SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________________
SCHEDULE 13D*
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
ProMedCo Management Company
(Name of Issuer)
Common Stock
(Title of Class of Securities)
74342L 10 5
(CUSIP Number)
Curtis S. Lane, c/o Evercore Partners, Inc.
65 East 55th Street, New York, New York 10022 (212) 857-3195
(Name, address and telephone number of person
authorized to receive notices and communications)
July 13, 2000
(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 schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g) check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 for
other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 49 Pages)
________________
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act
of 1934 ("Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP No. 74342L 10 5 13D Page 2 of 49 Pages
____________________________________________________________________________
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
MTS Investors E, L.P.
_____________________________________________________________________________
(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
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
3,659,095
OWNED BY ___________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
3,659,095
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
3,659,095
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
14.1%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
PN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 74342L 10 5 13D Page 3 of 49 Pages
____________________________________________________________________________
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
MTS Investors, LLC
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [X]
(b) [ ]
_____________________________________________________________________________
(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
Delaware
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
3,659,095
OWNED BY ___________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
3,659,095
____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
3,659,095
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
14.1%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
00
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 74342L 10 5 13D Page 4 of 49 Pages
____________________________________________________________________________
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Curtis S. Lane
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [X]
(b) [ ]
_____________________________________________________________________________
(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
United States
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
3,659,095
OWNED BY ___________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
3,659,095
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
3,659,095
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
14.1%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
IN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 74342L 10 5 13D Page 5 of 49 Pages
____________________________________________________________________________
(1) NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS.
OF ABOVE PERSONS (ENTITIES ONLY)
Terrence J. Quinn
_____________________________________________________________________________
(2) CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP **
(a) [X]
(b) [ ]
_____________________________________________________________________________
(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
United States
_____________________________________________________________________________
NUMBER OF (7) SOLE VOTING POWER
-0-
SHARES ______________________________________________________________
BENEFICIALLY (8) SHARED VOTING POWER
3,659,095
OWNED BY ___________________________________________________________
EACH (9) SOLE DISPOSITIVE POWER
-0-
REPORTING ______________________________________________________________
PERSON WITH (10) SHARED DISPOSITIVE POWER
3,659,095
_____________________________________________________________________________
(11) AGGREGATE AMOUNT BENEFICIALLY OWNED
BY EACH REPORTING PERSON
3,659,095
_____________________________________________________________________________
(12) CHECK BOX IF THE AGGREGATE AMOUNT
IN ROW (11) EXCLUDES CERTAIN SHARES ** [ ]
_____________________________________________________________________________
(13) PERCENT OF CLASS REPRESENTED
BY AMOUNT IN ROW (11)
14.1%
_____________________________________________________________________________
(14) TYPE OF REPORTING PERSON **
IN
_____________________________________________________________________________
** SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP No. 74342L 10 5 13D Page 6 of 49 Pages
Item 1. Security and Issuer.
This statement relates to the common stock, $0.01 par value (the "Common
Stock"), of ProMedCo Management Company (the "Company"). The Company's
principal executive offices are located at 801 Cherry Street, Suite 1450, Forth
Worth, TX, 76102.
Item 2. Identity and Background.
(a) This statement is filed by:
(i) MTS Investors E, L.P., a Delaware limited partnership
("MTS-E"), with respect to the shares of Convertible
Preferred Stock directly owned by it, which shares are
convertible into Common Stock at the option of MTS-E;
(ii) MTS Investors, LLC, a limited liability company organized
under the laws of the State of Delaware ("MTS"), as general
partner of MTS-E with respect to the shares of Convertible
Preferred Stock directly owned by MTS-E;
(iii) Curtis S. Lane ("Mr. Lane"), as a managing member of MTS,
with respect to the shares of Convertible Preferred Stock
directly owned by MTS-E; and
(iv) Terrence Quinn ("Mr. Quinn"), as a managing member of MTS,
with respect to the shares of Convertible Preferred Stock
directly owned by MTS-E.
The foregoing persons are hereinafter sometimes
collectively referred to as the "Reporting Persons." Any
disclosures herein with respect to persons other than the
Reporting Persons are made on information and belief after
making inquiry to the appropriate party.
(b) The address of the principal business and principal office of MTS-E
and MTS is c/o Evercore Partners, Inc., 65 East 55th Street, New York, New York
10022. The business address of Mr. Lane and Mr. Quinn is 65 East 55th Street,
New York, New York 10022.
(c) The principal business of MTS-E is serving as a private investment
limited partnership investing primarily in the healthcare industry. The
principal business of MTS is serving as general partner to MTS-E and other
private investment funds. Mr. Lane and Mr. Quinn serve as the managing members
of MTS.
(d) None of the Reporting Persons has, during the last five years, been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) None of the Reporting Persons has, during the last five years, been
<PAGE>
CUSIP No. 74342L 10 5 13D Page 7 of 49 Pages
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, Federal or State securities laws or finding
any violation with respect to such laws.
(f) MTS-E is a limited partnership organized under the laws of the State
of Delaware. MTS is a limited liability company organized under the laws of
the State of Delaware. Mr. Lane and Mr. Quinn are United States citizens.
Item 3. Source and Amount of Funds and Other Consideration.
On July 13, 2000, pursuant to the Stock Purchase Agreement dated as of the
same date (the "Stock Purchase Agreement"), by and among GS Capital Partners
III, L.P., GS Capital Partners III Offshore, L.P., Goldman, Sachs & Co.
Verwaltungs GMBH, and Stone Street Fund 2000, L.P. (together, the "Sellers"),
and MTS-E, MTS-E purchased from the Sellers an aggregate amount of 77,273
shares of Series A Convertible Preferred Stock, par value $0.01 per share, of
the Company and 22,727 shares of Series B Convertible Preferred Stock, par
value $0.01 per share, of the Company (together, the "Shares" or the
"Preferred Stock"), for an aggregate purchase price of $9,700,000. The full
text of this agreement is filed as Exhibit 2 hereto and incorporated herein by
this reference.
None of MTS, Mr. Lane, or Mr. Quinn own directly any Shares. The Shares
purchased by MTS-E were purchased with working capital. None of MTS, Mr. Lane,
or Mr. Quinn has contributed any funds or other consideration towards the
purchase of the Shares except insofar as they may have direct or indirect
partnership interests in MTS-E and may have made direct or indirect capital
contributions to MTS-E.
Item 4. Purpose of the Transaction.
The purpose of the acquisition of the Preferred Stock by MTS-E is to
acquire a significant equity interest in the Company for investment purposes.
In connection with the Second Amendment (defined in Item 6 below) and the
Stock Purchase Agreement, MTS-E designated Mr. Lane to the Board of Directors
of the Company, and Mr. Lane was appointed to the Board of Directors effective
as of the July 13.
Item 5. Interest in Securities of the Issuer.
A. MTS Investors E, L.P.
(a) Aggregate number of shares beneficially owned: 3,659,095
Percentage: 14.1%
The percentages used herein and in the rest of Item 5 are calculated based upon
25,910,908 shares of Common Stock, based on 22,251,813 shares of Common Stock
issued and outstanding as of July 13, 2000 as reflected in the Company's Form
10-Q for the period ending March 31, 2000, and 3,659,095 shares of Common
<PAGE>
CUSIP No. 74342L 10 5 13D Page 8 of 49 Pages
Stock issuable upon the exercise of the Preferred Stock.
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 3,659,095
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition: 3,659,095
(c) MTS-E entered into one transaction in the Common Stock of the
Company within the last sixty days, which is referred to in Item 3 above.
(d) MTS, the general partner of MTS-E, has the power to direct the
affairs of MTS-E, including decisions respecting the disposition of the
proceeds from the sale of the shares. Mr. Lane and Mr. Quinn are the managing
members of MTS and in that capacity direct its operations.
(e) Not Applicable.
B. MTS Investors, LLC
(a) Aggregate number of shares beneficially owned: 3,659,095
Percentage: 14.1%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 3,659,095
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition: 3,659,095
(c) MTS did not enter into any transactions in the Common Stock of
the Company within the last sixty days. The transaction in respect of MTS-E
is set forth in Item 3 above.
(d) Mr. Lane and Mr. Quinn are the managing members of MTS and in
that capacity direct its operations.
(e) Not applicable.
C. Curtis S. Lane.
(a) Aggregate number of shares beneficially owned: 3,659,095
Percentage: 14.1%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 3,659,095
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition: 3,659,095
(c) Mr. Lane did not enter into any transactions in the Common
Stock of the Company within the last sixty days. The transaction in respect
of MTS-E is set forth in Item 3 above.
(d) Not applicable.
(e) Not applicable.
D. Terrence J. Quinn.
(a) Aggregate number of shares beneficially owned: 3,659,095
Percentage: 14.1%
(b) 1. Sole power to vote or direct vote: -0-
2. Shared power to vote or direct vote: 3,659,095
3. Sole power to dispose or direct the disposition: -0-
4. Shared power to dispose or direct the disposition: 3,659,095
<PAGE>
CUSIP No. 74342L 10 5 13D Page 9 of 49 Pages
(c) Mr. Quinn did not enter into any transactions in the Common
Stock of the Company within the last sixty days. The transaction in respect
of MTS-E is set forth in Item 3 above.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or
Relationships with Respect to Securities of the Issuer.
The responses set forth in Items 3 and 4 of this Schedule 13D are
incorporated herein by this reference in their entirety.
On January 13, 2000, the Company and the Sellers entered into a Securities
Purchase Agreement (the "January 13 Securities Purchase Agreement"). This
agreement appears as Exhibit 2 to the Schedule 13D filed by Goldman, Sachs &
Co. et al. on January 24 2000, Accession Number 0000895345-00-000031, and is
incorporated in and made a part of this Schedule 13D in its entirety by this
reference. The January 13 Securities Purchase Agreement provided for, among
other things, the Sellers' purchase of a combination of notes, common stock
and preferred stock of the Company, and the terms in respect of the purchases.
On May 5, 2000, the Company and the Sellers entered into a First
Amendment to the January 13 Securities Purchase Agreement (the "First
Amendment"). This agreement appears as Exhibit 3 to the Amended Schedule 13D
filed by Goldman, Sachs & Co. et al on May 9, 2000, Accession Number
0000895345-00-000267, and is incorporated in and made a part of this Schedule
13D in its entirety by this reference. The First Amendment provided for,
among other things, the Sellers' purchase of preferred stock of the Company,
and the terms in respect of the purchase.
On July 13, 2000, the Company, the Sellers and MTS-E entered into the
Second Amendment (the "Second Amendment") to the January 13 Securities
Purchase Agreement. The Second Amendment is attached as Exhibit 3 hereto and
is incorporated in and made a part of this Schedule 13D in its entirety by
this reference. The Second Amendment provides that MTS-E shall be considered
an "Investor" (as defined in the January 13 Securities Purchase Agreement),
and that subject to certain ownership thresholds, MTS-E may designate one
director of the Company.
On July 13, 2000, the Company, the Sellers, and MTS-E entered into an
Amended and Restated Registration Rights Agreement (the "Registration Rights
Agreement"). The Registration Rights Agreement is attached as Exhibit 4 hereto
and is incorporated in and made a part of this Schedule 13D in its entirety by
this reference. Pursuant to the Registration Rights Agreement, MTS-E has the
right, subject to certain limitations and restrictions, (i) to require the
Company, at the request of MTS-E on one occasion, to effect a registration of
shares of Common Stock and securities convertible into, or exercisable or
exchangeable for, shares of Common Stock ("Common Stock Equivalents") held by
MTS-E under the Securities Act of 1933, as amended (the "Securities Act"), and
(ii) to require the Company to include shares of Common Stock and Common Stock
Equivalents then held by MTS-E (on a pro rata basis with other participating
<PAGE>
CUSIP No. 74342L 10 5 13D Page 10 of 49 Pages
selling stockholders) in any other registration by the Company of its equity
securities under the Securities Act. The Company is obligated to pay certain
expenses of MTS-E in connection with such registrations as provided in the
Registration Rights Agreement.
Other than the aforementioned contracts and the exhibits attached hereto,
there are no contracts, arrangements, understandings or relationships (legal or
otherwise) among the persons named in Item 2 hereof and between such persons
and any person with respect to any securities of the Company, including but not
limited to transfer or voting of any other securities, finder's fees, joint
ventures, loan or option arrangements, puts or calls, guarantees of profits,
divisions of profits or loss, or the giving or withholding of proxies.
Item 7. Materials to be Filed as Exhibits.
Exhibit 1 Joint Acquisition Statement Agreement, dated as of July 21,
2000.
Exhibit 2 Stock Purchase Agreement, dated as of July 13, 2000, by and
among the Sellers and MTS-E.
Exhibit 3 Second Amendment to Securities Purchase Agreement, dated as of
July 13, 2000, by and among the Company, the Sellers and MTS-E.
Exhibit 4 Amended and Restated Registration Rights Agreement, dated as of
July 13, 2000, by and among the Company, the Sellers and MTS-E.
<PAGE>
CUSIP No. 74342L 10 5 13D Page 11 of 49 Pages
SIGNATURES
After reasonable inquiry and to the best of our knowledge and belief, the
undersigned certify that the information set forth in this statement is true,
complete and correct.
DATED: July 21, 2000
/s/ CURTIS S. LANE
CURTIS S. LANE, individually, and as
managing member of
MTS Investors, LLC,
general partner of
MTS Investors E, L.P.
/s/ TERRENCE J. QUINN
TERRENCE J. QUINN
<PAGE>
CUSIP No. 74342L 10 5 13D Page 12 of 49 Pages
EXHIBIT 1
JOINT ACQUISITION STATEMENT
PURSUANT TO RULE 13D-1(k)
The undersigned acknowledge and agree that the foregoing statement on Schedule
13D, is filed on behalf of each of the undersigned and that all subsequent
amendments to this statement on Schedule 13D, shall be filed on behalf of each
of the undersigned without the necessity of filing additional joint
acquisition statements. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the completeness
and accuracy of the information concerning him or it contained therein, but
shall not be responsible for the completeness and accuracy of the information
concerning the others, except to the extent that he or it knows or has reason
to believe that such information is inaccurate.
Dated: July 21, 2000
/s/ CURTIS S. LANE
CURTIS S. LANE, individually, and as
managing member of
MTS Investors, LLC.,
general partner of
MTS Investors E, L.P.
/s/ TERRENCE J. QUINN
TERRENCE J. QUINN
<PAGE>
CUSIP No. 74342L 10 5 13D Page 13 of 49 Pages
EXHIBIT 2
EXECUTION COPY
STOCK PURCHASE AGREEMENT
Stock Purchase Agreement, dated as of July 13, 2000 (hereinafter the
"Agreement"), by and among MTS Investors E, L.P., a Delaware limited
partnership ("Buyer"), GS Capital Partners III, L.P., a Delaware limited
partnership ("GSCP"), and the affiliates of GSCP set forth on the signature
page hereto (together with GSCP, "Sellers").
W I T N E S S E T H:
WHEREAS, Buyer desires to purchase from Sellers and Sellers desire to
sell to Buyer, on the terms and subject to the conditions of this Agreement,
77,273 shares of Series A Convertible Preferred Stock, par value $0.01 per
share, of ProMedCo Management Company (the "Series A Shares") and 22,727
shares of Series B Convertible Preferred Stock, par value $0.01 per share, of
ProMedCo Management Company (the "Series B Shares," and together with the
Series A Shares, the "Shares") owned by Sellers (such purchase, the "Stock
Purchase");
NOW, THEREFORE, in consideration of the premises and the mutual promises
contained herein, the parties hereby agree as follows:
1. CLOSING; SALE AND TRANSFER OF SHARES
The closing (the "Closing") of the Stock Purchase shall take place on the
same business day as the date hereof, or at such other time and date as the
parties may mutually agree. On the date of the Closing, (i) Sellers will
deliver to the Buyer certificates representing the Shares, duly endorsed, or
accompanied by stock powers duly executed, with signatures guaranteed, with
all necessary stock transfer stamps attached thereto and canceled, and (ii)
Buyer will deliver to Sellers the Purchase Price.
2. PURCHASE PRICE
2.1 Purchase Price.
(a) The purchase price for the Shares shall be $97.00 per
Series A Share and $97.00 per Series B Share, for a total purchase price of
$9,700,000.00 for all the Shares (the "Purchase Price").
(b) Payment of Purchase Price. The Purchase Price shall be
payable in immediately available federal funds to such bank account as shall
be designated by Sellers.
<PAGE>
CUSIP No. 74342L 10 5 13D Page 14 of 49 Pages
2
3. REPRESENTATIONS AND WARRANTIES OF SELLERS
3.1 Authority; Enforceability.
Each Seller has the corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated on
the part of such Seller hereby. This Agreement has been duly executed and
delivered by each Seller and is a valid and binding agreement of such Seller,
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency or other similar laws relating to or
affecting creditors' rights generally and by general equity principles.
3.2 Ownership of Shares.
At the Closing, Sellers will deliver or cause to be delivered
to Buyer good title to the Shares, free and clear of any liens, claims,
charges, security interests, options or other encumbrances.
4. REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Authority; Enforceability.
Buyer has the corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated on the
part of Buyer hereby. This Agreement has been duly executed and delivered by
Buyer and is a valid and binding agreement of Buyer, enforceable in accordance
with its terms, except as such enforceability may be limited by bankruptcy,
insolvency or other similar laws relating to or affecting creditors' rights
generally and by general equity principles.
4.2 Experience.
Buyer has substantial experience in evaluating and investing in
companies similar to the Company so that Buyer is capable of evaluating the
merits and risks of its investment in the Company and has the capacity to
protect its own interests. Buyer has not received any investment advice from
Seller in connection with Buyer's investment in the Company and is investing
in the Company based on Seller's own evaluation of the Company. Buyer
represents and warrants to Seller that it is aware that its purchase of the
Shares hereunder involves substantial risk and that its financial condition
and investment are such that it is in a financial position to hold the Shares
for an indefinite period of time and to bear the economic risk of and
withstand a complete loss of such investment.
4.3 Access to Data.
Buyer has had an opportunity to discuss the Company's business,
management and financial affairs with the Company's management and the
opportunity to review the Company's facilities and business plan. Buyer has
<PAGE>
CUSIP No. 74342L 10 5 13D Page 15 of 49 Pages
3
also had an opportunity to ask questions of officers of the Company, which
questions were answered to Buyer's satisfaction. Buyer acknowledges to Seller
that it has had an opportunity to conduct its own independent due diligence
investigation of the Company and it is not relying on Seller for Buyer's due
diligence investigation of the Company.
4.4 Accredited Investor.
Buyer is an "accredited investor" (as defined in Rule 501(a)
under the Securities Act of 1933, as amended).
5. AGREEMENTS OF BUYER AND SELLERS
5.1 Mutual Cooperation; No Inconsistent Action.
Subject to the terms and conditions hereof, Sellers and Buyer
agree to use their reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable to consummate and make effective the transactions contemplated by
this Agreement.
6. MISCELLANEOUS AGREEMENTS OF THE PARTIES
6.1 Non-Assignability.
This Agreement shall inure to the benefit of and be binding on
the parties hereto and their respective successors and permitted assigns.
This Agreement shall not be assigned by Buyer without the express prior
written consent of Sellers and shall not be assigned by Sellers without the
express prior written consent of Buyer; any attempted assignment, without such
consents, shall be null and void.
6.2 Amendment; Waiver.
This Agreement may be amended, supplemented or otherwise
modified only by a written instrument executed by the parties hereto. No
waiver by any party of any of the provisions hereof shall be effective unless
explicitly set forth in writing and executed by the party so waiving.
6.3 Governing Law.
This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
6.4 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.
<PAGE>
CUSIP No. 74342L 10 5 13D Page 16 of 49 Pages
4
6.5 Acknowledgment.
Buyer acknowledges that Seller is subject to the provisions of a
Confidentiality Agreement, dated as of October 18, 1999, by and between the
Company and Goldman, Sachs & Co (the "Confidentiality Agreement") and that
neither the Seller nor any of its affiliates have disclosed any Confidential
Information (as defined in the Confidentiality Agreement) to Buyer or any of
its affiliates.
<PAGE>
CUSIP No. 74342L 10 5 13D Page 17 of 49 Pages
5
IN WITNESS WHEREOF, the parties have caused this Stock Purchase
Agreement to be duly executed as of the date first above written.
MTS INVESTORS E, L.P.
By: MTS Investors, L.L.C.,
its general partner
By: /s/ Curtis S. Lane
------------------------------
Name: Curtis S. Lane
Title: Managing Member
GS CAPITAL PARTNERS III, L.P.
By: GS Advisor III, LLC
its general partner
By: /s/ Katharine L. Nissenbaum
------------------------------
Name: Katharine L. Nissenbaum
Title: Vice President
By: /s/ Katharine L. Nissenbaum
------------------------------
Name: Katharine L. Nissenbaum
Title: Registered Agent
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III, L.L.C.,
its general partner
By: /s/ Katharine L. Nissenbaum
------------------------------
Name: Katharine L. Nissenbaum
Title: Vice President
GOLDMAN, SACHS & CO. VERWALTUNGS GMBH
By: /s/ Joseph H. Gleberman
------------------------------
Name: Joseph H. Gleberman
Title: Managing Director
<PAGE>
CUSIP No. 74342L 10 5 13D Page 18 of 49 Pages
By: /s/ Katharine L. Nissenbaum
------------------------------
Name: Katharine L. Nissenbaum
Title: Registered Agent
STONE STREET FUND 2000, L.P.
By: Stone Street 2000, L.L.C.,
its general partner
By: /s/ Katharine L. Nissenbaum
------------------------------
Name: Katharine L. Nissenbaum
Title: Vice President
<PAGE>
