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EXHIBIT 4.1
DDi CORP.
STOCKHOLDERS AGREEMENT
The Amended and Restated Stockholders Agreement (the "1998 Agreement") made
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as of July 23, 1998 by and among:
(i) DDi Corp., a California corporation, f/k/a Details Holdings Corp.
and Details, Inc. (including its successor corporation following the
Merger (defined below), the "Company");
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(ii) each of Bain Capital Fund V, L.P., Bain Capital Fund V-B, L.P., BCIP
Associates and BCIP Trust Associates, L.P., RGIP, LLC (collectively,
the "Investors");
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(iii) DI Investors, L.L.C., Chase Manhattan Capital, L.P., PMI Mezzanine
Fund, LP, Celerity Dynamo, L.L.C., Celerity Details, L.L.C.,
Celerity Liquids, L.L.C., KB Mezzanine Fund II, L.P., Indosuez DCI
Partners and Churchill ESOP Capital Partners (together with such
others who shall become party to this Agreement as an Other
Investor, the "Other Investors");
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(iv) The holders, from time to time, of the Lender Warrants (together
with such others who acquire Lender Shares, the "Lenders");
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(v) Charles D. Dimick, Bruce McMaster, Lee Muse, John Peters, Terry
Wright, Joseph P. Gisch, Kathleen M. Gisch, Eric Naroian and Thomas
P. Caldwell (together with such others who shall become party to
this Agreement as a Manager, the "Managers"); and
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(vi) Bob Barante, Jorge Hernandez, Steve Garcia, Mihaela Ioana Dotiu,
Jerry Neidhart, Anil Verma, Paul Balius, Ricki Blain, Joe Gardeski,
Paul Walker, Ken Phillips, Armando Tongko, Michael Mosian, Tom
Ingham, Ron Jaech, Larry Peiper, Gary Sullivan, Ronald Ryno, Jeffrey
Ryno, Vernon Morgan and Dick Galatian (together with such others who
shall become party to this Agreement as an Employee, the "Employees"
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and together with the Investors, the Other Investors, the Lenders
and the Managers, the "Stockholders"),
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is hereby amended and restated in its entirety pursuant to Section 12.2 of the
1998 Agreement by written agreement of the Majority Investors, the Majority
Other Holders, the Majority Managers and the Majority Lenders (as each term is
defined in the 1998 Agreement) in the form of this Stockholders Agreement (the
1998 Agreement as amended and restated hereby is referred to herein as the
"Agreement") as of March 31, 2000 to read as follows:
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Recitals
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1. The Company (i) has filed a registration statement on Form S-1 with
the Commission (as defined herein); (ii) intends to merge with and into DDi
Corp., a Delaware corporation, in which merger (the "Merger") the holders of the
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outstanding Common Stock of DDi Corp., a California corporation, will receive
shares of common stock, par value $.01 (the "Delaware Common Stock") of DDi
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Corp., a Delaware corporation, as merger consideration; and (iii) intends to
effect an Initial Public Offering of Delaware Common Stock.
2. The parties desire to amend and restate the 1998 Agreement prior to
the Merger and the effectiveness of such Initial Public Offering.
3. Pursuant to the terms of a Share Purchase Agreement dated March 22,
2000, the Company intends to acquire the capital stock of MCM Electronics, Ltd.
"MCM") and, in connection, with such acquisition, the Beneficial Owners and
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Natwest Nominees (each as defined in such Share Purchase Agreement, and for
purposes of this agreement the "NatWest Investors") and all other record and/or
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beneficial holders of MCM capital stock ("MCM Managers") will acquire Delaware
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Common Stock in consideration of their interests in the capital stock of MCM.
4. It is a condition to the closing of the acquisition of MCM that the
NatWest Investors execute a counterpart signature page to this Agreement as
"Other Investors" and that MCM Managers execute a counterpart signature page to
this Agreement as "Managers."
Agreement
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Therefore, the parties hereto hereby agree as follows:
1. EFFECTIVENESS; DEFINITIONS.
1.1. Effectiveness. This Agreement shall become effective upon the closing
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of the Initial Public Offering.
1.2. Definitions. Certain terms are used in this Agreement as specifically
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defined herein. These definitions are set forth or referred to in Section 13
hereof.
2 [RESERVED].
3. [RESERVED].
4. [RESERVED].
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5. [RESERVED]
6. [RESERVED]
7. [RESERVED]
8. REGISTRATION RIGHTS. The Company will perform and comply, and cause each
of their respective subsidiaries to perform and comply, with such of the
following provisions as are applicable to it. Each holder of Shares will perform
and comply with such of the following provisions as are applicable to such
holder.
8.1. Demand Registration Rights for Investor Shares.
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8.1.1. General. One or more holders of Investor Shares
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representing at least 25% of the total amount of Investor Shares then
outstanding ("Initiating Investors"), by notice to the Company specifying the
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intended method or methods of disposition, may request that the Company effect
the registration under the Securities Act for a Public Offering of all or a
specified part of the Registrable Securities held by such Initiating Investors
(for purposes of this Agreement, "Registrable Investor Securities" shall mean
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Registrable Securities constituting Investor Shares). The Company will then use
its best efforts to effect the registration under the Securities Act of the
Registrable Securities which the Company has been requested to register by such
Initiating Investors together with all other Registrable Securities which the
Company has been requested to register pursuant to Section 8.3 (which request
shall specify the intended method of disposition of such Registrable
Securities), all to the extent requisite to permit the disposition (in
accordance with the intended methods thereof as aforesaid) of the Registrable
Securities which the Company has been so requested to register; provided,
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however, that the Company shall not be obligated to take any action to effect
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any such registration pursuant to this Section 8.1.1:
(a) Within 180 days immediately following the effective
date of any registration statement pertaining to an underwritten
public offering of securities of the Company for its own account
(other than a Rule 145 Transaction, or a registration relating
solely to employee benefit plans);
(b) (i) On any form other than Form S-3 (or any successor
form) if the Company has previously effected five or more
registrations of Registrable Securities under this Section 8.1.1
on any form other than Form S-3 (or any successor form);
provided, however, that no registrations of Registrable
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Securities which shall not have become and remained effective in
accordance with the provisions of this Section 8, and no
registrations of Registrable Securities pursuant to which the
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Initiating Investors and all other holders of Registrable
Investor Securities joining therein are not able to include at
least 90% of the Registrable Securities which they desired to
include, shall be included in the calculation of numbers of
registrations contemplated by this clause (b);
(c) If the Company shall have furnished to the Initiating
Investors and such other holders of Registrable Securities which
the Company has been requested to register pursuant to this
Section 8.1.1 a certificate, signed by the President of the
Company, stating that in the good faith judgment of the Board it
would be seriously detrimental to the Company and its
shareholders for such Registration Statement to be filed at the
date filing would have been required, in which case the Company
shall have an additional period of not more than 60 days within
which to file such Registration Statement; provided, however,
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that the Company shall not so postpone a registration pursuant to
this clause (c) more than once in any twelve month period;
(d) On any form other than Form S-3 (or any successor
form), if the anticipated aggregate offering price to the public
of the Registrable Securities to be included in the registration
by all holders is less than $5,000,000; or
(e) After five years after the closing of the Initial
Public Offering.
8.1.1.1. Form. Except as otherwise provided above, each
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registration requested pursuant to this Section 8.1.1 shall be effected by
the filing of a registration statement on Form S-1 (or any other form which
includes substantially the same information as would be required to be
included in a registration statement on such form as currently
constituted), unless the use of a different form has been agreed to in
writing by holders of at least a majority of the Registrable Investor
Securities to be included in the proposed registration statement in
question (the "Majority Participating Investors").
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8.1.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of holders of Investor Shares incurred in connection with each
registration of Registrable Securities requested pursuant to this Section 8.1,
other than underwriting discount and commission, if any, and applicable transfer
taxes, if any.
8.1.3. Additional Procedures. In the case of a registration pursuant to
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Section 8.1 hereof, whenever the Majority Participating Investors shall request
that such registration shall be effected pursuant to an underwritten offering,
the Company
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shall include such information in the written notices to holders of Registrable
Securities referred to in Section 8.3. In such event, the right of any holder of
Registrable Securities to have securities owned by such holder included in such
registration pursuant to Section 8.1 shall be conditioned upon such holder's
participation in such underwriting and the inclusion of such holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed
upon by the Majority Participating Investors and such holder) to the extent
provided herein. If requested by such underwriters, the Company together with
the holders of Registrable Securities proposing to distribute their securities
through such underwriting will enter into an underwriting agreement with such
underwriters for such offering containing such representations and warranties by
the Company and such holders and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including, without limitation, customary indemnity and
contribution provisions.
8.2. DI Investors Demand Registration Rights.
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8.2.1. General. To the extent DI Investors, L.L.C. or its Affiliates
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hold at least 50% of the Shares issued to them by the Company in connection with
the consummation of the Recapitalization Agreement, DI Investors, L.L.C. or such
Affiliate ("Initiating Other Investors"), by notice to the Company specifying
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the intended method or methods of disposition, may request that the Company
effect the registration under the Securities Act for a Public Offering of all or
a specified part of the Registrable Securities held by such Initiating Other
Investors (for purposes of this Agreement, "Registrable Other Securities" shall
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mean Registrable Securities constituting Other Shares). The Company will then
use its reasonable efforts to effect the registration under the Securities Act
of the Registrable Securities which the Company has been requested to register
by such Initiating Other Investors together with all other Registrable
Securities which the Company has been requested to register pursuant to Section
8.3 (which request shall specify the intended method of disposition of such
Registrable Securities), all to the extent requisite to permit the disposition
(in accordance with the intended methods thereof as aforesaid) of the
Registrable Securities which the Company has been so requested to register;
provided, however, that the Company shall not be obligated to take any action to
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effect any such registration pursuant to this Section 8.2.1:
(a) If the Company has previously effected two registrations of
Registrable Securities under this Section 8.2.1; provided, however, that no
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registrations of Registrable Securities which either (i) shall not have
become and remained effective in accordance with the provisions of this
Section 8 or (ii) shall not have enabled the Initiating Other Investors to
include in such registration at least 90% of the Registrable Securities
which they desired to
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include shall be included in the calculation of the number of registrations
contemplated by this clause (a);
(b) Prior to the 360th day following the closing of the Initial
Public Offering;
(c) Within 180 days immediately following the effective date of any
registration statement pertaining to an underwritten public offering of
securities of the Company for its own account (other than a registration on
Form S-4 relating solely to a Rule 145 Transaction, or a registration
relating solely to employee benefit plans);
(d) If the Company shall have furnished to the Initiating Other
Investors and such other holders of Registrable Securities which the
Company has been requested to register pursuant to this Section 8.2.1 a
certificate, signed by the President of the Company, stating that in the
good faith judgment of the Board it would be seriously detrimental to the
Company and its shareholders for such Registration Statement to be filed at
the date filing would have been required, in which case the Company shall
have an additional period of not more than 60 days within which to file
such Registration Statement; provided, however, that the Company shall not
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so postpone a registration pursuant to this clause (d) more than once in
any twelve month period;
(e) On any form other than Form S-3 (or any successor form); or
(f) After five years after the closing of the Initial Public
Offering.
8.2.1.1. Form. Each registration requested pursuant to this Section
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8.2.1 shall be effected by the filing of a registration statement on Form
S-3 (or any successor form).
8.2.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of holders of Other Shares incurred in connection with each
registration of Registrable Securities requested pursuant to this Section 8.2,
other than underwriting discount and commission, if any, and applicable transfer
taxes, if any.
8.2.3. Additional Procedures. In the case of a registration pursuant to
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Section 8.2 hereof, whenever the Initiating Other Investors shall request that
such registration shall be effected pursuant to an underwritten offering, the
Company shall include such information in the written notices to holders of
Registrable Securities referred to in Section 8.3. In such event, the right of
any holder of Registrable Securities to have securities owned by such holder
included in such registration pursuant to Section 8.2 shall be conditioned upon
such holder's participation in such
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underwriting and the inclusion of such holder's Registrable Securities in the
underwriting (unless otherwise mutually agreed upon by the Majority
Participating Other Investors and such holder) to the extent provided herein. If
requested by such underwriters, the Company together with the holders of
Registrable Securities proposing to distribute their securities through such
underwriting will enter into an underwriting agreement with such underwriters
for such offering containing such representations and warranties by the Company
and such holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including, without limitation, customary indemnity and contribution provisions.
8.2A Demand Registration Rights for NatWest Investors and MCM Managers.
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8.2A.1. General. At any time between the 180th and 360th day following
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the effective date of the Initial Public Offering, NatWest Investors holding a
majority of the Registrable Securities originally issued to the NatWest
Investors by the Company, by notice to the Company (with a copy to the
Investors), specifying the intended method or methods of disposition and
certifying that they have a bona fide intention to sell the number of
Registrable Securities to be so registered, may request that the Company effect
the registration under the Securities Act for a Public Offering of up to 50% of
the Registrable Securities held by the NatWest Investors. Upon receipt of such
notice, the Company will give notice to the MCM Managers of the receipt of such
notice. Any such MCM Manager, by written response delivered to the Company
within 20 days after the effectiveness of such notice, which response shall
include a certification by such MCM Manager of his bona fide intention to sell
the number of his Registrable Securities to be so registered, may request that
up to 44.44% of the Registrable Securities held by such MCM Manager be included
in such registration. The Company will then use its best efforts to effect the
registration under the Securities Act of the Registrable Securities which the
Company has been requested to register pursuant to this Section 8.2A.1 by the
NatWest Investors and the MCM Managers, to the extent requisite to permit the
disposition (in accordance with the intended methods thereof as aforesaid) of
the Registrable Securities which the Company has been so requested to register;
provided, however, that the Company shall not take any action to effect any such
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registration pursuant to this Section 8.2A.1:
(a) Following the effective date of any registration statement
pertaining to an underwritten public offering of securities of the
Company in connection with which the NatWest Investors have the right
to include at least 50% of their Registrable Securities and the MCM
Managers have the right to include at least 44.44% of their
Registrable Securities pursuant to Section 8.3;
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(b) During any period during which the Company or the Initiating
Investors are actively planning an underwritten offering of securities
of the Company in connection with which the NatWest Investors and the
MCM Managers would have the right to include Registrable Securities
pursuant to Section 8.3; or
(c) If the Company shall have furnished to the NatWest Investors
a certificate, signed by the President of the Company, stating that in
the good faith judgment of the Board it would be seriously detrimental
to the Company and its shareholders for such Registration Statement to
be filed at the date filing would have been required, in which case
the Company shall have an additional period of not more than 60 days
within which to file such Registration Statement.
8.2A.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of the NatWest Investors incurred in connection with each registration
of Registrable Securities requested pursuant to this Section 8.2A, other than
underwriting discount and commission, if any, and applicable transfer taxes, if
any.
8.2A.3. No Underwritten Offering. Any registration pursuant to Section
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8.2A.1 hereof may not be effected pursuant to an underwritten offering.
8.2A.4. No Piggyback Rights. Notwithstanding the provisions of Section
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8.3.1.1, except as provided in Section 8.2A.1, no holder of Registrable
Securities shall have the right to have any such Registrable Securities included
in a registration requested pursuant to Section 8.2A.1.
8.2A.5. Black-out Period. Notwithstanding the provisions of Section
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8.4.2, at any time during the 60 days during which a registration statement
filed pursuant to this Section 8.2A is required to be kept effective, if the
Company furnishes to the NatWest Investors and the MCM Managers a certificate,
signed by the President of the Company, stating that in the good faith judgment
of the Board it would be seriously detrimental to the Company and its
shareholders for the effectiveness of such registration statement to be
maintained, the NatWest Investors and the MCM Managers shall not Transfer any
Common Stock for a period of up to 30 days as determined by the Company. The 60
day period referenced in Section 8.4.2 shall be extended by the number of days
during which the NatWest Investors and the MCM Managers are prohibited from
Transferring Common Stock pursuant to this Section, however in no case shall the
Company be required to maintain the effectiveness of a registration statement
filed pursuant to this Section 8.2A after 360 days from the effective date of
the Initial Public Offering.
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8.3. Piggyback Registration Rights.
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8.3.1. Piggyback Registration.
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8.3.1.1. General. Each time the Company proposes to register
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any shares of Common Stock under the Securities Act on a form which would permit
registration of Registrable Securities for sale to the public, for its own
account or for the account of any holder of its shares of Common Stock, for sale
in a Public Offering, the Company will give notice to all holders of shares of
Common Stock of its intention to do so. Any such holder may, by written response
delivered to the Company within 20 days after the effectiveness of such notice,
request that all or a specified part of the Registrable Securities held by such
holder be included in such registration. The Company thereupon will use its
reasonable efforts to cause to be included in such registration under the
Securities Act all shares of Common Stock which the Company has been so
requested to register by such holders, to the extent required to permit the
disposition (in accordance with the methods to be used by the Company or other
holders of shares of Common Stock in such Public Offering) of the Registrable
Securities to be so registered. No registration of Registrable Securities
effected under this Section 8.3 shall relieve the Company of any of its
obligations to effect registrations of Registrable Securities pursuant to
Section 8.1 hereof.
8.3.1.2. Excluded Transactions. The Company shall not be obligated
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to effect any registration of Registrable Securities under this Section 8.3
incidental to the registration of any of its securities in connection with:
(a) Any Public Offering relating to employee benefit plans or
dividend reinvestment plans;
(b) Any Public Offering relating to the acquisition or merger
after the date of the Original Agreement by the Company or any of its
subsidiaries of or with any other businesses; or
(c) Any Public Offering initiated by the NatWest Investors
pursuant to Section 8.2A.1.
8.3.2. Payment of Expenses. The Company shall pay all reasonable
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expenses of holders of Registrable Securities incurred in connection with each
registration of Registrable Securities requested pursuant to this Section 8.3,
other than underwriting discount and commission, if any, and applicable stamp or
transfer taxes, if any; provided, however, that the Company shall not be
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required to pay in respect of the fees and expenses of any attorneys or other
advisers retained by such holders more than an aggregate for all such holders of
$25,000 in the case of each such registration.
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8.3.3. Additional Procedures. Holders of Shares participating in any
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Public Offering pursuant to this Section 8.3 shall take all such actions and
execute all such documents and instruments that are reasonably requested by the
Company to effect the sale of their Shares in such Public Offering, including,
without limitation, being parties to the underwriting agreement entered into by
the Company and any other selling shareholders in connection therewith and being
liable in respect of the representations and warranties by, and the other
agreements (including customary selling stockholder indemnifications and "lock-
up" agreements) on the part of, the Company and any other selling shareholders
to and for the benefit of the underwriters in such underwriting agreement;
provided, however, that (i) with respect to individual representations,
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warranties and agreements of sellers of Shares in such Public Offering, the
aggregate amount of such liability shall not exceed such holder's net proceeds
from such offering and (ii) with respect to all other representations,
warranties and agreements of sellers of shares in such Public Offering, the
aggregate amount of such liability shall not exceed the lesser of (a) such
holder's pro rata portion of any such liability, in accordance with such
holder's portion of the total number of Shares included in the offering or (b)
such holder's net proceeds from such offering.
8.4. Certain Other Provisions.
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8.4.1. Underwriter's Cutback. In connection with any registration of
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shares in an underwritten offering, the underwriter may determine that marketing
factors (including, without limitation, an adverse effect on the per share
offering price) require a limitation of the number of shares to be underwritten.
Notwithstanding any contrary provision of this Section 8 and subject to the
terms of this Section 8.4.1, the underwriter may limit the number of shares
which would otherwise be included in such registration by excluding any or all
Registrable Securities from such registration (it being understood that the
number of shares which the Company seeks to have registered in such registration
shall not be subject to exclusion, in whole or in part, under this Section
8.4.1). Upon receipt of notice from the underwriter of the need to reduce the
number of shares to be included in the registration, the Company shall advise
all holders of the Company's securities that would otherwise be registered and
underwritten pursuant hereto, and the number of shares of such securities,
including Registrable Securities, that may be included in the registration shall
be allocated in the following manner, unless the underwriter shall determine
that marketing factors require a different allocation: shares, other than
Registrable Securities, requested to be included in such registration by
shareholders shall be excluded; and, if a limitation on the number of shares is
still required, the number of Registrable Securities that may be included in
such registration shall be allocated among the holders thereof in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities which
each such holder requested be registered in such registration. For purposes of
any underwriter cutback, all Registrable Securities held by any holder of
Registrable
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Securities which is a partnership, corporation or limited liability company
shall also include any Registrable Securities held by the partners, retired
partners, shareholders, members or affiliated entities of such holder, or the
estates and family members of any such partners, retired partners and members
and any trusts for the benefit of any of the foregoing persons, and such holder
and other persons shall be deemed to be a single selling holder, and any pro
rata reduction with respect to such selling holder shall be based upon the
aggregate amount of Registrable Securities owned by all entities and individuals
included in such selling holder, as defined in this sentence. No securities
excluded from the underwriting by reason of the underwriter's marketing
limitation shall be included in such registration. If any holder of Registrable
Securities disapproves of the terms of the underwriting, it may elect to
withdraw therefrom by written notice to the Company and the underwriter. The
Registrable Securities so withdrawn shall also be withdrawn from registration.
8.4.2. Other Actions. If and in each case when the Company is required
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to use its best efforts to effect a registration of any Registrable Securities
as provided in this Section 8, the Company shall take appropriate and customary
actions in furtherance thereof, including, without limitation: (i) promptly
filing with the Commission a registration statement and using reasonable efforts
to cause such registration statement to become effective, (ii) preparing and
filing with the Commission such amendments and supplements to such registration
statements as may be required to comply with the Securities Act and to keep such
registration statement effective for a period not to exceed 270 days (or 60 days
in the case of a registration statement filed pursuant to Section 8.2A) from the
date of effectiveness or such earlier time as the Registrable Securities covered
by such registration statement shall have been disposed of in accordance with
the intended method of distribution therefor or the expiration of the time when
a prospectus relating to such registration is required to be delivered under the
Securities Act, (iii) use its best efforts to register or qualify such
Registrable Securities under the state securities or "blue sky" laws of such
jurisdictions as the sellers shall reasonably request; provided, however, that
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the Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it would not otherwise be so subject; and
(iv) otherwise cooperate reasonably with, and take such customary actions as may
reasonably be requested by the holders of Registrable Securities in connection
with, such registration.
8.4.3. Selection of Underwriters and Counsel. The underwriters and
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legal counsel to be retained in connection with any Public Offering shall be
selected by the Board or, in the case of an offering following a request
therefor under Section 8.1.1, the Initiating Investors.
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8.4.4. Lock-Up. Without the prior written consent of the underwriters
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managing the IPO, for a period beginning seven days immediately preceding and
ending on the 180th day following the effective date of the registration
statement used in connection with such offering, no holder of Shares (whether or
not a selling shareholder pursuant to such registration statement) shall
Transfer any Common Stock except pursuant to such registration statement or to a
Permitted Transferee in accordance with the terms of this Agreement. In the
case of any Public Offering that is not the IPO or effected pursuant to Section
8.2A, each holder of Shares agrees to enter into a reasonable form of agreement,
approved by the Company, restricting the Transfer of any Common Stock for up to
90 days following the effective date of the registration statement used in
connection with such offering if the underwriters managing such Public Offering
demand such an agreement.
8.5. Indemnification and Contribution.
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8.5.1. Indemnities of the Company. In the event of any registration of
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any Registrable Securities or other debt or equity securities of the Company or
any of its subsidiaries under the Securities Act pursuant to this Section 8 or
otherwise, and in connection with any registration statement or any other
disclosure document produced by or on behalf of the Company or any of its
subsidiaries including, without limitation, reports required and other documents
filed under the Exchange Act, and other documents pursuant to which any debt or
equity securities of the Company or any of its subsidiaries are sold (whether or
not for the account of the Company or its subsidiaries), the Company will, and
hereby do, and will cause each of their respective subsidiaries, jointly and
severally to, indemnify and hold harmless each seller of Registrable Securities,
any Person who is or might be deemed to be a controlling Person of the Company
or any of its subsidiaries within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, their respective direct and indirect
partners, advisory board members, directors, officers, trustees, members and
shareholders, and each other Person, if any, who controls any such seller or any
such holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act (each such person being referred to herein as a "Covered
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Person"), against any losses, claims, damages or liabilities, joint or several,
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to which such Covered Person may be or become subject under the Securities Act,
the Exchange Act, any other securities or other law of any jurisdiction, the
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained or incorporated by reference in any registration statement under the
Securities Act, any preliminary prospectus or final prospectus included therein,
or any related summary prospectus, or any amendment or supplement thereto, or
any document incorporated by reference therein, or any other such disclosure
document (including without limitation reports and other documents filed under
the Exchange Act and any document incorporated by reference therein) or
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other document or report, (ii) 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 or (iii) any violation or alleged violation by
the Company or any of its subsidiaries of any federal, state, foreign or common
law rule or regulation applicable to the Company or any of its subsidiaries and
relating to action or inaction in connection with any such registration,
disclosure document or other document or report, and will reimburse such Covered
Person for any legal or any other expenses incurred by it in connection with
investigating or defending any such loss, claim, damage, liability, action or
proceeding; provided, however, that neither the Company nor any of its
-------- -------
subsidiaries shall be liable to any Covered Person in any such case to the
extent that any such loss, claim, damage, liability, action or proceeding arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus, amendment or
supplement, incorporated document or other such disclosure document or other
document or report, in reliance upon and in conformity with written information
furnished to the Company or to any of its subsidiaries through an instrument
duly executed by such Covered Person specifically stating that it is for use in
the preparation thereof. The indemnities of the Company and of its subsidiaries
contained in this Section 8.5.1 shall remain in full force and effect regardless
of any investigation made by or on behalf of such Covered Person and shall
survive any transfer of securities.
8.5.2. Indemnities to the Company. The Company and any of its
--------------------------
subsidiaries may require, as a condition to including any securities in any
registration statement filed pursuant to this Section 8, that the Company and
any of its subsidiaries shall have received an undertaking satisfactory to it
from the prospective seller of such securities, to indemnify and hold harmless
the Company and any of its subsidiaries, each director of the Company or any of
its subsidiaries, each officer of the Company or any of its subsidiaries who
shall sign such registration statement and each other Person (other than such
seller), if any, who controls the Company and any of its subsidiaries within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
with respect to any statement in or omission from such registration statement,
any preliminary prospectus or final prospectus included therein, or any
amendment or supplement thereto, or any other disclosure document (including,
without limitation, reports and other documents filed under the Exchange Act or
any document incorporated therein) or other document or report, if such
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company or any of its subsidiaries through an
instrument executed by such seller specifically stating that it is for use in
the preparation of such registration statement, preliminary prospectus, final
prospectus, summary prospectus, amendment or supplement, incorporated document
or other document or report. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of
-13-
<PAGE>
the Company, any of its subsidiaries or any such director, officer or
controlling Person and shall survive any transfer of securities.
8.5.3. Indemnification Procedures. Promptly after receipt by a Person
--------------------------
entitled to indemnification pursuant to the foregoing provisions of this Section
8.5 (an "Indemnitee") of notice of the commencement of any action or proceeding
----------
involving a claim of the type referred to in the foregoing provisions of this
Section 8.5, such Indemnitee will, if a claim in respect thereof is to be made
by such Indemnitee against any indemnifying party, give written notice to each
such indemnifying party of the commencement of such action; provided, however,
-------- -------
that the failure of any Indemnitee to give notice to such indemnifying party as
provided herein shall not relieve any indemnifying party of its obligations
under the foregoing provisions of this Section 8.5, except and solely to the
extent that such indemnifying party is actually and materially prejudiced by
such failure to give notice. In case any such action is brought against an
Indemnitee, each indemnifying party will be entitled to participate in and to
assume the defense thereof, jointly with any other indemnifying party similarly
notified, to the extent that it may wish, with counsel reasonably satisfactory
to such Indemnitee (who shall not, except with the consent of the Indemnitee, be
counsel to such an indemnifying party), and after notice from an indemnifying
party to such Indemnitee of its election so to assume the defense thereof, such
indemnifying party will not be liable to such Indemnitee for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof; provided, however, that (i) if the Indemnitee reasonably determines
-------- -------
that there may be a conflict between the positions of such indemnifying party
and the Indemnitee in conducting the defense of such action or if the Indemnitee
reasonably concludes that representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them, then counsel for the Indemnitee shall conduct the defense to the extent
reasonably determined by such counsel to be necessary to protect the interests
of the Indemnitee and such indemnifying party shall employ separate counsel for
its own defense, (ii) in any event, the Indemnitee shall be entitled to have
counsel chosen by such Indemnitee participate in, but not conduct, the defense
and (iii) the indemnifying party shall bear the legal expenses incurred in
connection with the conduct of, and the participation in, the defense as
referred to in clauses (i) and (ii) above. If, within a reasonable time after
receipt of the notice, such indemnifying party shall not have elected to assume
the defense of the action, such indemnifying party shall be responsible for any
legal or other expenses incurred by such Indemnitee in connection with the
defense of the action, suit, investigation, inquiry or proceeding. No
indemnifying party will consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnitee of a release from all liabilities
in respect of such claim or litigation.
8.5.4. Contribution. If the indemnification provided for in Sections
------------
8.5.1 or 8.5.2 hereof is unavailable to a party that would have been an
Indemnitee under any
-14-
<PAGE>
such Section in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
party that would have been an indemnifying party thereunder shall, in lieu
of indemnifying such Indemnitee, contribute to the amount paid or payable
by such Indemnitee as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such
proportion as is appropriate to reflect the relative fault of such
indemnifying party on the one hand and such Indemnitee on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect
thereof). The relative fault 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 indemnifying party or such Indemnitee and
the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The parties
agree that it would not be just or equitable if contribution pursuant to
this Section 8.5.4 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 preceding sentence. The amount paid or
payable by a contributing party as a result of the losses, claims, damages
or liabilities (or actions or proceedings in respect thereof) referred to
above in this Section 8.5.4 shall include any legal or other expenses
reasonably incurred by such Indemnitee in connection with investigating or
defending any such action or claim. 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.
8.5.5. Limitation on Liability of Holders of Registrable Securities.
------------------------------------------------------------
The liability of each holder of Registrable Securities in respect of any
indemnification or contribution obligation of such holder arising under
this Section 8.5 shall not in any event exceed an amount equal to the net
proceeds to such holder (after deduction of all underwriters' discounts and
commissions) from the disposition of the Registrable Securities disposed of
by such holder pursuant to such registration.
9. TRANSFERS TO OTHER HOLDERS. Shares Transferred by a holder of Shares to
another holder of Shares under this Agreement shall be deemed for all purposes
hereof to be Investor Shares, Other Shares, Management Shares or Employee Shares
hereunder, as the case may be, of like kind with the other Shares held by such
acquiring holder.
10. REMEDIES.
10.1. Generally. The Company and each holder of Shares shall have all
---------
remedies available at law, in equity or otherwise in the event of any breach or
violation of this Agreement or any default hereunder by the Company or any
holder of Shares. The parties acknowledge and agree that in the event of any
breach of this Agreement, in addition to any
-15-
<PAGE>
other remedies which may be available, each of the parties hereto shall be
entitled to specific performance of the obligations of the other parties hereto
and, in addition, to such other equitable remedies (including, without
limitation, preliminary or temporary relief) as may be appropriate in the
circumstances.
10.2. [RESERVED]
----------
11. LEGENDS.
11.1. [Reserved].
----------
11.2. 1933 Act Legends. Each certificate representing Shares shall have
----------------
the following legend endorsed conspicuously thereupon:
The securities represented by this certificate were issued in a
private placement, without registration under the Securities Act of 1933,
as amended (the "Act"), and may not be sold, assigned, pledged or otherwise
transferred in the absence of an effective registration under the Act
covering the transfer or an opinion of counsel, satisfactory to the issuer,
that registration under the Act is not required.
11.3. Stop Transfer Instruction. The Company will instruct any transfer
-------------------------
agent not to register the Transfer of any Shares until the conditions specified
in the foregoing legend is satisfied.
11. Termination of Certain Restrictions. The legend set forth in
-----------------------------------
Section 11.2 shall cease to be required as to any particular Shares (i) when, in
the opinion of Ropes & Gray, or other counsel reasonably acceptable to the
Company, such restrictions are no longer required in order to assure compliance
with the Securities Act or (ii) when such Shares have been effectively
registered under the Securities Act or transferred pursuant to Rule 144.
Wherever (i) such restrictions shall cease and terminate as to any Shares or
(ii) such Shares shall be transferable under paragraph (k) of Rule 144, the
holder thereof shall be entitled to receive from the Company, without expense,
new certificates not bearing the legend set forth in Section 11.2 hereof.
12. AMENDMENT, TERMINATION, ETC.
12.1. Oral Modifications. This Agreement may not be orally amended,
------------------
modified, extended or terminated, nor shall any oral waiver of any of its terms
be effective.
12.2. Written Modifications. This Agreement may be amended, modified,
---------------------
extended or terminated, and the provisions hereof may be waived, only by an
agreement in writing signed by the Majority Investors; provided, however, that
-------- -------
(a) the consent of the Majority
-16-
<PAGE>
Other Holders shall be required for any amendment, modification, extension,
termination or waiver which has a material adverse effect on the rights or
obligations of the holders of Other Shares as such under this Agreement, (b) the
consent of the Majority Managers shall be required for any amendment,
modification, extension, termination or waiver which has a material adverse
effect on the rights or obligations of the holders of Management Shares as such
under this Agreement, (c) the consent of the Majority Employees shall be
required for any amendment, modification, extension, termination or waiver which
has a material adverse effect on rights or obligations of the holders of
Employee Shares as such under this Agreement (d) the consent of holders of a
majority of the Shares originally issued to the NatWest Investors and the MCM
Managers shall be required for any amendment, modification, extension,
termination or waiver which has a material adverse effect on their rights or
obligations under Section 8.2A of this Agreement and (e) the consent of the
Majority Lenders shall be required for any amendment, modification, extension,
termination or waiver which has a material adverse effect on the rights or
obligations of the holders of Lender Shares as such under this Agreement. Each
such amendment, modification, extension, termination and waiver shall be binding
upon each party hereto and each holder of Shares subject hereto. In addition,
each party hereto and each holder of Shares subject hereto may waive any right
hereunder by an instrument in writing signed by such party or holder.
12.3. Termination. No termination under this Agreement shall relieve any
-----------
Person of liability for breach prior to termination.
12.4. Additional Parties. In appropriate circumstances, the Company may
------------------
require certain other Persons to which Common Stock is issued to execute
counterparts hereto to become bound hereby. Such counterparts shall indicate
the designation of Shares issued to such Persons.
13. DEFINITIONS. For purposes of this Agreement:
13.1. Certain Matters of Construction. In addition to the definitions
-------------------------------
referred to or set forth below in this Section 13:
(a) The words "hereof", "herein", "hereunder" and words of similar
import shall refer to this Agreement as a whole and not to any particular
Section or provision of this Agreement, and reference to a particular
Section of this Agreement shall include all subsections thereof;
(b) Definitions shall be equally applicable to both the singular
and plural forms of the terms defined;
(c) The masculine, feminine and neuter genders shall each include
the other; and
-17-
<PAGE>
(d) References to the date hereof shall be deemed to be references
to the date of the Original Agreement.
13.2. Definitions. The following terms shall have the following meanings:
-----------
"Affiliate" shall mean, with respect to any specified Person, any
---------
other Person which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control
with, such specified Person (for the purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled
by" and "under common control with"), as used with respect to any Person,
means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise).
"Agreement" shall have the meaning set forth in the Preamble.
---------
"Board" shall mean the board of directors of the Company.
-----
"Class A Stock" shall mean the Class A common stock, par value $.01,
-------------
of the Company prior to the Merger.
"Class L Stock" shall mean the Class L common stock, par value $.01,
-------------
of the Company prior to the Merger.
"Commission" shall mean the Securities and Exchange Commission.
----------
"Common Stock" shall mean the Class A Stock, the Class L Stock and
------------
the Delaware Common Stock.
"Company" shall have the meaning set forth in the Preamble.
-------
"Convertible Securities" shall mean any evidence of indebtedness,
----------------------
shares of stock (other than Common Stock) or other securities directly or
indirectly convertible into or exchangeable or exercisable for shares of
Common Stock.
"Covered Person" shall have the meaning set forth in Section 8.5.1.
--------------
"Delaware Common Stock" shall have the meaning set forth in the
---------------------
Recitals.
"Employee Shares" shall mean (i) all shares of Common Stock (other
---------------
than shares of Restricted Common Stock or Common Stock issued pursuant to
the exercise of any Option) originally issued to, or issued with respect to
shares originally issued to, or held by, an Employee, whenever issued and
(ii) for all purposes of this Agreement,
-18-
<PAGE>
all Options (treating such Options as a number of Shares equal to the
number of Equivalent Shares represented by such Options), all shares of
Common Stock issued pursuant to the exercise of any Option and all shares
of Restricted Common Stock originally granted or issued to, or issued with
respect to shares or options originally issued to, or held by, an Employee,
whenever issued.
"Employees" shall have the meaning set forth in the Recitals.
---------
"Exchange Act" shall mean the Securities Exchange Act of 1934, as in
------------
effect from time to time.
"Indemnitee" shall have the meaning set forth in Section 8.5.3.
----------
"Independent Investment Banking Firm" shall mean a nationally
-----------------------------------
recognized investment banking firm selected by the Board which does not
hold any equity interest in the Company or in any shareholder of the
Company and which is not employed by either the Company or the Investor at
the time the applicable fairness opinion is furnished (other than
employment for the purpose of providing such fairness opinion).
"Initial Public Offering" means the initial Public Offering registered
-----------------------
on Form S-1 (or any successor form under the Securities Act).
"Initiating Investors" shall have the meaning set forth in Section
--------------------
8.1.1.
"Initiating Other Investors" shall have the meaning set forth in
--------------------------
Section 8.2.1.
"Investor Shares" shall mean (i) all shares of Common Stock (other
---------------
than shares of Common Stock issued pursuant to the exercise of any Option)
originally issued to, or issued with respect to shares originally issued
to, or held by, any Investor, whenever issued and (ii) for all purposes of
this Agreement, all Options (treating such Options as a number of Shares
equal to the number of Equivalent Shares represented by such Options) and
all shares of Common Stock issued pursuant to the exercise of any Option
originally granted or issued to, or issued with respect to shares or
options originally issued to, or held by, an Investor, whenever issued.
"Investors" shall have the meaning set forth in the Preamble.
---------
"Lender Shares" shall mean (i) all shares of Common Stock issued
-------------
pursuant to the exercise of any Lender Warrant or other Option originally
granted or issued to, or issued with respect to shares or options
originally issued to, or held by, a Lender, whenever issued.
-19-
<PAGE>
"Lender Warrants" shall mean the warrants issued under the Warrant
---------------
Agreements to acquire Common Stock.
"Lenders" shall have the meaning set forth in the Preamble.
-------
"Majority Employees" shall mean, as of any date, the holders of a
------------------
majority of the Employee Shares outstanding on such date.
"Majority Investors" shall mean, as of any date, the holders of a
------------------
majority of the Investor Shares outstanding on such date.
"Majority Lenders" shall mean, as of any date, the holders of a
----------------
majority of the Lender Shares outstanding on such date.
"Majority Managers" shall mean, as of any date, the holders of a
-----------------
majority of the Management Shares outstanding on such date.
"Majority Other Holders" shall mean, as of any date, the holders of a
----------------------
majority of Other Shares outstanding on such date.
"Majority Participating Investors" shall have the meaning set forth in
--------------------------------
Section 8.1.1.
"Majority Participating Other Investors" shall mean holders of at
--------------------------------------
least a majority of the Registrable Other Securities to be included in any
given proposed registration statement.
"Management Shares" shall mean (i) all shares of Common Stock (other
-----------------
than shares of Restricted Common Stock or Common Stock issued pursuant to
the exercise of any Option) originally issued to, or issued with respect to
shares originally issued to, or held by, a Manager, whenever issued and
(ii) for all purposes of this Agreement, all Options (treating such Options
as a number of Shares equal to the number of Equivalent Shares represented
by such Options), all shares of Common Stock issued pursuant to the
exercise of any Option and all shares of Restricted Common Stock originally
granted or issued to, or issued with respect to shares or options
originally issued to, or held by, a Manager, whenever issued.
"Managers" shall have the meaning set forth in the Preamble.
--------
"MCM" shall have the meaning set forth in the Recitals.
---
"MCM Managers" shall have the meaning set forth in the Recitals.
------------
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<PAGE>
"Merger" shall have the meaning set forth in the Recitals.
------
"NatWest Investors" shall have the meaning set forth in the Recitals.
-----------------
"Options" shall mean any options or warrants (including without
-------
limitation the Lender Warrants) to subscribe for, purchase or otherwise
acquire either Common Stock or Convertible Securities.
"Other Investors" shall have the meaning set forth in the Preamble.
---------------
"Other Shares" shall mean (i) all shares of Common Stock (other than
------------
shares of Common Stock issued pursuant to the exercise of any Option)
originally issued to, or issued with respect to shares originally issued
to, or held by, an Other Investor, whenever issued and (ii) for all
purposes of this Agreement, all Options (treating such Options as a number
of Shares equal to the number of Equivalent Shares represented by such
Options) and all shares of Common Stock issued pursuant to the exercise of
any Option originally granted or issued to, or issued with respect to
shares or options originally issued to, or held by, an Other Investor,
whenever issued.
"Person" shall mean any individual, partnership, corporation, company,
------
association, trust, joint venture, unincorporated organization, entity or
division, or any government, governmental department or agency or political
subdivision thereof.
"Public Offering" shall mean a public offering and sale of Common
---------------
Stock for cash pursuant to an effective registration statement under the
Securities Act.
"Registrable Investor Securities" shall have the meaning set forth in
-------------------------------
Section 8.1.1.
"Registrable Other Securities" shall have the meaning set forth in
----------------------------
Section 8.2.1.
"Registrable Securities" shall mean (i) all shares of Class A Stock,
----------------------
(ii) all shares of Class A Stock issuable upon conversion of Shares of
Class L Stock, (iii) all shares of Class A Stock issuable upon exercise of
any Option or any Warrant, (iv) all shares of Delaware Common Stock issued
in the Merger, (v) all shares of Common Stock issued to the NatWest
Investors or the MCM Managers in consideration of their interests in MCM,
and (vi) all shares of Class A Stock or Delaware Common Stock directly or
indirectly issued or issuable with respect to the securities referred to in
clauses (i), (ii), (iii), (iv) or (v) above by way of stock dividend or
stock split or in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization, in each
case which (a) constitute Shares or (b) are the subject of a separate
registration rights agreement. As to any particular Registrable
Securities, such shares shall cease to
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<PAGE>
be Registrable Securities when (a) a registration statement with respect to
the sale of such securities shall have become effective under the
Securities Act and such securities shall have been disposed of in
accordance with such registration statement, (b) such securities shall have
been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act, (c) subject to the provisions of
Section 11 hereof, such securities shall have been otherwise transferred,
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by the Company and subsequent disposition of them
shall not require registration of them under the Securities Act or such
securities may be distributed without volume limitation or other
restrictions on transfer under Rule 144 (including without application of
paragraphs (c), (e) (f) and (h) of Rule 144), or (d) such securities shall
have ceased to be outstanding.
"Regulation D" shall mean Regulation D under the Securities Act.
------------
"Restricted Common Stock" shall mean Shares issued or sold to Managers
-----------------------
(other than the MCM Managers) with respect to which there are restrictions
on Transfer independent of this Agreement.
"Rule 144" shall mean Rule 144 under the Securities Act.
--------
"Rule 145 Transaction" shall mean a registration on Form S-4 pursuant
--------------------
to Rule 145 of the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as in effect
--------------
from time to time.
"Shares" shall mean all Investor Shares, Lender Shares, Other Shares,
------
Management Shares and Employee Shares.
"Stockholders" shall have the meaning set forth in the Preamble.
------------
"Transfer" shall mean any sale, pledge, assignment, encumbrance or
--------
other transfer or disposition of any Shares to any other Person, whether
directly, indirectly, voluntarily, involuntarily, by operation of law,
pursuant to judicial process or otherwise.
"Warrant Agreements" shall mean those certain Warrant Agreements, each
------------------
dated as of the date of the Original Agreement, as amended, between the
Company and ChaseMellon Shareholder Services, L.L.C., as Warrant Agent.
-22-
<PAGE>
14. MISCELLANEOUS.
14.1. Authority; Effect. Each party hereto represents and warrants to and
-----------------
agrees with each other party that the execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized on behalf of such party and do not violate any agreement or other
instrument applicable to such party or by which its assets are bound. This
Agreement does not, and shall not be construed to, give rise to the creation of
a partnership among any of the parties hereto, or to constitute any of such
parties members of a joint venture or other association.
14.2. Transactions with Affiliates. Prior to the consummation of a
----------------------------
transaction with an Affiliate of an Investor involving consideration of more
than $10 million, the Company will secure a fairness opinion from an Independent
Investment Banking Firm as to the fairness of such transaction to the Company
from a financial point of view.
14.3. Notices. Any notices and other communications required or permitted
-------
in this Agreement shall be effective if in writing and (a) delivered personally
or (b) sent (i) by Federal Express, DHL or UPS, delivery charges prepaid or (ii)
by registered or certified mail, return receipt requested, postage prepaid, in
each case, addressed as follows:
If to the Company or the Investors, to them:
c/o Bain Capital, Inc.
Two Copley Place, 7th Floor
Boston, Massachusetts 02116
Attention: Steve Pagliuca
Ed Conard
with a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: Alfred O. Rose
If to an Other Investor, a Manager, an Employee or a Lender, to it at
the address set forth on the records of the Company.
Notice to the holder of record of any shares of capital stock shall be
deemed to be notice to the holder of such shares for all purposes hereof.
Unless otherwise specified herein, such notices or other communications
shall be deemed effective (a) on the date received, if personally delivered, (b)
two business days after
-23-
<PAGE>
being sent by Federal Express, DHL or UPS and (c) three business days, if sent
by registered or certified mail. Each of the parties hereto shall be entitled to
specify a different address by giving notice as aforesaid to each of the other
parties hereto.
14.4. Binding Effect, etc. This Agreement constitutes the entire agreement
-------------------
of the parties with respect to its subject matter, supersedes all prior or
contemporaneous oral or written agreements or discussions with respect to such
subject matter, and shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors and
assigns.
14.5. Descriptive Headings. The descriptive headings of this Agreement are
--------------------
for convenience of reference only, are not to be considered a part hereof and
shall not be construed to define or limit any of the terms or provisions hereof.
14.6. Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one instrument.
14.7. Severability. In the event that any provision hereof would, under
------------
applicable law, be invalid or unenforceable in any respect, such provision shall
be construed by modifying or limiting it so as to be valid and enforceable to
the maximum extent compatible with, and possible under, applicable law. The
provisions hereof are severable, and in the event any provision hereof should be
held invalid or unenforceable in any respect, it shall not invalidate, render
unenforceable or otherwise affect any other provision hereof.
15. GOVERNING LAW.
15.1. Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the domestic substantive laws of the State of Delaware without
giving effect to any choice or conflict of laws provision or rule that would
cause the application of the domestic substantive laws of any other
jurisdiction.
-24-
<PAGE>
Stockholders Agreement
_________, 2000
IN WITNESS WHEREOF, each of the undersigned has duly executed this
Agreement (or caused this Agreement to be executed on its behalf by its officer
or representative thereunto duly authorized) under seal as of the date first
above written.
THE INVESTORS: Bain Capital Fund V, L.P.
Bain Capital Fund V-B, L.P.
By Bain Capital Partners V, L.P.,
their general partner
By Bain Capital Investors V, Inc.,
its general partner
By______________________________________
Title: Managing Director
BCIP Associates
BCIP Trust Associates, L.P.
By__________________________________
Title: a general partner
<PAGE>
Stockholders Agreement
__________, 2000
THE OTHER INVESTORS: CELERITY DYNAMO, L.L.C.
By__________________________
its
CELERITY LIQUIDS, L.L.C.
By__________________________
its
CELERITY DETAILS, L.L.C.
By__________________________
its
<PAGE>
Stockholders Agreement
____________, 2000
OTHER INVESTORS:
CHASE MANHATTAN CAPITAL, L.P.
By_____________________________
its
CHASE SECURITIES INC.
By____________________________
its
DI INVESTORS, L.L.C.
By___________________________
its
<PAGE>
Stockholders Agreement
________, 2000
LENDERS: CHASE SECURITIES INC.
By_________________________
Title:
CHASE MANHATTAN CAPITAL, L.P.
By_________________________
Title:
<PAGE>
Stockholders Agreement
_________, 2000
MANAGERS:
__________________________
Charles D. Dimick
__________________________
Bruce D. McMaster
__________________________
Joseph P. Gisch
<PAGE>
Stockholders Agreement
________, 2000
OTHER INVESTORS:
NATWEST VENTURE NOMINEES LIMITED
By_______________________________________
Title:
<PAGE>
Stockholders Agreement
________, 2000
MANAGERS:
______________________________
Martin Henry George Malone
______________________________
Martin James Glanfield
______________________________
John Andrew Calvert
______________________________
Philip Jackson
______________________________
Chris Lea
______________________________
Cheryl Reilly
______________________________
Neil McLaren
______________________________
Alan Rogers
______________________________
Tom Johnston
______________________________
Mark Campbell
<PAGE>
Stockholders Agreement
________, 2000
______________________________
Nick Potter
______________________________
Bryonie Glanfield
______________________________
Leslie James Glanfield
______________________________
Jeanne Catherine Glanfield
______________________________
Henry Frederick Banks
______________________________
Olive Banks
______________________________
Darren Malone
______________________________
Ryan Malone
______________________________
Katherine Calvert
______________________________
Paul Fowler
<PAGE>
Stockholders Agreement
________, 2000
______________________________
Diarmuid Cullinane
______________________________
Vinesh Makwana
______________________________
Karen Bolton
______________________________
Mark Woore
______________________________
Gordon Holden
______________________________
Paul Dickson
______________________________
Ulf Dige
______________________________
Peter Stoneham
______________________________
Ronald Bartlett
______________________________
Brian Chappel
