VOTING TRUST AGREEMENT
Relating to Shares of
TNPC, Inc.
THIS VOTING TRUST AGREEMENT (the "Agreement") is effective as
of October , 2000 by and among the parties listed on Schedule I hereto
(collectively, the "DLJMB Funds"), Christiana Bank & Trust Company, as voting
trustee (together with its successors in such capacity, the "Trustee") and
Donaldson, Lufkin & Jenrette, Inc. ("DLJ").
WHEREAS, the parties hereto desire to record their
arrangements with respect to shares of common stock, par value $0.01 per share
(the "Common Stock"), and Class A Warrants (the "Class A Warrants") of TNPC,
Inc., a Delaware corporation (the "Corporation").
NOW, THEREFORE, the parties hereto agree as follows:
1. Certain Definitions. In this Agreement:
(a) "Control Affiliate" means DLJ or any entity controlling,
controlled by or under common control with, directly or indirectly, DLJ.
(b) "DLJ" means Donaldson, Lufkin & Jenrette, Inc., a Delaware
corporation, and its successors.
(c) "DLJSC" means Donaldson, Lufkin & Jenrette Securities
Corporation, a Delaware corporation, and its successors.
(d) "DLJ Affiliate" means any person or entity who is a
Control Affiliate, Employee Affiliate or Other Affiliate.
(e) "Employee Affiliate" means any person employed by (or who
is the spouse, relative or relative of a spouse, in each case residing in the
home of a person employed by) a Control Affiliate, as reflected in the records
of the Trustee.
(f) "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
(g) "Holder" means from time to time, each person or entity
who deposits Shares hereunder with the Trustee and receives a Trust Certificate
therefor, and any transferee of such person or entity.
(h) "Other Affiliate" means any person or entity which has a
substantial business relationship with a Control Affiliate and which is not
itself a Control Affiliate.
(i) "Securities Act" means the Securities Act of 1933, as
amended.
(j) "Share" means a share of Common Stock or a Share
Equivalent.
(k) "Share Equivalent" means any security convertible into,
exchangeable for, or carrying the right to acquire Common Stock of the
Corporation or subscriptions, warrants, options, rights or other arrangements
obligating the Corporation to issue or dispose of any shares or other voting
securities of the Corporation, including, without limitation, the Class A
Warrants.
2. Deposit.
(a) The DLJMB Funds, by delivery to the Trustee of
certificates representing the same, duly endorsed or accompanied by appropriate
instruments of transfer herewith, duly assign and deliver or have caused to be
duly assigned and delivered to the Trustee to be held pursuant to this Agreement
a total of 5,947,800 Class A Warrants and 1,000,000 shares of Common Stock (the
"initial deposit") on a pro rata basis. Subject to the provisions of Section
2(b) below, DLJ, by delivery to the Trustee of certificates representing the
same, duly endorsed or accompanied by appropriate instruments of transfer, shall
duly assign and deliver or cause to be duly assigned and delivered to the
Trustee all Shares (i) received upon conversion of Shares held by the Trustee
and (ii) owned by any DLJ Affiliate or acquired by any DLJ Affiliate at any time
in excess of 5% in the aggregate of the total number of shares of the voting
capital stock (of any class) of the Corporation then outstanding. Each person or
entity for whom Shares are held from time to time by the Trustee hereunder as
reflected in the records of the Trustee shall be a Holder and shall be bound by
all the provisions of this Agreement applicable to Holders.
(b) In determining, for purposes of Section 2(a) only, whether
more than 5% in the aggregate of the total number of shares of the voting
capital stock (of any class) of the Corporation at any time then outstanding are
owned by DLJ Affiliates, there shall be excluded from the calculation of shares
owned by DLJ Affiliates, and no deposit of Shares shall be required hereunder as
a consequence of any Shares:
(i) held by DLJSC or any other Control Affiliate which is
registered as a broker- dealer under the Exchange Act, if such Shares
are held in connection with its normal trading activities as a
broker-dealer; provided, however, that DLJ will cause DLJSC or such
other Control Affiliate to agree that it will not vote such Shares,
(ii) held by DLJSC or any other Control Affiliate which is
a registered broker- dealer under the Exchange Act, if such Shares are
held in a syndicate or trading account and were acquired in its
capacity as an underwriter or placement agent whether in an offering
registered under the Securities Act or otherwise; provided, however,
that DLJ will cause DLJSC or such other Control Affiliate to agree that
it will not vote such Shares,
(iii) held by DLJSC for the account of any person or
entity other than a Control Affiliate or Employee Affiliate or in the
name of a customer account, which customer is a person or entity other
than a Control Affiliate or Employee Affiliate; provided, however, that
DLJSC may vote the Shares only when instructed by the beneficial owner
thereof or as otherwise permitted under the rules of all exchanges, if
any, on which any class of Shares is listed,
(iv) held by an Employee Affiliate other than a person
holding the position of Senior Vice President or above (or performing
the comparable function) of DLJ or any of its subsidiaries, unless in
either case a contract or other arrangement (other than this Agreement)
regarding the voting of such Shares exists between such Employee
Affiliate or Other Affiliate and any Control Affiliate, or
(v) held by the Trustee pursuant to this Agreement.
3. Transfer on Books of Corporation. The Corporation shall, to
the extent applicable, cause all Shares transferred to or deposited with it in
its capacity as Trustee hereunder to be represented by new certificates issued
to the Trustee. The Trustee's newly issued certificates shall state that they
are issued pursuant to this Agreement, and shall bear the legend set forth
below.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS. SUCH SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD,
PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF
PROVIDES EVIDENCE SATISFACTORY TO THE ISSUER (WHICH, IN THE DISCRETION
OF THE ISSUER, MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO THE
ISSUER) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER, OR OTHER DISPOSITION
WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE SECURITIES LAWS.
Upon an instruction in writing delivered to the Trustee by
DLJ, the Trustee shall submit to the Corporation or its transfer agent for
removal of such legend from the certificates representing such number of Shares
deposited with the Trustee hereunder as shall be specified in such written
instructions from DLJ; provided that DLJ shall deliver to the Trustee such
statement of facts certified by DLJ as may be reasonably necessary for the
Trustee to obtain such removal. The Trustee will issue and deliver (at the
address of such Holder provided in writing to the Trustee) to each Holder a
Voting Trust Certificate (a "Trust Certificate") for the number of Shares so
transferred or deposited with the Trustee and held for the Trustee for such
Holder.
4. Form. Trust Certificates shall be in substantially the
following form (with such modifications as may be appropriate if the applicable
Trust Certificate represents Share Equivalents):
TRANSFER OF THIS VOTING TRUST
CERTIFICATE IS SUBJECT TO
TERMS AND CONDITIONS SET
FORTH IN THE VOTING TRUST
AGREEMENT DATED AS OF
SEPTEMBER ______, 2000 (THE
"VOTING TRUST AGREEMENT"),
AND THE STOCKHOLDERS
AGREEMENT DATED AS OF JANUARY
6, 2000, AS AMENDED JUNE 30,
2000 AND JULY 10, 2000 (THE
"STOCKHOLDERS AGREEMENT"),
COPIES OF WHICH HAVE BEEN
FILED IN THE REGISTERED
OFFICE IN THE STATE OF
DELAWARE OF TNPC, INC., A
DELAWARE CORPORATION (THE
"CORPORATION"). SUCH COPIES
ARE OPEN TO INSPECTION DAILY
DURING BUSINESS HOURS BY ANY
STOCKHOLDER OF THE
CORPORATION OR ANY
BENEFICIARY OF THE VOTING
TRUST AGREEMENT OR PARTY TO
THE STOCKHOLDERS AGREEMENT.
Certificate No.
TNPC, INC.
VOTING TRUST CERTIFICATE
This certifies that ________ ("Holder") has
transferred (or caused to be transferred) to the undersigned Trustee
[shares of Common Stock] [Warrants] of the Corporation, to be held by
the Trustee pursuant to the terms of the Voting Trust Agreement and
Stockholders Agreement, copies of which have been delivered to the
above-named Holder and filed in the registered office of the
Corporation in the State of Delaware. The Holder, or his registered
assigns, will be entitled (i) to receive payments equal to any and all
cash dividends collected by the Trustee on the above stated number of
shares, (ii) to receive all other dividends or distributions in respect
of such Shares received by the Trustee except to the extent that
property received is required to be deposited in the trust created by
the Voting Trust Agreement, and (iii) to the delivery of a certificate
or certificates for that number of shares on the termination of the
Voting Trust Agreement, in accordance with its provisions.
This Voting Trust Certificate is transferable on the
books maintained by the Trustee at the principal corporate trust office
of the Trustee by the Holder hereof, in person or by duly authorized
attorney, and upon surrender hereof; and until so transferred the
Trustee may treat the registered Holder hereof as the absolute owner
hereof for all purposes.
The Holder, by the acceptance of this Voting Trust
Certificate, agrees to be bound by all of the provisions of the Voting
Trust Agreement and Stockholders Agreement as fully as if its terms
were set forth in this Voting Trust Certificate.
EXECUTED this day of ,
------- ------------------- -------
By:
------
Name:
----
Title:
----
"Trustee"
[Form of Assignment for Reverse of Voting Trust Certificate]
For value received, ___________ hereby sells,
assigns, and transfers unto __________________ the within Voting Trust
Certificate and all rights and interests represented thereby, and does
hereby irrevocably constitute and appoint attorney to transfer such
Voting Trust Certificate on the books of the within-named Trustee with
full power of substitution in the premises.
Date:
-----------------------
Signed:
---------------------
5. Additional Trust Certificates. Any Holder may at any time
deposit with the Trustee additional certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Shares. Any DLJ Affiliate
acquiring Shares shall, if required under this Agreement, become a Holder by (a)
depositing, or causing to be deposited, certificates (or the equivalent evidence
of ownership in the case of Share Equivalents) for Shares, duly endorsed for
transfer, with the Trustee and (b) accepting a Voting Trust Certificate in
respect of such Shares.
6. Voting; Powers. At all times prior to the termination of
the voting trust created herein, the Trustee shall have the exclusive right to
vote the Shares deposited with it hereunder (the "Deposited Shares"), in person
or by proxy, at all meetings of stockholders of the Corporation, or give written
consent to stockholder actions taken without a meeting, in all proceedings in
which the vote or consent, written or otherwise, of the holders of Shares may be
required or authorized by law.
The Trustee shall vote all Deposited Shares in accordance with
this Agreement and with the Stockholders Agreement dated as of January 6, 2000,
as amended on June 30, 2000 and July 10, 2000, by and among the Corporation, and
the other investors listed therein, as the same may be further amended from time
to time (as so amended, the "Stockholders Agreement"). The Trustee shall have
full power and authority, and it is hereby empowered and authorized, to become a
party to and perform its obligations under, to consent to waivers and amendments
of, and otherwise take or refrain from taking discretionary action under or
pursuant to, the Stockholders Agreement, in its sole and absolute discretion,
and, subject to the Stockholders Agreement, to vote the Deposited Shares in its
sole and absolute discretion, it being understood that the Trustee will not
consult with any DLJ Affiliate regarding such voting of such Shares, and to do
any and all other things and take any and all other actions as fully as any
stockholder of the Corporation might do if personally present at a meeting of
the stockholders of the Corporation. The Trustee may rely (and shall be fully
protected in so relying) upon advisors; provided that such advisors are not DLJ
Affiliates. At any time upon the written request of the Trustee, DLJ shall
promptly provide to the Trustee such information as is reasonably necessary
(including certificates and/or other documents) in order to enable the Trustee
to carry out the foregoing obligations; provided that, for all purposes of this
Agreement, the Trustee shall have no duty to inquire or investigate whether a
person or entity is a DLJ Affiliate, shall not be responsible for and shall have
no personal liability in connection with identifying or failing to identify a
person or entity as a DLJ Affiliate unless a Responsible Officer of the Trustee
has actual knowledge that such person or entity is a DLJ Affiliate, and shall be
entitled to assume and be fully protected in assuming that a person or entity is
not a DLJ Affiliate unless a Responsible Officer of the Trustee has actual
knowledge that such person or entity is a DLJ Affiliate. "Responsible Officer of
the Trustee" shall mean an officer of the Trustee in its principal corporate
trust office having primary responsibility for the administration of the voting
trust created under this Agreement.
7. Dividends. If the Corporation pays or issues dividends or
makes other distributions on the Deposited Shares, the Trustee shall accept and
receive such dividends and distributions. Upon receipt of dividends and
distributions the same shall be prorated among the Holders that have a
beneficial interest hereunder in the Deposited Shares with respect to which such
dividend or other distribution was made in accordance with their interests and,
subject to the next sentence, the amount shall be distributed promptly pursuant
to transfer instructions set forth on Schedule B attached hereto or otherwise
communicated in writing to the Trustee. If the dividend or distribution is paid
or made in the form of Shares, such Shares shall be held by the Trustee under
the voting trust created herein and new Trust Certificates evidencing the Shares
so received and on deposit shall be issued to the applicable Holders. Holders
entitled to receive such dividends or distributions, or Trust Certificates in
respect thereof, described in this Section 7 shall be those Holders registered
as such on the transfer books of the Trustee at the close of business on the day
fixed by the Corporation for the taking of a record to determine those holders
of its stock entitled to receive such dividends or distributions. In the
performance of its duties to deliver dividends or distributions received by it
under this Agreement, the Trustee shall not be obligated to risk its own funds
and will not be personally liable for taxes or other charges related to the
delivery of such dividends or distributions.
8. Termination. The voting trust created herein is expressly
declared irrevocable and such voting trust and this Agreement shall terminate on
the earlier to occur of:
(a) ten years from the date hereof; or
(b) The written election of DLJ or the Holder(s) of Trust
Certificates representing the beneficial interest in 50% or more of the
Deposited Shares (notice of which shall be provided to all other parties hereto
and all other Holders), but only if prior to the time notice is given:
(i) DLJ shall have received an opinion of
independent nationally recognized counsel who are
experts in matters involving the federal securities
law, that, immediately after such termination, no DLJ
Affiliate will be an "affiliate" of the Corporation
within the meaning of Rule 144 of the rules and
regulations promulgated under the Securities Act and
neither DLJ nor any "group" (as defined in Section
13d-5 under the Exchange Act and the rules and
regulations promulgated thereunder) of which DLJ is a
member is the beneficial owner of 10% or more of the
Corporation's Common Stock; and
(ii) Trustee shall have received a
certificate of an officer of DLJ (in relying on which
the Trustee shall be fully protected) to the effect
that clause (i) above has been satisfied, together with
a copy of the opinion called for thereby; or
(c) The written election of DLJ or the Holders of Trust
Certificates representing the beneficial interest in 50% or more of the
Deposited Shares (notice of which shall be provided to all other parties hereto
and all other Holders) but only if prior to the time the notice is given the
Trustee shall have received a certificate of an officer of DLJ to the effect
that no DLJ Affiliate intends to make a market in any security of the
Corporation (in relying on which the Trustee shall be fully protected), which
certificate shall be accompanied by an opinion of independent nationally
recognized counsel who are experts in matters involving the federal securities
law that, immediately after such termination, neither DLJ nor any "group" (as
defined in Section 13d-5 under the Exchange Act and the rules and regulations
promulgated thereunder) of which DLJ is a member is or will be an "affiliate" of
the Corporation within the meaning of Rule 144 of the rules and regulations
promulgated under the Securities Act; or
(d) transfer of all of the Deposited Shares in accordance with
Section 9; or
(e) the effective date of a liquidation or dissolution of the
Corporation.
An election pursuant to section 8(b) or 8(c) above shall be effective upon
delivery of notice hereof (together with the required copy of the opinion) to
the Trustee.
Upon the termination of the voting trust herein created, the
Holders shall surrender their Trust Certificates to the Trustee, and shall
execute and deliver any agreement or other document required by the Stockholders
Agreement, and the Trustee shall deliver or cause to be delivered to the Holders
certificates (or the equivalent evidence of ownership in the case of Share
Equivalents) for Shares, properly endorsed for transfer (to the extent
necessary), equivalent to the number and type of Shares specified in the
respective Trust Certificates surrendered.
9. Transfer. (a) Trust Certificates shall, subject to
applicable securities laws, be freely transferable by a Holder to any other
person or transferee, provided that until the former Trust Certificate is
delivered to the Trustee for cancellation and issuance of a new Trust
Certificate in the name of the transferee, the transfer shall not be effective
with respect to the Trustee and the Trustee shall not treat the transferee as a
Holder until a Trust Certificate is issued in such transferee's name.
(b) Except as provided in Sections 8 and 10 and in subsections
(i) and (ii) of this Section 9(b), certificates (or the equivalent evidence of
ownership in the case of Share Equivalents) for Deposited Shares may not be
delivered by the Trustee to a Holder, a Holder's designee or any other third
party prior to the termination of the voting trust created herein.
(i) A Holder who is an Eligible Transferee may notify the
Trustee in writing that such Holder desires to cause a certificate or
certificates (or the equivalent evidence of ownership in the case of Share
Equivalents) for Shares on deposit hereunder and in an amount corresponding to
the Trust Certificate surrendered as provided herein (or such lesser number as
is specified in the notice) to be transferred to such Holder or any other person
or entity who is an Eligible Transferee. Any person or entity that acquires a
Trust Certificate or Shares pursuant to an Eligible Transfer is hereinafter
referred to as an "Eligible Transferee".
For purposes of this Section 9, an "Eligible Transfer" is
defined as (i) any transfer of a Trust Certificate or, with respect to Shares to
be released from deposit under this subsection (i), Shares to a person or entity
who is not a DLJ Affiliate, (ii) any transfer of a Trust Certificate or, with
respect to Shares to be released from deposit under this subsection (i), Shares
to an Other Affiliate or to any Employee Affiliate other than a person holding
the position of Senior Vice President or above (or performing the comparable
function) of any Control Affiliate; provided that, in each case, a contract or
other arrangement (other than this Agreement or the Stockholders Agreement)
regarding the voting or disposition of Shares does not exist between any Control
Affiliate or Employee Affiliate and such transferee and (iii) any transfer of
Shares to DLJSC for the account of any person or entity other than a Control
Affiliate or Employee Affiliate or in the name of a customer account, which
customer is a person or entity other than a Control Affiliate or Employee
Affiliate; provided, however, that DLJ shall cause DLJSC to vote or dispose of
such Shares only when instructed by the beneficial owner thereof or as otherwise
permitted under the rules of all exchanges, if any, on which any class of Shares
is listed.
Any notice given pursuant to this subsection (i) shall be
accompanied by such Holder's Trust Certificate and shall name such Eligible
Transferee and shall state (i) its name and mailing address, (ii) the proposed
transfer date (which date shall be not less than five days after the Trustee's
receipt of such notice), (iii) the number and type of Trust Certificate or
Shares (or Share Equivalents) to be transferred, if less than all the number
stipulated in this Trust Certificate and (iv) the consideration, if any, to be
paid by such Eligible Transferee therefor. The notice to the Trustee shall also
contain a representation that such transferee is an Eligible Transferee and
shall be accompanied by a written agreement and representation executed by the
Eligible Transferee (in relying on which the Trustee shall be fully protected)
that it will execute and deliver any agreement or other document required by
this Agreement, the Trust Certificate and, in the case of a transfer of Shares
or Share Equivalents, the Stockholder Agreement or certificates of the Holder.
On the date specified in such notice, and upon receipt by the Trustee from such
Eligible Transferee of the specified consideration, if any, the Trustee shall
deliver: (i) to the Eligible Transferee, a Trust Certificate or a certificate
(or the equivalent evidence of ownership in the case of Share Equivalents) for
the number of Shares of the type specified in such notice, as the case may be,
issued in the name of the Trustee and duly endorsed for transfer, and (ii) to
the Holder, (x) a Trust Certificate with respect to such number of Shares, if
any, on deposit with the Trustee equal to the number of Shares of the type
represented by the surrendered Trust Certificate less the number of Shares of
the type transferred to such Eligible Transferee or corresponding to the Trust
Certificate issued to the Eligible Transferee, and (y) the consideration, if
any, received from such Eligible Transferee. Such consideration shall be
distributed promptly to such Holder pursuant to the transfer instructions set
forth on Schedule B attached hereto or otherwise communicated to the Trustee in
writing.
(ii) A Holder (hereinafter referred to as a "Requesting Party"
for the purpose of this subsection (ii)) may request of the Trustee in writing
that the Trustee transfer to such Requesting Party a certificate or certificates
(or the equivalent evidence of ownership in the case of Share Equivalents) for
Deposited Shares in which the Requesting Party holds a Trust Certificate
hereunder; provided, however, that no such request shall be made if immediately
after giving effect thereto either (A) DLJ Affiliates will own in the aggregate
in excess of 5% in the aggregate of the total number of shares of the voting
capital stock (of any class) of the Corporation then outstanding or (B) DLJ or
any "group" (as defined in Section 13d-5 under the Exchange Act and the rules
and regulations promulgated thereunder) of which DLJ is a member is (1) the
beneficial owner of 10% or more of the Corporation's Common Stock or (2) an
"affiliate" of the Corporation within the meaning of Rule 144 of the rules and
regulations promulgated under the Securities Act, and provided further if the
Requesting Party is not DLJ, the Trustee shall not honor such request unless DLJ
consents in writing to such request. In determining, for purposes of this
subsection (ii) only, whether DLJ Affiliates will own in the aggregate in excess
of 5% in the aggregate of the total number of shares of the voting capital stock
(of any class) of the Corporation then outstanding, (x) no effect shall be given
to the exclusions set forth in Section 2(b), (y) shares of Common Stock
underlying Share Equivalents owned by a DLJ Affiliate shall be deemed to be
outstanding and owned by such DLJ Affiliate and (z) shares of Common Stock held
by the Trustee pursuant to this Agreement shall be excluded. Such written
request (in relying on which the Trustee shall be fully protected) shall contain
the Requesting Party's agreement and representation that it will execute and
deliver any agreement or other document required by the Stockholders Agreement,
and shall name such Requesting Party and shall state (i) the proposed transfer
date (which date shall be not less than five days after the Trustee's receipt of
such request) and (ii) the number and type of Shares to be transferred. The
written request to the Trustee shall also be accompanied by (i) a Trust
Certificate or Certificates of the Requesting Party, duly endorsed for transfer,
representing the beneficial interest in not less than the number of Shares of
the type to be transferred to the Requesting Party, (ii) a certificate of an
officer of the Requesting Party and of DLJ (in relying on which the Trustee
shall be fully protected) certifying that immediately after giving effect to
such request DLJ Affiliates will own in the aggregate not more than 5% in the
aggregate of the total number of shares of the voting capital stock (of any
class) of the Corporation then outstanding and (iii) an opinion of independent
nationally recognized counsel who are experts in matters involving the federal
securities law that, immediately after giving effect to such transfer, neither
DLJ nor any "group" (as defined in Section 13d-5 under the Exchange Act and the
rules and regulations promulgated thereunder) of which DLJ is a member will be
the beneficial owner of 10% or more of the Corporation's Common Stock or an
"affiliate" of the Corporation within the meaning of Rule 144 of the rules and
regulations promulgated under the Securities Act. On the date specified in such
request, and upon receipt by the Trustee from the Requesting Party of such
certificates, the Trustee shall deliver to the Requesting Party a certificate
(or the equivalent evidence of ownership in the case of Share Equivalents) for
the number of Shares of the type specified in such notice, issued in the name of
the Trustee and duly endorsed for transfer.
10. Exercise, Conversion, Exchange or Cancellation of Shares.
The Trustee shall, upon written instruction of a Holder, submit to the
Corporation for exercise, conversion, exchange or cancellation such number of
Shares as correspond to the number of Shares specified in such Holder's Trust
Certificate (or such lesser number as may be specified in such instruction).
Such instruction shall state (a) whether such Shares are to be exercised,
converted, exchanged or canceled, and the basis for such action, (b) the date on
which a certificate or certificates representing such Shares are to be submitted
to the Corporation (which date shall not be less than five days after the
Trustee's receipt of such instruction), (c) the number and type of Shares to be
submitted to the Corporation and (d) the consideration, if any, to be received
upon such exercise, conversion, exchange or cancellation from the Corporation.
The instruction (in relying on which the Trustee shall be fully protected) shall
be accompanied by (x) a Trust Certificate or Certificates of the Holder, duly
endorsed for transfer, representing not less than the number of Shares of the
type to be submitted to the Corporation and (y) any exercise price or other
payment and any agreement, certificate or other documentation required in
connection with such exercise, conversion, exchange or cancellation. On the date
specified in such instruction, and against receipt from the Corporation of the
specified consideration, if any, the Trustee shall deliver: (i) to the
Corporation, (x) a certificate or certificates for the number of Shares of the
type specified in such instruction issued in the name of the Trustee and duly
endorsed for transfer and (y) any exercise price or other payment and any
agreement, certificate or other documentation delivered to the Trustee by such
Holder with such notice and (ii) to the Holder, (x) a Trust Certificate
representing the beneficial interest in a number of shares equal to the number
of Shares represented by the surrendered Trust Certificate or Certificates less
the number of Shares submitted to the Corporation and (y) upon receipt, the
consideration, if any, received by the Trustee pursuant to such exercise,
conversion, exchange or cancellation; provided that if such consideration
includes Shares, such Shares shall be held by the Trustee pursuant to this
Agreement and new Trust Certificates representing the beneficial interest in
such Shares shall be issued to such Holder.
11. Increase or Decrease in Number of Shares. If the number of
outstanding Shares is increased by virtue of a stock split or the decrease in
the number of outstanding Shares because of a contraction of shares or a change
in the number of outstanding Shares as a result of some other recapitalization
in which the Corporation receives no consideration for the issuance of the
additional or reduced number of Shares, the new additional or changed number of
Shares shall be held by the Trustee under this Agreement, the Trust Certificates
outstanding immediately prior to such increase, decrease, or change in the
number of outstanding Shares shall thereupon represent the beneficial interest
in the number of Shares to which the Holders are entitled as a result of such
increase, decrease, or change, and new Trust Certificates evidencing the changed
number of Shares on deposit shall be issued to Holders upon surrender of the
then existing Trust Certificates.
12. Successor Trustee. There shall initially be one Trustee of
the voting trust created herein. Upon the liquidation, dissolution, winding-up,
suspension, incapacity, resignation or removal (in accordance with Section 13
below) of the initial Trustee, DLJ or the Holders of Trust Certificates
representing the beneficial interest in 50% or more of the Deposited Shares
shall appoint a successor Trustee by written notice to the other parties hereto
and the other Holders; provided, however, that such successor Trustee shall not
be a Control Affiliate, an Employee Affiliate, or an other DLJ Affiliate. If a
successor Trustee shall not have been appointed within 30 days of such
liquidation, dissolution, winding-up, suspension, incapacity or removal, the
Trustee may petition a court of competent jurisdiction to appoint such a
successor. If the Trustee consolidates with, merges or converts into, or
transfers all of substantially all of its corporate trust assets or another
entity that is a bank or trust company, the resulting, surviving, or transferee
entity shall become the successor Trustee upon notice to the signatories hereto
but without further action by the signatories or any Holder.
13. Removal/Resignation of Trustee. (a) A Trustee may be
removed by DLJ or the Holders of Trust Certificates representing the beneficial
interest in 50% or more of the Deposited Shares by written notice to the other
parties hereto and the other Holders:
(i) if it is determined as a result of binding arbitration
pursuant to this Section 13 that either (A) the Trustee has willfully
and materially violated the terms of this Agreement, or (B) the Trustee
has been guilty of malfeasance, misfeasance or dereliction of duty
hereunder;
(ii) if the Trustee shall have commenced a voluntary case
or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect, or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or
shall have consented to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall have made a general
assignment for the benefit of creditors, or shall have failed generally
to pay its debts as they become due, or shall have taken any corporate
action to authorize any of the foregoing; or
(iii) if an involuntary case or other proceeding shall
have been commenced against the Trustee seeking liquidation,
reorganization or other relief with respect to it or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in
effect, or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall have
remained undismissed and unstayed for a period of 60 days; or an order
for relief shall have been entered against the Trustee under the
federal bankruptcy laws as now or hereafter in effect.
(b) If DLJ or the Holders of Trust Certificates representing
the beneficial interest in 50% or more of the Shares then deposited hereunder
determine that a basis exists for removal of the Trustee under section 13(a)
above, they shall deliver written notice of such determination to the Trustee
stating the basis for such removal.
(c) Any arbitration pursuant to this Section 13 shall be
conducted in accordance with this Section 13(c). DLJ, the Holders and the
Trustee agree and hereby acknowledge that only the propriety of the removal of
the Trustee pursuant to this Section 13 shall be subject to arbitration and that
no other controversies arising under this Agreement shall be subject to
arbitration unless otherwise expressly agreed by the Trustee, DLJ, and the
Holders in a separate document. Such arbitration shall be governed by the
commercial rules of the American Arbitration Association to the extent not
inconsistent with this Agreement. Such arbitration shall be conducted in New
York, New York. Within 15 days after the notice required by Section 13(b) above,
the Trustee shall choose one arbitrator and DLJ or the Holders of Trust
certificates representing the beneficial interest in 50% or more of the Shares
then deposited hereunder shall choose one arbitrator; and, within 15 days after
the selection of both such chosen arbitrators, the two chosen arbitrators shall
choose an impartial third arbitrator. The decision of a majority of such
arbitrators shall be final and binding on DLJ, the Holders and the Trustee.
(d) The Trustee may resign its position as such (i) upon ten
days' written notice to DLJ, but only if a successor Trustee, appointed as
provided for in Section 12 above, has agreed to serve as such effective upon the
effectiveness of the resignation of the Trustee then acting, or (ii) in any
event upon thirty days' written notice to DLJ.
14. Trustee May Own Shares. Nothing in this Agreement shall
prevent the Trustee from owning Shares or options to purchase Shares in its
individual capacity or in any capacity other than as trustee hereunder or for
any DLJ Affiliate.
15. Trustee Not an Affiliate. The Trustee represents that it
is a bank or trust company which is not a DLJ Affiliate.
16. Compensation; Expenses. The Trustee in its individual
capacity shall receive a fee from DLJ of $1,500 for its services in connection
with the establishment of the voting trust, and DLJ will reimburse the Trustee
in its individual capacity in respect of the Trustee's reasonable expenses
(including, without limitation, for up to $2,000 in attorney's fees) lawfully
incurred in connection therewith. During the period of its services hereunder,
the Trustee in its individual capacity shall receive a fee from DLJ of $2,500
per year. Reasonable expenses (including, without limitation, attorney's fees)
lawfully incurred in the administration or performance of the Trustee's duties
or the exercise of the Trustee's rights, powers and authority hereunder shall be
reimbursed to it in its individual capacity by DLJ on behalf of the Holders. The
provisions of the preceding sentence of this Section 16 shall survive the
termination of this Agreement and the resignation, removal or other cessation of
service of the Trustee.
17. Merger, Etc. Upon any merger, consolidation,
reorganization or dissolution of the Corporation or the sale of all or
substantially all of the assets of the Corporation pursuant to which shares of
capital stock or other voting securities of another entity are to be issued in
payment or exchange for or upon conversion of Shares and other voting
securities, the shares or other voting securities of said other entity shall, to
the fullest extent permitted by law, automatically be and become subject to
other terms of this Agreement and be held by the Trustee hereunder in the same
manner and upon the same terms as the Shares, and in such event the Trustee
shall issue to the Holders that have deposited Shares with the Trustee new Trust
Certificates in lieu of and upon surrender of the old Trust Certificates for the
appropriate number of shares or other voting securities of such other entity. At
the request of any Holder, the Trustee may transfer, sell or exchange or join
with the Holder in a transfer, sale or exchange of Shares and other voting
securities in exchange for shares or other voting securities of another entity,
and in said event the shares and other voting securities of the other entity
received by the transferor shall be and become subject to this Agreement and be
held by the Trustee hereunder in the same manner as the Shares.
18. Notices. All notices, reports, statements and other
written communications directed to the Trustee from the Corporation shall be
forwarded promptly by the Trustee to DLJ and each Holder. All notices, notices
of election and other communications required herein shall be given in writing
by overnight courier, telegram or facsimile transmission and shall be addressed,
or sent, to the appropriate addresses as set forth beneath the signature of each
party hereto, or at such other address as to which notice is given in accordance
with this Section 18.
19. Indemnity, Etc. The Trustee, as such and in its individual
capacity, and its directors, officers, employees, and agents, shall be
indemnified, defended and held harmless from and against any and all loss,
liability, claim, damage and expense whatsoever (including, but not limited to,
any and all expense whatsoever reasonably incurred in investigating, preparing
for or defending against any litigation, commenced or threatened, or any claims
whatsoever) (the "Indemnified Claims") arising out of, in connection with, or
based upon this Agreement or the actions or failures to act of the Trustee
hereunder or thereunder, except to the extent such loss, liability, claim,
damage or expense is caused by or results from the Trustee's malfeasance (as
determined by a final and unappealable order of a court of competent
jurisdiction). DLJ agrees on behalf of itself and the Holders that it will
indemnify, defend and hold harmless the Trustee, as such and in its individual,
capacity, and its directors, officers, employees, and agents, from and against
any Indemnified Claims. DLJ's obligation hereunder shall survive the transfer of
all or any portions of its respective shares and interests, the termination of
the voting trust created herein, or the resignation, removal or other cessation
of service of the Trustee.
The Trustee as such and in its individual capacity shall be
entitled to the prompt reimbursement from DLJ and the Holders, jointly and
severally, for its out-of-pocket expenses (including, without limitation,
reasonably attorneys' fees and other professional's fees and expenses) incurred
in investigating, preparing for or defending against any litigation, commenced
or threatened, arising out of or based upon this Agreement, or the actions or
failures to act of the Trustee hereunder or thereunder, without regard to the
outcome of such litigation; provided, however, that the Trustee shall be
obligated to return any such portion of such reimbursement as may be
subsequently determined by a final and unappealable order of a court of
competent jurisdiction to have been incurred by the Trustee as a result of the
Trustee's malfeasance in the matter in question. Such expenses payable under
this Section 19 shall be prorated among the Holders in accordance with their
respective interests in the Shares then deposited hereunder.
If a claim under this Section 19 is not paid in full within 30
days after a written claim has been submitted by the Trustee, the Trustee may at
any time thereafter bring suit to recover the unpaid amount of the claim and, if
successful in whole or in part, the Trustee as such and in its individual
capacity shall be entitled to be paid also the expense of prosecuting such
claims.
The Trustee is authorized and empowered to construe this
Agreement and its construction of the same, made in good faith, shall be final,
conclusive, and binding upon all Holders and all other parties interested. The
Trustee may, in its discretion, consult with counsel to be selected and employed
by it, and the reasonable fees and expenses of such counsel shall be an expense
for which the Trustee as such and in its individual capacity is entitled to
reimbursement under this Agreement, and shall have no personal liability.
The Trustee hereby accepts the voting trust created hereby and
agrees to perform the obligations expressly required hereunder to be performed
by the Trustee, but assumes no other obligations and shall have no
responsibility and shall have no personal liability for the management of the
Corporation or for any action taken by it, by any person elected as a director
of the Corporation or by the Corporation pursuant to any vote cast or consent
given by the Trustee. The Trustee, whether or not acting upon the advice of
counsel, shall incur no personal liability to any person or entity because of
any error of law or fact, mistake of judgment or any matter or thing done or
omitted under this Agreement, except for its own malfeasance. Anything done or
suffered in good faith by the Trustee in accordance with the advice of counsel
chosen as indicated above or in good faith reliance on the provisions of this
Agreement shall be conclusive in favor of the Trustee against the Holders and
any other interested party and shall give rise to no personal liability on the
part of the Trustee.
The Trustee shall not be personally liable in any event for
acts or defaults of any other trustee or trustees (under this or any other
voting trust of the Corporation's securities) or for acts or defaults of any
employee, agent, proxy or attorney-in-fact of any other trustee or trustees. The
Trustee shall be fully protected and free form personal liability in relying or
acting upon any notice, request, consent, certificate, declaration, guarantee,
affidavit or other paper or document or signature reasonably believed by it to
be genuine and to have been signed by the proper party or parties or by the
party or parties purporting to have signed the same.
No provision of this Agreement shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
20. Certain Calculations. For purposes of Sections 8, 9, 12,
13, 19 and 26, a Holder owning a Trust Certificate representing the beneficial
interest in Share Equivalents shall, in respect of such ownership, be deemed to
be the Holder of a Trust Certificate representing the beneficial interest in the
number of shares of Common Stock that the Trustee, acting on behalf of such
Holder, may then acquire, whether by exercise, conversion, subscription or
otherwise, pursuant to or by reason of ownership of such Share Equivalents.
21. Counterparts. This Agreement may be executed in multiple
counterparts all of which counterparts together shall constitute one agreement.
Upon execution of this Agreement and the establishment of the voting trust
created herein, the Trustee shall cause a copy of this Agreement to be filed in
the registered office of the Corporation in the State of Delaware and the
Agreement shall be open to inspection in the manner provided for inspection
under the laws of the State of Delaware.
22. Choice of Law. This Agreement is intended by the parties
to be a voting trust agreement under Section 218 of the General Corporation Law
of the State of Delaware and shall be governed and construed in accordance with
the laws of the State of Delaware.
23. Bond. The Trustee shall not be required to provide any
bond to secure the performance of its duties hereunder.
24. Reliance. DLJ and each Holder acknowledge that DLJ will
rely on this Agreement in complying with the federal securities laws. The
Trustee acknowledges that DLJ will rely on the Trustee abiding by the terms of
this Agreement, including, without limitation, that (x) subject to the
Stockholders Agreement, the Trustee will vote the Deposited Shares in its sole
and absolute discretion and will not consult with any DLJ Affiliate regarding
the voting of such Shares and (y) the Trustee will not consent to any amendment
or waiver of this Agreement prohibited by Section 26 hereof whether or not such
amendment or waiver is approved by each of the parties hereto and the Holders.
25. Covenant of DLJ. DLJ will cause each Control Affiliate to
perform the covenants hereof that are applicable to Control Affiliates.
26. Amendments and Waiver. This Agreement may not be amended
or waived in any material respect unless DLJ shall have delivered to the Trustee
an opinion (in relying on which the Trustee shall be fully protected) of
independent nationally recognized counsel who are experts in matters involving
the federal securities law, that, immediately after such amendment or waiver, no
DLJ Affiliate will be an "affiliate" of the Corporation within the meaning of
Rule 144 under the rules and regulations promulgated under the Securities Act.
Subject to the foregoing, this Agreement may be amended with the written consent
of the Trustee, DLJ and the Holders of Trust Certificates representing the
beneficial interest in 50% or more of the Shares then deposited hereunder, and
if so amended then this Agreement (as so amended) shall bind all of the parties
hereto and all of the Holders.
27. Severability. In case any provision in this Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
28. Stockholders Agreement. Simultaneously with the execution
of this Agreement, the Trustee will execute an amendment to the Stockholders
Agreement, substantially in the form set forth in Exhibit A, and will thereby,
inter alia, become a party to the Stockholders Agreement.
29. Authorization. Each party to this Agreement hereby
represents, severally and not jointly, that this Agreement has been duly and
validly authorized, executed, and delivered and, assuming, due authorization,
execution and delivery by the other parties hereto, is a valid, binding and
enforceable agreement of such party.
30. Binding Effect. This Agreement shall inure to the benefit
of and be binding upon the parties and their respective successors and assigns.
31. Benefits and Assignment. Nothing in this Agreement,
expressed or implied, shall give or be constructed to give any person or entity
other than the parties hereto and their successors and permitted assigns, any
legal claim under any covenant, condition or provision hereof, all the
covenants, conditions and provisions contained in this Agreement being for the
sole benefit of the parties hereto and their successors and permitted assigns.
No party may assign any of its rights or obligations under this Agreement
(except as provided in Section 12) without the written consent of all of the
other parties, which consent may be withheld in the sole discretion of the party
whose consent is sought.
<PAGE>
EXECUTED as of the date and year first above written.
CHRISTIANA BANK & TRUST COMPANY
Trustee
By:
--------------------------------
Name:
Title:
Address: Greenville Center
3801 Kennett Pike
Wilmington, DE 19807
Attention: Christiana Corporate
Services, Inc.
Telephone: 302-888-7424
Facsimile: 302-421-5815
DONALDSON, LUFKIN & JENRETTE, INC.
By:
--------------------------------
Name:
Title:
Address: 277 Park Avenue
New York, New York 10172
Attention: Marjorie White
Telephone: 212-892-2933
Facsimile: 212-892-8216
DLJMB FUNDING II, INC.
By:
--------------------------------
Name:
Title:
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
--------------------------------
Name:
Title:
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
--------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By:
--------------------------------
Name:
Title:
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By:
--------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
--------------------------------
Name:
Title:
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
--------------------------------
Name:
Title:
DLJ FIRST ESC L.P.
By: DLJ Plans Management Corporation
General Partner
By:
--------------------------------
Name:
Title:
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By:
--------------------------------
Name:
Title:
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:
--------------------------------
Name:
Title:
DLJ ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By:
--------------------------------
Name:
Title:
<PAGE>
SCHEDULE I
----------
DLJMB Funding II, Inc.
DLJ Merchant Banking Partners II, L.P.
DLJ Merchant Banking Partners II-A, L.P.
DLJ Diversified Partners, L.P.
DLJ Diversified Partners-A, L.P.
DLJ Millennium Partners, L.P.
DLJ Millennium Partners-A, L.P.
DLJ First ESC L.P.
DLJ Offshore Partners II, C.V.
DLJ EAB Partners, L.P.
DLJ ESC II, L.P.
<PAGE>
SCHEDULE B
----------
TRANSFER INSTRUCTIONS
---------------------
DLJMB FUNDING II, INC.
All payments shall be made by check mailed to:
DLJMB Funding II, Inc.
277 Park Avenue, 20th Floor
New York, New York 10172
Attention: Ivy Dodes
DLJ MERCHANT BANKING PARTNERS II, L.P.
DLJ MERCHANT BANKING PARTNERS II-A, L.P.
DLJ MILLENNIUM PARTNERS, L.P.
DLJ MILLENNIUM PARTNERS-A, L.P.
DLJ OFFSHORE PARTNERS II, C.V.
All payments shall be made by check mailed to:
DLJ Merchant Banking II, Inc.
277 Park Avenue, 20th Floor
New York, New York 10172
Attention: Ivy Dodes
DLJ DIVERSIFIED PARTNERS, L.P.
DLJ DIVERSIFIED PARTNERS-A, L.P.
All payments shall be made by check mailed to:
DLJ Diversified Partners, Inc.
277 Park Avenue, 20th Floor
New York, New York 10172
Attention: Ivy Dodes
DLJ FIRST ESC L.P.
All payments shall be made by check mailed to:
DLJ Plans Management Corporation
277 Park Avenue, 20th Floor
New York, New York 10172
Attention: Ivy Dodes
DLJ EAB PARTNERS, L.P.
DLJ ESC L.P.
All payments shall be made by check mailed to:
DLJ LBO Plans Management Corporation
277 Park Avenue, 20th Floor
New York, New York 10172
Attention: Ivy Dodes
