later date, as of such date, taking into account any stock
split, stock dividend, reverse stock split or similar event.
"Merger Agreement" means the Agreement and Plan of Merger dated
as of May 4, 1997, as subsequently amended, between the Company and Quaker
Holding Co.
"Other Shareholders" means all Shareholders other than the DLJ
Entities.
"Percentage Ownership" means, with respect to any Shareholder
at any time, (i) the number of shares of Fully Diluted Common Stock that such
Shareholder beneficially owns (and (without duplication) has the right to
acquire from any Person) at such time, divided by (ii) the total number of
shares of Fully Diluted Common Stock at such time.
"Permitted Transferee" means (i) in the case of an
Institutional Shareholder (a) any general or limited partner or shareholder of
such Shareholder, and any corporation, partnership or other entity that is an
Affiliate of such Shareholder (collectively, "Shareholder Affiliates"), (b)
any general partner, limited partner, employee, officer or director of such
Shareholder or a Shareholder Affiliate, or any spouse, lineal descendant,
sibling, parent, heir, executor, administrator, testamentary trustee, legatee
or beneficiary of any of the foregoing persons described in this clause (b)
(collectively, "Shareholder Associates"), and (c) any trust, the beneficiaries
of which, or any corporation, limited liability company or partnership,
stockholders, members or general or limited partners of which include only
such Shareholder, such Shareholder Affiliates or Shareholder Associates;
(ii) in the case of a Management Shareholder (a) any other
Shareholder, (b) a spouse or lineal descendant (whether natural or adopted),
sibling, parent, heir, executor, administrator, testamentary trustee, legatee
or beneficiary of any of such Management Shareholder, (c) any trust, the
beneficiaries of which, or any corporation, limited liability company or
partnership, stockholders, members or general or limited partners of which
include only the Persons named in clauses (a) or (b) or (d) any charitable
remainder trust; or
(iii) in the case of any DLJ Entity (A) any other DLJ Entity,
(B) any general or limited partner of any such entity (a "DLJ Partner"), and
any corporation, partnership, Affiliated Employee Benefit Trust or other
entity which is an Affiliate of any DLJ Partner (collectively, the "DLJ
Affiliates"), (C) any managing director, general partner, director, limited
partner, officer or employee of such DLJ Entity or a DLJ Affiliate, or the
heirs, executors, administrators, testamentary trustees, legatees or
beneficiaries of any of the foregoing Persons referred to in this clause (C)
(collectively, "DLJ Associates"), and (D) any trust, the beneficiaries of
which, or any corporation, limited liability company or partnership, the
stockholders, members or general or limited partners of which, include only
such DLJ Entity, DLJ Affiliates, DLJ Associates, their spouses or their lineal
descendants. The term "DLJ Entities", to the extent such entities shall have
transferred any of their Shares to "Permitted Transferees", shall mean the DLJ
Entities and the Permitted Transferees of the DLJ Entities, taken together,
and any right or action that may be exercised or taken at the election of the
DLJ Entities may be exercised or taken at the election of the DLJ Entities and
such Permitted Transferees.
"Person" means an individual, corporation, limited liability
company, partnership, association, trust or other entity or organization,
including a government or political subdivision or an agency or
instrumentality thereof.
"Pro Rata Portion" means the number of Shares a Shareholder
holds (either Purchased Shares or non-Purchased Shares, as the case may be)
multiplied by a fraction, the numerator of which is the number of Shares to be
sold by the DLJ Entities and the Institutional Shareholders and their
Permitted Transferees in a Public Offering and the denominator of which is the
total number of Shares, on a Fully Diluted basis, held in the aggregate by the
DLJ Entities and the Institutional Shareholders and their Permitted
Transferees prior to such Public Offering.
"Public Offering" means any primary or secondary public
offering of Common Stock pursuant to an effective registration statement under
the Securities Act other than pursuant to a registration statement filed in
connection with a transaction of the type described in Rule 145 of the
Securities Act or for the purpose of issuing securities pursuant to an
employee benefit plan.
"Purchased Shares" means those Shares purchased by a Management
Shareholder on the Closing Date for cash and/or with the proceeds of a
promissory note of the type contemplated by the DecisionOne Direct Investment
Plan.
"Registrable Securities" means at any time, with respect to any
Shareholder or its Permitted Transferees, any shares of Common Stock then
owned by such Shareholder or its Permitted Transferees until (i) a
registration statement covering such securities has been declared effective by
the SEC and such securities have been disposed of pursuant to such effective
registration statement, (ii) such securities are sold under circumstances in
which all of the applicable conditions of Rule 144 (or any similar provisions
then in force) under the Securities Act are met or such securities may be sold
pursuant to Rule 144(k) or (iii) such securities are otherwise transferred,
the Company has delivered a new certificate or other evidence of ownership for
such securities not bearing the legend required pursuant to this Agreement and
such securities may be resold without subsequent registration under the
Securities Act.
"Registration Expenses" means (i) all registration and filing
fees, (ii) fees and expenses of compliance with securities or blue sky laws
(including reasonable fees and disbursements of counsel in connection with
blue sky qualifications of the securities registered), (iii) printing
expenses, (iv) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (v) reasonable fees and disbursements of counsel
for the Company and customary fees and expenses for independent certified
public accountants retained by the Company (including expenses relating to any
comfort letters or costs associated with the delivery by independent certified
public accountants of a comfort letter or comfort letters requested pursuant
to Section 5.04(g) hereof), (vi) the reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
(vii) reasonable fees and expenses of up to one counsel for the Shareholders
participating in the offering, (viii) fees and expenses in connection with any
review of underwriting arrangements by the National Association of Securities
Dealers, Inc. (the "NASD") including fees and expenses of any "qualified
independent underwriter" and (ix) fees and disbursements of underwriters
customarily paid by issuers or sellers of securities, but shall not include
any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities, or any out-of-pocket expenses (except as set forth in
clause (vii) above) of the Shareholders or any fees and expenses of
underwriter's counsel.
"Restriction Termination Date" means the fourth anniversary of
the Closing Date.
"Roll-Over Option" means an option granted by the Company to a
Management Shareholder prior to the Merger which option, at the effective time
of the Merger, was converted into an option to purchase shares of Common Stock
of the surviving corporation.
"Section 4.03 Portion" means the pro rata portion of any Equity
Securities proposed to be issued by the Company with respect to which
Shareholders shall be entitled to exercise their rights under Section 4.03,
(a) in the case of any Institutional Shareholder, based upon
such Institutional Shareholder's Initial Ownership of shares of Common Stock
as a percentage of the sum of (i) the Initial Ownership of Common Stock of the
DLJ Entities and all Institutional Stockholders and (ii) the Adjusted Initial
Ownership of all Management Stockholders, or
(b) in the case of any Management Shareholder, based upon such
Management Shareholder's Adjusted Initial Ownership of shares of Common Stock
as a percentage of the sum of (i) the Initial Ownership of the DLJ Entities
and the Institutional Shareholders and (ii) the Adjusted Initial Ownership of
all Management Shareholders.
"Section 4.04 Portion" means, with respect to any Shareholder
at any time, the number of shares of common stock purchased by DLJ Entities in
a transaction subject to Section 4.04, multiplied by a fraction, the numerator
of which is (i) the number of shares of Common Stock on a Fully Diluted basis
that such Shareholder beneficially owns at such time, and the denominator of
which is (ii) the total number of shares of Common Stock on a Fully Diluted
basis beneficially owned at such time by all Other Shareholders and the DLJ
Entities.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shareholder" means each Person (other than the Company) who
shall be a party to this Agreement, whether in connection with the execution
and delivery hereof as of the date hereof, pursuant to Section 7.03 or
otherwise, so long as such Person shall beneficially own any Common Stock.
"Shares" means shares of Common Stock held by the Shareholders.
"Sprout Entities" means DLJ Capital, Sprout, Sprout CEO Fund,
and their Permitted Transferees.
"Subject Securities" means the Common Stock beneficially owned
by the Management Shareholders and Institutional Shareholders to be
transferred in a Section 4.02 Sale.
"Subscription Agreement" means the Subscription Agreement of
even date herewith among Quaker Holding Co., the DLJ Entities and the
Institutional Investors.
"Subsidiary" means, with respect to any Person, any entity of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
"THL Entities" means THL, THL Foreign Fund, THL Co-Investors A,
THL Co-Investors B, and their Permitted Transferees.
"Tag-Along Portion" means the number of shares of Common Stock
held (or, without duplication, that such Shareholder has the right to acquire
from any Person) by the Tagging Person or the Selling Person, as the case may
be, multiplied by a fraction, the numerator of which is the number of shares
of Common Stock proposed to be sold by the Selling Person pursuant to Section
4.01, and the denominator of which is the aggregate number of shares of Common
Stock on a Fully Diluted basis owned by all Shareholders.
"Third Party" means a prospective purchaser of Common Stock in
an arm's-length transaction from a Shareholder where such purchaser is not a
Permitted Transferee of such Shareholder.
"Underwritten Public Offering" means a firmly underwritten
public offering of Registrable Securities of the Company pursuant to an
effective registration statement under the Securities Act.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
Term Section
Cause 2.02
Confidential Information 6.01(b)
Demand Registration 5.01(a)
Drag-Along Rights 4.02(a)
Holders 5.01(a)(ii)
Incidental Registration 5.02(a)
Indemnified Party 5.07
Indemnifying Party 5.07
Inspectors 5.04(g)
Maximum Offering Size 5.01(e)
Nominee 2.03(a)
Piggyback Registration 5.02(a)
Public Offering Limitations 3.05(a)
Records 5.04(g)
Representatives 6.01(b)
Section 4.1 Response Notice 4.01(a)
Section 4.2 Sale 4.02(a)
Section 4.2 Notice 4.02(a)
Section 4.2 Sale Price 4.02(a)
Section 4.2 Notice Period 4.02(a)
Section 4.03 Notice 4.03
Section 4.03 Portion 4.03
Section 4.04 Notice 4.04
Selling Person 4.01(a)
Selling Shareholder 5.01(a)
Shareholder 7.03
Tag-Along Notice 4.01(a)
Tag-Along Notice Period 4.01(a)
Tag-Along Offer 4.01(a)
Tag-Along Right 4.01(a)
Tag-Along Sale 4.01(a)
Tagging Person 4.01(a)
Transfer 3.01(a)
Trigger Date 6.05
ARTICLE 2
CORPORATE GOVERNANCE AND MANAGEMENT
Section 2.01. Composition of the Board. The Board shall
consist of seven members, of whom four shall be nominated by DLJMB, two
shall be nominated by DLJMB and shall be individuals which are not
"Affiliates" or "Associates" (as those terms are used within the meaning of
Rule 12b-2 of the General Rules and Regulations under the Exchange Act) of
any Shareholder or its Affiliates, and one shall be nominated by the
Management Shareholders. Each Shareholder entitled to vote for the
election of directors to the Board agrees that it will vote its shares of
Common Stock or execute consents, as the case may be, and take all other
necessary action (including causing the Company to call a special meeting
of shareholders) in order to ensure that the composition of the Board is as
set forth in this Section 2.01; provided that, no Shareholder shall be
required to vote for another Shareholder's nominee(s) if the number of
shares of Common Stock held by the Shareholder or group of Shareholders, as
applicable, making the nomination (or, in the case of a nomination by
DLJMB, of the DLJ Entities) is, at the close of business on the day
preceding such vote or execution of consents, less than 10% of such
Shareholder's or group of Shareholders' (or the DLJ Entities'), as
applicable, Initial Ownership of Common Stock on a Fully Diluted basis.
Section 2.02. Removal. Each Shareholder agrees that if, at any
time, it is then entitled to vote for the removal of directors of the Company,
it will not vote any of its shares of Common Stock in favor of the removal of
any director who shall have been designated or nominated pursuant to Section
2.01 unless such removal shall be for Cause or the Person(s) entitled to
designate or nominate such director shall have consented to such removal in
writing, provided that if the Persons entitled to designate or nominate any
director pursuant to Section 2.01 shall request the removal, with or without
Cause, of such director in writing, such Shareholder shall vote its shares of
Common Stock in favor of such removal. Removal for "Cause" shall mean removal
of a director because of such director's (a) willful and continued failure
substantially to perform his duties with the Company in his established
position, (b) willful conduct which is injurious to the Company or any of its
Subsidiaries, monetarily or otherwise, (c) conviction for, or guilty plea to,
a felony or a crime involving moral turpitude, or (d) abuse of illegal drugs or
other controlled substances or habitual intoxication.
Section 2.03. Vacancies. If, as a result of death, disability,
retirement, resignation, removal (with or without Cause) or otherwise, there
shall exist or occur any vacancy on the Board:
(a) The Shareholder(s) entitled under Section 2.01 to nominate such
director whose death, disability, retirement, resignation or removal resulted
in such vacancy, may, subject to the provisions of Section 2.01, nominate
another individual (the "Nominee") to fill such vacancy and serve as a
director of the Company; and
(b) each Shareholder then entitled to vote for the election of the
Nominee as a director of the Company agrees that it will vote its shares of
Common Stock, or execute a written consent, as the case may be, in order to
ensure that the Nominee be elected to the Board; provided that, no Shareholder
shall be required to vote for another party's Nominee(s) if the Percentage
Ownership of the Shareholder or group of Shareholders, as applicable, making
the nomination (or, in the case of a nomination by DLJMB, of the DLJ
Entities), at the close of business of the day preceding such vote or
execution of consents, is less than 10% on a Fully Diluted basis of such
Shareholder's or group of Shareholders' (or the DLJ Entities'), as applicable,
Initial Ownership of Common Stock.
Section 2.04. Action by the Board. (a) A quorum of the Board
shall consist initially of four directors; provided that DLJMB shall have the
right, in its sole discretion, until such time as the Percentage Ownership of
the DLJ Entities is less than 10% on a Fully Diluted basis of the DLJ
Entities' Initial Ownership of Common Stock, to increase or decrease the
number of directors necessary to constitute a quorum.
(b) All actions of the Board shall require the affirmative vote
of at least a majority of the directors at a duly convened meeting of the
Board at which a quorum is present or the unanimous written consent of the
Board; provided that, in the event there is a vacancy on the Board and an
individual has been nominated to fill such vacancy, the first order of
business shall be to fill such vacancy.
Section 2.05. Conflicting Charter or Bylaw Provision. Each
Shareholder shall vote its shares of Common Stock, and shall take all other
actions reasonably necessary, to ensure that the Company's certificate of
incorporation and bylaws (copies of which are attached hereto as Exhibits A
and B) facilitate and do not at any time conflict with any provision of this
Agreement.
ARTICLE 3
RESTRICTIONS ON TRANSFER
Section 3.01. General. (a) Each Shareholder understands and
agrees that the Common Stock purchased pursuant to the Subscription Agreement
or the DecisionOne Direct Investment Program have not been registered under
the Securities Act and are restricted securities. Each Shareholder agrees
that it will not, directly or indirectly, sell, assign, transfer, grant a
participation in, pledge or otherwise dispose of ("transfer") any Common Stock
(or solicit any offers to buy or otherwise acquire, or take a pledge of any
Common Stock) except in compliance with the Securities Act and the terms and
conditions of this Agreement.
(b) Any attempt to transfer any Common Stock not in compliance with
this Agreement shall be null and void and the Company shall not, and shall
cause any transfer agent not to, give any effect in the Company's stock
records to such attempted transfer.
Section 3.02. Legends. (a) In addition to any other legend
that may be required, each certificate for shares of Common Stock that is
issued to any Shareholder shall bear a legend in substantially the following
form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND MAY NOT BE OFFERED OR
SOLD EXCEPT IN COMPLIANCE THEREWITH. THIS SECURITY IS ALSO SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE INVESTORS' AGREEMENT
DATED AS OF AUGUST 7, 1997, COPIES OF WHICH MAY BE OBTAINED UPON REQUEST FROM
DECISIONONE HOLDINGS CORP. OR ANY SUCCESSOR THERETO."
(b) If any Common Stock shall cease to be Registrable Securities
under clause (i) or clause (ii) of the definition thereof, the Company shall,
upon the written request of the holder thereof, issue to such holder a new
certificate evidencing such shares without the first sentence of the legend
required by Section 3.02(a) endorsed thereon. If any Common Stock cease to be
subject to any and all restrictions on transfer set forth in this Agreement,
the Company shall, upon the written request of the holder thereof, issue to
such holder a new certificate evidencing such Common Stock without the second
sentence of the legend required by Section 3.02(a) endorsed thereon.
Section 3.03. Permitted Transferees. Notwithstanding anything
in this Agreement to the contrary, any Shareholder may at any time transfer
any or all of its Common Stock to one or more of its Permitted Transferees
without the consent of the Board or any other Shareholder or group of
Shareholders and without compliance with Sections 3.04, 3.05 and 4.01 so
long as (a) such Permitted Transferee shall have agreed in writing to be
bound by the terms of this Agreement and (b) the transfer to such Permitted
Transferee is not in violation of applicable federal or state securities
laws.
Section 3.04. Restrictions on Transfers by Institutional
Shareholders. (a) Except as provided in Section 3.3, each Institutional
Shareholder and each Permitted Transferee of such Institutional Shareholder
may transfer its Common Stock only as follows:
(i) in a transfer made in compliance with Section 4.1 or 4.2;
(ii) in a Public Offering in connection with the exercise of its
rights under Article 5 hereof; or
(iii) following the earlier to occur of (i) the date on which the
Percentage Ownership of such Institutional Shareholder is less than 25% of its
Initial Ownership of Common Stock and (ii) the seventh anniversary of the
Closing Date, to any Person other than any Adverse Person.
(b) The restrictions set forth in Section 3.4(a)(i) and (a)(ii) shall
terminate at such time as aggregate Percentage Ownership of the DLJ Entities
and their Permitted Transferees is equal to or less than 50% of the aggregate
Initial Ownership of Common Stock of DLJ Entities.
Section 3.05. Restrictions on Transfers by Management
Shareholders. (a) Except as provided in Section 3.03, each Management
Shareholder and each Permitted Transferee of such Management Shareholder may
transfer its Common Stock only as follows:
(i) in a transfer made in compliance with Section 4.01 or 4.02;
(ii) subject to the Public Offering Limitations (as defined
below), in a Public Offering in connection with the exercise of its rights
under Article 5 hereof;
(iii) 180 days following a Public Offering, to any Third Party, in
a transfer made in compliance with Rule 144 promulgated under the Securities
Act; provided, however, that until the Restriction Termination Date, the
Percentage Ownership of such Management Shareholder as a result of such
transfer shall be equal to or exceed the greater of (x) 50% of such Management
Shareholder's Initial Ownership of Common Stock and (y) a percentage of such
Management Shareholder's Initial Ownership equal to the Remaining Percentage.
For purposes of this Section 3.05(a)(iii), "Remaining Percentage" means the
Percentage Ownership of the DLJ Entities and the Institutional Investors
immediately prior to such proposed transfer pursuant to this Section
3.05(a)(iii) calculated by subtracting from the Initial Ownership of the DLJ
Entities and the Institutional Investors the number of shares of Common Stock
theretofore transferred by the DLJ Entities and the Institutional Investors;
or
(iv) following the Restriction Termination Date, to any Third
Party other than an Adverse Person for consideration consisting solely of
cash, provided, however, that the number of Shares transferred by such
Management Shareholder pursuant to this Section 3.05(a)(iv) in any twelve-month
period shall not exceed 20% of such Management Shareholder's Percentage
Ownership at the beginning of such twelve month period.
For purposes of this Agreement, "Public Offering Limitations"
means (A) except as set forth in the proviso at the end of this paragraph, no
Management Shareholder shall be permitted to exercise its rights under Section
5.02 hereof (x) with respect to the First Public Offering and (y) until such
time as the Percentage Ownership of the DLJ Entities and the Institutional
Shareholders and their Permitted Transferees shall be less than 50% of their
aggregate Initial Ownership of Common Stock and (B) in each Public Offering
following the First Public Offering, such Management Shareholder shall be
entitled to transfer a number of Shares not exceeding such Management
Shareholder's Pro Rata Portion of non-Purchased Shares; provided, however,
that notwithstanding the restrictions set forth in clauses (A) and (B), each
Management Shareholder shall be permitted to exercise its rights pursuant to
Section 5.02 hereof in respect of such Management Shareholder's Pro Rata
Portion of its Purchased Shares in any Public Offering and transfer such
Purchased Shares pursuant to Section 3.05(a)(ii).
(b) The provisions of Section 3.05(a) shall terminate upon the
earliest to occur of (i) one or more Public Offerings of Shares yielding
aggregate gross proceeds of at least $100,000,000, (ii) the fourth anniversary
of the Closing Date and (iii) a Change of Control. Notwithstanding the
foregoing sentence, the provisions of Section 3.05(a) shall not terminate with
respect to any Management Shareholder's Shares which shall have been pledged
to the Company as security in connection with any indebtedness for borrowed
money owed by such Management Shareholder to the Company unless the proceeds
from the sale of such Shares, net of any taxes due on such proceeds, are
applied to repay the such indebtedness in full.
ARTICLE 4
TAG-ALONG RIGHTS; DRAG-ALONG RIGHTS; PREEMPTIVE RIGHTS
Section 4.01. Rights to Participate in Transfer. (a) If DLJ
Entities (the "Selling Person") propose to transfer (other than transfers of
shares of Common Stock (i) in a Public Offering, (ii) to any Permitted
Transferee of any of the DLJ Entities or (iii) up to 2.5% in the aggregate of
the securities of such class outstanding on the date of the first transfer of
any shares of Common Stock by any of the DLJ Entities (such percentage, the
"Free Percentage")), in a transaction otherwise permitted by Article 3
hereof, (a "Tag-Along Sale"), the Other Shareholders may, at their option,
elect to exercise their rights under this Section 4.01 (each such Shareholder,
a "Tagging Person"). In the event of such a proposed transfer, the Selling
Person shall provide each Other Shareholder written notice of the terms and
conditions of such proposed transfer ("Tag-Along Notice") and offer each
Tagging Person the opportunity to participate in such sale. The Tag-Along
Notice shall identify the number of shares of Common Stock subject to the
offer ("Tag-Along Offer"), the cash price at which the transfer is proposed to
be made, and all other material terms and conditions of the Tag-Along Offer,
including the form of the proposed agreement, if any. From the date of the
Tag-Along Notice, each Tagging Person shall have the right (a "Tag-Along
Right"), exercisable by written notice ("Section 4.01 Response Notice") given
to the Selling Person within 5 Business Days (the "Tag-Along Notice Period"),
to request that the Selling Person include in the proposed transfer the number
of Shares held by such Tagging Person as is specified in such notice; provided
that if the aggregate number of Shares proposed to be sold by the Selling
Person and all Tagging Persons in such transaction exceeds the number of
Shares which can be sold on the terms and conditions set forth in the
Tag-Along Notice, then only the Tag-Along Portion of Shares of the Selling
Person and each Tagging Person shall be sold pursuant to the Tag-Along Offer.
In the event the DLJ Entities shall propose to transfer a number of Shares in
excess of the Free Percentage, the Tag-Along Portion shall be calculated with
respect to all of the Shares proposed to be transferred by the DLJ Entities.
If the Tagging Persons exercise their Tag-Along Rights hereunder, each Tagging
Person shall deliver, together with its Section 4.01 Response Notice, to the
Selling Person the certificate or certificates representing the Shares of such
Tagging Person to be included in the transfer, together with a limited
power-of-attorney authorizing the Selling Person to transfer such Shares on
the terms set forth in the Tag-Along Notice. It is understood that to the
extent the DLJ Entities can do so without affecting the other terms on which
the Tag-Along Sale is proposed to be made, the DLJ Entities will seek to
exclude from the terms of such Tag-Along Sale any material restrictions on the
ability, following such Tag-Along Sale, of any Tagging Person to conduct its
business in a manner consistent with past practice. Delivery of such
certificate or certificates representing the Shares to be transferred and the
limited power-of-attorney authorizing the Selling Person to transfer such
Shares shall constitute an irrevocable acceptance of the Tag-Along Offer by
such Tagging Persons. If, at the end of a 120 day period after such delivery,
the Selling Person has not completed the transfer of all such Shares on
substantially the same terms and conditions set forth in the Tag-Along Notice,
the Selling Person shall return to each Tagging Person the limited
power-of-attorney (and all copies thereof) together with all certificates
representing the Shares which such Tagging Person delivered for transfer
pursuant to this Section 4.01.
(b) Concurrently with the consummation of the Tag-Along Sale, the
Selling Person shall notify the Tagging Persons thereof, shall remit to the
Tagging Persons the total consideration (by bank or certified check) for the
Shares of the Tagging Persons transferred pursuant thereto, and shall,
promptly after the consummation of such Tag-Along Sale furnish such other
evidence of the completion and time of completion of such transfer and the
terms thereof as may be reasonably requested by the Tagging Persons.
(c) If at the termination of the Tag-Along Notice Period any Tagging
Person shall not have elected to participate in the Tag-Along Sale, such
Tagging Person will be deemed to have waived its rights under Section 4.01(a)
with respect to the transfer of its securities pursuant to such Tag-Along
Sale.
(d) If any Tagging Person declines to exercise its Tag-Along Rights
or elects to exercise its Tag-Along Rights with respect to less than such
Tagging Person's Tag-Along Portion, the DLJ Entities shall be entitled to
transfer, pursuant to the Tag-Along Offer, a number of Shares held by the DLJ
Entities equal to the number of Shares constituting the portion of such
Tagging Person's Tag-Along Portion with respect to which Tag-Along Rights were
not exercised.
(e) The DLJ Entities and any Tagging Person who exercises the
Tag-Along Rights pursuant to this Section 4.01 may sell the Shares subject to
the Tag-Along Offer on the terms and conditions set forth in the Tag-Along
Notice (provided, however, that the cash price payable in any such sale may
exceed the cash price specified in the Tag-Along Notice by up to 10%) within
120 days of the date on which Tag-Along Rights shall have been waived,
exercised or expire.
Section 4.02. Right to Compel Participation in Certain
Transfers. (a) If (i) the DLJ Entities propose to transfer not less than 50%
of their Initial Ownership of Common Stock to a Third Party in a bona fide
sale, (ii) the DLJ Entities propose a transfer in which the Shares to be
transferred by the DLJ Entities, the Institutional Shareholders and their
Permitted Transferees constitute more than 50% of the outstanding shares of
Common Stock (a "Section 4.02 Sale"), the DLJ Entities may at their option
require all Other Shareholders to sell the Subject Securities ("Drag-Along
Rights") then held by every Other Shareholder, and (subject to and at the
closing of the Section 4.02 Sale) to exercise all, but not less than all, of
the options held by every Other Shareholder and to sell all of the shares of
Common Stock received upon such exercise to such Third Party, for the same
consideration per share of Common Stock and otherwise on the same terms and
conditions as the DLJ Entities; provided that any Other Shareholder who holds
options the exercise price per share of which is greater than the per share
price at which the Shares are to be sold to the Third Party may, if required
by the DLJ Entities to exercise such options, in place of such exercise,
submit to irrevocable cancellation thereof without any liability for payment
of any exercise price with respect thereto. In the event the Section 4.02 Sale
is not consummated with respect to any shares acquired upon exercise of such
options, or the Section 4.02 Sale is not consummated, such options shall be
deemed not to have been exercised or cancelled, as applicable. DLJMB shall
provide written notice of such Section 4.02 Sale to the Other Shareholders (a
"Section 4.02 Notice") not later than the 15th day prior to the proposed
Section 4.02 Sale. The Section 4.02 Notice shall identify the transferee, the
number of Subject Securities, the consideration for which a transfer is
proposed to be made (the "Section 4.02 Sale Price") and all other material
terms and conditions of the Section 4.02 Sale. The number of shares of Common
Stock to be sold by each Other Shareholder will be the Drag-Along Portion of
the shares of Common Stock that such Other Shareholder owns. Subject to
Section 4.02(d), each Other Shareholder shall be required to participate in the
Section 4.02 Sale on the terms and conditions set forth in the Section 4.02
Notice and to tender all its Subject Securities as set forth below. It is
understood that to the extent the DLJ Entities can do so without affecting the
other terms on which the Section 4.02 Sale is proposed to be made, the DLJ
Entities will seek to exclude from the terms of such Section 4.02 Sale any
material restrictions on the ability, following such Section 4.02 Sale, of any
Other Shareholder to conduct its business in a manner consistent with past
practice. The price payable in such transfer shall be the Section 4.02 Sale
Price. Not later than the 10th day following the date of the Section 4.02
Notice (the "Section 4.02 Notice Period"), each of the Other Shareholders shall
deliver to a representative of DLJMB designated in the Section 4.02 Notice
certificates representing all Subject Securities held by such Other
Shareholder, duly endorsed, together with all other documents required to be
executed in connection with such Section 4.02 Sale or, if such delivery is not
permitted by applicable law, an unconditional agreement to deliver such
Subject Securities pursuant to this Section 4.02 at the closing for such
Section 4.02 Sale against delivery to such Other Shareholder of the
consideration therefor. If an Other Shareholder should fail to deliver such
certificates to DLJMB, the Company shall cause the books and records of the
Company to show that such Subject Securities are bound by the provisions of
this Section 4.02 and that such Subject Securities shall be transferred to the
purchaser of the Subject Securities immediately upon surrender for transfer by
the holder thereof.
(b) The DLJ Entities shall have a period of 90 days from the date of
receipt of the Section 4.02 Notice to consummate the Section 4.02 Sale on the
terms and conditions set forth in such Section 4.02 Sale Notice. If the
Section 4.02 Sale shall not have been consummated during such period, DLJMB
shall return to each of the Other Shareholders all certificates representing
Shares that such Other Shareholder delivered for transfer pursuant hereto,
together with any documents in the possession of DLJMB executed by the Other
Shareholder in connection with such proposed transfer, and all the
restrictions on transfer contained in this Agreement or otherwise applicable
at such time with respect to Common Stock owned by the Other Shareholders
shall again be in effect.
(c) Concurrently with the consummation of the transfer of Shares
pursuant to this Section 4.02, DLJMB shall give notice thereof to all
Shareholders, shall remit to each of the Shareholders who have surrendered
their certificates the total consideration (by bank or certified check) for
the Shares transferred pursuant hereto and shall furnish such other evidence
of the completion and time of completion of such transfer and the terms thereof
as may be reasonably requested by such Shareholders.
(d) Notwithstanding any provision of this Agreement to the contrary,
in the event the terms on which a Section 4.02 Sale is proposed to be made
shall include a provision which materially and adversely affects the ability
of any Other Shareholder to compete in any line of business or geographic
area, such Other Shareholder shall not be required to participate in the
Section 4.02 Sale on the terms and conditions set forth in the Section 4.02
Notice. In the event any Shareholder shall elect, pursuant to the preceding
sentence, not to participate in the Section 4.02 Sale, the DLJ Entities shall
have the right to purchase, and such Shareholder shall be obligated to sell to
the DLJ Entities, such Shareholder's Subject Securities, at the Section 4.02
Sale Price and on substantially the same terms (other than any such
non-compete provision), not later than immediately prior to the consummation
of the Section 4.02 Sale.
Section 4.03. Preemptive Rights. (a) The Company shall
provide each Shareholder with a written notice (a "Section 4.03 Notice") of any
proposed issuance by the Company of Equity Securities at least 10 days prior
to the proposed issuance date. Such notice shall specify the price at which
the Equity Securities are to be issued and the other material terms of the
issuance. In the event the DLJ Entities propose to purchase any such Equity
Securities from the Company, each Other Shareholder shall be entitled to
purchase, at the price and on the terms at which the DLJ Entities propose to
purchase such Equity Securities and specified in such Section 4.03 Notice, such
Shareholder's Section 4.03 Portion of the Equity Securities proposed to be
issued. A Shareholder may exercise its rights under this Section 4.03 by
delivering written notice of its election to purchase Equity Securities to the
Company, DLJMB and each Other Shareholder within 5 days of receipt of the
Section 4.03 Notice. A delivery of such a written notice (which notice shall
specify the number of shares (or amount) of Equity Securities to be purchased
by the Shareholder submitting such notice) by such Shareholder shall
constitute a binding agreement of such Shareholder to purchase, subject to the
purchase by the DLJ Entities of their portion of such Equity Securities, at
the price and on the terms specified in the Section 4.03 Notice, the number of
shares (or amount) of Equity Securities specified in such Shareholder's
written notice. In the event the Equity Securities proposed to be issued by
the Company are not shares of Common Stock, it shall be a condition to the
consummation of the purchase of such Equity Securities pursuant to this
Section 4.03 by any Shareholder that such Shareholder shall execute an
amendment of this Agreement on the terms consistent with this Agreement
reasonably satisfactory to the Company and the DLJ Entities.
(b) In the event any Other Shareholder declines to exercise its
preemptive rights under this Section 4.03 or elects to exercise such rights
with respect to less than such Shareholder's Section 4.03 Portion, the DLJ
Entities shall be entitled to purchase from the Company the number of Equity
Securities constituting the Section 4.03 Portion with respect to which such
Other Shareholder shall not have exercised its preemptive rights.
(c) In the case of any issuance of Equity Securities, the Company
shall have 90 days from the date of the Section 4.03 Notice to consummate the
proposed issuance of any or all of such Equity Securities which the
Shareholders have not elected to purchase at the price and upon terms that are
not materially less favorable to the Company than those specified in the
Section 4.03 Notice. At the consummation of such issuance, the Company shall
issue certificates representing the Equity Securities to be purchased by each
Shareholder exercising preemptive rights pursuant to this Section 4.03
registered in the name of such Shareholder, against payment by such
Shareholder of the purchase price for such Equity Securities. If the Company
proposes to issue Equity Securities after such 90-day period, it shall again
comply with the procedures set forth in this Section.
(d) Notwithstanding the foregoing, no Shareholder shall be
entitled to purchase Equity Securities as contemplated by this Section 4.03 in
connection with issuances of Equity Securities (i) to employees of the Company
or any Subsidiary pursuant to employee benefit plans or arrangements approved
by the Board (including upon the exercise of employee stock options), (ii) in
connection with any bona fide, arm's-length restructuring of outstanding debt
of the Company or any Subsidiary, or (iii) in connection with any bona fide,
arm's-length direct or indirect merger, acquisition or similar transaction.
The Company shall not be under any obligation to consummate any proposed
issuance of Equity Securities, regardless of whether it shall have delivered a
Section 4.03 Notice in respect of such proposed issuance.
(e) The Company will use its reasonable best efforts to provide the
Section 4.03 Notice at least 15 Business Days prior to any proposed issuance of
Equity Securities. In the event it is impracticable to provide the Section
4.03 Notice at least 15 Business Days prior to such issuance, any Shareholder
may offer to finance or arrange to finance the purchase by any other
Shareholder of such other Shareholder's Section 4.03 Portion and such financing
or arranging Shareholder shall be entitled to receive as compensation for such
services reasonable and customary fees and expenses. No Shareholder shall be
under any obligation to provide or arrange such financing for any other
Shareholder.
Section 4.04. Certain Other Purchases of Common Stock. In the
event, at any time prior to the Trigger Date, the DLJ Entities shall acquire
any shares of Common Stock from any Person other than the Shareholders, the
DLJ Entities shall deliver, within five Business Days of the date of such
acquisition, a notice to each Other Shareholder (a "Section 4.04 Notice")
specifying the number of shares of Common Stock acquired and the weighted
average of price per share paid by the DLJ Entities. Such Section 4.04 Notice
shall constitute an offer to each such Other Shareholder to purchase such
Shareholder's Section 4.04 Portion of the number of shares of Common Stock
acquired by the DLJ Entities. A Shareholder may exercise its rights under
this Section 4.04 by delivering written notice of its election to purchase its
Section 4.04 Portion within 10 days of receipt of the Section 4.04 Notice. A
delivery of such written notice (which shall specify the number of shares of
Common Stock to be purchased by the Shareholder submitting such notice) by
such Shareholder shall constitute a binding agreement of such Shareholder to
purchase, at the price and on the terms specified in the Section 4.04 Notice,
the number of shares of Common Stock specified in such notice. At the
consummation of the transfer of the shares of Common Stock purchased by the DLJ
Entities to any Shareholder that shall have exercised its rights hereunder,
the DLJ Entities shall deliver to such Shareholder certificates representing
the shares of Common Stock to be purchased against payment by such Shareholder
of the purchase price for such shares of Common Stock.
ARTICLE 5
REGISTRATION RIGHTS
Section 5.01. Demand Registration. (a) If the Company shall
receive a written request by the DLJ Entities or their Permitted Transferees
(any such requesting Person, a "Selling Shareholder") that the Company effect
the registration under the Securities Act of all or a portion of such Selling
Shareholder's Registrable Securities, and specifying the intended method of
disposition thereof, then the Company shall promptly give written notice of
such requested registration (a "Demand Registration") at least 5 days prior to
the anticipated filing date of the registration statement relating to such
Demand Registration to the Other Shareholders and thereupon will use its best
efforts to effect, as expeditiously as possible, the registration under the
Securities Act of:
(i) the Registrable Securities which the Company has been so
requested to register by the Selling Shareholders, then held by the Selling
Shareholders; and
(ii) subject to the restrictions set forth in Section 5.02, all
other Registrable Securities of the same type as that to which the request by
the Selling Shareholders relates which any Other Shareholder entitled to
request the Company to effect a Piggyback Registration (as such term is
defined in Section 5.02) pursuant to Section 5.02 (all such Shareholders,
together with the Selling Shareholders, the "Holders") has requested the
Company to register by written request received by the Company within 2 days
(one of which shall be a Business Day) after the receipt by such Holders of
such written notice given by the Company,
all to the extent necessary to permit the disposition (in accordance with
the intended methods thereof as aforesaid) of the Registrable Securities so
to be registered; provided that, subject to Section 5.01(d) hereof, the
Company shall not be obligated to effect more than six Demand Registrations
for the DLJ Entities; and provided further that the Company shall not be
obligated to effect a Demand Registration unless the aggregate proceeds
expected to be received from the sale of the Common Stock requested to be
included in such Demand Registration, in the reasonable opinion of DLJMB
exercised in good faith, equals or exceeds (x) $50,000,000 if such Demand
Registration would constitute the First Public Offering, or (y) $10,000,000
in all other cases. In no event will the Company be required to effect
more than one Demand Registration within any four-month period.
(b) Promptly after the expiration of the 2-day period referred to in
Section 5.01(a)(ii) hereof, the Company will notify all the Holders to be
included in the Demand Registration of the other Holders and the number of
Registrable Securities requested to be included therein. The Selling
Shareholders requesting a registration under Section 5.01(a) may, at any time
prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other
Holders, by providing a written notice to the Company revoking such request,
in which case such request, so revoked, shall be considered a Demand
Registration unless such revocation arose out of the fault of the Company or
unless the participating Shareholders reimburse the Company for all costs
incurred by the Company in connection with such registration, in which case
such request shall not be considered a Demand Registration.
(c) The Company will pay all Registration Expenses in connection with
any Demand Registration.
(d) A registration requested pursuant to this Section 5.01 shall not
be deemed to have been effected (i) unless the registration statement relating
thereto (A) has become effective under the Securities Act and (B) has remained
effective for a period of at least 180 days (or such shorter period in which
all Registrable Securities of the Holders included in such registration have
actually been sold thereunder); provided that if after any registration
statement requested pursuant to this Section 5.01 becomes effective (x) such
registration statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or other governmental agency or court
and (y) less than 75% of the Registrable Securities included in such
registration statement has been sold thereunder, such registration statement
shall not be considered a Demand Registration, or (ii) if the Maximum Offering
Size (as defined below) is reduced in accordance with Section 5.01(e) such that
less than 66 2/3% of the Registrable Securities of the Selling Shareholders
sought to be included in such registration are included.
(e) If a Demand Registration involves an Underwritten Public Offering
and the managing underwriter shall advise the Company and the Selling
Shareholders that, in its view, (i) the number of shares of Registrable
Securities requested to be included in such registration (including any
securities which the Company proposes to be included which are not Registrable
Securities) or (ii) the inclusion of some or all of the shares of Registrable
Securities owned by the Holders, in any such case, exceeds the largest number
of shares which can be sold without having an adverse effect on such offering,
including the price at which such shares can be sold (the "Maximum Offering
Size"), the Company will include in such registration, in the priority listed
below, up to the Maximum Offering Size:
(A) first, all Registrable Securities requested to be
registered by the parties requesting such Demand Registration and
all Registrable Securities requested to be included in such
registration by any other Holder (allocated, if necessary for the
offering not to exceed the Maximum Offering Size, pro rata among
such Holders on the basis of the relative number of Registrable
Securities so requested to be included in such registration); and
(B) second, any securities proposed to be registered by the
Company.
(f) Upon written notice to each Selling Shareholder, the Company may
postpone effecting a registration pursuant to this Section 5.01 on one occasion
during any period of six consecutive months for a reasonable time specified in
the notice but not exceeding 90 days (which period may not be extended or
renewed), if (1) an investment banking firm of recognized national standing
shall advise the Company and the Selling Shareholders in writing that
effecting the registration would materially and adversely affect an offering
of securities of such Company the preparation of which had then been commenced
or (2) the Company is in possession of material non-public information the
disclosure of which during the period specified in such notice the Company
believes, in its reasonable judgment, would not be in the best interests of
the Company.
(g) After the Company has effected two Demand Registrations pursuant
to this Section 5.01 of Common Stock, the Other Shareholders, upon request of
the Other Shareholders owning a majority of the Shares acquired by the Other
Shareholders on Closing Date, may request that the Company register Common
Stock which are Registrable Securities then owned by such Other Shareholders.
In no event will the Company be required to effect more than one such Demand
Registration. The provisions of this Article 5 shall apply, mutatis mutandis,
to any such Demand Registration.
Section 5.02. Piggyback Registration. (a) If the Company
proposes to register any of its Common Stock under the Securities Act
(including pursuant to a Demand Registration), whether or not for sale for its
own account, it will each such time, subject to the provisions of Section
5.02(b) hereof, give prompt written notice at least 5 days prior to the
anticipated filing date of the registration statement relating to such
registration to all Shareholders and their respective Permitted Transferees
(or, in the case of a Demand Registration requested by the DLJ Entities, to
all Other Shareholders), which notice shall set forth such Shareholders'
rights under this Section 5.02 and shall offer all Shareholders the opportunity
to include in such registration statement such number of shares of Common
Stock as each such Shareholder may request (a "Piggyback Registration"). Upon
the written request of any such Shareholder made within 2 days (one of which
shall be a Business Day) after the receipt of notice from the Company (which
request shall specify the number of shares of Common Stock intended to be
disposed of by such Shareholder), the Company will use its reasonable best
efforts to effect the registration under the Securities Act of all shares of
Common Stock which the Company has been so requested to register by such
Shareholders, to the extent requisite to permit the disposition of the shares
of Common Stock so to be registered; provided that (i) if such registration
involves an Underwritten Public Offering, all such Shareholders requesting to
be included in the Company's registration must sell their Registrable
Securities to the underwriters selected as provided in Section 5.4(f) on the
same terms and conditions as apply to the Company or the Selling Shareholder,
as applicable, and (ii) if, at any time after giving written notice of its
intention to register any stock pursuant to this Section 5.2(a) and prior to
the effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register such
stock, the Company shall give written notice to all such Shareholders and,
thereupon, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration; and provided further that the
right of the Management Shareholders and their Permitted Transferees to
request a Piggyback Registration will be subject to the Public Offering
Limitations. No registration effected under this Section 5.2 shall relieve
the Company of its obligations to effect a Demand Registration to the extent
required by Section 5.01 hereof. The Company will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 5.02.
(b) If a registration pursuant to this Section 5.02 involves an
Underwritten Public Offering (other than in the case of an Underwritten Public
Offering requested by the DLJ Entities in a Demand Registration, in which case
the provisions with respect to priority of inclusion in such offering set
forth in Section 5.01(e) shall apply) and the managing underwriter advises the
Company that, in its view, the number of shares of Common Stock which the
Company and the selling Shareholders intend to include in such registration
exceeds the Maximum Offering Size, the Company will include in such
registration, in the following priority, up to the Maximum Offering Size:
(i) first, so much of the Common Stock proposed to be
registered for the account of the Company as would not cause the
offering to exceed the Maximum Offering Size; and
(ii) second, all Registrable Securities requested to be
included in such registration by any Shareholder pursuant to Section
5.02 (allocated, if necessary for the offering not to exceed the
Maximum Offering Size, pro rata among such Shareholders on the basis
of the relative number of shares of Registrable Securities so
requested to be included in such registration).
Section 5.03. Holdback Agreements. With respect to each and
every firmly underwritten Public Offering, each Shareholder agrees and their
Permitted Transferees will agree not to offer or sell any shares of Common
Stock (except for shares of Common Stock, if any, sold in that Public
Offering) during the 14 days prior to the effective date of the applicable
registration statement for a public offering of shares of Common Stock (except
as part of such registration) and during the period after such effective date
equal to the lesser of: (i) 180 days or (ii) any such shorter period as the
Company and the lead managing underwriter of an Underwritten Public Offering
agree.
Section 5.04. Registration Procedures. Whenever Shareholders
request that any Registrable Securities be registered pursuant to Section 5.01
or 5.02 hereof, the Company will, subject to the provisions of such Sections,
use its reasonable best efforts to effect the registration and the sale of
such Registrable Securities in accordance with the intended method of
disposition thereof as quickly as practicable, and in connection with any such
request:
(a) The Company will as expeditiously as possible prepare and file
with the SEC a registration statement on any form selected by counsel for the
Company and which form shall be available for the sale of the Registrable
Securities to be registered thereunder in accordance with the intended method
of distribution thereof, and use its reasonable best efforts to cause such
filed registration statement to become and remain effective for a period of
not less than 180 days (or such shorter period in which all of the Registrable
Securities of the Holders included in such registration statement shall have
actually been sold thereunder).
(b) The Company will, if requested, prior to filing a registration
statement or prospectus or any amendment or supplement thereto, furnish to
each Shareholder and each underwriter, if any, of the Registrable Securities
covered by such registration statement copies of such registration statement
as proposed to be filed, and thereafter the Company will furnish to such
Shareholder and underwriter, if any, such number of copies of such
registration statement, each amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including
each preliminary prospectus) and such other documents as such Shareholder or
underwriter may reasonably request in order to facilitate the disposition of
the Registrable Securities owned by such Shareholder. Each Shareholder shall
have the right to request that the Company modify any information contained in
such registration statement, amendment and supplement thereto pertaining to
such Shareholder and the Company shall use its reasonable best efforts to
comply with such request, provided, however, that the Company shall not have
any obligation to so modify any information if so doing would cause the
prospectus to contain an untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) After the filing of the registration statement, the Company will
(i) cause the related prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act, (ii) comply with the provisions of the Securities Act with
respect to the disposition of all Registrable Securities covered by such
registration statement during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
registration statement or supplement to such prospectus and (iii) promptly
notify each Shareholder holding Registrable Securities covered by such
registration statement of any stop order issued or threatened by the SEC or
any state securities commission under state blue sky laws and take all
reasonable actions required to prevent the entry of such stop order or to
remove it if entered.
(d) The Company will use its reasonable best efforts to (i) register
or qualify the Registrable Securities covered by such registration statement
under such other securities or blue sky laws of such jurisdictions in the
United States as any Shareholder holding such Registrable Securities
reasonably (in light of such Shareholder's intended plan of distribution)
requests and (ii) cause such Registrable Securities to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company and do any and all
other acts and things that may be reasonably necessary or advisable to enable
such Shareholder to consummate the disposition of the Registrable Securities
owned by such Shareholder; provided that the Company will not be required to
(A) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this paragraph (d), (B) subject
itself to taxation in any such jurisdiction or (C) consent to general service
of process in any such jurisdiction.
(e) The Company will immediately notify each Shareholder holding such
Registrable Securities covered by such registration statement, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the occurrence of an event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and promptly prepare and make available to each such
Shareholder and file with the SEC any such supplement or amendment.
(f) In connection with (i) any Demand Registration requested by the
DLJ Entities or their Permitted Transferees or (ii) any registration of
Registrable Securities pursuant to this Article 5 the Company shall appoint
the underwriter or underwriters chosen by DLJMB. The Company will enter into
customary agreements (including an underwriting agreement in customary form)
and take such other actions as are reasonably required in order to expedite or
facilitate the disposition of such Registrable Securities, including the
engagement of a "qualified independent underwriter" in connection with the
qualification of the underwriting arrangements with the NASD.
(g) Upon execution of confidentiality agreements in form and substance
reasonably satisfactory to the Company, the Company will make available for
inspection by any Shareholder and any underwriter participating in any
disposition pursuant to a registration statement being filed by the Company
pursuant to this Section 5.04 and any attorney, accountant or other
professional retained by any such Shareholder or underwriter (collectively,
the "Inspectors"), all financial and other records, pertinent corporate
documents and properties of the Company (collectively, the "Records") as shall
be reasonably requested by any such Person, and cause the Company's officers,
directors and employees to supply all information reasonably requested by any
Inspectors in connection with such registration statement.
(h) The Company will furnish to each such Shareholder and to each such
underwriter, if any, a signed counterpart, addressed to such underwriter and
the participating Shareholders, of (i) an opinion or opinions of counsel to
the Company and (ii) a comfort letter or comfort letters from the Company's
independent public accountants, each in customary form and covering such
matters of the type customarily covered by opinions or comfort letters, as the
case may be, as a majority of such Shareholders or the managing underwriter
therefor reasonably requests.
(i) The Company will otherwise use its reasonable best efforts to
comply with all applicable rules and regulations of the SEC and the relevant
state blue sky commissions, and make available to its securityholders, as soon
as reasonably practicable, an earnings statement covering a period of 12
months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions
of Section 11(a) of the Securities Act.
(j) The Company may require each such Shareholder to promptly furnish
in writing to the Company information regarding the distribution of the
Registrable Securities as the Company may from time to time reasonably request
and such other information as may be legally required in connection with such
registration.
(k) Each such Shareholder agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
Section 5.04(e) hereof, such Shareholder will forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering such
Registrable Securities until such Shareholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 5.04(e) hereof, and,
if so directed by the Company, such Shareholder will deliver to the Company
all copies, other than any permanent file copies then in such Shareholder's
possession, of the most recent prospectus covering such Registrable Securities
at the time of receipt of such notice. In the event that the Company shall
give such notice, the Company shall extend the period during which such
registration statement shall be maintained effective (including the period
referred to in Section 5.04(a) hereof) by the number of days during the period
from and including the date of the giving of notice pursuant to Section 5.04(e)
hereof to the date when the Company shall make available to such Shareholder a
prospectus supplemented or amended to conform with the requirements of Section
5.04(e) hereof.
(l) The Company will use its reasonable best efforts to list such
Registrable Securities on any securities exchange on which the Common Stock is
then listed or on NASDAQ if the Common Stock is then quoted on NASDAQ not
later than the effective date of such registration statement.
Section 5.05. Indemnification by the Company. The Company
agrees to indemnify and hold harmless each Shareholder holding Registrable
Securities covered by a registration statement, its officers, directors,
employees, partners and agents, and each Person, if any, who controls such
Shareholder within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act (and officers, directors, employees, partners and
agents of such controlling Persons) from and against any and all losses,
claims, damages and liabilities caused by any untrue statement or alleged
untrue statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities (as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses,
claims, damages or liabilities are caused by any such untrue statement or
omission or alleged untrue statement or omission so made in strict conformity
with information furnished in writing to the Company by such Shareholder or on
such Shareholder's behalf expressly for use therein; provided that with
respect to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus, or in any prospectus, as the case
may be, the indemnity agreement contained in this paragraph shall not apply to
the extent that any such loss, claim, damage, liability or expense results from
the fact that a current copy of the prospectus (or, in the case of a
prospectus, the prospectus as amended or supplemented) was not sent or given
to the Person asserting any such loss, claim, damage, liability or expense at
or prior to the written confirmation of the sale of the Registrable Securities
concerned to such Person if it is determined that the Company has provided
such current copy of such prospectus (or such amended or supplemented
prospectus, as the case may be) to such Shareholder in a timely manner prior
to such sale and it was the responsibility of such Shareholder under the
Securities Act to provide such Person with a current copy of the prospectus
(or such amended or supplemented prospectus, as the case may be) and such
current copy of the prospectus (or such amended or supplemented prospectus, as
the case may be) would have cured the defect giving rise to such loss, claim,
damage, liability or expense. The Company also agrees to indemnify any
underwriters of the Registrable Securities, their officers and directors and
each person who controls such underwriters on substantially the same basis as
that of the indemnification of the Shareholders provided in this Section 5.05.
Section 5.06. Indemnification by Participating Shareholders.
Each Shareholder holding Registrable Securities included in any registration
statement agrees, severally but not jointly, to indemnify and hold harmless
the Company, its officers, directors and agents and each Person (other than
such Shareholder) if any, who controls the Company within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such
Shareholder, but only (i) with respect to information furnished in writing by
such Shareholder or on such Shareholder's behalf expressly for use in any
registration statement or prospectus relating to the Registrable Securities,
or any amendment or supplement thereto, or any preliminary prospectus or (ii)
to the extent that any loss, claim, damage, liability or expense described in
Section 5.05 results from the fact that a current copy of the prospectus (or,
in the case of a prospectus, the prospectus as amended or supplemented) was
not sent or given to the Person asserting any such loss, claim, damage,
liability or expense at or prior to the written confirmation of the sale of
the Registrable Securities concerned to such Person if it is determined that
it was the responsibility of such Shareholder to provide such Person with a
current copy of the prospectus (or such amended or supplemented prospectus, as
the case may be) and such current copy of the prospectus (or such amended or
supplemented prospectus, as the case may be) would have cured the defect
giving rise to such loss, claim, damage, liability or expense. Each such
Shareholder shall be prepared, if required by the underwriting agreement, to
indemnify and hold harmless underwriters of the Registrable Securities, their
officers and directors and each person who controls such underwriters on
substantially the same basis as that of the indemnification of the Company
provided in this Section 5.06. As a condition to including Registrable
Securities in any registration statement filed in accordance with Article 5
hereof, the Company may require that it shall have received an undertaking
reasonably satisfactory to it from any underwriter to indemnify and hold it
harmless to the extent customarily provided by underwriters with respect to
similar securities.
No Shareholder shall be liable under Section 5.06 for any
damage thereunder in excess of the net proceeds realized by such Shareholder
in the sale of the Registrable Securities of such Shareholder.
Section 5.07. Conduct of Indemnification Proceedings. In case
any proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
this Article 5, such Person (an "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party,
and shall assume the payment of all fees and expenses; provided that the
failure of any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder except to the
extent that the Indemnifying Party is materially prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and
the Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) in the reasonable judgment of such Indemnified Party
representation of both parties by the same counsel would be inappropriate due
to actual or potential differing interests between them. It is understood
that the Indemnifying Party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Indemnified Parties, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case
of any such separate firm for the Indemnified Parties, such firm shall be
designated in writing by the Indemnified Parties. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent, or if there be a final
judgment for the plaintiff, the Indemnifying Party shall indemnify and hold
harmless such Indemnified Parties from and against any and all losses, claims,
damages, liabilities and expenses or liability (to the extent stated above) by
reason of such settlement or judgment. No Indemnifying Party shall, without
the prior written consent of the Indemnified Party, effect any settlement of
any pending or threatened proceeding in respect of which any Indemnified Party
is or could have been a party and indemnity could have been sought hereunder
by such Indemnified Party, unless such settlement includes an unconditional
release of such Indemnified Party from all liability arising out of such
proceeding.
Section 5.08. Contribution. If the indemnification provided
for in this Article 5 is held by a court of competent jurisdiction to be
unavailable to the Indemnified Parties in respect of any losses, claims,
damages or liabilities referred to herein, then each such Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such losses, claims,
damages or liabilities (i) as between the Company and the Shareholders holding
Registrable Securities covered by a registration statement and their related
Indemnified Parties on the one hand and the underwriters and their related
Indemnified Parties on the other, in such proportion as is appropriate to
reflect the relative benefits received by the Company and such Shareholders on
the one hand and the underwriters on the other, from the offering of the
Shareholders' Registrable Securities, or if such allocation is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits but also the relative fault of the Company and such
Shareholders on the one hand and of such underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations and (ii) as between the Company and their related Indemnified
Parties on the one hand and each such Shareholder and their related
Indemnified Parties on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each such Shareholder in
connection with such statements or omissions, as well as any other relevant
equitable considerations. The relative benefits received by the Company and
such Shareholders on the one hand and such underwriters on the other shall be
deemed to be in the same proportion as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and such Shareholders bear to the total underwriting
discounts and commissions received by such underwriters, in each case as set
forth in the table on the cover page of the prospectus. The relative fault of
the Company and such Shareholders on the one hand and of such underwriters on
the other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and such Shareholders or by such underwriters. The relative fault
of the Company on the one hand and of each such Shareholder on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by such
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not be
just and equitable if contribution pursuant to this Section 5.08 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an Indemnified
Party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by such Indemnified Party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 5.08 no
underwriter shall be required to contribute any amount in excess of the
underwriting discount applicable to securities purchased by such underwriter
in such offering, less the aggregate amount of any damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no Shareholder
shall be required to contribute any amount in excess of the amount by which
the net proceeds realized on the sale of the Registrable Securities of such
Shareholder exceeds the amount of any damages which such Shareholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Each Shareholder's obligation to contribute
pursuant to this Section 5.08 is several in the proportion that the proceeds of
the offering received by such Shareholder bears to the total proceeds of the
offering received by all such Shareholders and not joint.
Section 5.09. Participation in Public Offering. No Person may
participate in any Underwritten Public Offering hereunder unless such Person
(a) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements and the
provisions of this Agreement in respect of registration rights.
Section 5.10. Cooperation by the Company. In the event any
Shareholder shall transfer any Registrable Securities pursuant to Rule 144A
under the Securities Act, the Company shall cooperate, to the extent
commercially reasonable, with such Shareholder and shall provide to such
Shareholder such information as such Shareholder shall reasonably request.
Section 5.11. No Transfer of Registration Rights. None of the
rights of Shareholders under this Article 5 shall be assignable by any
Shareholder to any Person acquiring securities of such Shareholder in any
Public Offering or pursuant to Rule 144A of the Securities Act.
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.01. Confidentiality. (a) Each Shareholder hereby
agrees that Confidential Information (as defined below) furnished and to be
furnished to it was and will be made available in connection with such
Shareholder's investment in the Company. Each Shareholder agrees that it will
use the Confidential Information only in connection with its investment in the
Company and not for any other purpose. Each Shareholder further acknowledges
and agrees that it will not disclose any Confidential Information to any
Person; provided that Confidential Information may be disclosed (i) to such
Shareholder's Representatives (as defined below) in the normal course of the
performance of their duties or to any financial institution providing credit
to such Shareholder, (ii) to the extent required by applicable law, rule or
regulation (including complying with any oral or written questions,
interrogatories, requests for information or documents, subpoena, civil
investigative demand or similar process to which a Shareholder is subject;
provided that such Shareholder gives the Company prompt notice of such
request(s), to the extent practicable, so that the Company may seek an
appropriate protective order or similar relief (and the Shareholder shall
cooperate with such efforts by the Company, and shall in any event make only
the minimum disclosure required by such law, rule or regulation)), (iii) to
any Person to whom such Shareholder is contemplating a transfer of its Shares
(provided that such transfer would not be in violation of the provisions of
this Agreement and as long as such potential transferee is advised of the
confidential nature of such information and agrees to be bound by a
confidentiality agreement in form and substance satisfactory to the Company
(it being understood that a confidentiality agreement consistent with the
provisions hereof shall be satisfactory to the Company)) or (iv) if the prior
written consent of the Board shall have been obtained. Nothing contained
herein shall prevent the use (subject, to the extent possible, to a protective
order) of Confidential Information in connection with the assertion or defense
of any claim by or against the Company or any Shareholder.
(b) "Confidential Information" means any information concerning the
Company and Persons which are or become its subsidiaries or the financial
condition, business, operations or prospects of the Company and Persons which
are or become its subsidiaries in the possession of or furnished to any
Shareholder (including, without limitation by virtue of its present or former
right to designate a director of the Company); provided that the term
"Confidential Information" does not include information which (i) is or
becomes generally available to the public other than as a result of a
disclosure by a Shareholder or its partners, directors, officers, employees,
agents, counsel, investment advisers or representatives (all such persons
being collectively referred to as "Representatives") in violation of the
Merger Agreement or this Agreement, (ii) is or was available to such
Shareholder on a nonconfidential basis prior to its disclosure to such
Shareholder or its Representatives by the Company or (iii) was or becomes
available to such Shareholder on a non-confidential basis from a source other
than the Company, provided that such source is or was (at the time of receipt
of the relevant information) not, to the best of such Shareholder's knowledge,
bound by a confidentiality agreement with (or other confidentiality obligation
to) the Company or another Person.
Section 6.02. Reports. The Company will furnish the
Institutional Shareholders with the quarterly and annual financial reports
that the Company is required to file with the Securities and Exchange
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act
promptly after the filing thereof or, in the event the Company is not required
to file such reports, quarterly and annual reports containing the same
information as would be required in such reports on the date that such reports
would otherwise be filed.
Section 6.03. Limitations on Subsequent Registration. The
Company shall not enter into any agreement with any holder or prospective
holder of any securities of the Company (a) that would allow such holder or
prospective holder to include such securities in any registration filed
pursuant to Section 5.01 or 5.02 hereof, unless under the terms of such
agreement, such holder or prospective holder may include such securities in
any such registration only to the extent that the inclusion of such securities
would not reduce the amount of the Registrable Securities of the Shareholders
included therein or (b) on terms otherwise more favorable than this Agreement.
Section 6.04. Exclusive Financial Advisor and Investment
Banking Advisor. During the period from and including the date hereof through
and including the fifth anniversary of the date hereof, Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJSC"), or any Affiliate that DLJMB may
choose in its sole discretion, shall be engaged as the exclusive financial
advisor and investment banker for the Company on financial and other terms
customary in the industry to be agreed between the Company and DLJSC.
Section 6.05. Limitation on Purchase of Common Stock. Until
the earlier to occur of (i) the seventh anniversary of the Closing Date or
(ii) the date on which at least 40% of the outstanding Common Stock on a Fully
Diluted basis of the Company is held by Persons other than the Shareholders
(the "Trigger Date"), no Institutional Shareholder shall acquire any shares
of Common Stock except (i) in a purchase of Equity Securities pursuant to
Section 4.03 or Section 4.04 hereof or (ii) in a transfer from any other
Shareholder which is otherwise permitted under the terms of Article 3 hereof.
ARTICLE 7
MISCELLANEOUS
Section 7.01. Entire Agreement. This Agreement, the Merger
Agreement and the Subscription Agreement constitute the entire agreement among
the parties with respect to the subject matter hereof and thereof and
supersede all prior and contemporaneous agreements and understandings, both
oral and written, between the parties with respect to the subject matter
hereof and thereof.
Section 7.02. Binding Effect; Benefit. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective heirs, successors, legal representatives and permitted assigns.
Nothing in this Agreement, expressed or implied, is intended to confer on any
Person other than the parties hereto, and their respective heirs, successors,
legal representatives and permitted assigns, any rights, remedies, obligations
or liabilities under or by reason of this Agreement.
Section 7.03. Assignability. (a) Neither this Agreement nor
any right, remedy, obligation or liability arising hereunder or by reason
hereof shall be assignable by the Company or any Shareholder; provided that
any Person acquiring shares of Common Stock who is required by the terms of
this Agreement to become a party hereto shall execute and deliver to the
Company an agreement to be bound by this Agreement and shall thenceforth be a
"Shareholder".
(b) Any Permitted Transferee of a Management Shareholder who shall
become a party hereto shall be deemed a "Management Shareholder".
(c) Any Permitted Transferee of an Institutional Shareholder who
shall become a party to this Agreement shall be deemed an "Institutional
Shareholder".
Section 7.04. Amendment; Waiver; Termination. (a) No provision
of this Agreement may be waived except by an instrument in writing executed by
the party against whom the waiver is to be effective. No provision of this
Agreement may be amended or otherwise modified except by an instrument in
writing executed by the Company with approval of the Board of Directors and
holders of at least 50% of the Shares held by the parties to this Agreement at
the time of such proposed amendment or modification.
(b) In addition, any amendment or modification of any provision of
this Agreement that would adversely affect any DLJ Entity may be effected only
with the consent of such DLJ Entity.
(c) In addition, any amendment or modification of any provision of
this Agreement that would adversely affect any (i) Institutional Shareholder
may be effected only with the consent of Institutional Shareholders holding at
least 50% of the shares held by the Institutional Shareholders or (ii)
Management Shareholder may be effected only with the consent of Management
Shareholders holding at least 50% of the shares held by the Management
Shareholders.
(d) This Agreement shall terminate on the tenth anniversary of the
date hereof unless earlier terminated.
Section 7.05. Notices. (a) All notices and other
communications given or made pursuant hereto or pursuant to any other
agreement among the parties, unless otherwise specified, shall be in writing
and shall be deemed to have been duly given and received when sent by fax
(with confirmation in writing via first class U.S. mail) or delivered
personally or on the third Business Day after being sent by registered or
certified U.S. mail (postage prepaid, return receipt requested) to the parties
at the fax number or address set forth below or at such other addresses as
shall be furnished by the parties by like notice:
if to the Company to:
DecisionOne Holdings Corp.
50 East Swedesford Road
Frazer, PA 19355
Attention: Thomas M. Molchan, Esq.
Fax: 610-408-3820
if to any Shareholder, to such Shareholder at the address
specified by such Shareholder on the signature pages of this
Agreement or in a notice given by such Shareholder to the Company
for such purpose with a copy, in the case of the Institutional
Shareholders (other than the Sprout Entities), to
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: David A. Katz, Esq.
Fax: 212-403-2000
Any Person who becomes a Shareholder shall provide its address
and fax number to the Company, which shall promptly provide such information
to each other Shareholder.
(b) Notices required to be given pursuant to Sections 5.01(a) and
5.01(b) and Section 5.02 by the Company shall be deemed given only if such
notices are also be given telephonically and by fax to the following persons
(or any other individual the respective entities may designate in writing to
the Company to replace such person):
(i) for the benefit of the Management Shareholders, to Thomas
M. Molchan at 610-296-6212 and fax: 610-408-3820;
(ii) for the benefit of the Apollo Entities, to any of Michael
Gross at 212-261-4009, fax: 212-261-4071, Joshua Harris at 212-261-4032,
fax: 212-459-3301, or Marc Becker at 212-261-4061, fax: 212-459-3302;
(iii) for the benefit of the Bain Entities, to Stephen Pagliuca
at 617-572-2629, fax: 617-572-3274 or Domenic Ferrante at 617-572-2563,
fax: 617-572-3274;
(iv) for the benefit of the THL Entities, to any of Scott A.
Schoen, Scott M. Sperling or Kent R. Weldon at 617-227-1050, fax: 617-
227-3514;
(v) for the benefit of the Sprout Entities, to Art Zuckerman at
212-892-4866, fax: 212-892-3444;
(vi) for the benefit of the Ontario Teachers' Pension Plan Board,
to Dean Metcalf at 416-730-6166, fax: 416-730-5374;
(vii) in the case of any registration not requested by the DLJ
Entities, for the benefit of the DLJ Entities, to Peter Grauer, at
212-892-3636, fax: 212-892-7272; and
(viii) to David Katz at 212-403-1000, fax: 212-403-2000.
Section 7.06. Headings. The headings contained in this
Agreement are for convenience only and shall not affect the meaning or
interpretation of this Agreement.
Section 7.07. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original
and all of which together shall be deemed to be one and the same instrument.
Section 7.08. Applicable Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York,
without regard to the conflicts of laws rules of such state.
Section 7.09. Specific Enforcement. Each party hereto
acknowledges that the remedies at law of the other parties for a breach or
threatened breach of this Agreement would be inadequate and, in recognition of
this fact, any party to this Agreement, without posting any bond, and in
addition to all other remedies which may be available, shall be entitled to
obtain equitable relief in the form of specific performance, a temporary
restraining order, a temporary or permanent injunction or any other equitable
remedy which may then be available.
Section 7.10. Consent to Jurisdiction; Expenses. (a) Any
suit, action or proceeding seeking to enforce any provision of, or based on
any matter arising out of or in connection with, this Agreement or the
transactions contemplated hereby shall be brought in any Federal Court sitting
in New York, New York, or any New York State court sitting in New York, New
York, and each of the parties hereby consents to the exclusive jurisdiction of
such courts (and of the appropriate appellate courts therefrom) in any such
suit, action or proceeding and irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding in any such court
or that any such suit, action or proceeding which is brought in any such court
has been brought in an inconvenient forum. Process in any such suit, action
or proceeding may be served on any party anywhere in the world, whether within
or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party by any
method provided in Section 7.05 shall be deemed effective service of process on
such party and consents to the personal jurisdiction of any Federal Court
sitting in New York, New York, or any New York State court sitting in New
York, New York.
(b) In any dispute arising under this Agreement among any of the
parties hereto, the costs and expenses (including, without limitation, the
reasonable fees and expenses of counsel) incurred by the prevailing party
shall be paid by the party that does not prevail.
Section 7.11. Severability. If one or more provisions of this
Agreement are held to be unenforceable to any extent under applicable law,
such provision shall be interpreted as if it were written so as to be
enforceable to the maximum possible extent so as to effectuate the parties'
intent to the maximum possible extent, and the balance of the Agreement shall
be interpreted as if such provision were so excluded and shall be enforceable
in accordance with its terms to the maximum extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of
the day and year first above written.
DECISIONONE HOLDINGS CORP.
By: /s/ Thomas J. Fitzpatrick
------------------------------------
Name: Thomas J. Fitzpatrick
Title: Vice President and Chief
Financial Officer
DLJ MERCHANT BANKING PARTNERS
II, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MERCHANT BANKING PARTNERS
II-A, L.P., a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ OFFSHORE PARTNERS II, C.V., a
Netherlands Antilles Limited Partnership
By: DLJ Merchant Banking II, Inc.,
------------------------------------
as advisory general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ DIVERSIFIED PARTNERS-A, L.P., a
Delaware Limited Partnership
By: DLJ Diversified Partners II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS, L.P., a
Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ MILLENNIUM PARTNERS-A, L.P.,
a Delaware Limited Partnership
By: DLJ Merchant Banking II, Inc.,
as managing general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJMB FUNDING II, INC., a Delaware
corporation
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ FIRST ESC, L.L.C.,
By: DLJ LBO Plans Management Corporation,
as manager
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
UK INVESTMENT PLAN 1997
PARTNERS
By: Donaldson, Lufkin & Jenrette, Inc.,
as general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
DLJ EAB PARTNERS, L.P.
By: DLJ Merchant Banking Funding II, Inc.,
its general partner
By: /s/ Kirk B. Wortman
------------------------------------
Name: Kirk B. Wortman
Title: Attorney-in-fact
Address:
c/o DLJ Merchant Banking II, Inc.
277 Park Avenue
New York, NY 10172
Fax: 212-892-7272
APOLLO INVESTMENT FUND III, L.P.
By Apollo Advisors II, L.P., its
general partner
By Apollo Capital Management II, Inc.,
its general partner
By: /s/ Josh Harris
------------------------------------
Name: Josh Harris
Title: Vice President
Address:
1301 Avenue of the Americas
38th Floor
New York, NY 10019
Fax: 212-261-4102
APOLLO OVERSEAS PARTNERS III L.P.
By Apollo Advisors II, L.P., its
general partner
By Apollo Capital Management II, Inc.,
its general partner
By: /s/ Josh Harris
------------------------------------
Name: Josh Harris
Title: Vice President
Address:
1301 Avenue of the Americas
38th Floor
New York, NY 10019
Fax: 212-261-4102
APOLLO U.K. PARTNERS III, L.P.
By Apollo Advisors II, L.P., its
general partner
By Apollo Capital Management II, Inc.,
its general partner
By: /s/ Josh Harris
------------------------------------
Name: Josh Harris
Title: Vice President
Address:
1301 Avenue of the Americas
38th Floor
New York, NY 10019
Fax: 212-261-4102
BAIN CAPITAL FUND V L.P.
By: Bain Capital Partners V, L.P.,
its general partner
By: Bain Capital Investors V, Inc., its
general partner
By: /s/ Stephen Pagliuca
------------------------------------
Name: Stephen Pagliuca
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
Fax: 617-572-3274
BAIN CAPITAL FUND, V-B, L.P.
By: Bain Capital Investors V, L.P., its
general partner
By: Bain Capital Investors V, Inc.,
its general partner
By: /s/ Stephen Pagliuca
------------------------------------
Name: Stephen Pagliuca
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
Fax: 617-572-3274
BCIP ASSOCIATES
By: /s/ Stephen Pagliuca
------------------------------------
Name: Stephen Pagliuca
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
Fax: 617-572-3274
BCIP TRUST ASSOCIATES, L.P.
By: Bain Capital Investors V, L.P., its
general partner
By: /s/ Stephen Pagliuca
------------------------------------
Name: Stephen Pagliuca
Title: General Partner
Address:
c/o Bain Capital, Inc.
Two Copley Place
Boston, MA 02116
Attention: Stephen Pagliuca
Fax: 617-572-3274
THOMAS H. LEE EQUITY FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Scott Schoen
------------------------------------
Name: Scott Schoen
Title: Managing Director
Address:
c/o Thomas H. Lee Company
75 State Street
Boston, MA 02109
Fax: 617-227-3514
THOMAS H. LEE FOREIGN
FUND III, L.P.
By: THL Equity Advisors III
Limited Partnership
By: THL Equity Trust III
By: /s/ Scott Schoen
------------------------------------
Name: Scott Schoen
Title: Managing Director
Address:
c/o Thomas H. Lee Company
75 State Street
Boston, MA 02109
Fax: 617-227-3514
THL CO-INVESTORS III-A LLC
By: /s/ Thomas H. Lee
------------------------------------
Name: Thomas H. Lee
Title: Manager
Address:
c/o Thomas H. Lee Company
75 State Street
Boston, MA 02109
Fax: 617-227-3514
THL CO-INVESTORS III-B LLC
By: /s/ Thomas H. Lee
------------------------------------
Name: Thomas H. Lee
Title: Manager
Address:
c/o Thomas H. Lee Company
75 State Street
Boston, MA 02109
Fax: 617-227-3514
DLJ CAPITAL CORP.
By: /s/ Art Zuckerman
------------------------------------
Name: Art Zuckerman
Title:
Address:
277 Park Avenue
New York, NY 10172
Fax: 212-892-3444
SPROUT GROWTH II, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art Zuckerman
------------------------------------
Name: Art Zuckerman
Title:
Address:
277 Park Avenue
New York, NY 10172
Fax: 212-892-3444
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corporation,
its managing general partner
By: /s/ Art Zuckerman
------------------------------------
Name: Art Zuckerman
Title:
Address:
277 Park Avenue
New York, NY 10172
Fax: 212-892-3444
ONTARIO TEACHERS' PENSION
PLAN BOARD
By: /s/ Dean Metcalf
------------------------------------
Name: Dean Metcalf
Title: Portfolio Manager, Merchant
Banking
Address:
5650 Yonge Street
North York, Ontario
Canada M2M 4H5
Fax: 416-730-5374
By: /s/ Kenneth Draeger
------------------------------------
Kenneth Draeger
By: /s/ Steve Felice
------------------------------------
Steve Felice
By: /s/ Tom Fitzpatrick
------------------------------------
Tom Fitzpatrick
By: /s/ Steve Friedman
------------------------------------
Steve Friedman
By: /s/ Joe Giordano
------------------------------------
Joe Giordano
By: /s/ Jim Greenwell
------------------------------------
Jim Greenwell
By: /s/ Tom Molchan
------------------------------------
Tom Molchan
By: /s/ Dwight Wilson
------------------------------------
Dwight Wilson
By: /s/ John Baldus
------------------------------------
John Baldus
By: /s/ Bill Beaumont
------------------------------------
Bill Beaumont
By: /s/ Mark Davis
------------------------------------
Mark Davis
By: /s/ Tom Farrell
------------------------------------
Tom Farrell
By: /s/ Tom Fogarty
------------------------------------
Tom Fogarty
By: /s/ Tom Fogelsong
------------------------------------
Tom Fogelsong
By: /s/ Dan Harkins
------------------------------------
Dan Harkins
By: /s/ Judy Johnson
------------------------------------
Judy Johnson
By: /s/ Bill Lanam
------------------------------------
Bill Lanam
By: /s/ Mike Rogers
------------------------------------
Mike Rogers
By: /s/ Kirk Scott
------------------------------------
Kirk Scott
By: /s/ Tom Walker
------------------------------------
Tom Walker
